State v. Gonzales, s. 2015–0384

• Citation: 2017 Ohio 777,81 N.E.3d 419,150 Ohio St.3d 276
• Decision Date: 06 March 2017
• Docket Number: 2015–0385.,Nos. 2015–0384,s. 2015–0384
• Parties: The STATE of Ohio, Appellant, v. GONZALES, Appellee.
• Court: United States State Supreme Court of Ohio

150 Ohio St.3d 276
81 N.E.3d 419
2017 Ohio 777

The STATE of Ohio, Appellant,
v.
GONZALES, Appellee.

Nos. 2015–0384
2015–0385.

Supreme Court of Ohio.

Submitted Feb. 7, 2017.
Decided March 6, 2017.

81 N.E.3d 420

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold and Thomas A. Matuszak, Assistant Prosecuting Attorneys, for appellant.

Mayle, Ray & Mayle, L.L.C., Andrew R. Mayle, Fremont, Jeremiah S. Ray, Lakewood, and Ronald J. Mayle, Fremont, for appellee.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney; and Dennis P. Will, Lorain County Prosecuting Attorney, and Matthew A. Kern, Assistant Prosecuting Attorney, urging reconsideration for amicus curiae Ohio Prosecuting Attorney's Association.

Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State Public Defender, opposing reconsideration for amicus curiae Office of the Ohio Public Defender.

ON MOTION FOR RECONSIDERATION

O'CONNOR, C.J.

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{¶ 1} This matter is before us as a result of a motion for reconsideration filed by appellant, the state of Ohio.¹ Appellee, Rafael Gonzales, filed a memorandum opposing reconsideration.²

{¶ 2} In State v. Gonzales, 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405 ("Gonzales I "), the court determined that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.

{¶ 3} The state contends that Gonzales I was decided in error and that it is based upon inconsistent application of the principles of statutory construction. A majority of the court grants the state's motion for reconsideration. We now hold 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 under R.C. 2925.11(C)(4). Accordingly, we vacate our decision in Gonzales I, answer the certified-conflict question in the negative, and reverse the judgment of the Sixth District Court of Appeals.

ANALYSIS

{¶ 4} To interpret a statute, we must first look at its language to determine legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). When a statute's meaning is clear and unambiguous, we apply the statute as written. Id. at 105–106, 304 N.E.2d 378. We must give effect to the words used, refraining from inserting or deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 53–54, 524 N.E.2d 441 (1988). If a legislative definition is available, we construe the words of the statute accordingly. R.C. 1.42.

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{¶ 5} But "words in a statute do not exist in a vacuum."

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D.A.B.E., Inc. v. Toledo–Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19. This means that "our attention should be directed beyond single phrases, and we should consider, in proper context, all words used by the General Assembly in drafting [the relevant statute] with a view to its place in the overall statutory scheme." Id.

{¶ 6} If a statute is ambiguous, the court may consider the legislative history and the circumstances under which it was enacted, as well as the consequences of a particular construction, among other things. R.C. 1.49. And we must presume that the General Assembly intended the entire statute to achieve a result that is feasible of execution. R.C. 1.47.

{¶ 7} R.C. 2925.11(C)(4) describes the cocaine-possession offense: "If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine." (Emphasis added.) The penalty sections of the statute then set forth increasing degrees of punishment depending on the weight of the cocaine possessed by an offender. R.C. 2925.11(C)(4)(a) through (f). Possession of any amount of the drug exceeding 5 grams is penalized more severely than a fifth-degree felony, id., and possession of an amount of the drug exceeding 100 grams is a first-degree felony, in which case the offender is also designated as a major drug offender and the court must impose a mandatory maximum prison term, id. at (C)(4)(f).³

{¶ 8} The question before us is what should be weighed to determine an offender's penalty.

{¶ 9} Read as a whole, the plain language of R.C. 2925.11(C)(4)(b) through (f) penalizes an offender for the amount of cocaine possessed, and the amount of "cocaine" clearly encompasses the whole compound or preparation of cocaine, including fillers that are part of the usable drug.

{¶ 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, 2015 WL 502263, at ¶ 45. But the statutory definition of cocaine plainly encompasses a compound or preparation that includes cocaine. And "compound" means "something (as a substance * * *)

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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

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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–report–congress–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 cocaine-possession 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,

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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.

{¶ 14} Because we conclude that the statute is unambiguous, legislative history is not controlling here. However, contrary to what Justice Kennedy's dissent asserts, even if the statute were ambiguous, a review of the legislative history and the circumstances under which the statute was enacted would support our conclusion.⁴ The Ohio Legislative Service Commission's analysis of Am.Sub.H.B. No. 86, which amended R.C. 2925.11(C)(4), explains that

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