[Cite as State v. Nickelson, 2020-Ohio-1149.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                          STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                   v.

                             SHAROD DESHAWN NICKELSON,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                          Case No. 19 BE 0039


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                    Case No. 15 CR 237

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.


                                       JUDGMENT:
                Motion to Withdraw Plea is Granted. Convictions are Vacated.


 Atty. Dan Fry, Belmont County Prosecutor, 147-A West Main Street, St. Clairsville, Ohio
 43950 and Atty. J. Flanagan, Assistant Prosecuting Attorney for Plaintiff-Appellee (No
 Brief Filed) and

 Sharod Deshawn Nickelson, Pro Se, #726-744, North Central Correctional Institution,
 P.O. Box 1812, 670 Marion-Williamsport Road East, Marion, Ohio 43302, Defendant-
 Appellant.
                                                                                          –2–


                                   Dated: March 27, 2020


 D’Apolito, J.

       {¶1}   Appellant Sharod Deshawn Nickelson, acting pro se, appeals the denial of
his pro se post-sentence motion to withdraw his no contest plea by the Belmont County
Court of Common Pleas, following his conviction for one count of trafficking drugs
(cocaine), in violation of R.C. 2925.03(A)(2)(C)(4)(g), a felony of the first degree, with a
forfeiture specification (count one); and one count of trafficking drugs (oxycodone), in
violation of R.C. 2925.03(A)(2)(C)(1)(d), a felony of the second degree, with a forfeiture
specification (count two). Appellee did not file a brief.
       {¶2}   Following Appellant’s entry of a no-contest plea, the trial court imposed a
mandatory eleven-year sentence for count one and an eight-year sentence for count two.
The trial court imposed the sentences to run concurrently with one another, but
consecutively to Appellant’s previously-imposed 87-month federal sentence for
conspiracy to distribute and possess with the intent to distribute oxycodone in violation of
28 U.S.C. 841(a)(1) and 846. Pursuant to the plea agreement, $9,190.50 in currency was
forfeited to the State.
       {¶3}   In his direct appeal, Appellant challenged the trial court’s denial of his
motion to suppress, however, we found no error. State v. Nickelson, 7th Dist. Belmont
No.16 BE 0039, 2017-Ohio-7503. Roughly two years later, Appellant filed the post-
sentence motion to withdraw plea before us in this appeal.
       {¶4}   In his first assignment of error, Appellant argues that the denial of his motion
to withdraw his plea constitutes an abuse of discretion, because his eleven-year sentence
for trafficking cocaine is void pursuant to R.C. 2925.50. That statute abrogates dual
sovereignty by barring prosecution for a state drug offense if the offender was acquitted
or convicted under the federal drug abuse control laws for the “same act.” Appellant was
convicted for one count of conspiracy to distribute and possess with the intent to distribute
oxycodone, in violation of 21 U.S.C. 846 and 841(a)(1) and (b)(1)(C), in the United States
District Court, Northern District of West Virginia, roughly three months before he entered
his no contest plea in Belmont County. In his second assignment of error, which he did
not assert in his pro se motion before the trial court, Appellant asserts that his trial counsel


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rendered ineffective assistance because he failed to raise or argue a motion for acquittal
based on R.C. 2925.50.
       {¶5}   Having reviewed the record, including the evidence attached to Appellant’s
motion, we find that both of Appellant’s state convictions were predicated upon the
trafficking of drugs on October 14, 2015. At Appellant’s plea hearing in federal court, the
testimony of a state highway patrolman established that the conspiracy charge to which
Appellant was entering his plea included drug crimes committed through October of 2015
in Bellaire, Ohio. As a consequence, we find that the state was barred by statute from
prosecuting not only the cocaine trafficking charge challenged in the pro se post-sentence
motion to withdraw plea, but also the oxycodone trafficking charge, because they are both
based on the same acts as the federal conspiracy conviction.
       {¶6}   We find that the trial court committed an abuse of discretion because it did
not consider the statute or the material attached to the pro se motion. We further find that
Appellant has demonstrated a manifest injustice, insofar as he will serve an eleven-year
sentence and has forfeited property based on a prosecution prohibited by statute.
Accordingly, Appellant’s motion to withdraw his plea is granted, both of Appellant’s
convictions are vacated, as are the orders of forfeiture, and, further, the state is barred
from any criminal drug prosecution based on Appellant’s conduct on October 14, 2015 in
Bellaire, Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶7}   On November 3, 2015, Appellant was indicted in the United States District
Court, Northern District of West Virginia for conspiracy to distribute and possess with the
intent to distribute oxycodone “beginning by at least 2011, the exact date being unknown
to the Grand Jury, and continuing to in [sic] or about October 2015, in Ohio County, within
the Northern District of West Virginia, and elsewhere” in violation of 21 U.S.C. 841 and
846. 21 U.S.C. 841, prohibits any person from knowingly and intentionally distributing, or
possessing with the intent to distribute a controlled substance. 21 U.S.C. 846 reads, in
its entirety, “Any person who attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspiracy.”


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      {¶8}   Two days later, on November 5, 2015, Appellant was indicted in Belmont
County for two counts of drug trafficking, cocaine in count one and oxycodone in count
two, “on or about October 14-15, 2015,” in violation of R.C. 2925.03(A)(2)(C)(4)(g) and
(1)(d), respectively. R.C. 2925.03 (A)(1), captioned “Trafficking offenses,” prohibits any
person from preparing for shipment, shipping, transporting, delivering, preparing for
distribution, or distributing a controlled substance, when the offender knows or has
reasonable cause to believe that the controlled substance is intended for sale or resale
by the offender or another person.
      {¶9}   On November 11, 2015, Appellant filed a motion to suppress in the Belmont
County case, which alleged that evidence obtained from a motel room that he rented on
October 14, 2015 was illegally obtained. The denial of the motion to suppress was the
subject of Appellant’s direct appeal and an application to reopen. We found no merit in
either appeal.
      {¶10} Relevant to the current appeal, the parties stipulated at the hearing on the
motion to suppress that Appellant rented two motel rooms in St. Clairsville, Ohio on
October 14, 2015, one at the Comfort Inn and the other at the Days Inn. Members of the
Comfort Inn staff reported suspected drug activity to the Belmont Sheriff’s Department,
but the motel staff members were reluctant to risk their own safety to evict Appellant from
the room. As a consequence, two sheriff’s deputies effected the eviction.
      {¶11} The deputies knocked and announced their intent to evict Appellant, but
Appellant refused to open the door. When the deputies opened the door with a key card
provided by the motel staff members, a bag of pills was in plain view. A warrantless
search of the motel room yielded oxycodone and over $9,000 in cash, as well as two key
cards to the Days Inn motel room. The deputies acquired a search warrant for the Days
Inn motel room, which yielded over 100 grams of cocaine. In the direct appeal, we
reasoned that the warrantless search of the Comfort Inn motel room was valid because
the deputies were assisting the motel employees in effecting an eviction, and the bag of
pills was in plain view. Nickleson, supra.
      {¶12} Appellant entered a guilty plea to the conspiracy charge in federal court on
January 11, 2016. At the plea hearing, the trial court accepted the testimony of West




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Virginia State Patrolman, Luther White. Patrolman White provided the following testimony
to establish the factual basis for the plea:

       Q:      Would you briefly describe the background of the investigation
       concerning the defendant.

       A:      Yes, sir. The conspiracy is based upon historical testimony from
       confidential informants, as well as controlled buys and seizures from the
       defendant.

       Q:      And essentially what did those controlled buys, the historical
       information as well as the seizures, tell you or lead to?

       A;      We had bank records as far back as 2011 in which the defendant
       had made in excess of $25,000 worth of deposits from Bellaire, Ohio, as
       well as just recently, in October of 2015, authorities in Ohio executed a
       search warrant in which a felony amount of drugs and a large amount of
       currency were seized from the defendant.

       Q:      And so the conspiracy that’s basically the background of the
       beginning and ending dates of the conspiracy in this case?

       A:      Yes, sir.

(Emphasis added)(1/11/16 Fed. Plea Hrg., p. 18-19.) Patrolman White’s testimony at the
federal plea hearing was factually incorrect, insofar as the deputies seized oxycodone
and $9,000.00 in cash as a result of the warrantless search. The search of the second
hotel room, which was executed pursuant to a warrant, yielded cocaine, but no currency.
       {¶13} On March 4, 2016, the Northern District of West Virginia imposed a
sentence of eighty-seven months for the conspiracy conviction. The remaining federal
charges, which related to Appellant’s additional drug activity in West Virginia and are not
relevant to this appeal, were dismissed pursuant to the terms of the plea agreement.
       {¶14}    On June 16, 2016, Appellant entered no contest pleas to both counts of
drug trafficking in Belmont County. The transcript of the plea hearing is not in the record.



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However, the judgment entry on the plea reads that count one carries a mandatory
eleven-year sentence, and that the state intended to recommend an eleven-year
sentence for count one and an eight-year sentence for count two, to run concurrently with
one another, but consecutively to the existing federal sentence. The judgment entry
further reads that “[Appellant] agrees with the above except he will request that this eleven
(11) year sentence be served concurrently with the said Federal Court sentence.”
(6/22/16 J.E., ¶ 5.)
       {¶15} At the sentencing hearing on June 23, 2016, Appellant’s trial counsel asked
the trial court to impose the sentences for the drug trafficking convictions to be served
concurrently with the federal sentence. Defense counsel argued:

       I think there is sufficient overlap in the behavior charged by [the federal
       indictment] and this Indictment that even though we recognize dual
       sovereigns and authority to impose penalties separately, if that conspiracy
       charge subsumed or included the behavior here, which it appears that it did,
       I think concurrent sentences, concurrent with the eleven years, with the
       [eighty-seven] months in the Federal Court would be appropriate.

(6/23/16 Sent. Hrg., p. 6.)

       {¶16} The prosecutor requested that the state sentence be imposed to run
consecutively to the federal sentence and represented that the prosecution in West
Virginia was “on a matter unrelated to [the state prosecution].” (6/23/16 Sent. Hrg., p. 3.)
However, the trial court recognized that the federal conspiracy conviction was predicated
upon conduct occurring between 2011 “through the date of his arrest in Belmont County.”
(Id., p. 5.) Nonetheless, the trial court imposed the state sentences to run concurrently
with one another, but consecutively to the federal sentence.         Neither the state nor
Appellant’s trial counsel addressed the applicability of R.C. 2925.50 at the sentencing
hearing.
       {¶17} Roughly three years later, on July 25, 2019, Appellant filed the pro se
motion to withdraw his plea that is the subject of this appeal. Appellant alleged that his




Case No. 19 BE 0039
                                                                                         –7–


sentence for cocaine trafficking was void because it was imposed in contravention of R.C.
2925.50.
       {¶18} The trial court overruled Appellant’s motion to withdraw his plea the
following day. The trial court opined that Appellant “was convicted of serious criminal
conduct that occurred in Belmont County, Ohio,” and that “his convictions are unaffected
by whatever may have happened in the Federal Court for the State of West Virginia.” The
trial court further opined that “the Seventh District Court of Appeals has twice rejected
Defendant’s appeals and the Ohio Supreme Court has refused his further appeal.”
(7/26/19 J.E., p. 1.) This timely appeal followed.

                            ASSIGNMENT OF ERROR NO. 1

       TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       OVERRULED APPELLANT’S POST-MOTION TO WITHDRAW NO
       CONTEST PLEAS

       {¶19} Ohio Crim. R. 32.1, captioned “Withdrawal of Guilty plea,” reads, in its
entirety, “[a] motion to withdraw a plea of guilty or no contest may be made only before
sentence is imposed; but to correct manifest injustice the court after sentence may set
aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
Accordingly, “[a] defendant who seeks to withdraw a plea of guilty after the imposition of
sentence has the burden of establishing the existence of manifest injustice.” State v.
Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus.
       {¶20} A “manifest injustice” is a “clear or openly unjust act,” State ex rel. Schneider
v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998), and relates to a fundamental
flaw in the plea proceedings resulting in a miscarriage of justice. State v. Straley, -- Ohio
St.3d --, 2019-Ohio-5206, -- N.E.3d --, ¶14. The term “has been variously defined, but it
is clear that under such standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.” Id., quoting Smith at 264.
       {¶21} We have recognized that “[m]anifest injustice to support withdrawal of a
guilty plea can take the form of ineffective assistance of counsel.” State v. Brewer, 7th
Dist. Mahoning No. 14 MA 0127, 2016-Ohio-3224, ¶ 11. In seeking to invalidate a guilty



Case No. 19 BE 0039
                                                                                       –8–


plea based on ineffective assistance of counsel, a defendant must demonstrate that
counsel’s performance was deficient and that he was prejudiced by the deficiency, i.e. a
reasonable probability that he would not have agreed to plead guilty but for counsel’s
deficiency. Id., citing State v. Helms, 7th Dist. Mahoning No. 14 MA 96, 2015-Ohio-1708,
¶ 11.
        {¶22} An appellate court reviews a trial court’s decision on a motion to withdraw
a plea under an abuse-of-discretion standard. Smith at paragraph two of the syllabus;
State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32. An abuse
of discretion connotes more than an error of judgment; it implies an attitude on the part of
the court that is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E .2d 144 (1980).
        {¶23} “[A] criminal defendant cannot raise any issue in a post-sentence motion to
withdraw a guilty plea that was or could have been raised at trial or on direct appeal.”
State v. Reed, 7th Dist. Mahoning No. 04 MA 236, 2005-Ohio-2925, ¶ 11. An exception
to this principle exists if a defendant presents evidence dehors the record to support his
claims. State v. Brown, 7th Dist. Columbiana No. 18 CO 0025, 2019-Ohio-2717, ¶ 12.
Here, Appellant attached the federal indictment and the transcripts of the federal plea and
sentencing hearings to his motion to withdraw his plea, which were outside of the record
in the direct appeal.
        {¶24} Ordinarily, under the Double Jeopardy Clause, a person cannot be
prosecuted twice for the same offense. See Fifth Amendment to the U.S. Constitution
(“nor shall any person be subject for the same offense to be twice put in jeopardy of life
or limb”). However, the United States Supreme Court has long held that two prosecutions
brought by different sovereigns do not violate double jeopardy. Puerto Rico v. Sanchez
Valle, 136 S.Ct. 1863, 1871, 195 L.Ed.2d 179 (2016), citing United States v. Lanza, 260
U. S. 377, 382, 43 S. Ct. 141, 67 L.Ed. 314 (1922). States are separate sovereigns from
the federal government, having their “authority originally belonging to them before
admission to the Union and preserved to them by the Tenth Amendment.” United States
v. Gamble, 694 Fed.Appx. 750, 751 (11th Cir.2017), citing Sanchez Valle, supra.
        {¶25} However, the General Assembly enacted R.C. 2925.50 to prohibit dual-
sovereign prosecutions under certain circumstances. R.C. 2925.50 reads, in its entirety,



Case No. 19 BE 0039
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“[i]f a violation of [Revised Code Chapter 29] is a violation of the federal drug abuse control
laws * * *, a conviction or acquittal under the federal drug abuse control laws for the same
act is a bar to prosecution in [Ohio].” R.C. 2925.50.
       {¶26} The interpretation of the phrase “same act” is a matter of first impression in
Ohio. When interpreting a statute, a court’s primary concern is the legislative intent
behind the enacting of the particular statute. State v. S.R., 63 Ohio St.3d 590, 594, 589
N.E.2d 1319 (1992). It is axiomatic that a court must look to the language of the statute
itself to determine the legislative intent. Shover v. Cordis, 61 Ohio St.3d 213, 218, 574
N.E.2d 457 (1991). In undertaking that interpretation, the statute’s words and phrases
must be read in context and construed according to the rules of grammar and common
usage. Independent Ins. Agents of Ohio, Inc. v. Fabe, 63 Ohio St.3d 310, 314, 587 N.E.2d
814 (1992); R.C. 1.42.
       {¶27} Further, R.C. 1.49, captioned “Determining legislative intent,” reads, in its
entirety:

       If a statute is ambiguous, the court, in determining the intention of the
       legislature, may consider among other matters:

       (A) The object sought to be attained;

       (B) The circumstances under which the statute was enacted;

       (C) The legislative history;

       (D) The common law or former statutory provisions, including laws upon the
       same or similar subjects;

       (E) The consequences of a particular construction;

       (F) The administrative construction of the statute.

       {¶28} R.C. 2925.50 is a codification of section 405 of the Uniform Controlled
Substances Act (“UCSA”), which is a product of the National Conference of
Commissioners on Uniform State Laws (“NCCUSL”). Where, as here, the legislature
makes a verbatim enactment of a uniform act provision, the intent of the drafters of the


Case No. 19 BE 0039
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uniform law is relevant, and we may presume the intent of the drafters is the intent of the
legislature in the absence of evidence to the contrary. See 2B Sutherland, Statutory
Construction § 52:05 (6th ed.2000).
       {¶29} Although there is no legislative history in Ohio or the NCCUSL to guide our
interpretation of the phrase “same act,” courts in other states that have adopted section
405 of the model act provide some guidance. For instance, in the absence of legislative
history, the Wisconsin Supreme Court predicated their interpretation of the phrase “same
act” in Wis. Stat. 961.45 on the “context of the well-developed body of double jeopardy
jurisprudence in existence at the time of the passing, adoption, and revision of those
uniform acts.” State v. Hansen, 243 Wis.2d 328, 2001 WI 53, 627 N.W.2d 195, ¶ 19
(referring to the UCSA and its predecessor the Uniform Narcotic Drug Act).              The
Wisconsin Supreme Court recognized that the uniform acts were created and revised
during “an ongoing dialogue in the country as to the scope of the state and federal double
jeopardy protections. In that dialogue courts consistently used a common lexicon that
includes the terms ‘act’ and ‘offense’ to explain double jeopardy principles.” Id., ¶ 20.
       {¶30} The Hansen Court considered the phrase “same act” in light of the “same
elements” test devised by the United States Supreme Court in Blockburger v. United
States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Blockburger test is
recognized in most jurisdictions, including Ohio, as the controlling test in determining
whether multiple prosecutions are for the “same offense” in contravention of the double
jeopardy protection. “The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Id. at 304.
       {¶31} Hansen argued that her federal cocaine conspiracy conviction prohibited
the state from prosecuting a charge of possession with the intent to deliver cocaine. The
federal and state charges were both predicated upon searches of Hansen’s person,
automobile, and apartment on September 29, 1997, which yielded various amounts of
cocaine. The Hansen Court provided the following analysis of section 405 of the uniform
act:




Case No. 19 BE 0039
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      By asking us to construe “same act” to mean the crime as defined by the
      statutory elements, the State is asking us to translate “same act” as “same
      offense.” However, the State’s interpretation conflicts with the marked
      distinction between “act” and “offense” found in the case law. The terms are
      often juxtaposed, and this distinction has been described as the “act-offense
      dichotomy.” Otto Kirchheimer, The Act, the Offense and Double Jeopardy,
      58 Yale L.J. 513, 513 (1949). Given this dichotomy in the double jeopardy
      context, we conclude that NCCUSL intended the term to have the meaning
      commonly ascribed to it in that context: “same act” meant “same conduct.”

      As evidence of this dichotomy, we observe that Blockburger itself draws the
      distinction between acts and offenses that belies the State’s interpretation
      of § 961.45. While the State argues that “same act” should be construed to
      incorporate the Blockburger test, that position cannot be reconciled with the
      language of Blockburger. In the oft-quoted formulation of the test to
      determine whether multiple convictions constitute convictions for the “same
      offense” in contravention of the Fifth Amendment's Double Jeopardy
      Clause, the Blockburger Court explained:

             The applicable rule is that, where the same act or transaction
             constitutes a violation of two distinct statutory provisions, the test to
             be applied to determine whether there are two offenses or only one
             is whether each provision requires proof of an additional fact which
             the other does not.

      284 U.S. at 303, 52 S.Ct. 180 (emphasis added). The Court also stated:
      “Here there was but one sale, and the question is whether, both sections
      being violated by the same act, the accused committed two offenses or only
      one.” Id. (emphasis added).

      The Blockburger Court thus used the term “same act” to describe the
      conduct which formed the basis of an offense. When describing a crime as
      defined by its elements, the Blockburger Court uses the term “offense,”



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       thereby tracking the language of the Fifth Amendment, which defines the
       protection against double jeopardy by reference to the “offence.” U.S.
       Const. amend. V.

Hansen, supra, ¶ 22-24.

       {¶32} Based on the foregoing analysis, the Wisconsin Supreme Court concluded
that “the marked distinction between ‘acts’ and ‘offenses’ in the national double jeopardy
discourse ongoing when the UNDA was created and persisting up to and beyond the
passage of the UCSA, revealed that [the] NCCUSL intended the phrase ‘same act’ to
share the meaning attributed to it in the case law and secondary materials.” Id. at ¶ 30.
The Wisconsin Supreme Court concluded that the NCCULS intended the phrase “same
act” to mean “same conduct.” Because the Wisconsin legislature adopted § 961.45 from
the UCSA without revision or any other indication of a contrary legislative intent, the
Hansen Court attributed the intent of NCCUSL to the state legislature.
       {¶33} Courts in Michigan and North Carolina have reached the opposite
conclusion regarding the phrase “same act” in section 405.          Although neither court
specifically mentioned Blockburger, supra, both applied an elements test. The Michigan
Supreme Court has held that a federal conviction for conspiracy to possess with the intent
to distribute cocaine was not the “same act” that gave rise to a state charge of possession
with the intent to deliver cocaine. People v. Zubke, 469 Mich. 80, 664 N.W.2d 751 (2003)
(applying M.C.L.A. 333.7409). Defining the word “act,” as “[a] thing done, a deed,” the
Zubke Court reasoned that the act underlying the conspiracy was the agreement to
possess cocaine, while the “thing done” giving rise to the state charge was actual physical
possession of cocaine. Id. at 83-84.
       {¶34} In State v. Brunson, 165 N.C.App 667, 599 S.E.2d 576 (2004), Brunson sold
cocaine to an undercover officer on April 5, April 17, and May 1, 2001. She was charged
in state court with three counts of conspiracy to traffic cocaine, nine counts of trafficking
cocaine, and four counts of possession of cocaine with the intent to sell of deliver.
Brunson was later charged in federal court for three counts of distributing cocaine in
violation of 21 U.S.C. 841. Brunson entered a guilty plea and was convicted of one count




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of cocaine distribution, but the parties conceded that his federal sentence was predicated
upon all three of the cocaine sales.
        {¶35} The intermediate appellate court concluded that the state was prohibited
from charging Brunson with the substantive cocaine charges because the elements of the
state and federal violations were “‘nearly identical.’” Id. at 670, quoting State v. Woods,
146 N.C.App. 686, 554 S.E.2d 383(2001)(interpreting N.C. Gen.Stat. 90-97).              The
Brunson Court further concluded that the three conspiracy charges constituted a single
conspiracy, but that the state conspiracy charge was not barred because conspiracy is a
separately prohibited in the United States Code. Id. at 671.
        {¶36} Having considered the various interpretations of the phrase “same act” by
other states that have adopted section 405 of the model act, we adopt the sound
reasoning on the Wisconsin Supreme Court. We conclude that the phrase “same act” is
ambiguous, and the NCCULS intended the phrase “same act” to mean “same conduct.”
        {¶37} On Ocotber 14, 2015, Appellant was engaged in the act of trafficking drugs
in Bellaire, Ohio. The evidence in the record is not a series of controlled buys, but,
instead, possession of drugs in quantities so great that the intent to distribute was imputed
to Appellant. As a result of that “same conduct,” the Northern District of West Virginia
convicted Appellant of conspiracy to distribute and possession with the intent to distribute
oxycodone, in violation of 18 U.S.C. 841 and 846. Because both counts of the state
indictment charged Appellant with trafficking drugs on October 14, 2015, they are based
on the “same act” for which Appellant was convicted in federal court.
        {¶38} We find that the trial court’s denial of Appellant’s post-conviction motion to
withdraw his plea was an abuse of discretion. In concluding that no manifest injustice
had been shown, the trial court relied on the serious nature of the criminal conduct that
occurred in Belmont County, Ohio, and opined that it was unaffected by “whatever may
have happened in the Federal Court for the State of West Virginia.” The trial court acted
arbitrarily when it summarily dismissed the pro se motion, without any consideration of
the statute or the materials attached to Appellant’s post-sentence motion to withdraw his
plea.
        {¶39} Based on the record, we further find that Appellant’s convictions and eleven-
year sentence, and the forfeiture of his property, constitute a manifest injustice, insofar



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as the state prosecution was barred in its entirety by statute. Therefore, Appellant’s first
assignment is meritorious.

                             ASSIGNMENT OF ERROR NO. 2

       APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

       {¶40} Appellant raises his ineffective assistance claim for the first time on appeal.
Where arguments raised in an appellate brief were not raised to the trial court in a post-
sentence motion to withdraw plea, this Court has declined to consider them for the first
time on appeal. State v. Staffrey, 7th Dist. Mahoning No. 10 MA 130, 2011-Ohio-5760, ¶
37, citing State v. Robinson, 7th Dist. Monroe No. 09MO6, 2010-Ohio-2698, ¶ 21.

                                      CONCLUSION

       {¶41} R.C. 2925.50 bars prosecution for a state drug offense if the offender was
acquitted or convicted under the federal drug abuse control laws for the same act. We
find that the phrase “same act” means “same conduct,” and, therefore, the state
prosecution based on Appellant’s conduct on October 14, 2015 was barred. The trial
court abused its discretion in concluding that Appellant had failed to show a manifest
injustice, insofar as Appellant has been convicted of two felonies, will be incarcerated for
eleven years, and has forfeited property, as a result of a prosecution that was statutorily
prohibited. For the forgoing reasons, Appellant’s motion to withdraw his plea is granted,
both of Appellant’s convictions are vacated, as are the orders of forfeiture, and, further,
the state is barred from any criminal drug prosecution based on Appellant’s conduct on
October 14, 2015 in Bellaire, Ohio.




Donofrio, J., concurs.

Waite, P.J., concurs.




Case No. 19 BE 0039
[Cite as State v. Nickelson, 2020-Ohio-1149.]




         For the reasons stated in the Opinion rendered herein, Appellant’s motion to
 withdraw his plea is granted, both of Appellant’s convictions are vacated, as are the
 orders of forfeiture. Costs to be waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
