State v. Goodnight
| Decision Date | 19 May 1977 |
| Citation | 52 Ohio App.2d 333,370 N.E.2d 486 |
| Parties | , 6 O.O.3d 388 The STATE of Ohio, Appellee, v. GOODNIGHT, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The crime of possession for sale under former R.C. 3719.20(A) is substantially equivalent to trafficking-possession under R.C. 2925.03(A)(6) and is a drug abuse offense as provided in Amended Substitute House Bill 300.
2. A person convicted for a violation of former R.C. 3719.20(A) prior to November 21, 1975, but sentenced after that date shall be sentenced pursuant to the provisions of R.C. 2925.03(C)(5), with actual incarceration of three years to a maximum of fifteen years for trafficking-possession for violation of R.C. 2925.03(A)(6).
3. A person convicted and sentenced for possession with intent to sell in violation of former R.C. 3719.20(A) prior to November 21, 1975, shall have his sentence modified in conformity with the penalties provided in R.C. 2925.03(C) (5).
John T. Corrigan, Pros. Atty., for appellee.
Thomas L. Jacobs, Cleveland, for appellant.
The defendant-appellant, Herbert Goodnight, Jr., hereinafter referred to as appellant, was indicted on July 1, 1975, by the Cuyahoga County Grand Jury for three violations of R.C. Chapter 3719, the former drug law. Count I charged the appellant with possession for sale of heroin, in violation of R.C. 3719.20(A). Count II charged the appellant with possession for sale of cocaine, in violation of R.C. 3719.20(A). The third count charged the appellant with knowingly permitting the use of his dwelling house for the illegal keeping, dispensing, or administering of heroin and/or cocaine, in violation of R.C. 3719.101. At his arraignment, the appellant entered a plea of not guilty to all counts of the indictment.
On October 6, 1975, the appellant withdrew his pleas of not guilty and entered a plea of guilty to the first count of the indictment, possession for sale of heroin. The remaining two counts were nolled by the court.
The appellant appeared for sentencing on December 29, 1975, and requested a continuance and the sentencing was continued and rescheduled for January 15, 1976, at which time the parties stipulated that the appellant possessed 22.282 grams of heroin. The trial court then entered the following judgment:
" * * * (T)hat the defendant be imprisoned and confined in the Ohio State Reformatory, Mansfield, Ohio, for a period of one and one-half years to ten years pursuant to Substitute House Bill 300 with all jail time credited." 1
The appellant filed a timely notice of appeal and set forth one assignment of error for this court's consideration:
"The lower court erred by not dismissing the charge against appellant abrogating the conviction and finally releasing from imprisonment appellant pursuant to Ohio Revised Code 5145.07 (sic ) Section 3 effective November 21, 1975 as being charged with an offense which will not exist as of July 1st, 1976."
Simply stated, appellant's position is that the offense to which he plead guilty is not an offense under the new drug abuse law and the charges against him should be dismissed pursuant to Section 3 of Amended Substitute House Bill 300. 2
In this case, we are called upon to determine whether the defendant should be discharged because the offense to which he plead guilty, possession for sale under R.C. 3719.20(A), is no longer an offense under the new drug abuse law. 3
In deciding this issue, we must examine certain relevant provisions of Ohio's recently enacted drug law.
Prior to July 1, 1976, the effective date of the new drug law, most of Ohio's drug laws were contained in the Uniform Narcotic Drug Act. 4 This act contained both regulatory and penal laws in regard to narcotic drugs in Ohio with some of the prohibitions and violations contained in R.C. 3719.20 and the penalties contained in R.C. 3719.99, rather than in Title 29, the Ohio Criminal Code.
The Ohio legislature enacted H.B. 300 on July 31, 1975. Certain penalty provisions became effective on November 21, 1975, 5 and the balance of the act became effective on July 1, 1976. 6
Section 1 of the act amended certain existing sections of R.C. Chapter 3719 and enacted R.C. Chapter 2925. Section 2 repealed several existing sections of R.C. Chapter 3719.
One of the changes in R.C. Chapter 3719 involves the adoption of a new term, "controlled substance," which means a drug, compound, mixture, preparation or substance listed in Schedules I, II, III, IV or V of R.C. 3719.41. These schedules list drugs according to their medical use and relative danger with the most dangerous drugs listed in Schedules I and II and the less dangerous drugs contained in Schedules III, IV and V. Another new term adopted is "drug of abuse," which is any controlled substance defined in R.C. 3719.01, any harmful intoxicant defined in R.C. 2925.01 or any dangerous drug defined in R.C. 4729.02.
A "drug abuse offense" is a violation of any of several of the newly adopted provisions of R.C. Chapter 2925, 7 or a violation of any existing or former laws of Ohio or any other state of the United States substantially equivalent to any of the new offenses contained in R.C. Chapter 2925. 8
Several other terms were introduced into the new law. One of these is "bulk amount" of a controlled substance. 9 Bulk amounts are those that are normally possessed by a drug seller, pusher or dealer.
The new drug abuse law contains a section entitled, "Trafficking in Drugs," which lists eight offenses. 10 This section deals with the illicit business of supplying drugs such as manufacturing, cultivating, selling, distributing and possession of bulk amounts. 11 The enumerated offenses relate to illicit drug traffic and are more concerned with dealers, peddlers and pushers than with users. For example, possession of various bulk amounts of a controlled substance is considered aggravated trafficking or trafficking in drugs depending upon the type of controlled substance involved. 12
In the new drug law there are three possession offenses. Two of them are in the trafficking section and involve possession of controlled substances in excess of the bulk amount and are aimed at sellers and peddlers. The third possession offense is possession of less than the bulk amount, and it is aimed at users rather than sellers.
Relevant to the issue in this appeal are those offenses in R.C. 2925.03(A)(4) and (6), relating to the possession of a controlled substance in an amount equal to or exceeding the bulk amount, and R.C. 2925.11(A), relating to the possession of less than the bulk amount.
If the possession of the controlled substance is equal to or exceeds the bulk amount but is less than three times that amount, 13 the offense is either a third or fourth degree felony depending upon the schedule in which the controlled substance is listed. 14 If the possession of the controlled substance is in an amount equal to or exceeding three times the bulk amount 15 the offense is either a second or third degree felony, depending upon the schedule in which the controlled substance is listed. 16
The penalty for a second degree felony is actual incarceration of three years to a maximum of fifteen years. 17 The penalty for a third degree felony is actual incarceration for eighteen months to a maximum of ten years. 18 For a fourth degree felony, the punishment is actual incarceration for six months to a maximum of five years. 19
If the controlled substance involved is marijuana, a violation of R.C. 2925.03(A)(1)-(8) is classified as trafficking in marijuana and the offense is either a second, third or fourth degree felony depending upon the amount involved. 20 If the offense involves a gift of twenty grams or less, trafficking in marijuana is a minor misdemeanor. 21
Further, it is an affirmative defense to a charge for possession of a bulk amount of a controlled substance that the substance is used solely for personal use. 22 If a person is charged with possessing a bulk amount or multiple thereof, the jury or court trying the accused shall determine the amount of the controlled substance involved at the time of the offense and if a guilty verdict is returned, the findings are returned as part of the verdict. 23
The third possession offense is found in R.C. 2925.11 and is entitled, "Drug Abuse." This offense is principally aimed at users and not at sellers. This statute provides that no person shall knowingly obtain, possess or use a controlled substance, 24 but it does not apply to manufacturers, practitioners, pharmacists, owners of pharmacies, or any person who obtains the controlled substance pursuant to a prescription issued by a practitioner where the drug is in the original container in which it was dispensed to such person. 25 Whoever violates R.C. 2925.11 is guilty of drug abuse and if the drug involved is listed in Schedule I or II, with the exception of marijuana, the offense is a felony of the fourth degree. 26 If the drug involved is a substance included in Schedules III, IV or V, the offense is a misdemeanor of the third degree. 27
If the drug involved is marijuana, the offense is a misdemeanor of the fourth degree, unless the amount involved is less than 100 grams, in which case the offense is a minor misdemeanor. 28 Arrest or conviction for a minor misdemeanor in violation of this section does not constitute a criminal record. 29
The new drug law provides substantially reduced penalties for similar violations under the old law. For example, the penalty for the offense of possession for sale of a narcotic drug under former R.C. 3719.20(A) was ten to twenty years. Now a similar offense of the possession of bulk amounts or multiples thereof of a controlled substance constitutes trafficking and is either a second, third or fourth degree felony, depending upon the type of controlled substance and the amount. 30 Second, third and fourth degree felonies provide...
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