Last week, the 12th District Court of Appeals in State v. Woodard, 2017-Ohio-6914 held that drug possession charges based upon the simultaneous possession of two or more controlled substances are not allied offenses of similar import. Essentially, allied offenses of similar import are offenses committed by engaging in the same act with the same motivation or mindset. When someone commits two or more separate offenses that are allied offenses of similar import, the court must merge the sentences of the separate offenses (known as "merger" or "the merger doctrine").
For instance, selling cocaine may bring about a drug trafficking charge and a drug possession charge. However, if a defendant is charged with and found guilty of both, a court can sentence the defendant on only one charge but not both.
In Woodard, the defendant possessed a baggie containing heroin, a schedule I drug, and fentanyl, a schedule II drug. The defendant argued that because he possessed both, heroin and fentanyl, the crimes were allied offenses of similar import-i.e., committed with the same act and motivation. He argued therefore, he could not be convicted of both offenses.
The 12th District Court of Appeals disagreed, holding they were separate offenses and would not merge for sentencing purposes. In so holding, the court cited its own case law and that of other Ohio appellate courts. The court held, "Each possession offense required proof as to the specific drug involved and could not be supported by possession of a different controlled substance... The possession of heroin or fentanyl will never support a conviction for possession of the other. The fact that the two controlled substances were found in the same baggie is of no consequence."
As the dissent pointed out, this decision may be problematic for future cases involving bulk weight of drugs (which was not an issue in this case). Because of the Ohio Supreme Court's decision in State v. Gonzales, Slip Opinion No. 2017-Ohio-777, the fillers and adulterants are inherently a part of the usable drug and therefore, the weight of those non-illegal substances are used to determine the weight of the illegal substance. In this case, the lab evidence showed the defendant possessed .106 grams of powder. The powder contained "+/- 0.0123 grams of heroin and an unspecified amount of fentanyl.
The Woodard and Gonzoles decisions inevitably lead to the conclusion that the defendant in Woodard possessed both, .106 grams of heroin and .106 grams of fentanyl, even though appellant only possessed .106 grams of powder and additionally, permits the defendant to be convicted and sentenced for both offenses.
As Judge Ringland correctly suggested, such a result is unfair as it is inconsistent with the Double Jeopardy Clause, which prohibits two punishments for the same offense.
If you or someone you know has been charged with a drug-related offense, feel free to Contact the experienced criminal defense attorneys at Rittgers & Rittgers for your free consultation at (513) 932-2115.