Garr v. Warden, Madison Corr. Inst. , 126 Ohio St. 3d 334 ( 2010 )

[Cite as Garr v. Warden, Madison Corr. Inst., 126 Ohio St.3d 334, 2010-Ohio-2449.]
GARR v. WARDEN, MADISON CORRECTIONAL INSTITUTION.
[Cite as Garr v. Warden, Madison Corr. Inst.,
126 Ohio St.3d 334, 2010-Ohio-2449.]
Criminal law — Sentencing — Drug offenses — R.C. 2925.03(C)(4)(g) — Major-
drug-offender specification — Offender offering controlled substance for
sale in quantities qualifying for enhanced major-drug-offender penalty
under R.C. 2925.03(C)(4)(g) may not receive enhanced MDO penalty
when substance offered is never recovered — State v. Chandler, limited.
(No. 2009-1323 — Submitted March 9, 2010 — Decided June 8, 2010.)
ON REVIEW of Certified Question of State Law from the United States District
Court, Southern District of Ohio, Western Division, No. 1:08cv293.
__________________
O’DONNELL, J.
{¶ 1} The United States District Court for the Southern District of Ohio,
Western Division, has certified the following question for our resolution:
“Whether the Supreme Court of Ohio’s decision in State v. Chandler, 109 Ohio
St.3d 223, 2006-Ohio-2285 [846 N.E.2d 1234] (2006), as described in the
syllabus of the court, to wit: ‘[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 Ohio Revised Code §
2925.03(C)(4)(g),’ extends to cases where the substance offered for sale was
never observed, tested, or recovered to ascertain whether it contained a detectable
amount of the controlled substance, but no affirmative evidence was presented to
call into question the defendant’s representation in his offer to sell, or to refute the
jury’s factual finding, that the substance was in fact a controlled substance in an
amount that equaled or exceeded 1000 grams.” Stated differently, the question is
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whether our holding in Chandler extends to an offer-to-sell drug-trafficking case
where no drugs are recovered during investigation of the crime.
{¶ 2} We answer the certified question in the negative and clarify that
our holding in Chandler does not extend to cases where a substance offered for
sale is not recovered or tested in order to ascertain whether it contains a detectable
amount of a controlled substance.
Facts and Procedural History
{¶ 3} We adopt the following factual and procedural history from the
certification order submitted by the United States district court.
{¶ 4} During a sting operation, petitioner Oliver Lucien Garr told a
police informant that he would sell him two kilograms of cocaine. Garr and the
informant met in a parking lot with the understanding that Garr would deliver the
cocaine to the informant, but due to a disagreement over payment, they did not
complete the sale. Garr never produced any cocaine, and the state never
recovered any substance offered for sale in connection with the events. Police
arrested Garr several months later.
{¶ 5} On April 7, 2006, the Hamilton County Grand Jury returned an
indictment charging Garr with one count of trafficking in cocaine “in an amount
that equaled or exceeded 1000 grams” in violation of R.C. 2925.03(A)(1) and one
count of engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1). The state further attached a major-drug-offender (“MDO”)
specification as set forth in R.C. 2925.03(C)(4)(g) to the trafficking count. Garr
filed a pretrial motion to dismiss the MDO specification on the ground that the
case against him lacked evidence of any “detectable amount of a controlled
substance.” The Hamilton County Court of Common Pleas overruled the motion,
and the matter proceeded to trial. A jury found Garr guilty of the trafficking
charge and the MDO specification.
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{¶ 6} At his sentencing hearing, Garr argued that our decision in State v.
Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, prevented his
being found guilty of the MDO specification because there were no detectable
amounts of a controlled substance. The trial court rejected his argument and
imposed a mandatory ten-year prison sentence pursuant to R.C. 2925.03(C)(4)(g)
and 2929.14(D)(3)(a) because Garr had been convicted of a first-degree felony
offense involving an “offer to sell kilos of cocaine.”
{¶ 7} Garr appealed to the First District Court of Appeals, asserting that
the trial court erred in denying his motion to dismiss the specification and in
sentencing him to a mandatory ten-year term because the state did not recover a
detectable amount of the substance he offered for sale and thus failed to present
sufficient evidence to prove his guilt of a first-degree felony (as opposed to a
fifth-degree felony) and his automatic classification as a major drug offender
pursuant to R.C. 2925.03(C)(4)(g).
{¶ 8} The court of appeals rejected his claim and affirmed the trial
court’s judgment. State v. Garr, 1st Dist No. C-060794, 2007-Ohio-3448. The
appellate court acknowledged that the state never recovered the substance Garr
offered to sell and thus could not test it for a detectable amount of cocaine, and
distinguished this case from Chandler because here the state presented
circumstantial evidence at trial, including statements made during conversations
between Garr and the informant about the quality and amount of cocaine to be
sold. The appellate court concluded that this evidence supported the reasonable
inference that the substance Garr had offered to sell actually was cocaine. Id. at ¶
5-7.
{¶ 9} We did not accept Garr’s discretionary appeal. State v. Garr, 115
Ohio St.3d 1475, 2007-Ohio-5735, 875 N.E.2d 628.
{¶ 10} Garr subsequently petitioned the United States District Court for
the Southern District of Ohio for a writ of habeas corpus, asserting that the state
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failed to present sufficient evidence as to the weight or identity of the substance
involved and that because the state could not prove beyond a reasonable doubt
that the substance actually contained an identifiable amount of cocaine exceeding
the weight limits necessary to sustain a conviction of a felony of the first degree,
he should only have been convicted of a felony of the fifth degree.
{¶ 11} Confronted with Garr’s petition alleging that the state failed to
present evidence to establish the elements of the offense and to support the MDO
penalty, the United States district court certified the instant question of state law
to this court in accordance with S.Ct.Prac.R. 18, which we accepted. Garr v.
Warden, Madison Corr. Inst., 123 Ohio St.3d 1404, 2009-Ohio-5031, 914 N.E.2d
203.
Argument of the Parties
{¶ 12} Garr urges that Chandler applies to the facts in his case, arguing
that because the state did not recover any of the drugs he offered to sell, it cannot
prove that the drugs contained “some detectable amount” of cocaine. Chandler,
109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, syllabus. He maintains
that the state’s evidence against him is insufficient to support a first-degree felony
conviction and that, pursuant to Chandler, he may not be sentenced as a major
drug offender to a mandatory ten-year prison term. He also points out that some
Ohio appellate courts have applied Chandler in offer-to-sell cases where the
offered substance was never recovered or tested. See State v. Mitchell, Jefferson
App. No. 08 JE 5, 2008-Ohio-6920; State v. Elliott, Cuyahoga App. No. 86481,
2006-Ohio-1092. Those rulings, Garr argues, accord with due process and sound
public policy.
{¶ 13} The state, by contrast, contends that Chandler is limited to cases
involving the recovery of a counterfeit drug. It notes that Ohio’s drug-trafficking
laws subject both offers to sell and actual sales to the same legal penalties and that
these laws define baseline offenses and sentencing enhancements in terms of the
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quantity involved in a trafficking violation. Thus, the state contends that
Chandler corrected a factual error – that the substance offered was 130.87 grams
of baking soda instead of 100 grams of crack cocaine – but did not prohibit the
use of all quantity-based provisions whenever no drug is recovered and testable.
Because any admissible evidence, including circumstantial evidence, can be used
to establish the identity and the quantity of the drug Garr offered to sell, the state
argues that the circumstantial evidence cited by the appellate court demonstrates
that Garr offered to sell cocaine, and that the absence of any contradictory
evidence – such as the presence of a counterfeit substance, as in Chandler –
leaves the evidence unchallenged and sufficient to prove both the identity and the
quantity of the cocaine beyond a reasonable doubt.
{¶ 14} We focus then on the issue of whether our holding in Chandler
extends to an offer-to-sell drug-trafficking case where no drugs are recovered or
tested.
State v. Chandler
{¶ 15} In Chandler, we examined R.C. 2925.03, which provides:
{¶ 16} “(A) No person shall knowingly do any of the following:
{¶ 17} “(1) Sell or offer to sell a controlled substance.
{¶ 18} “* * *
{¶ 19} “(C) Whoever violates division (A) of this section is guilty of one
of the following:
{¶ 20} “* * *
{¶ 21} “(4) 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 cocaine. The penalty for the offense
shall be determined as follows:
{¶ 22} “(a) Except as otherwise provided in division (C)(4)(b), (c), (d),
(e), (f), or (g) of this section, trafficking in cocaine is a felony of the fifth degree,
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and division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
{¶ 23} “* * *
{¶ 24} “(g) If the amount of the drug involved equals or exceeds one
thousand grams of cocaine * * *, 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 * * *.”
{¶ 25} The MDO penalty found in R.C. 2929.14(D)(3)(a) states that if an
offender violates R.C. 2925.03 and is classified as an MDO, “the court shall
impose * * * a ten-year prison term” that may not be reduced.
{¶ 26} The issue as we recited in Chandler concerned “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.” Chandler, 109 Ohio St.3d
223, 2006-Ohio-2285, 846 N.E.2d 1234, at ¶ 1. In that case, at separate trials,
juries convicted defendants Chandler and Bledsoe of trafficking in crack cocaine.
Despite the fact that the laboratory testing revealed that the substance they had
offered to sell was baking soda, both juries further found that the amount of the
drug involved equaled or exceeded 100 grams of crack cocaine, which triggered
the enhanced MDO penalty pursuant to R.C. 2925.03(C)(4)(g). Citing State v.
Patterson (1982), 69 Ohio St.2d 445, 23 O.O.3d 394, 432 N.E.2d 802, syllabus,
we stated: “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.” Chandler at ¶ 9. However, we
affirmed the appellate court judgment reversing the mandatory sentences
imposed, noting that the General Assembly authorized criminal penalties for drug
trafficking based on the identity and amount of the controlled substance involved,
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R.C. 2925.03(C), and that “[b]y 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 sic.) Id. at ¶ 18. Thus, because testing revealed that the substance
involved was baking soda, not cocaine, the jury’s finding that the amount of the
drug equaled or exceeded 100 grams of crack cocaine was contrary to fact. Id. at
¶ 16. Consequently, we held 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).” Id. at
syllabus.
Analysis
{¶ 27} Chandler did not address the principle that the state can establish
any element of any crime through circumstantial evidence. As we stated in State
v. Jenks (1991), 61 Ohio St.3d 259, 272-273, 574 N.E.2d 492, “there is but one
standard of proof in a criminal case, and that is proof of guilt beyond a reasonable
doubt. This tenet of the criminal law remains true, whether the evidence against a
defendant is circumstantial or direct.”
{¶ 28} Our decision in Chandler 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 is limited to those cases where
the substance offered for sale is recovered and subjected to testing to determine
whether it contains a detectable amount of the drug offered for sale. It does not
apply to situations where no drug is recovered and no testing is performed.
Hence, where an offender offers to sell a controlled substance in a quantity that
would implicate the MDO specification, and where no substance is ever recovered
or tested, Chandler is factually distinguishable, as it is a counterfeit drug case
where the alleged drug was recovered and tested. Therefore, Chandler does not
apply to the situation as presented here where Garr offered to sell a drug that was
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not recovered. In such a case, the offender may be convicted of an MDO
specification in a properly proven case.
Conclusion
{¶ 29} Based on the foregoing, our holding in Chandler does not apply to
offer-to-sell trafficking cases where no drugs are recovered or tested.
Accordingly, the certified question is answered in the negative.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ.,
concur.
BROWN, C.J., not participating.
__________________
Timothy Young, Ohio Public Defender, and Kristopher A. Haines,
Assistant Public Defender, for petitioner.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Stephen P. Carney, Deputy Solicitor, and William Lamb and Diane Mallory,
Assistant Attorneys General, for respondent.
Paul A. Dobson, Wood County Prosecuting Attorney, and David E.
Romaker Jr., Assistant Prosecuting Attorney, in support of respondent for amicus
curiae, Ohio Prosecuting Attorneys Association.
______________________
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