[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Gonzales, Slip Opinion No. 2017-Ohio-777.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-777

THE STATE OF OHIO, APPELLANT, v. GONZALES, APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Gonzales, Slip Opinion No. 2017-Ohio-777.] 

Criminal law—Cocaine-possession offenses—R.C. 2925.11(C)(4)(b) through (f)—

State need not prove that weight of cocaine without filler meets the statutory 

threshold—Motion for reconsideration granted—Judgment reversed.

(Nos. 2015-0384 and 2015-0385—Submitted February 7, 2017—Decided 

March 6, 2017.) 

APPEAL from and CERTIFIED by the Court of Appeals for Wood County, No. 

WD-13-086, 2015-Ohio-461. 

__________________ 

 

 
SUPREME COURT OF OHIO

2

O’CONNOR, C.J. 

{¶ 1} This matter is before us as a result of a motion for reconsideration 

filed by appellant, the state of Ohio.1 Appellee, Rafael Gonzales, filed a 

memorandum opposing reconsideration.2 

{¶ 2} In State v. Gonzales, __ Ohio St.3d__, 2016-Ohio-8319, ___ N.E.3d 

___ (“Gonzales I”), the court determined that in prosecuting cocaine-possession 

offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the 

state must prove that the weight of the actual cocaine, excluding the weight of any 

filler materials, meets the statutory threshold. 

{¶ 3} The state contends that Gonzales I was decided in error and that it is 

based upon inconsistent application of the principles of statutory construction. A 

majority of the court grants the state’s motion for reconsideration. We now hold 

that the entire “compound, mixture, preparation, or substance,” including any fillers 

that are part of the usable drug, must be considered for the purpose of determining 

the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4). 

Accordingly, we vacate our decision in Gonzales I, answer the certified-conflict 

question in the negative, and reverse the judgment of the Sixth District Court of 

Appeals. 

ANALYSIS

{¶ 4} To interpret a statute, we must first look at its language to determine 

legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 

378 (1973). When a statute’s meaning is clear and unambiguous, we apply the 

statute as written. Id. at 105-106. We must give effect to the words used, refraining 

from inserting or deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio 

 

1

 Amicus curiae Ohio Prosecuting Attorneys Association supported appellant’s request for 

reconsideration. 

2

 Amicus curiae Office of the Ohio Public Defender filed a memorandum opposing reconsideration. 
January Term, 2017 

3

St.3d 50, 53-54, 524 N.E.2d 441 (1988). If a legislative definition is available, we 

construe the words of the statute accordingly. R.C. 1.42. 

{¶ 5} But “words in a statute do not exist in a vacuum.” D.A.B.E., Inc. v. 

Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 

536, ¶ 19. This means that “our attention should be directed beyond single phrases, 

and we should consider, in proper context, all words used by the General Assembly 

in drafting [the relevant statute] with a view to its place in the overall statutory 

scheme.” Id. 

{¶ 6} If a statute is ambiguous, the court may consider the legislative history 

and the circumstances under which it was enacted, as well as the consequences of 

a particular construction, among other things. R.C. 1.49. And we must presume 

that the General Assembly intended the entire statute to achieve a result that is 

feasible of execution. R.C. 1.47. 

{¶ 7} R.C. 2925.11(C)(4) describes the cocaine-possession offense: “If the 

drug involved in the violation is cocaine or a compound, mixture, preparation, or 

substance containing cocaine, whoever violates division (A) of this section is guilty 

of possession of cocaine.” (Emphasis added.) The penalty sections of the statute 

then set forth increasing degrees of punishment depending on the weight of the 

cocaine possessed by an offender. R.C. 2925.11(C)(4)(a) through (f). Possession 

of any amount of the drug exceeding 5 grams is penalized more severely than a 

fifth-degree felony, id., and possession of an amount of the drug exceeding 100 

grams is a first-degree felony, in which case the offender is also designated as a 

major drug offender and the court must impose a mandatory maximum prison term, 

id. at (C)(4)(f).3

 

 

3

 One hundred grams of powder cocaine is approximately 1,000 doses of powder cocaine for 

intranasal consumption. United States Department of Justice, Federal Cocaine Offenses: An 

Analysis of Crack and Powder Penalties (March 17, 2002), available at 

https://www.justice.gov/archive/olp/pdf/crack_powder2002.pdf (accessed Feb. 15, 2017). 
SUPREME COURT OF OHIO

4

{¶ 8} The question before us is what should be weighed to determine an 

offender’s penalty. 

{¶ 9} Read as a whole, the plain language of R.C. 2925.11(C)(4)(b) through 

(f) penalizes an offender for the amount of cocaine possessed, and the amount of 

“cocaine” clearly encompasses the whole compound or preparation of cocaine, 

including fillers that are part of the usable drug. 

{¶ 10} The statutory definition of “cocaine” includes a “salt, compound, 

derivative, or preparation” of a substance that is a cocaine salt or base cocaine. R.C. 

2925.01(X)(3). See also R.C. 3719.41 (Schedule II(A)(4)). This language is broad. 

The Sixth District concluded that the definition of “cocaine” does not include a 

mixture of cocaine and fillers. 2015-Ohio-461 at ¶ 45. But the statutory definition 

of cocaine plainly encompasses a compound or preparation that includes cocaine. 

And “compound” means “something (as a substance * * *) that is formed by a union 

of * * * ingredients.” Webster’s Third New International Dictionary 466 (1986). 

{¶ 11} Indeed, this is consistent with the nature of the cocaine used illegally 

in the United States, which is a compound of several ingredients: 

[C]ocaine powder is derived by dissolving the coca paste in 

hydrochloric acid and water. To this mixture a potassium salt 

(potassium permanganate) is added. The potassium salt causes 

undesired substances to separate from the mixture. These 

substances are then discarded. Ammonia is added to the remaining 

solution, and a solid substance—the powder cocaine—separates 

from the solution. The powder cocaine is removed and allowed to 

dry. Prior to distribution, powder cocaine typically is “cut,” or 

diluted, by adding * * * one or more adulterants: sugars, local 

anesthetics (e.g., benzocaine), other drugs, or other inert 
January Term, 2017 

5

substances. Consequently, the purity level of powder cocaine may 

vary considerably. 

(Emphasis added and footnotes omitted.) United States Sentencing Commission, 

Special Report to the Congress: Cocaine and Federal Sentencing Policy 12 

(Feb.1995), http://www.ussc.gov/research/congressional-reports/1995-reportcongress-cocaine-and-federal-sentencing-policy (accessed Feb. 15, 2017). See also

Ohio Substance Abuse Monitoring Network, Drug Abuse Trends in the Cleveland 

Region 81 (Jan.-June 2014), http://www.documentcloud.org/documents/1659531-

drug-abuse-trends-in-the-cleveland-region.html#document/p1 (accessed Feb. 15, 

2017) (cocaine powder in the Cleveland area is cut with lidocaine, procaine, and 

levamisole, a livestock dewormer); Ohio Substance Abuse Monitoring Network, 

Drug Abuse Trends in the Columbus Region 102 (Jan.-June 2014), 

http://mha.ohio.gov/Portals/0/assets/Research/OSAM-TRI/Columbus%20Jan% 

202015.pdf (accessed Feb. 15, 2017) (in the Columbus area, cocaine is cut with 

lidocaine, procaine, levamisole, baby laxatives or powder, and “anything that is 

white and powdered”). 

{¶ 12} Importantly, the fillers, or adulterants, that are part of powder 

cocaine are not intended to be removed before consumption. Indeed, the fillers are 

an inherent part of powder cocaine. Thus, the common usage of the term “cocaine” 

is consistent with the statutory definition that a compound or preparation of cocaine 

is still cocaine. Accordingly, the total weight of the drug, including any fillers that 

are part of usable cocaine, should be weighed to determine the appropriate cocainepossession penalty under the statute. 

{¶ 13} Concluding otherwise would require us to insert the words “actual” 

or “pure” to describe the cocaine that is intended to be penalized by the statute. If 

the General Assembly had been concerned about purity, rather than total weight, it 

would have said so. In our limited role of statutory interpretation, we must refrain 
SUPREME COURT OF OHIO

6

from inserting words to achieve a particular result. Cleveland Elec. Illum. Co., 37 

Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus. 

{¶ 14} Because we conclude that the statute is unambiguous, legislative 

history is not controlling here. However, contrary to what Justice Kennedy’s 

dissent asserts, even if the statute were ambiguous, a review of the legislative 

history and the circumstances under which the statute was enacted would support 

our conclusion.4 The Ohio Legislative Service Commission’s analysis of 

Am.Sub.H.B. No. 86, which amended R.C. 2925.11(C)(4), explains that one 

purpose of the legislation was to eliminate the distinction that had existed between 

penalties for drug offenses involving crack cocaine and drug offenses involving 

powder cocaine and replace that distinction with a penalty for drug offenses 

“involving any type of cocaine.” (Emphasis added.) Ohio Legislative Service 

Commission, Am.Sub.H.B. 86 Final Analysis (“Final Analysis”) at 8, available at

http://www.lsc.ohio.gov/analyses129/11-hb86-129.pdf (accessed February 16, 

2017). 

{¶ 15} Moreover, introducing a purity weight requirement for drug offenses 

involving cocaine would have been a significant departure from the statutory 

scheme as it had existed and been applied prior to September 2011, the effective 

date of 2011 Am.Sub.H.B. No. 86. But nowhere in the legislative analysis do the 

words “pure” or “purity” occur, and nowhere is there a description of the need for 

prosecutors to weigh the cocaine minus any fillers to determine the applicable 

 

4

 In fact, a short time following our decision in Gonzales I, legislation was proposed in the General 

Assembly to amend R.C. 2925.03 and 2925.11 “to provide that in determining the amount of cocaine 

for trafficking and possession offenses, it also includes a compound, mixture, preparation, or 

substance containing cocaine.” Title, Am.H.B. No. 4, as introduced in the 132d General Assembly, 

available at Ohio Legislature, House Bill 4, https://www.legislature.ohio.gov/legislation/legislationsummary?id=GA132-HB-4 (accessed February 22, 2017). As unanimously passed by the House, 

Section 3 of that legislation states, “The General Assembly is aware of [Gonzales I]. It was not the 

intent of the General Assembly to require the State, in prosecuting cocaine offenses involving mixed 

substances, to prove that the weight of the cocaine meets the statutory threshold, excluding the 

weight of any filler materials used in the mixture.” Id.
January Term, 2017 

7

penalty for cocaine possession. In fact, the Legislative Service Commission’s 

analysis explains that the drug-quantity threshold formerly used for cocaine that 

was not crack cocaine remained the basis for determining whether the major-drugoffender label should apply “regardless of the form of the cocaine involved.” Final 

Analysis at p. 68. 

{¶ 16} We recognize that H.B. 86 contained “the most significant 

amendments to criminal and prison law since [Am.Sub.S.B. No. 2, 146 Ohio Laws, 

Part IV, 7136] took effect in 1996.” Diroll, Ohio Criminal Sentencing Commission, 

H.B. 86 Summary: The 2011 Changes to Criminal and Juvenile Law, available at 

https://www.sconet.state.oh.us/Boards/Sentencing/resources/summaries/HB86Su

mmary.pdf (accessed February 16, 2017). In addition to equalizing penalties for 

crack and powder cocaine,5

 H.B. 86 raised theft thresholds, expanded diversion 

 

5

 The equalization of the penalties for possession of crack and powder cocaine was driven in large 

part by the need to address the racial disparity in the drug-offender prison population, not by the 

need to address variances in cocaine purity. This critique of the two-tiered cocaine sentencing 

approach used prior to H.B. 86 has been widely observed: 

Debates about the sentencing of crack possessors have been contentious for some 

time because of the disparity between the sentences applicable to crack offenders 

and those applicable to powder cocaine offenders in most jurisdictions, though 

crack and powder cocaine are simply different forms of the same drugs. This 

disparate treatment is usually discussed along racial lines and seen as a main 

contributor to racial disparities in imprisonment rates. For example, in its 2002 

Report to Congress, the U.S. Sentencing Commission found that an 

“overwhelming majority” of crack offenders were black—91.4% in 1992 and 

84.7% in 2000. Like the federal system, blacks have been disproportionately 

incarcerated in Ohio. The Ohio Office of Criminal Justice Services reported that 

at midyear 2005, Ohio incarcerated blacks at an alarming rate of 2,196 per 

100,000 U.S. residents and incarcerated whites at a rate of 344 per 100,000 U.S. 

residents. Also similar to the federal system, Ohio law treats crack cocaine 

offenders much more harshly than it treats powder cocaine offenders. 

(Footnotes omitted.) Exum, Sentencing, Drugs, and Prisons: A Lesson From Ohio, 42 U.Tol.L.Rev. 

881, 886-887 (2011). See also Kimbrough v. United States, 552 U.S. 85, 98, 128 S.Ct. 558, 169 

L.Ed.2d 481 (2007) (describing the problems identified by the United States Sentencing 

Commission with the crack/powder sentencing disparity, including the perception that the system 

promoted unwarranted disparity based on race). 
SUPREME COURT OF OHIO

8

opportunities, lowered prison terms for certain drug crimes, limited prison time for 

low-level felonies, encouraged alternatives to prison, and provided mechanisms for 

shortened prison sentences, among other reforms. Knopp, Breaking the Cycle: 

Ohio Reentry Courts, 41 Ohio N.U.L.Rev. 737, 746 (2015). The legislation spelled 

out numerous approaches to achieve its goal of reducing the prison population. 

{¶ 17} But Justice Kennedy’s suggestion in her dissent that H.B. 86 

incorporated a requirement that the state must establish proof of the weight of 

“pure” cocaine in order to reduce the prison population is, at best, speculative. 

Dissenting opinion at ¶ 61. None of the varied legislative approaches in H.B. 86 

included the requirement that the prosecution prove the amount of “pure” cocaine 

to determine the appropriate cocaine-possession penalty. To the contrary, the 

Legislative Service Commission’s analysis is clear that the amendments did not 

affect the preexisting statutory scheme except to eliminate the distinction between 

crack and powder cocaine and provide a “penalty for the offenses involving any 

type of cocaine.” Final Analysis at 65-66. 

CONCLUSION

{¶ 18} Giving effect to the statute as a whole and to the intent of the 

legislature as expressed in the words of the statute, we conclude that the applicable 

offense level for cocaine possession under R.C. 2925.11(C)(4) is determined by the 

total weight of the drug involved, including any fillers that are part of the usable 

drug. Thus, we answer the certified question in the negative, and we reverse the 

judgment of the Sixth District Court of Appeals. 

Motion for reconsideration granted, 

and judgment reversed. 

O’DONNELL, FRENCH, and DEWINE, JJ., concur. 

DEWINE, J., concurs, with an opinion. 

FISCHER, J., concurs in part and dissents in part, with an opinion. 

KENNEDY, J., dissents, with an opinion. 
January Term, 2017 

9

O’NEILL, J., dissents, with an opinion. 

_________________ 

DEWINE, J., concurring. 

{¶ 19} As the opinion concurring in part and dissenting in part states, 

reconsideration has traditionally been used “ ‘to correct decisions which, upon 

reflection, are deemed to have been made in error.’ ” Concurring in part and 

dissenting in part opinion at ¶ 23, quoting State ex rel. Huebner v. W. Jefferson 

Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1996). And S.Ct.Prac.R. 

18.02 contemplates that those corrections should come quickly. Parties have just 

ten days to bring to this court’s attention errors the court may have made in arriving 

at its decision; this court can thus fix a wrongly decided case immediately, before 

it is relied upon by lower courts and infects the entire justice system. 

{¶ 20} A case wrongly decided in late December 2016 is still a case wrongly 

decided. The state filed its motion for reconsideration on January 3, 2017—to the 

current court—in accordance with the rule. It is the duty of this court to address 

the motion. And a majority of this court determines that State v. Gonzales, __ Ohio 

St.3d__, 2016-Ohio-8319, ___ N.E.3d ___, is fundamentally flawed. Far better for 

the administration of justice in Ohio to correct that erroneous holding now than to 

put off the task for a future case. Reconsideration exists for a very good reason; we 

should not employ it lightly, but we neglect our duty if we do not employ it to right 

wrongs when necessary. 

_________________ 

FISCHER, J., concurring in part and dissenting in part.

{¶ 21} I concur fully in the majority’s decision reversing the judgment of 

the Sixth District Court of Appeals, but I write separately to explain why I do so, 

despite voting to deny the motion for reconsideration filed by appellant, the state of 

Ohio. 
SUPREME COURT OF OHIO

10 

{¶ 22} Today, we announce two separate and distinct decisions in this case. 

First, the court grants the state’s motion to reconsider by a four-to-three vote. I 

dissent and would deny the motion to reconsider. Second, the court, on the merits 

of the case, reverses the judgment of the court of appeals by a five-to-two vote. I 

agree with that decision. 

{¶ 23} This court’s rules of practice provide that “[a] motion for 

reconsideration shall not constitute a reargument of the case.” S.Ct.Prac.R. 

18.02(B). Traditionally, this court has used its reconsideration authority to “correct 

decisions which, upon reflection, are deemed to have been made in error.” State ex 

rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 

339 (1996). 

{¶ 24} This court issued a number of decisions at the end of 2016 in which 

motions for reconsideration were not ripe for review until after the beginning of 

this year. The timing of these motions places this court in the unusual position of 

being asked to put itself in the shoes of the previous court to determine whether that 

court erred in its deliberations to the extent that its decisions need to be corrected. 

Recognizing that I was not privy to the previous court’s deliberations and 

respecting the precedent established by that court’s decisions, I have voted to deny 

all motions asking this court to reconsider decisions issued before I took my seat 

on the bench. 

{¶ 25} Because this court grants the motion for reconsideration in this case, 

a new question arises that is separate and distinct from the question whether I 

should vote to grant reconsideration in a case decided by this court before I joined 

it: once a majority of the court has decided to grant reconsideration in such a case, 

should I participate in a decision on the merits of that case? I believe that it is my 

duty to do so. 

{¶ 26} Each of the justices of this court has been elected by the citizens of 

Ohio to participate in the cases before the court. An exception to this duty occurs 
January Term, 2017 

11 

when one of us feels compelled to disqualify himself or herself. In those cases, a 

visiting judge is appointed by the chief justice to take the recusing justice’s place 

in the case. 

{¶ 27} No ethical considerations prevent me from ruling on the merits of 

this case. Moreover, even if a visiting judge were to be appointed in my place in 

this case, that judge would be in a position identical to mine because he or she 

would not have participated in the original decision on the merits. As an elected 

member of this court, I have a duty to participate in this case, and there is no 

compelling reason for me to do otherwise. 

{¶ 28} In a sense, participating in the merits of a decision once a majority 

of the court votes to reconsider the case is no different from my participating in a 

case that comes before the court as a jurisdictional appeal that was accepted by the 

court last year and is scheduled for oral argument this year. Although I did not vote 

to accept jurisdiction in those cases, I am expected to fully participate in the 

decisions on the merit, and I have done so (except for those cases in which I have 

recused myself for other reasons). I have also participated in a decision that 

dismissed a case on the grounds that it had been improvidently accepted. In that 

case, my vote to dismiss essentially means that, after reconsidering the merits of 

the case, I determined that the previous court’s decision to accept jurisdiction was 

in error. My participation in the consideration of the merits in this case is similar. 

{¶ 29} For these reasons, despite voting to deny the state’s motion for 

reconsideration, I have concluded that it is my duty to participate in the merits 

decision in this case, and I concur in the majority’s decision to reverse the judgment 

of the court of appeals. 

_________________ 

KENNEDY, J., dissenting. 

{¶ 30} “Decisions are the hardest moves to make, especially when it’s a 

choice between what you want and what is right.” Unknown. 
SUPREME COURT OF OHIO

12 

{¶ 31} This court must respect the fact that the constitutional authority to 

legislate was conferred solely on the General Assembly, Article II, Section 1, Ohio 

Constitution, and that it is the province of the General Assembly to make policy 

decisions, Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 

N.E.2d 377, ¶ 212. It is undisputed that “[j]udicial policy preferences may not be 

used to override valid legislative enactments.” State v. Smorgala, 50 Ohio St.3d 

222, 223, 553 N.E.2d 672 (1990). 

{¶ 32} The legislature “is vested with the power to define, classify, and 

prescribe punishment for offenses committed in Ohio.” State v. Taylor, 138 Ohio 

St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. Accordingly, “[j]udges have no 

inherent power to create sentences,” id., and instead “are duty-bound to apply 

sentencing laws as they are written,” State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony Sentencing 

Law, Section 1:3, at 4, fn. 1 (2008). 

{¶ 33} Because I must adhere to these time-honored principles that define 

this court’s role in our tripartite system of government, I cannot interpret the 

statutory scheme at issue to conform to my view of what Ohio’s public policy 

should be. Instead, I must interpret the words that the General Assembly chose, 

using rules of statutory construction. Accordingly, although I might prefer the 

outcome under the majority’s judgment, my fealty to the constitution, our 

precedent, and this court’s role in government require that I dissent from it. 

Motion for Reconsideration 

{¶ 34} The state of Ohio has moved for reconsideration of this court’s 

judgment in State v. Gonzalez, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d 

___ (“Gonzales I”). Pursuant to S.Ct.Prac.R. 18.02, we have the authority to 

“correct decisions which, upon reflection, are deemed to have been made in error.” 

State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 

N.E.2d 339 (1996). “We will not, however, grant reconsideration when a movant 
January Term, 2017 

13 

seeks merely to reargue the case at hand.” Dublin City Schools Bd. of Edn. v. 

Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212, 2014-Ohio-1940, 11 N.E.3d 

222, ¶ 9; S.Ct.Prac.R. 18.02(B) (“A motion for reconsideration shall not constitute 

a reargument of the case”). 

{¶ 35} In an attempt to present an “obvious error,” see Dublin City Schools

at ¶ 10, the state asserts that the court misapplied the rule of lenity and the canon of 

strict construction. The state contends that the lead opinion in Gonzales I applied 

the rule of lenity even though it found that the statute was unambiguous. In support, 

the state cites paragraphs 10 and 20 through 22 of Gonzales I. An examination of 

these paragraphs, however, exposes the fiction of the state’s assertion. 

{¶ 36} The lead opinion’s reference to the rule of lenity in Gonzales I is 

limited to a general statement that the rule is used to interpret a statute when a statute 

is determined to be ambiguous. Id. at ¶ 10. In that opinion, the reference to the 

rule occurs before the discussion interpreting R.C. 2925.11(C)(4), the statute at 

issue in this case. Starkly absent from the lead opinion’s analysis of the statute is 

application of the rule of lenity. Id. at ¶ 20-22. That opinion clearly states that 

nothing in the statute is deemed ambiguous. Id. at ¶ 20, 22 (R.C. 2925.11(C)(4)(b) 

through (f) is “unambiguous on its face”). The rule of lenity is applied only when 

a statute is ambiguous. State v. Arnold, 61 Ohio St.3d 175, 178, 573 N.E.2d 1079 

(1991). Moreover, the lead opinion in Gonzales I does not engage in any discussion 

or application of the rule of lenity when analyzing the statute. Therefore, there is 

no doubt that the lead opinion did not resolve the statute in favor of the defendant. 

Id. at ¶ 20-22. 

{¶ 37} The state also argues that the court used a “canon of strict 

construction” to infer legislative intent. However, this argument is contradicted by 

the express language of the lead opinion in Gonzales I, which states, “The state fails 

to point to any ambiguity in the statute. Without that, we must simply apply the 
SUPREME COURT OF OHIO

14 

statute as it is written, without delving into legislative intent.” (Emphasis added.) 

Id. at ¶ 17. 

{¶ 38} Accordingly, the state’s arguments are nothing more than red 

herrings. Failing to point to any obvious error, the state is merely seeking another 

bite at the apple. The precedent established in Gonzales I should not be overturned 

without a thorough analysis under the tripartite test of Westfield Ins. Co. v. Galatis, 

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, in a new case. 

{¶ 39} Accordingly, I would deny the state’s motion for reconsideration. 

Nevertheless, because a majority of this court has granted reconsideration in this 

matter, I will address the merits. 

Analysis of R.C. 2925.11(C)(4) 

{¶ 40} The General Assembly enacted a general provision prohibiting any 

person from knowingly obtaining, possessing, or using a controlled substance or a 

controlled-substance analog. R.C. 2925.11(A). Penalties for doing so are based on 

the class and amount of the controlled substance or controlled-substance analog in 

an offender’s possession. R.C. 2925.11(C). 

{¶ 41} At issue here is R.C. 2925.11(C)(4), which provides, “If the drug 

involved in the violation is cocaine or a compound, mixture, preparation, or 

substance containing cocaine, whoever violates division (A) of this section is guilty 

of possession of cocaine.” Thereafter, possession of cocaine is categorized into a 

degree of felony depending on whether “the amount of the drug involved” equals 

or exceeds a specific number of grams but is less than a specific number of “grams 

of cocaine.” R.C. 2925.11(C)(4)(b) through (f). 

{¶ 42} A court’s main objective is to determine and give effect to the 

legislative intent. State ex rel. Solomon v. Police & Firemen’s Disability & Pension 

Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). The intent of 

the General Assembly must be determined primarily from the language of the 
January Term, 2017 

15 

statute itself. Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 

296 N.E.2d 676 (1973). 

{¶ 43} “When the statutory language is plain and unambiguous, and 

conveys a clear and definite meaning, we must rely on what the General Assembly 

has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio 

St.3d 549, 553, 721 N.E.2d 1057 (2000). However, when statutory language is 

ambiguous, the rules of statutory interpretation must be applied to determine the 

intent of the legislature. Wingate v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 

(1979). 

{¶ 44} The majority concludes that the statute is unambiguous and that the 

legislative intent is that the phrase “grams of cocaine” in the subdivision 

establishing the degree of the offense means “grams of a mixture of cocaine and 

fillers.” To reach this interpretation, however, the majority claims that the mixture 

of cocaine and adulterants is a compound. R.C. 2925.01(X) (cocaine includes “[a] 

salt, isomer or derivative * * * or a salt, compound, derivative, or preparation”). It 

therefore confuses the definition of “compound” with the definition of “mixture.” 

Majority opinion at ¶ 10 (“ ‘compound’ means ‘something (as a substance * * *) 

that is formed by a union of * * * ingredients’ ”), quoting Webster’s Third New 

International Dictionary 466 (1986). In Gonzales I, the dissenting opinion 

concluded that “a compound is a mixture.” Id., ___ Ohio St.3d ___, 2016-Ohio8319, ___ N.E.3d ___, ¶ 42 (C.J. O’Connor dissenting). 

{¶ 45} The majority is purposefully silent as to the actual effect of its 

decision and the dangerous precedent it creates, but astute readers of our opinions 

and those educated and knowledgeable about the rules of statutory construction will 

not be fooled. By reading the term “mixture” into the term “compound,” the 

majority abandons our strict rules of statutory construction, ignores definitions, and 
SUPREME COURT OF OHIO

16 

renders meaningless and superfluous the term “mixture” as used by the General 

Assembly in this provision and other provisions in the Revised Code. 

{¶ 46} The legislature has not defined the terms “compound” or “mixture.” 

R.C. 1.42 states, “Words and phrases shall be read in context and construed 

according to the rules of grammar and common usage. Words and phrases that 

have acquired a technical or particular meaning, whether by legislative definition 

or otherwise, shall be construed accordingly.” The majority’s analysis fails to 

interpret the term “compound” properly. A general dictionary recognizes its 

definition in the scientific field of chemistry as “a chemically distinct substance 

formed by union of two or more ingredients (as elements) in definite proportion by 

weight and with definite structural arrangement (water is a [compound] of oxygen 

and hydrogen).” Webster’s Third New International Dictionary 466 (2002). This 

definition is not interchangeable with the term “mixture,” which is defined as “a 

portion of matter consisting of two or more components that do not bear a fixed 

proportion to one another and that however thoroughly commingled are regarded 

as retaining a separate existence—usu. distinguished from * * * compound.” Id. at 

1449. 

{¶ 47} “ ‘[W]e may not restrict, constrict, qualify, narrow, enlarge, or 

abridge the General Assembly’s wording.’ ” Dillon v. Farmers Ins. of Columbus, 

Inc., 145 Ohio St.3d 133, 2015-Ohio-5407, 47 N.E.3d 794, ¶ 17, quoting State ex 

rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 

2012-Ohio-1484, 967 N.E.2d 193, ¶ 18. Instead, we are to give effect to “every 

word, phrase, sentence, and part of the statute,” Carna at ¶ 18-19, avoiding 

interpretations that would otherwise render a provision redundant, meaningless, or 

superfluous, id. at ¶ 19. 

{¶ 48} The majority opinion neglects the effect of its conclusion that the 

substance created when cocaine and fillers are mixed is a compound. The only 

reasonable interpretation of the majority’s decision is that the majority implicitly 
January Term, 2017 

17 

concludes that the term “mixture” has no meaning separate and apart from the term 

“compound.” But the General Assembly has used both terms not only in R.C. 

2925.11(C)(4) but in numerous other statutes. See, e.g., R.C. 2925.01(D) and (I), 

2925.03(C), 3719.41, and 3719.44. 

{¶ 49} Accordingly, in every statute in which the General Assembly has 

chosen to use both “compound” and “mixture,” the effect of the majority’s 

conclusion renders the term “mixture” superfluous. This also means that when the 

legislature used the terms “compound” and “mixture” in the same sentence of a 

statute, the use of the term “mixture” was included in vain, not to accomplish a 

definite purpose. See State v. Wilson, 77 Ohio St.3d 334, 336, 673 N.E.2d 1347 

(1997). This offends the well-established rule of statutory construction that “when 

language is inserted in a statute it is inserted to accomplish some definite purpose.” 

State ex rel. Cleveland Elec. Illum. Co. v. Euclid, 169 Ohio St. 476, 479, 159 N.E.2d 

756 (1959). “ ‘The presumption always is, that every word in a statute is designed 

to have some effect, and hence the rule that, ‘in putting a construction upon any 

statute, every part shall be regarded, and it shall be so expounded, if practicable, as 

to give some effect to every part of it.’ ’ ” (Emphasis sic.) Ford Motor Co. v. Ohio 

Bur. of Emp. Servs., 59 Ohio St.3d 188, 190, 571 N.E.2d 727 (1991), quoting Turley 

v. Turley, 11 Ohio St. 173, 179 (1860), quoting Commonwealth v. Alger, 61 Mass. 

53, 89 (1851). 

{¶ 50} Our long precedent of statutory construction establishes that “the 

General Assembly, in enacting a statute, is assumed to have been aware of other 

statutory provisions concerning the subject matter of the enactment even if they are 

found in separate sections of the Code.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 

191-192, 404 N.E.2d 159 (1980), citing State ex rel. Darby v. Hadaway, 113 Ohio 

St. 658, 659, 150 N.E. 36 (1925). The use by the General Assembly of particular 

language in one part of a statute but not in another part demonstrates that it has 
SUPREME COURT OF OHIO

18 

chosen not to make that modification in the latter part of the statute. See Maggiore 

v. Kovach, 101 Ohio St.3d 184, 2004-Ohio-722, 803 N.E.2d 790, ¶ 27. 

{¶ 51} While the General Assembly has used both terms in R.C. 2925.11, it 

has used the term “compound” without using the term “mixture” in other statutes. 

See R.C. 4123.68(C) (“Any industrial process involving the use of lead or its 

preparations or compounds”) and (D) (“Any industrial process involving the use of 

mercury or its preparations or compounds”); R.C. 5739.01(FFF) (“ ‘Drug’ means a 

compound, substance, or preparation, and any component of a compound, 

substance, or preparation * * *”). Therefore, the legislature has demonstrated that 

it knows how to use these terms, and it has chosen to use only the term “compound” 

in R.C. 2925.01(X) to define “cocaine.” 

{¶ 52} If the General Assembly had intended the degree-of-felony 

classifications to include “compound, mixture, preparation, or substance containing 

cocaine,” then it could have easily included that language in those provisions or 

changed the definition of “cocaine” to include “mixture.” But the legislature did 

not. Instead, it limited the degree-of-felony classification to “grams of cocaine” 

only. “Cocaine,” of course, is limited by its definition in R.C. 2925.01(X), which 

does not include the term “mixture.” We should not add the term “mixture” to the 

definition by judicial fiat. See Clark v. Scarpelli, 91 Ohio St.3d 271, 291, 744 

N.E.2d 719 (2001) (Cook, J., concurring in part and dissenting in part) (“the role of 

a court is not to decide what the law should say; rather, the role of this court is to 

interpret what the law says as it has been written by the General Assembly” 

[emphasis sic]). As succinctly stated by the court in Dillon, this analysis “simply 

gives effect to the statute as written.” 145 Ohio St.3d 133, 2015-Ohio-5407, 47 

N.E.3d 794, ¶ 21. 

{¶ 53} The majority contends that interpreting the phrase “of cocaine” in 

R.C. 2925.11(C)(4)(b) through (f) to mean only the drug, not a mixture, “would 

require us to insert the words ‘actual’ or ‘pure’ to describe the cocaine that is 
January Term, 2017 

19 

intended to be penalized by the statute.” Majority opinion at ¶ 13. But this assertion 

is untrue. 

{¶ 54} The certified question recognizes that the issue is whether the state 

“[m]ust * * * prove that the weight of the cocaine * * *.” (Emphasis added.) 143 

Ohio St.3d 1402, 2015-Ohio-2747, 34 N.E.3d 131. As argued by Gonzales, “if the 

relevant weight of cocaine exists in a ‘mixture,’ it really doesn’t matter if the 

mixture is 10%, 20%, 70% or 99% pure since the offense level is tethered to the 

weight of cocaine within the mixture, not purity per se.” (Emphasis sic.) Instead, 

when the statute is read as written, it requires that the state prove possession of five 

or more “grams of cocaine,” according to the definition of “cocaine” in R.C. 

2925.01(X): 

(1) A cocaine salt, isomer, or derivative, a salt of a cocaine isomer 

or derivative, or the base form of cocaine; 

(2) Coca leaves or a salt, compound, derivative, or preparation of 

coca leaves, including ecgonine, a salt, isomer, or derivative of ecgonine, or 

a salt of an isomer or derivative of ecgonine; 

(3) A salt, compound, derivative, or preparation of a substance 

identified in division (X)(1) or (2) of this section that is chemically 

equivalent to or identical with any of those substances, except that the 

substances shall not include decocainized coca leaves or extraction of coca 

leaves if the extractions do not contain cocaine or ecgonine. 

This definition does not include filler material. Therefore, the majority’s conjecture 

that an opposing interpretation of the statute requires insertion of the term “purity” 

is merely an attempt to deflect from the fact that the majority has up-ended 

established rules of statutory construction to reach its result. 
SUPREME COURT OF OHIO

20 

{¶ 55} The error of the majority’s analysis is also demonstrated when other 

provisions of the Revised Code are examined. The grammatical framework of the 

possession-of-cocaine statute is mirrored in other possession statutes. Possession 

of hashish, R.C. 2925.11(C)(7), and trafficking of hashish, R.C. 2925.03(C)(7), and 

L.S.D, R.C. 2925.03(C)(5), contain the same language: “If the drug involved in the 

violation is * * * a compound, mixture, preparation, or substance containing [the 

respective drug] * * *.” Further, the degree-of-felony classifications categorize the 

violations based on whether “the amount of the drug involved” was a specific 

weight of hashish, R.C. 2925.11(C)(7) and 2925.03(C)(7), or of L.S.D., R.C. 

2925.03(C)(5). 

{¶ 56} “Hashish” is defined as “the resin or a preparation of the resin 

contained in marihuana, whether in solid form or in a liquid concentrate, liquid 

extract, or liquid distillate form.” R.C. 2925.01(Z). “L.S.D.” is defined as “lysergic 

acid diethylamide.” R.C. 2925.01(Y). Accordingly, it is only the drugs hashish or 

L.S.D., as defined, that the legislature intended to be quantified to determine the 

degree of felony for the violation. Nevertheless, the majority’s interpretation 

allows for the degree of felony for possession of cocaine and trafficking in cocaine 

to be quantified with something other than cocaine, as defined. This is clearly not 

the intent of the legislature. 

{¶ 57} In addition to my disagreement with the majority’s interpretation of 

the statute, I also do not agree that the language of the statute is unambiguous. 

When the language prohibiting possession of cocaine is read in conjunction with 

the corresponding penalty provision, the statute is ambiguous. See Symmes, 87 

Ohio St.3d at 553, 721 N.E.2d 1057 (conflict among the appellate courts regarding 

the meaning of statutory phrase suggests that the language is ambiguous). 

Moreover, the conflicting interpretations advanced by the lead opinion and the 

dissent in Gonzales I, ___Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ____, are 

strong support for concluding that the statute is ambiguous. 
January Term, 2017 

21 

{¶ 58} When a statute is ambiguous, the court may consider the matters 

listed in R.C. 1.49 to discern the legislature’s intent: the object that the legislature 

sought to attain, the circumstances surrounding the law’s enactment, the law’s 

legislative history, preceding law, the consequences of construing the law in a 

certain way, and the statute’s administrative construction. 

{¶ 59} “Although this court is not bound by” the analyses prepared by the 

Ohio Legislative Service Commission, “we may refer to them when we find them 

helpful and objective.” Meeks, 62 Ohio St.2d at 191, 404 N.E.2d 159. The Ohio 

Legislative Service Commission recognized that one aspect of 2011 Am.Sub.H.B. 

No. 86 (“H.B. 86”) was to eliminate “the distinction between the criminal penalties 

provided for drug offenses involving crack cocaine and * * * powder cocaine,” 

Ohio Legislative Service Commission, Am.Sub.H.B. 86, Bill Analysis as 

Introduced, at 4, available at http://www.lsc.ohio.gov/analyses129/h0086-i129.pdf (accessed Feb. 24, 2017), but a second aspect of the law was to remove the 

presumption of a term of incarceration for fourth-degree-felony drug offenses, Ohio 

Legislative Service Commission, Am.Sub.H.B. 86, Final Analysis (“Final 

Analysis”), at 8, available at http://www.lsc.ohio.gov/analyses129/11-hb86-

129.pdf (accessed Feb. 24, 2017). 

{¶ 60} Heralded as a significant piece of legislation that would drastically 

reduce prison population by ensuring that low-level, nonviolent drug offenders 

would not be subjected to mandatory prison terms, the director of the Department 

of Rehabilitation and Correction called H.B. 86 “a day of hope.” Johnson, Law to 

Cut Prison Population, Columbus Dispatch (June 30, 2011) 1B. 

{¶ 61} The statute signals the legislature’s intent to reduce prison 

population by eliminating presumptive prison sentences for some nonviolent drug 

offenders: it requires that prosecutors prove the “grams of cocaine” and creates a 

presumption of incarceration for only those drug offenders who possess the specific 

number of grams of “cocaine” identified in R.C. 2925.11(C)(4), not those drug 
SUPREME COURT OF OHIO

22 

offenders whose product has only “some detectable amount” of cocaine. Compare 

State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, syllabus 

(under R.C. 2925.03(C)(4)(g), substance offered for sale must contain some 

detectable amount of a controlled substance before an offender can be sentenced as 

a major drug offender). 

{¶ 62} Additionally, R.C. 1.49 permits this court to examine preceding law 

to determine legislative intent. In previous iterations of R.C. 2925.01, “crack 

cocaine” and “cocaine” were separately defined. The now-deleted definition of 

“crack cocaine” was “a compound, mixture, preparation, or substance that is or 

contains any amount of cocaine that is analytically identified as the base form of 

cocaine or that is in a form that resembles rocks or pebbles generally intended for 

individual use.” Former R.C. 2925.01(GG), 2008 Sub.H.B. No. 195. The 

definition of “cocaine” remains unchanged; it does not include the term “mixture.” 

{¶ 63} These definitions demonstrate that the legislature knew how to 

define the term “crack cocaine” to include a mixture and to define the term 

“cocaine” without using the term “mixture.” The General Assembly could have 

amended the definition of “cocaine” to include the term “mixture” when it deleted 

the definition of “crack cocaine,” but it did not. Accordingly, the legislature 

intended to not include the term “mixture” in its definition of “cocaine.” R.C. 

2925.01(X). 

{¶ 64} This interpretation of the statute is also consistent with the intent to 

eliminate the sentencing disparity. Final Analysis at 9. The General Assembly’s 

intent was to penalize offenders for the amount of the drug cocaine regardless of 

form. Penalizing an offender for the weight of cocaine, and not the filler material, 

ensures that offenders are penalized equally. An offender who possesses five grams 

of cocaine should receive the same penalty as the offender who has five grams of 

cocaine and ten grams of filler material. 
January Term, 2017 

23 

{¶ 65} The rule of lenity, codified in R.C. 2901.04(A), must also be 

considered when a statute is ambiguous. It provides that sections of the Revised 

Code that define penalties “shall be strictly construed against the state, and liberally 

construed in favor of the accused.” R.C. 2901.04(A). The rule provides that a court 

will not interpret a criminal statute to increase the penalty it imposes on a defendant 

if the intended scope of the statute is ambiguous. See Moskal v. United States, 498 

U.S. 103, 107-108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990), quoting Bifulco v. 

United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), quoting 

Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (“ 

‘the “touchstone” of the rule of lenity “is statutory ambiguity” ’ ”); see also Arnold, 

61 Ohio St.3d at 178, 573 N.E.2d 1079. 

{¶ 66} Because the statute is ambiguous, the rule of lenity requires that the 

statute be construed so that it applies only to conduct that is clearly proscribed. 

Possession of cocaine, or of a “compound, mixture, substance, or preparation” 

containing cocaine, is proscribed. R.C. 2925.11(C)(4). Possession is a fifth-degree 

felony. R.C. 2925.11(C)(4)(a). However, if the cocaine equals or exceeds five 

grams, possession is penalized as a fourth-, third-, second-, or first-degree felony, 

depending on the amount of the drug, not a compound, mixture, substance, or 

preparation containing the drug, that is in the offender’s possession. In this 

instance, the degree-of-felony classification for possession of cocaine can only be 

determined based on the grams of cocaine, as defined in R.C. 2925.01(X), and not 

filler material. 

{¶ 67} The state of Ohio argues that “the drafters made a probable slight 

faux pas” in amending the penalty provision and to read the statute in any way other 

than that the General Assembly requires a mere “aggregate weight” test “belies the 

legislative intent of the law.” This argument demonstrates the weakness of the 

state’s position in concluding that the statute is not ambiguous. A plain and 

ordinary meaning would not need to be categorized as a blunder or a gaffe. 
SUPREME COURT OF OHIO

24 

However, the “faux pas” argument is not credible, because the General Assembly 

used the same grammatical structure to define the level of felony penalties for 

possession of hashish and cocaine and trafficking in hashish, L.S.D., and cocaine. 

But the legislature did not use the same grammatical structure for possession of 

marijuana and heroin, see R.C. 2925.11(C)(3) and (6), and trafficking in marijuana 

and heroin, see R.C. 2925.03(C)(3) and (6). Therefore, it is not a “slight faux pas”; 

the same language is used throughout the statute in such a manner. 

{¶ 68} The state of Ohio also argues that interpreting the statute to require 

proof of the grams of cocaine as defined presents problems because no lab in Ohio 

conducts a quantitative or purity analysis of substances. However, the confines of 

statutory construction do not afford the judicial branch latitude to consider policy 

matters or outcome metrics in determining the meaning of a statute. Our 

interpretation of a statute cannot be concerned with whether the General Assembly 

issued an unfunded mandate. Our role is simply to give effect to the legislative 

intent as divined from the words used by the legislature. Solomon, 72 Ohio St.3d 

at 65, 647 N.E.2d 486. 

{¶ 69} The argument of the attorney general, as amicus curiae, that “[t]he 

mere fact that the State’s premiere [sic] crime laboratory is not equipped to perform 

this analysis suggests that the General Assembly never intended to require purity 

testing in cocaine prosecutions,” is also unconvincing. In contrast to the state’s 

conjecture regarding the General Assembly’s intent, the intent of that body and the 

actions of the crime laboratory are not always aligned. The “state’s premier crime 

laboratory” stopped testing minor-misdemeanor quantities of marijuana in March 

2016. Lemon, BCI’s End to Free Testing of Pot Starts Questions, Toledo Blade 

(Feb. 13, 2017), available at http://www.toledoblade.com/PoliceFire/2017/02/13/End-to-free-testing-of-pot-starts-questions.html (accessed 

February 28, 2017). However, the General Assembly has not repealed minormisdemeanor possession of marijuana. See R.C. 2925.11(C)(3)(a). 
January Term, 2017 

25 

{¶ 70} Rightly or wrongly, the General Assembly used the specific 

language “grams of cocaine,” without any qualifiers. If the General Assembly had 

intended that the penalty for possession of cocaine depended on the weight for the 

mixture containing the cocaine, and not just the drug cocaine, the General 

Assembly had the opportunity to specify that requirement. Further, the legislature 

has the ability to amend the definition of “cocaine” to include the term “mixture,” 

similar to the former definition of “crack cocaine,” or amend the penalty provisions 

to include this language or delete the “of cocaine” language. See R.C. 

2925.11(C)(3)(b) through (g) (possession of marijuana); R.C. 2925.11(C)(6)(b) 

through (f) (possession of heroin). 

{¶ 71} “It is not the role of the courts ‘to establish legislative policies or to 

second-guess the General Assembly’s policy choices.’ ” Stetter v. R.J. Corman 

Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, 

¶ 35, quoting Groch, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212. 

This court must respect the fact that the constitutional authority to legislate was 

conferred solely on the General Assembly. Article II, Section 1, Ohio Constitution. 

Consequently, “the only sentence which a trial court may impose is that provided 

for by statute. A court has no power to substitute a different sentence for that 

provided for by statute or one that is either greater or lesser than that provided for 

by law.” Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). 

Today, the majority turns its back on these treasured principles of our limited role 

in government to legislate from the bench. 

{¶ 72} Therefore, I dissent. 

_________________ 

O’NEILL, J., dissenting. 

{¶ 73} Reconsideration of this case is improper. On December 23, 2016, 

we released State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d 

___ (“Gonzales I”). Justice Lanzinger authored a lead opinion that Justice Pfeifer 
SUPREME COURT OF OHIO

26 

and I joined. Justice Kennedy authored an opinion concurring in judgment only. 

Chief Justice O’Connor authored a dissenting opinion that Justices O’Donnell and 

French joined. Each of the opinions in Gonzales I was fully and carefully 

considered by the seven justices of the court. The only thing that has changed since 

Gonzales I is the makeup of the court. From this day forward, newly seated justices 

on this court have a license to reconsider that which they never considered in the 

first place. 

{¶ 74} Under S.Ct.Prac.R. 18.02(B), a motion for reconsideration shall not 

reargue the case. Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 

139 Ohio St.3d 212, 2014-Ohio-1940, 11 N.E.3d 222, ¶ 9. The state’s motion for 

reconsideration is a transparent attempt to win this case, not based on the merits of 

its arguments, but based on the change in the makeup of this court following the 

2016 election. I reject the state’s assertion that the lead opinion in Gonzales I

misapplied any canon of statutory construction to arrive at its holding. Instead, the 

lead opinion applied the unambiguous language of the statute. Gonzales I at ¶ 17, 

20, 22. While Justice Kennedy stated that the statute was ambiguous, she concurred 

in the result requiring that the state prove the weight of the cocaine, not the weight 

of the cocaine and fillers, when proving the degree of the felony. Thus, a majority 

of the court in Gonzales I addressed the state’s arguments regarding what the statute 

should say and concluded that those arguments were insufficient to overcome what 

the statute clearly does say. Id. 

{¶ 75} Under R.C. 2925.11(C)(4)(a), possession of any amount of cocaine 

is a fifth-degree felony. To be guilty of a higher degree felony for possession of 

cocaine under the plain language of subdivisions (C)(4)(b) through (f) of R.C. 

2925.11, an offender must possess five or more “grams of cocaine.” The statute 

establishes penalties for the possession of any type or any amount of cocaine, with 

increasing penalties for increasing quantities. That is the statutory framework that 

the General Assembly established. But baby formula, talcum powder, and baking 
January Term, 2017 

27 

soda, substances commonly mixed with cocaine, are not cocaine. The logic is 

unassailable. The possession of baby formula, talcum powder, or baking soda does 

not pose the same risk to the public’s health and safety as possession of cocaine 

does. The wisdom of this statutory framework is not the question to be answered 

by this court in this case. The statute is unambiguous and must be applied as 

written. 

{¶ 76} Gonzales I clearly articulated the correct path for the General 

Assembly if, in fact, the plain language of the statute does not adequately reflect 

the intent of the current General Assembly. Gonzales I at ¶ 22 (lead opinion) and 

¶ 35 (Kennedy, J. concurring in judgment only) (if the General Assembly intended 

to include a mixture of cocaine and fillers for the weight threshold in the penalties 

for possession of cocaine, it can change the statute). And as of this writing, it is 

moving to amend the statute.6

 This is as it should be. “ ‘[W]e must respect that the 

people of Ohio conferred the authority to legislate solely on the General Assembly.’ 

” Id., quoting State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, 42 N.E.3d 734, 

¶ 28 (O’Connor, C.J., concurring). 

{¶ 77} The court’s work in this case was complete on December 23, 2016. 

A new majority, which includes a justice who took office in 2017, is issuing a 

decision allowing reconsideration that is not based on any argument that was not 

expressly addressed in the dissent in Gonzales I. There is nothing new here to be 

reconsidered. The only thing new is the make-up of this court following the 

November 2016 election. And that change is not sufficient grounds for granting 

 

6

 Am.H.B. No. 4 is pending in the 132d Ohio General Assembly. The Ohio Legislative Service 

Commission Bill Analysis states that as a result of this court’s decision in Gonzales I, the proposed 

legislation amends the law to remove the words “of cocaine” from R.C. 2925.03(C)(4)(c) through 

(g) and R.C. 2925.11 (C)(4)(b) through (f). Ohio Legislative Service Commission, Am.H.B. 4, Bill 

Analysis As Passed by the House, 2, available at 

https://www.legislature.ohio.gov/download?key=6510&format=pdf. 
SUPREME COURT OF OHIO

28 

reconsideration; doing so represents a flagrant departure from our own rules of 

practice. 

{¶ 78} To be clear, today’s majority opinion does a major disservice to the 

English language to arrive at a desired result. From this date forward, the statute in 

question will be read to mean that 2.99 grams of baby powder will now be 

considered to be 3.00 grams of cocaine if there is even a scintilla of the controlled 

substance found in the “mixture.” Good enough for government work? I think not. 

I dissent. 

_________________ 

 Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold 

and Thomas A. Matuszak, Assistant Prosecuting Attorneys, for appellant. 

 Mayle, Ray & Mayle, L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and 

Ronald J. Mayle, for appellee. 

 Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel 

T. Van, Assistant Prosecuting Attorney; and Dennis P. Will, Lorain County 

Prosecuting Attorney, and Matthew A. Kern, Assistant Prosecuting Attorney, 

urging reconsideration for amicus curiae Ohio Prosecuting Attorney’s Association. 

 Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant State 

Public Defender, opposing reconsideration for amicus curiae Office of the Ohio 

Public Defender. 

_________________