STATE OF OHIO, PLAINTIFF-APPELLEE, v. SHAWN M. PETRIK, DEFENDANT-APPELLANT.
CASE NO. 3-10-06
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
August 9, 2010
2010-Ohio-3671
Appeal from Crawford County Common Pleas Court, Trial Court No. 09-CR-0162
Judgment Affirmed
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee
{¶1} Defendant-Appellant, Shawn Petrik, appeals from the judgment of the Court of Common Pleas of Crawford County convicting him of one count of robbery and sentencing him to a six-year prison term. On appeal, Petrik argues that his conviction was against the manifest weight of the evidence, and that the trial court erred in sentencing him to a six-year prison term where his accomplice was only given a four-year prison term. Based on the following, we affirm the judgment of the trial court.
{¶2} In October 2009, Petrik was indicted by the Crawford County Grand Jury on one count of robbery in violation of
{¶3} In December 2009, the case proceeded to a jury trial, at which Michelle Leasure testified that she was sitting in her vehicle across the street from the Verizon Wireless store in Crawford County on September 21, 2009, waiting for her husband to finish shopping inside a flea market; that, as she was waiting, she noticed someone wearing an orange “hoodie” with a backpack on his back
{¶4} Timothy Ward testified on direct examination that he was Petrik‘s cousin; that they had lived approximately one block from each other for the past six years; that, on September 21, 2009, he drove his girlfriend, Kelley Nalley, to her place of employment at the Verizon store; that, shortly after dropping off Nalley, he received a call from Petrik, during which Petrick indicated to meet him underneath the bridge in Galion; that, when he arrived at the bridge, Petrik was there and stated that he wanted to rob the Verizon store; that Petrik also showed him a firearm at this time; that he changed into a sweatshirt with a hood, and Petrik also wore a sweatshirt with a hood; that, when they arrived at the Verizon store, he went to the back of the store, and Petrik entered the front of the store and let him in the back door; that Petrik handed him a backpack with a crowbar inside and asked him to get the safe off the wall; that he could hear Nalley inside the room next to him crying and asking them to leave; that, subsequently, the police
{¶5} On cross-examination, Ward testified that, on the evening prior to the robbery, he went to Petrik‘s residence and discussed going hunting the following day; that he was supposed to go hunting with Petrik on the day of the robbery; that he was wearing an orange sweatshirt with a hood on the day of the robbery; that he received a text from Petrik that morning asking what time Nalley went to work and stating that the rifles they were going to hunt with were clean; that he did not discuss a specific plan with Petrik on how they would rob they store, or what they would do after they robbed the store; that he did not receive a text message from Petrik during the robbery indicating the police were at the door; that the white powder residue found in Nalley‘s vehicle was crushed Percocet tablets that he would snort; and, that he did not have a prescription for the Percocet.
{¶6} Lieutenant Lynn Sterling of the Galion Police Department testified that she was working the day shift on September 21, 2009; that she was dispatched to the Verizon store on a report of suspicious activity outside the store; that she arrived at the store at 10:52 a.m. and approached the front door, while Officer
{¶7} Detective Eric Bohach of the Galion Police Department testified that he and Detective Shaffer were dispatched to the Verizon store on September 21, 2009, in response to a robbery in progress involving weapons and two suspects; that, when they arrived at the store, one suspect was in custody; that he discovered a pry bar, a revolver, and a backpack inside of the store; that, based on his observation of the revolver, it was operable; that the safe inside the store had extensive damage to the point where it could not be opened; that cash was also discovered in the store by the firearm and around the backpack; that, after Petrik was arrested in connection with the robbery, he interviewed him; that, during the interview, Petrik indicated that he went to meet Ward in Lexington to go hunting, but Ward never arrived; that it would not make sense for Petrik to hunt because he was not permitted to possess a weapon; that Petrik also told him during the interview that he purchased cigarettes from a Shell station, but when he attempted to verify the transaction at the station, there was no evidence that it occurred; that, on the morning of the robbery, Petrik sent a text message to Ward stating that the
{¶8} Detective Bohach further testified that Nalley indicated to him that she was placed in a room during the robbery, and that she was not able to open the door; that the door did not have a lock, so someone must have been holding the door; that two people were likely present during the robbery because one person would have had to hold the door and the other person would have attempted to break into the safe; that Nalley stated that she only saw one person in the store during the robbery, and he was wearing an orange sweatshirt; that, when Ward was arrested, he was wearing an orange sweatshirt, and Nalley indicated Ward was the individual involved in the robbery; that he found Nalley‘s vehicle under the overpass where Ward indicated that he an Petrik met prior to the robbery; and, that Ward was consistent in his story that Petrik was involved in the robbery.
{¶10} Subsequently, the State rested, and Petrik moved for a judgment of acquittal pursuant to
{¶11} Jamie Griffith then testified on direct examination that Petrik is her children‘s father; that Petrik picked up his daughter from her house at 7:45 a.m. on
{¶12} On cross-examination, Griffith testified that she wrote a statement to Petrik‘s attorney on September 30, 2009, in regards to Petrik‘s whereabouts on the date of the robbery; that she said in the statement that she first saw Petrik on the day of the robbery at 9:20 a.m.; that she also indicated in the statement that Petrik left his mother‘s house approximately 9:45 a.m. to go to the grocery store and Rite Aid; that she did not have actual knowledge he went to those locations, but his girlfriend told her he went to those locations; and, that she also said in her statement that Petrik went to the gas station at 12:00 p.m. and returned home.
{¶14} Petrik testified that he lived with his mother; that, on the day prior to the robbery, he was at home with Brokaw while she was cleaning the guns; that Ward came to the house and they discussed going squirrel hunting the following day on Forest Foust‘s property; that the plan was for Ward to hunt and for him to scout the property; that he asked Brokaw to send a text message to Ward telling him that the guns were clean; that, on September 21, 2009, he took his children to school that morning and returned home at 8:00 a.m.; that he sent Ward a text
{¶15} On cross examination, Petrik testified that he never attempted to call either Nalley or Ward when he saw the police at the Verizon store, despite the fact that Ward is a family member and Nalley is important to Ward; that he did not call the police to see if everything was okay because it was none of his business; that he drove his van when he went to Fousts’ Farm; that Griffith was mistaken when she testified that he left in his mother‘s car around 9:45 a.m., and she was also incorrect when she testified that he returned at 10:15 a.m. from the store; that he wrote a letter to Ward stating, “if you do talk, I‘m F‘ed” (id. at p. 260); and, that what he was referring to in the letter was if Ward falsely stated he was involved in the robbery.
{¶16} Subsequently, the jury convicted Petrik on the one count of robbery in violation of
{¶17} In February 2010, the trial court sentenced Petrik to a six-year prison term, imposed a $250 fine, and ordered him to pay $115 in restitution to the Verizon store.
{¶18} It is from his conviction and sentence that Petrik appeals, presenting the following assignments of error for our review.
THE CONVICTION OF APPELLANT, SHAWN PETRIK, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. II
THE COURT ERRED BY SENTENCING THE APPELLANT TO A PRISON TERM OF SIX YEARS WHEN THE CO-DEFENDANT TIM WARD WAS ONLY GIVEN A BASIC PRISON TERM OF FOUR YEARS.
Assignment of Error No. I
{¶19} In his first assignment of error, Petrik argues that his conviction was against the manifest weight of the evidence. Specifically, Petrik contends that his conviction should be reversed because Ward was the only person who testified that he was present during the robbery, the victim only saw and heard one person robbing the store, and the police never found evidence demonstrating he was present during the robbery. We disagree.
{¶20} When an appellate court analyzes a conviction under the manifest weight standard, it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as
{¶21} In the case sub judice, testimony was presented by multiple witnesses that either directly or indirectly implicated Petrik‘s involvement in the robbery. Ward testified that Petrik assisted him in the robbery; that Petrik went in the front door of the Verizon store and let him in the back door; that Petrik provided a gun to be used in the robbery, and a crowbar to pry open the safe; that Petrik was able to leave the store before the police arrived; and, that Petrik sent him a letter while in prison asking that he not disclose Petrik‘s involvement in the robbery. Ward‘s testimony of Petrik‘s involvement is further supported by Leasure‘s testimony that she saw two individuals wearing hooded sweatshirts outside of the store, and Nalley‘s testimony that, although she did not see two people during the robbery, it seemed as if one person was holding the door so she could not get out of the storage room, while another person tried to open the safe, and that Ward told police that “he‘s outside” when he was arrested. (Trial Tr., Vol. 2, p. 176). Furthermore, Detective Bohach testified that two people were likely present during the robbery because one person would have had to hold the door to keep Nalley in the storage closet, while the other person attempted to open
{¶22} Although Petrik did testify that he was not involved in the robbery; that he went to meet Ward for a hunting trip and ran errands for his mother around the time of the robbery; that he sent the text message about the police being at the door to the store because he drove by the store looking for Ward and saw the police out in front of the building; and, that he sent the letter to Ward asking Ward not to implicate him in the robbery because he did not want Ward to lie about his involvement, it is also clear from the record that the testimony presented by Petrik and his witnesses was inconsistent.
{¶23} Griffith testified that she saw Petrik at his mother‘s house at approximately 9:00 a.m.; that Petrik left in his mother‘s car around 9:30 or 10:00 a.m. to go to the store; that he returned around 10:30 a.m.; and, that he was also home when she returned at 11:05 a.m. However, Brokaw testified that Petrik left to go hunting around 9:00 a.m. and did not return until approximately 11:00 a.m.,
{¶24} Consequently, because we find that testimony from multiple witnesses evidenced Petrik‘s involvement in the robbery; that the testimony presented by Petrik, Griffith, and Brokaw as to Petrik‘s whereabouts on the morning of the robbery was inconsistent; and, that the trial court likely found Petrik‘s self-serving testimony to be unreliable, as it was in the best position to weigh witness credibility, see State v. Hundley, 3d Dist. Nos. 15-09-10, 15-09-12, 2009-Ohio-6873, ¶19, we find that his conviction was not against the manifest weight of the evidence.
{¶25} Accordingly, we overrule Petrik‘s first assignment of error.
Assignment of Error No. II
{¶26} In his second assignment of error, Petrik argues that the trial court erred in sentencing him to a six-year prison term where his accomplice was only given a four-year prison term. Specifically, he contends that the evidence demonstrated that Ward was the more culpable party in the robbery and that he was punished for exercising his constitutional right to a jury trial instead of accepting a plea deal like Ward. We disagree.
{¶28} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio severed portions of Ohio‘s felony sentencing law after finding them unconstitutional. The Court held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” Id. at paragraph seven of the syllabus. Further, the Court stated that “[o]ur remedy does not rewrite the statute, but leaves courts with full discretion to impose a prison term within the basic ranges of
{¶29} Trial courts are still required to comply with
{¶30} An increased prison term based upon a defendant‘s decision to exercise his right to a jury trial and require the State to meet its burden of proof, instead of accepting the State‘s offer to plead guilty, is wholly improper. State v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962, ¶12, citing State v. Scalf (1998), 126 Ohio App.3d 614, 621. “[A] defendant is guaranteed the right to a trial and should never be punished for exercising that right or for refusing to enter a plea agreement * * *.” State v. O‘Dell (1989), 45 Ohio St.3d 140, paragraph two of the syllabus. “Once it appears in the record that the court has taken a hand in plea bargaining, that a tentative sentence has been discussed, and that a harsher sentence has followed a breakdown in negotiations, the record must show that no
{¶31} Here, the trial court sentenced Petrik to a six-year prison term, while his accomplice, Ward, only received a four-year prison term. However, in reviewing the record, we find no error in the trial court‘s sentence. First, the trial court was not involved in the plea negotiation process, so the analysis as set forth in Bee has no applicability to this case, and there need not be an affirmative showing that Petrik‘s sentence was solely based on the facts of the case and was not the result of a punishment for refusing to plead guilty. Moreover, the trial court sentenced Petrik to a prison term within the permissible range for a felony of the second degree, as provided in
{¶32} Accordingly, we overrule Petrik‘s second assignment of error.
{¶33} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
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