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

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, DefendantAppellant. 

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. 
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Case No. 19 BE 0039

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 postsentence 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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Case No. 19 BE 0039

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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Case No. 19 BE 0039

{¶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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Case No. 19 BE 0039

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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Case No. 19 BE 0039

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 
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Case No. 19 BE 0039

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 
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Case No. 19 BE 0039

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 dualsovereign prosecutions under certain circumstances. R.C. 2925.50 reads, in its entirety, 
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Case No. 19 BE 0039

“[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 
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Case No. 19 BE 0039

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:
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Case No. 19 BE 0039

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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Case No. 19 BE 0039

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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Case No. 19 BE 0039

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 elevenyear sentence, and the forfeiture of his property, constitute a manifest injustice, insofar 
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Case No. 19 BE 0039

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 postsentence 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. 
[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.