[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Reese, Slip Opinion No. 2017-Ohio-2789.]




                                           NOTICE
       This slip opinion is subject to formal revision before it is published in an
       advance sheet of the Ohio Official Reports. Readers are requested to
       promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
       South Front Street, Columbus, Ohio 43215, of any typographical or other
       formal errors in the opinion, in order that corrections may be made before
       the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-2789
              THE STATE OF OHIO, APPELLEE, v. REESE, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State v. Reese, Slip Opinion No. 2017-Ohio-2789.]
Motion for reconsideration granted—Court of appeals’ judgment affirmed on the
         authority of State v. Gonzales.
        (No. 2016-0656—Submitted April 6, 2017—Decided May 16, 2017.)
             APPEAL from the Court of Appeals for Muskingum County,
                          No. CT2015-0046, 2016-Ohio-1591.
                           ON MOTION FOR RECONSIDERATION.
                                     _______________
         {¶ 1} On December 30, 2016, on the authority of State v. Gonzales, ___
Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___ (“Gonzales I”), this court
reversed the judgment of the court of appeals and remanded this cause to the trial
court for further proceedings. ___Ohio St.3d ___, 2016-Ohio-8471, ___ N.E.3d
___.
                             SUPREME COURT OF OHIO




       {¶ 2} On February 7, 2017, we granted the state’s motion for
reconsideration in Gonzales I, vacated our decision in that case, and reversed the
judgment of the Sixth District Court of Appeals. State v. Gonzales, ___ Ohio St.3d
___, 2017-Ohio-777, ___ N.E.3d ___, ¶ 3 (“Gonzales II”).
       {¶ 3} Appellee, the state of Ohio, has moved for reconsideration in this
cause. The motion for reconsideration is granted. The judgment of the court of
appeals is affirmed on the authority of Gonzales II.
       O’CONNOR, C.J., and O’DONNELL, FRENCH, and DEWINE, JJ., concur.
       FISCHER, J., concurs in part and dissents in part, with an opinion.
       KENNEDY, J., dissents, with an opinion.
       O’NEILL, J., dissents for the reasons stated in his dissenting opinion in State
v. Gonzales, ___ Ohio St.3d ___, 2017-Ohio-777, ___ N.E.3d ___, ¶ 73-78.
                               _________________
       FISCHER, J., concurring in part and dissenting in part.
       {¶ 4} For the reasons stated in my separate opinion in State v. Gonzales,
___ Ohio St.3d ___, 2017-Ohio-777, ___ N.E.3d ___, ¶ 24 (Fischer, J., concurring
in part and dissenting in part), I respectfully vote to deny the motion for
reconsideration, but I join the majority’s opinion on the merits in this case.
                               _________________
       KENNEDY, J., dissenting.
       {¶ 5} This matter is before the court on a motion for reconsideration filed
by appellee, the state of Ohio. Under the procedures in S.Ct.Prac.R. 18.02, we are
empowered to “correct decisions which, upon reflection, are deemed to have been
made in error.” State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio
St.3d 381, 383, 662 N.E.2d 339 (1996). “We will not, however, grant
reconsideration when a movant seeks merely to reargue the case at hand.” Dublin
City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St.3d 212, 2014-



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Ohio-1940, 11 N.E.3d 222, ¶ 9; S.Ct.Prac.R. 18.02(B) (“A motion for
reconsideration shall not constitute a reargument of the case * * *”).
       {¶ 6} The state’s arguments fail to point to an error. Because I would deny
the state’s motion for reconsideration, I dissent from the decision to grant the
motion for reconsideration and affirm the judgment of the court of appeals.
       {¶ 7} The state repeats the argument that it asserted in its motion for
reconsideration in State v. Gonzales, ___ Ohio St.3d ___, 2017-Ohio-777, ___
N.E.3d ___ (“Gonzales II”), that is, that this court in State v. Gonzales, __ Ohio
St.3d __, 2016-Ohio-8319, __ N.E.2d __ (“Gonzales I”), used a “canon of strict
construction to infer legislative intent” in its interpretation of R.C. 2925.03 and
2925.11. However, this argument fails. Because the court in Gonzales I did not
hold that R.C. 2925.11 was ambiguous, it did not examine the legislative intent and
it did not construe R.C. 2925.11 strictly against the state: “The state fails to point
to any ambiguity in the statute. Without that, we must simply apply the statute as it
is written, without delving into legislative intent.” (Emphasis added.) Id. at ¶ 17.
       {¶ 8} The state further argues that the analysis in Gonzales I is inapplicable
to the trafficking statute at issue here, R.C. 2925.03, because this statute, unlike
those examined in the Gonzales cases, defines “drug” as “any substance that is
represented to be a drug.” R.C. 2925.03(I). However, this argument fails to
recognize that the felony-classification language in R.C. 2925.03(C)(4)(c) through
(g) contains the same language as R.C. 2925.11(C)(4)(b) through (f): both statutes
state that the level of the felony depends on whether the amount of the drug
involved equals or exceeds a specific number of “grams of cocaine.” But the
majority applies its analysis in Gonzales II, which does not discuss or consider the
definition of “drug” in R.C. 2925.03(I), to resolve this matter.
       {¶ 9} The decision in this matter is based on this court’s holding in Gonzales
II that the classification of felonies in the cocaine-possession statute, R.C.
2925.03(C)(4)(c) through (g), allows for the inclusion of the weight of filler


                                          3
                             SUPREME COURT OF OHIO




material that is mixed with cocaine. My dissent in Gonzales II points out that the
General Assembly based the degree of the felony in R.C. 2925.03(C)(4)(c) through
(g) on the weight of the “grams of cocaine” only, with “cocaine” being limited by
its definition in R.C. 2925.01(X), not on the weight of a mixture of substances that
includes filler material. The same is true for the statute at issue here, R.C. 2925.03,
which penalizes offenders for trafficking in cocaine based on the number of the
grams of cocaine, not of cocaine and filler material.
       {¶ 10} Therefore, I dissent.
                                _________________
       D. Michael Haddox, Muskingum County Prosecuting Attorney, and Gerald
V. Anderson II, Assistant Prosecuting Attorney, for appellee.
       Barnhart Law Office, L.L.C., and Robert B. Barnhart, for appellant.
                                _________________




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