370 N.E.2d 486 | Ohio Ct. App. | 1977
The defendant-appellant, Herbert Goodnight, Jr., hereinafter referred to as appellant, was indicted on July 1, 1975, by the Cuyahoga County Grand Jury for three violations of R. C. Chapter 3719, the former drug law. Count I charged the appellant with possession for sale of heroin, in violation of R. C.
On October 6, 1975, the appellant withdrew his pleas of not guilty and entered a plea of guilty to the first count of the indictment, possession for sale of heroin. The remaining two counts were nolled by the court.
The appellant appeared for sentencing on December 29, 1975, and requested a continuance and the sentencing was continued and rescheduled for January 15, 1976, at which time the parties stipulated that the appellant possessed 22.282 grams of heroin. The trial court then entered the following judgment:
"* * * [T]hat the defendant be imprisoned and confined in the Ohio State Reformatory, Mansfield, Ohio, for a period of one and one-half years to ten years pursuant to Substitute House Bill 300 with all jail time credited."1
The appellant filed a timely notice of appeal and set forth one assignment of error for this court's consideration:
"The lower court erred by not dismissing the charge against appellant abrogating the conviction and finally releasing from imprisonment appellant pursuant to Ohio Revised Code
Simply stated, appellant's position is that the offense to which he plead guilty is not an offense under the new drug abuse law and the charges against him should be dismissed pursuant to Section 3 of Amended Substitute House Bill 300.2 *335
In this case, we are called upon to determine whether the defendant should be discharged because the offense to which he plead guilty, possession for sale under R. C.
In deciding this issue, we must examine certain relevant provisions of Ohio's recently enacted drug law.
Prior to July 1, 1976, the effective date of the new drug law, most of Ohio's drug laws were contained in the Uniform Narcotic Drug Act.4 This act contained both regulatory and penal laws in regard to narcotic drugs in Ohio with some of the prohibitions and violations contained in R. C.
The Ohio legislature enacted H. B. 300 on July 31, 1975. Certain penalty provisions became effective on November 21, 1975,5 and the balance of the act became effective on July 1, 1976.6
Section 1 of the act amended certain existing sections of R. C. Chapter 3719 and enacted R. C. Chapter 2925. Section 2 repealed several existing sections of R. C. Chapter 3719.
One of the changes in R. C. Chapter 3719 involves the adoption of a new term, "controlled substance," which means a drug, compound, mixture, preparation or substance listed in Schedules I, II, III, IV or V of R. C.
A "drug abuse offense" is a violation of any of several of the newly adopted provisions of R. C. Chapter 2925,7 or a violation of any existing or former laws of Ohio or any other state of the United States substantially equivalent to any of the new offenses contained in R. C. Chapter 2925.8
Several other terms were introduced into the new law. One of these is "bulk amount" of a controlled substance.9 Bulk amounts are those that are normally possessed by a drug seller, pusher or dealer.
The new drug abuse law contains a section entitled, "Trafficking in Drugs," which lists eight offenses.10 This section deals with the illicit business of supplying drugs such as manufacturing, cultivating, selling, distributing and possession of bulk amounts.11 The enumerated offenses relate to illicit drug traffic and are more concerned with dealers, peddlers and pushers than with users. For example, possession of various bulk amounts of a controlled substance is considered aggravated trafficking or trafficking in drugs depending upon the type of controlled substance involved.12
In the new drug law there are three possession offenses. Two of them are in the trafficking section and involve possession of controlled substances in excess of the bulk amount and are aimed at sellers and peddlers. The third possession offense is possession of less than the bulk amount, and it is aimed at users rather than sellers.
Relevant to the issue in this appeal are those offenses in R. C.
If the possession of the controlled substance is equal to *337 or exceeds the bulk amount but is less than three times that amount,13 the offense is either a third or fourth degree felony depending upon the schedule in which the controlled substance is listed.14 If the possession of the controlled substance is in an amount equal to or exceeding three times the bulk amount15 the offense is either a second or third degree felony, depending upon the schedule in which the controlled substance is listed.16
The penalty for a second degree felony is actual incarceration of three years to a maximum of fifteen years.17 The penalty for a third degree felony is actual incarceration for eighteen months to a maximum of ten years.18 For a fourth degree felony, the punishment is actual incarceration for six months to a maximum of five years.19
If the controlled substance involved is marijuana, a violation of R. C.
Further, it is an affirmative defense to a charge for possession of a bulk amount of a controlled substance that the substance is used solely for personal use.22 If a person is charged with possessing a bulk amount or multiple thereof, the jury or court trying the accused shall determine the amount of the controlled substance involved at the time of the offense and if a guilty verdict is returned, the findings are returned as part of the verdict.23 *338
The third possession offense is found in R. C.
If the drug involved is marijuana, the offense is a misdemeanor of the fourth degree, unless the amount involved is less than 100 grams, in which case the offense is a minor misdemeanor.28 Arrest or conviction for a minor misdemeanor in violation of this section does not constitute a criminal record.29
The new drug law provides substantially reduced penalties for similar violations under the old law. For example, the penalty for the offense of possession for sale of a narcotic drug under former R. C.
Under the old law, the penalty for an illegal sale of a narcotic drug under R. C.
Formerly, the illegal possession of a narcotic drug under R. C.
Sections 3 and 4 of H. B. 300 are temporary, uncodified law and modify the effective date of R. C. Chapter 2925. *340 Section 4 provides that Sections 1 and 2 shall take effect on July 1, 1976. Section 3 provides and requires that sentences in effect on November 21, 1975, and sentences imposed on or after that date be modified or imposed in accordance with the new penalty structure. Thus, the old offenses under R. C. Chapter 3719 remained in existence until July 1, 1976, but the new penalties under R. C. Chapter 2925 became effective on November 21, 1975.
Section 3 provides that any person charged, convicted or serving a sentence of imprisonment for an offense under existing law that would not be an offense on July 1, 1976, shall have the charge dismissed and the conviction abrogated, shall be finally released from imprisonment and shall have his records expunged of all information concerning that offense. Any person charged with an offense committed prior to July 1, 1976, that shall be an offense under the new drug abuse act, shall be prosecuted under the law as it existed at the time the offense was committed and any person convicted or serving a sentence of imprisonment for an offense under existing law, that would be an offense on July 1, 1976, but would entail a lesser penalty than the penalty provided for the offense under existing law, shall be sentenced according to the penalties provided in the new law or have his existing sentence modified in conformity with the penalties provided in the new law.38 Such modification shall grant him a final release from imprisonment, if he has already completed the period of imprisonment provided under the new act, or shall render him eligible for parole release from imprisonment if he has completed a period of imprisonment that would render him eligible for parole under the provisions of the act.
In dealing with the relationship between the old law and the new law and the application of Section 3, it is necessary to determine whether an offense under the old law is an offense under the new law and if it is which penalty under the new law would apply. The problem of determining *341 whether an offense under the old law is an offense under the new law is special or peculiar to the former offense of possession for sale. There is no similar problem in regard to the offenses of possession or sale because both the offenses of possession and of sale under the old law are clearly offenses under the new law.
Unfortunately, the legislature did not provide guidelines for determining which offenses under the old law are offenses under the new law for the purpose of sentencing or resentencing. Thus, the courts are required to interpret the legislative intent based on the legislation as it was enacted.
We recognize that because of the manner in which H. B. 300 was drafted the trial courts of Ohio have not been implementing the provisions of Section 3 in a uniform manner. In deciding the issue of whether the offense of possession for sale under the old drug law is an offense under the new drug law, there are five possible interpretations of Section 3 of H. B. 300 as it relates to this issue.
1. The first is that possession for sale under the old law, R. C.
Since it was difficult to prove intent to sell, it can be concluded that the legislature substituted the element of bulk amount of a controlled substance for intent to sell. Arguably, the legislature reasoned that a person having possession of a controlled substance in excess of the bulk amount is presumed to be a seller, pusher or peddler rather than a user. Thus, that person would now be a trafficker of a controlled substance in violation of R. C.
The argument that the offense of possession for sale under the old law is an offense under the new law is also supported by the language of R. C.
2. The second interpretation is that Section 3 requires the discharge of the appellant because it specifically provides that any person convicted of an offense under the old drug law shall be discharged if that offense is not an offense under the new law. According to this argument, since the appellant plead guilty to possession for sale under the old law, and since possession for sale is not an offense under the new law, the appellant is clearly entitled to have his conviction abrogated, to be released from imprisonment, and to have his records expunged of all information concerning that offense. It is argued that this result is required by the clear and specific language of the statute.
3. The third interpretation is that under the well-established principle of lesser included offenses and merger, wherein a judgment of conviction entered for a single offense merges in it all lesser included offenses,39 the appellant's conviction should be reduced from possession for sale under the old law to drug abuse under the new law, R. C.
4. The fourth interpretation is that if possession for sale under the old law is an offense of trafficking-possession under the new law, it is necessary to have a hearing to determine the bulk amount of the controlled substance the appellant possessed and whether it is a violation of R. C.
The basis of this argument is that while the legislature did not expressly provide for a hearing, it intended that such a hearing be held because R. C.
Further, according to this interpretation, these hearings would not violate Section
5. The final argument is that Section 3 of H. B. 300 is unconstitutional because it is vague, indefinite, and does not provide standards for an application of the resentencing provisions.
After considering the five alternatives stated above, *344
it is our conclusion that the crime of possession for sale under the old law is substantially equivalent to trafficking under R. C.
The basis of this conclusion is that the legislature provided in R. C.
It is again noted that the problem of interpreting whether an offense under the old law is an offense under the new law only occurs with the former offense of possession for sale and not with the offenses of possession or sale because both of these offenses were offenses under the old law and are offenses under the new law. The new law, however, does not include the offense of possession for sale but includes trafficking-possession offenses which contain the elements of possession of a controlled substance in various bulk amounts. Both the offense of possession with intent to sell under the old law and the offense of possession of amounts in excess of bulk amounts under the new statute are equivalent because they apply to sellers, dealers, pushers and peddlers rather than mere users of controlled substances. It is our view that the legislature merely substituted the element of bulk amount for the element of intent to sell.
Because the legislature did not state which offenses under the old law are offenses under the new law for the purposes of sentencing and resentencing pursuant to Section 3, it is our decision that possession for sale under the old law is a violation of R. C.
It is recognized that our decision that possession for sale under the old law is a trafficking-possession offense under the new law raises the question of whether it is a violation *345
of R. C.
Because the penalty for possession with intent to sell under the old law was incarceration of ten to twenty years, which is greater than the penalty for trafficking-possession under the new law, it is our decision that Section 3 of H. B. 300 requires that persons convicted for possession with intent to sell under the old law be sentenced or resentenced according to the new law. The sentence imposed under the old law should be reduced to the next lowest penalty for a trafficking-possession offense, which is a violation of R. C.
We reject the four other arguments for the following reasons. The literal argument that Section 3 of H. B. 300 requires that the appellant be discharged because the offense to which he plead guilty, possession for sale, under the old law is no longer an offense under the new law, would lead to an unconscionable result. It would mean that every pusher or peddler who was convicted or plead guilty to possession for sale of heroin under the old law would be discharged.
The legislature could not have intended such a literal interpretation which would produce such an absurd result. To reach this conclusion, it would be necessary to strain the language of R. C.
The argument in regard to lesser included offenses is also not valid because it too would produce an unreasonable result. Under this theory, the appellant's sentence would be reduced to that for possession under R. C.
Also, since possession with intent to sell was aimed at drug traffickers, this is not an offense substantially equivalent to possession of less than the bulk amount in violation of R. C.
We also reject the argument that the legislature intended that hearings should be held to determine the bulk amount of a controlled substance possessed by a person previously convicted of possession for sale in order to ascertain whether such person's sentence should be reduced to trafficking in drugs under R. C.
We reject this argument for several reasons. Initially, we note that the legislature did not expressly provide for such a hearing. Secondly, a statutory provision for a current determination of an element of a crime which is to have retroactive application may be unconstitutional as an ex postfacto law. Thirdly, if evidence of a bulk amount is not considered an element of the crime, Section 3 contains no provision indicating who shall have the burden of proof in regard to the bulk amount. Lastly, there are numerous administrative problems imposed on both the state and the defendant in producing evidence of the bulk amount after the case has been closed since evidence may have been destroyed.
For these reasons, it is our conclusion that the legislature *347 did not intend that a hearing be held to determine the bulk amount in resentencing a person who was convicted under the old drug law.
Lastly, the argument that Section 3 of H. B. 300 is vague and standardless and therefore unconstitutional is not well taken. It is conceded that the legislature did not spell out in detail which offenses under the old law are considered offenses under the new law for the purpose of resentencing. But, the legislative enactments of R. C.
If this decision produces a seemingly harsh result because those convicted of possession for sale under the old drug law will not be discharged or have their sentence further reduced, this can be rectified by additional legislative action or by the adult parole authority as to prisoners who have served the minimum time under the statute and are eligible for parole. To give relief beyond that expressed in this opinion would be to distort the law beyond what we deem to be the legislative intent.
Because of the foregoing discussion, the appellant's assignment of error is not well taken and he should not be discharged. Also, the trial court's sentence under R. C.
The judgment of the trial court that the defendant is guilty of possession for sale in violation of former R. C.
Judgment affirmed in part and reversed in part.
CORRIGAN and STILLMAN, JJ., concur.