COLUMBUS — Just two months after narrowly determining that prosecutors must prove the weight of actual cocaine and not fillers to justify stiffer possession and trafficking sentences, the Ohio Supreme Court took the rare step of reversing itself today.
One justice argued, in his dissenting opinion, that the only thing that has changed in the meantime is the makeup of the court. Two of the justices in the majority in December’s decision had to retire at the end of the year because of their age.
By a 5-2 decision, the high court granted the Wood County prosecutor’s motion to reconsider the December 4-3 decision and reinstated the 11-year prison sentence of Rafael Gonzales. Gonzales had been convicted of carrying more than 100 grams of cocaine, triggering the stiffer sentence.
One hundred grams is considered to be roughly 1,000 doses.
But the prior court, in its 4-3 decision, said that the wording to state law, when it comes to sentencing, required prosecutors to prove that the weight of the actual cocaine exceeded that amount and could not count fillers like baking soda often added to the mix as the drug moves through the supply chain.
The ruling had state lawmakers scrambling to make the meaning of the law clearer. Last month, the House passed a bill —sponsored by Rep. Bob Cupp (R., Lima), a former Supreme Court justice — to address the issue. The Senate has yet to act on the bill.
“There is nothing new here to be reconsidered,” wrote Justice William O’Neill in his dissent. “The only thing new is the make-up of this court following the November 2016 election. And that change is not sufficient grounds for granting reconsideration; to do so represents a flagrant departure from our own rules of practice.”
Chief Justice Maureen O’Connor had dissented in the prior decision. In writing for the majority in the latest ruling, she said the fillers are not removed before the “cocaine” is used.
“Accordingly, the total weight of the drug, including any fillers that are part of usable cocaine, should be weighed to determine the appropriate cocaine-possession penalty under the statute,” he said. “Concluding otherwise would require us to insert the words ‘actual’ or ‘pure’ to describe the cocaine that is intended to be penalized by the state.
“If the General Assembly had been concerned about purity, rather than total weight, it would have said so,” she wrote.
The problem in wording was created about a decade ago when lawmakers set out to equalize sentencing for powder cocaine and crack cocaine. The move was made to address concerns that minorities, who were more likely to use crack than powder, were being punished disproportionately for using essentially the same drug being used by a white executive using the powder form in a penthouse suite.
In this case, Attorney General Mike DeWine had argued that state laboratories were not equipped to test and measure the pure cocaine separate from the fillers.
Chief Justice O’Connor was joined by Justices Terrence O’Donnell, Judith French, Patrick Fischer, and Patrick DeWine.
Justice DeWine, who joined the court this year with Justice Fischer, is the son of the attorney general. He has taken the position that he does not have to recuse himself from cases involving his father’s office unless his father actually argues the case.
Justices O’Neill and Sharon Kennedy dissented.
Former Justices Judith Lanzinger, of Toledo, and Paul Pfeifer, of Bucyrus, were in the majority in the December decision, but they could not seek re-election because they’d passed the age of 70. Then-Justice Lanzinger wrote the prior opinion.
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