State v. Shalash (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Shalash, Slip Opinion No. 2016-Ohio-8358.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-8358
THE STATE OF OHIO, APPELLEE, v. SHALASH, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Shalash, Slip Opinion No. 2016-Ohio-8358.]
(No. 2015-1782—Submitted August 30, 2016—Decided December 27, 2016.)
Criminal law—Controlled substance analogs—Controlled substance analogs were
criminalized in October 2011.
CERTIFIED by the Court of Appeals for Warren County, No. CA2014-12-146,
2015-Ohio-3836.
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PFEIFER, J.
BACKGROUND
{¶ 1} In May 2012, appellant, Hamza M. Shalash, was indicted on eight
counts of aggravated trafficking in drugs and one count of engaging in a pattern of
corrupt activity for transactions during 2011 and through February 2012. Counts
1, 2, 3, 6, and 7 involved the sale or offer of sale, in violation of R.C. 2925.03(A)(1),
of a “controlled substance analog, a Schedule I controlled substance, as defined in
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R.C. Section 3719.01(HH)(1).” Counts 4, 5, and 8 involved the preparation for
shipment or delivery of a controlled substance analog, as defined in R.C.
3719.01(HH)(1), in violation of R.C. 2925.03(A)(2). Controlled substance analogs
are synthetic drugs that are chemically similar to and have the same effects as
naturally occurring controlled substances—in this case, marijuana. Count 9
involved engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(1).
{¶ 2} After unsuccessfully challenging the indictment on the grounds that
trafficking in controlled substance analogs, as opposed to controlled substances,
had not been illegal until December 2012, Shalash pleaded no contest to all nine
counts. The trial court sentenced Shalash to a separate term of imprisonment on
each count, the longest being 11 years, with the terms to be served concurrently.
{¶ 3} Shalash appealed, arguing that “controlled substance analogs were not
criminalized at the time he allegedly committed the offense of aggravated
trafficking of such substances.” 2015-Ohio-3836, 41 N.E.3d 1263 ¶ 11 (12th Dist.).
The court of appeals disagreed, relying on the definition of controlled substance
analogs in R.C. 3719.013, and affirmed the trial court’s judgment. Id. at ¶ 23-28.
{¶ 4} The court of appeals certified a conflict with State v. Smith, 10th Dist.
Franklin Nos. 14AP–154 and 14AP–155, 2014-Ohio-5303; State v. Mohammad,
10th Dist. Franklin No. 14AP-662 and 14AP-871, 2015-Ohio-1234; and State v.
Mobarek, 10th Dist. Franklin No. 14AP-517, 2015-Ohio-3007. We agreed that a
conflict exists and ordered the parties to brief “whether ‘controlled substance
analogs’ were criminalized as of October 17, 2011, the effective date of House Bill
64.” 144 Ohio St. 3d 1425, 2015-Ohio-5225, 42 N.E.3d 762.
ANALYSIS
{¶ 5} Chapter 2925 of the Revised Code is titled “Drug Offenses.” At the
time of Shalash’s indictment, R.C. 2925.03(A)(1) read, “(A) No person shall
knowingly do any of the following: (1) Sell or offer to sell a controlled substance.”
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January Term, 2016
2011 Sub.H.B. No. 64 (“H.B. 64”). R.C. 2925.03(A)(2) read, “(A) No person shall
knowingly do any of the following: * * * (2) Prepare for shipment, ship, transport,
deliver, prepare for distribution, or distribute a controlled substance * * *.” Id.
{¶ 6} Chapter 3719 is titled “Controlled Substances.” H.B. 64 for the first
time defined “controlled substance analog,” a substance that is “substantially
similar” to a Schedule I or II controlled substance in chemical structure and also
has or is intended to have a “stimulant, depressant, or hallucinogenic effect on the
central nervous system” that is similar to that of a Schedule I or II controlled
substance. R.C. 3719.01(HH)(1).
{¶ 7} Sub.H.B. No. 334 (“H.B. 334”) amended R.C. 2925.03(A)(1) to read,
“(A) No person shall knowingly do any of the following: (1) Sell or offer to sell a
controlled substance or a controlled substance analog.” (Emphasis added.) This
language became effective in December 2012, months after Shalash’s indictment.
{¶ 8} Shalash argues that when he was arrested and indicted, selling and
trafficking in controlled substance analogs was not illegal. Shalash asserts that
before H.B. 334, “R.C. 2925.03 did not state a positive prohibition against
trafficking in ‘controlled substance analogs.’ ” He also states that before H.B. 334,
“no section of the Revised Code provided a penalty for trafficking in ‘controlled
substance analogs.’ ” Other sections of the Revised Code lead us to contrary
conclusions.
{¶ 9} R.C. 3719.01(HH)(1) states:
(1) “Controlled substance analog” means, except as provided
in division (HH)(2) of this section, a substance to which both of the
following apply:
(a) The chemical structure of the substance is substantially
similar to the structure of a controlled substance in schedule I or II.
(b) One of the following applies regarding the substance:
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(i) The substance has a stimulant, depressant, or
hallucinogenic effect on the central nervous system that is
substantially similar to or greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous system of a controlled
substance in schedule I or II.
(ii) With respect to a particular person, that person represents
or intends the substance to have a stimulant, depressant, or
hallucinogenic effect on the central nervous system that is
substantially similar to or greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous system of a controlled
substance in schedule I or II.
{¶ 10} R.C. 3719.01(HH)(2) states, however, that “(2) ‘[c]ontrolled
substance analog’ does not include any of the following: (a) A controlled
substance.” R.C. 3719.01(HH)(2)(a) might seem to undermine our analysis. This
provision, however, merely notes that controlled substances are distinct from
controlled substance analogs. The question is whether the Revised Code authorizes
the two substances to be treated alike for purposes of R.C. 2925.03(A)(1) and (2).
{¶ 11} For resolution, we return to H.B. 64. H.B. 64 also enacted R.C.
3719.013, which says that with some explicit exceptions, “a controlled substance
analog, to the extent intended for human consumption, shall be treated for purposes
of any provision of the Revised Code as a controlled substance in schedule I.” R.C.
3719.013 is dispositive, as it states that a controlled substance analog shall be
treated as a controlled substance in schedule I “for purposes of any provision.”
Trafficking in controlled substances is clearly prohibited. R.C. 2925.03. Moreover,
use of “shall” shows that R.C. 3719.013 is mandatory and not advisory. As Chapter
3719 is titled “Controlled Substances” and contains numerous provisions, it is not
a secret provision of the Revised Code designed to snare the unwary.
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January Term, 2016
{¶ 12} In addition, the preamble to H.B. 64 states that the purpose of the
bill is “to add synthetic cannabinoids commonly known as K2 or Spice to the list
of Schedule I controlled substances, to prohibit the possession of Spice, to prohibit
trafficking in Spice, to provide that if Spice is the drug involved in a violation of
the offense of corrupting another with drugs the penalty for the violation will be the
same as if marihuana was the drug involved in the offense * * *.” (We take judicial
notice of the fact that K2 and Spice are forms of synthetic marijuana. National
Institute on Drug Abuse, Synthetic Cannabinoids (K2/Spice),
https://www.drugabuse.gov/drugs-abuse/synthetic-cannabinoids-k2spice,
accessed Dec. 5, 2016.) We do not rely on the preamble in reaching our decision,
but we note that it undermines Shalash’s arguments.
Conclusion
{¶ 13} Although controlled substance analogs were not specifically
proscribed by Title 29 when Shalash was arrested and indicted for selling them,
other provisions of the Revised Code incorporated controlled substance analogs
into Title 29. Specifically, R.C. 3719.013 states that controlled substance analogs
“shall” be treated as a controlled substance for purposes of “any provision of the
Revised Code.”
{¶ 14} The certified conflict before us asks “whether ‘controlled substance
analogs’ were criminalized as of October 17, 2011, the effective date of House Bill
64.” We conclude that H.B. 64 criminalized controlled substance analogs, and we
affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ.,
concur.
O’Neill, J., dissents.
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David P. Fornshell, Warren County Prosecuting Attorney, and Kathryn
Horvath, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant
Public Defender, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Chief Counsel, Appellate Division, urging affirmance for amicus curiae Franklin
County Prosecuting Attorney Ron O’Brien.
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, and Zachary J. Howe, Deputy
Solicitor, urging affirmance for amicus curiae Ohio Attorney General Michael
DeWine.
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