Pubdate: Sat, 24 Dec 2016
Source: Blade, The (Toledo, OH)
Copyright: 2016 The Blade
Author: Jim Provance, Blade Columbus Bureau Chief


COLUMBUS - In a case closely watched by law enforcement statewide, a
sharply divided Ohio Supreme Court on Friday said prosecutors must
prove the weight of the actual cocaine - and not fillers - to get
stiffer sentences in drug busts.

For Rafael Gonzales, 58, convicted in Wood County in 2012 of
first-degree felony cocaine possession, the 4-3 decision means his
11-year sentence could be slashed to one.

Justice Judith Ann Lanzinger, writing for the majority, said state
law's definition of "cocaine" does not provide for fillers such as
baking soda.

Justice Judith Ann Lanzinger, writing for the majority, said state
law's definition of "cocaine" does not provide for fillers such as
baking soda. The state argued that the General Assembly meant to
include such substances in the definition, but the court found it had
to focus on what the law "clearly does say."

"The remedy is to be found in the legislature, not a tortured judicial
interpretation of a statute unambiguous on its face," Justice
Lanzinger wrote. "Given the unambiguous language of the statute ...
the state must prove that the weight of the actual cocaine, excluding
the weight of any filler materials, meets the statutory threshold."

The decision agreed with the ruling of Toledo's 6th District Court of
Appeals, which upheld Gonzales' conviction but sent the case back to
the trial court for resentencing. But in an unrelated case, Dayton's
2nd District Court of Appeals took the opposite position, setting up a
conflict for the Supreme Court to resolve.

Attorney General Mike DeWine's office had argued before the court that
no public laboratory in the state, including his own Bureau of
Criminal Investigation, specifically tests for the purity of cocaine
samples but rather for a "detectable" amount of the drug in the
overall mixture.

"They're doing that at their own peril," said Andy Mayle, Gonzales'
Fremont attorney. "If they want to pursue and put people in prison for
11 years, they're going to have to prove the case. If that requires
you to do testing, so be it."

Both he and Wood County Prosecutor Paul Dobson said the decision could
open the door to appeals of other cocaine sentences.

"What the Ohio Supreme Court did was use an entirely different
standard for cocaine than for any other drug offense, which is
ridiculous," Mr. Dobson said. "The clear legislative intent in the
opinion of myself and other prosecutors is that cocaine was intended
to be dealt with in the same way that all other drugs in the state of
Ohio are dealt with. The level of offense is based on the weight of
the mixture."

The problem in the law's wording came about when lawmakers set out to
align punishments for powder cocaine and crack cocaine.

The change was a reaction to arguments that the latter were too harsh
and more likely to affect minorities.

Mr. Dobson said he is examining his options, including asking
lawmakers to fix the law.

Gonzales was arrested after he purchased two kilograms of "cocaine"
for $58,000 from a police informant and undercover officer in a motel
room. He bought two bricks, one of which contained fake cocaine and a
tracking device. The other contained fake cocaine surrounding a
plastic bag of real cocaine.

The prosecution claimed, and subsequently a jury determined, that
Gonzales had purchased more than 100 grams of cocaine, or about 3.6
ounces, the threshold that resulted in the stiffer sentence.

Justice Lanzinger was joined by Justices Paul Pfeifer, William
O'Neill, and Sharon Kennedy in the majority.

Chief Justice Maureen O'Connor dissented, arguing lawmakers understood
that usable cocaine is a compound. She was joined by Justices Terrence
O'Donnell and Judith French.

"... because concentration levels vary considerably (but are almost
always less than 100 percent), the state must - in every case -
reverse engineer the compound or mixture of powder cocaine to separate
its parts and determine purity, even when the state has proved the
substance to be cocaine under the statutory definition," Chief Justice
O'Connor wrote.

"The court opinion would create an arbitrary purity distinction for
cocaine-possession offenses even though the clear intent of the
statute is to establish the appropriate penalty for cocaine possession
by the weight of the drug compound involved," she wrote.

Gonzales is at the Madison Correctional Institution, but it's unclear
when he might be released. After the 6th District ruling, he pleaded
guilty to a new indictment on an old felony corrupt activities
allegation that carried three years to be served after the 11-year
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