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State v. Melms

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

STATE OF OHIO, Plaintiff-Appellee
v.
ANDREW MELMS, Defendant-Appellant

          Criminal Appeal from Common Pleas Court T.C. NO. 2016-CR-1673

          MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 85219, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee.

          ANGELINA JACKSON, Atty. Reg. No. 77937, Assistant Public Defender, Montgomery County Public Defender's Office, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the August 8, 2017 Notice of Appeal of Andrew Melms. Melms appeals from the trial court's July 28, 2017 Judgment Entry of Conviction, following a no contest plea to one count of aggravated possession of drugs, namely fentanyl, in violation of R.C. 2925.11(A), a felony of the fifth degree. His appeal is specifically addressed to the trial court's denial of his motion to dismiss his indictment on the basis of immunity from prosecution, pursuant to R.C. 2925.11(B)(2)(b), which went into effect on September 13, 2016, and is known as the "911 Good Samaritan Law." We hereby affirm the judgment of the trial court.

         {¶ 2} At the outset, we note that the "crisis in opioid deaths has reached epidemic proportions in the United States (33, 091 in 2015), and currently exceeds all other drug-related deaths or traffic fatalities." Report: Governor Chris Christie, "The President's Commission on Combating Drug Addiction and the Opioid Crisis, " Washington, D.C., November 1, 2017, pg. 31. These data from the Centers for Disease Control and Prevention are expected to rise even higher in 2016 and 2017.

         {¶ 3} Melms was indicted on July 21, 2016. He failed to appear for a scheduled August 4, 2016 arraignment, and a warrant was issued for his arrest. On March 23, 2017, Melms appeared and entered a plea of not guilty. On April 6, 2017, he filed a "Request for Intervention in Lieu of Conviction and Time Waiver."

         {¶ 4} On May 31, 2017, Melms filed a "Motion to Dismiss Indictment as Defendant is a 'Qualified Individual' under O.R.C. 2925.11(B)(2)." The memorandum in support of the motion provides the following facts:

On May 30, 2016, Defendant was arrested by Officer Joshua Bowling of the Dayton, Ohio, police department for possession of fentanyl, a felony of the fifth degree. He was found alone, slumped over and nearly unconscious in the front passenger seat of a vehicle located at Love's Travel Stop, 2217 S. Edwin [C] Moses Blvd., Dayton, Ohio. Dayton Paramedics were called and responded to the scene. Defendant was then taken to the Montgomery County Jail. Defendant had a traffic warrant out of Clark County Jail, Springfield, Ohio. Defendant was transferred to the Clark County Jail from Montgomery County Jail on June 1, 2016. Subsequently, Defendant was transferred from Clark County Jail to the Tri-County Jail (Champaign County) on child support issues. Defendant was released from the Tri-County Jail on July 2, 2016. Defendant was incarcerated from the time of his arrest on May 30, 2016, until July 2, 2016.
On July 8, 2016, Defendant sought medical assistance because he suffered from a drug overdose on May 30, 2016. Six gel caps of fentanyl were recovered from the scene. Defendant sought treatment with Dayton Opiate Recovery Clinic located at 8401 Claude Thomas Road, Dayton, Ohio. See attached letter from Melanie Briggs, CMA of the Dayton Opiate Recovery Clinic dated April 18, 2017. The letter from Dayton Opiate Recovery Clinic has been provided to the prosecutor.
* * * Defendant sought treatment for his opiate addiction (6) six days after he was released from incarceration. Defendant has been taking subox[o]ne since July of 2016.

         {¶5} Melms asserted that he was immune from prosecution pursuant to R.C. 2925.11(B)(2)(b)[1], which provides as follows:

(b) Subject to division (B)(2)(f)[2] of this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the qualified individual seeking the medical assistance or experiencing an overdose and needing medical assistance.
(ii) Subject to division (B)(2)(g)[3] of this section, within thirty days after seeking or obtaining the medical assistance, the qualified individual seeks and obtains a screening and receives a referral for treatment from a community addiction services provider or a properly credentialed addiction treatment professional.
(iii) Subject to division (B)(2)(g) of this section, the qualified individual who obtains a screening and receives a referral for treatment under division (B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney, submits documentation to the prosecuting attorney that verifies that the qualified individual satisfied the requirements of that division. The documentation shall be limited to the date and time of the screening obtained and referral received.

         {¶ 6} R.C. 2925.11 (B)(2)(a) provides the following definitions:

(iv) "Minor drug possession offense" means a violation of this section that is a misdemeanor or a felony of the fifth degree.
(viii) "Qualified individual" means a person who is not on community control or post-release control and is a person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose, a person who experiences a drug overdose and who seeks medical assistance for that overdose, or a person who is the subject of another person seeking or obtaining medical assistance for that overdose as described in division (B)(2)(b) of this section.
(ix) "Seek or obtain medical assistance" includes, but is not limited to making a 9-1-1 call, contacting in person or by telephone call an on-duty peace officer, or transporting or presenting a person to a health care facility.

         {¶ 7} Melms argued that he was not subject to prosecution for the following reasons:

1. Defendant was not on community control or post release control;

2. Defendant obtained medical assistance while experiencing a drug overdose;
3. Defendant sought an assessment and referral within (6) days of being released from incarceration from the Tri-County Jail;
4. Defendant was indicted for a minor drug offense * * *;
5. Defendant provided referral for treatment to the ...

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