Another look at Gonzalez
As a result of the blog and some other stuff, I've pretty much become the Answer Grape for criminal lawyers up here. It's rare that I'll go over to the Justice Center and not have somebody ask me a question like, "I had a client plead out to an MDO for cocaine a couple years back. Does Gonzalez affect that?" or "We're up for a sentencing on a mandatory bindover. Does Aalim mean we have to go back to juvy right away, or can we do the sentencing and then just send it back for the amenability hearing?" or "Does Creech mean I can keep out my client's prior DV?" or "Gee, Russ, didn't they have a suit in your size?" It's cool being regarded as an actual authority. At least, people now know that I'm not just another pretty face.
The Ohio Supreme Court came down with some major decisions at the end of last month. Although I wrote about each of them, I want to take a more extensive look. We'll start with State v. Gonzalez.
What it held: To prove the weight of cocaine, only the actual cocaine is considered. Fillers, cutters, whatever, are not. Keep in mind that this only applies to cocaine; it doesn't affect any other drug.
What it means: In order to convict you of possessing, say, 26 grams of cocaine (a second degree felony), the State has to prove you possessed 26 grams of 100% pure cocaine, or 52 grams of a mixture that's 50% cocaine.
Why this is a problem: There is presently not a single lab in Ohio with the capability of measuring the purity of cocaine.
Why this won't be a problem much longer. The problem can be resolved by amending the drug statutes to substitute "drug" for "cocaine." While, for defendants, the phrase, "Maybe the Ohio legislature will fix this" represents the seven most forlorn words in the English language, it doesn't work that way for the prosecution. I'll be very surprised if this hasn't happened by March.
The practical impact for now. You've got a case where your client's charged with MDO (Major Drug Offender) weight of cocaine -- more than a 100 grams. The State now has to prove the purity of the drug; if they can't, the crime defaults to a felony five, because that's the lowest level that doesn't require a particular weight.
While there isn't a state lab that can do purity tests, the FBI can, and there's certainly a possibility that the prosecutor can ship the drugs to the Feds to run a purity test. Whether that's going to happen, and how long it's going to take, depends on things like the power of the county prosecutor, and the weight of the drugs: the Feds might work themselves up into a lather to test a kilo of cocaine, but something like 15 grams is going to be moved to the end of the line, if the State submits it at all.
So what are your strategic options? One is to plead no contest, and if the State doesn't come up with a weight, your client walks away with a 5th degree felony. And keep in mind that guilt is determined at the time of the plea, not the time of the sentencing; if the State doesn't have proof of weight by the time of the plea, you're home free. Another is to use that to leverage a better plea deal.
The impact on past cases. But let's say that your client was convicted of an MDO four years ago. Obviously, there was no evidence of purity of the drug. That means there was no evidence of the actual weight of the drugs. Can Gonzalez be applied retroactively?
Hard to say. Generally, a case is applied retroactively if it announces a new rule of constitutional law, and Gonzelez certainly didn't do that. On the other hand, there's plenty of case law, dating back 30 years, which holds that if a judge sentenced a defendant to something outside the statutory boundaries, the sentence is void ab initio. Sentencing a defendant in this situation on something other than a 5th degree felony is definitely outside the statutory boundaries.
But what about a plea? The State might not have the evidence to prove that you murdered someone, but if you plead to it, it doesn't matter. Same thing here: if you plead guilty to a second degree felony cocaine possession charge where the amount is 25 grams, the State doesn't have to prove purity any more than they have to prove weight: you've just admitted that you had 25 grams of cocaine.