Submitted September 13, 2017
from the Court of Appeals for Cuyahoga County, No. 103686,
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant Prosecuting
Attorney, for appellant.
A. Stanton, Cuyahoga County Public Defender, and John T.
Martin, Assistant Public Defender, for appellee.
Michael DeWine, Attorney General, Eric E. Murphy, State
Solicitor, and Hannah C. Wilson, Deputy Solicitor, urging
reversal for amicus curiae, Ohio Attorney General Michael
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 issue
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). Appellant, 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 substance, is
a synthetic opioid that is approximately 100 times more
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),
=40 (accessed Dec. 12, 2017). Fentanyl and 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),
(accessed Dec. 12, 2017). And in the first two months of
2017, approximately 90 percent of unintentional overdose
deaths in 25 Ohio counties involved fentanyl, fentanyl
analogs or both. Daniulaityte, Juhascik, Strayer, Sizemore,
Harshbarger, Antonides, and Carlson, Overdose Deaths
Related to Fentanyl and its Analogs-Ohio, January-February
2017, 66 Morbidity & Mortality Weekly Report No. 34,
(accessed Dec. 12, 2017), datum corrected in Errata: Vol
66 No. 34, 66 Morbidity & Mortality Weekly Report
No. 38, 1030,
mm6638a8.pdf (accessed Dec. 12, 2017) (clarifying that the
number of counties was 25).
3} To be sure, enhanced felony prosecution 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
enhancement provisions for fentanyl possession because it
conflicts with unambiguous statutory language. We affirm the
judgment of the court of appeals.
and procedural background
4} Appellee, Mark H. Pountney, was indicted 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 Pountney 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-degree 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
obtaining, possessing or using a controlled substance or
controlled-substance analog. 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
felony. R.C. 2925.11(C)(1)(a). If, however, the amount of the
drug involved meets statutorily defined thresholds, the
offense is enhanced to a first-degree, second-degree or
third-degree felony. R.C. 2925.11(C)(1)(b) through (e). As
relevant here, "If the amount of the drug involved
equals or exceeds five times the bulk amount but is less than
fifty times the bulk amount, " the offense is a
second-degree felony. R.C. 2925.11(C)(1)(c).
7} The General Assembly has defined the "bulk
amount" of a Schedule II opiate or opium derivative,
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 second 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, Pountney would be guilty of a second-degree felony;
otherwise, based ...