AGO 1993-076.

• Case Date: December 30, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-076. December 30, 1993OPINION NO. 1993-076Reginald A. Wilkinson, Director Department of Rehabilitation and Correction1050 Freeway Drive, NorthColumbus, Ohio 43229 Dear Director Wilkinson: You have requested an opinion concerning the minimum sentence that must be served in particular circumstances involving drug trafficking, and also the manner in which parole eligibility is to be calculated. Your specific questions are as follows:

1. If an offender is sentenced, pursuant to ORC 2925.03(C)(9) or (10) [aggravated trafficking in drugs] to an indefinite term of 15 years (Actual Incarceration) to life consecutive to another indefinite sentence, does ORC 2929.41(E)(2) limit the minimum term to 15 years?

2. If an offender is sentenced, pursuant to ORC 2925.03(C)(10) to an indefinite term of 20 years (Actual Incarceration) to life consecutive to another indefinite sentence, does ORC 2929.41(E)(2) limit the minimum term to 15 years?

3. If ORC 2929.41(E)(2) does not limit to fifteen years the minimum term of an offender sentenced, pursuant to ORC 2925.03(C)(10), to an indefinite term of 20 years (Actual Incarceration) to life consecutive to another indefinite sentence, how is parole eligibility to be calculated?

Sentences for Trafficking in Drugs

Your questions relate to offenders who are, pursuant to R.C. 2925.03(C)(9) or (10), sentenced to indefinite terms of imprisonment. R.C. 2925.03 defines various drug trafficking offenses. In particular, R.C. 2925.03(A)(9) prohibits any person from knowingly possessing a controlled substance in an amount equal to or exceeding one hundred times the bulk amount, and R.C. 2925.03(A)(10) prohibits any person from knowingly selling or offering to sell such an amount of a controlled substance. R.C. 2925.03(C) provides that a violation of R.C. 2925.03 constitutes aggravated trafficking if certain types of drugs are involved. Pursuant to R.C. 2925.03(C):

(9) Where the offender has violated division (A)(9) of this section, aggravating trafficking is a felony of the first degree, and the court shall impose an indefinite term of imprisonment of fifteen years to life for the offense, with the minimum term of fifteen years being a sentence of actual incarceration.

(10) Where the offender has violated division (A)(10) of this section, aggravated trafficking is a felony of the first degree, and the court shall impose an indefinite term of imprisonment of fifteen years to life for the offense, with the minimum term of fifteen years being a sentence of actual incarceration, except that the court shall impose an indefinite term of imprisonment of twenty years to life for the offense, with the minimum term of twenty years being a sentence of actual incarceration, if any of the following apply:

(a) The offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises;

(b) The offender commits the offense within one hundred feet of any juvenile or within the view of any juvenile, whether or not the offender knows the age of the juvenile, the offender knows the juvenile is within one hundred feet or within view of the commission of the offense, or the juvenile views the commission of the offense;

(c) The offender previously has been convicted of a felony drug abuse offense.

An offender may thus be sentenced to a minimum term of actual incarceration of either fifteen or twenty years for aggravated trafficking in drugs, depending on the circumstances of the offense.

Consecutive Sentences

R.C. 2929.41 governs the period of imprisonment that must be served by an individual who has been sentenced for more than one offense. Your questions relate to sentences that are to be served consecutively. The General Assembly has imposed limits on such terms, as follows:

Consecutive terms of imprisonment imposed shall not exceed:

(1) An aggregate minimum term of twenty years, when the consecutive terms imposed include a term of imprisonment for murder and do not include a term of imprisonment for aggravated murder;

(2) An aggregate minimum term of fifteen years, plus the sum of all three-year terms of actual incarceration imposed pursuant to section 2929.71 of the Revised Code and the sum of all six-year terms of actual incarceration imposed pursuant to section 2929.72 of the Revised Code, when the consecutive terms imposed are for felonies other than aggravated murder or murder;

(3) An aggregate term of eighteen months, when the consecutive terms imposed are for misdemeanors.

R.C. 2929.41(E) (emphasis added); see also 17 Ohio Admin. Code 5120-2-03(F). R.C. 2929.71 provides for three-year terms of actual incarceration, in addition to a life sentence or indefinite term of imprisonment, for certain offenses involving firearms. R.C. 2929.72 provides for a six-year term of actual incarceration, in addition to a life sentence or indefinite term of imprisonment, for certain offenses involving an automatic firearm or a firearm equipped with a muffler or silencer. Your letter of request raises no questions with respect to these three-year and six-year terms. It is assumed, for purposes of this opinion, that the prisoner under consideration has not been sentenced to any three-year terms under R.C. 2929.71 or any six-year terms under R.C. 2929.72. Your questions relate to the application of R.C. 2929.41(E) to indefinite sentences imposed under R.C. 2925.03(9) or (10). Your letter states, in part:

In the case of an offender sentenced, pursuant to ORC 2925.03(C)(9) or (10) to a term of 15 years (Actual Incarceration) to life, consecutive to another indefinite sentence, the effect will be to limit the minimum sentence to fifteen years. However, if an offender is sentenced pursuant to 2925.03(C)(10) to a term of 20 years (Actual Incarceration) to life, consecutive to another indefinite sentence, ORC 2929.41(E)(2) would seem, to limit the minimum sentence to fifteen years.

It is assumed, for purposes of this opinion, that the...