dissenting.
{¶ 18} Because I believe that the majority’s interpretation of the statutes at issue ignores the intent of the General Assembly, I dissent.
{¶ 19} R.C. 2923.02(A) defines “attempt” as “purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, [engaging] in conduct that, if successful, would constitute or result in the offense.” R.C. 2923.02(E)(1), formerly (E), provides, “Whoever violates this section is guilty of an attempt to commit an offense. * * * An attempt to commit a drug abuse offense for which the penalty is determined by the amount or number of unit doses of the controlled substance involved in the drug abuse offense is an offense of the same degree as the drug abuse offense attempted would be if that drug abuse offense had been committed and had involved an amount or number of unit doses of the controlled substance that is within the next lower range of controlled substance amounts than was involved in the attempt. An attempt to commit any other offense is an offense of the next lesser degree than the offense attempted.” (Emphasis added.)
{¶ 20} The underlying charge in this case was possession of drugs, a violation of R.C. 2925.11(A), which provides that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” R.C. 2925.11(C)(4)(e) states that “[i]f the amount of the drug involved * * * equals or exceeds twenty-five grams but is less than one hundred grams of crack cocaine, possession of cocaine is a felony of the first degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the first degree.”
{¶ 21} Thus, a person convicted of possession of drugs under R.C. 2925.11(C)(4)(e) is subject to a mandatory prison term as set forth in the statute. But R.C. 2923.02, the attempt statute, does not set forth penalties to be imposed for an attempt to commit a crime. Rather, with the exception of certain *302attempted rapes, R.C. 2923.02 sets forth only the degree of felony assigned to an attempt crime. See R.C. 2923.02(E)(1). An attempt to commit a drug offense whose penalty depends on the amount involved “is an offense of the same degree as the drug abuse offense attempted would be if that drug abuse offense had been committed and had involved an amount or number of unit doses of the controlled substance that is within the next lower range of controlled substance amounts * * (Emphasis added.) R.C. 2923.02(E) (now (E)(1)).
{¶ 22} The majority holds that an attempted possession of illegal drugs is a drug-abuse offense, and an individual convicted of an attempted drug-abuse offense is subject to the mandatory sentencing provisions of R.C. 2925.11. I disagree. The attempt statute does not imply that an attempted (but failed) first-degree felony becomes a completed second-degree felony. Rather, the attempt statute acknowledges that an attempted crime is less serious than a completed crime and provides that the level of degree for an attempt will be the degree assigned to a completed offense involving the next lower amount of the same drug. Thus, I believe that the attempt statute equates the degrees of felony but not the offenses themselves.
{¶ 23} Defendant was convicted of attempted possession of 25 to 100 grams of crack cocaine. The next lower range of possession of drugs is found in R.C. 2925.11(C)(4)(d), which states that “[i]f the amount of drug involved * * * equals or exceeds ten grams but is less than twenty-five grams of crack cocaine, possession of cocaine is a felony of the second degree, and the court shall impose as a mandatory prison term one of the prison terms prescribed for a felony of the second degree.” Thus, defendant’s conviction was a second-degree felony, but remained an attempted offense, not a completed offense.
{¶ 24} The majority’s interpretation ignores the intent of the General Assembly. The 1973 Legislative Service Commission Comment to R.C. 2923.02 reflects the view that an attempt is a separate offense. “This section is a general attempt statute which consolidates several specific attempt provisions in former law, and, with three exceptions, establishes an attempt to commit any offense as an offense in itself.” Thus, I believe that R.C. 2923.02 reduced defendant’s offense in this case from a first-degree felony to a second-degree felony and the general penalty provisions of R.C. 2929.14 are appropriate.
{¶ 25} This case is unusual in that we have a prosecutor arguing for an interpretation that would make the defendant eligible for judicial release, and we have a defendant arguing that he is subject to mandatory sentencing. This oddity exists because if the defendant is subject to mandatory sentencing, he can argue that his plea should be vacated because he was not informed of that fact at his plea hearing. But in pursuing his personal goal of having his sentence voided, *303the defendant is, in effect, removing the opportunity for all similarly situated criminal defendants to obtain judicial release.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Johnna M. Shia, Assistant Prosecuting Attorney, for appellee. Keating, Muething & Klekamp, P.L.L., and Charles M. Miller, for appellant.{¶ 26} With prisons already overcrowded and numbers ever-increasing, the majority has just tied the hands of judges by reading the statutes to require mandatory sentencing for an attempted drug offense when a community correctional sentencing alternative would be both more effective and more economical. Because I do not believe that this was the intent of the General Assembly, I would invite that body to revisit this issue and clarify the sentencing provisions of the attempt statutes.
{¶ 27} Accordingly, I respectfully dissent and would affirm the judgment of the court of appeals.