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State v. Small

Court of Appeals of Ohio, Tenth District

March 1, 2018

State of Ohio, Plaintiff-Appellee,
v.
Mykel Small, Defendant-Appellant.

         APPEALS from the Franklin County Court of Common Pleas C.P.C. No. 11CR-5413

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          Adam R. Todd, for appellant.

         Argued:

          Michael P. Walton.

          Adam R. Todd.

          DECISION

          BROWN, P.J.

         {¶ 1} Mykel Small, defendant-appellant, appeals from the judgment of the Franklin County Court of Common Pleas, in which the court denied appellant's motion to withdraw guilty plea.

         {¶ 2} As relevant to the present appeal, in 2011, appellant was charged with aggravated possession of drugs, a first-degree felony, and aggravated possession of drugs, a third-degree felony. The charges arose from a shipment of 1, 405 Oxycodone 30-milligram pills and 50 Oxycodone 15-milligram pills sent to appellant. Police intercepted the package and conducted a controlled delivery, after which they conducted a search of appellant's residence. Appellant claimed he only expected the 30-milligram pills and did not know the 15-milligram pills would be in the package.

         {¶ 3} Prior to trial, appellant's trial counsel sent him a letter advising him of the plea offer. In the letter, trial counsel indicated the first count carried a mandatory prison sentence of 3 to 10 years, and the second count carried a presumption in favor of prison for a term between 9 and 36 months. Trial counsel indicated therefore, if convicted, appellant would face a potential maximum prison term of 13 years.

         {¶ 4} On November 18, 2013, appellant entered a plea of guilty to aggravated possession of drugs, a first-degree felony, and the trial court dismissed the third-degree felony possession of drugs charge. On July 29, 2014, the trial court sentenced appellant to eight years on the first-degree felony aggravated possession of drugs count.

         {¶ 5} Appellant appealed multiple judgments, which also included other charges, and, in State v. Small, 10th Dist. No. 14AP-659, 2015-Ohio-3640, this court remanded the matter to the trial court for resentencing.

         {¶ 6} On December 3, 2014, appellant filed a motion to withdraw guilty plea, in which he contended his plea was not knowing, intelligent, and voluntary. On May 19, 2015, appellant filed a supplemental memorandum in support of his motion to withdraw guilty plea. In these pleadings, appellant asserted, among other things, that because the two pertinent charges were allied offenses, he could only be convicted of one of the charges, contrary to what his ...


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