PETTIS v. the STATE.
PETTIS v. the STATE.
Opinion
*421 On appeal from his conviction for family violence battery and simple assault, Jerry Wayne Pettis argues that the evidence was *422 insufficient as to the assault, that trial counsel was ineffective, and that the trial court erred in requiring him to reimburse the State for his defense costs. We find no error and affirm.
"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." (Citation omitted.)
Reese v. State
,
Thus viewed in favor of the jury's verdict, the record shows that on August 28, 2014, Pettis was living with his wife and her teenage son when he began arguing with his wife in the laundry room. The son did not confront Pettis because Pettis had previously choked him. When Pettis demanded the keys to the couple's car and attempted to get them from his wife's pockets, she resisted, at which Pettis grabbed her by the arms and threw her to the ground, where she landed on her elbows and knees. Pettis then grabbed the back of his wife's head, pushed it down into the floor, and twisted her arm behind her back. When Pettis told his wife that she was "not going anywhere," she went back into the house, where her son saw her injuries, including a welt on her forehead. The son then told Pettis, "You can't keep my mom here." At this, Pettis charged the son, who retreated into the house. When Pettis walked away from the door of the house, the victims escaped to a neighbor's house, where they called 911.
The victims made statements describing these events to officers arriving at the scene, but contradicted some of the details at trial, perhaps because, as they testified, they were afraid of Pettis. The State introduced a certified copy of a conviction arising from the prior choking incident. Pettis was charged with two counts of family violence battery as to his wife and one count of simple assault as to her son. After a jury found Pettis guilty of all three crimes, he was convicted and sentenced to five years with three to serve. His out-of-time motion for new trial was denied on the merits, and this appeal followed. 1
*423 1. Pettis challenges the sufficiency of the evidence against him only as to the assault charge.
A person commits the offense of simple assault when he or she "[c]ommits an act which places another in reasonable apprehension
*616
of immediately receiving a violent injury." OCGA § 16-5-20 (a) (2). The crime of simple assault "is complete if there is a demonstration of violence, coupled with an apparent present ability to inflict injury so as to cause the person against whom it is directed reasonably to fear that he will receive an immediate violent injury unless he retreats to secure his safety." (Punctuation and footnote omitted.)
Daniels v. State
,
Here, it was for the jury to determine whether, in light of the prior difficulties between them, Pettis's act of charging his stepson placed him in reasonable fear of receiving a violent injury.
Daniels
,
2. Pettis argues that trial counsel was ineffective when he failed to object to portions of the prosecutor's closing argument. We disagree.
To show ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense.
Smith v. Francis
,
(a) Pettis first objects to the State's assertions in closing argument that the victim was part of a cycle of violence characteristic of abused women, including self-blame and false reconciliation, with the victims sometimes "pos[ing] more of a threat to [a police] officer than the defendants do or the perpetrators" and eventually "working against" the State's case, as outside the scope of the evidence. Pettis also objects to the State's assertion that the victim had been "nasty to [the prosecutor's] office" and to the prosecutor "personally."
Given these victims' refusal to stand by their statements at the scene, the State's characterization of them as hostile witnesses was a reasonable extrapolation from the evidence presented at trial, and any objection would have been meritless. See
Hendrix v. State
,
But even assuming that the State's argument was improper and that counsel's failure to object to that argument amounted to deficient performance, "the trial court instructed
*617
the jury that closing arguments were not to be considered as evidence[.]"
Grier v. State
, --- Ga. App. ---- (2) (b),
(b) Pettis also objects to the State's argument that the jury should "let [Pettis] know that he might [commit these crimes] somewhere else, but he ain't gonna do it in Gwinnett County." At the hearing on the motion for new trial, however, counsel testified that the argument that Pettis should be held accountable by this jury did not deserve an objection, and we cannot reject either this reasonable strategy or the trial court's acceptance of it. See
Jowers v. State
,
3. Citing the current version of OCGA § 42-8-34, 2 Pettis argues that given his indigency, the trial court erred when it imposed a sentence including the reimbursement of attorney fees without a hearing on the issue. We disagree.
At the time Pettis committed the crimes at issue
3
- that is, in August 2014 - former OCGA § 42-8-34 (e)
4
provided that "[t]he court may, in its discretion, require the payment of a fine or costs, or both, as a condition of probation." As our Supreme Court has noted, a trial court has the "general authority to order reimbursement of attorney fees" based on the "broad powers" granted to the trial court,
5
"unless expressly prohibited."
State v. Pless
,
The record shows that after confirming that Pettis's counsel had been appointed rather than retained, the trial court pronounced sentence in relevant part as follows:
The Court is sentencing you to 5 years, to serve the first 3 years in incarceration. You will get credit for the time that *426 you have served. ... You will enroll in and complete a family violence intervention program. You will have no contact with either of the victims in this case until you have completed that program. You will also pay the onetime indigent defense application fee of $ 50, and you will reimburse *618 Gwinnett County for the attorney's fees that have been incurred on your behalf on this case.
(Emphasis supplied.) No objection was made to this or any other part of the sentence, including the court's implicit finding that Pettis was indigent, which confirmed an earlier finding at Pettis's first appearance.
It is true that in the absence of "any valid penal objective by [a] state statute ... that convert[s] a fine into a term of imprisonment for failure to pay the fine[,]" the State "may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay [that] fine."
Hunter v. Dean
,
Judgment affirmed.
McFadden, P. J., and McMillian, J., concur.
See
Washington v. State
,
OCGA § 42-8-34 provides in relevant part:
[ (3) ] (B) The court shall waive, modify, or convert fines, statutory surcharges, probation supervision fees, and any other moneys assessed by the court or a provider of probation services upon a determination by the court prior to or subsequent to sentencing that a defendant has a significant financial hardship or inability to pay or that there are any other extenuating factors which prohibit payment or collection; provided, however, that the imposition of sanctions for failure to pay such sums shall be within the discretion of the court through judicial process or hearings.
(C) Unless rebutted by a preponderance of the evidence that a defendant will be able to satisfy his or her financial obligations without undue hardship to the defendant or his or her dependents, a defendant shall be presumed to have a significant financial hardship if he or she: (i) [h]as a developmental disability; (ii) [i]s totally and permanently disabled; (iii) [i]s indigent; or (iv) [h]as been released from confinement within the preceding 12 months and was incarcerated for more than 30 days before his or her release.
(Emphasis supplied.)
See
Richardson v. State
,
See Ga. Laws 2009, Act 42, § 1, effective July 1, 2009.
See OCGA § 42-8-35 (a) ("The court shall determine the terms and conditions of probation[,]" and authorizing the court to impose at least 17 different terms of such probation).
We also note that Pettis has not asserted below or on appeal that trial counsel was ineffective in failing to object to the fee reimbursement portion of Pettis's sentence on the ground that no evidentiary hearing on his ability to pay had been held. See, e.g.,
Wilson v. State
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.