# Petition — Emery v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0534%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 898 ## Text ~ Supreme Court, U & FILED JUL 10 j979 } Iw THE MICHARL ROOAK, JR., CLERK Supreme Court of the United States Ocroper Term, 1979 Case No. .....-. WQO-4'7 4 a DonaLp T. EMERY, Petitioner, —_—V— STATE OF OHIO, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF OHIO Bernarp A. BERKMAN BERKMAN, GORDON, KANCELBAUM, Levy and Murray 2121 The Illuminating Building 55 Public Square Cleveland, Ohio 44113 (216) 781-5245 Attorney for Petitioner ALLEN SCHULMAN, JR. 636 Citizens Savings Building Canton, Ohio 44702 Georce W. PALDA Of Counsel TABLE OF CONTENTS Page TABLE OF BPEL E EEC C Cee oe ee eecawece - iii - OPINIONS sn 6 eo dee 6 6 oes 6 RCC? © % 1 PUT EES bn 6 he 5 6d bees 6b 6 06 6b eee 2 QUESTION PRESENTED FOR REVIEW........ 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. oe ee € Cee ee ee 3 STATEMENT OF THE CASE...cccccccccccce 3 REASONS FOR GRANTING WRIT......eeeees 6 Se Se er Ca ee ee 15 APPENDIX Order Extending Time to File Petition for Writ of Certiorari.. 17 Order of the Ohio Supreme Court Denying Rehearing.......... 18 Order of the Ohio Supreme Court Dismissing Appeal of RIGHKC. ccccccccccccccccccccccce 19 Decision and Journal Entry of Ohio Court of Appeals - 20 Ninth Judicial District.......... Journal Entry in the Court of Common Pleas of Wayne 33 County, Case No. 77 CR-13l....... TABLE OF CONTENTS (CONT. ) TABLE OF AUTHORITIES Page Cases Page Journal Entry in the Court Berrier v. Egeler, 583 F. 2d of Common Pleas of Wayne 515 (6th Cir. 1978), cert. County, Case No. 77CR-157..... 35 denied, U.S. . SF Bete, 354 BOTE) ccc vewveuve wes etew es e*eeee#es 12 Propositions of Law Pre- : sented in Memorandum in Cool v. United States, 409 Support of Jurisdiction ie Se NEE Wa bias 's 04 Seb be «6 11 to the Supreme Court of oO TE ee ae ke Gb Oe ee ee 37 Grace Ve Hopper, 566 F.2d 507 (5th op je. ara eeeee eeee 15 Assignments of Error to Ohio Court of Appeals, Hampton v. United States, Ninth Appellate oe Se 38 425 FP 484 bio.) ae ee0nee ee 11,13, ° 14 Fourteenth Amendment to the United States Con- In re Winship, 297 U.S. 358 (1970).... 5,6, re 39 7,9,12, 15 Ohio Revised Code, A Das kde ohn k o¥ecdee 40 Mullaney v. Wilbur, 421 U.S. 684 1975 eeeeeeeveeeeeeeeeeeeeeeeeee G7 9,12 Patterson v. New York, 432 U.S. 197 OLS PPPPrPrT ere TTT Tee Tee ee 45 Cs 9,12,14 Sandstrom v. Montana, U.S. , 47 U.S.L.W. 4719 (June 19, 1979, No. 78-5384)....... 7,11 Sherman v. United States, 356 Ue 369 eA re ec oid ee oe 11,23 Sorrells v. United States, 267 U.S. 4355 (1952). cece nc cccee 11,13 - ii - - iii - TABLE OF AUTHORITIES (CONT. ) Speiser v. Randall, 357 U.S. 513 CEeOET bs a teh aeubeas /8/ Judge of the Common Pleas Court APPROVED: £S/ Assistant Prosecuting Attorney - 36 - PROPOSITIONS OF LAW PRESENTED IN MEMORANDUM IN SUPPORT OF JURISDICTION TO THE SUPREME COURT OF OHIO Proposition of Law No. I: THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY ON THE DEFENSE OF ENTRAP- MENT, BY INSTRUCTING THE JURY THAT THE STATE COULD OVERCOME THE DEFENSE OF ENTRAPMENT BY "CREDIBLE EVIDENCE". - 37 - I. II. III. IV. ASSIGNMENTS OF ERROR TO OHIO COURT OF APPEALS, NINTH APPELLATE DISTRICT The judgment is against the weight of the evidence. The trial court erred in its charge to the jury on entrapment. The trial court erred in failing to suppress, and in admitting over defendant's objection, evidence secured by means of entrapment. The trial court erred in failing to grant defendant's motion to dismiss at the close of state's evidence and in instructing the jury with respect to whether the substance in Case No. 77-CR-131l was a resin preparation or a resin concentrate. The trial court erred in failing to suppress and in admitting over defen- dant's objection evidence of in- criminating statements of defendant. = 38 - CONSTITUTION OF THE UNITED STATES FOURTEENTH AMENDMENT Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ~ 39 « —— “ —_ - OHIO REVISED CODE §2925.03 Trafficking in drugs. (A) No person shall knowingly do any of the following: (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; (2) Prepare for shipment, ship, transport, deliver, prepare for distribu- tion or distribute a controlled substance, when the offender knows or has reasonable cause to believe such drug is intended for sale or resale by the offender or another; (3) Cultivate, manufacture, or otherwise engage in any part of the produc- tion of a controlled substance; (4) Possess a controlled sub- stance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount; (5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount; (6) Possess a controlled sub- stance in an amount equal to or exceeding three times the bulk amount; (7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount; §2925.03 cont'd. (8) Provide money or other items of value to another person with the purpose that the recipient of the money or items of value would use them to obtain controlled substances for the purpose of selling or offering to sell such controlled substances in amounts exceeding a bulk amount or for the purpose of violating division (A) (3) of this section. (B) This section does not apply to manufacturers, practioners, pharmacists, owners of pharmacies, and other persons whose conduct is in accordance with Chap- ters 3719., 4715., 4729., 4731., and 4741. of the Revised Code. (C) If the drug involved is any com- pound, mixture, preparation, or substance included in schedule I with the exception of marihuana or in schedule II, whoever violates this section is guilty of aggra- vated trafficking. (1) Where the offender has violated division (A)(1) of this section, aggravated trafficking is a felony of the third degree, and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree. (2) Where the offender has violated division (A) (2) of this section, aggravated trafficking is a felony of the third degree, and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree. (3) Where the offender has violated division (A) (3) of this section, aggravated trafficking is a felony of the second degree and the court shall impose §2925.03 cont'd. a sentence of actual iricarceration of three years and if the offender has previously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years. (4) Where the offender has violated division (A) (4) of this section, aggravated trafficking is a felony of the third degree and the court shall impose a sentence of actual incarceration of eighteen months and if the offender has previously been convicted of a felony drug abuse of- fense, aggravated trafficking is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years. (5) Where the offender has violated division (A) (5) or (A) (6) of this section, aggravated trafficking is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years and if the offender has pre- viously been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the first degree, and the court shall impose a sentence of actual incar- ceration of five years. (6) Where the offender has violated division (A) (7) of this section, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of at least seven years. - 42 - §2925.03 cont'd. (7) Where the offender has violated division (A) (8) of this section, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of seven years and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of ten years. (D) If the drug involved is any compound, mixture, preparation, or substance included in schedule III, IV, or V, whoever violates this section is guilty of traffick- ing drugs. (1) Where the offender has vio- lated division (A) (1) or (A) (2) of this section, trafficking in drugs is a felony of the fourth degree and if the offender has previously been convicted of a drug abuse offense, trafficking in drugs is a felony of the third degree. (2) Where the offender has violated division (A) (3) of this section, trafficking in drugs is a felony of the third degree and the court shall impose a sentence of actual incarceration of one year and if the offender has previously been convicted of a felony drug abuse offense, trafficking in drugs is a felony of the second degree and the court shall impose a sentence of actual incarceration of two years. (3) Where the offender has vio- lated division (A) (4) of this section, trafficking in drugs is a felony of the fourth degree and the court shall impose a sentence of actual incarceration of six months and if the offender has previously been convicted of a felony drug abuse - 43 - §2925.03 cont'd. offense, trafficking in drugs is a felony of the third degree and the court shall impose a sentence of actual incarceration of eighteen months. (4) Where the offender has violated division (A) (5) of this section, trafficking in drugs is a felony of the third degree and the court shall impose a sentence of actual incarceration of one year and if the offender has previously been convicted of a felony drug abuse offense, trafficking in drugs is a felony of the second degree and the court shall impose a sentence of actual incarceration of two years. (5) Where the offender has violated division (A) (6) of this section, trafficking in drugs is a felony of the third degree and the court shall impose a sentence of actual incarceration of eighteen months and if the offender has previously been convicted of a felony drug abuse offense, trafficking in drugs is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years. . (6) Where the offender has violated division (A)(7) of this section, trafficking in drugs is a felony of the second degree and the court shall impose a sentence of actual incarceration of two years and if the offender has previously been convicted of a felony drug abuse of- fense, trafficking in drugs is a felony of the first degree and the court shall impose a sentence of actual incarceration of four years. (7) Where the offender has violated division (A) (8) of this section, trafficking in drugs is a felony of the §2925.03 cont'd. first degree and the court shall impose a sentence of actual incarceration of five years and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of seven years. (E) If the drug involved is marihuana, whoever violates this section is guilty of trafficking in marihuana. (1) Where the offender has violated division (A)(l), (A) (2), (A) (3), or (A) (4) of this section, trafficking in marihuana is a felony of the fourth degree and if the offender has previously been convicted of a felony drug abuse offense, trafficking in marihuana is a felony of the third degree. (2° Where the offender has violated division (A) (5) or (A) (6) of this section, trafficking in marihuana is a felony of the t:hird degree and if the offender has previously been convicted of a felony drug abuse offense, trafficking in marihuana is a felony of the second degree. (3) Where the offender has violated division (A) (7) of this section, trafficking in marihuana is a felony of the second degree and the court shall im- pose a sentence of actual incarceration of six months and if the offender has pre- viously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of one year. (4) Where the offender has violated division (A) (8) of this section, trafficking in marihuana is a felony of the second degree and the court shall impose a sentence of actual incarceration of one - 45 - §2925.03 cont'd. year, and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of two years. (5) If the offense involves a gift of twenty grams or less of marihuana, trafficking in marihuana is a minor mis- demeanor for the first offense and a mis- demeanor of the third degree for any subsequent offense. (F) It shall be an affirmative defense, as provided in section 2901.05 of the Revised Code, to a charge under this section for possessing a bulk amount of a controlled substance or for cultivating mar- ihuana that the substance which gave rise to the charge is in such amount, in such torm, or is prepared, compounded, or mixed with substances which are not controlled substances in such a manner, or is possessed or cultivated in any other circumstances whatsoever as to indicate that the substnace was solely for personal use. (G) When a person is charged with possessing 4 bulk amount or a multiple thereof, the jury, or the court trying the accused shall determine the amount of the controlled substance involved at the time of the offense, and if a guilty ver- dict is returned shall return the findings as part of the verdict. In any such case, it is unnecessary to find and return the exact amount of the controlled substance and it is sufficient if the finding and return is to the effect that the amount of the controlled substance involved is a bulk amount or the requisite multiple thereof, or that the amount of the controlled sub- stance involved is less than a bulk amount or the requisite multiple thereof. - 46 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0534%3A1. Public record. Not legal advice.