On January 18, 2017, I posted a blog article entitled Separating Actual Cocaine From The Filler: A Look At How The Ohio Supremes Are Requiring The State To Prove The Weight Of Cocaine Without Any Filler.
In that article, I discussed State v. Gonzales, 2016-Ohio-8319, and how the Ohio Supreme Court was asked, “Must the state, in prosecuting cocaine offense involving mixed substances under R.C. 2925.11(C)(4)(b) through (f), prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?”
Based on that question, the Ohio Supremes held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.
Well unfortunately for Gonzales I, it only last for a few short months and has now been reversed by the Ohio Supreme Court.
Pursuant to Supreme Court Practice Rule 18.02, the state filed a Motion to Reconsider the court’s original ruling in Gonzales I. S.Ct.Prac.R. 18.02 gives the Ohio State Supreme Court the authority to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381. The Court, “will not, however, grant reconsideration when a movant seeks to merely to reargue the case at hand.” Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2014-Ohio-1940.
The state asserted in their Motion to Reconsider that the Court misapplied the rule of lenity and the canon of strict construction. Based on that belief the Court, in a 5-2 decision, granted the state’s Motion to Reconsider Gonzales I.
Chief Justice O’Connor, writing for the majority, held that the entire “compound, mixture, preparation, or substance,” including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4). Thus, the Court vacated its decision in Gonzales I and reinstated the 11 year prison sentence of Gonzales.
Justices Kennedy and O’Neill wrote dissenting opinions. Out of the two dissenting opinions, Justice O’Neill let his feelings known!
Justice O’Neill stated that each of the opinions in Gonzales I were fully and carefully considered by the seven justices of the court and the only thing that has changed since Gonzales I is the makeup of the court. Justice O’Neill followed that up with “[f]rom this day forward, newly seated justices on this court have a license to reconsider that which they never considered in the first place.” Original emphasis.
And to drive his dissatisfaction with the new majority opinion, ended his dissent with the following:
“To be clear, today’s majority opinion does a major disservice to the English language to arrive at a desired result. From this date forward, the statute in question will be read to mean that 2.99 grams of powder will now be considered to be 3.00 grams of cocaine if there is even a scintilla of the controlled substance found in the ‘mixture.’ Good enough for government work? I think not. I dissent.”
I believe a little history lesson might be in order with regards to the word “cocaine.” This whole wording debacle with regards to “cocaine” came about under a decade ago with lawmakers tried to equalize sentencing for powder cocaine and crack cocaine. This was done to address concerns that minorities, who were more likely to use crack than powder, were being punished disproportionately for using essentially the same drug being used by a white powerbroker who was using the powder form in a penthouse suite.
As I stated in my previous article, this is a problem for the Ohio General Assembly to figure out and potentially write a new law with regards to “cocaine.”
Rep. Robert Cupp presented Amended House Bill 4 to address the issue of cocaine and cocaine fillers after Gonzales I was decided. In the notes, the House Bill states the following:
“The General Assembly is aware of the Ohio Supreme Court’s holding in State v. Gonzales, 2016-Ohio-8319. It was not the intent of the General Assembly to require the State, in prosecuting cocaine offenses involving mixed substances, to prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler material used in the mixture.”
Amended House Bill 4 has been passed in the House, but the Senate has not acted on the bill yet.
Only time will tell with regards to the fate of the word cocaine!
Ohio Criminal Defense Law Blog 