Paul Pfeifer
By Paul Pfeifer

In 2011, the Ohio Legislature passed House Bill 86, which amended the existing law relative to the possession of crack cocaine. The amended law took effect Sept. 30, 2011.

A little more than a year earlier – on July 16, 2010 – Amber Limoli was stopped for jaywalking by Officer Brandon Harmon of the Columbus Police Department. Officer Harmon summoned a female officer to perform a search on Amber because he suspected that she was carrying illegal drugs.

During the search, a rock of crack cocaine fell from beneath Amber’s shirt. It was later determined that the rock consisted of about nine grams of cocaine base.

On November 16, 2010, Amber was indicted by a grand jury on one count of possession of cocaine. She was charged with knowingly possessing crack cocaine in an amount equal to or exceeding five grams but less than ten grams. Amber entered a plea of no contest to the third-degree felony on August 18, 2011.

A sentencing hearing was conducted on October 14, 2011 – two weeks after H.B. 86 took effect. But Amber was sentenced to one year in prison in accordance with the sentencing law that was in existence at the time she had entered her plea.

Afterward, Amber appealed, and the court of appeals reversed the decision of the trial court. The court of appeals sent the case back to the trial court with instructions to sentence Amber in accordance with H.B. 86.

After that ruling the state turned to us – the Ohio Supreme Court – for a review of the sentencing determination. So, rather than going back to the trial court as the court of appeals had ordered, Amber’s case came before us.

Prior to the enactment of H.B. 86, possession of crack cocaine in an amount between five and ten grams was a third-degree felony that required imposition of a mandatory prison term.

The trial court in Amber’s case held that since she entered her plea of no contest while the former version of the crack-cocaine law was in effect, she had committed a third-degree felony and, accordingly, a mandatory prison term was required. But the court of appeals took the opposite position, concluding that Amber was entitled to the benefit of a decreased sentence because of the amended law.

What did H.B. 86 change? Prior to the bill’s passage, the law specifically criminalized the possession of crack cocaine. Now, the law no longer specifically refers to “crack cocaine.” That doesn’t mean that possession of crack cocaine is not illegal in Ohio. Crack cocaine isn’t a different substance than cocaine; it’s simply a different form of the same drug.

The amended law also decreased the penalties for possession of crack cocaine. Prior to H.B. 86, possession of between five and ten grams of crack cocaine was a third-degree felony that resulted in mandatory prison. Now, possession of the same amount of cocaine is a fourth-degree felony, which allows a court to sentence a defendant to community-control sanctions rather than to mandatory prison time.

The goal of the legislature in enacting H.B. 86 was “to reduce the state’s prison population and to save the associated costs of incarceration by diverting certain offenders from prison and by shortening the terms of other offenders sentenced to prison.”

Before passage of H.B. 86, sentences for possession of crack cocaine greatly exceeded sentences for possession of an equal amount of powder cocaine. To reduce or eliminate that disparity, the legislature amended the penalties for illegal possession of cocaine.

So should the new penalties apply to Amber, or the ones that were in place when she pleaded no contest? One of Ohio’s sentencing laws says that if a penalty for any offense is amended, the penalty – if not already imposed – shall be imposed according to the law as amended.

The state argued that that sentencing law doesn’t benefit Amber because it applies only when the penalty for the offense is reduced, not when the offense itself changes, as has now occurred with the elimination of the specific mention of crack cocaine.

“However,” Justice William M. O’Neill wrote in our majority opinion, “under the logic employed by the state, it would no longer be a crime to possess crack cocaine. We disagree. Crack cocaine is simply another form of cocaine. To conclude otherwise would be absurd. Crack cocaine still exists,” and it’s still illegal to possess it. “There is no reason to believe that the legislature intended to legalize its possession.”

In fact, Section 3 of H.B. 86 provided clear guidance to courts that it was the intent of the Legislature that a defendant in Amber’s situation would receive the benefit of the reduced penalties set forth in the new law. That section says, in part, that the amendments “do not apply to a person upon whom a court imposed sentence prior to the effective date of this act for an offense involving marihuana, cocaine, or hashish.” Amber was sentenced after the effective date of H.B. 86, so the amendments do apply.

The United States Supreme Court has emphasized that legislative intent determines whether a defendant is entitled to the benefit of legislation that reduces the penalties for a crime after the crime has been committed but prior to sentencing. Our court has also said that the legislature’s expression of its intent must control. “That power is not to be usurped by the judiciary.”

Therefore, we concluded – by a seven-to-zero vote – that defendants who were convicted of possession of crack cocaine prior to September 30, 2011, but were not sentenced until after that date must be sentenced under the provisions of H.B. 86.

Because Amber was convicted of possessing between five and ten grams of crack cocaine, she must be sentenced to a fourth-degree, rather than a third-degree felony. Thus, the judgment of the court of appeals is affirmed, and her case is to be sent back to the trial court for further proceedings consistent with our opinion and the opinion of the court of appeals.

NOTE: The case referred to is: State v. Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072. Case No. 2013-0403. Decided July 16, 2014. Majority opinion written by William M. O’Neill.