The opinion
Edwards, Judge,
concurring in part and dissenting in part.
{¶ 78} I concur with the majority as to Assignments of Error III and IV. However, as to Assignments of Error I and II, I respectfully dissent.
{¶ 79} The Ohio Supreme Court has held that the fact that the substance offered for sale was not actually a controlled substance is immaterial for purposes of a conviction under R.C. 2925.03(A)(1).
State v. Scott,
supra;
State v. Patterson;
and
State v. Mughni,
supra. The majority seeks to distinguish
Scott
and
Patterson
on the basis that both were decided prior to the amendment of R.C. 2925.03(A) to include R.C. 2925.03(C). R.C. 2925.03(C) links the penalty to the weight of the drug involved. After implicitly finding that
Scott
and
Patterson
are no longer good law, the majority concludes that an R.C. 2925.03 conviction requires that the offender offer to sell a substance that actually contains a controlled substance. I disagree.
{¶ 80} I would find
State v. Mughni
(1987), 33 Ohio St.3d 65 , 514 N.E.2d 870 , controlling. In
Mughni,
the defendant offered to sell Percodan although the substance he offered to sell was not in fact a controlled substance. The
Mughni
court looked at a previous version of R.C. 2925.03, which stated as follows:
{¶ 81} “(A) No person shall knowingly do any of the following:
{¶ 82} “(1) Sell or offer to sell a controlled substance in an amount less than the minimum bulk amount as defined in section 2925.01 of the Revised Code.”
{¶ 83} The Ohio Supreme Court specifically considered whether Mughni could be convicted, since the substance offered for sale was not actually a controlled substance. The Supreme Court found that the fact that the substance Mughni was offering was not actually a controlled substance was immaterial for the purposes of R.C. 2925.03(A)(1).
Mughni,
33 Ohio St.3d at 66 , 514 N.E.2d 870, fn. 1 . The offense was complete when the offender knowingly offered to sell a controlled substance. Id. at 67-68, 514 N.E.2d 870 . There is no need for proof that the offender knew that the substance was not a controlled substance or that it was a counterfeit controlled substance. Id. at 68, 514 N.E.2d 870 .
*688
{¶ 84} I note further that
Mughni
was decided after the enactment of R.C. 2925.37, Offenses Involving Counterfeit Controlled Substances. Mughni was indicted on both drug trafficking and selling or offering to sell a counterfeit controlled substance. The Ohio Supreme Court held that they were not allied offenses of similar import and thereby upheld Mughni’s conviction on both counts.
{¶ 85} I realize that R.C. 2925.03 has been amended since
Mughni.
However, I find no changes to the statute that render
Mughni
no longer controlling. Under the current version of R.C. 2925.03, the amount of drug involved determines the penalty: “If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of trafficking in cocaine. The penalty for the offense shall be determined generally by” the drug involved and the amount involved. R.C. 2925.03(C).
1
Under the prior version of the statute, the amount of the controlled substance offered for sale determined the penalty as well. I see no material difference.
{¶ 86} Accordingly, I would affirm appellant’s conviction pursuant to R.C. 2925.03(A)(l)(C)(4)(g) (Assignment of Error II). As a result, I would find that Assignment of Error I is moot for the following reasons.
{¶ 87} R.C. 2925.03(A)(l)(C)(4)(g) states that an offender convicted under this section is a major drug offender and that the offender shall be sentenced as a major drug offender. As such, there is no need to consider whether it was appropriate to find appellant a major drug offender pursuant to the major-drug-offender specification brought under R.C. 2941.1410 and 2929.01. R.C. 2941.1410 recognizes this fact when it states that a major-drug-offender specification is required in order to find an offender a major-drug-offender
except as provided in R.C. 2925.OS.
Thus, even if appellant could not be found a major drug offender pursuant to R.C. 2941.1410 and 2929.01, appellant is a major drug offender pursuant to 2925.03(A)(l)(C)(4)(g).
{¶ 88} Accordingly, I respectfully dissent in regard to Assignment of Error I and II and concur with Assignments of Error III and IV.
1
. The penalty is also affected if the offenses are committed in the vicinity of a school or a juvenile.