[Cite as State v. Petty, 2014-Ohio-394.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99926
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JODIE PETTY
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-568118
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 5, 2014
ATTORNEY FOR APPELLANT
John T. Martin
Cuyahoga County Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Jodie Petty appeals her sentence that was imposed in the Cuyahoga County
Common Pleas Court. Petty argues that the trial court’s imposed sentence is contrary to
law and the state concedes Petty’s argument. Finding merit to the instant appeal, we
reverse the decision of the trial court and remand for proceedings consistent with this
opinion.
{¶2} In 2012, Petty committed three theft offenses within a few months of each
other. On August 12, 2012, officers in Lorain County arrested Petty on a felony charge
of misuse of credit card, Lorain C.P. No. 086584. On August 20, 2012, Petty committed
another misuse of credit cards in Cuyahoga County, which is the underlying offense in
this case. The Cuyahoga County Grand Jury indicted Petty with one count of misuse of
credit cards on November 6, 2012, and on November 21, 2012, a capias was issued for
her arrest. Lastly, on December 5, 2012, Petty was arrested in the city of Mentor on a
misdemeanor petty theft charge. On December 16, 2012, officers took Petty into
custody for this case, and the trial court released her on bond on December 18, 2012.
{¶3} On March 25, 2013, Petty pleaded guilty of misuse of credit cards, a
fifth-degree felony. During her sentencing hearing, the trial court acknowledged Petty’s
two other cases and stated that appellant “continues to commit crimes even though she’s
on paper with this court.” The trial court then sentenced Petty to 11 months at the Ohio
State Reformatory for Women. On May 23, 2013, the Lorain County Common Pleas
Court sentenced Petty to seven months in prison, to be served concurrently with the
present case.
{¶4} Petty appeals, raising the following assigned error:
The trial court erred in not imposing a sentence of community control
sanctions on Ms. Petty, who was a first-time felony offender who had pled
guilty to a fifth-degree non-violent felony and did not have a prior violent
offense.
{¶5} Under H.B. 86, a trial court is required to impose a sentence of community
control sanctions upon a defendant who commits a non-violent felony of the fourth or
fifth degree, with certain exceptions. Both Petty and the state agree that none of the
exceptions apply in the present case.
{¶6} R.C. 2929.13(B)(1)(b) reads in pertinent part as follows:
(b) The court has discretion to impose a prison term upon an offender who
is convicted of or pleads guilty to a felony of the fourth or fifth degree that
is not an offense of violence or that is a qualifying assault offense if any of
the following apply:
(i) The offender previously has not been convicted of or pleaded guilty to a
felony offense.
***
(iii) The offender violated a term of the conditions of bond as set by the
court.
{¶7} In the present case, Petty did not violate the conditions of her bond, which
was set on December 18, 2012. The Lorain County felony case occurred on August 12,
2012, and the city of Mentor offense occurred on December 5, 2012. Although the court
was correct in finding that Petty committed the city of Mentor offense subsequent to a
capias being issued, such actions are not an exception to the presumption for community
control. Additionally, Petty did not plead guilty to the felony charge in Lorain County
until May 23, 2013. Thus, although she committed the Lorain County offense prior to
the instant case, she was not convicted until after her conviction in this case, therefore,
she did not have a prior felony conviction at the time of sentencing in the present case.
{¶8} Accordingly, we find the trial court’s sentence of 11 months in prison to be
contrary to H.B. 86, R.C. 2929.13(B)(1)(b). The judgment of the trial court is reversed
and the case is remanded for resentencing. We further order the immediate release of
Petty from incarceration relating to the underlying felony conviction.
{¶9} Judgment reversed and the cause remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR