State v. Arnold

• Decision Date: 30 January 2017
• Docket Number: No. 13–16–13.,13–16–13.
• Citation: 2017 Ohio 326,72 N.E.3d 715
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Lester C. ARNOLD, Defendant–Appellant.
• Court: Ohio Court of Appeals

72 N.E.3d 715

2017 Ohio 326

STATE of Ohio, Plaintiff–Appellee,

v.Lester C. ARNOLD, Defendant–Appellant.

No. 13–16–13.

Court of Appeals of Ohio, Third District, Seneca County.

Jan. 30, 2017.

Gene P. Murray, Fostoria, for Appellant.

Charles R. Hall, Jr., for Appellee.

OPINION

PRESTON, P.J.

{¶ 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 R.C. 955.22(D)(1). On appeal, Arnold argues that his conviction should be overturned and that the trial court abused its discretion in ordering, as part of Arnold's sentence, that the dog be destroyed. For the reasons that follow, we affirm.

{¶ 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 R.C. 955.22(D)(1), a misdemeanor of the third or fourth degree.¹ (Id. ). Arnold pled not guilty to the charge. (Doc. No. 6).

{¶ 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 sentenced Arnold: to 60 days in jail with all 60 days conditionally suspended upon compliance with the terms and conditions of probation; to two years on probation; and to pay a fine of $250, plus court costs. (Id. at 12); (Doc. No. 17). The trial court also ordered, among other things, that Arnold not own or harbor a dog while on probation and that he submit "proof that dog has been put down by May 11, 2016." (Id. ); (Id. ). The trial court filed its judgment entry of conviction and sentence on April 28, 2016. (Doc. No. 17).

{¶ 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 sentence for the dog" despite the existence of "an available donee for the dog Caeto for training and service to law enforcement." (Id. at 10).

{¶ 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, 2005 WL 579084, ¶ 6, citing Chem. Bank of New York v. Neman, 52 Ohio St.3d 204, 207, 556 N.E.2d 490 (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, 494 N.E.2d 1101 (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.

{¶ 7} We will first address Arnold's argument that his conviction should be overturned. Arnold was charged with violating R.C. 955.22(D)(1).³ That statute provides:

(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 * * *.

R.C. 955.22(D)(1). " ‘Dangerous dog’ means a dog that, without provocation, * * * has done any of the following: (i) Caused injury, other than killing or serious injury, to any person; (ii) Killed another dog; (iii) Been the subject of a third or subsequent violation of [R.C. 955.22(C) ]." R.C. 955.11(A)(1)(a), cited in R.C. 955.22(A) ("As used in this section, ‘dangerous dog’ has the same meaning as in [R.C. 955.11 ].").

{¶ 8} R.C. 2937.07 governs a trial court's actions relative to a plea of "no contest" in a misdemeanor case. See State v. Smyers, 5th Dist. Muskingum No. CT03–0039, 2004-Ohio-851, 2004 WL 351881, ¶ 11. That statute provides, in relevant part: "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." Absent an explanation of the circumstances of the offense, "a no contest plea may not be the basis for a finding of guilty." City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d 532 (1984). In this case, Arnold appears to argue that absent from the record is an explanation that the dog "was a vicious dog, prior to the incident on September 14, 2015." (Appellant's Brief at 8). However, as we will explain below, Arnold waived the explanation-of-the-circumstances requirement of R.C. 2937.07 ; therefore, it was not error for the trial court to find Arnold guilty absent an explanation that the dog was dangerous as defined in R.C. 955.11.

{¶ 9} "Although R.C. 2937.07 is mandatory, a defendant could invite noncompliance with the statute or waive its requirements," including the explanation of the circumstances. State v. Vittorio, 7th Dist. Mahoning No. 09 MA 166, 2011-Ohio-1657, 2011 WL 1258707, ¶ 17, citing State v. Howell, 7th Dist. Mahoning No. 04 MA 31, 2005-Ohio-2927, 2005 WL 1385713, ¶ 20, citing City of N. Ridgeville v. Roth, 9th Dist. Lorain No. 03CA008396, 2004-Ohio-4447, 2004 WL 1882644, ¶ 12. Indeed, several Ohio courts "have held that R.C. 2937.07 is waivable." State v. Kern, 6th Dist. Lucas No. L–14–1173, 2015-Ohio-1988, 2015 WL 2451988, ¶ 12, citing City of Broadview Hts. v. Burrows, 8th Dist. Cuyahoga No. 79161, 2001 WL 1174264, *2 (Oct. 4, 2001), Smyers at ¶ 12, State v. Ritch, 4th Dist. Scioto No. 97CA2491, 1998 WL 282970 (May 11, 1998), Roth at ¶ 12, and Howell at ¶ 20.

{¶ 10} It does not appear that this court has addressed whether a defendant may waive the requirements of R.C. 2937.07. We join the many other Ohio courts that have held that the explanation-of-the-circumstances requirement of R.C. 2937.07 is waivable. See Kern at ¶ 12. We further hold that Arnold waived that requirement in this case. At the change-of-plea and sentencing hearing, the following exchange took place when Arnold, through counsel, entered his plea of no contest:

[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 [R.C. 2937.07 ] requirement." Vittorio at ¶ 22. Specifically, the defendant's counsel said at the change-of-plea hearing, "We would waive any defects in the preparation and service of the amended complaint stipulate [sic] to a finding of guilt." Id. at ¶ 21. The Seventh District held that the defendant's " ‘stipulation to a finding of guilt’ constituted a waiver of the R.C. 2937.07 requirements." Id. at ¶ 2. In this case, not only did Arnold, through counsel, "[c]onsent to a finding of guilt," he also stated, "And there's an actual basis." (Apr. 28, 2016 Tr. at 3). Therefore, we hold that Arnold waived the R.C. 2937.07 explanation-of-the-circumstances requirement in this case.

{¶ 12} Even assuming Arnold did not waive the R.C. 2937.07 requirements, we would not hold that his conviction should be reversed. See Ritch, 1998 WL 282970, at *4 ("Even assuming, arguendo, that such explanation was not properly waived in these circumstances, we would still not be inclined to reverse the judgment on this point."). "The ‘invited error doctrine’ holds that a party will not be permitted to take advantage of an error which he himself invited or induced the court to make." Id., citing State ex rel. O'Beirne v. Geauga Cty. Bd. of Elections, 80 Ohio St.3d 176, 181, 685 N.E.2d 502 (1997) and State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 254, 648 N.E.2d 1355 (1995). As in Ritch, based on the...