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In the
Supreme Court of Ohio STATE OF OHIO, Appellee, v. KENNY PENDLETON,
Appellant.
: : : : : : : : : :
Case No. 2018-1348 On appeal from the Clark County Court of Appeals, Second Appellate District Court of Appeals Case Nos. 2107-CA-9 and 2017-CA-17.
BRIEF OF AMICUS CURIAE OHIO ATTORNEY GENERAL DAVE YOST IN SUPPORT OF APPELLEE STATE OF OHIO
SAMUEL H. SHAMANSKY* (0030772) *Counsel of Record DONALD L. REGENSBURGER (0086958) COLIN E. PETERS (0089768) 523 South Third Street Columbus, Ohio 43215 614-242-3939 614-242-3999 fax [email protected]
Counsel for Appellant, Kenny Pendleton DANIEL P. DRISCOLL (0074787) Clark County Prosecuting Attorney JOHN M. LINTZ * (0097715) *Counsel of Record Assistant Prosecuting Attorney 50 East Columbia Street Suite 449 Springfield, OH 45502 937-521-1770
DAVE YOST (0056290) Ohio Attorney General
BENJAMIN M. FLOWERS* (0095284) State Solicitor *Counsel of Record SAMUEL C. PETERSON(0081432) Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980; 614-466-5087 fax [email protected]
Counsel for Amicus Curiae, Ohio Attorney General Dave Yost
Supreme Court of Ohio Clerk of Court - Filed May 06, 2019 - Case No. 2018-1348
TABLE OF CONTENTS
Page TABLE OF CONTENTS ............................................................................................................... i
TABLE OF AUTHORITIES ...................................................... Error! Bookmark not defined.
INTRODUCTION .........................................................................................................................1
STATEMENT OF AMICUS INTEREST .....................................................................................4
STATEMENT OF THE FACTS AND CASE ..............................................................................4
ARGUMENT ..................................................................................................................................8
Amicus Curiae Ohio Attorney General’s Proposition of Law: ..................................8
A. The Double Jeopardy Clause permits the imposition of multiple punishments for a single offense in a single trial. ...................................................9
B. Pendleton’s convictions are for separate “offenses” under Blockburger. ...........................................................................................................13
C. Pendleton’s convictions and sentences are constitutional without regard to Blockburger, because the multiple punishments accord with state law. 19
1. R.C. 2941.25 generally permits multiple punishments. ........ 19
2. Pendleton’s conviction is valid under any potential interpretation of R.C. 2941.25. .................................................. 25
a. The Court should adopt the test that Justice French proposed in Ruff, under which Pendleton’s sentence is constitutional. ............................................................................. 26
b. Pendleton’s sentence is equally constitutional under the Ruff majority’s approach. ................................................... 31
CONCLUSION ............................................................................................................................33
CERTIFICATE OF SERVICE .......................................................................................................1
i
TABLE OF AUTHORITIES
Page(s)
Cases
Albernaz v. United States, 450 U.S. 333 (1981) .................................................................................................................10
Blockburger v. United States, 284 U.S. 299 (1932) ......................................................................................................... passim
City of Girard v. Giordano, __ Ohio St. 3d __, 2018-Ohio-5024 ........................................................................................9
City of Newark v. Vazirani, 48 Ohio St. 3d 81 (1990) ........................................................................................................22
Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994) ...................................................................................................................9
United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943) ...................................................................................................................9
McQuiggin v. Perkins, 569 U.S. 383 (2013) .................................................................................................................21
Missouri v. Hunter, 459 U.S. 359 (1983) ......................................................................................................... passim
Schmuck v. United States, 489 U.S. 705 (1989) .................................................................................................................30
State v. Adams, 103 Ohio St. 3d 508, 2004-Ohio-5845 ..................................................................................23
State v. Best, 42 Ohio St. 2d 530 ..................................................................................................................16
State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569 ..................................................................................30
ii
State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625 ..................................................................20, 23, 28, 29
State v. Childs, 88 Ohio St. 3d 558 (2000) ......................................................................................................23
State v. Cox, 2003-Ohio-1935 (4th Dist.) ...................................................................................................28
State v. Delfino, 22 Ohio St. 3d 270 (1986) ......................................................................................................15
State v. Donald, 57 Ohio St. 2d 73 (1979) ........................................................................................................22
State v. Fears, 86 Ohio St. 3d 329 (1999) ......................................................................................................23
State v. Gonzales, 150 Ohio St. 3d 276, 2017-Ohio-777 ................................................................................1, 17
State v. Harris, 122 Ohio St. 3d 373, 2009-Ohio-3323 ..................................................................................29
State v. Headley, 6 Ohio St. 3d 475 (1983) ........................................................................................................14
State v. Hendrickson, 2003-Ohio-611 (2nd Dist.) ....................................................................................................28
State v. Jackson, 134 Ohio St. 3d 184, 2012-Ohio-5561 ..................................................................................14
State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-1061 .......................................................................... passim
State v. Johnson, 2018-Ohio-3999 (8th Dist.) ...................................................................................................27
State v. Logan, 60 Ohio St. 2d 126 (1979) ......................................................................................................22
iii
State v. Moss, 69 Ohio St. 2d 515 ..............................................................................................................2, 10
State v. Mutter, 150 Ohio St. 3d 429, 2017-Ohio-2928 ..............................................................................9, 16
State v. Pendleton, 2018-Ohio-4962 ........................................................................................................................7
State v. Rance, 85 Ohio St. 3d 632 (1999) .............................................................................................. passim
State v. Roberson, 2018-Ohio-1955 (6th Dist.) ...................................................................................................27
State v. Rose, 89 Ohio St. 383 (1914) ............................................................................................................21
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995 ............................................................................ passim
State v. Ruff, 2013-Ohio-3234 (1st Dist.) ....................................................................................................26
State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982 ..................................................................................24
State v. Winn, 121 Ohio St. 3d 413, 2009-Ohio-1059 ..................................................................................29
Texas v. Cobb, 532 U.S. 162 (2001) .................................................................................................................16
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849 ............................................................................26, 29
Whalen v. United States, 445 U.S. 684 (1980) ...........................................................................................................10, 11
Willoughby Hills Dev. & Distrib. v. Testa, __ Ohio St. 3d __, 2018-Ohio-4488 (2018) (per curiam) ....................................................21
iv
Statutes and Constitutional Provisions
Ohio Const., art. I, § 10 .................................................................................................................9
R.C. 109.02 ......................................................................................................................................4
R.C. 2841.25 ..................................................................................................................................21
R.C. 2925.03 .......................................................................................................................... passim
R.C. 2941.25 .......................................................................................................................... passim
U.S. Const., Fifth Amendment .......................................................................................... passim
U.S. Const., Fourteenth Amendment .........................................................................................9
Other Authorities
American Heritage Dictionary of the English Language (1969) ..........................................20
Catherine Candisky, Fentanyl drives Ohio’s overdose deaths to record, COLUMBUS DISPATCH, Sept. 23, 2018, available at https://perma.cc/6JWD-T3HM ......................................................................................................................................32
Catherine Candisky, Ohio daily drug death toll of 14 second highest rate in US, COLUMBUS DISPATCH, Nov. 30, 2018, available at https://perma.cc/J6BK-ESZJ .....................................................................................................................................3, 31
Disease Control and Prevention, Synthetic Opioid Overdose Data, available at https://perma.cc/RX49-6R64 ................................................................................................31
2011-2016, 68 NATIONAL VITAL STATISTICS REPORTS, No. 3 (Mar. 21, 2019), available at https://perma.cc/PCW8-R6KW ........................................................................32
Scott Higham, Sari Horwitz, and Katie Zezima, Obama officials failed to focus as fentanyl burned its way across America, WASHINGTON POST, Mar. 13, 2019, available at https://perma.cc/8VAS-LBCL ...........................................................32
Webster’s Second New World Dictionary (1972) .............................................................20, 21
v
INTRODUCTION
Police arrested Kenny Pendleton for trafficking in heroin and fentanyl. They
found the drugs comingled in packages at his residence. When dealers comingle drugs
with another substance, it is often impossible for police to tell how much of each a deal-
er has. Ohio law accounts for this by allowing prosecutors to charge dealers with traf-
ficking in the combined weight of drugs comingled with something else. See State v.
Gonzales, 150 Ohio St. 3d 276, 2017-Ohio-777 ¶ 18. It is therefore undisputed that Pend-
leton could have been charged under R.C. 2925.03(C)(6) with trafficking 150 grams of
heroin, if he comingled the heroin with something else (baking soda, for example) and
if the combination weighed 150 grams. It is similarly undisputed that he could have
been charged under R.C. 2925.03(C)(1) with trafficking 150 grams of fentanyl if he
comingled the drug with something else, and the entire package weighed 150 grams.
This case presents the question whether the Double Jeopardy Clause prevented the
State from punishing Pendleton for both crimes simply because he happened to
comingle the heroin with the fentanyl. In other words, can drug dealers avoid the con-
sequences of dealing in two drugs by combining those drugs in a single mixture?
The answer is “no,” for two reasons. The first is that the Double Jeopardy Clause
forbids multiple punishments only for a single “offense.” And two crimes qualify as
different offenses if each “requires proof of a fact which the other does not.” Blockburger
v. United States, 284 U.S. 299, 304 (1932). Under this definition, the two crimes that
Pendleton committed are different offenses: R.C. 2925.03(C)(6) required proof that
Pendleton trafficked in heroin, while R.C. 2925.03(C)(1) required the State to prove that
Pendleton trafficked in a drug other than heroin. Thus, each statute sets forth a different
offense, and the State could prosecute both without violating the Double Jeopardy
Clause.
Pendleton’s claims fail for a second reason: in the context of “cumulative sen-
tences imposed in a single trial, the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment than the legislature intend-
ed.” Missouri v. Hunter, 459 U.S. 359, 366 (1983); accord State v. Moss, 69 Ohio St. 2d 515
syl. ¶ 1 (1982). In other words, if the legislature permitted the imposition of multiple
sentences, the trial court could not have violated the Double Jeopardy Clause by impos-
ing them. Here, nothing in Pendleton’s statute of conviction bars multiple punish-
ments. And another statute, R.C. 2941.25, expressly permits multiple sentences for
crimes except for “allied offenses of similar import.” R.C. 2941.25(A). The Court’s in-
terpretations of this language have shifted over the years. As interpreted in State v.
Rance, 85 Ohio St. 3d 632 (1999), R.C. 2941.25 effectively incorporated the Blockburger
test, allowing multiple punishments except in cases where the two crimes “correspond
to such a degree that the commission of one crime will result in the commission of the
other.” Id. at 636 (internal quotation marks omitted). The Court has since overruled
Rance. And though the Court should return to the Rance approach, it need not do so to
2
affirm here. Under now-binding precedent, R.C. 2941.25 permits separate sentences for
two crimes whenever “each offense cause[s] separate, identifiable harm.” State v. Ruff,
143 Ohio St. 3d 114, 2015-Ohio-995 ¶ 25. Since the sale of fentanyl causes harm over
and above even the sale of heroin, Pendleton’s two crimes are not “allied offenses of
similar import.”
It should not be lost in all this doctrine-talk what is really at stake here: the
State’s ability adequately to combat the deadly opioid epidemic. Those who traffic her-
oin and fentanyl have done immeasurable harm to Ohioans and their families. That is
especially true of fentanyl, owing to its incredible lethality (it is 50-times more potent
than heroin) and its growing availability. In Ohio alone, fentanyl caused the death of
3,431 people in 2017. Catherine Candisky, Ohio daily drug death toll of 14 second highest
rate in US, COLUMBUS DISPATCH, Nov. 30, 2018, available at https://perma.cc/J6BK-ESZJ.
If the State cannot impose multiple punishments for the sale of multiple opioids, it can-
not adequately deter dealers from pursuing these potentially lucrative deals.
Kenny Pendleton did his part to fuel the opioid plague by trafficking in heroin
and fentanyl. He should not be allowed to avoid the consequences of both offenses
simply because he happened to comingle the drugs together, instead of comingling
them with some other substance.
3
STATEMENT OF AMICUS INTEREST
The Attorney General is Ohio’s chief law enforcement officer and “shall appear
for the state in the trial and argument of all civil and criminal causes in the supreme
court in which the state is directly or indirectly interested.” R.C. 109.02. The State is di-
rectly interested here. Ohio has suffered greatly from the opioid epidemic and much of
that suffering has been caused by synthetic opioids like fentanyl. The Attorney General
has an interest in combating that epidemic by ensuring that the State’s drug trafficking
laws are appropriately enforced and that drug traffickers are appropriately sentenced.
STATEMENT OF THE FACTS AND CASE
1. The Springfield Police Department investigated Kenny Pendleton because
they suspected him of trafficking in drugs. Tr. 424–25. They arrested him when their
suspicions proved right. Tr. 129–30, 132. On the day of Pendleton’s arrest, officers
searched a residence located at 803 Farlow Street. Tr. 147. The search turned up evi-
dence showing that drug traffickers were using the home to run their trafficking opera-
tion. Tr. 375. For example, police found a box containing a large quantity of drugs, Tr.
210–16, including four drug-filled bags. The first of these bags weighed 49.67 grams
and contained heroin, fentanyl, and cocaine. Tr. 326–28. Two other bags—one weigh-
ing 83.17 grams and the other 0.78 grams—contained heroin and fentanyl. Tr. 327–28,
332. The final bag contained cocaine only. Tr. 330. The traffickers hid, alongside their
4
wares, two handguns, ammunition, two ammunition magazines, and a digital scale. Tr.
148–49, 206–16.
Elsewhere in the house, police officers discovered other evidence further linking
the house to drug trafficking. See Tr. 375–79. For example, they found a hand mixer
and a Pyrex measuring cup, both of which tested positive for cocaine residue. Tr. 298–
302, 337, 341. On a coffee table, they found another cocaine-filled bag, Tr. 263, 335–36,
and two digital scales containing drug residue. Tr. 206–07, 253, 263, 333–34. Trial tes-
timony established that traffickers often use measuring cups and mixers to blend or cut
drugs, and scales to repackage their drugs for sale. Tr. 252, 299–302, 375–78.
Police linked the home to Pendleton through a great deal of circumstantial evi-
dence. They found photos of Pendleton’s children in the room where they found the
drugs and guns. Tr. 209–12. In that same room, police found copies of Pendleton’s
medical records and a pill bottle bearing his name. Tr. 155. Video footage also linked
him to the home: among other things, that footage showed Pendleton letting dogs out
at approximately 8:30 in the morning while wearing boxer shorts. Tr. 390.
Police charged Pendleton with one count of trafficking in heroin, one count of
possession of heroin, one count of trafficking in drugs (specifically fentanyl), and one
count of possessing drugs (also involving fentanyl). Because Pendleton had comingled
his heroin and fentanyl, the State did not know how much of each he possessed. So it
5
separately charged Pendleton with possessing both fentanyl and cocaine in an amount
equal to the full weight of the comingled bag.
A jury convicted Pendleton on all four counts. Tr. 562–68. The trial court
merged the counts for trafficking fentanyl and possessing fentanyl—in other words, it
determined that these counts rested on a single “offense” that could be punished only
once. The court similarly merged the counts for trafficking heroin and possessing hero-
in. Jan. 26, 2017, Tr. 4. The prosecution chose to go to sentencing on the trafficking
counts alone. There, the trial court sentenced Pendleton to 11 years for trafficking in
heroin and 8 years for trafficking in fentanyl. Jan. 26, 2017, Tr. 11.
2. Pendleton appealed. He challenged, among other things, the trial court’s re-
fusal to merge his conviction for trafficking in heroin with his conviction for trafficking
in fentanyl. Pendleton’s argument rested on the fact that the State had supported the
two trafficking convictions by their combined weight. (Recall that the drugs had been
comingled.) And he argued that, because the same weight of drugs supported both
convictions, the trial court’s refusal to merge his convictions violated the Double Jeop-
ardy Clause of the United States Constitution. See App. Op. ¶ 27. He raised no claim
for relief under the Ohio Constitution.
The Second District rejected Pendleton’s argument and affirmed the lower court.
App. Op. ¶ 32. It recognized that the Double Jeopardy Clause requires courts to
“merge” convictions only when independently punishing the offender for both crimes
6
would be contrary to the legislature’s intent. App. Op. ¶ 28. The Second District con-
cluded that the legislature did not intend to preclude independent punishment for of-
fenders like Pendleton. In reaching this conclusion, it relied in particular on the fact
that each conviction required “proof of different facts under a different subsection” of
R.C. 2925.03. App. Op. ¶ 30. This suggested that the legislature intended to treat traf-
ficking different types of drugs as different offenses. App. Op. ¶ 32. The Second Dis-
trict expressed some reservation about its conclusion. It nonetheless rejected Pend-
leton’s argument, noting “the absence of a clear statutory mandate,” or “any authority
in the federal constitution or the Ohio Constitution,” supporting his argument. App.
Op. ¶ 59.
Judge Froelich dissented in relevant part. He emphasized that prosecutors used
the same evidence to satisfy the weight element of Pendleton’s heroin- and fentanyl-
trafficking convictions. This, he said, required the convictions’ merger. App. Op.
¶¶ 71–73.
3. Pendleton appealed to this Court, which accepted his first Proposition of Law
for review. State v. Pendleton, 2018-Ohio-4962.
7
ARGUMENT
Amicus Curiae Ohio Attorney General’s Proposition of Law:
Trafficking in heroin and fentanyl are different offenses, and could be punished separately without violating the Double Jeopardy Clause even if they were not.
This case presents the question whether Ohio violated the Double Jeopardy
Clause by punishing Pendleton for two offenses stemming from the same act. For two
reasons, the answer is “no.”
First, States run afoul of the Double Jeopardy Clause only when they punish
someone twice for the same “offense.” But Pendleton’s heroin- and drug-trafficking
charges are different “offenses” under the Double Jeopardy Clause, because each re-
quired proof of an element unrelated to the other. Because the Clause allows States to
separately punish separate offenses, it has no bearing on Pendleton’s suit.
Second, the Double Jeopardy Clause permits States to impose multiple punish-
ments in a single trial as long as the State’s laws permit multiple punishments. Here,
the lower court imposed Pendleton’s punishments in a single trial, and did so in full ac-
cord with Ohio law.
This brief addresses these reasons for affirmance below, in parts B and C. But
first, it is important to understand the Double Jeopardy Clause and the cases interpret-
ing it. That is the focus of part A.
8
A. The Double Jeopardy Clause permits the imposition of multiple punishments for a single offense in a single trial.
The Fifth Amendment’s Double Jeopardy Clause—which applies to the States
through its incorporation into the Fourteenth Amendment—states that no person shall
be “twice put in jeopardy of life or limb” “for the same offen[s]e.” U.S. Const. amend.
V. The Ohio Constitution contains a similar provision: “No person shall be twice put in
jeopardy for the same offense.” Ohio Const., art. I, § 10. This Court has held that the
two clauses are coextensive. See City of Girard v. Giordano, __ Ohio St. 3d __, 2018-Ohio-
5024 ¶ 6; see also State v. Mutter, 150 Ohio St. 3d 429, 2017-Ohio-2928 ¶ 2. At least for
purposes of this case, it has no reason to revisit that conclusion. Pendleton did not raise
a state constitutional claim in the court below and, although his Proposition of Law ref-
erences the Ohio Constitution, he has offered no argument that the Court should depart
from its past precedent. This Court has declined to reconsider whether the Double
Jeopardy Clauses of the Ohio and U.S. Constitutions are coextensive when the parties
fail to argue otherwise. See City of Girard, 2018-Ohio-5024 ¶ 6. It should do the same
here, or ask for additional briefing if it wishes to reconsider the matter.
The Clause prohibits putting someone in “jeopardy” twice. As originally under-
stood, this bars successive prosecutions, not successive punishments. See Dep’t of Revenue
of Montana v. Ranch, 511 U.S. 767, 798 (1994) (Scalia, J., dissenting); United States ex rel.
Marcus v. Hess, 317 U.S. 537, 555 (1943) (Frankfurter, J., concurring). But the Supreme
Courts of Ohio and the United States long ago moved beyond the Clause’s original pub-
9
lic meaning. Today, the Clause forbids, among other things, “‘multiple punishments
for the same offense.’” State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995 ¶ 10 (quoting
North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
This “prohibition” ends up prohibiting very little—at least in cases, like this one,
where one court imposes the allegedly duplicative punishments in a single trial. That is
because the legislature gets to decide which punishments are appropriate for any given
offense. See Whalen v. United States, 445 U.S. 684, 689 (1980). If the legislature decides
that an “offense” is to be punished with cumulative sentences, it may require such sen-
tences without running afoul of the Double Jeopardy Clause. Thus, when it comes to
“cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). In this Court’s
words, “appellate review” in the multiple-punishment context “is limited to ensuring
that the trial court did not exceed the sentencing authority which the General Assem-
bly” has permitted the judiciary. State v. Moss, 69 Ohio St. 2d 515 syl. ¶ 1 (1982).
This means that, in the multiple-punishment context, the Double Jeopardy
Clause collapses into a question of statutory interpretation. After all, if “the question of
what punishments are constitutionally permissible is not different from the question of
what punishments the Legislative Branch intended to be imposed,” then the Clause has
little work to do. Albernaz v. United States, 450 U.S. 333, 344 (1981). There is even a good
10
argument that the question ceases to be constitutional altogether. As then-Associate
Justice Rehnquist put it, “if the only question confronting” a court “is whether” the leg-
islature “intended to authorize cumulative punishments,” then the court “need decide
no constitutional question whatsoever.” Whalen, 445 U.S. at 702 (Rehnquist, J., concur-
ring in part and dissenting in part).
Regarding the question of what the legislature intended, courts presume that leg-
islatures do not wish to impose cumulative punishments for a single “offense.” Hunter,
459 U.S. at 366–67. The government can rebut that presumption, however, with clear
evidence to the contrary. Id. at 367. The interpretive task thus boils down to two steps.
First, is the State imposing multiple punishments for the same “offense”? Second, has
the legislature permitted cumulative punishments? The Double Jeopardy Clause pro-
hibits multiple punishments in a single trial only if the answer to the first question is
“yes” and the answer to the second is “no.”
At the first step, courts define the relevant “offense” using the Blockburger test.
That test provides “that where the same act or transaction constitutes a violation of two
distinct statutory provisions,” the two violations are different “offenses” as long as
“each provision requires proof of a fact which the other does not.” Blockburger v. United
States, 284 U.S. 299, 304 (1931).
Blockburger’s facts help illustrate its application. That case, like this case, in-
volved violations of certain criminal statutes that restricted the sale of drugs. See id. at
11
301. The defendant had been convicted of, among other things, selling morphine that
was not in its original packaging, and selling morphine without a written order from
the purchaser. Id. Those two offenses were based on the same sale, however, and in-
volved the same quantity and weight of morphine. Id. The defendant argued that the
sentencing court violated the Double Jeopardy Clause by counting the same morphine
twice—once for each separate conviction. The U.S. Supreme Court disagreed. It deter-
mined that because the proof required for each crime was different, the defendant could
be convicted and sentenced for both offenses, not just one. Id. at 304. In other words,
the two crimes constituted difference “offenses.”
The Blockburger test, however, is just a guide to statutory interpretation in cumu-
lative-punishment cases—it creates a presumption that the legislature did not intend to
permit multiple punishments. The government can rebut that presumption at the sec-
ond step with evidence that the legislature really did want to permit the imposition of
multiple punishments for a single Blockburger “offense.” For example, even though
Hunter involved Missouri state-law crimes that were the same “offense” under Block-
burger, the U.S. Supreme Court found no Double Jeopardy problem because the Mis-
souri legislature had authorized cumulative punishments. 459 U.S. at 368–69.
Pendleton’s convictions fail at both steps: his two crimes are separate offenses,
and the General Assembly has permitted separate punishments for each.
12
B. Pendleton’s convictions are for separate “offenses” under Blockburger.
1. Pendleton’s Double Jeopardy claim fails because his heroin- and drug-
trafficking convictions qualify as two separate offenses. Both crimes are codified at R.C.
2925.03. Subsection (A) makes it illegal “knowingly” to: (1) “Sell or offer to sell a con-
trolled substance or a controlled substance analog,” or (2) “Prepare for shipment, ship,
transport, deliver, prepare for distribution, or distribute a controlled substance or a con-
trolled substance analog, when the offender knows or has reasonable cause to believe
that the controlled substance or a controlled substance analog is intended for sale or re-
sale . . . .” R.C. 2925.03(A)(1)–(2).
Everyone who violates the broad prohibitions in subsection (A) is guilty of a par-
ticular crime set forth in Subsection (C). The latter provision individually identifies the
various drug crimes covered by subsection (A), and sets forth the additional elements
that the prosecution must prove—many of which depend on the type and quantity of
drugs being trafficked. Take, for example, subsection (C)(6). At the time Pendleton
committed his crimes, that provision defined “trafficking in heroin” to include a viola-
tion of subsection (A) committed with “heroin or a compound, mixture, preparation, or
substance containing heroin.” Or consider subsection (C)(1), which defined “aggravat-
ed drug trafficking” to include a violation of subsection (A) committed with “any com-
pound, mixture, preparation, or substance included in schedule I or schedule II, with
the exception of marihuana, cocaine, L.S.D., heroin, hashish, and controlled substance
13
analogs.” It then specified additional factors (such as the location where the offense oc-
curred, or the weight of the drugs) that dictated the degree of the offense. R.C.
2925.03(C)(1)(a)–(f) (Sept. 29, 2015). (When Pendleton committed his crimes, R.C.
2925.03 did not directly prohibit the sale of fentanyl. It instead fell under the catch-all
provision restricting the sale of schedule I and II drugs in (C)(1). The General Assembly
has since amended the statute to add fentanyl-specific prohibitions.)
R.C. 2925.03 thus “sets forth more than one criminal offense with the identity of
each [offense] being determined by the type of controlled substance involved.” State v.
Headley, 6 Ohio St. 3d 475, 479 (1983). Each crime defined in Subsection (C) is a separate
crime, and the specific drug involved is a separate element of each. Id.; see also State v.
Jackson, 134 Ohio St. 3d 184, 2012-Ohio-5561 syl. (holding that an indictment need not
identify a specific controlled substance but may simply reference the schedule on which
the substance appears). Thus, the relevant comparison for purpose of Blockburger is not
between the generic elements of drug trafficking found in R.C. 2925.03(A), but between
the additional elements of the specific offenses under R.C. 2925.03(C). And since the
trial court sentenced Pendleton under R.C. 2925.03(C)(1) for trafficking a schedule I or
schedule II drug (namely, fentanyl), and under (C)(6) for trafficking heroin, the question
is whether the crimes defined in those subsections are separate “offenses” for purposes
of the Double Jeopardy Clause.
14
They are. Each offense contains an element that the other does not. Trafficking
in heroin requires proof that a defendant prepared for sale, sold, or offered to sell heroin.
But it does not require proof that a defendant prepared for sale, sold, or offered to sell
any other schedule I or II drugs. See R.C. 2925.03(C)(6) (Sept. 29, 2015). The opposite is
true with respect to trafficking in drugs under R.C. 2925.03(C)(1). That provision re-
quired proof that a defendant prepared for sale, sold, or offered to sell a schedule I or
schedule II drug other than heroin. R.C. 2925.03(C)(1) (Sept. 29, 2015). Thus, under
Blockburger, trafficking in drugs and trafficking in heroin were (and are) separate of-
fenses for purposes of the Double Jeopardy Clause: each required proof of a factual el-
ement that the other does not. Cf. State v. Delfino, 22 Ohio St. 3d 270, 272–74 (1986) (ap-
plying Blockburger and finding that “the legislature intended that the simultaneous pos-
session of certain drugs can constitute separate offenses”). Since that Clause permitted
the government to impose “cumulative punishments” based on “conviction[s] for two
offenses that are not the ‘same’ under Blockburger,” Hunter, 459 U.S. at 367, Pendleton
has no Double Jeopardy argument.
b. Pendleton’s only argument is that his convictions stem from the same offense
because both rested on the combined weight of the comingled drugs. See Pendleton Br.
15. He offers little in the way of support for this position. He makes no mention of
Blockburger, for example. Indeed, Pendleton’s argument in this case is in many ways a
direct attack on Blockburger, even though he never cites the decision. In Blockburger, as
15
in this case, a single quantity of drugs supported two of the defendant’s convictions.
The Court held that the two crimes were separate “offenses” for Double Jeopardy pur-
poses, since each required proof of a fact the other did not. Blockburger, 284 U.S. at 304.
Applying that logic here, Pendleton’s two convictions resting on the same quantity of
drugs are separate “offenses” that can be separately punished without violating the
Double Jeopardy Clause.
As this suggests, Pendleton is effectively asking the Court to hold that the Dou-
ble Jeopardy clause bars multiple sentences when two convictions share a single ele-
ment. If this Court were to agree with Pendleton, it would upend decades of settled
law, and open the courthouse doors to Double Jeopardy challenges in every case in-
volving multiple offenses that share a single element. Binding precedent establishes—
and has established since the early 20th century—that crimes constitute the same “of-
fense” for Double Jeopardy purposes only if neither crime requires “proof of a fact
which the other does not.” Blockburger, 296 U.S. at 304; accord State v. Mutter, 150 Ohio
St. 3d 429, 2017-Ohio-2928 ¶ 17; Texas v. Cobb, 532 U.S. 162, 173 (2001); State v. Best, 42
Ohio St. 2d 530, 531 syl. ¶ 3 (1975). Pendleton does not cite a single case supporting his
argument that two crimes may constitute a single “offense” if they share a single ele-
ment. That is because there are none.
The closest Pendleton comes to supporting his argument is his appeal to fairness.
According to him, the legislature “clearly” did not intend to permit the combined
16
weight of two drugs to count toward the sentences of both drugs. Pendleton Br. 15. As
an initial matter, what the legislature might have subjectively intended, as opposed to
the laws that it passed, has no bearing on whether two crimes constitute a single offense
under Blockburger. And Pendleton’s argument—that the quantity of drugs involved
should have been counted only once—raises questions about how to interpret R.C.
2925.03, his statute of conviction. It has nothing to do with the Double Jeopardy Clause.
Anyway, Pendleton is not even right about the meaning of R.C. 2925.03, which
does permit the use of a compound mixture’s combined weight to support two offenses.
When it prohibited drug trafficking in R.C. 2925.03, the General Assembly restricted the
sale of any “compound, mixture, preparation, or substance” containing that drug. See
generally R.C. 2925.03(C) (defining the degree of drug offenses based on weight of the
drug trafficked). This Court has interpreted that language as including in the measura-
ble weight anything that is mixed with a drug. See State v. Gonzales, 150 Ohio St. 3d 276,
2017-Ohio-777 ¶ 18. In other words, for purposes of R.C. 2925.03(C), the relevant
amount of a drug “encompasses the whole compound or preparation of [that drug], in-
cluding fillers that are part of the usable drug.” Id. at ¶ 9. A straightforward applica-
tion of Gonzales therefore supports the decision below. The best indication of what the
legislature “clearly” intended is the text it enacted. And that text supports the imposi-
tion of multiple sentences against Pendleton.
17
R.C. 2925.03(C)’s statement that a defendant who violates R.C. 2925.03(A) is
“guilty of one of the following” offenses does not change the analysis. Contra Pendleton
Br. 15. Recall from above how R.C. 2925.03 works: subsection (A) prohibits several
drug-related acts, while subsection (C) specifies the precise crimes that the perpetrator
of those drug-related acts is guilty of committing. See above at 13–14. Thus, someone
who violates subsection (A) is necessarily “guilty of one of the” crimes listed in subsec-
tion (C). This does not, however, mean that he is guilty of only one crime. To the con-
trary, subsection (C) lists numerous independent ways to violate R.C. 2925.03, thus show-
ing that a defendant violates the statute with every drug that he traffics. No one would
seriously contend that someone who sells fentanyl and heroin in separate packages
commits a single crime under R.C. 2925.03. And if that is true, the phrase “guilty of one
of the following” does not mean the defendant can be found guilty of only one R.C.
2925.03(C) crime.
Finally, Pendleton would not be entitled to the relief he seeks—merger of his sen-
tences—even if the lower courts violated the Double Jeopardy Clause by using the
combined weight of the drugs to support both convictions. The weight of drugs a de-
fendant possessed matters only with respect to the degree of an offense; it does not bear
on whether the defendant committed an offense in the first place. See, e.g., R.C.
2925.03(C)(6) (listing drug weights associated with different degrees of heroin traffick-
ing). Thus, the proper remedy for any Double Jeopardy violation would be to consider
18
the total weight when considering the degree of one of his offenses, while excluding it
when calculating the degree of his other offense. Pendleton would remain eligible for
multiple sentences, since he still trafficked in multiple drugs. He would be entitled only
to a recalculation of the sentences for those violations.
C. Pendleton’s convictions and sentences are constitutional without regard to Blockburger, because the multiple punishments accord with state law.
Pendleton’s claim fails for a second reason: R.C. 2941.25—the statute that ex-
pressly provides for the circumstances in which courts may impose cumulative sen-
tences—permits Pendleton’s sentence. This Court’s precedents have never taken a con-
sistent approach to interpreting R.C. 2941.25. The statute is best read to allow multiple
sentences in all cases except those where “the elements” of one offense “‘correspond to
such a degree that the commission of one offense will result in the commission of the
other.’” Ruff, 143 Ohio St. 3d 114 ¶ 39 (French, J., concurring in the judgment) (quoting
State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982 ¶ 13). The Court should adopt
this reading and overturn all contrary precedent. See below Part C.1. But it should af-
firm the Second District even if it decides not to do that, because Pendleton’s convic-
tions and sentences are valid even under now-binding precedent. See below Part C.2.
1. R.C. 2941.25 generally permits multiple punishments.
a. The General Assembly enacted R.C. 2941.25 to spell out the circumstances in
which courts may impose cumulative sentences. It says:
19
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convict-ed of only one. (B) Where the defendant’s conduct constitutes two or more offenses of dis-similar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offens-es, and the defendant may be convicted of all of them. The threshold question with respect to any application of R.C. 2941.25 is how to
define and compare offenses for purposes of the statute. What is the difference between
“allied offenses of similar import” and “offenses of dissimilar import”?
Begin with the meaning of “allied offenses.” “Allied” offenses are “closely relat-
ed” offenses, Webster’s Second New World Dictionary 37 (1972)—offenses of a “similar
nature,” The American Heritage Dictionary of the English Language 35 (1969). There
are at least two ways to assess the closeness of the relationship: in the abstract or on the
ground. The abstract inquiry asks whether the elements of two offenses “are so similar
that the commission of one offense will necessarily result in the commission of the oth-
er.” State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625 syl. ¶ 1. The on-the-ground in-
quiry asks whether the two offenses “arise out of the same criminal conduct.” State v.
Johnson, 128 Ohio St. 3d 153, 2010-Ohio-1061 ¶ 64.
The first is the better reading of this admittedly ambiguous phrase. The General
Assembly passed R.C. 2941.25 after decades of cases defining “offense,” for Double
Jeopardy purposes, with reference to their elements in the abstract. See, e.g., Blockburger,
20
284 U.S. at 299; State v. Rose, 89 Ohio St. 383, 386 (1914). Since legislatures pass laws
“against the backdrop of existing law,” McQuiggin v. Perkins, 569 U.S. 383, 398 n.3
(2013), it is fair to assume that the General Assembly would have been much clearer if it
had intended to depart from the well-established meaning of “offense” in the Double
Jeopardy context. Cf. Willoughby Hills Dev. & Distrib. v. Testa, __ Ohio St. 3d __, 2018-
Ohio-4488 ¶ 25 (2018) (per curiam) (when a statute “uses a common-law term, without
defining it, [it] adopts its common-law meaning”) (quoting Scalia & Garner, Reading
Law: The Interpretation of Legal Texts 320 (2012)). This approach to defining “allied” of-
fenses effectively incorporates Blockburger’s standard; offenses that are the “same” un-
der Blockburger are “allied” under R.C. 2841.25. Again, it is not surprising that the legis-
lature incorporated this standard, which courts had already been applying without
much trouble for decades.
The same logic applies to the two potential meanings of the word “import.”
When R.C. 2941.25 prohibits cumulative sentences for allied offense of similar import, the
word “import” refers to offenses of comparable importance or significance. See Web-
ster’s Second New World Dictionary at 705. Importance can be assessed with reference to
the elements of the crime or with reference to “the underlying conduct,” just as the
word “offense” can be. See Johnson, 2010-Ohio-6314 ¶¶ 67–68 (O’Connor, C.J., concur-
ring in the judgment). For example, an element-focused approach to determining im-
port would permit multiple punishments, when an element required by the greater of-
21
fense materially alters the significance of the crime. Again, because the legislature im-
posed this limitation on cumulative sentences against decades of cases defining “offens-
es” in the abstract, it would have been much clearer if it expected courts to assess of-
fenses’ severity by examining the underlying conduct.
In sum, as an original matter, offenses are “allied” and “of similar import” only if:
(1) the elements of one crime are such that its commission will result in the commission
of the other; and (2) the elements of the crime reveal that both crimes are of similar im-
portance. Under this interpretation, Pendleton’s sentence is valid because neither of his
crimes is made up of elements that satisfy the other. See above at 15.
b. The Court’s answer to the meaning of “allied offenses of similar import” has
changed over time. One of the Court’s earliest decisions interpreting and applying R.C.
2941.25 did indeed consider only the elements of the offenses involved. See State v.
Donald, 57 Ohio St. 2d 73, 74–75 (1979). Later decisions expanded the inquiry and re-
quired courts to consider a defendant’s conduct in addition to the statutory elements of
an offense. See State v. Logan, 60 Ohio St. 2d 126, 131–32 (1979); see also City of Newark v.
Vazirani, 48 Ohio St. 3d 81, 83 (1990). Recognizing that these inconsistent decisions had
caused confusion in the lower courts, the Court attempted to settle the issue with its de-
cision in State v. Rance, 85 Ohio St. 3d 632, 637–38 (1999). In Rance, the Court returned to
its initial interpretation of R.C. 2941.25, holding that the statutorily defined elements of
an offense should be considered only in the abstract. Id. at syl. ¶ 1. Specifically, Rance
22
held that crimes qualify as “allied offenses of similar import” only if they “correspond
to such a degree that the commission of one crime will result in the commission of the
other.” Id. at 637.
Rance’s attempt at clarity proved short-lived. The Court continued to rely on that
decision (and apply its elements-only test) in some instances. See State v. Childs, 88 Ohio
St. 3d 558, 561–62 (2000). On other occasions, however, it declined to apply Rance’s el-
ements-focused test. See State v. Fears, 86 Ohio St. 3d 329, 344 (1999) (finding that speci-
fications for kidnapping and aggravated robbery merged); State v. Adams, 103 Ohio St.
3d 508, 2004-Ohio-5845 ¶¶ 89–95. The Court tried again to harmonize its inconsistent
interpretations of R.C. 2941.25 with its decision in State v. Cabralaes, 118 Ohio St. 3d 54,
2008-Ohio-1625. That case concluded that “[d]espite trying to define a test ‘capable of
application in particular cases,’ Rance has produced inconsistent, unreasonable, and, at
times, absurd results.” Id. at ¶ 20. And it clarified that, although Rance required courts
to consider the elements of different offenses in the abstract, Rance did not require “an
exact alignment” of those elements. Id. at syl. ¶ 1, id. at ¶ 27.
The confusion persisted. The court revisited Rance yet again in State v. Johnson,
128 Ohio St. 3d 153, 2010-Ohio-6314. This time, in a fractured opinion, the Court dis-
pensed with its elements-only test and held that “the conduct of the accused must be
considered” when determining whether two offenses must merge under R.C. 2941.25.
Id. at syl. A plurality of the Court explained that Rance, if applied consistently, created
23
“absurd” results in some cases. Id. at ¶¶ 32–40. (As discussed below, absurdity is in the
eye of the beholder. See below at 27–29.) The plurality further explained that, in order to
avoid these absurdities, courts misapplied or modified Rance, creating an internally in-
consistent doctrine.
Unfortunately for litigants and lower courts, the only thing that the Court in
Johnson agreed on was the syllabus. See id. at syl. Thus, although the plurality in John-
son purported to overrule Rance, id. at ¶ 8, the decision did not tell courts what test they
should be applying instead. See Washington, 137 Ohio St. 3d 427 ¶ 15 (nothing that the
court in Johnson was “divided as to how to consider a defendant’s conduct” in a R.C.
2941.25 analysis).
The Court’s most recent attempt to establish a rule governing R.C. 2941.25 and
allied offenses came in State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995. That case reaf-
firmed that courts should consider more than just the abstract elements of offenses. In-
stead of a purely elements-focused test, the Court held that, courts must determine
whether offenses are allied by “focus[ing] on the defendant’s conduct to determine
whether one or more convictions may result.” Id. at ¶ 30. In other words, courts must
ask: “how were the offenses committed?” Id. at ¶ 25. The “defendant may be convict-
ed and sentenced for multiple offenses” if any of the following is true: “(1) the offenses
are dissimilar in import or significance—in other words, each offense caused separate,
24
identifiable harm, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation.” Id.
Justice French concurred only in Ruff’s judgment, advocating for a return to
Rance. The Court, she argued, should simply “compare[] the statutory elements of the
offense to determine whether ‘the elements correspond to such a degree that the com-
mission of one offense will result in the commission of the other.’” Id. at ¶ 39 (quoting
Washington, 137 Ohio St. 3d 427 ¶ 13). This test mirrors the Blockburger test, and “Ohio
courts have had little difficulty relying on Blockburger when determining whether of-
fenses constitute the same offense in the successive-prosecution context of the Double
Jeopardy Clause.” Id. at ¶ 41. What is more, “the vast majority” of other American “ju-
risdictions rely on Blockburger in the multiple-punishments context.” Id. (collecting cas-
es). Justice French concluded her separate writing by expressing concern that the ma-
jority’s “fact-based test will continue to move Ohio further from the prevailing view
while producing uneven and flawed interpretations of R.C. 2941.25.” Id. at ¶ 44.
2. Pendleton’s conviction is valid under any potential interpretation of R.C. 2941.25.
The Court should adopt Justice French’s approach, effectively restoring R.C.
2941.25’s original meaning. But the Court should affirm even if it adheres to Ruff, as
Pendleton’s convictions are valid even under that fact-based approach.
25
a. The Court should adopt the test that Justice French proposed in Ruff, under which Pendleton’s sentence is constitutional.
If the Court adopts Justice French’s test, there is no doubt that Pendleton’s con-
viction must stand: the “statutory elements of” his heroin trafficking conviction do not
“correspond to such a degree” with the elements of his drug-trafficking conviction “that
the commission of one offense will result in the commission of the other.” Id. at ¶ 39
(quoting Washington, 137 Ohio St. 3d 427 ¶ 13). Accordingly, this Court must affirm if it
adopts Justice French’s test.
That is exactly what it should do. The Court is rightfully reluctant to revisit
precedent. See Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849 ¶ 43; but
see Johnson, 128 Ohio St. 153 at ¶ 45 (finding no need to apply Galatis when interpreting
R.C. 2941.25). Presumably, it is especially reluctant to do so when that would mean re-
storing a precedent that it overturned somewhat recently. But four reasons justify an
about-face here.
First, the current approach is unadministrable. The whole point of “stare decisis”
is “to provide continuity and predictability in our legal system.” Galatis, 100 Ohio St. 3d
216 ¶ 43. Thus, courts properly overrule decisions that defy “practical workability.” Id.
at ¶ 48. The years since Johnson and Ruff confirm Justice French’s fears about unadmin-
istrability of the test the Court adopted. The question at issue in Ruff—whether aggra-
vated burglary and rape are allied offenses—helps illustrate the point. Courts easily
and consistently answered that question under Rance. See State v. Ruff, 2013-Ohio-3234
26
¶ 30 (1st Dist.) (DeWine, J.). Ruff and Johnson destroyed that consistency, replacing it
with a patchwork of approaches that varied from case to case and from appellate dis-
trict to appellate district. See State v. Roberson, 2018-Ohio-1955 ¶ 26(6th Dist.) (disagree-
ing in part with the First District’s application of Ruff on remand); State v. Johnson, 2018-
Ohio-3999 (8th Dist.) (surveying cases). The resulting uncertainty should come as no
surprise; the Court recognized even at the time that the allied-offense analysis it called
for “may be sometimes difficult to perform and may result in varying results for the
same set of offenses in different cases.” Ruff, 143 Ohio St. 3d 114 ¶ 32 (citation omitted).
Second, no one has ever doubted the administrability of Rance; courts are fully
capable of simply comparing the elements of a given offense, as they do every time they
apply Blockburger. Id. at ¶ 41 (French, J., concurring in the judgment). Instead, the only
reason the Court gave for overruling Rance was that it produced odd results in some
cases—and that courts refused to hew to Rance as a result. See Johnson, 128 Ohio St. 3d
153 ¶¶ 28–40. That is not a very good reason. Almost all statutes that set forth general-
ly applicable rules create strange results in some set of cases. That is the tradeoff the
General Assembly makes when it chooses an easy-to-administer rule over a flexible-
but-hard-to-administer standard. Since the General Assembly made that tradeoff here,
the Court has no choice but to respect its decision. If the statute creates bad or even silly
results, it is for the General Assembly to make that determination and amend the law
accordingly.
27
In any event, many of the outcomes that this Court called “absurd” are in fact
quite sensible from the perspective of a law-and-order legislator. See Cabrales, 118 Ohio
St. 3d 54 ¶¶ 16–20. Is it really unreasonable for the General Assembly to err on the side
of punishing every independent statutory violation? To many Ohioans, the answer is
“surely not.” Why should the child abuser who happens to kill his victim be punished
for the second crime only? See Johnson, 128 Ohio St. 3d 153 ¶ 3. Or the arsonist who
causes someone’s death? See State v. Cox, 2003-Ohio-1935 ¶ 12 (4th Dist.). One might
debate the penological necessity or wisdom of double punishment. But that does not
make the decision to harshly punish “absurd.” If the only problem with Rance was that
courts misapplied it to avoid “absurd” results, the proper approach is to readopt Rance
and insist on its faithful application.
Other outcomes that the Court described as absurd resulted not from Rance’s ap-
plication, but from its misapplication. Consider State v. Hendrickson, 2003-Ohio-611 (2nd
Dist.), which this Court cited as evidence of Rance’s absurd results, Cabrales, 118 Ohio St.
54 at ¶ 16. Hendrickson involved convictions for involuntary manslaughter and for ag-
gravated vehicular homicide. 2003-Ohio-611 ¶ 1. The appellate court held that the two
did not merge, reasoning that they did not correspond to such a degree that the com-
mission of one would result in the commission of the other: involuntary manslaughter
required the commission of a felony, id. at ¶ 23, and aggravated vehicular homicide re-
quired operating a motor vehicle while under the influence of alcohol, id. at ¶ 24. The
28
appellate court erred. It overlooked that aggravated vehicular homicide is itself a felo-
ny, and would satisfy that element of involuntary manslaughter. Viewed in that light,
the court should have held that the offenses merged because the commission of one of-
fense (aggravated vehicular homicide) will result in the commission of the other (invol-
untary manslaughter).
Third, much of the uncertainty that the Court pointed to as a reason for overrul-
ing Rance resulted from courts’ departing from the elements-focused test, not their appli-
cation of it. For example, the Court in Johnson pointed to State v. Winn, 121 Ohio St. 3d
413, 2009-Ohio-1059, as evidence that an elements-focused test is unworkable. Johnson,
128 Ohio St. 3d 153 ¶¶ 37–38. But Winn shows no such thing. As then-Chief Justice
Moyer wrote in dissent, the problem with the Court’s opinion in Winn was not Rance or
Cabrales—it was the majority’s departure from those decisions. See id. at ¶¶ 26–40 (Mo-
yer, C.J., dissenting). Rather than asking whether the commission of one offense would
necessarily result in the commission of another, the Court in Winn improperly asked
whether it would “probably” do so. Id. at ¶ 33; see also State v. Harris, 122 Ohio St. 3d
373, 2009-Ohio-3323 ¶¶ 28–32 (Cupp, J., “reluctantly” concurring on the basis that Winn
was stare decisis).
Fourth, abandoning the unworkable Ruff approach will not “create undue hard-
ship for those who have relied upon it.” Galatis, 100 Ohio St. 3d 216 ¶ 48. To the con-
trary, it will restore consistency and predictability, thereby giving citizens, prosecutors,
29
and lower courts a standard on which they can meaningfully rely. It is especially im-
portant to provide such a standard in the criminal context. There, basic fairness de-
mands “certainty and predictability.” Schmuck v. United States, 489 U.S. 705, 721 (1989).
The law today denies that certainty and predictability to defendants, their victims,
prosecutors, and lower courts. Perhaps it is true that a principled application of Justice
French’s approach will yield bad results in some cases. But, at least when it comes to
the criminal context, it is better to have an imperfect rule than no rule at all—an imper-
fect rule will, if nothing else, help guide prosecutors and lower courts, and provide fair
notice to defendants.
The Court should hold that R.C. 2941.25 permits multiple convictions unless the
“statutory elements of” one crime “correspond to such a degree” with the elements of
the second “that the commission of one offense will result in the commission of the oth-
er.” Ruff, 143 Ohio St. 3d 114 ¶ 39 (French, J., concurring in the judgment) (quoting
Washington, 137 Ohio St. 3d 427 ¶ 13). Because this test permits Pendleton’s two convic-
tions, this Court should affirm.
To be clear, returning to an elements-focused test does not mean endorsing ab-
surd results. Rance and Blockburger are not ends in and of themselves. They are simply
tools for discerning legislative intent. A clear expression of legislative intent will al-
ways prevail. Ruff, 143 Ohio St. 3d 114 ¶ 43 (French, J. concurring in the judgment) (dis-
tinguishing State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569). The primacy of legisla-
30
tive text highlights another benefit of an elements-based test: should the legislature be-
lieve that a court was wrong about its intent, it can change the law.
b. Pendleton’s sentence is equally constitutional under the Ruff majority’s approach.
This Court should affirm even if it decides not to adopt Justice French’s test.
Pendleton’s sentence complies with R.C. 2941.25 even under Ruff. Under the holding in
that case, offenses will not merge, “and the defendant may be convicted and sentenced
for multiple offenses,” if either of the following is true: (1) “each offense caused separate,
identifiable harm,” or (2) “the offenses were committed separately.” 2015-Ohio-995
¶ 25. Even assuming (but not conceding) that Pendleton did not separately commit the
two trafficking offenses, R.C. 2941.25 still allowed the court to impose separate sentenc-
es because each offense caused separate and identifiable harms.
Fentanyl poses its own unique harms to the public, and R.C. 2941.25 authorizes
separate punishment for Pendleton’s fentanyl trafficking conviction. Fentanyl is a syn-
thetic opioid that is 50 times more potent than heroin. That potency makes it particular-
ly dangerous and harmful. Department of Health and Human Services, Centers for
Disease Control and Prevention, Synthetic Opioid Overdose Data, available at https://
perma.cc/RX49-6R64. The increasing availability of synthetic opioids like fentanyl
helped fuel the deadly opioid epidemic in Ohio and in the rest of the country. In Ohio,
fentanyl killed 3,431 people in 2017—it caused “nearly three-fourths of Ohio drug
deaths.” Catherine Candisky, Ohio daily drug death toll of 14 second highest rate in US,
31
COLUMBUS DISPATCH, Nov. 30, 2018, available at https://perma.cc/J6BK-ESZJ. Nation-
wide, the impact of fentanyl was even more dramatic: “Between 2013 and 2017, more
than 67,000 people died of synthetic-opioid-related overdoses—exceeding the number
of U.S. military personnel killed during the Vietnam, Iraq and Afghanistan wars com-
bined.” Scott Higham, Sari Horwitz, and Katie Zezima, Obama officials failed to focus as
fentanyl burned its way across America, WASHINGTON POST, Mar. 13, 2019, available at https:
//perma.cc/8VAS-LBCL.
One reason for such a high fatality rate is that traffickers like Pendleton frequent-
ly combine fentanyl with other drugs, meaning that drug users often do not know that
the drugs they take contain the deadly substance. See Catherine Candisky, Fentanyl
drives Ohio’s overdose deaths to record, COLUMBUS DISPATCH, Sept. 23, 2018, available at
https://perma.cc/6JWD-T3HM. As a result, it should not come as a surprise that “nearly
70% of deaths involving fentanyl also involved one or more other drugs.” Department
of Health and Human Services, Centers for Disease Control and Prevention, National
Center for Health Statistics, Marianne Rose Spencer, et al., Drug Overdose Deaths Involv-
ing Fentanyl, 2011-2016, 68 NATIONAL VITAL STATISTICS REPORTS, No. 3, p. 2 (Mar. 21,
2019), available at https://perma.cc/PCW8-R6KW.
These sobering statistics show that the harm posed by fentanyl is separate and
distinct from the harm posed by other drugs, even heroin. Under Ruff, that alone is a
sufficient basis on which to uphold Pendleton’s convictions and sentences. A separate
32
sentence, like the one Pendleton received, is appropriate when an offense poses its own
unique harm—even if that offense would have otherwise merged under R.C. 2941.25.
* * *
In conclusion, there are two ways to resolve this case. The first—and the easi-
est—is to hold that Pendleton’s convictions and punishments relate to different “offens-
es.” Alternatively, the Court can hold that the legislature permitted multiple punish-
ments for offenders like Pendleton. Either conclusion requires affirming the Second
District.
CONCLUSION
For these reasons, the Court should affirm the decision below.
Respectfully submitted, DAVE YOST (0056290) Ohio Attorney General /s/ Benjamin M. Flowers_______ BENJAMIN M. FLOWERS* (0095284) State Solicitor *Counsel of Record SAMUEL C. PETERSON (0081432) Deputy Solicitor 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980; 614-466-5087 fax [email protected]
Counsel for Amicus Curiae, Ohio Attorney General Dave Yost
33
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Brief of Amicus Curiae Ohio Attorney Gen-
eral Dave Yost in Support of Appellee was served by regular U.S. mail this 6th day of
May, 2019, upon the following counsel:
Samuel H. Shamansky 523 South Third Street Columbus, Ohio 43215 Counsel for Appellant, Kenny Pendleton
/s/ Benjamin M. Flowers_______ Benjamin M. Flowers State Solicitor