Monday, June 15, 2009


This is a tale of a typographical error.

In Ohio, possession of crack cocaine is a fifth degree felony unless you have a lot of it. If, say, you have more than 100 grams, then it's a first degree felony. The difference is between a chance of community control or up to a year in prison for the F-5 and a mandatory prison term of 10 years with another 10 at the discretion of the judge for the F-1.

Calvin Wells was charged with the F-1. The jury found him guilty, and the judge sentenced him to that mandatory 10 years in prison.

Except, except . . . . Well, the court of appeals said the judge couldn't do that.

Here's why. The jury verdict form said,
We, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE . . . . We the jury, further find that the amount of crack cocaine was in the amount exceeding ten one hundred (100) grams as charged in the indictment.
You know, I know, the judge and jury knew, and surely the court of appeals knew that when the jury found that there was an "amount exceeding ten one hundred (100) grams as charged in the indictment," that meant that the jury found there was more than 100 grams. (I'm assuming the state actually had a witness say something like, "I weighed the substance and it weighed 138 [or whatever the number was] grams," but it's a pretty safe assumption.)

But, you see, the law doesn't allow us to make that guess. an amount greater than "ten one hundred (100) grams" could mean almost anything including, as the court of appeals pointed out, less than a gram. We're talking bare possibility here, but in this case, that's enough.

You see, back in 2007, in a case called State v. Pelfrey, The Ohio Supreme Court, had one of those epiphanies it gets from time to time and decided that the law really means what it says. Specifically, according to the court,
Pursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury
must include either the degree of the offense of which the defendant is
convicted or a statement that an aggravating element has been found to
justify convicting a defendant of a greater degree of a criminal offense.
That business about more than 100 grams to elevate the possession from an F-5 to and F-1 is just that sort of "aggravating element." And since the verdict form didn't say that clearly, and since it didn't state the degree of offense, well, then the aggravating element doesn't count.

More, the court of appeals noted that even though Wells didn't object at trial, that's OK, because Pelfrey didn't object either and, more to the point, the court had previously decided that
“[i]t is the [S]tate's responsibility, and not the defendant's, to call to the court's attention errors which prejudice the [S]tate.”
OK, that last seems self-evidently right, though there are some cases that suggest it may not be correct. Still, it's a perfectly sensible rule. And when you apply all this, Wells gets a break. His conviction goes from that F-1 all the way to the F-5. And his mandatory 10 just became anything from community control up to a single year.

Let's recap. The court made a typographical error in the verdict form. Nobody noticed (or at least, nobody complained) until the case was on appeal. The typo left a technical ambiguity. The remedy for the amibiguity is that Wells gets a big break.

Three lessons from this:
  1. Appellate counsel need to be careful to scrutinize jury verdict forms.
  2. Prosecutors need to pay attention.
  3. Details matter.

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