by Douglas Ankney

The Supreme Court of Ohio held thatimposition of two punishments for one quantity of drugs violates double jeopardy.

Officers executed a search warrant of Kenny Pendleton’s residence and seized, inter alia, three bags that contained mixtures of heroin and fentanyl with a combined weight of 133.62 grams. He was charged with numerous offenses, including possession of and trafficking in heroin in an amount over 50 grams and possession of and trafficking in fentanyl in an amount equal to or exceeding 100 grams. A jury found him guilty on all charges. The court rejected Pendleton’s argument that the heroin and fentanyl convictions should merge for sentencing purposes. The court imposed an 11-year sentence for trafficking in over 50 grams of heroin and a consecutive eight-year sentence for trafficking in fentanyl.

Pendleton argued in the court of appeals that the two sentences should have merged for sentencing purposes because the convictions for trafficking in heroin in an amount over 50 grams and for trafficking in fentanyl in an amount over 100 grams were based on the same 133.62 grams of a mixture of drugs. The court of appeals rejected his argument and affirmed. The Ohio Supreme Court granted further review to decide if a criminal defendant’s right against double jeopardy as guaranteed by the federal and state constitutions is violated when he is convicted for two drug trafficking offenses where the drugs in each offense are calculated as filler for the other offense.

The Court observed that the Double Jeopardy Clauses of the Fifth Amendment to the U.S. Constitution and Article I, § 10 of the Ohio Constitution prohibit a criminal defendant from being tried twice for the same offense. This prohibition applies to successive prosecutions as well as to multiple punishments for the same offense. State v. Ruff, 34 N.E.3d 892 (Ohio 2015).

Regarding multiple punishments for the same offense, the federal Double Jeopardy Clause prohibits “the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359 (1983). When determining whether multiple punishments may be imposed for the same offense, courts focus on legislative intent. State v. Washington, 999 N.E. 2d 661 (Ohio 2013).

In State v. Gonzales, 81 N.E.3d 405 (Ohio 2016), the Court held that the different bulk-weight elements contained in R.C. 2925.11(C)(4)(b) through (f) permitted the total weight of a compound mixture, including fillers, to be calculated as cocaine.

That conclusion was based on the plain language of R.C. 2925.11(C)(4), which defines the general offense of cocaine possession as involving a “drug” that is “cocaine or a compound, mixture, preparation, or substance containing cocaine.” While Gonzales’ conclusion was based on the plain meaning of the statute, the Court noted that it relieved evidentiary burdens, given that the fillers cannot be separated from the pure drug. Id. Pursuant to the logic of Gonzales, each of the applicable drug-trafficking offenses under R.C. 2925.03 allows a factfinder to consider conduct that exists – for example, trafficking in 50 grams of powder containing a detectable amount of heroin – and then make a fictional assumption about that existing conduct to satisfy the weight element of the offense: the full 50 grams is 100 percent heroin. Nothing in R.C. 2925.03 allows a factfinder to then create additional conduct that does not exist in fact: trafficking in a separate, additional 50 grams of powder containing a detectable amount of fentanyl. That is, nothing in the statute permits a factfinder to double the fiction and assume that the full 50 grams is simultaneously 100 percent heroin and 100 percent fentanyl, the Court explained.

Additionally, the General Assembly made clear that weight is an element of an offense for a specific type of drug. The full weight of a mixture is considered as constituting that drug only. As a result, the mixture cannot be considered as anything else.

Pendleton’s conduct in the instant case was not factually capable of constituting both the offense of trafficking over 50 grams of heroin and the offense of trafficking over 100 grams of fentanyl, the Court stated. Because Pendleton’s conduct did not simultaneously constitute the two weight-based drug-trafficking offenses charged by the State, R.C. 2925.03 does not allow separate punishments to be imposed on his conduct. The Court concluded that the imposition of two punishments for the same, singular quantity of drugs violated the Double Jeopardy protections of both the U.S. and the Ohio Constitutions.

Accordingly, the Court reversed the decision of the court of appeals relating to those convictions, vacated the eight and 11-year sentences, and remanded to the trial court for a limited hearing to resentence Pendleton on whichever of the two convictions the prosecutor chooses to pursue. See: State v. Pendleton, 2020 Ohio LEXIS 2836 (2020).

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