Maybe you woke up this morning wondering when you could appeal a juvenile judge's ruling sending your client off to adult court because he wasn't amenable to rehabilitation in the juvenile system. Or maybe your slumber was interrupted by the nagging question of whether a trial judge could, as a matter of policy, refuse to accept no contest pleas. Or perhaps you spent the night tossing and turning, perplexed, as am I, with the question of how the bulk dose of fentanyl is determined.
Well, Sparky, I've got good news. The Supreme Court provided an answer to those very questions last Friday.
Let's start with the last one, another notch on the belt of my dear friend, the diminutive John Martin. When I grow up, I hope to be just like him, although I'd prefer to be the size of normal people.
Anyone who's read a paper recently knows the scourge of opioid deaths in Ohio, in which fentanyl is increasingly the culprit. According to the unanimous opinion in State v. Pountney, "in the first two months of 2017, approximately 90 percent of unintentional overdose deaths in 25 Ohio counties involved fentanyl, fentanyl analogs or both."
For some drugs, the penalties are determined by the amount. Over 100 grams of cocaine gets you a first degree felony and a maximum sentence. For others, penalties are determined by how much of the "bulk amount" of the drug there is. That's what happens with fentanyl: five times the bulk amount is a second-degree felony, less than five times bulk is, in Pountney's case, a fifth degree felony.
So what's the bulk amount of fentanyl? That's where things get sketchy. If you're talking about a Schedule II drug, which fentanyl is, the bulk amount is "five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual." I'm getting sleepy just writing that, so let's cut to the chase: the court holds that since the reference manual didn't include a daily dose for fentanyl -- the State's expert extrapolated the dosage from that for morphine - a defendant couldn't be convicted of more than a fifth degree felony for possession of any amount of fentanyl.
The shelf life of this opinion can be measured in weeks. The court essentially says that if the legislature wants to specify the bulk amount of fentanyl, it can do so, and believe me, that just became Job One for the General Assembly.
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So your client, a juvenile, has just been bound over to adult court on a robbery case. That's not a mandatory bindover, which means the judge has to determine that he's not amenable to rehabilitation in the juvenile system. Your client's unresponsiveness to probation and other non-incarcerative options, as evidenced by his five prior juvenile cases, probably figured prominently in the judge's calculus.
Should you appeal anyway?
Don't bother, says the court in In re D.H.; you can't appeal that finding until the conclusion of the case in adult court.
Now, we could spend some time talking about what constitutes a final appealable order under RC 2305.02, and special proceedings, and other catchy legal phrases, but here's what I want to know: when is this A Thing? I can say with a straight fact that I've at least skimmed every criminal decision from the 8th District over the past decade, and I have never, ever seen a case involving the outcome of an amenability hearing.
Doesn't mean it's never happened; a quick search on my BFF Lexis did find one case out of the 6th District four years ago, and there may be a few more. But the 6th District decision provides one key to one reason such cases are rare: a judge's decision on the amenability is reviewed for abuse of discretion. If you're asking when you can appeal the amenability hearing, the better question might be, Why bother? Given that decision would obviously involve some credibility determinations, the chances of an appeals court throwing out a criminal conviction on this basis is about the same as Donald Trump giving up his Twitter account.
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Andrea Beasley was charged with possessing a fifth-degree felony amount of cocaine, discovered as the result of a traffic stop. As in 90% of drug cases, the key issue was the validity of the stop and search. She lost the motion to suppress, and she certainly can't beat the case at trial, so what's the next logical step? Sure: plead no contest, and take the search issue up to the court of appeals. (You can't plead guilty, because that waives your right to appeal the suppression issue.)
One problem: the judge had a policy of refusing to accept no contest pleas. Beasley had to plead guilty. She appealed that to the 1st District, which held that while the judge's policy was wrong, Beasley waived the issue by pleading guilty.
In State v. Beasley, the opinion begins by declaring that it's a case of first impression for the court. Maybe for the court, but certainly not for the appellate courts. In fact, the 2nd District struck down the same policy in a 1997 decision. The 10th District reversed a judge's policy of not accepting Alford pleas, and the 8th District twice reversed a judge for his policy of not accepting pleas on the date set for trial.
The key is that while the judge has discretion to refuse a particular plea offer, a blanket policy which does not consider the individual factors in a case is an abuse of that discretion. (Some of the other cases hold that it constitutes a failure to exercise discretion. You say tomahto, I say tomayto.) The court made short shrift of the 1st District's waiver argument: it was ridiculous to insist that, to preserve the error, Beasley had to enter a plea that the judge wouldn't accept.
So how far does this take us? Some common pleas judges here have a policy of not accepting pleas to misdemeanors. I think you could make a pretty good case that that's a violation of Beasley, too. If you want to pursue that argument, there's a great 1983 decision out of the 9th Circuit, US v. Miller. It involves the issue of a judge's policy of refusing pleas to single counts in multi-count indictments, but it discusses at length how that impermissibly encroaches upon the prosecutorial independence. Same thing here. The prosecutor knows much more about his case than the judge: if he feels a misdemeanor is warranted, that should be allowed.
Anyway, now you can sleep easier tonight.