State v. Chandler

Lanzinger, J.

{¶ 1} These consolidated discretionary appeals raise the issue of whether a person can be subject to the special penalty statute applicable to a major drug offender for a first-degree felony drug conviction when the substance offered as crack cocaine contains no detectable amount of the drug.

2} Appellee Phillip Bledsoe was the subject of an undercover investigation conducted by the Massillon City Police Department and the FBI. During the investigation, a confidential informant was used to make a number of controlled buys of crack cocaine from Bledsoe. The last of these transactions was to occur on July 1, 2003, when the informant telephoned Bledsoe and negotiated a purchase of five ounces of crack cocaine for $8,000. As part of the set-up, before the meeting, an undercover officer hid himself in the informant’s vehicle with audio and video equipment to allow him to witness and record the transaction.

{¶ 3} By telephone, Bledsoe arranged a place to exchange the money and drugs. At the agreed location, however, appellee Kenyan Chandler arrived instead of Bledsoe. The informant immediately telephoned Bledsoe for assurance and was told that Chandler was Bledsoe’s brother. Chandler entered the vehicle and produced a package containing a wet, white substance resembling freshly made crack cocaine. Chandler was arrested, and the package was confiscated. Later testing revealed that the package’s substance consisted of over 100 grams of baking soda.

{¶ 4} Based on this transaction, Bledsoe and Chandler were each indicted on charges of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and 2925.03(C)(4)(g), the penalty section for offenses involving 100 or more grams of *225crack cocaine. At separate trials, juries found appellees guilty of trafficking in crack cocaine. They also found by separate verdict that the amount of the drug involved in the offense equaled or exceeded 100 grams of crack cocaine. Each appellee was sentenced pursuant to R.C. 2925.03(C)(4)(g).

{¶ 5} Chandler and Bledsoe appealed their convictions to the Fifth District Court of Appeals.1 The appellate court reversed Chandler’s conviction after holding that the state must prove both the identity of the controlled substance and a detectable amount of that substance to sustain a conviction under R.C. 2925.03(A) and a penalty under 2925.03(C)(4)(g). State v. Chandler, 157 Ohio App.3d 672, 2004-Ohio-3436, 813 N.E.2d 65, at ¶ 29. Since the substance offered for sale did not contain any detectable amount of a controlled substance, the jury should not have found that the amount of crack cocaine involved in the offense equaled or exceeded 100 grams. As a result, the trial court could not sentence Chandler under R.C. 2925.03(C)(4)(g).

{¶ 6} The Fifth District also reversed Bledsoe’s trafficking-in-cocaine conviction under R.C. 2925.03(A)(1) and his sentence under 2925.03(C)(4)(g). State v. Bledsoe, 5th Dist. No. 2003CA00403, 2004-Ohio-4764, 2004 WL 2002855. The appellate court held that it is immaterial that the substance offered for sale was not actually a controlled substance for purposes of a conviction under R.C. 2925.03(A)(1). However, as R.C. 2925.03(C)(4)(g) did not provide a penalty for offering to sell a substance that is purported to be crack cocaine but does not contain any detectable amount of the drug, the trial court erred by submitting to the jury the issue of the amount of the drug involved, because there was no detectable amount of any controlled substance.

{¶ 7} We accepted both discretionary appeals.

{¶ 8} When interpreting a statute, a court must look to the language of the statute, giving effect to the words used and not deleting or inserting any words. Rice v. CertainTeed Corp. (1999), 84 Ohio St.3d 417, 419, 704 N.E.2d 1217. We must give effect to all the provisions, including the penalty for the specific crime. R.C. 2925.03(A)(1) states that no person shall knowingly “[sjell or offer to sell a controlled substance.” The penalty provisions are found in R.C. 2925.03(C)(1) through (7)2 and depend upon the identity and amount of the substance involved in the crime.

*226{¶ 9} Undoubtedly, a person can be convicted for offering to sell a controlled substance in violation of R.C. 2925.03(A)(1) without actually transferring a controlled substance to the buyer. State v. Patterson (1982), 69 Ohio St.2d 445, 23 O.O.3d 394, 432 N.E.2d 802, syllabus. Therefore, there is no doubt that appellees’ convictions can stand despite the fact that the substance offered as crack cocaine was actually baking soda. We agree with the dissents on this point. The issue before this court, however, is whether R.C. 2925.03(C)(4)(g), the specific section relating to major-drug-offender penalties, provides a penalty for offering to sell crack cocaine when the substance offered as crack cocaine does not actually contain any detectable amount of the drug. This is not a “red herring” but the crucial question we are to examine.

{¶ 10} The cases relied upon by the state, State v. Mughni (1987), 33 Ohio St.3d 65, 514 N.E.2d 870, State v. Scott (1982), 69 Ohio St.2d 439, 23 O.O.3d 390, 432 N.E.2d 798, and State v. Patterson, 69 Ohio St.2d 445, 23 O.O.3d 394, 432 N.E.2d 802, were decided before the passage of Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996. Senate Bill 2 revamped Ohio’s felony-sentencing laws and created R.C. 2929.14(D)(3), the additional penalty applicable to major drug offenders to which R.C. 2925.03(C)(4)(g) specifically refers. See 146 Ohio Laws, Part IV, 7468.

{¶ 11} In State v. Mughni, 33 Ohio St.3d 65, 514 N.E.2d 870, we simply determined that knowingly selling or offering to sell a controlled substance, R.C. 2925.03(A)(1), and knowingly selling or offering to sell a counterfeit controlled substance, R.C. 2925.37(B), are not allied offenses of similar import. Id. at syllabus. We did not address the statutory requirement that a certain amount of the prohibited substance must be found within the substance offered for sale.

{¶ 12} The penalty provision that relates to drug-trafficking cases, R.C. 2925.03(C)(4), states at the outset: “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 trafficking in cocaine. The penalty for the offense shall be determined as follows [setting forth the various penalties].” (Emphasis added.)

{¶ 13} Unless other specific portions of the section apply, trafficking in cocaine is a fifth-degree felony, and there is no presumption for a prison term. R.C. 2925.03(C)(4)(a). The penalty is raised one degree “if the offense was committed in the vicinity of a school or in the vicinity of a juvenile.” R.C. 2925.03(C)(4)(b), (c), (d) and (e). If the amount of the drug involved “equals or exceeds five grams but is less than ten grams of cocaine that is not crack cocaine [i.e., the drug is powder cocaine rather than rock cocaine] or equals or exceeds one gram but is less than five grams of crack cocaine,” trafficking in cocaine is a fourth-degree felony, and there is a presumption for a prison term. R.C. 2925.03(C)(4)(c). If *227the amount is ten grams or more but less than 100 grams of powder cocaine (or five grams or more but less than ten grams of crack cocaine), the offense is a third-degree felony with a mandatory prison term. R.C. 2925.03(C)(4)(d). If the amount is 100 grams or more but less than 500 grams of powder cocaine (or ten grams or more but less than 25 grams of crack cocaine), the offense is a second-degree felony with a mandatory prison term. R.C. 2925.03(C)(4)(e).

{¶ 14} If the amount is 500 grams or more but less than 1,000 grams of powder cocaine (or 25 grams or more but less than 100 grams of crack cocaine), the offense is a first-degree felony, and the court shall impose a mandatory prison term. R.C. 2925.03(C)(4)(f).

{¶ 15} The penalty section at issue here, R.C. 2925.03(C)(4)(g), states: “If the amount of the drug involved equals or exceeds one thousand grams of cocaine that is not crack cocaine or equals or exceeds one hundred grams of crack cocaine and regardless of whether the offense was committed in the vicinity of a school or in the vicinity of a juvenile, trafficking in cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree and may impose an additional mandatory prison term prescribed for a major drug offender under division (D)(3)(b) of section 2929.14 of the Revised Code.” (Emphasis added.) Thus, this section provides a specific penalty enhancement.

{¶ 16} The appellees were charged with violating R.C. 2925.03(A)(1), and the court of appeals properly held that the state was required to prove the identity of the substance as well as a detectable amount of that substance, not for conviction, but to impose the penalty enhancement of R.C. 2925.03(C)(4)(g). The jury’s finding that the amount of the drug equaled or exceeded 100 grams of crack cocaine was contrary to fact, for the substance involved was 130.87 grams of baking soda.

{¶ 17} The major-drug-offender penalty that is referred to in R.C. 2925.03(C)(4)(g) is found in R.C. 2929.14(D)(3) and contains two parts. Subsection (a) states that if the offender violates R.C. 2925.03 and is classified as a major drug offender, “the court shall impose * * * a ten-year prison term” that may not be reduced by a judicial release. The second part, R.C. 2929.14(D)(3)(b), provides, “The court imposing a prison term on an offender under division (D)(3)(a) of this section may impose an additional prison term of one, two, three, four, five, six, seven, eight, nine, or ten years” under certain conditions. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, we held that R.C. 2929.14(D)(3)(b) is unconstitutional under Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, because it required judicial factfinding before an additional ten years of prison could be imposed. Id. at paragraph five *228of the syllabus. We severed R.C. 2929.14(D)(3)(b) to remedy the constitutional violation. Id. at paragraph six of the syllabus. As the statute now stands, a major drug offender still faces the mandatory maximum ten-year sentence that the judge must impose and may not reduce. Only the add-on that had required judicial fact-finding has been severed. Id.

{¶ 18} The General Assembly has authorized a hierarchy of criminal penalties for drug trafficking based upon the identity and amount of the controlled substance involved. By the terms of the penalty statute for cocaine, R.C. 2925.03(C)(4), the substance involved in the violation is to be cocaine or, at the very least, “a compound, mixture, preparation, or substance containing cocaine.” (Emphasis added.) This language presumes that a detectable amount of cocaine is present within the substance before the penalty enhancement applies.

{¶ 19} In this case, the jury found that 130.87 grams of baking soda equaled or exceeded 100 grams of crack cocaine. Testing had already revealed the substance to be baking soda. Holding that the penalty enhancement for a major drug offender applies when any substance over 100 grams — baking soda, face powder, powdered sugar, or the like — is represented to be “crack cocaine” contradicts the statute.

{¶ 20} The General Assembly has already specifically proscribed the activity present in this case as trafficking in counterfeit controlled substances. R.C. 2925.37(B) provides that “[n]o person shall knowingly make, sell, offer to sell, or deliver any substance that the person knows is a counterfeit controlled substance.” A violation of this section is classified as a felony of the fourth or fifth degree, and a conviction does not depend upon proof of the quantity of the fraudulent substance. R.C. 2925.37(H). Suspension of an offender’s driver’s license and the reporting of a conviction to professional licensing authorities are included as sanctions for that offense. R.C. 2925.37(L); R.C. 2925.38.

{¶ 21} We hold that the statute is clear and that a substance offered for sale must contain some detectable amount of the relevant controlled substance before a person can be sentenced as a major drug offender under R.C. 2925.03(C)(4)(g).

{¶ 22} Accordingly, we affirm the judgments of the court of appeals.

Judgments affirmed.

Moyer, C.J., Pfeifer and O’Donnell, JJ., concur. Resnick, Lundberg Stratton and O’Connor, JJ., dissent.

. Bledsoe’s other convictions and sentences for earlier controlled buys are not before us.

. See penalties for nonspecified Schedule I or II drugs, R.C. 2925.03(C)(1)(a) through (f); Schedule III, IV, or V drugs, 2925.03(C)(2)(a) through (e); marihuana, 2925.03(C)(3)(a) through (g); cocaine, 2925.03(C)(4)(a) through (g); L.S.D., 2925.03(C)(5)(a) through (g); heroin, 2925.03(C)(6)(a) through (g); and hashish, 2925.03(C)(7)(a) through (f).