[Cite as State v. Stoffer, 2015-Ohio-352.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

ALEX K. STOFFER 

Defendant-Appellant 

: 

Appellate Case No. 26268 

Trial Court Case No. 2013-CR-3608 

 

(Criminal Appeal from 

(Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 30th day of January, 2015. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting 

Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts 

Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

 

ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 West Second Street, Suite 603, Dayton, Ohio 

45402 

Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 
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WELBAUM, J. 

{¶ 1} Defendant-appellant, Alex K. Stoffer, appeals from his conviction and sentence 

in the Montgomery County Court of Common Pleas after a jury found him guilty of possessing of 

heroin. Stoffer contends the statute governing the offense level and penalty for possession of 

heroin, R.C. 2925.11(C)(6)(d), violates his constitutional rights to due process and equal 

protection of the law. He also contends the mandatory three-year prison term imposed by the 

trial court is contrary to law. We disagree with Stoffer’s contentions, and for the reasons 

outlined below, the judgment of the trial court will be affirmed. 

Facts and Course of Proceedings

{¶ 2} On January 8, 2014, Stoffer was indicted for one count of possession of heroin in 

an amount that equals or exceeds 100 unit doses but is less than 500 unit doses in violation of 

R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d), a felony of the second degree. The charge was 

based on police discovering 185 heroin capsules in a vehicle driven by Stoffer during a pre-tow 

inventory search conducted after Stoffer was arrested for driving under suspension. 

{¶ 3} Following his indictment, Stoffer filed a motion to dismiss the possession charge 

on grounds that the statute governing the offense level and penalty for possession of heroin, R.C. 

2925.11(C)(6)(d), is unconstitutional. The trial court overruled the motion to dismiss and the 

matter proceeded to a jury trial. 

{¶ 4} Among the witnesses presented at trial was Todd Yoak, a forensic scientist at the 
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Miami Valley Regional Crime Laboratory. Yoak testified that he analyzed the capsules 

discovered in Stoffer’s vehicle and confirmed that they contained heroin. Yoak also testified 

that the total weight of all the capsules’ contents was 4.38 grams. After hearing all the trial 

testimony, the jury deliberated and ultimately found Stoffer guilty of possession of heroin as 

charged. The trial court then sentenced Stoffer to a mandatory three-year prison term. 

{¶ 5} Stoffer now appeals from his conviction and sentence raising two assignments of 

error for review. 

First Assignment of Error

{¶ 6} Stoffer’s First Assignment of Error is as follows: 

MR. STOFFER’S CONVICTION IS UNCONSTITUTIONAL IN THAT THERE 

IS AN ARBITRARY AND IRRATIONAL DISTINCTION BETWEEN BULK 

AND UNIT DOSES OF HEROIN. 

{¶ 7} Under this assignment of error, Stoffer challenges the constitutionality of R.C. 

2925.11(C)(6)(d) on grounds that the statute violates his rights to due process and equal 

protection of the law. Specifically, Stoffer claims the statute: (1) provides an arbitrary and 

irrational distinction between bulk amounts and unit doses of heroin; (2) permits unwarranted 

sentencing disparities between offenders who possess unit doses and offenders who possess bulk 

amounts; and (3) permits the State to discriminatorily and arbitrarily enforce the law governing 

possession offenses. We disagree with Stoffer’s contentions. 

{¶ 8} “It is difficult to prove that a statute is unconstitutional.” Arbino v. Johnson & 

Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. “All statutes have a 
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strong presumption of constitutionality. * * * Before a court may declare unconstitutional an 

enactment of the legislative branch, ‘it must appear beyond a reasonable doubt that the legislation 

and constitutional provisions are clearly incompatible.’ ” Id., quoting State ex rel. Dickman v. 

Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. 

{¶ 9} “When reviewing a statute on due-process grounds, we apply a rational-basis test 

unless the statute restricts the exercise of fundamental rights.” (Citations omitted.) Id. at ¶ 49. 

A statute is deemed valid under a due-process rational basis test “ ‘ “if it bears a real and 

substantial relation to the public health, safety, morals or general welfare of the public and * * * 

if it is not unreasonable or arbitrary.” ’ ” Id., quoting Mominee v. Scherbarth, 28 Ohio St.3d 

270, 274, 503 N.E.2d 717 (1986), quoting Benjamin v. Columbus , 167 Ohio St. 103, 146 N.E.2d 

854 (1957), paragraph five of the syllabus. In other words, “[u]nder the rational-basis test, a 

statute survives if it is reasonably related to a legitimate government interest.” (Citation 

omitted.) State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18. 

{¶ 10} Similarly, under a traditional equal protection analysis, “ ‘[a] statutory 

classification which involves neither a suspect class nor a fundamental right does not violate the 

Equal Protection Clause of the Ohio or United States Constitutions if it bears a rational 

relationship to a legitimate governmental interest.’ ” McCrone v. Bank One Corp., 107 Ohio 

St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 8, quoting Menefee v. Queen City Metro, 49 Ohio 

St.3d 27, 29, 550 N.E.2d 181 (1990). “In determining whether a legislative classification has a 

rational basis, the test is whether any state of facts, either known or which can reasonably be 

assumed, supports the classification.” State v. Draughn, 2d Dist. Montgomery No. CA 9664, 

1987 WL 7511, *4 (Mar. 3, 1987). “If the question is at least debatable, then the decision is a 
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legislative one and the classification will be upheld.” Id., citing United States v. Carolene 

Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). “A court will set aside a 

legislative classification only where it is clear beyond a reasonable doubt that there is no rational 

basis for that classification.” Id., citing State v. Babcock, 7 Ohio App.3d 104, 454 N.E.2d 556 

(10th Dist.1982), paragraph two of the syllabus. 

{¶ 11} As previously noted, Stoffer contends that R.C. 2925.11(C)(6)(d) violates his 

rights to due process and equal protection of the law because he claims the statute sets forth an 

arbitrary and irrational distinction between bulk amounts and unit doses of heroin and permits 

unwarranted sentencing disparities between offenders who possess unit doses and offenders who 

possess bulk amounts. We note that “bulk amount” is a legal term of art that does not apply to 

heroin. See R.C. 2925.11(C)(1) and (C)(6); R.C. 2925.01(D); see also State v. Santiago, 195 

Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 72 (2d Dist.) (Hall, J., concurring in part 

and dissenting in part) (“ ‘Bulk amount’ is now used to stratify the level of drug offenses, except 

for those involving marijuana, cocaine, LSD, heroin, and hashish, which have their own separate 

quantity/level classification”). Therefore, we will instead review Stoffer’s constitutional claims 

under the correct quantity/level classification provided for in R.C. 2925.11(C)(6)(d). 

{¶ 12} Pursuant to R.C. 2925.11(C)(6)(d): 

(6) If the drug involved in the violation is heroin or a compound, mixture, 

preparation, or substance containing heroin, whoever violates division (A) of 

[R.C. 2925.11] is guilty of possession of heroin. The penalty for the offense shall 

be determined as follows: 

* * * 
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(d) If the amount of the drug involved equals or exceeds one hundred unit doses 

but is less than five hundred unit doses or equals or exceeds ten grams but is less 

than fifty grams, possession of heroin is a felony of the second degree, and the 

court shall impose as a mandatory prison term one of the prison terms prescribed 

for a felony of the second degree. 

{¶ 13} “ ‘Unit dose’ means an amount or unit of a compound, mixture, or preparation 

containing a controlled substance that is separately identifiable and in a form that indicates that it 

is the amount or unit by which the controlled substance is separately administered to or taken by 

an individual.” R.C. 2925.01(E). The heroin capsules discovered in Stoffer’s vehicle fall under 

this definition. 

{¶ 14} In this case, Stoffer essentially argues that under R.C. 2925.11(C)(6)(d), his 

possession of 185 unit doses of heroin, which contained a total of 4.38 grams of the drug, 

subjects him to a second-degree felony and a mandatory prison term, while under section (b) of 

the same statute, possessing 4.38 grams of heroin by itself is only a fourth-degree felony that does 

not mandate a prison term. See R.C. 2925.11(C)(6)(b). In other words, Stoffer claims that R.C. 

2925.11(C)(6) provides unequal penalties for essentially same conduct and that there is no 

rational basis for distinguishing between offenders who possess unit doses and offenders who 

possess heroin by itself. 

{¶ 15} We addressed a similar argument in Draughn, 2d Dist. Montgomery No. CA 

9664, 1987 WL 7511 (Mar. 3, 1987). In Draughn, the appellant was convicted of multiple 

counts of trafficking cocaine and possession of cocaine. Id. at *1. Appellant argued that the 

sentencing scheme in effect at that time for drug trafficking under R.C. 2925.03 violated his right 
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to due process because a person who sells a mixture of five grams of cocaine with 20 grams of 

sugar would be subject to a second-degree felony and incarceration, while a person who sells just 

five grams of cocaine by itself is subject to a third-degree felony and no incarceration. Id. at *3. 

We determined that appellant's argument instead implicated the equal protection clause and 

concluded that the legislature had a rational basis for increasing the penalty for persons who 

dilute or cut controlled substances before selling them because the purpose of doing so is to 

increase drug sales. Id. at *4. 

{¶ 16} In reaching the foregoing conclusion in Draughn, we cited State v. Webster, 8th 

Dist. Cuyahoga No. 42778, 1981 WL 4982 (May 21, 1981). Like Draughn, the appellant in

Webster was convicted of drug trafficking and challenged the constitutionality of R.C. 2925.03 

on equal protection grounds arguing the statute permitted greater penalties for trafficking in unit 

doses. Webster at *1-2. The Eighth District concluded there was a rational basis for increasing 

the penalty for selling in unit doses because the purpose of R.C. 2925.03 is to minimize drug 

trafficking and where “a controlled substance is packaged in discrete units for consumption, it 

was reasonable for the legislature to assume that a larger number of unit doses would create a 

larger number of drug incidents, and that it would thus deter the distribution of drugs to a wider 

audience to increase the penalty as the number of units distributed increases.” Id. at *2. 

{¶ 17} Stoffer acknowledges that there is a rational basis for imposing greater penalties 

for trafficking in unit doses, but argues there is no rational basis for such a penalty increase with 

respect to mere possession offenses. We disagree, as the clear purpose of R.C. 2925.11 is to 

proscribe the possession and use of controlled substances, and this purpose is legitimately served 

by increasing the penalty for possessing controlled substances in a form that facilitates more 
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instances of abuse. By deterring offenders like Stoffer from possessing heroin in an easily 

distributable form, the statute effectively curtails the potential for distribution and prevents future 

possession and use offenses by others. 

{¶ 18} It is also reasonable to assume that those who possess several unit doses of heroin 

are not just users, but are in the chain of distribution. The present case supports this assumption, 

as the presentence investigation report notes that Stoffer indicated he was a heroin dealer. 

Accordingly, there exists a rational basis for distinguishing between offenders who possess 

heroin by itself and those who possess unit doses, as those who possess unit doses are capable of 

causing more widespread incidents of abuse. 

{¶ 19} Stoffer also contends that the sentencing scheme under R.C. 2925.11(C)(6) 

permits the State to discriminatorily and arbitrarily enforce the law since it may charge a 

defendant with possession of drugs either in unit doses or by weight in grams when the charge is 

based upon the same physical quantity of drugs. However, “the existence of prosecutorial 

discretion concerning which offense to charge when two statutes prohibit the same conduct is not 

unconstitutional unless [the] defendant demonstrates such discretion is exercised to 

impermissibly discriminate against a particular class of persons to which he belongs.” State v. 

Powell, 87 Ohio App.3d 157, 621 N.E.2d 1328 (8th Dist. 1993). Accord State v. Payne, 8th 

Dist. Cuyahoga No. 86280, 2006-Ohio-3005, ¶ 12. 

{¶ 20} Here, the State charged Stoffer with a second-degree felony under R.C. 

2925.11(C)(6)(d) for possessing 185 unit doses of heroin as opposed to a fourth degree-felony 

under R.C. 2925.11(C)(6)(b) for possessing 4.38 grams of heroin. Stoffer has failed to 

demonstrate that this decision impermissibly discriminated against a particular class of persons to 
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which he belongs, i.e. possessors of unit doses, as we have already established that there is a 

rational basis for imposing greater penalties on those who possess drugs in unit doses. 

{¶ 21} For the foregoing reasons, we conclude Stoffer was not denied his constitutional 

rights to due process or equal protection of the law and, therefore, overrule his First Assignment 

of Error. 

Second Assignment of Error

{¶ 22} Stoffer’s Second Assignment of Error is as follows: 

MR. STOFFER’S THREE[-]YEAR PRISON SENTENCE IS CONTRARY TO 

LAW. 

{¶ 23} Under his Second Assignment of Error, Stoffer contends his mandatory 

three-year prison sentence is contrary to law because the trial court failed to discuss on the record 

the factors it is required to consider pursuant to R.C. 2929.11(A). 

{¶ 24} We review all felony sentences under R.C. 2953.08(G)(2). State v. Rodeffer, 

2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). Pursuant to this statute: 

The appellate court may increase, reduce, or otherwise modify a sentence that is 

appealed under this section or may vacate the sentence and remand the matter to 

the sentencing court for resentencing. The appellate court’s standard for review is 

not whether the sentencing court abused its discretion. The appellate court may 

take any action authorized by this division if it clearly and convincingly finds 

either of the following: 

(a) That the record does not support the sentencing court's findings under division 
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(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or 

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant. 

(b) That the sentence is otherwise contrary to law. 

R.C. 2953.08(G)(2). 

{¶ 25} “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue 

or factor which a statute requires a court to consider.” (Citation omitted.) State v. Lofton, 2d 

Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not contrary to law when 

the trial court imposes a sentence within the statutory range, after expressly stating that it had 

considered the purposes and principles of sentencing set forth in R.C. 2929.11, as well as the 

factors in R.C. 2929.12.” Rodeffer at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 

2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. We emphasize that “[t]he court is not required to make 

specific findings or to use the exact wording of the statute[s].” (Citation omitted.) State v. 

Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8. “Furthermore, even if there is 

no specific mention of those statutes in the record, ‘it is presumed that the trial court gave proper 

consideration to those statutes.’ ” State v. Cave, 2d Dist. Clark No. 09-CA-6, 2010-Ohio-1237, 

¶ 10, quoting Kalish at fn. 4. 

{¶ 26} In this case, Stoffer was convicted of possessing heroin in an amount equaling or 

exceeding 100 unit doses, but not more than 500 unit doses. Pursuant to R.C. 2925.11(C)(6)(d), 

this is a felony of the second degree in which a mandatory prison term is required. The trial 

court imposed a mandatory three-year prison term, which is within the prescribed statutory range 

for second-degree felonies. See R.C. 2929.14(A)(2). Additionally, the trial court stated at the 

sentencing hearing that it considered the purposes and principles of sentencing and the 
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seriousness and recidivism factors prior to imposing Stoffer’s prison sentence. See Trans. (June 

3, 2014), p. 282. We therefore conclude the sentence is not contrary to law, as it is within the 

prescribed statutory range and the trial court expressly stated that it made the required 

considerations. 

{¶ 27} We note that we have reviewed Stoffer’s sentence under the standard of review 

set forth in Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069. In Rodeffer, we held that we would no 

longer use an abuse-of-discretion standard in reviewing a sentence in a criminal case, but would 

apply the standard of review set forth in R.C. 2953.08(G)(2). Since then, opinions from this 

court have expressed reservations as to whether our decision in Rodeffer is correct. See, e.g., 

State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn. 1; State v. Johnson, 

2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn. 1. Regardless, in the case before us, 

we find no error in the sentence imposed under either standard of review. 

{¶ 28} Stoffer’s Second Assignment of Error is overruled. 

Conclusion

{¶ 29} Having overruled both of Stoffer’s assignments of error, the judgment of the trial 

court is affirmed. 

. . . . . . . . . . . . . 

FROELICH, P.J. and FAIN, J., concur. 
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Copies mailed to: 

Mathias H. Heck 

Michele D. Phipps 

Elizabeth C. Scott 

Hon. Mary Katherine Huffman