State v. Pountney

• Decision Date: 04 January 2018
• Docket Number: No. 2016–1255,2016–1255
• Citation: 97 N.E.3d 478,2018 Ohio 22,152 Ohio St.3d 474
• Parties: The STATE of Ohio, Appellant, v. POUNTNEY, Appellee.
• Court: Ohio Supreme Court

152 Ohio St.3d 474
97 N.E.3d 478
2018 Ohio 22

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

No. 2016–1255

Supreme Court of Ohio.

Submitted September 13, 2017
Decided January 4, 2018

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellant.

Mark A. Stanton, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Hannah C. Wilson, Deputy Solicitor, urging reversal for amicus curiae, Ohio Attorney General Michael DeWine.

French, J.

152 Ohio St.3d 475

{¶ 1} In this appeal, we examine the statutory requirements for proving enhanced felony levels of aggravated possession of fentanyl based on the amount of the drug involved. Ohio defines these levels in terms of multiples of the "bulk amount," which for the fentanyl at issue in this case means "five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual." R.C. 2925.01(D)(1)(d). Appellant, the state of Ohio, asks this court to hold that "because there is no ‘usual dose range’ of fentanyl, the State may rely upon the usual dose range of morphine, the prototype drug for fentanyl, to establish the bulk amount of fentanyl under R.C. 2925.01(D)(1)(d)."

{¶ 2}Fentanyl, a Schedule II controlled substance, is a synthetic opioid that is approximately 100 times more potent than morphine and 50 times more potent than heroin. R.C. 3719.41 (Schedule II(B)(9)); United States Department of Justice, Drug Enforcement Administration, Drugs of Abuse, A DEA Resource Guide 40 (2017), https://www.dea.gov/pr/multimedia-library/publications/drug_of_abuse.pdf#page=40 (accessed Dec. 12, 2017). Fentanyl and related drugs were involved in nearly 60 percent of Ohio's 4,050 overdose deaths in 2016. Ohio Dept. of Health, News Release, Fentanyl, Carfentanil and Cocaine Drive Increase in Drug Overdose

97 N.E.3d 480

Deaths in 2016 (Aug. 30, 2017), http://www.odh.ohio.gov/-/media/ODH/ASSETS/Files/health/injury-prevention/ODH-News-Release----2016-Ohio-Drug-Overdose-Report.pdf?la=en (accessed Dec. 12, 2017). And in the first two months of 2017, approximately 90 percent of unintentional overdose deaths in 25 Ohio counties involved fentanyl, fentanyl analogs or both. Daniulaityte, Juhascik, Strayer, Sizemore, Harshbarger, Antonides, and Carlson, Overdose Deaths Related to Fentanyl and its Analogs—Ohio, January–February 2017 , 66 Morbidity & Mortality Weekly Report No. 34, 904, 905–906, https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6634a3.pdf (accessed Dec. 12, 2017), datum corrected in Errata : Vol. 66 No. 34 , 66 Morbidity & Mortality Weekly Report No. 38, 1030, https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6638a8.pdf (accessed Dec. 12, 2017) (clarifying that the number of counties was 25).

{¶ 3} To be sure, enhanced felony prosecution for possession of fentanyl is one weapon in the state's arsenal in the war on drug-related crime. But what the state asks here requires the General Assembly, not this court, to act. We reject the state's interpretation of the enhancement provisions for fentanyl possession because it conflicts with unambiguous statutory language. We affirm the judgment of the court of appeals.

152 Ohio St.3d 476

Facts and procedural background

{¶ 4} Appellee, Mark H. Pountney, was indicted on two counts of theft, one count of identity fraud, and two counts of drug possession—one of which involved fentanyl and one of which involved acetaminophen with codeine. Pountney stipulated to the allegations underlying the charges of theft, identity fraud, and possession of acetaminophen with codeine. Count 4 of the indictment—the only count relevant here—alleged that Pountney knowingly obtained, possessed or used at least 5 but not more than 50 times the bulk amount of fentanyl, in violation of R.C. 2925.11(A), which is a second-degree felony under R.C. 2925.11(C)(1)(c).

{¶ 5} Subject to certain exceptions not applicable here, R.C. 2925.11(A) prohibits a person from knowingly obtaining, possessing or using a controlled substance or controlled-substance analog. A violation of R.C. 2925.11(A) involving fentanyl constitutes aggravated possession of drugs. R.C. 2925.11(C)(1) ; R.C. 3719.41 (Schedule II(B)(9)).

{¶ 6} Except as provided in R.C. 2925.11(C)(1)(b) through (e), aggravated possession of drugs is a fifth-degree felony. R.C. 2925.11(C)(1)(a). If, however, the amount of the drug involved meets statutorily defined thresholds, the offense is enhanced to a first-degree, second-degree or third-degree felony. R.C. 2925.11(C)(1)(b) through (e). As relevant here, "[i]f the amount of the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount," the offense is a second-degree felony. R.C. 2925.11(C)(1)(c).

{¶ 7} The General Assembly has defined the "bulk amount" of a Schedule II opiate or opium derivative, like fentanyl, as an "amount equal to or exceeding twenty grams or five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual." R.C. 2925.01(D)(1)(d). Here, we are concerned only with the second prong of that definition. Pountney stipulated that he knowingly obtained ten three-day transdermal fentanyl patches, each of which delivered 50 micrograms of fentanyl per hour. He disputed, however, that the patches equaled the "bulk amount or some multiple of the bulk amount" of transdermal fentanyl.

97 N.E.3d 481

{¶ 8} The Cuyahoga County Court of Common Pleas conducted a bench trial solely on the state's proof regarding the "bulk amount" of transdermal fentanyl. If the state proved that the ten fentanyl patches equaled or exceeded five times the bulk amount of transdermal fentanyl, Pountney would be guilty of a second-degree felony; otherwise, based on his stipulations, he would be guilty of a fifth-degree felony. R.C. 2925.11(C)(1)(a) and (e).

{¶ 9} The trial court found Pountney guilty on all counts in the indictment, including second-degree-felony aggravated possession of fentanyl involving at least five times the bulk amount. After merging allied offenses, the trial court

152 Ohio St.3d 477

sentenced Pountney to three years in prison for aggravated possession of fentanyl and 18 months in prison for identity fraud, to be served concurrently. The trial court also imposed a $7,500 fine and three years of mandatory postrelease control.

{¶ 10} Pountney appealed his conviction for aggravated possession of fentanyl, arguing that the state failed to present sufficient evidence of the "bulk amount." The Eighth District Court of Appeals agreed with Pountney, reversed the trial court's judgment, and remanded this case with instructions for the trial court to enter a finding of guilty on Count 4 as a fifth-degree felony and to resentence Pountney accordingly.

{¶ 11} This court accepted the state's discretionary appeal. The state's single proposition of law asserts that the state may rely upon the usual dose range of morphine, the prototype opiate, to establish the bulk amount of fentanyl under R.C. 2925.01(D)(1)(d). We reject the state's proposition.

The evidence

{¶ 12} At trial, the state presented an expert report and testimony from Paul Schad, a pharmacist employed as a compliance specialist for the Ohio State Board of Pharmacy. Attached to Schad's report is a portion of the American Hospital Formulary Service Drug Information ("AHFS"), which the board of pharmacy has approved as a standard pharmaceutical reference manual, Ohio Adm.Code 4729–11–07(F).

{¶ 13} Schad's report cites the R.C. 2925.01(D)(1)(d) definition of "bulk amount"—"[a]n amount equal to or exceeding * * * five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual." In his testimony, Schad stated, "I would refer to the standard pharmaceutical reference" to determine the usual dose range for a particular drug. Schad's report states, "Pursuant to the definition of Bulk Amount, the ‘maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual’ was taken from" the AHFS. But Schad admitted, "you're not going to see a usual dosage range" for fentanyl patches in the AHFS. Nevertheless, he stated that the bulk amount of 50–microgram-per-hour fentanyl patches is two patches.

{¶ 14} The AHFS states that transdermal fentanyl should be used only with patients who are opiate tolerant:

Dosage of transdermal fentanyl should be individualized according to the clinical status of the patient, desired therapeutic effect, and patient age and weight and should be assessed at periodic intervals. However, the most important factor to be considered in determining the appropriate

152 Ohio St.3d 478

dose is the degree of existing opiate tolerance. In selecting an appropriate initial dose of the

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