The police set up a buy of five ounces of crack, and when the deal goes down, they wind up with 130 grams of baking soda for their troubles. Can the seller be given an additional ten-year sentence as a major drug offender?

To the average person, that question might have a certain Alice in Wonderland quality about it, but it’s always been the law that one can be convicted of offering to sell drugs even when the “drugs” are bogus. (In fact, the Court ruled back in 1987 in State v. Mughni, 33 Ohio St. 3d 65, that offering to sell drugs which turned out to be fake and selling counterfeit substances under RC 2925.37(B) weren’t allied offenses: a defendant could be convicted of both.)  But in a case decided yesterday, the Supreme Court rules that some measurable quantity of an actual controlled substance has to be present in order to impose the MDO penalties.