State v. Pruitt , 2021 Ohio 3793 ( 2021 )

[Cite as State v. Pruitt, 2021-Ohio-3793.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2021-T-0012
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
QUAN’NITA R. PRUITT,
Trial Court No. 2020 CR 00676
Defendant-Appellant.
OPINION
Decided: October 25, 2021
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Scala, 244 Seneca Avenue N.E., P.O. Box 4306, Warren, OH 44482 (For
Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Quan’nita R. Pruitt, appeals her sentencing entry. This court
affirms.
{¶2} In 2020, Pruitt was indicted on two counts of failure to comply with the order
or signal of a police officer in violation of R.C. 2921.331(B), (C)(1), and (C)(5)(a)(ii),
felonies of the third degree.
{¶3} Pursuant to the state’s bill of particulars these charges stem from the
following allegations. On September 10, 2020, a Warren City police officer attempted to
stop Pruitt’s vehicle to investigate a call involving a firearm from the previous day. The
officer activated his overhead lights and audible siren, but Pruitt then began operating her
vehicle recklessly, “weaving in and out of traffic and driving at an excessive speed
dangerously close to oncoming traffic.” Due to the danger posed by the pursuit, the officer
disengaged. On the same date, Cortland City police officers attempted to stop Pruitt’s
vehicle, activating their overhead lights and audible sirens, but she again began to drive
recklessly and swerve through traffic at an excessive rate of speed, failing to obey traffic
control devices and almost causing several traffic accidents. She ultimately abandoned
the vehicle and fled on foot before she was arrested.
{¶4} Pursuant to a plea agreement, Pruitt entered a guilty plea on the first count,
and the state agreed to a nolle prosequi on the second. The trial court ordered a
presentence investigation report, and the matter proceeded to sentencing. At sentencing,
the trial court sentenced Pruitt to 36 months of incarceration after “considering the record,
oral statements, the pre-sentence investigation report and any victim impact statements,
as well as the principles and purposes of sentencing under R.C. 2929.11” and balancing
“the seriousness and recidivism factors of R.C. 2929.12.”
{¶5} In her two assigned errors, Pruitt contends:
{¶6} “[1.] The trial court erred, to the detriment of appellant, by considering
appellant’s actions to be two counts of failure to comply instead of one when considering
he[r] sentence.
{¶7} “[2.] The trial court erred, to the detriment of appellant, by using two prior
‘no billed’ failure to comply cases in consideration of this sentence.”
{¶8} With respect to felony sentencing, R.C. 2929.11(A) provides:
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* * * The overriding purposes of felony sentencing are to
protect the public from future crime by the offender and others,
to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that
the court determines accomplish those purposes without
imposing an unnecessary burden on state or local
government resources. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the
offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim
of the offense, the public, or both.
{¶9} It is within the sentencing court’s discretion “to choose the most effective
way to achieve the purposes set forth in R.C. 2929.11.” State v. Stanley, 11th Dist.
Trumbull No. 2020-T-0039, 2021-Ohio-549, ¶ 8; R.C. 2929.12(A). In “exercising that
discretion,” R.C. 2929.12(A) provides:
[T]he court shall consider the factors set forth in divisions (B)
and (C) of this section relating to the seriousness of the
conduct, the factors provided in divisions (D) and (E) of this
section relating to the likelihood of the offender’s recidivism,
and the factors set forth in division (F) of this section
pertaining to the offender’s service in the armed forces of the
United States and, in addition, may consider any other factors
that are relevant to achieving those purposes and principles
of sentencing.
{¶10} In reviewing a felony sentence, we are not permitted “to independently
weigh the evidence in the record and substitute [our] judgment for that of the trial court
concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 42; id. at ¶ 39
(“R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or
vacate a sentence based on its view that the sentence is not supported by the record
under R.C. 2929.11 and 2929.12.”). Here, Pruitt alleges that the trial court relied on
factors that it was precluded from considering, and we will address Pruitt’s argument to
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that limited extent. See State v. Chase, 11th Dist. Lake Nos. 2020-L-070 & 2020-L-071,
2021-Ohio-1006, ¶ 10.
{¶11} First, Pruitt maintains that the trial court erred in viewing her conduct as
constituting two separate offenses. Initially, we note that prior to entering into the plea
agreement, Pruitt filed a trial brief urging merger of the two counts. This issue was
addressed at sentencing:
THE COURT: Counsel, is there anything you would like to say
about Miss Pruitt?
[DEFENSE COUNSEL]: I do, Your Honor. First of all, I would
like the Court to recognize that we have pleaded, take
responsibility for this charge.
This was originally a two-count indictment. I did file a trial
brief. And I believe the Court would concur with me that this
was in fact one charge. She has spent five months –
THE COURT: Let’s stop there, counselor. I absolutely would
not agree with that. The State dismissed a charge in
consideration of your argument [sic]. I wouldn’t agree with
that at all. So go ahead.
{¶12} Thereafter, when addressing Pruitt, the trial court noted that she engaged
in high-speed chases, putting the public at risk “twice in one day.”
{¶13} Accordingly, the court did not conclude that Pruitt’s conduct would have
sustained two convictions, but it did view her conduct as twice engaging officers in pursuit.
Nonetheless, the court clearly sentenced Pruitt on only one count, and whether the two
counts would have merged had the case proceeded to trial was not at issue. Accordingly,
Pruitt’s first assigned error lacks merit.
{¶14} Next, Pruitt maintains that the trial court improperly considered no-billed
charges when imposing sentence.
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{¶15} At sentencing the trial court stated that it had taken “special note of the
presentence investigation and the Defendant’s following criminal record,” at which point
the trial court recited portions of her criminal history, including failure to comply with the
order or signal of a police officer, “which got no-billed.” The court then commented, “So
it’s not your first time running from the police, is it?” The court also noted an additional
failure to comply count for which the jury had returned a no-bill of indictment.
{¶16} However, defense counsel raised no objection to the trial court’s
consideration of the two prior counts that were no-billed. “An appellate court need not
consider an error which a party complaining of the trial court’s judgment could have called,
but did not call, to the trial court’s attention at a time when such error could have been
avoided or corrected by the trial court.” State v. Hoolihan, 11th Dist. Trumbull No. 2012-
T-0023, 2012-Ohio-5837, ¶ 14, quoting State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d
1364 (1977), paragraph one of the syllabus. Crim.R. 52(B) permits this court to recognize
plain error even where the error was not challenged in the trial court. Hoolihan at ¶ 15.
“‘Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State
v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶17} Pruitt has not argued plain error. See In re J.A., 9th Dist. Lorain No.
15CA010794, 2016-Ohio-871, ¶ 5 (declining to undertake a plain error analysis where
appellant failed to argue plain error). Further, Pruitt’s sentence was not based entirely on
the no-billed indictments. Pursuant to the presentence investigation report, Pruitt, who
was 22 years old at the time of sentencing, had been convicted 15 times after turning age
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18. The trial court noted that Pruitt had “one of the worst records [it had] ever seen for
somebody [her] age” and that she started her “criminal career at the age of 15.”
Moreover, the state made note of the seriousness of the instant offense, asserting that
Pruitt’s conduct was “one of the worst Failure to Complies that [it had] seen where
someone wasn’t seriously injured or killed between the two incidents that occurred.” The
trial court acknowledged the danger posed by Pruitt’s conduct, noting that the high-speed
chases had put the public at risk.
{¶18} Accordingly, even were this court to conclude that the trial court
impermissibly elevated the no-billed charges to a conviction, the record contains other
factors weighing in favor of the sentence, and plain error cannot be demonstrated. See
Hoolihan at ¶ 17 (“it would certainly be improper for the trial court to elevate appellant’s
pending felony charge to the status of a conviction for sentencing purposes when [the
appellant] had not actually been convicted of the pending charge”).
{¶19} Accordingly, Pruitt’s second assigned error lacks merit.
{¶20} The judgment is affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
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