State v. Petticrew

2023 Ohio 159

Opinion

[Cite as State v. Petticrew, 2023-Ohio-159.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-29 : v. : Trial Court Case No. 21-CR-0543 : BRANDY RACHELLE PETTICREW : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on January 20, 2023

KADAWNI A. SCOTT & IAN A. RICHARDSON, Attorneys for Appellee

COLIN P. COCHRAN, Attorney for Appellant

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LEWIS, J.

{¶ 1} Appellant Brandy Rachelle Petticrew appeals from her conviction in the Clark

County Common Pleas Court following a guilty plea. For the following reasons, we affirm

the judgment of the trial court.

I. Procedural History and Facts -2-

{¶ 2} On August 13, 2021, Petticrew crashed her van into another vehicle, which

caused the other vehicle to flip over and trapped the passengers inside, then she fled the

scene in her van. It was believed that Petticrew’s 6-month-old baby was inside her van

at the time of the crash. Two of the four passengers inside the other vehicle were injured,

and the vehicle was totaled. Shortly after leaving the scene, officers located Petticrew’s

van and pursued her, but she successfully eluded the police. By the time police located

her abandoned van at a house, Petticrew was nowhere to be found, and her baby had

been left with relatives who were inside the home. At the time of the offense, Petticrew

was on post-release control for a prior felony conviction.

{¶ 3} On August 24, 2021, Petticrew was indicted by the Clark County Grand Jury

on one count of failure to comply with an order or signal of a police officer, in violation of

R.C. 2921.331(B), a felony of the third degree; one count of endangering children, in

violation of R.C. 2919.22(A), a misdemeanor of the first degree; and one count of failure

to stop after an accident, in violation of R.C. 4549.02, a misdemeanor of the first degree.

A warrant on indictment was issued for Petticrew’s arrest.

{¶ 4} On October 31, 2021, Petticrew was arrested for an unrelated felony offense

and served with a copy of the indictment in this case. On November 4, 2021, Petticrew

was arraigned, and bond was set at $10,000. Petticrew was later indicted for other,

unrelated second-degree felony charges in Clark County Common Pleas Court (Clark

C.P. No. 21 CR 0781 - robbery and escape), and she was held on a separate bond.

{¶ 5} On January 13, 2022, Petticrew filed a motion to reduce her bond and

requested an own recognizance bond. Petticrew also filed a motion to dismiss on -3-

January 31, 2022, alleging that her statutory speedy trial rights had been violated.

{¶ 6} On February 9, 2022, the State responded to Petticrew’s motion to amend

her bond, requesting that the court maintain the previously-established bond. That same

day, the State filed a response to Petticrew’s motion to dismiss, and it filed a supplement

to that response the following day. While the State acknowledged that Petticrew had

been in custody for 92 days, the State identified several tolling events that extended the

time in which the State was required to bring Petticrew to trial. The State also indicated

that Petticrew was being held in custody on this case as well as Case No. 21 CR 0781,

resulting in her speedy trial clock running one-for-one rather than three-for-one. Based

on the State’s calculations, Petticrew’s speedy trial time had not yet lapsed.

{¶ 7} Following a hearing on February 11, 2022, the trial court granted Petticrew’s

motion to amend her bond and ordered that she be released on her own recognizance

with electronic monitoring and GPS. Petticrew was placed on house arrest and granted

leave to go to her employment, her probation officer, and McKinley Hall. The trial court

also denied Petticrew’s motion to dismiss the indictment on speedy trial grounds, finding

that she was being held on two separate felony cases.

{¶ 8} On March 11, 2022, Petticrew entered a negotiated plea. She pled guilty to

one count of failure to comply with an order or signal of a police officer, a felony of the

third degree, and one count of failure to stop after an accident, a misdemeanor of the first

degree; in exchange, the State agreed to dismiss the child endangering charge and all

the charges in Case No. 21 CR 0781. Although there was no agreement on sentencing,

the State agreed not to seek any additional post-release control sanction on top of the -4-

sanction already imposed upon her by the Adult Parole Authority. Upon accepting her

guilty plea, the trial court ordered a presentence investigation report (“PSI”) and

scheduled a sentencing date.

{¶ 9} On April 14, 2022, the trial court imposed a stated prison term of 24 months

for the felony offense and 180 days for the misdemeanor offense, and it ordered those

sentences to be served concurrently. Restitution to the victim was ordered in the amount

of $13,043.99.

{¶ 10} Petticrew filed a timely notice of appeal and raises two assignments of error.

II. Analysis

{¶ 11} Petticrew’s first assignment of error states the following:

THE TRIAL COURT ERRED BY FAILING TO BRING PETTICREW TO TRIAL

WITHIN THE TIME FOR TRIAL REQUIRED BY R.C. 2945.71(C)(2).

{¶ 12} In her first assignment of error, Petticrew claims that her speedy trial rights

were violated. The State argues that by entering a plea of guilty, any question of the

correctness of trial court's ruling regarding her speedy trial rights was waived. We agree

with the State.

{¶ 13} Section 10, Article I of the Ohio Constitution guarantees a defendant the

same right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution. State v. MacDonald, 48 Ohio St.2d 66, 68, 357 N.E.2d

40 (1976). “Ohio has enacted R.C. 2945.71 to 2945.73, which designate specific time

requirements for the state to bring an accused to trial.” State v. Jones, 2d Dist.

Montgomery No. 21974, 2008-Ohio-1603, ¶ 7. “A guilty plea, however, waives any -5-

challenge to the trial court's pretrial rulings, including a motion alleging a speedy-trial

violation.” State v. Lane, 2d Dist. Montgomery No. 27347, 2018-Ohio-1320, ¶ 29. See

also State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991), paragraph one of the

syllabus (holding that a guilty plea waives a defendant’s right to challenge his or her

conviction on statutory speedy trial grounds).

{¶ 14} In this case, Petticrew filed a motion to dismiss the indictment based on

statutory speedy trial grounds, which the trial court denied. However, Petticrew later

entered a guilty plea, thereby waiving any challenge to the trial court’s denial of her

motion. We note that there is no allegation that her guilty plea was anything but

knowingly, intelligently, and voluntarily entered. Nor is there any alleged claim of

ineffective assistance of counsel which would have caused her plea to not have been

entered knowingly, intelligently, and voluntarily. As such, Petticrew has waived any

challenge based on a violation of her statutory speedy trial rights.

{¶ 15} Petticrew’s first assignment of error is overruled.

{¶ 16} Petticrew’s second assignment of error states the following:

THE TRIAL COURT ERRED BY FAILING TO CONSIDER PETTICREW’S

PRESENT AND FUTURE ABILITY TO PAY BEFORE IMPOSING RESTITUTION

AS REQUIRED BY R.C. 2929.19(B)(5).

{¶ 17} In her second assignment of error, Petticrew contends that the trial court's

order of restitution should be reversed on grounds that the court allegedly failed to

consider her present and future ability to pay prior to imposing restitution. We disagree.

{¶ 18} Petticrew did not challenge the imposition of restitution in the trial court and -6-

therefore waived all but plain error. State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-

6826, 844 N.E.2d 372, ¶ 22 (2d Dist.), citing State v. Wickline, 50 Ohio St.3d 114, 552

N.E.2d 913 (1990). In order for plain error to exist, there must be an obvious defect in

the trial proceedings that affected the defendant’s substantial rights, meaning that the trial

court's error must have affected the outcome of the trial. State v. Payne, 114 Ohio St.3d

502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 108, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph

three of the syllabus.

{¶ 19} Before imposing a financial sanction (such as restitution) as part of a

sentence, a trial court is required to consider a defendant's present and future ability to

pay the financial sanction at the sentencing hearing. R.C. 2929.19(B)(5); R.C.

2929.18(A)(1). However, “[t]he trial court does not need to hold a hearing on the issue

of financial sanctions, and there are no express factors that the court must take into

consideration or make on the record.” State v. Culver, 160 Ohio App.3d 172, 2005-Ohio-

1359, 826 N.E.2d 367, ¶ 57 (2d Dist.). Moreover, although preferable, there is no

requirement that the trial court state on the record that it affirmatively considered the

defendant’s present and future ability to pay a financial sanction at the time of sentencing.

State v. Parker, 2d Dist. Champaign No. 2003-CA-17, 2004-Ohio-1313, ¶ 42. “The

record should, however, contain ‘evidence that the trial court considered the offender's

present and future ability to pay before imposing the [financial sanction].’ ” Culver at ¶ 57, -7-

quoting State v. Robinson, 3d Dist. Hancock No. 5-04-12, 2004-Ohio-5346, ¶ 17. If “the

trial court fails to make an explicit finding on a defendant's relative ability to pay, this court

has observed that a trial court's consideration of this issue may be ‘inferred from the

record under appropriate circumstances.’ ” State v. Conley, 2015-Ohio-2553, 43 N.E.3d

775, ¶ 49 (2d Dist.), quoting Parker at ¶ 42. For example, “[t]he trial court may comply

with its obligation by considering a presentence investigation report (‘PSI’), which includes

information about the defendant's age, health, education, and work history.” (Citation

omitted.) State v. Willis, 2d Dist. Montgomery No. 24477, 2012-Ohio-294, ¶ 4.

{¶ 20} Here, the trial court did not explicitly find that Petticrew had a present or

future ability to pay the restitution amount imposed. The trial court did, however, indicate

that it had received and reviewed the PSI, as well as the victim impact statement, prior to

imposing sentence. According to the PSI, Petticrew was 35 years old, had a GED and

was four credits shy of an associate degree, had worked at various locations during the

preceding five years after being released from prison, and had no mental or physical

health conditions that would prevent her from being able to work. Additionally, based on

the total stated prison term and the jail time credit Petticrew accrued, she was expected

to be released from prison when she was 36 years old. Based on this record, the trial

court had adequate information from which to evaluate Petticrew’s present and future

ability to pay, and we can infer that the trial court fulfilled its duty to consider Petticrew’s

present and future ability to pay the restitution. Accordingly, the trial court did not commit

any error, let alone plain error, in ordering her to pay the restitution as ordered.

{¶ 21} Petticrew’s second assignment of error is overruled. -8-

I. Conclusion

{¶ 22} Having overruled both of Petticrew’s assignments of error, the judgment of

the trial court is affirmed.

TUCKER, J. and EPLEY, J., concur.