The Adult Use Cannabis was not intended to decriminalize conduct that occurred prior to December 7, 2023, when it became effective.
State v. Fulcher
2024 – Ohio – 1609
Second District Appellate Court
Greene County, Ohio
April 26, 2024
On April 9, 2021, an indictment was filed in the trial court charging Mr. Ronald Fulcher with one count of illegal cultivation of marijuana in violation of O.R.C. §2925.04(A) and one count of possession of marijuana in violation of O.R.C. §2925.11(A). Both charges were third-degree felonies, and the alleged violations took place on September 2, 2020.
Note: O.R.C. 3780 was passed by a statewide vote on Tuesday November 7, 2023 and became effective December 7, 2023. Mr. Fulcher’s cannabis related crimes occurred over three years before O.R.C. 3780 was passed or became effective.
Note: Following many legal motions Mr. Mr. Fulcher accepted a plea and was sentenced on May 18, 2023. He subsequently filed four appeals: Retroactivity of O.R.C. §3780 – Adult Use Cannabis, Ineffective Assistance of Counsel, Suppression of the Evidence and Recusal of the judge. All four appeals were rejected by the Second District Appellate Court though only the Retroactive Appeal will be evaluated in this article.
Retroactivity
Under this assignment of error, Mr. Fulcher contends that his conviction and sentence should be vacated because the Adult Use Cannabis, codified in O.R.C. §3780, is retroactive. This statutory scheme resulted from an initiative petition of Ohio voters and became effective on December 7, 2023, more than three years after Mr. Fulcher committed illegal possession and cultivation of marijuana and more than two years after he was charged. As support for his claim that the statutory scheme applies retroactively, Mr. Fulcher has specifically relied on two statutes: O.R.C. §3780.03 and O.R.C. §3780.36.
Established Case Law
Analyzing the prohibition of retroactive laws begins with O.R.C. §1.48, which says that “[A] statute is presumed to be prospective in its operation unless expressly made retrospective.” The second provision prohibiting retroactive application “is a rule of constitutional limitation, imposed in Section 28, Article II of the Ohio Constitution: ‘The general assembly shall have no power to pass retroactive laws’ ” Hyle v. Porter, 2008-Ohio-542.
In this context, the Supreme Court of Ohio uses a two-part test to decide if statutes may be applied retroactively: (1) “[W]hether the General Assembly expressly made the statute retroactive”; and (2) if so, “whether the statutory restriction is substantive or remedial in nature.” State v. Consilio, 2007-Ohio- 4163. Unless the court decides the General Assembly “expressly made the statute retroactive,” it does “not address the question of constitutional retroactivity.” Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 106, 522 N.E.2d 489 (1988).
General Assembly or Statewide Vote?
The current situation differs somewhat because the General Assembly did not enact the Adult Use Cannabis; instead, it was adopted through an initiative petition that Ohio voters passed. Under Ohio Constitution, Article II, Section 1, “the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.” Ohio Constitution, Article II, Section 1b further provides a process to be followed where Ohio citizens file initiative petitions.
Second District Appellate Court Imparts a Logic Application over a Legal Application
In view of the above procedure, the General Assembly had no impact on the Adult Use Cannabis or its text once it failed to act on the initiative petition. Logically, however, the two-part test should still apply, i.e., the first consideration would be whether the statutory scheme was expressly made retroactive.
Conclusion and Holding
Given the lack of any express statutory statement that the Adult Use Cannabis applies retroactively, we need not consider whether the law is substantive or remedial. The Adult Use Cannabis was not intended to decriminalize conduct that occurred prior to December 7, 2023, when it became effective.
Based on the preceding discussion, the first assignment of error is overruled.
Information for this article was obtained from State v. Fulcher, 2024 – Ohio – 1609.
State v. Fulcher, 2024 – Ohio – 1609 was issued by the Second District Appellate Court on April 26, 2024 and is binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.
Lessons Learned:
- Retroactivity of a Statute Established Case Law – On June 23, 1916 the Supreme Court of Ohio held “When, therefore, the intention of the legislature is to give to such repealing or amending act a retroactive effect such intention must not be left to inference or construction, but must be manifested by express provision in the repealing or amending act.”. Kelley v. State, 94 Ohio St. 331, 338-339 (1916). In other words, the Ohio General Assembly would have to explicitly state that a new statute will be retroactively applied and shall not be inferred. In 2007 the Supreme Court of Ohio carved out a two-part test for statute retroactivity: (1) “[W]hether the General Assembly expressly made the statute retroactive”; and (2) if so, “whether the statutory restriction is substantive or remedial in nature.” State v. Consilio, 2007-Ohio- 4163.
- Marijuana Convictions Prior to December 7, 2023 – Because O.R.C. §3780 – Adult Use Cannabis, had no express language stating it was retroactive and because the statute was not passed by the General Assembly, Mr. Fulcher or any other marijuana-related conviction should be overturned if the conviction occurred prior to December 7, 2023, as the Second District Appellate Court held “The Adult Use Cannabis was not intended to decriminalize conduct that occurred prior to December 7, 2023, when it became effective.”.
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