Ohio Supreme Court Reconsiders Its Previous Decision and Holds that the Level of Offense for Cocaine Possession is Determined by the Total Weight of the Drug Involved, Including Filler Materials

On March 6, 2017, the Ohio Supreme Court did an “about face”, a “180”, a “flip-flop”, or whatever you want to call it, and vacated its landmark decision issued on December 23, 2016, in the case of State v. Gonzales. As you may recall, I wrote a blog post (//horwitzlawsite.com/ohio-supreme-court-holds-cocaine-cases-state-must-prove-weight-actual-cocaine-excluding-weight-filler-materials/) regarding this important decision. The December 2017 decision required the State in cocaine possession cases to prove the weight of actual cocaine in determining the level of the offense, independent of any filler materials. It acknowledged that modern technology now makes “purity analysis” possible. All seemed just in the world, as people possessing a small amount of actual cocaine mixed in with a large amount of filler material, would be prosecuted based upon the actual amount of illegal substance they possessed.

Following the December 23, 2016 decision, the State filed a Motion for Reconsideration – a motion which is rarely granted. The Ohio Supreme Court reconsidered the matter and on March 6, 2017, issued a new decision, vacating the December 23, 2016 decision and holding 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. This new decision is captioned, State v. Gonzales, 2017-Ohio-777, as is referred to as Gonzales II.

The decision came down to the issue of statutory construction. In other words, was the Possession of Cocaine statute ambiguous when it forbids the possession of cocaine “or a compound, mixture, preparation, or substance containing cocaine”? The Court held that cocaine including the fillers mixed in “encompasses the whole compound or preparation of cocaine”. In reaching its conclusion, the Court stated as follows:

{¶ 10} The statutory definition of “cocaine” includes a “salt, compound, derivative, or preparation” of a substance that is a cocaine salt or base cocaine. R.C. 2925.01(X)(3). See also R.C. 3719.41 (Schedule II(A)(4)). This language is broad. The Sixth District concluded that the definition of “cocaine” does not include a mixture of cocaine and fillers. 2015-Ohio-461 at ¶ 45. But the statutory definition of cocaine plainly encompasses a compound or preparation that includes cocaine. And “compound” means “something (as a substance * * *) that is formed by a union of * * * ingredients.” Webster’s Third New International Dictionary 466 (1986).

{¶ 11} Indeed, this is consistent with the nature of the cocaine used illegally in the United States, which is a compound of several ingredients: [C]ocaine powder is derived by dissolving the coca paste in hydrochloric acid and water. To this mixture a potassium salt (potassium permanganate) is added. The potassium salt causes undesired substances to separate from the mixture. These substances are then discarded. Ammonia is added to the remaining solution, and a solid substance—the powder cocaine—separates from the solution. The powder cocaine is removed and allowed to dry. Prior to distribution, powder cocaine typically is “cut,” or diluted, by adding * * * one or more adulterants: sugars, local anesthetics (e.g., benzocaine), other drugs, or other inert substances. Consequently, the purity level of powder cocaine may vary considerably. (Emphasis added and footnotes omitted.) United States Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy 12 (Feb.1995), http://www.ussc.gov/research/congressional-reports/1995-reportcongress-cocaine-and-federal-sentencing-policy (accessed Feb. 15, 2017). See also Ohio Substance Abuse Monitoring Network, Drug Abuse Trends in the Cleveland Region 81 (Jan.-June 2014), http://www.documentcloud.org/documents/1659531- drug-abuse-trends-in-the-cleveland-region.html#document/p1 (accessed Feb. 15, 2017) (cocaine powder in the Cleveland area is cut with lidocaine, procaine, and levamisole, a livestock dewormer); Ohio Substance Abuse Monitoring Network, Drug Abuse Trends in the Columbus Region 102 (Jan.-June 2014), http://mha.ohio.gov/Portals/0/assets/Research/OSAM-TRI/Columbus%20Jan% 202015.pdf (accessed Feb. 15, 2017) (in the Columbus area, cocaine is cut with lidocaine, procaine, levamisole, baby laxatives or powder, and “anything that is white and powdered”).

{¶ 12} Importantly, the fillers, or adulterants, that are part of powder cocaine are not intended to be removed before consumption. Indeed, the fillers are an inherent part of powder cocaine. Thus, the common usage of the term “cocaine” is consistent with the statutory definition that a compound or preparation of cocaine is still cocaine. Accordingly, the total weight of the drug, including any fillers that are part of usable cocaine, should be weighed to determine the appropriate cocainepossession penalty under the statute.

{¶ 13} Concluding otherwise would require us to insert the words “actual” or “pure” to describe the cocaine that is intended to be penalized by the statute. If the General Assembly had been concerned about purity, rather than total weight, it would have said so. In our limited role of statutory interpretation, we must refrain from inserting words to achieve a particular result. Cleveland Elec. Illum. Co., 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus.

Although this decision is a setback for those charged with higher levels of cocaine possession, it is the proper interpretation of the Possession of Cocaine statute. If the legislature intended otherwise, the statute would have been worded otherwise. With advances in technology available to determine purity, perhaps the Ohio legislature will one-day consider amending the statute so that a person will be punished for the actual cocaine. It just seems extremely unfair that a person can possess 2 grams of pure cocaine and be convicted of a felony of the 5th degree, with a presumption of probation (community control sanctions), but face a maximum prison sentence of 12 months, while another person who takes that 2 grams of pure cocaine and mixes it with 100 grams of corn starch suddenly can be convicted of a felony of the 1st degree, is not eligible for probation, and is facing a mandatory prison sentence of up to 11 years. As you can tell, drug matters are serious matters. If you or someone you know is being prosecuted for a drug offense contact Criminal Defense Attorney Jonathan Horwitz at Horwitz & Horwitz, LLC, located in Centerville, Ohio.