[Cite as State v. Small, 2018-Ohio-757.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :                 Nos. 16AP-497
                                                                   and 16AP-565
                                                 :            (C.P.C. No. 11CR-5413)
v.
                                                 :         (REGULAR CALENDAR)
Mykel Small,
                                                 :
                 Defendant-Appellant.
                                                 :




                                           D E C I S I O N

                                       Rendered on March 1, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee. Argued: Michael P. Walton.

                 On brief: Adam R. Todd, for appellant. Argued: Adam R.
                 Todd.

                  APPEALS from the Franklin County Court of Common Pleas

BROWN, P.J.
        {¶ 1} Mykel Small, defendant-appellant, appeals from the judgment of the
Franklin County Court of Common Pleas, in which the court denied appellant's motion to
withdraw guilty plea.
        {¶ 2} As relevant to the present appeal, in 2011, appellant was charged with
aggravated possession of drugs, a first-degree felony, and aggravated possession of drugs,
a third-degree felony. The charges arose from a shipment of 1,405 Oxycodone 30-
milligram pills and 50 Oxycodone 15-milligram pills sent to appellant. Police intercepted
the package and conducted a controlled delivery, after which they conducted a search of
Nos. 16AP-497 and 16AP-565                                                                   2

appellant's residence. Appellant claimed he only expected the 30-milligram pills and did
not know the 15-milligram pills would be in the package.
       {¶ 3} Prior to trial, appellant's trial counsel sent him a letter advising him of the
plea offer. In the letter, trial counsel indicated the first count carried a mandatory prison
sentence of 3 to 10 years, and the second count carried a presumption in favor of prison
for a term between 9 and 36 months. Trial counsel indicated therefore, if convicted,
appellant would face a potential maximum prison term of 13 years.
       {¶ 4} On November 18, 2013, appellant entered a plea of guilty to aggravated
possession of drugs, a first-degree felony, and the trial court dismissed the third-degree
felony possession of drugs charge. On July 29, 2014, the trial court sentenced appellant to
eight years on the first-degree felony aggravated possession of drugs count.
       {¶ 5} Appellant appealed multiple judgments, which also included other charges,
and, in State v. Small, 10th Dist. No. 14AP-659, 2015-Ohio-3640, this court remanded the
matter to the trial court for resentencing.
       {¶ 6} On December 3, 2014, appellant filed a motion to withdraw guilty plea, in
which he contended his plea was not knowing, intelligent, and voluntary. On May 19,
2015, appellant filed a supplemental memorandum in support of his motion to withdraw
guilty plea. In these pleadings, appellant asserted, among other things, that because the
two pertinent charges were allied offenses, he could only be convicted of one of the
charges, contrary to what his counsel stated to him in the letter. He claimed if he had
known such, he would not have pled guilty and would have had a jury trial.
       {¶ 7} The trial court held a hearing on appellant's motion to withdraw guilty plea.
After the trial court issued an oral decision at the close of trial, appellant filed an appeal.
On July 21, 2016, the trial court issued a judgment in which it denied appellant's motion
to withdraw guilty plea, and appellant filed another appeal. Thus, although the present
matter contains two case numbers, it involves only one judgment. In his appeal, appellant
asserts the following assignment of error:
              The trial court's denial of Mr. Small's motion to withdraw his
              guilty plea to the charge for aggravated possession of drugs
              resulted in a manifest injustice. Mr. Small did not
              intelligently, knowingly and voluntarily enter his plea because
              trial counsel incorrectly advised him regarding the maximum
              possible sentence he faced at trial. The trial court failed to
Nos. 16AP-497 and 16AP-565                                                                3

              make a meaningful determination that Mr. Small intelligently,
              knowingly and voluntarily entered the plea.

       {¶ 8} Appellant argues in his assignment of error that (1) he was denied effective
assistance of trial counsel, and (2) he did not intelligently, knowingly, and voluntarily
enter his guilty plea. With regard to his first argument, in order to establish ineffective
assistance of counsel, a defendant must demonstrate "first, that counsel's performance
was deficient and, second, that the deficient performance prejudiced the defense so as to
deprive the defendant of a fair trial." State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-
5084, ¶ 205, citing Strickland v. Washington, 466 U.S. 668 (1984). In order to show
prejudice, the defendant "must prove that there exists a reasonable probability that, were
it not for counsel's errors, the result of the trial would have been different." State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
       {¶ 9} Appellant's post-conviction petition to withdraw guilty plea is governed by
Crim.R. 32.1. The rule states that such a motion may be made after the sentence is
imposed only to correct a manifest injustice. The burden of establishing the existence of a
manifest injustice is on the defendant seeking the vacation of the plea. State v. Smith, 49
Ohio St.2d 261 (1977), paragraph one of the syllabus.
       {¶ 10} A motion made pursuant to Crim.R. 32.1 is addressed at the sound
discretion of the trial court, and the good faith, credibility, and weight of the movant's
assertions in support of the motion are matters to be resolved by that court. State v.
Stumpf, 32 Ohio St.3d 95, 104 (1987); Smith at paragraph two of the syllabus. An
appellate court's review is limited to a determination of whether the trial court abused its
discretion by denying the motion to withdraw a guilty plea. State v. Barnett, 73 Ohio
App.3d 244, 250 (2d Dist.1991). An abuse of discretion connotes more than an error of
law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Montgomery, 61 Ohio St.3d 410, 413 (1991).
       {¶ 11} With regard to the ineffective assistance of counsel claim, in the present
case, appellant argues his trial counsel was deficient because he misadvised him regarding
the maximum possible sentence he faced at trial on the two drug charges. Appellant
claims his trial counsel misunderstood the nature of the charges, in that the letter from
counsel to appellant included an incorrect explanation about the possible sentence for the
Nos. 16AP-497 and 16AP-565                                                                  4

two related charges for aggravated possession of drugs. Appellant asserts that, although
trial counsel wrote in the letter that he faced a potential maximum prison term of 13
years, the court could not convict and punish appellant for both counts of aggravated
possession of drugs because they arose from the same conduct, and R.C. 2941.25 forbids a
defendant from being convicted of two allied offenses of similar import arising from
identical conduct. Appellant maintains that, although there were two separate charges
because there were differing milligram strengths of the same prescription drug, both
counts arose from the same conduct involving the same drug in the same transaction. He
contends he only intended to possess the 30-milligram pills and did not know the 15-
milligram pills were in the same package he received from his supplier.
       {¶ 12} Appellant also argues he would not have entered the guilty plea to the
charge for aggravated possession of drugs if he had been correctly advised by trial counsel.
In support, appellant points out he testified at the hearing on his motion that, had he
known that he could have only been convicted of one charge, he would have gone to trial,
and he believed and relied on the information in his trial counsel's letter in making his
decision to plead guilty.
       {¶ 13} After a review of the record, we find appellant failed to demonstrate his trial
counsel was ineffective. In doing so, we need not specifically determine whether
appellant's trial counsel misadvised him as to the possible maximum sentence he could
face if he were to have a jury trial on the two charges. For appellant to prevail on his claim
of ineffective assistance of counsel, this court would need to conclude that "counsel's
performance fell measurably below that which might be expected from an ordinary fallible
attorney." State v. McCarty, 11th Dist. No. 2015-P-0064, 2016-Ohio-4734, ¶ 29. We are
also required to indulge a strong presumption that counsel's conduct is within the wide
range of reasonable professional representation. Strickland at 689. The question is
whether an attorney's representation amounted to incompetence under "prevailing
professional norms," not whether it deviated from best practices or most common
custom. Strickland at 690. Furthermore, "the performance inquiry must be whether
counsel's assistance was reasonable considering all the circumstances." Id. at 688.
       {¶ 14} In the present case, appellant addresses his ineffective assistance claim by
presenting a legal argument regarding whether the two counts should have been merged.
Nos. 16AP-497 and 16AP-565                                                                 5

However, appellant frames the issue incorrectly. Despite his claim that trial counsel
"clearly" misadvised him, the case law appellant relies on, State v. Painter, 12th Dist. No.
CA2014-03-022, 2014-Ohio-5011, is not unequivocally on point, and plaintiff-appellee,
State of Ohio, presents case law contra appellant's claims, relying upon State v. Sowers,
5th Dist. No. 16 CA 00002, 2016-Ohio-7500. The key to an ineffective assistance of
counsel claim is reasonableness. A defense counsel's reasonable and arguable
interpretation of law at the time of the action taken cannot rise to the level of ineffective
assistance of counsel; this remains true even if the interpretation proves later to be wrong.
See State v. McCown, 10th Dist. No. 06AP-153, 2007-Ohio-1417, ¶ 5 (under Strickland,
counsel must not be functioning as counsel in order to be providing ineffective assistance
of counsel; the fact that counsel did not foresee how a court would later decide a legal
question does not make counsel's performance ineffective assistance of counsel); State v.
Martin, 6th Dist. No. C.A. S-79-1 (May 4, 1979) (trial counsel should not be faulted for an
interpretation of a statute that is arguable at the time, and counsel will not be held
incompetent for failure to comply with the statute, even if it later proves to be wrong);
State v. Humphries, 10th Dist. No. 78AP-564 (Jan. 30, 1979) (petitioner could not
possibly establish ineffective assistance of defense counsel of a constitutionally recognized
magnitude when counsel was following the law generally believed to be applicable at that
time; at most, defense counsel's breach of duty was in not anticipating a later
interpretation of an equivocal statute).
       {¶ 15} Here, both parties cite debatable but reasonably arguable authority for their
differing interpretations of the merger statute as it applies to the present facts. Applying
the above cited tenets to this situation, even assuming, arguendo, that appellant's trial
counsel was wrong in his interpretation of the merger issue, it would be difficult to find
appellate counsel was so seriously deficient that counsel wholly failed to function as the
"counsel" guaranteed the defendant by the Sixth Amendment, when neither the state nor
appellant can point to clear authority on the relevant issue.
       {¶ 16} Importantly, in light of the trial court's findings at the motion hearing, we
cannot conclude that trial counsel's interpretation—that the two offenses constituted two
separate offenses for which appellant could receive a total of 13 years imprisonment if
found guilty of both offenses—was so unreasonable so as to constitute ineffective
Nos. 16AP-497 and 16AP-565                                                                  6

assistance of counsel. Appellant was indicted on two different counts—a first-degree
felony for the 30-milligram Oxycodone pills, and a third-degree felony for the 15-
milligram Oxycodone pills. At the conclusion of the motion hearing, the trial court
indicated it agreed with appellant's trial counsel that because the pills at issue constituted
two different drugs and separate dosages, they were separate offenses. The court
concluded, consistent with the opinion of trial counsel, that the maximum penalty, as the
court described to appellant at the time of sentencing, would have been ten years on one
count and three years on the other count. The court explained appellant's concept of
merger or selective enforcement was wrong, as appellant accepted the entire package of
pills and possessed it at the time of the offense. The court found there was clearly a
separate animus given there were two different types of drugs, even though they were in
the same box. Furthermore, the court found that, despite appellant's contention he did
not intend to possess as many of the pills that his supplier sent, he still decided to
maintain the entire quantity his supplier sent him. That the trial court agreed with
appellant's trial counsel strongly supports a conclusion the interpretation of appellant's
counsel was not so unreasonable and so seriously deficient that he was not acting as the
counsel guaranteed by the Sixth Amendment. Appellant was guaranteed reasonable and
competent, but not perfect, counsel. See Bell v. Cone, 535 U.S. 685, 702 (2002);
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); State v. Hall, 10th Dist. No. 04AP-
1242, 2005-Ohio-5162, ¶ 41, citing State v. Cummings, 10th Dist. No. 90AP-1144 (Apr. 21,
1992) (a defendant is entitled to a reasonable standard of representation, not perfect
representation).
       {¶ 17} Furthermore, a trial attorney is not required to engage in futile acts. State v.
Ealy, 10th Dist. No. 11AP-750, 2012-Ohio-3336, ¶ 17, citing State v. Hillman, 10th Dist.
No. 06AP-1230, 2008-Ohio-2341, ¶ 46. When a claim of ineffective assistance of counsel
is based on counsel's failure to raise an issue, a defendant must show that such an
argument had a reasonable probability of success. State v. Ferguson, 10th Dist. No. 16AP-
307, 2016-Ohio-8537, ¶ 11, citing State v. Carmon, 10th Dist. No. 11AP-818, 2012-Ohio-
1615, ¶ 9, and State v. Barbour, 10th Dist. No. 07AP-841, 2008-Ohio-2291, ¶ 32, citing
State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577 (4th Dist.). Here, the trial court
agreed with appellant's trial counsel that appellant was subject to a total imprisonment
Nos. 16AP-497 and 16AP-565                                                                 7

term of 13 years. Thus, the trial court would have rejected any argument by trial counsel
that the offenses merged. Therefore, we find there was not a reasonable probability of
success had appellant's counsel argued before the trial court that the counts merged.
       {¶ 18} For these reasons, we conclude appellant has failed to show his trial counsel
was ineffective because he allegedly misadvised him regarding the maximum possible
sentence he faced at trial on the two drug charges. Trial counsel's advice was not
unreasonable under the circumstances, and, even if counsel had raised such issue with the
trial court, the trial court would have rejected the argument, and no prejudice would have
resulted.
       {¶ 19} Appellant next argues the trial court erred because it did not address him
and make an express finding that he entered his guilty plea intelligently, knowingly, and
voluntarily. Appellant asserts Crim.R. 11(C)(2) requires a trial court personally address a
defendant and determine the defendant made the plea voluntarily and with an
understanding of the nature of the charges and the maximum penalty involved. Appellant
contends that, if the court had complied with its duty, it would have discovered appellant
was misinformed as to the possible maximum sentence he faced at trial.
       {¶ 20} However, we need not delve into the details or authority surrounding
appellant's claims because appellant's argument is barred by res judicata. Res judicata
bars the assertion of claims against a valid, final judgment of conviction that have been
raised or could have been raised on appeal. State v. Perry, 10 Ohio St.2d 175 (1967),
paragraph nine of the syllabus. The applicability of res judicata is a question of law, which
an appellate court reviews de novo. EMC Mtge. Corp. v. Jenkins, 164 Ohio App.3d 240,
249, 2005-Ohio-5799, ¶ 15 (10th Dist.), citing Prairie Twp. Bd. of Trustees v. Ross, 10th
Dist. No. 03AP-509, 2004-Ohio-838, ¶ 12.
       {¶ 21} As applied to the present circumstances, any issues related to the knowing,
intelligent, and voluntary nature of appellant's guilty plea on the aggravated possession of
drugs charge could have been raised in a direct appeal. Appellant failed to do so. This
court has consistently held that res judicata bars a defendant from raising claims in a
post-sentence motion to withdraw guilty plea that were either raised or could have been
raised in a direct appeal from the judgment of conviction and sentence. State v. Nooks,
10th Dist. No. 14AP-344, 2014-Ohio-4828, citing State v. Muhumed, 10th Dist. No. 11AP-
Nos. 16AP-497 and 16AP-565                                                               8

1001, 2012-Ohio-6155; State v. Hazel, 10th Dist. No. 10AP-1013, 2011-Ohio-4427, ¶ 18,
citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59 (applying res judicata
to bar a defendant from raising any issue in a post-sentence motion to withdraw a guilty
plea that could have been raised at trial or on direct appeal); State v. Conteh, 10th Dist.
No. 09AP-490, 2009-Ohio-6780, ¶ 6; State v. Oluoch, 10th Dist. No. 07AP-45, 2007-
Ohio-5560, ¶ 28; State v. Totten, 10th Dist. No. 05AP-278, 2005-Ohio-6210, ¶ 7.
Therefore, res judicata precluded appellant from raising these issues in his motion to
withdraw guilty plea. Thus, we find the trial court did not err when it denied appellant's
motion to withdraw guilty plea, and we overrule appellant's assignment of error.
      {¶ 22} Accordingly, appellant's single assignment of error is overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                      Judgment affirmed.

                     LUPER SCHUSTER and HORTON, JJ., concur.

                              ____________________
