 [Cite as State v. Stoffer, 2015-Ohio-352.]



                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 ALEX K. STOFFER

         Defendant-Appellant

 :


 Appellate Case No.        26268

 Trial Court Case No. 2013-CR-3608


 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                                 Rendered on the 30th day of January, 2015.

                                               ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 West Second Street, Suite 603, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                               .............
                                                                                           2



WELBAUM, J.



        {¶ 1}    Defendant-appellant, Alex K. Stoffer, appeals from his conviction and sentence

 in the Montgomery County Court of Common Pleas after a jury found him guilty of possessing of

 heroin. Stoffer contends the statute governing the offense level and penalty for possession of

 heroin, R.C. 2925.11(C)(6)(d), violates his constitutional rights to due process and equal

 protection of the law. He also contends the mandatory three-year prison term imposed by the

 trial court is contrary to law. We disagree with Stoffer’s contentions, and for the reasons

 outlined below, the judgment of the trial court will be affirmed.



                                     Facts and Course of Proceedings

        {¶ 2}    On January 8, 2014, Stoffer was indicted for one count of possession of heroin in

 an amount that equals or exceeds 100 unit doses but is less than 500 unit doses in violation of

 R.C. 2925.11(A) and R.C. 2925.11(C)(6)(d), a felony of the second degree. The charge was

 based on police discovering 185 heroin capsules in a vehicle driven by Stoffer during a pre-tow

 inventory search conducted after Stoffer was arrested for driving under suspension.

        {¶ 3}    Following his indictment, Stoffer filed a motion to dismiss the possession charge

 on grounds that the statute governing the offense level and penalty for possession of heroin, R.C.

 2925.11(C)(6)(d), is unconstitutional. The trial court overruled the motion to dismiss and the

 matter proceeded to a jury trial.

        {¶ 4}    Among the witnesses presented at trial was Todd Yoak, a forensic scientist at the
                                                                                          3


Miami Valley Regional Crime Laboratory.          Yoak testified that he analyzed the capsules

discovered in Stoffer’s vehicle and confirmed that they contained heroin. Yoak also testified

that the total weight of all the capsules’ contents was 4.38 grams. After hearing all the trial

testimony, the jury deliberated and ultimately found Stoffer guilty of possession of heroin as

charged. The trial court then sentenced Stoffer to a mandatory three-year prison term.

       {¶ 5}    Stoffer now appeals from his conviction and sentence raising two assignments of

error for review.



                                   First Assignment of Error

       {¶ 6}    Stoffer’s First Assignment of Error is as follows:

       MR. STOFFER’S CONVICTION IS UNCONSTITUTIONAL IN THAT THERE

       IS AN ARBITRARY AND IRRATIONAL DISTINCTION BETWEEN BULK

       AND UNIT DOSES OF HEROIN.

       {¶ 7}    Under this assignment of error, Stoffer challenges the constitutionality of R.C.

2925.11(C)(6)(d) on grounds that the statute violates his rights to due process and equal

protection of the law. Specifically, Stoffer claims the statute: (1) provides an arbitrary and

irrational distinction between bulk amounts and unit doses of heroin; (2) permits unwarranted

sentencing disparities between offenders who possess unit doses and offenders who possess bulk

amounts; and (3) permits the State to discriminatorily and arbitrarily enforce the law governing

possession offenses. We disagree with Stoffer’s contentions.

       {¶ 8}    “It is difficult to prove that a statute is unconstitutional.” Arbino v. Johnson &

Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25. “All statutes have a
                                                                                            4


strong presumption of constitutionality. * * * Before a court may declare unconstitutional an

enactment of the legislative branch, ‘it must appear beyond a reasonable doubt that the legislation

and constitutional provisions are clearly incompatible.’ ” Id., quoting State ex rel. Dickman v.

Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.

       {¶ 9}    “When reviewing a statute on due-process grounds, we apply a rational-basis test

unless the statute restricts the exercise of fundamental rights.” (Citations omitted.) Id. at ¶ 49.

A statute is deemed valid under a due-process rational basis test “ ‘ “if it bears a real and

substantial relation to the public health, safety, morals or general welfare of the public and * * *

if it is not unreasonable or arbitrary.” ’ ” Id., quoting Mominee v. Scherbarth, 28 Ohio St.3d

270, 274, 503 N.E.2d 717 (1986), quoting Benjamin v. Columbus , 167 Ohio St. 103, 146 N.E.2d

854 (1957), paragraph five of the syllabus. In other words, “[u]nder the rational-basis test, a

statute survives if it is reasonably related to a legitimate government interest.”        (Citation

omitted.) State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 18.

       {¶ 10} Similarly, under a traditional equal protection analysis, “ ‘[a] statutory

classification which involves neither a suspect class nor a fundamental right does not violate the

Equal Protection Clause of the Ohio or United States Constitutions if it bears a rational

relationship to a legitimate governmental interest.’ ” McCrone v. Bank One Corp., 107 Ohio

St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 8, quoting Menefee v. Queen City Metro, 49 Ohio

St.3d 27, 29, 550 N.E.2d 181 (1990). “In determining whether a legislative classification has a

rational basis, the test is whether any state of facts, either known or which can reasonably be

assumed, supports the classification.” State v. Draughn, 2d Dist. Montgomery No. CA 9664,

1987 WL 7511, *4 (Mar. 3, 1987). “If the question is at least debatable, then the decision is a
                                                                                             5


legislative one and the classification will be upheld.” Id., citing United States v. Carolene

Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). “A court will set aside a

legislative classification only where it is clear beyond a reasonable doubt that there is no rational

basis for that classification.” Id., citing State v. Babcock, 7 Ohio App.3d 104, 454 N.E.2d 556

(10th Dist.1982), paragraph two of the syllabus.

       {¶ 11} As previously noted, Stoffer contends that R.C. 2925.11(C)(6)(d) violates his

rights to due process and equal protection of the law because he claims the statute sets forth an

arbitrary and irrational distinction between bulk amounts and unit doses of heroin and permits

unwarranted sentencing disparities between offenders who possess unit doses and offenders who

possess bulk amounts. We note that “bulk amount” is a legal term of art that does not apply to

heroin. See R.C. 2925.11(C)(1) and (C)(6); R.C. 2925.01(D); see also State v. Santiago, 195

Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 72 (2d Dist.) (Hall, J., concurring in part

and dissenting in part) (“ ‘Bulk amount’ is now used to stratify the level of drug offenses, except

for those involving marijuana, cocaine, LSD, heroin, and hashish, which have their own separate

quantity/level classification”). Therefore, we will instead review Stoffer’s constitutional claims

under the correct quantity/level classification provided for in R.C. 2925.11(C)(6)(d).

       {¶ 12} Pursuant to R.C. 2925.11(C)(6)(d):

       (6) If the drug involved in the violation is heroin or a compound, mixture,

       preparation, or substance containing heroin, whoever violates division (A) of

       [R.C. 2925.11] is guilty of possession of heroin. The penalty for the offense shall

       be determined as follows:

       ***
                                                                                             6


        (d) If the amount of the drug involved equals or exceeds one hundred unit doses

        but is less than five hundred unit doses or equals or exceeds ten grams but is less

        than fifty grams, possession of heroin is a felony of the second degree, and the

        court shall impose as a mandatory prison term one of the prison terms prescribed

        for a felony of the second degree.

        {¶ 13} “ ‘Unit dose’ means an amount or unit of a compound, mixture, or preparation

containing a controlled substance that is separately identifiable and in a form that indicates that it

is the amount or unit by which the controlled substance is separately administered to or taken by

an individual.” R.C. 2925.01(E). The heroin capsules discovered in Stoffer’s vehicle fall under

this definition.

        {¶ 14} In this case, Stoffer essentially argues that under R.C. 2925.11(C)(6)(d), his

possession of 185 unit doses of heroin, which contained a total of 4.38 grams of the drug,

subjects him to a second-degree felony and a mandatory prison term, while under section (b) of

the same statute, possessing 4.38 grams of heroin by itself is only a fourth-degree felony that does

not mandate a prison term. See R.C. 2925.11(C)(6)(b). In other words, Stoffer claims that R.C.

2925.11(C)(6) provides unequal penalties for essentially same conduct and that there is no

rational basis for distinguishing between offenders who possess unit doses and offenders who

possess heroin by itself.

        {¶ 15} We addressed a similar argument in Draughn, 2d Dist. Montgomery No. CA

9664, 1987 WL 7511 (Mar. 3, 1987). In Draughn, the appellant was convicted of multiple

counts of trafficking cocaine and possession of cocaine. Id. at *1. Appellant argued that the

sentencing scheme in effect at that time for drug trafficking under R.C. 2925.03 violated his right
                                                                                             7


to due process because a person who sells a mixture of five grams of cocaine with 20 grams of

sugar would be subject to a second-degree felony and incarceration, while a person who sells just

five grams of cocaine by itself is subject to a third-degree felony and no incarceration. Id. at *3.

We determined that appellant's argument instead implicated the equal protection clause and

concluded that the legislature had a rational basis for increasing the penalty for persons who

dilute or cut controlled substances before selling them because the purpose of doing so is to

increase drug sales. Id. at *4.

       {¶ 16} In reaching the foregoing conclusion in Draughn, we cited State v. Webster, 8th

Dist. Cuyahoga No. 42778, 1981 WL 4982 (May 21, 1981). Like Draughn, the appellant in

Webster was convicted of drug trafficking and challenged the constitutionality of R.C. 2925.03

on equal protection grounds arguing the statute permitted greater penalties for trafficking in unit

doses. Webster at *1-2. The Eighth District concluded there was a rational basis for increasing

the penalty for selling in unit doses because the purpose of R.C. 2925.03 is to minimize drug

trafficking and where “a controlled substance is packaged in discrete units for consumption, it

was reasonable for the legislature to assume that a larger number of unit doses would create a

larger number of drug incidents, and that it would thus deter the distribution of drugs to a wider

audience to increase the penalty as the number of units distributed increases.” Id. at *2.

       {¶ 17} Stoffer acknowledges that there is a rational basis for imposing greater penalties

for trafficking in unit doses, but argues there is no rational basis for such a penalty increase with

respect to mere possession offenses. We disagree, as the clear purpose of R.C. 2925.11 is to

proscribe the possession and use of controlled substances, and this purpose is legitimately served

by increasing the penalty for possessing controlled substances in a form that facilitates more
                                                                                              8


instances of abuse. By deterring offenders like Stoffer from possessing heroin in an easily

distributable form, the statute effectively curtails the potential for distribution and prevents future

possession and use offenses by others.

       {¶ 18} It is also reasonable to assume that those who possess several unit doses of heroin

are not just users, but are in the chain of distribution. The present case supports this assumption,

as the presentence investigation report notes that Stoffer indicated he was a heroin dealer.

Accordingly, there exists a rational basis for distinguishing between offenders who possess

heroin by itself and those who possess unit doses, as those who possess unit doses are capable of

causing more widespread incidents of abuse.

       {¶ 19} Stoffer also contends that the sentencing scheme under R.C. 2925.11(C)(6)

permits the State to discriminatorily and arbitrarily enforce the law since it may charge a

defendant with possession of drugs either in unit doses or by weight in grams when the charge is

based upon the same physical quantity of drugs. However, “the existence of prosecutorial

discretion concerning which offense to charge when two statutes prohibit the same conduct is not

unconstitutional unless [the] defendant demonstrates such discretion is exercised to

impermissibly discriminate against a particular class of persons to which he belongs.” State v.

Powell, 87 Ohio App.3d 157, 621 N.E.2d 1328 (8th Dist. 1993). Accord State v. Payne, 8th

Dist. Cuyahoga No. 86280, 2006-Ohio-3005, ¶ 12.

       {¶ 20} Here, the State charged Stoffer with a second-degree felony under R.C.

2925.11(C)(6)(d) for possessing 185 unit doses of heroin as opposed to a fourth degree-felony

under R.C. 2925.11(C)(6)(b) for possessing 4.38 grams of heroin.               Stoffer has failed to

demonstrate that this decision impermissibly discriminated against a particular class of persons to
                                                                                             9


which he belongs, i.e. possessors of unit doses, as we have already established that there is a

rational basis for imposing greater penalties on those who possess drugs in unit doses.

       {¶ 21} For the foregoing reasons, we conclude Stoffer was not denied his constitutional

rights to due process or equal protection of the law and, therefore, overrule his First Assignment

of Error.



                                  Second Assignment of Error

       {¶ 22} Stoffer’s Second Assignment of Error is as follows:

       MR. STOFFER’S THREE[-]YEAR PRISON SENTENCE IS CONTRARY TO

       LAW.

       {¶ 23} Under his Second Assignment of Error, Stoffer contends his mandatory

three-year prison sentence is contrary to law because the trial court failed to discuss on the record

the factors it is required to consider pursuant to R.C. 2929.11(A).

       {¶ 24} We review all felony sentences under R.C. 2953.08(G)(2). State v. Rodeffer,

2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.). Pursuant to this statute:

       The appellate court may increase, reduce, or otherwise modify a sentence that is

       appealed under this section or may vacate the sentence and remand the matter to

       the sentencing court for resentencing. The appellate court’s standard for review is

       not whether the sentencing court abused its discretion. The appellate court may

       take any action authorized by this division if it clearly and convincingly finds

       either of the following:

       (a) That the record does not support the sentencing court's findings under division
                                                                                            10


       (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

       division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant.

       (b) That the sentence is otherwise contrary to law.

R.C. 2953.08(G)(2).

       {¶ 25} “ ‘[C]ontrary to law’ means that a sentencing decision manifestly ignores an issue

or factor which a statute requires a court to consider.” (Citation omitted.) State v. Lofton, 2d

Dist. Montgomery No. 19852, 2004-Ohio-169, ¶ 11. “[A] sentence is not contrary to law when

the trial court imposes a sentence within the statutory range, after expressly stating that it had

considered the purposes and principles of sentencing set forth in R.C. 2929.11, as well as the

factors in R.C. 2929.12.”        Rodeffer at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124, ¶ 18. We emphasize that “[t]he court is not required to make

specific findings or to use the exact wording of the statute[s].” (Citation omitted.) State v.

Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8. “Furthermore, even if there is

no specific mention of those statutes in the record, ‘it is presumed that the trial court gave proper

consideration to those statutes.’ ” State v. Cave, 2d Dist. Clark No. 09-CA-6, 2010-Ohio-1237,

¶ 10, quoting Kalish at fn. 4.

       {¶ 26} In this case, Stoffer was convicted of possessing heroin in an amount equaling or

exceeding 100 unit doses, but not more than 500 unit doses. Pursuant to R.C. 2925.11(C)(6)(d),

this is a felony of the second degree in which a mandatory prison term is required.        The trial

court imposed a mandatory three-year prison term, which is within the prescribed statutory range

for second-degree felonies. See R.C. 2929.14(A)(2). Additionally, the trial court stated at the

sentencing hearing that it considered the purposes and principles of sentencing and the
                                                                                       11


seriousness and recidivism factors prior to imposing Stoffer’s prison sentence. See Trans. (June

3, 2014), p. 282. We therefore conclude the sentence is not contrary to law, as it is within the

prescribed statutory range and the trial court expressly stated that it made the required

considerations.

       {¶ 27} We note that we have reviewed Stoffer’s sentence under the standard of review

set forth in Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069. In Rodeffer, we held that we would no

longer use an abuse-of-discretion standard in reviewing a sentence in a criminal case, but would

apply the standard of review set forth in R.C. 2953.08(G)(2). Since then, opinions from this

court have expressed reservations as to whether our decision in Rodeffer is correct. See, e.g.,

State v. Garcia, 2d Dist. Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn. 1; State v. Johnson,

2d Dist. Clark No. 2013-CA-85, 2014-Ohio-2308, ¶ 9, fn. 1. Regardless, in the case before us,

we find no error in the sentence imposed under either standard of review.

       {¶ 28} Stoffer’s Second Assignment of Error is overruled.



                                          Conclusion

       {¶ 29} Having overruled both of Stoffer’s assignments of error, the judgment of the trial

court is affirmed.

                                        .............




FROELICH, P.J. and FAIN, J., concur.
                              12




Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Elizabeth C. Scott
Hon. Mary Katherine Huffman
