State v. ChandlerState v. Chandler
Lead Opinion
{¶ 1} Thеse consolidated discretionary appeals raise the issue of whether a person can be subject to the special penalty statute applicable to a major drug offender for a first-degree felony drug conviction when the substance offered as crack cocaine contains no detectable amount of the drug.
{¶ 2} Appellee Phillip Bledsoe was the subject of an undercover investigation conducted by the Massillon City Police Department аnd the FBI. During the investigation, a confidential informant was used to make a number of controlled buys of crack cocaine from Bledsoe. The last of these transactions was to occur on July 1, 2003, when the informant telephoned Bledsoe and negotiated a purchase of five ounces of crack cocaine for $8,000. As part of the set-up, before the meeting, an undercover officer hid himself in the informant’s vehicle with audio and video equipment to allow him to witness and recоrd the transaction.
{¶ 3} By telephone, Bledsoe arranged a place to exchange the money and drugs. At the agreed location, however, appellee Kenyan Chandler arrived instead of Bledsoe. The informant immediately telephoned Bledsoe for assurance and was told that Chandler was Bledsoe’s brother. Chandler entered the vehicle and produced a package containing a wet, white substance resembling freshly made crack cocaine. Chаndler was arrested, and the package was confiscated. Later testing revealed that the package’s substance consisted of over 100 grams of baking soda.
{¶ 4} Based on this transaction, Bledsoe and Chandler were each indicted on charges of trafficking in cocaine in violation of
{¶ 5} Chandler and Bledsoe appealed their convictions to the Fifth District Court of Appeals.
{¶ 6} The Fifth District also reversed Bledsoe’s trafficking-in-cocaine conviction under
{¶ 7} We accepted both discretionary appeals.
{¶ 8} When interpreting a stаtute, a court must look to the language of the statute, giving effect to the words used and not deleting or inserting any words. Rice v. CertainTeed Corp. (1999),
{¶ 10} The cases relied upon by the state, State v. Mughni (1987),
{¶ 11} In State v. Mughni,
{¶ 12} The penalty provision that relates to drug-trafficking cases,
{¶ 13} Unless other specific portions of the section apply, trafficking in cocaine is a fifth-degree felony, and there is no presumption for a prison term.
{¶ 14} If the amount is 500 grams or more but less than 1,000 grams of powder cocaine (or 25 grams or more but less than 100 grams of crack cocaine), the offense is a first-degree felony, and the court shall impose a mandatory prison term.
{¶ 15} The penalty section at issue here,
{¶ 16} The appellees were charged with violating
{¶ 17} The major-drug-offender penalty that is referred to in
{¶ 18} The General Assembly has authorized a hierarchy of criminal penalties for drug trafficking based upon the identity and amount of the controlled substance involved. By the terms of the penalty statute for cocaine,
{¶ 19} In this case, the jury found that 130.87 grams of baking soda equaled or exceeded 100 grams of crack cocaine. Testing had already revealed the substance to be baking soda. Holding that the penalty enhancement for a major drug offender applies when any substance over 100 grams — baking soda, face powder, powdered sugar, or the like — is represented to be “crack cocaine” contradicts the statute.
{¶ 20} The General Assembly has already specifically proscribed the activity present in this case as trafficking in counterfeit controlled substances.
{¶ 21} We hold that the statute is clear and that a substance offered for sale must contain some detectable amount of the relevant controlled substance before а person can be sentenced as a major drug offender under
{¶ 22} Accordingly, we affirm the judgments of the court of appeals.
Judgments affirmed.
Notes
. Bledsoe’s other convictions and sentences for earlier controlled buys are not before us.
. See penalties for nonspecified Schedule I or II drugs,
Dissenting Opinion
dissenting.
{¶ 23} I strongly disagree with the majority’s conclusion that
{¶ 24}
{¶ 25} “No person shall knowingly * * *:
{¶ 26} “(1) Sell or offer to sell a controlled substance.” (Emphasis added.)
{¶ 27}
{¶ 28} “Whoever violates division (A) of this section is guilty of one of the following:
{¶ 29} “ * * *
{¶ 30} “(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows:
{¶ 31} “ * * *
{¶ 32} “(g) If the amount of the drug involved equals or exceeds one thousand grams of cocaine that is not crack cocaine or equals or exceeds one hundred grams of crack cocaine and regardless of whether the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree * * *.”
{¶ 33} In construing a statute, a court must ascertain the intent of the legislature. In re Guardianship of Lombardo (1999),
{¶ 34} This court previously characterized R.C. Chapter 2925 as “strong legislation” through which the General Assembly “has attempted to extirpate thе malevolent traffic in drugs within Ohio.” State v. Patterson (1982),
{¶ 35} It is well established that a person can be convicted for offering to sell a controlled substance in violation of
{¶ 36} The majority claims that the jury in these cases “found that 130.87 grams of baking soda equaled or exceeded 100 grams of crack cocaine.” However, that is not what the jury found in these cases. Rather, the jury in each case found that the appellees were guilty of trafficking in crack сocaine and that the amount of the drug involved in the offense equaled or exceeded 100 grams of crack cocaine.
{¶ 37} The majority incorrectly concludes that an alternative statute,
{¶ 38} In light of the precedent of this court and the language of the statute itself, we should not now read into
{¶ 39} Accordingly, I would reverse the judgments of the court of appeals.
Dissenting Opinion
dissenting.
{¶ 40} I strongly disagree with the majority’s conclusion that
{¶ 41} The majority fails to read
{¶ 42}
{¶ 43} “No person shall knowingly do any of the following:
{¶ 44} “(1) Sell or offer to sell a controlled substance.”
{¶ 45} This statute criminalizes equally the act of selling a controlled substance and offering to sell a controlled substance. The General Assembly’s enactment of
{¶ 47} The majority correctly states that Mughni and its predecessors were decided before the revision of
{¶ 48}
{¶ 49}
{¶ 50} “If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined as follows [listing the various penalties].” (Emphasis added.)
{¶ 51} The operative language in
{¶ 52} “If the amount of the drug involved equals or exceeds one thousand grams of cocaine that is not crack cocaine or equals or exceeds one hundred grams of crack cocaine * * *, trafficking in cocaine is a felony of the first degree, [and] the offender is a major drug offender * * *.” (Emphasis added.)
{¶ 53} The majority opinion concludes that the language of
{¶ 54} The majority opinion acknowledges that the statute must be interpreted by its language, but fails to do so. In
{¶ 55} The majority holds, without analysis, that the penalty statute “presumes that a detectable amount of the controlled substance is present.” There is no authority for this singular position, and indeed, none is cited. The “amount of the drug involved” is more properly construed as the “amount of the drug involved in the offer,” at which time the trafficking crime is complete, Mughni,
{¶ 56} The majority’s interpretation totally ignores one crucial aspect of the hierarchy of criminal penalties for drug trafficking based upon the identity and amount of the controlled substance involved.
{¶ 57} Under the majority’s holding today, every offer to sell a controlled substance when the substance is not actually controlled is presumed to draw the minimum available penalty, which can be enhanced only by using factors other than calculation of the amount. As described above, this holding is logically inconsistent with the language of the statute and thwarts the practical and regular implementation of
{¶ 58} In State v. Pimental, 8th Dist. No. 84034,
{¶ 59} In State v. Jeter, 6th Dist. No. E-02-047,
{¶ 60} Defendants are regularly charged with, convicted of, and sentenced for trafficking, and their penalties are enhanced based on the classification of drugs offered and the quantity of those drugs discussed in the offer when the drugs were never recovered, when no drugs were ever present, аnd when no drugs were actually transferred.
{¶ 61} The majority’s holding today gives two drug dealers a free pass where none was intended. The majority’s holding will eviscerate the ability to properly sentence serious criminals for serious crimes and will encourage drug transactions to be completed in new and creative ways, such that if the dealer is caught, the drugs are not discovered. If the drugs cannot be discovered, only the minimum penalty may be imposed. Today’s decision is incorrect and benefits only the criminals.
{¶ 62} Accordingly, the judgment of the court of appeals should be reversed.