State v. Nickelson

• Court: Ohio Court of Appeals
• Writing for the Court: D'Apolito, J.
• Citation: State v. Nickelson, 2020 Ohio 1149, 152 N.E.3d 1288 (Ohio App. 2020)
• Decision Date: 27 March 2020
• Docket Number: No. 19 BE 0039,19 BE 0039
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Sharod Deshawn NICKELSON, Defendant-Appellant.

152 N.E.3d 1288

2020 Ohio 1149

STATE of Ohio, Plaintiff-Appellee,

v.Sharod Deshawn NICKELSON, Defendant-Appellant.

No. 19 BE 0039

Court of Appeals of Ohio, Seventh District, Belmont County.

Dated: March 27, 2020

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.

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

OPINION AND JUDGMENT ENTRY

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, 2017 WL 3951925. 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 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."

{¶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 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. 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...