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Rivera v. State10/30/1992
ently.
An apt description of the doctrine of merger of offenses for sentencing is found in Commonwealth v. Whetstine, 344 Pa. Super. 246, 496 A.2d 777 (1985), as that doctrine has been developed in Pennsylvania.
In deciding whether offenses merge, the question is whether the offenses charged "necessarily involve" one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act.
Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant's conduct constituted more than one injury to the Commonwealth.
Whetstine, 496 A.2d at 779-80 (citations omitted).
In disposing of the double jeopardy issue relating to the charges naming BJL as the victim, we hold the State was entitled to charge both offenses, and it was entitled to have them presented to the jury. The State had no way of anticipating how the evidence may be perceived by a jury or what the conclusion of the jury might be with respect to the charged offenses. Once the jury convicted Rivera of both charges, however, the charges in the case of BJL merge for purposes of punishment, and only one sentence should have been imposed. In the context of the Whetstine rationale, only one injury occurred to the State in this instance. We, therefore, hold the sentence for the indecent liberties charge in the case in which BJL was a victim should be vacated. This acknowledges Rivera's right not to be placed twice in jeopardy for the same offense and affords an adequate accommodation to the constitutional prohibitions.
We have held there was no error in connection with the specific claims of error by Rivera. In the absence of error, there can be no claim of cumulative error, and we do not consider that contention of Rivera any further.
The State of Wyoming has conceded that, pursuant to precedent in this state, it is necessary the judgment and sentence be amended to afford Rivera credit for pretrial incarceration on all of the concurrent sentences. This concession by the State is correct. See Prejean v. State, 794 P.2d 877 (Wyo. 1990); Weedman v. State, 792 P.2d 1388 (Wyo. 1990). In this instance, a remand to the district court is not necessary to accomplish that amendment to the judgment and sentence, and our holding in this regard affords adequate notice to the executive branch of government that the credit is to be given on all of the concurrent sentences. As modified by the vacation of one sentence and the requirement for credit against each of the remaining sentences for the full presentence confinement, the concurrent sentences are affirmed.
We hold there was no reversible error in connection with Rivera's trial and conviction. As modified, the judgment and sentences are affirmed.
URBIGKIT, Justice, concurring in the opinion.
I concur in the decision and in the opinion. However, this court should proceed with some caution in any acceptance that DNA profile testing is scientifically infallible. Some current literature and recent cases are developing concern about the possibility of significant error. Most authorities agree that error can occur, dependent upon a number of factors, including simple carelessness in application of a
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