COLUMBUS — In an unusual move, the Ohio Supreme Court has reversed a December decision in a drug-related case after two members of the court who sided with the majority in the earlier ruling retired.
The December decision determined that prosecution of cocaine-related offenses in a Wood County case was based on the weight of pure cocaine involved, not the drug and any fillers that were added.
But the state’s high court, with two new members, reversed course Monday on reconsideration, saying such prosecutions should be based on the weight of cocaine and fillers.
Chief Justice Maureen O’Connor, writing the the majority, noted, “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 … Accordingly, we vacate our decision in Gonzales I….”
O’Connor was joined by Justices Terrence O’Donnell, Judith French and Patrick DeWine in the majority decision, with Justice Patrick Fischer concurring in part and dissenting in part.
Justices Sharon Kennedy and William O’Neill dissented.
“Reconsideration of this case is improper,” O’Neill wrote, noting that two members of the court (Judith Ann Lanzinger and Paul Pfeifer) who decided the case initially in December have since retired from the bench. “… Each of the opinions in Gonzales I was fully and carefully considered by the seven justices of the court. The only thing that has changed since Gonzales I is the makeup of the court. From this day forward, newly seated justices on this court have a license to reconsider that which they never considered in the first place.”
He added, “To be clear, today’s majority opinion does a major disservice to the English language to arrive at a desired result. From this date forward, the statute in question will be read to mean that 2.99 grams of baby powder will now be considered to be 3.00 grams of cocaine if there is even a scintilla of the controlled substance found in the ‘mixture.’ Good enough for government work? I think not.”
The December decision prompted this session’s HB 4, would remove the words “of cocaine” from applicable portions of state code, meaning the weight of the drugs involved would be considered as-is, rather than requiring the weight of pure cocaine to be determined absent other compounds.
That bill passed the Ohio House last month with an emergency clause and is currently being considered by the Ohio Senate.
“As the law now stands, drug dealers and traffickers are incentivized to possess and traffic in larger quantities of cocaine because the penalty would be of no greater consequence if the dealers and traffickers are apprehended with large quantities rather than smaller quantities,” Reps. Bob Cupp (R-Lima) and John Rogers (D-Mentor-on-the-Lake), primary sponsors of HB 4, wrote in testimony submitted to the Senate’s Judiciary Committee last week. “This is an incentive that must not be left in place… Every day we delay in repairing the statute, the lowest penalty will continue to apply for cocaine possession and trafficking.”
 
Marc Kovac covers the Ohio Statehouse for Gatehouse Media. Contact him at mkovac@recordpub.com or on Twitter at OhioCapitalBlog.