[Cite as State v. Pruitt, 2011-Ohio-4948.]


                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                               :   APPEAL NO. C-100587
                                                 TRIAL NO. B-0901851
        Plaintiff-Appellee,                  :
                                                 O P I N I O N.
  vs.                                        :

KENNETH PRUITT,                              :

      Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Affirmed in part and reversed in part, and cause
                           remanded.

Date of Judgment Entry on Appeal: September 30, 2011



Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael Keeling,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
D INKELACKER , Presiding Judge.

       {¶1}     In three assignments of error, defendant-appellant Kenneth Pruitt

challenges his convictions and sentences for numerous counts of drug possession and

trafficking.

       {¶2}     Pruitt was indicted on seven counts for conduct that occurred on March

18, 2009. The first, third, and sixth counts alleged possession of cocaine in violation of

R.C. 2925.11(A). The second count alleged trafficking in cocaine in violation of R.C.

2925.03(A)(1). The fourth and fifth counts alleged trafficking in cocaine in violation of

R.C. 2925.03(A)(2). The seventh count alleged that Pruitt had possessed a weapon

while under a disability. After a complete hearing held in accordance with Crim.R. 11,

Hayden entered pleas of guilty to all counts. Prior to sentencing, he filed a motion to

withdraw his pleas, claiming that he had been promised a lenient sentence, and

presenting affidavits from friends that attested to his innocence.              The trial court

conducted a full hearing and denied his motion. Pruitt now appeals.


                                 Motion to Withdraw Pleas

       {¶3}     In his first assignment of error, Pruitt claims that the trial court abused its

discretion when it denied his motion to withdraw his guilty pleas. But the trial court

conducted a complete hearing on the matter, considering all the factors outlined in State v.

Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, and concluded that it would not be

appropriate to allow Pruitt to withdraw the plea. The record supports the trial court’s

determination. We hold that the trial court did not abuse its discretion in denying Pruitt’s

motion to withdraw his plea. Pruitt’s first assignment of error is overruled.




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                                      Allied Offenses

       {¶4}     In his second assignment of error, Pruitt claims that he was improperly

convicted of trafficking and possession charges where they were allied offenses of similar

import and, as such, should have been merged at sentencing. We agree. See State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Pruitt was sentenced to

five years in prison on each count, with the terms to be served concurrently. Pruitt was

charged in counts one and two for possessing and trafficking in cocaine involved in a

“controlled buy” with law enforcement. Counts three and four involved the possession and

trafficking of crack cocaine found in his residence. And counts five and six involved the

possession and trafficking of “cocaine that was not crack cocaine,” also found in his

residence. Imposing sentences for each of the six counts, even concurrent sentences, was

improper.

       {¶5}     Pruitt’s second assignment of error is sustained, and we remand this case to

the trial court to allow the state to elect between counts one and two, counts three and four,

and counts five and six. See State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2, 922

N.E.2d 182. The trial court should then sentence Pruitt on only those three counts upon

which the state has elected to proceed.


                                  Ineffective Assistance

       {¶6}     In his third assignment of error, Pruitt claims that he was afforded

ineffective assistance of counsel when his trial attorney did not object to his being

sentenced separately for allied offenses.      In light of our disposition of his second

assignment of error, this argument is moot.




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                                       Conclusion

       {¶7}    The judgment of the trial court is affirmed in part and reversed in part, and

this cause is remanded for proceedings consistent with our disposition of the second

assignment of error.


                   Judgment affirmed in part and reversed in part, and cause remanded.

CUNNINGHAM and FISCHER, JJ., concur.

Please Note:
       The court has recorded its own entry this date.




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