State v. Mott , 2023 Ohio 2006 ( 2023 )

[Cite as State v. Mott, 2023-Ohio-2006.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-22-037
Appellee Trial Court No. 2018CR0587
v.
Noel N. Mott DECISION AND JUDGMENT
Appellant Decided: June 16, 2023
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Dan M. Weiss, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Noel Mott, appeals the May 17, 2022 judgment of the trial court
denying his motion to dismiss the February 7, 2019 indictment charging him with
aggravated trafficking in drugs, aggravated possession of drugs, and possession of
marijuana. For the following reasons, we affirm the trial court’s judgment.
A. Facts and Procedural Background
{¶ 2} On February 7, 2019, a grand jury serving the Wood County Court of
Common Pleas indicted appellant on one count of aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(2) and (C)(1)(d), a first-degree felony; one count of
aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(c), a second-
degree felony; and one count of possession of marijuana in violation of R.C. 2925.11(A)
and (C)(3)(a), a minor misdemeanor. The charges arose from an incident that occurred
on November 15, 2018. On that date, appellant was stopped by a member of the Ohio
Highway Patrol for a traffic violation. While conducting the stop, the trooper detected an
odor of raw marijuana and removed appellant and his passenger, D.R., from the vehicle.
The trooper then performed a search of the vehicle, during which marijuana and two
plastic bags containing Oxycodone were discovered.
{¶ 3} Appellant was originally charged with aggravated trafficking in drugs and
aggravated possession of drugs through the filing of a complaint in the Perrysburg, Ohio,
Municipal Court on November 16, 2018. Appellant made his initial appearance that
same day. At that appearance, the court set a $75,000 bond and scheduled his
preliminary hearing for November 27, 2018. Appellant posted his bond and was released
from custody later that day.
{¶ 4} Appellant’s counsel entered an appearance at the preliminary hearing and
requested a continuance. The court granted the continuance and the hearing was
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rescheduled for December 6, 2018. Following a second continuance and appellant’s
contemporaneous waiver of the preliminary hearing, the court then bound the matter over
to the Wood County Court of Common Pleas on December 13, 2018.
{¶ 5} A grand jury indicted appellant on February 7, 2019, alleging an aggravated
trafficking in drugs, aggravated possession of drugs, and possession of marijuana offense.
The indictment specifically identified the conduct underlying the charged offenses as
having occurred on November 15, 2018—the date of appellant’s traffic stop. The
indictment was assigned Wood County Court of Common Pleas case No. 2018CR0587
(“the state case”). Appellant appeared with counsel for his arraignment on February 22,
2019. At that time, he entered a not guilty plea to all three counts.
{¶ 6} On February 27, 2019, appellant was named, among twenty-two others, in
an indictment issued by a federal grand jury serving the United States District Court for
the Northern District of Ohio, Eastern Division. The indictment charged appellant and all
of his codefendants with conspiracy to possess with intent to distribute fentanyl, heroin,
and oxycodone in violation of 21 U.S.C. 846. The conspiracy was alleged to have
occurred between January 1, 2016, and February 28, 2019, and involved the parties
obtaining heroin, fentanyl, oxycodone, and marijuana from suppliers in Detroit, Michigan
and redistributing them in Mansfield, Ohio. The 55-page indictment identified 139
separate text messages and conversations between and among the coconspirators
arranging the pickup, transportation, sale, and distribution of those drugs identified in the
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indictment. The conspiracy indictment did not identify any conduct specifically related
to appellant’s November 15, 2018 traffic stop in Wood County, Ohio. The indictment
also identified six additional counts against appellant related to his possession of
oxycodone with intent to distribute, possession of fentanyl with intent to distribute,
possession of heroin with intent to distribute, possession of a firearm in furtherance of
drug trafficking offenses, and his being a felon in possession of a firearm.1 None of the
additional counts identified appellant’s conduct on November 15, 2018 as the factual
basis for the charged offenses. The federal indictment was assigned United States
District Court for the Northern District of Ohio, Eastern Division case No. 1:19 CR 99-1
(“federal case”).
{¶ 7} Having originally entered a not guilty plea in the federal case, appellant
appeared for a change of plea hearing in that case on December 3, 2019. At that time, he
changed his plea on the seven counts pending against him to guilty. The court accepted
his guilty plea and set the matter for sentencing on April 1, 2020.
{¶ 8} On December 10, 2019, appellant filed a motion to dismiss the indictment in
the state case. He argued that his guilty plea in the federal case prohibited the state from
pursuing the charged offenses pursuant to R.C. 2925.50, which states:
1
Appellant was barred from possessing a firearm in light of his August 29, 2006
conviction for distribution of cocaine in United States District for the Northern District of
Ohio, Eastern Division case No. 1:06 CR 165.
4.
If a violation of this chapter is a violation of the federal drug abuse control
law, as defined in section 3719.01 of the Revised Code, a conviction or
acquittal under the federal drug abuse control laws for the same act is a bar
to prosecution in this state.
The state opposed appellant’s motion, arguing that he could not seek to invoke the
protections of R.C. 2925.50 until he was convicted of the federal offenses. Since
appellant had not yet been sentenced on the federal offenses, the state argued, he had not
yet been convicted under federal law and, therefore, his motion was premature and
should be denied. The trial court agreed with the state and denied appellant’s motion.
We affirmed the trial court’s judgment on interlocutory appeal and remanded the matter
for further proceedings on October 29, 2021. State v. Mott, 6th Dist. Wood No. WD-19-
090, 2021-Ohio-3854.
{¶ 9} Appellant was sentenced in the federal case on February 18, 2022. Having
been convicted in the federal case, appellant filed a second motion to dismiss the
indictment in the state case, again arguing that R.C. 2925.50 barred his prosecution.
Specifically, appellant argued that the November 15, 2018 traffic stop in which he was
found to be in possession of oxycodone occurred within the date range of the federal
conspiracy offense—January 1, 2016 to February 28, 2019. Therefore, he argued, he had
been convicted in the federal case for the same act underlying the state indictment,
barring the state from its further prosecution.
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{¶ 10} The state, in its March 2, 2022 opposition brief, argued that appellant’s
conduct on November 15, 2018 was not the “same act” that supported his conviction in
the federal case. Specifically, the state noted that the federal indictment does not mention
the November 15, 2018 events or any overt acts in further of the federal conspiracy
events related to that date in the indictment. The state also argued that because the
elements of the offense in the present case are distinct from the elements of the federal
conspiracy offense, that they do not, as a matter of law, constitute the same act as
described in R.C. 2925.50 and its prosecution of the state offense is not barred.
{¶ 11} The trial court denied appellant’s motion on May 17, 2022. The court held
that the federal case indictment’s lack of reference to the November 15, 2018 traffic stop
as conduct on which those charges were based showed that the stop underlying the state
offense was not the same act that resulted in his conviction in the federal case. Therefore,
the trial court denied appellant’s motion to dismiss the indictment.
B. Assignment of Error
{¶ 12} Appellant filed his notice of appeal from the denial of his second motion to
dismiss on June 14, 2022. On June 15, 2022, the trial court vacated the only scheduled
event on its calendar in the underlying criminal case, with proceedings to resume as
necessary pending resolution of this appeal. Just as with appellant’s first appeal in Mott,
6th Dist. Wood No. WD-19-090, 2021-Ohio-3854, this second interlocutory appeal is
properly before this court as the denial of a motion to dismiss an indictment on double
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jeopardy grounds constitutes a final, appealable order. State v. Anderson, 138 Ohio St.
3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 61. Appellant asserts the following error for our
review:
{¶ 13} The trial court erred when it denied appellant’s motion to dismiss,
pursuant to R.C. 2925.50.
II. Law and Analysis
{¶ 14} In his single assignment of error, appellant argues that because his conduct
underlying his convictions in the federal case constitutes the “same act” underlying the
indictment in the state case that he cannot be prosecuted by the state pursuant to R.C.
2925.50. Specifically, he argues that the temporal boundaries of the federal conspiracy
offense—January 1, 2016 to February 28, 2019—includes his November 15, 2018
conduct giving rise to the state offenses. Since he was convicted of a conspiracy that
encompassed the date on which the conduct underlying the state offenses occurred,
appellant argues that he has been convicted under the federal drug abuse control laws for
the same act and R.C. 2925.50 precludes the state’s prosecution. He now asks this court
to find that the trial court erred in denying his motion to dismiss on these grounds.
{¶ 15} “Appellate courts apply a de novo standard of review when reviewing the
denial of a motion to dismiss an indictment on the grounds of double jeopardy.” State v.
Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790. ¶ 20. The United States
Supreme Court has held that two prosecutions brought by different sovereigns generally
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does not violate the double jeopardy protections enshrined in the Fifth Amendment of the
United States Constitution. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 136 S.Ct. 1863
(2016). It also held that states are separate sovereigns from the federal government,
thereby allowing them to prosecute an offender for same conduct without violating their
double jeopardy protections. Id. at 69, citing Abbate v. United States, 359 U.S. 187, 195,
79 S.Ct. 666 (1959). The Ohio General Assembly, however, has enacted an exception to
dual-sovereignty prosecutions by barring prosecution of a drug-related offense by the
state when the offender has already been convicted or acquitted for the same act under
the federal drug abuse control law. R.C. 2925.50.
{¶ 16} The statute defines the federal drug abuse control law as the
“‘Comprehensive Drug Abuse Prevention and Control Act of 1970,’ 84 Stat. 1242, 21
U.S.C. 801, as amended.” R.C. 3719.01(I). It is undisputed that some of appellant’s
conviction in the federal case were pursuant to the federal drug abuse control law as
defined by the statute—namely, appellant was convicted of one count of conspiracy in
violation of 21 U.S.C. 846 and three counts of possession with intent to distribute in
violation of 21 U.S.C. 841(a)(1) and (b)(1)(c).2 Therefore, the only question at issue in
our de novo review is whether appellant’s November 15, 2018 conduct constitutes the
2
Appellant’s convictions for being a felon in possession of a firearm in violation of 18
U.S.C. 922(g)(1) and possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. 924(C)(1)(A) arise under a separate chapter of the United States
Code and would not serve as a bar to appellant’s state prosecution as defined by R.C.
2925.50.
8.
“same act” for which he was convicted in the federal case of conspiracy and possession
with intent to distribute. The phrase “same act” in the statute refers to the “same
conduct.” State v. Nickelson, 2020-Ohio-1149, 152 N.E.3d 1288, ¶ 36 (7th Dist.). To
resolve this appeal, then, we must compare the record as to appellant’s convictions in the
federal case to determine whether his November 15, 2018 conduct constituted the same
act underlying those convictions.
A. Appellant’s federal convictions for possession with intent to distribute
in violation of 21 U.S.C. 841 were not based on the same act as his
indictment in the state case.
{¶ 17} Appellant argues that his convictions for possession with intent to
distribute in violation of 21 U.S.C. 841 were based on the same conduct that gave rise to
the indictment in the state case. Specifically, he argues that the federal possession with
intent to distribute offense requires proof of the same elements as the state aggravated
trafficking offense. Further, because the state aggravated trafficking offense occurred
during the time in which the conspiracy occurred, his possession with intent to distribute
conviction must be based on the same conduct as the pending aggravated trafficking
charge. This argument is unfounded, however, because his federal indictment for
possession with intent to distribute—counts 16, 17, and 18—specifically identify that the
possession for which he was charged occurred on September 20, 2018. The state
aggravated trafficking charge is based on appellant’s conduct that occurred on November
15, 2018.
9.
{¶ 18} It is clear that appellant’s convictions in the federal case for possession
with intent to distribute oxycodone, fentanyl, and heroin do not result from the same
conduct underlying the present trafficking offenses. Therefore, appellant’s prosecution in
the state case is not based on the same act underlying his conviction in the federal case as
to counts 16, 17, and 18. Since they are not based on the same act, appellant’s conviction
on those counts does not bar prosecution in the state case pursuant to R.C. 2925.50.
B. Appellant’s federal conviction for conspiracy to possess and distribute
in violation of in violation of 21 U.S.C. 846 was not based on the same
act as his indictment in the state case.
{¶ 19} Appellant also argues that because his November 15, 2018 conduct
occurred during the timeframe in which his he and his federal codefendants engaged in
the conspiracy to possess with intent to distribute fentanyl, heroin, and oxycodone in
violation of 21 U.S.C. 846, that his conduct on November 15, 2018 must be considered
the same act for which he was convicted in count 1 of the federal case. In support of his
argument, appellant cites State v. Nickelson, 2020-Ohio-1149, 152 N.E.3d 1288 (7th
Dist.). In that case, Nickelson was charged with conspiracy to possess and distribute
oxycodone in violation of 21 U.S.C. 846 in the United States Northern District Court for
West Virginia. Id. at ¶ 7. The indictment alleged that the conspiracy began in 2011 and
continued until “on or about October 2015.” Id. Two days later, Nickelson was indicted
in Belmont County, Ohio on one count of trafficking in cocaine and one count of
trafficking in Oxycodone. Id. at ¶ 8. The state charges were the result of a search of
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Nickelson’s motel room on October 14, 2015 that resulted in the discovery of the drugs.
Id. at ¶ 10. Nickelson entered a guilty plea to the federal conspiracy charge on January
11, 2016. Id. at ¶ 12. During the plea hearing, a West Virginia State Highway
Patrolmen testified that the Nickelson’s trafficking of drugs in Ohio on October 14, 2015,
was a specific act conducted in furtherance of the conspiracy. Id. at ¶ 12. Nickelson was
sentenced on his guilty plea to the federal conspiracy charge on March 14, 2016. Id. at ¶
13.
{¶ 20} Nickelson subsequently entered a no contest plea to the state trafficking
offense on June 16, 2016. Id. at ¶ 14. Nickelson was sentenced on June 23, 2016. Id. at
¶ 15. Just over three years later, on July 25, 2019, Nickelson filed a post-sentence motion
to withdraw his plea, arguing that his conviction was void because the state was barred
from prosecuting him pursuant to R.C. 2925.50. Id. at ¶ 17. The trial court denied
Nickelson’s motion finding that “his convictions are unaffected by whatever may have
happened [in the West Virginia federal case].” Id. at ¶ 18.
{¶ 21} The Seventh District Court of Appeals reversed the trial court’s decision.
Id. at ¶ 39. The court held that Nickelson’s drug trafficking in Ohio was indeed the same
act on which the conspiracy conviction in the West Virginia federal case was based. Id.
at ¶ 37. As a result, the court found that both the federal and state convictions were based
on the “same act” and R.C. 2925.50 barred Nickelson’s Ohio prosecution. Id. Here,
appellant argues that the holding in Nickelson is applicable to his case because, like
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Nickelson, his state trafficking offense occurred during the pendency of the conspiracy
underlying his federal conviction. We disagree.
{¶ 22} Nickelson is readily distinguishable from the facts in this case. In
Nickelson, there was direct testimony at the plea hearing that the federal conviction was
based on the exact same conduct—the trafficking of drugs in Ohio—as the state
trafficking charge. Nickelson’s prosecution for the state offenses was barred because his
trafficking in Ohio was explicitly referenced as the basis for the conspiracy charge in
federal court, not because it happened to occur during the time range specified in the
conspiracy indictment. Appellant’s reliance on Nickelson as showing that offenses that
occur during the same period as the conspiracy require a finding that those convictions
are based on the same act is misplaced.
{¶ 23} Turning to the record here, there is nothing in the 55-page federal
indictment that references appellant’s November 15, 2018 traffic as the basis for the
federal indictment. Further, the federal indictment outlines 139 separate text messages
and conversations as overt acts in furtherance of the conspiracy charge, none of which
occurred on, or reference appellant’s conduct on, November 15, 2018. Lastly, the federal
indictment only references appellant’s possession with intent to distribute charge as
occurring on September 20, 2018. Unlike Nickelson, in which there was direct testimony
relating the federal conspiracy conviction to the exact same conduct underlying the state
12.
offense, here, there is no reference in the federal case tying appellant’s conspiracy
conviction therein to his possession of drugs on November 15, 2018.
{¶ 24} Put simply, there is nothing in the record that supports appellant’s
contention that his November 15, 2018 conduct constitutes the same act underlying his
conviction in the federal case. Therefore, R.C. 2925.50 is inapplicable and the trial court
did not err in denying appellant’s motion to dismiss the indictment.
III. Conclusion
{¶ 25} We find that appellant’s indictment in Wood County Court of Common
Pleas case No. 2018CR0587 is not based on the same act for which he was convicted in
United States for the District Court, Northern District of Ohio, Eastern Division case No.
1:19 CR 99-1. Therefore, his prosecution for the state offenses is not barred pursuant to
R.C. 2925.50 and the trial court did not err in denying his motion to dismiss the
indictment.
{¶ 26} For these reasons, we find appellant’s single assignment of error not well-
taken and we affirm the May 17, 2022 judgment of the Wood County Court of Common
Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
13.
State of Ohio
v. Noel N. Mott
WD-22-037
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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