State v. PendletonState v. Pendleton
- Reporters:
- , , ,
- Before:
- Donnelly, Fischer, Dewine
DONNELLY, J.
{¶ 1} This discretionary аppeal 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 of heroin, and he was separately
I. BACKGROUND
{¶ 2} On January 4, 2016, the Springfield police executed a search warrant at Pеndleton‘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 charged 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}
{¶ 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 ovеr 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 the 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. The dissenting judge argued that although the General Assembly intended
{¶ 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
{¶ 9}
{¶ 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}
{¶ 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,
{¶ 19} Pendleton‘s conduct in this case—trafficking in 133.62 grams of a mixture of herоin and fentanyl—is not factually capable of constituting both the offense of trafficking over 50 grams of heroin and the offense of trafficking over 100 grams of fentanyl. Because Pendleton‘s conduct does not simultaneously constitute the two weight-based drug-trafficking offenses charged by the state,
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. We 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., 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
{¶ 22} The Double Jeopardy Clause of the
{¶ 23} Relevant here, “[t]he Double Jeopardy Clause of the
{¶ 24} But when multiple punishments are imposed in the same proceeding, 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, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); 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
{¶ 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, 118 S.Ct. 488, 139 L.Ed.2d 450; 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 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.
{¶ 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, the “heroin” in the powder includes the herоin 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., 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, 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 offenses of dissimilar import. In
{¶ 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, attempted 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 separately.” Majority opinion at ¶ 18. The only question here is how to determine the weight of each drug Pendleton trafficked, a determination that affects the degree of the offense.
{¶ 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 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. 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, 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 sentеnces are unconstitutional because “the trial court punished Pendleton twice for a singular
{¶ 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 punishmеnts. 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 committed those separate offenses in preparing the same powder.
{¶ 36}
FISCHER and DEWINE, JJ., concur in the foregoing opinion.