State v. Milliner

I respectfully dissent from the majority opinion because this is a questionable exercise of the proper use of the power of the state to prosecute criminal offenders. There is no doubt that appellant committed a crime and should be punished, but the issue is the state's calculated disregard to prosecute for the crime that was actually committed, and a subsequent punishment that does not fit the crime. It is disturbing that the majority has seen fit to look the other way and endorse this blatant miscarriage of justice. I cannot fathom any justification for the majority's affirmance of appellant's conviction except to say that the state prosecuted appellant for the sale of cocaine and we cannot tolerate this court's being viewed as soft on a drug-related crime. We have seen drugs destroy the lives of men, women and children. Do we also want to see drugs destroy the Constitution and the Bill of Rights?

Appellant argues in his first assignment that his conviction for selling or offering to sell a controlled substance was a violation of his due process rights because he did not offer to sell any controlled substance but only a counterfeit substance. He argues that he should have been prosecuted under a specific statute, R.C. 2925.37, which prohibits any offering to sell or selling of a counterfeit substance and not under R.C. 2925.03 as charged. Appellant further argues that at no time did the state offer any evidence that appellant ever used the word "cocaine" in all his alleged conversations with the agent.

The state argues that appellant was properly charged because R.C. 2925.37 and 2925.03 are not allied offenses of similar import. The state cites two Ohio Supreme Court cases, State v.Mughni (1987), 33 Ohio St.3d 65, 514 N.E.2d 870, and State v.Chippendale (1990), 52 Ohio St.3d 118, 556 N.E.2d 1134, to support its case.

In Chippendale, the issue was whether a defendant who was charged under R.C. 2903.04(B) and 2903.06 could be convicted on both charges and sentenced on both convictions. Thus,Chippendale is improperly applied by both the state and the majority.

As noted by the Ohio Supreme Court in State v. Collins (1993), 67 Ohio St.3d 115, 116, 616 N.E.2d 224, 225:

"Chippendale dealt with whether involuntary manslaughter and aggravated vehicular homicide could both be charged from the same conduct. The case did not consider the sufficiency of the underlying violation to support a charge of involuntary manslaughter. Indeed, we did not need to do so as the defendant's involuntary manslaughter charge was predicated upon the first degree misdemeanor offense of driving under the influence. R.C. 4511.19(A)."

The issue before us in the instant case is not that of allied offenses because, as the majority correctly points out, the two offenses are not allied; nor was appellant charged with the two offenses. The issue is whether the state can ignore a specific statute and charge on a general statute, where the general statute is not a later provision, nor is there any manifest intent of the legislature to have the general provision apply. There cannot be a question that the two statutes' effects on society are distinct. Thus, the legislature could not intend to have one substitute for the other at the convenience of the state, as R.C. 2925.37 was enacted later specifically to differentiate the two laws and avoid the application given to the law of drug trafficking in the instant case by the state and approved by the majority.

In Chippendale, supra, 52 Ohio St.3d at 120-121,556 N.E.2d at 1137, the Ohio Supreme Court held:

"Where it is clear that a general provision of the Criminal Code applies coextensively with a special provision, R.C. 1.51 allows a prosecutor to charge on both. Conversely, where it is clear that a special provision prevails over a general provision or the Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a prosecutor may charge only on the special provision. The only exception in the statute is where ``* * * the general provision is the later provision and the manifest intent is that the general provision prevail.' Thus, unless the legislature enacts or amends the general provision later in time and manifests its intent to have the general provision apply coextensively with the special provision, the special provision must be the only provision applied to the defendant."

The prosecution of a crime must be based strictly on the provisions of the law, and the state must not use its power as shown in the instant case to substitute one provision for the other in contravention of the law for the simple reason that it has the power to do so and also can achieve a longer sentence. The achievement of a longer sentence, as prudent as it might appear emotionally and sentimentally, still must take a back seat to the constitutional protection of due process under the law. For the rule of statutory construction remains that penal laws "shall be strictly construed against the state, and liberally construed in favor of the accused." R.C. 2901.04(A);State v. Collins, supra.

R.C. 2925.03 provides in pertinent part as follows:

"(A) No person shall knowingly do any of the following:

"(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount;

"(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another;

"(3) Cultivate, manufacture, or otherwise engage in any part of the production of a controlled substance;

"(4) Possess a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount;

"(5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount;

"(6) Possess a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount;

"(7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount, but in an amount less than one hundred times that amount;

"(8) Provide money or other items of value to another person with the purpose that the recipient of the money or items of value would use them to obtain controlled substances for the purpose of selling or offering to sell the controlled substances in amounts exceeding a bulk amount or for the purpose of violating division (A)(3) of this section;

"(9) Possess a controlled substance in an amount equal to or exceeding one hundred times the bulk amount[.]"

R.C. 2925.37 provides in part as follows:

"(A) No person shall knowingly possess any counterfeit controlled substance.

"(B) No person shall knowingly make, sell, offer to sell, or deliver any substance that he knows is a counterfeit controlled substance."

R.C. 2925.01 defines "counterfeit substance" as follows:

"(P) ``Counterfeit controlled substance' means any of the following:

"(1) Any drug that bears, or whose container or label bears, a trademark, trade name, or other identifying mark used without authorization of the owner of rights to such trademark, trade name, or identifying mark;

"(2) Any unmarked or unlabeled substance that is represented to be a controlled substance manufactured, processed, packed, or distributed by a person other than the person that manufactured, processed, packed, or distributed it;

"(3) Any substance that is represented to be a controlledsubstance but is not a controlled substance or is a differentcontrolled substance;

"(4) Any substance other than a controlled substance that areasonable person would believe to be a controlled substancebecause of its similarity in shape, size, and color, or itsmarkings, labeling, packaging, distribution, or the price forwhich it is sold or offered for sale." (Emphasis added.)

R.C. 2925.37 is clearly a specific statute as opposed to R.C.2925.03, which is a general statute. R.C. 1.51 provides:

"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." See State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818; State v. Chippendale, supra;State v. Frost (1979), 57 Ohio St.2d 121, 11 O.O.3d 294,387 N.E.2d 235.

In Volpe, the Ohio Supreme Court held that where there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence. See, also, State v. Farkas (1989),64 Ohio App.3d 224, 227, 580 N.E.2d 1154, 1156. There is no discretion conferred upon the state to make a choice as to when a general statute should prevail over a specific statute. The state is bound to follow the mandates of the statute even when such would create potential harsh results, for the authority to amend the statute and to avoid potential harsh results remains the problem of the Ohio legislature. See Abraham v. Natl. CityBank (1990), 50 Ohio St.3d 175, 178, 553 N.E.2d 619, 622. There being no controversy as to which provision of the statute is specific and which is general, appellant should have been charged with the specific statute.

A second issue presented in the instant case is appellant's sentence of life imprisonment. It is inconceivable that the legislature intended to sentence an accused to life imprisonment for selling cornmeal as the substance in the instant case was revealed to be. The evidence presented by the state shows that appellant sold to the police a counterfeit substance (cornmeal) which even though the police may have believed it be cocaine, before the sale was consummated, nonetheless was cornmeal. Thus, appellant was convicted for selling cornmeal and not cocaine.

The United States Supreme Court held in Solem v. Helm (1983),463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649, that "no penalty is per se constitutional." See, also,Robinson v. California (1962), 370 U.S. 660, 667, 82 S.Ct. 1417,1421, 8 L.Ed.2d 758, 763. Thus, a criminal sentence must be proportionate to the crime for which defendant has been convicted. Solem, supra; see, also, State v. Gilham (1988),48 Ohio App.3d 293, 294, 549 N.E.2d 555, 556. While I do not consider R.C. 2925.03 penalties unconstitutional if applied properly, I do, however, question the use of an R.C. 2925.03 penalty to achieve that which could not be achieved by prosecuting under the crime that was committed.

As stated by Justice Herbert R. Brown in his dissent inState v. McDonald (1987), 31 Ohio St.3d 47, 52-53, 31 OBR 155, 159, 509 N.E.2d 57, 62:

"The Eighth Amendment to the Constitution of the United States proclaims: ``Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishmentsinflicted.' (Emphasis added.) Section 9, Article I of the Ohio Constitution contains identical language, and the protection provided under the two clauses is essentially the same. See,e.g., State v. Chaffin (1972), 30 Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46; McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 30 O.O.2d 38, 203 N.E.2d 334.

"Deeply ingrained within the prohibition against cruel andunusual punishment is the concept that the penalty for anoffense must be proportionally related to its severity. Thus,the Eighth Amendment and its Ohio counterpart prohibit ``* * *not only barbaric punishment, but also sentences that aredisproportionate to the crime committed.' Solem v. Helm (1983),463 U.S. 277, 284 [103 S.Ct. 3001, 3006, 77 L.Ed.2d 637, 645]." (Emphasis added.)

Appellant's sentence to life imprisonment for offering to sell cornmeal is a cruel and an unusual punishment, which makes the application of R.C. 2925.03 to this case unconstitutional. There is no evidence in the legislative history of the counterfeit laws or the drug laws to support a legislative intent to sentence an accused to life imprisonment for selling a counterfeit substance regardless of what the purchaser of the substance thought. It should not be the embarrassment that one faces when duped into buying what is not a controlled substance that is the impetus behind the punishment for drug offenses. The state should not use its power to punish a person who dupes it when the same enthusiasm to seek life imprisonment would not exist on behalf of a common citizen who complains to the state of being duped by another, albeit for the same set of facts as in the within case.

It is, therefore, my opinion that the crime of selling a counterfeit substance is insufficient to support a charge for a more serious offense of selling a controlled substance under R.C. 2925.03. Since appellant's charge was predicated upon the first degree misdemeanor of selling a counterfeit substance which the state knew was a counterfeit substance before the charges were instituted, his conviction should have been under a specific statutory provision of selling a counterfeit substance.

Accordingly, I respectfully dissent.