State v. Pountney (Slip Opinion) , 152 Ohio St. 3d 474 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Pountney, Slip Opinion No. 2018-Ohio-22.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-22
THE STATE OF OHIO, APPELLANT, v. POUNTNEY, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Pountney, Slip Opinion No. 2018-Ohio-22.]
Criminal law—R.C. 2925.11(C)(1)(c)—Aggravated possession of drugs—
Fentanyl—Enhanced felony levels—R.C. 2925.01(D)(1)(d)—Definition of
“bulk amount”—Because state failed to prove maximum daily dose in the
usual dose range specified in a standard pharmaceutical reference manual
for transdermal fentanyl, it failed to establish the “bulk amount” of that
drug for purposes of increasing felony level—State may not rely on usual
dose range of morphine to establish bulk amount of transdermal fentanyl—
Judgment of the court of appeals affirmed.
(No. 2016-1255—Submitted September 13, 2017—Decided January 4, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 103686,
2016-Ohio-4866.
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SUPREME COURT OF OHIO
FRENCH, J.
{¶ 1} In this appeal, we examine the statutory requirements for proving
enhanced felony levels of aggravated possession of fentanyl based on the amount
of the drug involved. Ohio defines these levels in terms of multiples of the “bulk
amount,” which for the fentanyl at issue in this case means “five times the
maximum daily dose in the usual dose range specified in a standard pharmaceutical
reference manual.” R.C. 2925.01(D)(1)(d). Appellant, the state of Ohio, asks this
court to hold that “because there is no ‘usual dose range’ of fentanyl, the State may
rely upon the usual dose range of morphine, the prototype drug for fentanyl, to
establish the bulk amount of fentanyl under R.C. 2925.01(D)(1)(d).”
{¶ 2} Fentanyl, a Schedule II controlled substance, is a synthetic opioid that
is approximately 100 times more potent than morphine and 50 times more potent
than heroin. R.C. 3719.41 (Schedule II(B)(9)); United States Dept. of Justice, Drug
Enforcement Administration, Drugs of Abuse, A DEA Resource Guide 40 (2017),
https://www.dea.gov/pr/multimedia-library/publications/drug_of_abuse.pdf#page
=40 (accessed Dec. 12, 2017). Fentanyl and related drugs were involved in nearly
60 percent of Ohio’s 4,050 overdose deaths in 2016. Ohio Dept. of Health, News
Release, Fentanyl, Carfentanil and Cocaine Drive Increase in Drug Overdose
Deaths in 2016 (Aug. 30, 2017), http://www.odh.ohio.gov/-
/media/ODH/ASSETS/Files/health/injury-prevention/ODH-News-Release----
2016-Ohio-Drug-Overdose-Report.pdf?la=en (accessed Dec. 12, 2017). And in the
first two months of 2017, approximately 90 percent of unintentional overdose
deaths in 25 Ohio counties involved fentanyl, fentanyl analogs or both.
Daniulaityte, Juhascik, Strayer, Sizemore, Harshbarger, Antonides, and Carlson,
Overdose Deaths Related to Fentanyl and its Analogs—Ohio, January-February
2017, 66 Morbidity & Mortality Weekly Report No. 34, 904, 905-906,
https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6634a3.pdf (accessed Dec.
12, 2017), datum corrected in Errata: Vol. 66 No. 34, 66 Morbidity & Mortality
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Weekly Report No. 38, 1030, https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/
mm6638a8.pdf (accessed Dec. 12, 2017) (clarifying that the number of counties
was 25).
{¶ 3} To be sure, enhanced felony prosecution for possession of fentanyl is
one weapon in the state’s arsenal in the war on drug-related crime. But what the
state asks here requires the General Assembly, not this court, to act. We reject the
state’s interpretation of the enhancement provisions for fentanyl possession
because it conflicts with unambiguous statutory language. We affirm the judgment
of the court of appeals.
Facts and procedural background
{¶ 4} Appellee, Mark H. Pountney, was indicted on two counts of theft, one
count of identity fraud, and two counts of drug possession—one of which involved
fentanyl and one of which involved acetaminophen with codeine. Pountney
stipulated to the allegations underlying the charges of theft, identity fraud, and
possession of acetaminophen with codeine. Count 4 of the indictment—the only
count relevant here—alleged that Pountney knowingly obtained, possessed or used
at least 5 but not more than 50 times the bulk amount of fentanyl, in violation of
R.C. 2925.11(A), which is a second-degree felony under R.C. 2925.11(C)(1)(c).
{¶ 5} Subject to certain exceptions not applicable here, R.C. 2925.11(A)
prohibits a person from knowingly obtaining, possessing or using a controlled
substance or controlled-substance analog. A violation of R.C. 2925.11(A)
involving fentanyl constitutes aggravated possession of drugs. R.C. 2925.11(C)(1);
R.C. 3719.41 (Schedule II(B)(9)).
{¶ 6} Except as provided in R.C. 2925.11(C)(1)(b) through (e), aggravated
possession of drugs is a fifth-degree felony. R.C. 2925.11(C)(1)(a). If, however,
the amount of the drug involved meets statutorily defined thresholds, the offense is
enhanced to a first-degree, second-degree or third-degree felony. R.C.
2925.11(C)(1)(b) through (e). As relevant here, “If the amount of the drug involved
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equals or exceeds five times the bulk amount but is less than fifty times the bulk
amount,” the offense is a second-degree felony. R.C. 2925.11(C)(1)(c).
{¶ 7} The General Assembly has defined the “bulk amount” of a Schedule
II opiate or opium derivative, like fentanyl, as an “amount equal to or exceeding
twenty grams or five times the maximum daily dose in the usual dose range
specified in a standard pharmaceutical reference manual.” R.C. 2925.01(D)(1)(d).
Here, we are concerned only with the second prong of that definition. Pountney
stipulated that he knowingly obtained ten three-day transdermal fentanyl patches,
each of which delivered 50 micrograms of fentanyl per hour. He disputed,
however, that the patches equaled the “bulk amount or some multiple of the bulk
amount” of transdermal fentanyl.
{¶ 8} The Cuyahoga County Court of Common Pleas conducted a bench
trial solely on the state’s proof regarding the “bulk amount” of transdermal fentanyl.
If the state proved that the ten fentanyl patches equaled or exceeded five times the
bulk amount of transdermal fentanyl, Pountney would be guilty of a second-degree
felony; otherwise, based on his stipulations, he would be guilty of a fifth-degree
felony. R.C. 2925.11(C)(1)(a) and (e).
{¶ 9} The trial court found Pountney guilty on all counts in the indictment,
including second-degree-felony aggravated possession of fentanyl involving at
least five times the bulk amount. After merging allied offenses, the trial court
sentenced Pountney to three years in prison for aggravated possession of fentanyl
and 18 months in prison for identity fraud, to be served concurrently. The trial
court also imposed a $7,500 fine and three years of mandatory postrelease control.
{¶ 10} Pountney appealed his conviction for aggravated possession of
fentanyl, arguing that the state failed to present sufficient evidence of the “bulk
amount.” The Eighth District Court of Appeals agreed with Pountney, reversed the
trial court’s judgment, and remanded this case with instructions for the trial court
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to enter a finding of guilty on Count 4 as a fifth-degree felony and to resentence
Pountney accordingly.
{¶ 11} This court accepted the state’s discretionary appeal. The state’s
single proposition of law asserts that the state may rely upon the usual dose range
of morphine, the prototype opiate, to establish the bulk amount of fentanyl under
R.C. 2925.01(D)(1)(d). We reject the state’s proposition.
The evidence
{¶ 12} At trial, the state presented an expert report and testimony from Paul
Schad, a pharmacist employed as a compliance specialist for the Ohio State Board
of Pharmacy. Attached to Schad’s report is a portion of the American Hospital
Formulary Service Drug Information (“AHFS”), which the board of pharmacy has
approved as a standard pharmaceutical reference manual, Ohio Adm.Code 4729-
11-07(F).
{¶ 13} Schad’s report cites the R.C. 2925.01(D)(1)(d) definition of “bulk
amount”—“[a]n amount equal to or exceeding * * * five times the maximum daily
dose in the usual dose range specified in a standard pharmaceutical reference
manual.” In his testimony, Schad stated, “I would refer to the standard
pharmaceutical reference” to determine the usual dose range for a particular drug.
Schad’s report states, “Pursuant to the definition of Bulk Amount, the ‘maximum
daily dose in the usual dose range specified in a standard pharmaceutical reference
manual’ was taken from” the AHFS. But Schad admitted, “you’re not going to see
a usual dosage range” for fentanyl patches in the AHFS. Nevertheless, he stated
that the bulk amount of 50-microgram-per-hour fentanyl patches is two patches.
{¶ 14} The AHFS states that transdermal fentanyl should be used only with
patients who are opiate tolerant:
Dosage of transdermal fentanyl should be individualized according
to the clinical status of the patient, desired therapeutic effect, and
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patient age and weight and should be assessed at periodic intervals.
However, the most important factor to be considered in determining
the appropriate dose is the degree of existing opiate tolerance. In
selecting an appropriate initial dose of the transdermal system,
consideration also must be given to the daily dose, potency, and
characteristics * * * of the opiate the patient has been receiving and
the reliability of potency estimates, which may vary by route, used
to calculate an equivalent transdermal dose.
(Endnotes omitted.)
{¶ 15} Having acknowledged that the AHFS does not state a “usual dose
range” for transdermal fentanyl, Schad explained, “We need to look at dosing—
usual dosage range of the other opiates, considering Morphine as the prototype of
opiates. We look at the usual dosage range of Morphine, finding a maximum daily
dose within the usual dosage range of Morphine, and convert that to Fentanyl
patches.” Schad then engaged in a series of calculations in an effort to deduce the
bulk amount of transdermal fentanyl from the usual dose range of morphine.
{¶ 16} Schad testified that the “usual dosage range of oral morphine found
in the standard pharmaceutical reference is 10 to 30 milligrams every four hours,”
for a maximum daily dose in the usual dose range of 180 milligrams. Schad then
turned to Table 2 of the AHFS manual regarding fentanyl. Table 2, titled
Transdermal Fentanyl Dose Based on Current Oral Opiate Dosage, sets out
manufacturer-provided, conservative, initial dosage recommendations for
switching an opiate-tolerant patient to transdermal fentanyl from other, oral opiates,
including morphine. For a patient who is being transferred from morphine, the
table recommends a transdermal fentanyl dose of 25, 50, 75 or 100 micrograms per
hour, based upon the patient’s daily dose of morphine (ranging in the table from 60
to 404 milligrams). For a patient who has been receiving the 180-milligram
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maximum daily dose in the usual dose range for morphine, Table 2 recommends an
initial transdermal fentanyl dose of 50 micrograms per hour. Based solely on that
conversion, Schad testified that 1200 micrograms per day—50 micrograms per
hour multiplied by 24 hours—is the maximum daily dose in the usual dose range
for transdermal fentanyl.
{¶ 17} Schad next multiplied 1200 micrograms by five to calculate a “bulk
amount” of 6000 micrograms, or 6 milligrams, for transdermal fentanyl. Because
an indivisible 50-microgram-per-hour fentanyl patch contains 5 milligrams of
fentanyl, Schad testified that it takes two patches to equal the “bulk amount.”
Analysis
{¶ 18} The Eighth District held that the state did not present sufficient
evidence that Pountney possessed the “bulk amount” of fentanyl. 2016-Ohio-4866,
¶ 26.
{¶ 19} When reviewing the sufficiency of the evidence, an appellate court
does not ask whether the evidence should be believed but, rather, whether the
evidence, “if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. “The relevant inquiry is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Jenks at paragraph two of the syllabus. Although the Eighth
District framed its decision in terms of sufficiency of the evidence, the overriding
question in this case is the meaning of R.C. 2925.01(D)(1)(d)’s definition of “bulk
amount” and its application to the undisputed facts.
{¶ 20} Interpretation of a statute is a question of law that we review de novo.
State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9. “The
primary goal of statutory construction is to ascertain and give effect to the
legislature’s intent,” as expressed in the plain meaning of the statutory language.
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State v. Lowe, 112 Ohio St. 3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. If the
statutory language is unambiguous, we apply it as written. Pariag at ¶ 10. Only
when a statute is ambiguous may we engage in further construction. Id.
{¶ 21} The method of proving an increased felony level for drug possession
based on the amount of the drug involved depends on the identity of the drug. For
Schedule II controlled substances like fentanyl, the increase is based on either the
weight of the drug or multiples of the “bulk amount” of the drug. See R.C.
2925.11(C)(1). For other drugs, the increase is based solely on the weight of the
drug, see R.C. 2925.11(C)(3) and (4), or on either the weight of the drug or the
number of “unit doses,” see R.C. 2925.11(C)(5). Here, to convict Pountney of
second-degree felony aggravated possession of drugs, the state had to prove that
Pountney obtained or possessed at least five times the bulk amount of transdermal
fentanyl. R.C. 2925.11(C)(1)(c).
{¶ 22} The starting point for establishing the bulk amount of a controlled
substance under the second prong of R.C. 2925.01(D)(1)(d) is the “maximum daily
dose in the usual dose range specified in a standard pharmaceutical reference
manual.” By using that language, the General Assembly chose to tie the definition
of “bulk amount” to the contents of a reference manual beyond its control. The
plain language of R.C. 2925.01(D)(1)(d) requires that the maximum daily dose in
the usual dose range be specified in a standard pharmaceutical reference manual.
“Specify” means “to mention or name in a specific or explicit manner: tell or state
precisely or in detail.” Webster’s Third New International Dictionary 2187 (2002).
{¶ 23} The state may prove the maximum daily dose in the usual dose range
in one of three ways: “(1) by stipulation, (2) by expert testimony as to what a
standard pharmaceutical reference manual prescribes, or (3) by a properly proven
copy of the manual itself.” State v. Montgomery, 17 Ohio App. 3d 258, 260, 479
N.E.2d 904 (1st Dist.1984); but see State v. Caldwell, 5th Dist. Richland No. CA-
2369, 1986 WL 7456, *3 (June 23, 1986) (approving judicial notice of bulk amount
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stated in a standard pharmaceutical reference manual). The state contends that it
established the bulk amount of transdermal fentanyl through Schad’s expert report
and testimony and the portion of the AHFS regarding fentanyl that was admitted as
evidence.
{¶ 24} The AHFS explicitly states usual dose ranges for certain controlled
substances, including morphine. Schad repeatedly stated that the AHFS specifies
a usual dose range of 10 to 30 milligrams every four hours for morphine. And Ohio
courts have noted direct statements of usual dose ranges for other controlled
substances in the AHFS or other standard pharmaceutical reference manuals. See
State v. Bange, 4th Dist. Ross No. 10CA3160, 2011-Ohio-378, ¶ 12 (quoting from
the AHFS entry for “ ‘Oxycodone Hydrochloride Tablets USP’ ” a “usual adult
dose” of “ ‘2 to 15 mg every 4 to 6 hours as needed’ ”); State v. Baker, 2d Dist.
Montgomery No. 7753, 1982 WL 3801, *2 (Sept. 23, 1982) (“In examining any
one of a number of ‘standard pharmaceutical reference manuals’ as defined in R.C.
2925.01(N), one finds that the maximum daily dose (in the usual dosage range
specified) for Methaqualone is 300 milligrams”).
{¶ 25} The AHFS does not, however, specify either a “usual dose range” or
a “maximum daily dose in the usual dose range” for transdermal fentanyl. Instead,
it directs that dosage of transdermal fentanyl should be individualized and
periodically assessed. The state concedes that “there was no ‘usual dose range’ for
fentanyl because doctors only ever prescribe fentanyl based on whatever dose of
opiate the patient is already taking.” This creates a problem of proof for the
prosecution, but it is not a problem that we may remedy by ignoring the
unambiguous statutory language the General Assembly has employed.
{¶ 26} Though Schad testified that he “refer[ed] to” the AHFS to make his
findings, he did not identify a “maximum daily dose in the usual dose range
specified in a standard pharmaceutical reference manual” for fentanyl, as R.C.
2925.01(D)(1)(d) requires. He did not identify a “usual dose range” for transdermal
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fentanyl, either by reference to the AHFS or otherwise. The Ohio Attorney
General, as amicus curiae, argues that R.C. 2925.01(D)(1)(d) is satisfied if the
reference manual specifies “[t]he manner for determining fentanyl’s ‘usual dose
range.’ ” (Emphasis added.) But that reading is contrary to the plain statutory
language, which requires that the manual specify the maximum daily dose in the
usual dose range. In context, the plain meaning of “specified in a standard
pharmaceutical reference manual” requires more than a reference point for
calculating a maximum daily dose; the manual must specify the usual dose range
itself, or at least the maximum daily dose within that range.
{¶ 27} Even assuming that the absence of an express statement in the AHFS
of the usual dose range of transdermal fentanyl does not, in itself, defeat the state’s
position, Schad’s testimony does not establish a maximum daily dose in the usual
dose range for fentanyl by reference to the AHFS. Table 2 sets out the drug
manufacturer’s conservative, initial dosage recommendations for switching opiate-
tolerant patients from oral opiates to transdermal fentanyl, but it does not establish
analgesic equivalents. In fact, the AHFS warns that Table 2 should not be used to
convert patients from transdermal fentanyl to the listed oral opiates, because the
conversions may result in an overestimated dose of the oral opiate.
{¶ 28} From Table 2’s recommendation of an initial 50-microgram-per-
hour dose of transdermal fentanyl for a patient being transitioned from the 180-
milligram maximum daily dose in the usual dose range of morphine, Schad stated
that 50 micrograms per hour, or 1200 micrograms per day, is the maximum daily
dose in the usual dose range of transdermal fentanyl. But he acknowledged the
statement in the AHFS that “many patients are likely to require upward dosage
titration after initial application of a transdermal dose” and that many patients will
have their doses increased beyond 50 micrograms per hour. He also acknowledged
that fentanyl patches are manufactured in doses as high as 100 micrograms per hour
and that doctors may prescribe multiple patches to be worn simultaneously to
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increase a patient’s hourly and daily doses of fentanyl. Nothing in the AHFS,
including Table 2, supports Schad’s testimony that the initial, conservative dose of
transdermal fentanyl recommended for a patient being transitioned from the
maximum daily dose in the usual dose range of morphine equals the maximum
daily dose in the usual dose range of transdermal fentanyl.
{¶ 29} Schad relied upon Table 2’s recommended conversion from
morphine to transdermal fentanyl to calculate the maximum daily dose in the usual
dose range, but applying Schad’s methodology to other oral opiates listed in Table
2 results in different recommended doses of transdermal fentanyl. For example,
Table 2 recommends that a patient taking the 360-milligram maximum daily dose
in the usual dose range of codeine phosphate be switched to a transdermal fentanyl
dose of 25 micrograms per hour but that a patient taking the 120-milligram
maximum daily dose in the usual dose range of methadone hydrochloride be
switched to a transdermal fentanyl dose of 100 micrograms per hour.1 Each of
those doses differs from Schad’s calculation of the maximum daily dose in the usual
dose range for transdermal fentanyl, based on morphine. So even using Schad’s
methodology, the maximum daily dose in the usual dose range of transdermal
fentanyl is a moving target that provides no meaningful guidance to potential
offenders or to the prosecutors who bring criminal charges.
{¶ 30} In State v. Huber, 187 Ohio App. 3d 697, 2010-Ohio-2919, 933
N.E.2d 345 (2nd Dist.)—apparently the only other Ohio appellate decision to
address the sufficiency of evidence of the bulk amount of fentanyl based on the
maximum daily dose in the usual dose range—the Second District held that the
state failed to prove the maximum daily dose in the usual dose range of fentanyl
1
For these comparisons only, we take the maximum daily doses in the usual dose range from the
board of pharmacy’s Controlled Substance Reference Table (which at the relevant time was not an
approved pharmaceutical reference manual), because the record does not contain the portions of the
AHFS regarding the oral opiates listed in Table 2.
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when there was no stipulation, the state did not submit an authenticated copy of a
standard pharmaceutical reference manual that specified the maximum daily dose
in the usual dose range, and there was no expert testimony “as to what a standard
pharmaceutical reference manual prescribes.” Id. at ¶ 9. We agree. The state
argues that Huber is distinguishable based on the existence of Schad’s expert
testimony in this case, but Schad did not testify “as to what a standard
pharmaceutical reference manual prescribes” as the maximum daily dose in the
usual dose range for fentanyl. See id. So, we conclude that as in Huber, the state
did not prove the maximum daily dose in the usual dose range for fentanyl.
{¶ 31} Before the court of appeals, the state argued that this case is
analogous to Bange, 4th Dist. Ross No. 10CA3160, 2011-Ohio-378. In Bange, the
Fourth District affirmed a conviction for aggravated possession of extended-release
Oxycodone tablets even though the testifying pharmacist relied on the usual dose
range for nonextended-release Oxycodone tablets to determine the bulk amount.
The AHFS contained separate listings, with different usual dose ranges, for
extended-release and nonextended-release Oxycodone tablets. The nonextended-
release listing stated a usual adult dose of “2 to 15 mg every 4 to 6 hours,” whereas
the extended-release listing stated, “[d]osage must be individualized by the
physician according to the severity of pain and patient response.” (Brackets sic.)
Id. at ¶ 11-12. The Fourth District rejected Bange’s sufficiency and manifest-
weight challenges. It recognized, “[I]t is not clear whether the [extended-release]
listing even provides a maximum usual daily dose,” and held, “Under these
circumstances, we see no reason why a pharmacist cannot determine that another
listing provides a sufficient basis for stating the maximum daily dose in the usual
dose range.” Id. at ¶ 20. Whether or not we would have reached the same
conclusion as the Fourth District, its approval of the use of a specified dose range
for another form of Oxycodone in Bange does not justify the use of the usual dose
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range for morphine—an entirely different drug—to determine the bulk amount of
fentanyl.
{¶ 32} The issue in this case is not Schad’s credibility or the persuasiveness
of his testimony. Rather, the issue is whether Schad’s testimony satisfies the
statutory definition of “bulk amount,” that is, whether he testified to a maximum
daily dose in the usual dose range for fentanyl specified in a standard
pharmaceutical reference manual. We hold that he did not.
{¶ 33} The Eighth District’s decision, which we affirm here, recognizes that
the state cannot prove a “bulk amount” of fentanyl patches under the dosage prong
of R.C. 2925.01(D)(1)(d) because the AHFS does not specify a maximum daily
dose in the usual dose range for fentanyl patches. The General Assembly made the
policy decision to tie the degree of offense for aggravated possession of Schedule
II controlled substances, like fentanyl, to the bulk amount rather than to weight or
unit doses, as it did with other controlled substances. And because the AHFS,
which Schad relied on, does not state a maximum daily dose in the usual dose range
for transdermal fentanyl, the state is unable to prove the “bulk amount” under the
current statutory scheme. So, without a standard pharmaceutical reference manual
that specifies the maximum daily dose in the usual dose range for transdermal
fentanyl, possession of less than 20 grams of transdermal fentanyl will be a fifth-
degree felony under R.C. 2925.11(C)(1)(a) unless and until the General Assembly
amends the statutory framework for assigning enhanced felony levels to offenses
involving possession of fentanyl.
{¶ 34} Pountney accurately notes that there is a bill pending before the
General Assembly that proposes changes to the statutory scheme addressing the
escalation of penalties for possession of fentanyl. 2017 Am.Sub.S.B. No. 1
proposes to anchor escalation of penalties for fentanyl possession to “unit doses”
instead of “bulk amount.” Id. The Senate passed the bill on March 29, 2017, and
it has been before the House Criminal Justice Committee since May 9, 2017. Ohio
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Legislature, 132nd General Assembly, Senate Bill 1, Status,
https://www.legislature.ohio.gov/legislation/legislation-status?id=GA132-SB-1.
But unless and until the General Assembly acts, our role is to apply the current
statutory scheme as enacted. And in doing so, we must affirm the Eighth District’s
judgment.
Conclusion
{¶ 35} R.C. 2925.01(D)(1)(d) defines the “bulk amount” of fentanyl as
“five times the maximum daily dose in the usual dose range specified in a standard
pharmaceutical reference manual.” However, the AHFS, the standard
pharmaceutical reference manual used in this case, does not specify a maximum
daily dose in the usual dose range for fentanyl. Therefore, it does not provide a
basis for proving the “bulk amount” under the statute. Although the AHFS states
that an initial dose of transdermal fentanyl should take into account a patient’s
opiate tolerance and the type and dose of opiate therapy the patient is being
transferred from, neither R.C. 2925.01(D)(1)(d) nor the AHFS justifies reliance on
the usual dose range of morphine to establish the bulk amount of fentanyl. For
these reasons, we reject the state’s proposition of law and affirm the Eighth
District’s judgment.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, O’NEILL, FISCHER, and
DEWINE, JJ., concur.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellant.
Mark A. Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellee.
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Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Hannah C. Wilson, Deputy Solicitor, urging reversal for amicus curiae, Ohio
Attorney General Michael DeWine.
_________________
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