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11th District: Heroin case reversed for Double Jeopardy violation
TRACEY BLAIR
Legal News Reporter
Published: November 30, 2018
An Ashtabula County trial court erred in not merging a defendant’s charges of possession of heroin and aggravated possession of drugs, the 11th District Court of Appeals recently ruled.
Kysean Cordell Lee pled guilty to both counts and filed a sentencing memorandum arguing the two offenses should merge for sentencing purposes. The state dismissed a third tampering with evidence charge.
The trial court found the two drug offenses were not allied offenses of similar import. Last January, Lee was sentenced to 10 months for possession of heroin and 10 months for aggravated possession of fentanyl, to be served concurrently to each other and concurrently to the appellant’s 13-year sentence for an unrelated Lake County burglary.
On appeal, Lee argued the offenses should have merged because both drugs were in the same bag and the lab provided only their combined weight.
On May 16, 2016, court records indicate that Lee was found to be in possession of a plastic bag containing a powdery-solid material with a total weight of .566 gram, which tested positive for both heroin and fentanyl.
Lee urged the appellate court to follow the dissenting opinion in State v. Woodard, (12th Dist. Warren No. CA2016-09-084, 2017-Ohio-6941), which recently held that possession of heroin and aggravated possession of drugs (fentanyl) are two separate offenses per R.C. 2925.11(C)(6) and (C)(1).
“The possession of heroin or fentanyl will never support a conviction for possession of the other,” the 12th District ruled. “The fact that the two controlled substances were found in the same baggie is of no consequence.”
However, 11th District Judge Cynthia Westcott Rice noted that the dissenting opinion in Woodard would have merged the heroin and fentanyl offenses because the defendant possessed a single bag of drugs and that there was no evidence at trial Woodard knew the bag contained both drugs.
The dissent in Woodard relied on State v. Gonzalez (150 Ohio St.3d 276, 2017-Ohio-777). In that case, the Ohio Supreme Court relied on R.C. 2925.11(C)(4), which states that if a drug involved in a violation is cocaine or a compound, a violator is guilty of possession of cocaine. The penalty sections of the statute then set forth increasing degrees of punishment depending on the weight of the cocaine in the offender’s possession.
The Woodard dissent found that Gonzalez should apply to heroin as well, and that Woodard’s conviction of possession of heroin should merge with his conviction of fentanyl possession.
“Here, while the evidence supported appellant’s conviction of a possession charge, the charges should have merged for purposes of sentencing,” Judge Rice wrote in her 2-1 opinion. “Appellant possessed one bag containing a powdery-solid substance comprised of heroin and fentanyl, but the state did not quantify the amount of each drug contained therein.
“Applying the rule in Gonzalez, the filler and adulterants are part of the usable drug. Since the heroin involved here was adulterated with fentanyl or the fentanyl was adulterated with heroin, depending on the state’s theory of the case, the weights of both should have been combined in arriving at the weight of the primary drug.
“The lab evidence showed that appellant possessed .566 gram of a powdery-solid material. According to the indictment, appellant possessed .566 gram of heroin and .566 gram of fentanyl, even though appellant only possessed .566 gram of a powdery substance. In other words, the trial court’s decision allowed for a conviction of possession of heroin with fentanyl considered as an adulterant and a separate conviction for the possession of fentanyl with heroin considered as an adulterant. Such a result violates the Double Jeopardy Clause as it would allow two punishments for the same offense.”
On remand, the state shall choose which offense on which Lee will be sentenced and convicted.
Appellate Judge Timothy P. Cannon concurred.
Eleventh District Judge Diane V. Grendell dissented.
“Since it is evident that Lee possessed multiple dangerous substances, both of which cause serious and distinct harms, he was properly convicted and sentenced for each of the two offenses,” Judge Grendell said in her dissenting opinion.
Judge Grendell said the majority’s reasoning that simultaneous possession of multiple drugs are separate offenses in State v. Woodard was correct.
She added that fentanyl is 50 times more potent than heroin and thus 10 times more deadly than heroin
“Those in possession of two drugs with two purposes should not be convicted and sentenced for only one crime,” Judge Grendell stated. “The majority’s decision to the contrary will contribute to the growing body count of drug addicts killed by fentanyl.”
The case is cited State v. Lee, 2018-Ohio-4376.