Major Drug Offender Penalty May Be Imposed if Substance Offered for Sale Never Recovered

Garr v. Warden, Madison Corr. Inst., Slip Opinion No. 2010-Ohio-2449.
Certified Question of State Law, United States District Court, Southern District of Ohio, Western Division, No. 1:08cv293. Certified question answered in the negative.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2449.pdf

(June 8, 2010) The Supreme Court of Ohio today ruled 6-0 that a decision in State v. Chandler, a 2006 Supreme Court case where the Supreme Court held that a detectable amount of the controlled substance must be present before a court may impose an enhanced major drug offender penalty, does not apply to trafficking cases where no drugs are recovered and therefore the major drug offender penalty may be imposed in those cases.

A federal judge submitted a certified question of state law to the Supreme Court inquiring whether its holding in Chandler extends to an offer-to-sell drug-trafficking case where no drugs are recovered during investigation of the crime.

Today’s 6-0 decision, authored by Justice Terrence O’Donnell, answered the certified question in the negative and clarified “that our holding in Chandler does not extend to cases where a substance offered for sale is not recovered or tested in order to ascertain whether it contains a detectable amount of controlled substance.”

Oliver Garr was arrested and charged with first-degree felony drug trafficking and a major drug offender specification based on his offer to sell an informant two kilograms of cocaine. Police never recovered any amount of cocaine or any other substance that had been offered for sale by Garr. The trial court convicted him and sentenced him to 10 years in prison as a major drug offender. He lost on appeal before the 1st District Court of Appeals, and the Supreme Court declined to hear his case. He then filed a federal habeas corpus action in the U.S. District Court for the Southern District of Ohio.

Justice O’Donnell noted that: “Our decision in Chandler that a substance offered for sale must contain ‘some detectable amount’ of the relevant controlled substance before a person can be sentenced as a major drug offender is limited to those cases where the substance offered for sale is recovered and subjected to testing to determine whether it contains a detectable amount of the drug offered for sale.”

“It does not apply to situations where no drug is recovered and no testing is performed. Hence, where an offender offers to sell a controlled substance in a quantity which would implicate the MDO specification, and where no substance is ever recovered or tested, Chandler is factually distinguishable, as it is a counterfeit drug case where the alleged drug was recovered and tested. Therefore, Chandler does not apply to the situation as presented here where Garr offered to sell a drug which was not recovered. In such a case, the offender may be convicted of an MDO specification in a properly proven case.”

Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Benjamin C. Mizer, 614.466.8980, for the warden of the Madison Correctional Institution.

Kristopher A. Haines, 614.466.5394, for Oliver Garr.

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