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Daniels v. State

The trial court erred in failing to merge for sentencing the pairs of counts in which the crimes alleged were identical but the date ranges were different after the defendant was convicted of multiple counts of child molestation, aggravated child molestation and incest.

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Terry Daniels was tried and convicted on five counts of child molestation, four counts of aggravated child molestation, and two counts of incest all involving the same victim; he was acquitted on two counts of statutory rape. On appeal, Daniels does not challenge the sufficiency of the evidence. Rather, he challenges aspects of his sentence and claims ineffective assistance of counsel. The issues arise out of the fact that, with one exception, Daniels was charged in each of six pairs of counts with identical sexual misconduct toward the same victim, with one count alleging misconduct before July 1, 2006, and the other alleging misconduct on or after that date.

In each pair of counts, Daniels was charged with one of various types of sexual misconduct toward the victim. In one count he was alleged to have committed the misconduct in two separate time periods occurring before July 1, 2006; in the other count he was charged with the identical misconduct in two separate time periods occurring on or after July 1, 2006. For example, in Counts 1 and 2, Daniels was charged with child molestation in that he “did touch said child upon her vagina with his hand.” In Count 1, it was alleged that the crime occurred

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