THE STATE OF OHIO, APPELLEE, v. PENDLETON, APPELLANT.
No. 2018-1348
Supreme Court of Ohio
December 23, 2020
2020-Ohio-6833
DONNELLY, J.
Submittеd January 8, 2020. APPEAL from the Court of Appeals for Clark County, Nos. 2017-CA-9 and 2017-CA-17, 2018-Ohio-3199.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pendleton, Slip Opinion No. 2020-Ohio-6833.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-6833
THE STATE OF OHIO, APPELLEE, v. PENDLETON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pendleton, Slip Opinion No. 2020-Ohio-6833.]
Criminal law—Double jeopardy—A sentencing court may not impose greater punishment than the legislature intended—Imposing two punishments for trafficking based on a single mixture of drugs containing both heroin and fentanyl violates double-jeopardy protections when the total weight of the heroin is calculated as the total weight of the mixture and the total weight of the fentanyl is calculated as the total weight of the mixture, i.e., the total weight of a mixture containing multiple drugs cannot be used to satisfy the individual-weight element of each drug for sentencing purposes.
(No. 2018-1348—Submitted January 8, 2020—Decided December 23, 2020.)
APPEAL from the Court of Appeals for Clark County, Nos. 2017-CA-9 and 2017-CA-17, 2018-Ohio-3199.
{¶ 1} This discretionary appeal centers on two prison sentences that appellant, Kenny Pendleton, received related to 133.62 grams of powder containing detectable amounts of heroin and fentanyl; he was sentenced on a first-degree-felony conviction for trafficking in 133.62 grams оf heroin, and he was separately sentenced on a second-degree-felony conviction for trafficking in 133.62 grams of fentanyl. The Second District Court of Appeals held that the General Assembly intended to separately punish an offender for trafficking in different types of drugs and that punishing trafficking in the same 133.62
I. BACKGROUND
{¶ 2} On January 4, 2016, the Springfield police executed a search warrant at Pendleton‘s residence and seized guns and several bags of illicit substances. One bag contained a mixture of cocaine, heroin, and fentanyl; it weighed 49.67 grams. Two other bags contained a mixture of heroin and fentanyl; one weighed 83.17 grams and the other weighed 0.78 grams. Several bags contained only cocaine. Pendleton was chargеd with possession of and trafficking in heroin in an amount over 50 grams; possession of and trafficking in a schedule II drug (fentanyl) in an amount equal to or exceeding 100 grams; possession of and trafficking in cocaine;1 and attendant firearm specifications. Pendleton‘s indictment also contained a charge for having weapons under disability, but the trial court ultimately dismissed that charge.
{¶ 3} The three bags of drugs that contained both heroin and fentanyl are at issue in this appeal. The combined weight of those bags was 133.62 grams. During Pendleton‘s jury trial, the state argued that because the bags contained a mixture of drugs, under Ohio law, the mixture constituted both 133.62 grams of heroin and 133.62 grams of fentanyl. The jury returned guilty verdicts on all charges and the firearm specifications. At Pendleton‘s sentencing hearing, the trial court merged the possession counts with their respective trafficking counts and merged all the firearm specifications for purposes of sentencing. The court rejected Pendleton‘s argument that the heroin and fentanyl convictions should merge for purposes of sentenсing, noting that “different drug groups constitute different offenses and are therefore not allied offenses of similar import.”
{¶ 4} The state elected to proceed to sentencing on the trafficking counts for each drug, and the trial court imposed consecutive prison terms of 11 years for trafficking in heroin in an amount over 50 grams, 8 years for trafficking in fentanyl in an amount over 100 grams, 1 year for trafficking in cocaine, and 1 year for the merged firearm specifications, for a total prison sentence of 21 years.
{¶ 5} In the court of appeals, Pendleton argued that his convictions for trafficking in heroin in an amount over 50 grams and trafficking in fentanyl in an amount over 100 grams were allied offenses of similar import that should have been merged for the purpose of sentencing because each was based on the same 133.62 grams of a mixture of drugs. The court of appeals rejected Pendleton‘s argument and affirmed his convictions and sentences.
{¶ 6} A majority of that court reasoned that the General Assembly intended to impose multiple punishments for thе simultaneous trafficking in different drugs because trafficking in each drug was a distinct offense. 2018-Ohio-3199, ¶ 32. The dissenting judge, however, asserted that merger of Pendleton‘s heroin and fentanyl convictions was required because they were based on identical evidence. Id. at ¶ 60, 71.
{¶ 7} We accepted one proposition of law for review:
A criminal defendant‘s right against Double Jeopardy as guaranteed by the United States and Ohio Constitutions is violated when he is convicted for two drug trafficking offenses where the drugs in each offense are calculated as filler for the other offense.
See 154 Ohio St.3d 1443, 2018-Ohio-4962, 113 N.E.3d 551.
II. ANALYSIS
{¶ 8} The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution prohibit a criminal defendant from being tried twice for the same offense. This prohibition applies to successive prosecutions as well as to multiple punishments for the same offense. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. Regarding multiple punishments for the same offense, the Double Jeopardy Clause prohibits “the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). When determining whether multiple punishments may be imposed for the same offense, our focus is on legislative intent. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 10.
{¶ 9} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 16, we noted that
{¶ 10}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses,
and the defendant may be convicted of all of them.
{¶ 11} The General Assembly‘s test in
{¶ 12} Although the appellate court mentioned the two-tiered test in
{¶ 13} In Gonzales II, we reconsidered and vacated our decision in State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405 (“Gonzales I“), which held that the weight element of a cocaine-possession charge could be established only by proving the weight of pure cocaine and excluding the weight of any filler materials in a mixture. We explained in Gonzales II at ¶ 9 that the different bulk-weight elements contained in
{¶ 14} This court‘s conclusion was based on the plain language of
{¶ 15} Although the holding in Gonzales II addressed cocaine offenses, its reasoning applies to Pendleton‘s convictions for trafficking in over 50 grams of heroin and over 100 grams of fentanyl. To convict Pendleton of trafficking in heroin, the state was required to prove that the “drug” involved is “heroin or a compound, mixture, preparation, or substance containing heroin.”
{¶ 16} To convict Pendleton of aggravated trafficking in drugs pursuant to the version of
{¶ 17} Given the foregoing, and pursuant to the logic of Gonzales II, each of the applicable drug-trafficking offenses under
{¶ 18} Ohio‘s statutes prohibiting drug possession and drug trafficking,
III. CONCLUSION
{¶ 20} Under these facts, we hold that the imposition of two punishments for the same, singular quantity of drugs violated the Double Jeopardy protections of the Ohio and United States Constitutions. Wе therefore reverse the judgment of the Second District Court of Appeals to the extent that it holds otherwise, vacate the sentences imposed on Pendleton‘s convictions for trafficking in heroin and fentanyl, and remand the cause to the trial court for a limited hearing to resentence Pendleton on whichever of the two convictions the prosecutor chooses to pursue for purposes of sentencing.
Judgment reversed, sentences vacated, and cause remanded.
O‘CONNOR, C.J., and FRENCH and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
KENNEDY, J., dissenting.
{¶ 21} Because double-jeopardy protections do not preclude a legislature from providing that the same conduct violates multiple criminal laws and is subject to multiple punishments in the same proceeding, it does not offend the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution for the General Assembly to punish trafficking in the preparation of a single mixture that contains heroin and fentanyl as separate offenses—trafficking in heroin and trafficking in a schedule II drug (fentanyl). Further, this court, in Gonzales II, which I interpret to apply with equal force to cocaine, heroin, and fentanyl, construed Ohio‘s drug laws in a way that requires a fact-finder to determine the weight of heroin and the weight of fentanyl by including any fillers and other substances in the same mixture, so that a single mixture of 133.62 grams of powder that contains both heroin and fentanyl must be deemed to contain both 133.62 grams of heroin and 133.62 grams of fentanyl. Imposing a separate sentence in the same proceeding for each of those trafficking offenses does not violate the Double Jeopardy Clause. I therefore dissent and would affirm the judgment of the Second District Court of Appeals.
{¶ 22} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This protection is applicable to the states through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We have held that the Ohio Constitution‘s prohibition on double jeopardy, Article I, Section 10, is coextensive with and affords no greater double-jeopardy protections than the Fifth Amendment. Statе v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 21; State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 14; State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7.
{¶ 23} Relevant here, “[t]he Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects against the imposition of multiple criminal punishments for the same offense in successive proceedings.” State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24, citing Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). “[T]he Double Jeopardy Clause outright forbids multiple punishments for a single offense only when those punishments are imposed in successive proceedings.” Boyd v. Boughton, 798 F.3d 490, 497 (7th Cir.2015), fn. 5.
{¶ 24} But when multiple punishments are imposed in the same procеeding, the Double Jeopardy Clause does nothing more than prevent the sentencing court from imposing greater punishment than the legislature intended. Garrett v. United States, 471 U.S. 773, 793, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Missouri v. Hunter at 366; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 16. In this way, the Double Jeopardy Clause upholds the principles that the power to define criminal offenses and prescribe punishment belongs to the legislative branch and that courts may impose sentences only as provided by statute. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
{¶ 25} Double-jeopardy protections therefore do not limit the General Assembly‘s authority to establish multiple sanctions for the same offense, such as requiring both a fine and imprisonment as the sentence for a single crime. See United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Nor do they prevent the legislature from prescribing multiple punishments when the same conduct or transaction results in the commission of multiple offenses. Gamble v. United States, ___ U.S. ___, 139 S.Ct. 1960, 1965, 204 L.Ed.2d 322 (2019); Garrett at 793.
{¶ 26} The Double Jeopardy Clause plays no role in safeguarding against excessive punishments established by the legislature and imposed by a court in the same proceeding. Other constitutional provisions—the Due Process Clause, the Equal Protection Clause, and the Eighth Amendment‘s prohibitions against cruel and unusual punishment and excessive fines—protect against arbitrary, disparate, and disproportionate punishment. See Hudson, 522 U.S. at 103; Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); Ingraham v. Wright, 430 U.S. 651, 672-673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).
{¶ 27} Therefore, whether appellant, Kenny Pendleton, may be convicted of two drug-trafficking offenses arising from a mixture of 133.62 grams of powder containing both heroin and fentanyl is solely a question of legislative intent. And “[a]bsent a more specific legislative statement,
{¶ 28}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may сontain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 29} In this case, the same conduct resulted in the commission of two separate drug-trafficking offenses. When Pendleton prepared the 133.62 grams of powder containing heroin and fentanyl for distribution, he committed trafficking in heroin and trafficking in fentanyl. Based on our construction of Ohio‘s drug laws in Gonzales II, the “heroin” in the powder includes the heroin and all the substances mixed with it (including the fentanyl) and the “fentanyl” in the powder includes the fentanyl and all the other substances mixed with it (including the heroin). See id. at ¶ 3. I recognize that the drug at issue in Gonzales, cocaine, is defined in
{¶ 30} These offenses were not committed separately or with a separate animus, so the question is whether they are offеnses of dissimilar import. In determining whether offenses are allied offenses of similar import or offenses of dissimilar import, we consider whether the defendant‘s conduct involves separate victims or whether the harm that results from each offense is separate and identifiable. State v. Ruff at ¶ 26.
{¶ 31} That test is easier to apply in a case in which there is one or more victim or in which there is a tangible harm. For example, if the offender purposefully shoots and kills the victim with a single bullet, the offender has committed numerous offenses—murder, attemрted murder, felonious assault, assault—but can be convicted of only one of those offenses because the same conduct resulted in a single victim and a single identifiable harm.
{¶ 32} In a drug-trafficking case, there is no identifiable victim and no tangible harm in the sense that Ruff describes, yet each trafficking offense inflicts a separate harm on society, and the majority agrees that “drugs of different types can be punished
{¶ 33} The manner in which the weight of each drug is determined is a question of legislative intent. As the majority opinion notes, our decision in Gonzales II instructs that when the General Assembly defines a drug to include the drug itself and any other substances mixed or combined with it, then the weight of the drug is deemed to be the same as the total weight of the whole mixture—the drug, any fillers, and any other substances included in it. Id. at ¶ 12. Following that analysis here, Pendleton trafficked 133.62 grams of heroin and 133.62 grams of fentanyl, even though both drugs were part of the same 133.62 grams of powder.
{¶ 34} The majority, however, asserts that Pendleton‘s separate sentences are unconstitutional because “the trial court punished Pendleton twice for a singular quantity of drugs, violating his right to be free from double jeopardy.” Majority opinion at ¶ 19. However, the Double Jeopardy Clause does not prohibit Pendleton from being punished twice for the same mixture of powder in the same proceeding. As the Supreme Court of the United States recently explained, “‘[T]he languаge of the Clause * * * protects individuals from being twice put in jeopardy “for the same offence,” not for the same conduct or actions.‘” (Brackets, ellipsis, and emphasis sic.) Gamble, ___ U.S. at ___, 139 S.Ct. at 1965, quoting Grady v. Corbin, 495 U.S. 508, 529, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) (Scalia, J., dissenting). Trafficking in heroin and trafficking in fentanyl are not the same offense and are defined separately in the criminal code. And the Double Jeopardy Clause does not limit the General Assembly‘s prerogative to make criminal conduct subject to multiple punishments in the same proceeding. The constitutionality of multiple punishments for the same conduct in the same proceeding is solely an issue of legislative intent, and according to Gonzales, the General Assembly intended 100 percent of the powder to be treated as heroin and 100 percent of it to be treated as fentanyl. I dissented from the majority opinion in Gonzales, but until it is overruled by a majority of this court or abrogated by the General Assembly, it is a controlling construction of this state‘s drug laws.
{¶ 35} Punishing the same conduct—preparing a mixture of 133.62 grams of powder containing both heroin and fentanyl—as separate offenses in the same proceeding is not a violation of double-jeopardy protections, if the legislature intended to require multiple punishments. It is no different than providing that a drunk driver may be convicted and sentenced for each victim he or she killed in an accident—the legislature may define each killing to be a separate offense without violating double-jeopardy protections. Similarly, here, Pendleton may be convicted and sentenced for trafficking in heroin and trafficking in fentanyl because he cоmmitted those separate offenses in preparing the same powder.
{¶ 36} For these reasons, I would affirm the judgment of the court of appeals. Because the majority does not, I dissent.
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
Daniel P. Driscoll, Clark County Prosecuting Attorney, and John M. Lintz, Assistant Prosecuting Attorney, for appellee.
Samuel H. Shamansky Co., L.P.A., Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, and Samuel C. Peterson, Deputy Solicitor, urging affirmance for amicus curiae, Attorney General Dave Yost.