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Suspects charged with cocaine possession could soon face lesser degree felonies and those locked up could be back on the streets depending on how the Ohio Supreme Court rules on how the drug should be weighed.

The case tasks the justices with settling this question: Does the state need to prove the overall weight of a substance containing cocaine in a suspect's possession, or only that which is chemically proven to be cocaine?

As it is done now, prosecutors must prove the overall weight. But a ruling out of the Sixth District Court of Appeals could have drastic implications if state justices affirm it, many officials say, especially as Ohio is in the grips of a worsening drug epidemic.

Essentially, the justices must decide if, when the state prosecutes cocaine cases, the degree of felony is determined by overall weight including filler material, as is done now, or if the substance must be tested for purity. In that case, a suspect would only be charged based on what amount of the substance is chemically identified as cocaine - anything else found in the substance would be excluded from the weight.

“Ninety-nine grams of sugar mixed with one gram of cocaine is not 100 grams of cocaine,” said Andrew Mayle, a defense attorney involved in the case. “The more cocaine, the higher the penalty. It’s not the more sugar or baking soda the higher the penalty.”

But such testing has never been done in Ohio, according to Ohio Attorney General Mike DeWine's office.

What an affirmation could mean

The potential outcome of the State of Ohio v. Rafael Gonzales is by no means insignificant. Depending on the ruling, suspects could face reduced felony charges for cocaine possession, and those already convicted could have their prison sentences shortened.

It's because of the imminent ruling that several suspects in Muskingum County recently entered no contest pleas in common pleas court on trafficking and possession charges.

Four of seven suspects arrested in June during a Zanesville and Muskingum County joint drug raid all pleaded no contest to grand jury indictments containing trafficking and possession charges.

Such a plea is not an admission of guilt; rather, the defendant is deciding not to dispute the charge and instead take a sentence. It also ensures that defendants preserve their right to appeal sentences if the Supreme Court changes how cocaine-related offenses are prosecuted.

The state has historically prosecuted cocaine cases based on proving the aggregate weight in the suspect's possession, and for good reason, many officials note. County and state prosecutors see a number of dilemmas stemming from testing cocaine that way.

Chief among the concerns is the potential for major drug dealers to be back on the streets, or at the least have their sentences reduced.

"You'd be flooding the streets with all kinds of people who had been previously convicted," said Muskingum County Prosecutor Mike Haddox. "There will be thousands more people incarcerated out to continue these activities immediately."

Possession of cocaine is an automatic felony under Ohio law. Any amount under 5 grams is a fifth-degree felony, and it climbs from there. Anything over 27 grams is a first-degree felony with a maximum 11-year prison sentence.

But perhaps more concerning to officials is the difficulty of even testing such substances for purity, which would involve separating the filler from the cocaine. Cocaine is almost always cut with other substances, whether that be innocuous things such as sugar, or even other drugs.

It's not something the Bureau of Criminal Investigation's three labs in London, Richfield and Bowling Green have ever tested for, or have been required to test for.

"We are not aware of any public lab in Ohio that does this type of analysis for cocaine evidence," said Attorney General Spokesperson Dan Tierney in a written statement.

And if they had to become certified to do such testing, it could create a backlog, stalling court cases for months and putting a financial burden on BCI labs to purchase the equipment necessary to do such regular testing. An amicus brief file by Attorney General Mike DeWine's office noted that purity testing in at least one federal lab is 18 months.

Such a delay will "torpedo" Ohio cocaine cases, including a statewide operation in August in which authorities seized millions of dollars' worth of controlled substances, according to that brief.

That in turn could make it difficult on county prosecutors to effectively prosecute the cases.

"If this is going to create a backlog at BCI, then that's going to have a significant impact," said Coshocton County Prosecutor Jason Given.

But Mayle argues that such points are moot when Ohio law clearly requires prosecutors to prove how much of the substance is in fact cocaine.

“The fact that (the attorney general's office is) not complying with the statute is not a reason for the court to not follow the statute,” said Mayle, who represented defendant Rafael Gonzales during his trial and is now representing him on the appeal. “This case is about applying what the statue already says.”

Mayle and other parties supporting the appellee have until Nov. 24 to file a brief in favor of the sixth district's ruling. No other state organization has yet filed a brief in support of the ruling.

Appeals court's ruling a technical one

The case came before the Supreme Court after the Sixth District Court of Appeals issued a ruling conflicting with all other Ohio appeals courts.

In the original 2013 Wood County case, a jury found Rafael Gonzales guilty of cocaine possession after prosecutors say he bought 100 grams of the drug from a confidential informant in 2012. A judge sentenced him to 11 years in prison.

Gonzales appealed the ruling, and the appeals court ruled that the prosecutors must prove the pure weight of cocaine in his possession, not the aggregate weight. The case was remanded for resentencing. The Wood County Prosecutor's Office is now appealing the sixth district's ruling.

Here's where the sixth district's explanation gets rather technical.

In Gonzales' case, the trial court instructed the jury to consider the entire weight of the substance to determine if he possessed 100 or more grams of cocaine, which the appeals court determined was an error.

As justification, they pointed to discrepancies in statutes in the Ohio Revised Code that lay out how drug possession offenses are penalized.

For instance, both statutes concerning potential prison sentences for possession of cocaine and marijuana contain this language: "If the amount of the drug involved equals or exceeds one hundred grams..."

But the statute concerning cocaine possession also contains two words at the end that the statute addressing marijuana does not: "Of cocaine." Because of this wording, the sixth district determined that the legislature intended cocaine to be treated differently - that filler material is to be excluded from the overall weight.

The appeals court also referenced the definition of cocaine in the revised code, which they say is less broad than other drugs like marijuana and LSD. They determined that the disparities are intentional on the part of the legislature.

It's an assertion that Haddox's and DeWine's office contest; the Attorney General's brief specifically labels it as a narrow interpretation of the General Assembly's intent.

But Mayle contends that the legislature's wording was deliberate. More importantly, he said, it's the Supreme Court's job to determine the lawmakers' intent, not to make their own policy.

“For whatever reason, the General Assembly saw fit to treat cocaine differently than other controlled substances,” Mayle said. “Whatever the purpose of the policy, it is what it is and the court has to enforce it and we’re pretty confident that that’s what the Ohio Supreme Court is going to say.”

Since the sixth district's ruling conflicted with every other appeals court, the Supreme Court certified the conflict on July 8. While several parties have filed briefs on behalf of the state, no oral arguments have yet been scheduled.

Ohio justices could either affirm or overturn the sixth district's ruling. Either way, an edict from the Ohio Supreme Court would settle the issue statewide.

"While certainly it's going to create incredible hardship ... at the end of the day we'll adjust if we have to," Given said on the possibility of an affirmation.




Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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