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State of Ohio v. Alfred Jackson Iii

September 30, 2011

STATE OF OHIO APPELLEE
v.
ALFRED JACKSON III APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 08CR077144

The opinion of the court was delivered by: Belfance, Presiding Judge.

Cite as State v. Jackson,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant Alfred Jackson, III, appeals from the judgment of the Lorain County Court of Common Pleas. For the reasons set forth below, we reverse.

I.

{¶2} Mr. Jackson was indicted for trafficking in drugs in violation of R.C. 2925.03(A)(1), a third-degree felony, and trafficking in drugs in violation of R.C. 2925.03(A)(2), a third-degree felony. He was also charged with three other offenses not at issue in this appeal.

{¶3} At Mr. Jackson's request, the State filed a bill of particulars indicating Mr. Jackson had trafficked in ecstasy pills. Mr. Jackson filed a motion to dismiss counts one and two of the indictment asserting that the State was now alleging that the pills at issue contained benzylpiperazine ("BZP"), but BZP was not a controlled substance under Ohio law. The court denied the motion.

{¶4} The State then requested that the court take judicial notice that BZP is a Schedule I controlled substance. Thereafter, Mr. Jackson moved to dismiss the first two counts of the indictment, arguing that the indictment failed to charge an offense as it did not specify the controlled substance involved and again asserting that BZP is not a controlled substance under Ohio law. The court denied Mr. Jackson's motion and granted the State's request. Subsequently, Mr. Jackson pleaded no contest and was convicted on all counts.

{¶5} Mr. Jackson now appeals arguing that his indictment was defective. He presents two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

"THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT WHERE IT LACKED AN ESSENTIAL ELEMENT OF THE OFFENSE"

{¶6} Mr. Jackson asserts in his first assignment of error that the trial court erred in failing to dismiss the first two counts of the indictment as the indictment failed to specify the type of controlled substance at issue and thus failed to include an essential element of the crime. We agree.

{¶7} We begin by noting that in the instant matter, Mr. Jackson pleaded no contest. "[U]nlike a guilty plea, a plea of no contest is not an admission of guilt and therefore reserves certain issues for appeal that are not available to a defendant who has pled guilty." State v. Brown, 9th Dist. No. 25103, 2010-Ohio-3387, at ¶6. "[A] no contest plea * * * is an admission of the truth of the facts alleged in the indictment * * *.'" State v. Bird (1998), 81 Ohio St.3d 582, 584, quoting Crim.R. 11(B)(2). "[W]here the indictment * * * contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense." Id. The adequacy of an indictment is a question of law that we review de novo. State v. Hernon (Dec. 29, 1999), 9th Dist. No. 2933-M, at *2.

{¶8} "'The purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.'" State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, at ¶20, quoting State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶7. "An indictment meets constitutional requirements if it first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an ...


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