STATE OF OHIO, PLAINTIFF-APPELLEE, v. LESTER C. ARNOLD, DEFENDANT-APPELLANT.
CASE NO. 13-16-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
January 30, 2017
[Cite as State v. Arnold, 2017-Ohio-326.]
Appeal from Tiffin-Fostoria Municipal Court Trial Court No. 15-CRB-1506A Judgment Affirmed
Gene P. Murray for Appellant
Charles R. Hall, Jr. for Appellee
{1} Defendant-appellant, Lester C. Arnold (“Arnold“), appeals the April 28, 2016 judgment entry of conviction and sentence of the Tiffin-Fostoria Municipal Court, resulting from Arnold‘s plea of no contest to a charge of failing to confine a dangerous dog in violation of
{2} This case stems from a September 14, 2015 incident in which a Belgian Malinois dog—for which Arnold was caring while his son was away—escaped from Arnold‘s residence and mauled a mailman. (See Doc. No. 2). On October 13, 2015, a complaint was filed charging Arnold with one count of failing to confine a dangerous dog in violation of
{3} On April 28, 2016, the trial court held a change-of-plea and sentencing hearing. (Apr. 28, 2016 Tr. at 2). At that hearing, Arnold entered a plea of no contest to the charge in the complaint. (Id. at 3-4). The trial court accepted Arnold‘s plea of no contest and found him guilty of the offense. (Id. at 4, 8). The trial court
{4} On May 11, 2016, Arnold filed a notice of appeal. (Doc. No. 20). He raises one assignment of error for our review.
Assignment of Error
The trial court abused its discretion by improperly and prejudicially indicating, anecdoting [sic], and wrongly factoring in a self-interpreted directive to make a judgment that defendant-appellant Lester Arnold should and would be found guilty, and thereafter, said trial court prejudicially abused its discretion by imposing a sentencing order to “put down” the dog named Caeto, i.e. to kill the dog Caeto, a Belgian Malinois breed, unreasonably ignoring other viable options for the fate of the canine, thereby resulting in reversible error.
{5} It is unclear exactly what Arnold argues in his assignment of error. It appears he argues that his conviction should be overturned because there was “no evidence placed on the record” that the dog, Caeto, “was a vicious dog, prior to the incident on September 14, 2015.” (Appellant‘s Brief at 8). He also appears to argue that the trial court abused its discretion when it “summarily ordered a death
{6} As an initial matter, Arnold‘s brief fails to conform with the Rules of Appellate Procedure because in it, Arnold raises issues that are not specifically assigned as error and briefed according to App.R. 16. See Headings v. Ranco, Inc., 3d Dist. Union No. 14-04-33, 2005-Ohio-1095, ¶ 6, citing Chem. Bank of New York v. Neman, 52 Ohio St.3d 204, 207 (1990) and Toledo‘s Great E. Shoppers City, Inc. v. Abde‘s Black Angus Steak House No. III, Inc., 24 Ohio St.3d 198, 202-203 (1986). Rather, Arnold appears to make multiple, unrelated arguments under a single assignment of error, which is unclear and unartfully worded at that. Under App.R. 12(A), we are not required to address the issues that Arnold raises improperly. Id. Nevertheless, in the interest of justice, we will address the issues raised in the “ARGUMENT” section of Arnold‘s brief,2 although we will construe those issues narrowly.
(D) Except when a dangerous dog is lawfully engaged in hunting or training for the purpose of hunting and is accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of a dangerous dog shall fail to * * *:
(1) While that dog is on the premises of the owner, keeper, or harborer, securely confine it at all times in a locked pen that has a top, locked fenced yard, or other locked enclosure that has a top * * *.
{9} “Although
{10} It does not appear that this court has addressed whether a defendant may waive the requirements of
[Trial Court]: And how does your client wish to plea plead [sic], [Defense Counsel]?
[Defense Counsel]: No contest. Consent to a finding of guilt, Your Honor. And there‘s an actual basis.
[Trial Court]: And you understand, Mr. Arnold, by entering a plea of no contest, you‘re admitting the truth of the facts as alleged on the face of the A charge.
[Defendant]: Yes, sir. [Trial Court]: And you understand what the maximum possible penalties are.
[Defendant]: Yes, sir.
[Trial Court]: At this time, I‘ll accept your pleas [sic] of no contest.
(Apr. 28, 2016 Tr. at 3-4).
{11} The Seventh District Court of Appeals in Vittorio held that the defendant, “with counsel, entered a stipulation of guilt, thereby waiving the [
{12} Even assuming Arnold did not waive the
{13} We next address Arnold‘s argument that the trial court abused its discretion when it ordered, as part of Arnold‘s sentence, that the dog be destroyed. “We review a trial court‘s sentence on a misdemeanor violation under an abuse of discretion standard.” State v. Nolan, 3d Dist. Marion No. 9-15-48, 2016-Ohio-2985, ¶ 12, citing
{14} Arnold does not argue that the trial court‘s order that the dog be destroyed is contrary to law. Indeed,
Whoever commits a violation of * * * [
R.C. 955.22(D) ] is guilty of a misdemeanor of the fourth degree on a first offense and of a misdemeanor of the third degree on each subsequent offense. Additionally, the court may order the offender to personally supervise the dangerous dog that the offender owns, keeps, or harbors, to cause that dog to complete dog obedience training, or to do both, and the court may order the offender to obtain liability insurance pursuant to division (E) of section 955.22 of the Revised Code. The court, in the alternative, may order the dangerous dog to be humanely destroyed by a licensed veterinarian, the county dog warden, or the county humane society at the owner‘s expense.
(Emphasis added.)
(A) A court that sentences an offender for a misdemeanor or minor misdemeanor violation of any provision of the Revised Code * * * shall be guided by the overriding purposes of misdemeanor sentencing. The overriding purposes of misdemeanor sentencing are to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the impact of the offense upon the victim and the need for changing the offender‘s behavior, rehabilitating the offender, and making restitution to the victim of the offense, the public, or the victim and the public.
(B) A sentence imposed for a misdemeanor or minor misdemeanor violation of a Revised Code provision * * * shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender‘s conduct and
its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders.
{16} Generally, “a court that imposes a sentence under [
{17} At the change-of-plea and sentencing hearing, counsel for the State indicated that, as part of the sentence, the State was “asking the dog be ordered either surrendered to law enforcement or destroyed.” (Apr. 28, 2016 Tr. at 3). Arnold‘s counsel later stated, “We just ask the Court to adopt the prosecutor‘s recommendation.” (Id. at 9). When the trial court asked about the dog‘s whereabouts, counsel for the State responded, “It‘s at a kennel in Cleveland awaiting transport to a law enforcement officer, but we wouldn‘t do that until the case was over.” (Id. at 5). Arnold‘s counsel indicated, “Mr. Arnold doesn‘t want
{18} Arnold‘s counsel indicated at the hearing, “There were some serious injuries.” (Id. at 4). The trial court apparently agreed, saying, “I‘ve never seen anything like this,” to which Arnold responded, “He‘s a pretty athletic dog, Your Honor.” (Id. at 5). Arnold‘s counsel later added, “It‘s terrible.” (Id. at 8). When the trial court stated that it was “not sure that a dog that does this is going to be able to be rehabilitated,” Arnold‘s counsel responded, “I agree, Your Honor.” (Id. at 7). Counsel for the State added, “Two months ago, the trainer at [the kennel] said he thought it could be, but now it‘s been two more months of being in a cage. I‘m just not sure.” (Id.).
{19} We reject for no fewer than three reasons Arnold‘s argument that the trial court abused its discretion in ordering that the dog be destroyed. First, Arnold fails to suggest exactly why or how—in relation
{20} Arnold‘s assignment of error is overruled.
{21} 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
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
ROGERS, J., dissenting.
{22} I must respectfully dissent from the opinion of the majority.
{23} I start with a consideration of the plea proceedings.
{24}
A plea to a misdemeanor offense of “no contest” or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense.
{25} In Bowers, the Ohio Supreme Court addressed the juxtaposition between this portion of
{26} The majority chooses to adopt the view of the Seventh District Court of Appeals that a stipulation to a finding of guilt is—by itself—sufficient to waive the explanation of circumstances requirement. I do not believe this view is consistent with Ohio law or the Ohio Supreme Court‘s holding in Bowers.
{27} Other Ohio appellate courts seem to share this concern. For example, in State v. Roland, 2d Dist. Champaign No. 2005 CA 39, 2006-Ohio-3517, ¶ 18, the court considered whether the defendant‘s “agreement to be found guilty” waived the explanation-of-circumstances requirement. The court concluded that the defendant‘s agreement “was no more than his agreement to be found guilty in accordance with
{29} Again, in Roth, the Ninth District Court of Appeals concluded, “Because [defense counsel] explicitly waived a reading of the facts, Mr. Roth cannot now raise on appeal the argument that the court did not read the facts at the time that he made his no contest plea.” (Emphasis added.) 2004-Ohio-4447, ¶ 12.
{30} It is my opinion that
{31} Further, there was considerable confusion as to the section of law under which Arnold was charged as opposed to that with which he was convicted.
{32}
{33} “Nuisance dog” means “* * * a dog that without provocation and while off the premises of its owner, keeper, or harborer has chased or approached a person in either a menacing fashion or an apparent attitude of attack or has attempted to bite or otherwise endanger any person.”
{34} “Dangerous dog” means “a dog that, without provocation, * * * has [c]aused injury, other than killing or serious injury, to any person; [k]illed another dog; [or] [b]een the subject of a third or subsequent violation of [
{35} “Vicious dog” means “a dog that, without provocation * * *, has killed or caused serious injury to any person.”
{36} While
{38} The complaint alleged that Arnold “did unlawfully and while being the owner, keeper, or harborer of a vicious dog, did fail to securely confine the vicious dog on premises, as required by statute.” (Emphasis added.) (Docket No. 2). Although the compliant referred to the dog as vicious, it cited
{39} From the record, it is clear that neither defense counsel nor the prosecutor recognized the difference between the designation as a dangerous dog or vicious dog. The trial judge also referred to the dog as vicious although Arnold was charged under the dangerous dog statute. Further, although citing
{40} There is the further problem of whether the offense could properly be brought under either statute. The statutes defining a “dangerous dog” and “vicious dog” both are drafted in the past tense. I interpret that to mean that there must have been a prior incident to put the owner, keeper, or harborer on notice or a prior designation as a “dangerous dog” or a “vicious dog” before anyone could be charged under the statutes at issue. How can one fail to confine a dangerous or vicious dog if one is not aware that the dog meets that criteria? There is no evidence in this case that the dog had been previously designated as a dangerous or vicious dog or that the dog had previously caused injury to another. The fact that the Dog Warden only served a notice of designation subsequent to and based on the incident leading to Arnold‘s charge certainly requires the conclusion that there had been no previous designation.
{41} Additionally, the trial court‘s sentencing entry included an order that the court be provided with evidence that the dog had been “put down” by a certain date.
{42} Finally, the majority fails to note that the trial court committed plain error in ordering Arnold to pay restitution to the kennel company. There are two potential statutes governing this issue, neither of which are applicable in this case. First,
{44} For all of the reasons listed above, I would vacate the orders of the trial court and order that the charge be dismissed.
/jlr