State v. ZarconiState v. Zarconi
For Plaintiff-Appellee: Attorney Dana Lantz, Prosecuting Attorney; Attorney Kathleen Thompson, Assistant Prosecuting Attorney, 26 South Phelps Street, 4th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Ryan Ingram, 7330 Market Street, Youngstown, Ohio 44512
{¶1} Defendant-Appellant Laura Zarconi appeals the decision of the Youngstown Municipal Court finding her guilty of violating
{¶2} For the reasons expressed below, we find no merit with the second issue because there is no requirement in
Statement of the Case
{¶3} On September 15, 2011, Zarconi was charged by complaint with two counts of allowing a vicious dog to leave her property without being securely leashed or restrained in violation of
{¶5} At the sentencing hearing the victim appeared and indicated that the dog caused damage to her door, which amounted to $50 worth of damages. 12/21/11 Tr. 7-8. The trial court then sentenced Zarconi to one year of probation and ordered her to pay a $250 fine, $25 for attorney appointment fees, and $50 in restitution. The court also ordered her to pay $100 for reimbursement for the community control supervision, but stated that such requirement would be waived if the sanctions are satisfied. In addition to these orders, the trial court additionally ordered Zarconi to surrender the dog to the Mahoning County Dog Warden the next day. 12/21/11 J.E.; 12/21/11 Tr. 8-9.
{¶6} Zarconi timely appealed the decision and filed a motion with the municipal court requesting a stay of execution of the sentence. 12/22/11 Motion and Notice of Appeal. Specifically, in her stay of execution request, she asked that the time period for delivering the dog to the Mahoning County Dog Warden be suspended pending the appeal. The municipal court denied her request. Zarconi then filed a motion for stay with this court. In response to her request, we ordered her to immediately surrender the dog to the Mahoning County Dog Warden, but indicated that the dog was not to be euthanized or adopted during the pendency of appeal. Approximately two weeks later, Zarconi asked this court to modify the stay order and asked us to allow the dog to return to her residence. She attached a letter from the Mahoning County Dog Warden to the motion which stated that the dog was susceptible to disease or depression while impounded and that the dog had not demonstrated aggressive behavior while impounded. We granted her request on the condition that she pay all boarding charges and keep the dog secured at all times when it leaves the house. 02/22/12 J.E.
COURT‘S AUTHORITY TO ORDER IMPOUNDMENT
First Assignment of Error
{¶8} Zarconi was convicted under
(b) No person owning or harboring or having the care of a vicious dog shall suffer or permit such dog to go beyond the premise of such person unless such dog is securely leashed or otherwise securely restrained.
(c) Definitions
(1) * * *
(2) “Vicious dog” as used in this section means:
A. Any dog with a propensity, tendency or disposition to attack, to cause injury to or to otherwise endanger the safety of human beings or other domestic animals; and
B. Any dog which attacks a human being or another domestic animal without provocation.
* * *
(e) Whoever violates this section is guilty of one of the following:
(1) Misdemeanor One: If the dog causes injury to any person;
(2) Misdemeanor Four: If the dog does not otherwise cause injury to any persons.
(3) When any person is found guilty of a subsequent offense such person is guilty of a misdemeanor of the third degree.
Youngstown Ordinance 505.19.
{¶9} As can be seen, this section indicates that a person found guilty of this section is guilty of a first, third or fourth degree misdemeanor, depending on the circumstances. Trial courts only have authority to impose sentences permitted by the
{¶10} The city acknowledges that
{¶11} Consequently, there is no statute or ordinance that provides impoundment of the canine as a penalty for a first-degree misdemeanor.
{¶12} The fact that there is not a specific authorization for impoundment in
{¶13}
Whoever violates subsection (b) hereof shall be guilty of a misdemeanor of the first degree. In addition to any other penalty available for a violation of subsection (b) hereof, the “Pit Bull Terrier” that is the subject of the offense(s) shall be impounded and humanely destroyed according to the provisions of Section 505.02 and any person found guilty of violating this section shall pay all expenses, including shelter, food, boarding, or veterinary expenses necessitated by the impounding and humane destruction of the dog. Whoever violates any provision of subsection (c) hereof shall be guilty of a minor misdemeanor. For any subsequent violation of any provision of subsection (c) hereof, the person shall be guilty of a misdemeanor of the first degree. In addition to any other penalty available for a subsequent violation of subsection (c) hereof, the “Pit Bull Terrier” that is subject of the offense(s) shall be impounded and humanely destroyed according to the provisions of Section 505.02 and any person found guilty of violating this Section shall pay all expenses, including shelter, food, boarding, or veterinary expenses necessitated by the impounding and humane destruction of the dog.
{¶14}
{¶15} Admittedly,
{¶16} Therefore, considering the above
{¶17} Consequently, for those reasons, this assignment of error has merit. We find that the municipal court was without the authority to order the impoundment of the canine in this situation. Therefore, the impoundment decision must be reversed. However, all other penalties, i.e. probation, fines and costs, issued by the municipal court remain in effect.
VOLUNTARINESS OF THE PLEA
Second Assignment of Error
{¶18} “The Defendant-Appellant‘s no contest plea was not voluntarily entered because at no point during the proceeding was she informed that the forfeiture of her dog was a potential penalty.”
{¶19} To ensure that pleas are knowingly, intelligently, and voluntarily made,
{¶20} Zarconi entered a no contest plea to the vicious dog ordinance, a first-degree misdemeanor, subject to a sentence of not more than 180 days, and thus, a petty offense.
{¶22} That said, in the interest of fairness, even if we review the trial court‘s advisement on the effect of her no contest plea, we still find that this assignment of error lacks merit.
{¶23} Before accepting her no contest plea, the trial court addressed Zarconi as follows:
THE COURT: I have here Case No. 11 CRB 1904. Per Rule 11 negotiations and agreement the Defendant is withdrawing her previous plea of not guilty to the charge of, under the vicious dog ordinance, which is a misdemeanor of the 1st degree, which has potential penalty of a fine up to $1,000, potential jail sentence up to six months in jail.
Laura Zarconi, I see here you intend to change your plea from not guilty to no contest. I am to inform you that a no contest plea stipulates that the Court may make a finding of guilty or not guilty based on the facts presented or a stipulation and that the probabilities are that you will be found guilty. Given that information and understanding you are changing your plea to?
MISS ZARCONI: No contest.
THE COURT: Very well. Further, a no contest plea waives certain legal rights, your right to a trial, a jury trial, to confront your accuser, ask questions and cross examine any and all witnesses the State would bring forward to testify against you at a trial, your right to subpoena witnesses who would come and testify on your behalf, remain silent, raise any and all defenses you may have, testify at your own trial among other Constitutional and statutory rights. Do you understand that you would be waiving those rights?
MISS ZARCONI: Yes, I do.
10/31/11 Tr. 3.
{¶24} In this plea colloquy, the trial court failed to expressly notify Zarconi that a no contest plea means an admission of the truth of the facts alleged in the complaint. Further, the trial court did not inform her that the plea or admission shall not be used against her in any subsequent civil or criminal proceeding. See State v. Hough, 7th Dist. No. 10MA178, 2011-Ohio-6425, ¶ 16-27 (trial court engaged in very similar plea colloquy, which did not inform defendant of the effect of the no contest plea). Moreover this information was not contained in the written plea agreement.
{¶25} That said, in order to vacate a plea for failure to inform the defendant of the plea‘s effect, there must be prejudice, which means the plea otherwise would not have been entered. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶ 52. See also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15. Here, Zarconi has not alleged that any prejudice resulted from the trial court‘s failure to explain the effect of her no contest plea. Likewise, the record does not indicate that the facts of this case were in dispute or that Zarconi would not have pled no contest had the court explained that “no contest” meant admitting to the truth of the facts in the complaint rather than admitting guilt. Thus, Zarconi was not prejudiced and the trial court‘s failure to comply with
Conclusion
{¶27} In conclusion, on the basis of the first assignment of error, the municipal court‘s impoundment decision is reversed in part and affirmed in part.
Donofrio, J., concurs.
DeGenaro, P.J., concurs in part; dissents in part; see concurring in part; dissenting in part Opinion.
DeGenaro, P.J., concurring in part and dissenting in part.
While I concur with the majority‘s resolution of the second assigned error regarding Zarconi‘s plea, I dissent from the resolution of the first assigned error. The trial court had authority to order that Zarconi surrender her dog due to a judicially determined violation of the vicious dog ordinance. Accordingly, the judgment of the trial court should be affirmed in its entirety.
The majority and I differ on how to interpret what the Fourth District in Roach meant by the provision “applicable statutes” when reviewing a trial court‘s sentencing authority. Consistent with the historically broad discretion vested with trial courts in this country and Ohio for sentencing purposes,
A police officer or animal warden may impound every animal or dog found in violation of Section 505.01, 505.19 or 505.191. * * * Any dog seized and impounded, other than a vicious dog as defined in Section 505.19 or a “non-exempt Pit Bull Terrier” as defined in Section 505.191, may be redeemed by its owner, keeper or harborer at any time prior to the applicable redemption period upon payment of all lawful costs assessed against the animal and upon providing the dog with a valid registration tag if it has none.
The circumstances under which a dog is usually impounded involve the police or animal warden either seeing or receiving a call of a dog running loose. Thus,
It follows that the automatic nature of the penalty is also different based upon the breed of the dog.
The City of Youngstown has made two valid public policy determinations to ensure public safety. First, that all Pit Bulls are vicious dogs per se as that term is defined in the companion ordinance, irrespective of a particular Pit Bull‘s temperament. Second, as to all other dog breeds, whether or not a particular dog is a vicious dog must be judicial determined. This affords the owner of an alleged vicious dog notice and due process to defend an alleged violation of the ordinance. This ordinance scheme balances the City‘s interest in maintaining public safety with preserving a dog owner‘s due process rights.
To further ensure public safety, the City gave police and the animal warden the discretion to immediately impound a dog running loose, based upon the mere presumption that the dog was vicious and the owner in violation of the ordinance. To give the ordinance meaningful effect, it must be construed to give trial judges the same discretion to order an owner convicted of violating the ordinance to turn over a
During the sentencing hearing defense counsel informed the court that the incident occurred because the dog was chained on that day but had broken loose; moreover, he did not believe the dog had a prior history of violence. Defense counsel further stated that the dog caused damage to a neighbor‘s screen door. Katherine Peoples, the owner of the damaged door, also gave a statement: “[S]ince that incident happened the dog has still been outside. [Zarconi] does keep the dog on a leash but the other family members don‘t. And we just want her to keep control of their dog because this dog is like this big, literally. And there is a lot of kids and they are not being cautious about their dog * * *.”