[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pountney, Slip Opinion No. 2018-Ohio-22.]

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 De cisions, 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.

S LIP O PINION N O

. 2018-O HIO -22

T HE S TATE OF O HIO , A PPELLANT , v. P OUNTNEY , A PPELLEE . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Pountney, Slip Opinion No. 2018-Ohio-22.] Criminal law—R.C. 2925.11(C)(1)(c)—Aggravated possession of drugs— Fentanyl—Enhanced felony levels—R.C. 2925.01(D)(1)(d)—Definition of “bulk amount”—Because state failed to prove maximum daily dose in the usual dose range specified in a st andard pharmaceutical reference manual for transdermal fentanyl, it failed to establish the “bulk amount” of that drug for purposes of increasing felony level—State may not rely on usual dose range of morphine to establis h bulk amount of transdermal fentanyl— Judgment of the court of appeals affirmed. (No. 2016-1255—Submitted September 13, 2017—Decided January 4, 2018.)

A PPEAL from the Court of Appeals for Cuyahoga County, No. 103686,

2016-Ohio-4866.

_____________________S UPREME C OURT OF O HIO

2 F RENCH , J. {¶ 1} In this appeal, we examine the statutory requirements for proving enhanced felony levels of aggravated possession of fentanyl based on the amount of the drug involved. Ohio defines these levels in terms of multiples of the “bulk amount,” which for the fentanyl at issu e in this case means “five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual.” R.C. 2925.01(D)(1)(d). A ppellant, the state of Ohio, asks this court to hold that “because there is no ‘usual dose range’ of fentanyl, the State may rely upon the usual dose range of morphine , the prototype drug for fentanyl, to establish the bulk amount of fentanyl under R.C. 2925.01(D)(1)(d).” {¶ 2} Fentanyl, a Schedule II controlled subs tance, is a synthetic opioid that is approximately 100 times mo re potent than morphine and 50 times more potent than heroin. R.C. 3719.41 (Schedule II(B)(9)) ; United States Dept. of Justice, Drug Enforcement Administration, Drugs of Abuse, A DEA Resource Guide 40 (2017), https://www.dea.gov/pr/multimedia-libra ry/publications/drug_of_abuse.pdf#page =40 (accessed Dec. 12, 2017). Fentanyl a nd related drugs were involved in nearly 60 percent of Ohio’s 4,050 overdose deaths in 2016. Ohio Dept. of Health, News Release, Fentanyl, Carfentanil and Cocaine Drive Increase in Drug Overdose

Deaths in 2016 (Aug. 30, 2017), http://www.odh.ohio.gov/- /media/ODH/ASSETS/Files/health/inju ry-prevention/ODH-News-Release---- 2016-Ohio-Drug-Overdose-Report.pdf?la=en (accessed Dec. 12, 2017). And in the first two months of 2017, approximately 90 percent of unintentional overdose

deaths in 25 Ohio counties involved fe ntanyl, fentanyl analogs or both. Daniulaityte, Juhascik, Strayer, Sizemore , Harshbarger, Antonides, and Carlson, Overdose Deaths Related to Fentany l and its Analogs—Ohio, January-February

2017

, 66 Morbidity & Mortality Weekly Report No. 34, 904, 905-906, https://www.cdc.gov/mmwr/volumes/66/ wr/pdfs/mm6634a3.pdf (accessed Dec. 12, 2017), datum corrected in Errata : Vol. 66 No. 34 , 66 Morbidity & MortalityJanuary Term, 2018

3 Weekly Report No. 38, 1030, https:// www.cdc.gov/mmwr/volumes/66/wr/pdfs/ mm6638a8.pdf (accessed Dec. 12, 2017) (clari fying that the number of counties was 25). {¶ 3} To be sure, enhanced felony prosec ution for possession of fentanyl is one weapon in the state’s arsenal in the war on drug-related crime. But what the state asks here requires the General Assembly , not this court, to act. We reject the state’s interpretation of the enhancemen t provisions for fentanyl possession because it conflicts with unambiguous statut ory language. We affirm the judgment of the court of appeals. Facts and procedural background {¶ 4} Appellee, Mark H. Pountney, was i ndicted on two counts of theft, one count of identity fraud, and two counts of drug possession—one of which involved fentanyl and one of which involved acetaminophen with codeine. Pountney stipulated to the allegations underlying the charges of theft, identity fraud, and possession of acetaminophen with codeine. Count 4 of the indictment—the only count relevant here—alleged that Pountne y knowingly obtained, possessed or used

at least 5 but not more than 50 times the bulk amount of fentanyl, in violation of R.C. 2925.11(A), which is a second-degr ee felony under R.C. 2925.11(C)(1)(c). {¶ 5} Subject to certain exceptions not applicable here, R.C. 2925.11(A) prohibits a person from knowingly obtaini ng, possessing or using a controlled

substance or controlled-substance an alog. A violation of R.C. 2925.11(A) involving fentanyl constitutes aggravated possession of drugs. R.C. 2925.11(C)(1); R.C. 3719.41 (Schedule II(B)(9)). {¶ 6} Except as provided in R.C. 2925.11(C)(1)(b) through (e), aggravated possession of drugs is a fifth-degree felo ny. R.C. 2925.11(C)(1)(a). If, however, the amount of the drug involved meets statut orily defined thresholds, the offense is enhanced to a first-degree, second-de gree or third-degree felony. R.C. 2925.11(C)(1)(b) through (e). As relevant he re, “If the amount of the drug involvedS UPREME C OURT OF O HIO

4 equals or exceeds five times the bulk am ount but is less than fifty times the bulk amount,” the offense is a second-de gree felony. R.C. 2925.11(C)(1)(c). {¶ 7} The General Assembly has define d the “bulk amount” of a Schedule II opiate or opium derivativ e, like fentanyl, as an “amount equal to or exceeding twenty grams or five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual.” R.C. 2925.01(D)(1)(d). Here, we are concerned only with the se cond prong of that definition. Pountney stipulated that he knowingly obtained ten three-day transdermal fentanyl patches, each of which delivered 50 micrograms of fentanyl per hour. He disputed, however, that the patches equaled the “bulk amount or some multiple of the bulk amount” of transdermal fentanyl. {¶ 8} The Cuyahoga County Court of Common Pleas conducted a bench trial solely on the state’s proof regarding the “bulk amount” of transdermal fentanyl. If the state proved that the ten fentanyl patches equaled or exceeded five times the bulk amount of transdermal fentanyl, Pount ney would be guilty of a second-degree felony; otherwise, based on his stipulations , he would be guilty of a fifth-degree felony. R.C. 2925.11(C)(1)(a) and (e). {¶ 9} The trial court found Pountney guilty on all counts in the indictment, including second-degree-felony aggravated possession of fentanyl involving at

least five times the bulk amount. After me rging allied offenses, the trial court sentenced Pountney to three years in pris on for aggravated possession of fentanyl and 18 months in prison for identity fraud, to be served concurrently. The trial court also imposed a $7,500 fine and three years of mandatory postrelease control. {¶ 10} Pountney appealed his convicti on for aggravated possession of fentanyl, arguing that the state failed to present sufficient evidence of the “bulk amount.” The Eighth District Court of A ppeals agreed with Pountney, reversed the trial court’s judgment, and remanded this case with instructions for the trial courtJanuary Term, 2018

5 to enter a finding of guilty on Count 4 as a fifth-degree felony and to resentence Pountney accordingly. {¶ 11} This court accepted the state’s discretionary appeal. The state’s single proposition of law asse rts that the state may rely upon the usual dose range of morphine, the prototype opiate, to es tablish the bulk amount of fentanyl under R.C. 2925.01(D)(1)(d). We reject the state’s proposition.

The evidence {¶ 12} At trial, the state presented an expert report and testimony from Paul Schad, a pharmacist employed as a compliance specialist for the Ohio State Board of Pharmacy. Attached to Scha d’s report is a portion of the American Hospital Formulary Service Drug Information (“AHFS”), which the board of pharmacy has approved as a standard pharmaceutical reference manual, Ohio Adm.Code 4729- 11-07(F). {¶ 13} Schad’s report c ites the R.C. 2925.01(D)(1)(d) definition of “bulk amount”—“[a]n amount equal to or exceeding * * * five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual.” In his testimony, Schad stated, “I would refer to the standard pharmaceutical reference” to determine the usual dose range for a particular drug. Schad’s report states, “Pursuant to the definition of Bulk Amount, the ‘maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual’ was taken from” the AHFS. But Schad admitted, “you’re not going to see a usual dosage range” for fentanyl patches in the AHFS. Nevertheless, he stated that the bulk amount of 50-microgram-per- hour fentanyl patches is two patches. {¶ 14} The AHFS states that transdermal fentanyl should be used only with patients who are opiate tolerant:

Dosage of transdermal fentanyl should be individualized according to the clinical status of the patie nt, desired therapeutic effect, andS UPREME C OURT OF O HIO

6 patient age and weight and should be assessed at periodic intervals. However, the most important factor to be considered in determining the appropriate dose is the degree of existing opiate tolerance. In selecting an appropriate initial dose of the transdermal system, consideration also must be give n to the daily dose, potency, and characteristics * * * of the opiate the patient has been receiving and the reliability of potency estimates, which may vary by route, used to calculate an equivalent transdermal dose.

(Endnotes omitted.) {¶ 15} Having acknowledged that the AHF S does not state a “usual dose range” for transdermal fentanyl, Schad explained, “We need to look at dosing— usual dosage range of the other opiates, c onsidering Morphine as the prototype of opiates. We look at the usual dosage range of Morphine, finding a maximum daily dose within the usual dosage range of Mo rphine, and convert that to Fentanyl patches.” Schad then engaged in a series of calculations in an effort to deduce the bulk amount of transdermal fentanyl fro m the usual dose range of morphine. {¶ 16} Schad testified that the “usual dos age range of oral morphine found in the standard pharmaceutical reference is 10 to 30 milligrams every four hours,” for a maximum daily dose in the usual dose range of 180 milligrams. Schad then turned to Table 2 of the AHFS manual regarding fentanyl. Table 2, titled Transdermal Fentanyl Dose Based on Cu rrent Oral Opiate Dosage, sets out manufacturer-provided, conservative, initial dosage recommendations for switching an opiate-tolerant patient to tran sdermal fentanyl from other, oral opiates, including morphine. For a patient who is being transferred from morphine, the table recommends a transdermal fentanyl dose of 25, 50, 75 or 100 micrograms per hour, based upon the patient’s daily dose of mo rphine (ranging in the table from 60 to 404 milligrams). For a patient w ho has been receiving the 180-milligramJanuary Term, 2018

7 maximum daily dose in the usual dose rang e for morphine, Table 2 recommends an initial transdermal fentanyl dose of 50 mic rograms per hour. Based solely on that conversion, Schad te stified that 1200 micrograms per day—50 micrograms per hour multiplied by 24 hours—is the maximu m daily dose in the usual dose range for transdermal fentanyl. {¶ 17} Schad next multiplied 1200 micrograms by five to calculate a “bulk amount” of 6000 micrograms, or 6 milligrams , for transdermal fentanyl. Because an indivisible 50-microgram-per-hour fe ntanyl patch contains 5 milligrams of fentanyl, Schad testified th at it takes two patches to equal the “bulk amount.” Analysis {¶ 18} The Eighth District held that the state did not present sufficient evidence that Pountney possessed the “ bulk amount” of fentanyl. 2016-Ohio-4866, ¶ 26. {¶ 19} When reviewing the sufficiency of the evidence, an appellate court

does not ask whether the evidence should be believed but, rather, whether the evidence, “if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essentia l elements of the crime proven beyond a

reasonable doubt.” Jenks at paragraph two of the syllabus. Although the Eighth District framed its decision in terms of sufficiency of the evidence, the overriding question in this case is the meaning of R.C. 2925.01(D)(1)(d)’s definition of “bulk amount” and its application to the undisputed facts. {¶ 20} Interpretation of a statute is a ques tion of law that we review de novo. State v. Pariag , 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9. “The primary goal of statutory construction is to ascertain and give effect to the legislature’s intent,” as ex pressed in the plain meaning of the statutory language.S UPREME C OURT OF O HIO

8 State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. If the statutory language is unambiguous, we apply it as written. Pariag at ¶ 10. Only when a statute is ambiguous may we engage in further construction. Id. {¶ 21} The method of proving an increased felony level for drug possession based on the amount of the drug involved de pends on the identity of the drug. For

Schedule II controlled substances like fentan yl, the increase is based on either the weight of the drug or multiples of the “bulk amount” of the drug. See R.C. 2925.11(C)(1). For other drugs, the increase is based solely on the weight of the drug, see R.C. 2925.11(C)(3) and (4), or on either the weight of the drug or the number of “unit doses,” see R.C. 2925.11(C)(5). Here, to convict Pountney of second-degree felony aggravated possession of drugs, the state had to prove that Pountney obtained or possessed at least fi ve times the bulk amount of transdermal fentanyl. R.C. 2925.11(C)(1)(c). {¶ 22} The starting point for establishing the bulk amount of a controlled substance under the second prong of R.C. 2925.01(D)(1)(d) is the “maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual.” By using that language, the General Assembly chose to tie the definition

of “bulk amount” to the contents of a re ference manual beyond its control. The plain language of R.C. 2925.01(D)(1)(d) requires that the maximum daily dose in the usual dose range be specified in a standard pharmaceutical reference manual. “Specify” means “to mention or name in a specific or explicit manner: tell or state precisely or in detail.” Webster’s Third New International Dictionary 2187 (2002). {¶ 23} The state may prove the maximum daily dose in the usual dose range in one of three ways: “(1) by stipulati on, (2) by expert testimony as to what a standard pharmaceutical reference manual prescribes, or (3) by a properly proven copy of the manual itself.” State v. Montgomery , 17 Ohio App.3d 258, 260, 479 N.E.2d 904 (1st Dist.1984); but see State v. Caldwell , 5th Dist. Richland No. CA2369, 1986 WL 7456, *3 (June 23, 1986) (approving judicial notice of bulk amountJanuary Term, 2018

9 stated in a standard pharmaceutical reference manual). The state contends that it

established the bulk amount of transderma l fentanyl through Schad’s expert report and testimony and the portion of the AHFS regarding fentanyl that was admitted as

evidence. {¶ 24} The AHFS explicitly states usual dose ranges for certain controlled substances, including morphine. Schad repeatedly stated that the AHFS specifies a usual dose range of 10 to 30 milligrams every four hours for morphine. And Ohio

courts have noted direct statements of usual dose ranges for other controlled substances in the AHFS or other standard pharmaceutical reference manuals. See State v. Bange , 4th Dist. Ross No. 10CA3160, 2011-Ohio-378, ¶ 12 (quoting from the AHFS entry for “ ‘Oxycodone Hydrochl oride Tablets USP’ ” a “usual adult dose” of “ ‘2 to 15 mg every 4 to 6 hours as needed’ ”); State v. Baker , 2d Dist. Montgomery No. 7753, 1982 WL 3801, *2 (Sept. 23, 1982) (“In examining any one of a number of ‘standard pharmaceutical reference manuals’ as defined in R.C. 2925.01(N), one finds that the maximum daily dose (in the usual dosage range specified) for Methaqualone is 300 milligrams”). {¶ 25} The AHFS does not, however, specify either a “usual dose range” or a “maximum daily dose in the usual dose range” for transdermal fentanyl. Instead, it directs that dosage of transdermal fentanyl should be individualized and periodically assessed. The state concedes that “there was no ‘usual dose range’ for fentanyl because doctors only ever prescribe fentanyl based on whatever dose of opiate the patient is already taking.” This creates a problem of proof for the prosecution, but it is not a problem that we may remedy by ignoring the unambiguous statutory language the General Assembly has employed. {¶ 26} Though Schad testified that he “ref er[ed] to” the AHFS to make his findings, he did not identify a “maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual” for fentanyl, as R.C. 2925.01(D)(1)(d) requires. He did not iden tify a “usual dose range” for transdermalS UPREME C OURT OF O HIO

10 fentanyl, either by reference to the AHFS or otherwise. The Ohio Attorney General, as amicus curiae, argues that R.C. 2925.01(D)(1)(d) is satisfied if the reference manual specifies “[t]he manner for determining fentanyl’s ‘usual dose range.’ ” (Emphasis added.) But that r eading is contrary to the plain statutory language, which requires that the manual specify the maximum daily dose in the usual dose range. In context, the plain meaning of “specified in a standard pharmaceutical reference manual” requires more than a reference point for calculating a maximum daily dose; the manual must specify the usual dose range itself, or at least the maximum daily dose within that range. {¶ 27} Even assuming that the absence of an express statement in the AHFS of the usual dose range of transdermal fentanyl does not, in itself, defeat the state’s position, Schad’s testimony doe s not establish a maximum daily dose in the usual dose range for fentanyl by reference to the AHFS. Table 2 sets out the drugmanufacturer’s conservative, initial dosage recommendations for switching opiatetolerant patients from oral opiates to tr ansdermal fentanyl, but it does not establish analgesic equivalents. In fact, the AHFS warns that Table 2 should not be used to convert patients from transdermal fentanyl to the listed oral opiates, because the conversions may result in an overe stimated dose of the oral opiate. {¶ 28} From Table 2’s recommendation of an initial 50-microgram-perhour dose of transdermal fentanyl for a patient being transitioned from the 180- milligram maximum daily dose in the usual dose range of morphine, Schad stated that 50 micrograms per hour, or 1200 microgr ams per day, is the maximum daily dose in the usual dose range of transder mal fentanyl. But he acknowledged the statement in the AHFS that “many patients are likely to require upward dosage titration after initial application of a transdermal dose” and that many patients will have their doses increased beyond 50 mic rograms per hour. He also acknowledged that fentanyl patches are manufactured in doses as high as 100 micrograms per hour and that doctors may prescribe multiple patches to be worn simultaneously toJanuary Term, 2018

11 increase a patient’s hourly and daily doses of fentanyl. Nothing in the AHFS, including Table 2, supports Schad’s testimony that the initial, conservative dose of transdermal fentanyl recommended for a patient being transitioned from the maximum daily dose in the usual dose range of morphine equals the maximum daily dose in the usual dose range of transdermal fentanyl. {¶ 29} Schad relied upon Table 2’s r ecommended conversion from morphine to transdermal fentanyl to calculate the maximum daily dose in the usual dose range, but applying Schad’s methodology to other oral opiates listed in Table 2 results in different recommended doses of transdermal fentanyl. For example, Table 2 recommends that a patient ta king the 360-milligram maximum daily dose in the usual dose range of codeine phosphate be switched to a transdermal fentanyl dose of 25 micrograms per hour but that a patient taking the 120-milligram maximum daily dose in the usual dose ra nge of methadone hydrochloride be

switched to a transdermal fentan yl dose of 100 micrograms per hour. 1 Each of

those doses differs from Schad’s calculation of the maximum daily dose in the usual dose range for transdermal fentanyl, base d on morphine. So even using Schad’s methodology, the maximum daily dose in the usual dose range of transdermal fentanyl is a moving target that pr ovides no meaningful guidance to potential offenders or to the prosecutors who bring criminal charges. {¶ 30} In State v. Huber , 187 Ohio App.3d 697, 2010-Ohio-2919, 933 N.E.2d 345 (2nd Dist.)—apparently the onl y other Ohio appellate decision to address the sufficiency of evidence of the bulk amount of fentanyl based on the maximum daily dose in the usual dose rang e—the Second District held that the state failed to prove the maximum daily dos e in the usual dose range of fentanyl

1 For these comparisons only, we take the maximum daily doses in the usual dose range from the board of pharmacy’s Controlled Substance Reference Table (which at the relevant time was not an approved pharmaceutical reference manual), because the record does not contain the portions of the AHFS regarding the oral opiates listed in Table 2.S UPREME C OURT OF O HIO

12 when there was no stipulation, the state di d not submit an authenticated copy of a standard pharmaceutical reference manual that specified the maximum daily dose in the usual dose range, and there was no expert testimony “as to what a standard pharmaceutical reference manual prescribes.” Id. at ¶ 9. We agree. The state argues that Huber is distinguishable based on th e existence of Schad’s expert testimony in this case, but Schad did not testify “as to what a standard pharmaceutical reference manual prescribes” as the maximum daily dose in the usual dose range for fentanyl. See id. So, we conclude that as in Huber , the state did not prove the maximum daily dose in the usual dose range for fentanyl. {¶ 31} Before the court of appeals, the state argued that this case is analogous to Bange , 4th Dist. Ross No. 10CA3160, 2011-Ohio-378. In Bange , the

Fourth District affirmed a conviction for aggravated possession of extended-release Oxycodone tablets even though the testifyi ng pharmacist relied on the usual dose range for nonextended-release Oxycodone tablets to determine the bulk amount. The AHFS contained separate listings, with different usual dose ranges, for

extended-release and nonextended-releas e Oxycodone tablets. The nonextendedrelease listing stated a usual adult dose of “2 to 15 mg every 4 to 6 hours,” whereas the extended-release listing stated, “[d] osage must be individualized by the physician according to the severity of pain and patient response.” (Brackets sic.)

Id. at ¶ 11-12. The Fourth District rej ected Bange’s sufficiency and manifestweight challenges. It recognized, “[I]t is not clear whether the [extended-release] listing even provides a maximum usual daily dose,” and held, “Under these circumstances, we see no reason why a ph armacist cannot dete rmine that another listing provides a sufficient basis for stating the maximum daily dose in the usual dose range.” Id. at ¶ 20. Whether or not we would have reached the same conclusion as the Fourth District, its appr oval of the use of a specified dose range for another form of Oxycodone in Bange does not justify the use of the usual doseJanuary Term, 2018

13 range for morphine—an entirely different drug—to determine the bulk amount of fentanyl. {¶ 32} The issue in this case is not Schad’s credibility or the persuasiveness of his testimony. Rather, the issue is whether Schad’s testimony satisfies the statutory definition of “bulk amount,” that is, whether he testified to a maximum daily dose in the usual dose range for fentanyl specified in a standard pharmaceutical reference manual. We hold that he did not. {¶ 33} The Eighth District’s decision, which we affirm here, recognizes that the state cannot prove a “bulk amount” of fentanyl patches under the dosage prong of R.C. 2925.01(D)(1)(d) because the AHFS does not specify a maximum daily dose in the usual dose range for fentanyl pa tches. The General Assembly made the policy decision to tie the degree of offense for aggravated possession of Schedule II controlled substances, like fentanyl, to the bulk amount rather than to weight or unit doses, as it did with other controlled substances. And because the AHFS, which Schad relied on, does not state a max imum daily dose in the usual dose range for transdermal fentanyl, the state is una ble to prove the “bulk amount” under the current statutory scheme. So, without a standard pharmaceutical reference manual that specifies the maximum daily dose in the usual dose range for transdermalfentanyl, possession of less than 20 grams of transdermal fentanyl will be a fifthdegree felony under R.C. 2925.11(C)(1)(a) unless and until the General Assembly amends the statutory framework for assigning enhanced felony levels to offenses involving possession of fentanyl. {¶ 34} Pountney accurately notes that there is a bill pending before the General Assembly that proposes changes to the statutory scheme addressing the escalation of penalties for possession of fentanyl. 2017 Am.Sub.S.B. No. 1 proposes to anchor escalation of penaltie s for fentanyl possession to “unit doses”

instead of “bulk amount.” Id . The Senate passed the bill on March 29, 2017, and it has been before the House Criminal Justice Committee since May 9, 2017. OhioS UPREME C OURT OF O HIO

14 Legislature, 132nd General Asse mbly, Senate Bill 1, Status, https://www.legislature.ohio.gov/legisla tion/legislation-stat us?id=GA132-SB-1. But unless and until the General Assembly acts, our role is to apply the current statutory scheme as enacted. And in doing s o, we must affirm the Eighth District’s judgment.

Conclusion {¶ 35} R.C. 2925.01(D)(1)(d) defines the “bulk amount” of fentanyl as “five times the maximum daily dose in the usual dose range specified in a standard pharmaceutical reference manual.” However, the AHFS, the standard pharmaceutical reference manual used in this case, does not specify a maximum daily dose in the usual dose range for fentanyl. Therefore, it does not provide a basis for proving the “bulk amount” under th e statute. Although the AHFS states

that an initial dose of transdermal fentan yl should take into account a patient’s opiate tolerance and the type and dose of opiate therapy the patient is being transferred from, neither R.C. 2925.01(D)(1 )(d) nor the AHFS justifies reliance on the usual dose range of morphine to esta blish the bulk amount of fentanyl. For these reasons, we reject the state’s pr oposition of law and affirm the Eighth District’s judgment. Judgment affirmed.

O’C ONNOR , C.J., and O’D ONNELL , K ENNEDY , O’N EILL , F ISCHER , and

D E W INE , JJ., concur.

_________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, for appellant. Mark A. Stanton, Cuyahoga County P ublic Defender, and John T. Martin, Assistant Public Defender, for appellee.January Term, 2018

15 Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and Hannah C. Wilson, Deputy Solicitor, urging reversal for amicus curiae, Ohio Attorney General Michael DeWine.

_________________