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State v. Chipman

Court of Appeals of Ohio, Second District, Montgomery

January 5, 2018

STATE OF OHIO Plaintiff-Appellee
SELMA CHIPMAN Defendant-Appellant

         Criminal Appeal from Municipal Court Trial Court Case No. 16-CRB-4824

          STEPHANIE L. COOK, Atty., Dayton Municipal Prosecutor's Office, Attorney for Plaintiff-Appellee

          JOHN S. PINARD, Atty. Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} Selma Chipman was found guilty by the Dayton Municipal Court on her no contest plea to cruelty against companion animal. Chipman appeals from her conviction, claiming that the trial court did not comply with Crim.R. 11 at the plea hearing and erred in denying her subsequent presentence motion to withdraw her plea. For the following reasons, the trial court's judgment will be affirmed.

         I. Factual and Procedural History

         {¶ 2} According to the facts presented at the plea hearing, Chipman, who was 82 years old, owned a German Shepherd named Chinook (aka Chookie) for approximately six years. On June 28, 2016, Chinook was taken to her veterinarian at North Main Animal Clinic to be spayed.[1] Upon examination of Chinook, the veterinarian noticed that the dog was in poor health. Specifically, the dog suffered from alopecia, it had an external ear tear, there was discharge from both eyes, there was loss of hair, there were marks on the dog's hocks, and the dog had an "overwhelming smell of an infection." The veterinarian diagnosed Chinook with demodectic mange.

         {¶ 3} The prosecutor explained at the plea hearing that Chinook had been bitten by a mange mite, which caused itching and scratching. Chinook did not receive prompt treatment, which would have been inexpensive, and the scratching resulted in loss of fur, as well as yeast and staph dermatitis infections.

         {¶ 4} On July 15, 2016, Chipman was charged by complaint with two counts of cruelty against companion animal, in violation of former R.C. 959.131(C)(2) (Count Two) and (C)(5) (Count One).[2] Both offenses were second-degree misdemeanors. Former R.C. 959.99(E)(2).[3] At the time of the offenses, R.C. 959.131(C) read:

(C) No person who confines or who is the custodian or caretaker of a companion animal shall negligently do any of the following: * * * (2) Omit any act of care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal;
(5) Deprive the companion animal of necessary sustenance, confine the companion animal without supplying it during the confinement with sufficient quantities of good, wholesome food and water, or impound or confine the companion animal without affording it, during the impoundment or confinement, with access to shelter from heat, cold, wind, rain, snow, or excessive direct sunlight, if it can reasonably be expected that the companion animal would become sick or suffer in any other way as a result of or due to the deprivation, confinement, or impoundment or confinement in any of those specified manners.

Chipman initially pled not guilty to the charges.

         {¶ 5} The record contains references to a civil case that was also filed related to Chinook. The details of that civil case are not in the record, except that it was pending at the same time as her criminal case.

         {¶ 6} On October 24, 2016, the scheduled trial date, Chipman orally pled no contest to Count Two of "companion animal, " in exchange for which Count One would be dismissed. (The plea form indicated that Chipman was pleading no contest to "the charge(s) against me, " not a particular charge.) After the prosecutor gave a statement of the facts and circumstances underlying the charge, the trial court found Chipman guilty, ordered a presentence investigation (including a psychological examination), and scheduled a hearing on Chipman's ability to pay financial sanctions.

         {¶ 7} On January 5, 2017, Chipman filed a presentence motion to withdraw her plea. Chipman stated in her supporting memorandum that "she did not understand the nature of her charges and possible penalties and that she is not guilty of said charges and/or has a complete defense to the charge or charges."

         {¶ 8} On January 30, 2017, the trial court (a different judge than had taken the plea) held a hearing on the motion, at the end of which it orally overruled the motion. The trial court concluded that the court had complied with Crim.R. 11 at the plea hearing, that Chipman had "a seasoned attorney, " and that "every reasonable effort" had been made to ensure that Chipman understood what was occurring at the plea hearing. The court told Chipman that, "from our conversations today[, ] I don't get an additional sense that you don't understand and so for that reason I am going to deny your motion to withdraw your plea."

         {¶ 9} On February 9, 2017, the trial court sentenced Chipman on Count Two (former R.C. 959.131 (C)(2)) to 90 days in jail, all of which suspended, imposed five years of community control, and ordered her to pay a fine of $750. The trial court also ordered that Chipman have no animals at her residence and that she allow inspections by the police and the Humane Society of Greater Dayton. Chipman was to remove her horses from her property by April 20, 2017.

         {¶ 10} Chipman appeals from her conviction, raising two assignments of error. She claims that (1) the trial court failed to comply with Crim.R. 11 when taking her plea, and (2) that the trial court abused its discretion in denying her presentence motion to withdraw her plea.

         II. Chipman's Plea to Cruelty Against Companion Animal

         {¶ 11} In her first assignment of error, Chipman claims that her plea was defective, because the trial court failed to fully inform her of the effect of her no contest plea. In response, the State asserts that Chipman was fully informed about the effect of her no contest plea in the plea form, which she signed.

         {¶ 12} Crim.R. 11 sets forth distinct procedures for the trial court to follow in accepting a plea, with the procedures varying based on whether the offense involved is a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a felony. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 11; State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635; State v. Hall, 2d Dist. Greene No. 2011 CA 32, 2012-Ohio-2539, ¶ 18. For a "petty offense" misdemeanor, such as Chipman's offense of cruelty against companion animal, the trial court was required only to inform Chipman of the effect of her no contest plea. Jones at ¶ 14; Crim.R. 11(E); see Crim.R. 2 (defining classifications of offenses). For a no contest plea, "a defendant must be informed that the plea of no contest is not an admission of guilt but is an admission of the truth of the facts alleged in the complaint, and that the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding." See Jones at ¶ 23.

         {¶ 13} The Ohio Supreme Court has not required the trial court to orally inform a defendant of the effect of his or her plea. See Jones at ¶ 51. As the supreme court stated in Jones, "Whether orally or in writing, a trial court must inform the defendant of the appropriate language under Crim.R. 11(B) before accepting a plea." Id. The Ohio Supreme Court found the notification lacking in Jones where "the language of Crim.R. 11(B)(1) [was] missing from the record. It was not contained in the colloquy or provided in written form to Jones." Id.

         {¶ 14} We note that, unlike the provisions applicable to more serious offenses, Crim.R. 11(E) does not require the trial court to personally address the defendant and determine that the defendant understands the nature of the charge and is entering the plea voluntarily. See Jones at ¶ 13; State v. Wright, 2d Dist. Montgomery 26471, 2015-Ohio-3919, ¶ 17, citing State v. Hopkins, 2d Dist. Greene No. 2002-CA-108, 2003-Ohio-5963, ¶ 16. Furthermore, the Supreme Court of Ohio has held that a defendant must establish that the failure to comply with nonconstitutional rights, such as the information contained in Crim.R. 11(B)(1), resulted in prejudice, meaning the defendant would not have entered his or her plea. Jones at ¶ 52.

         {¶ 15} In this case, Chipman was 82 years old when the plea hearing was held. After Chipman initially expressed that she could not hear, the trial court asked Chipman if she wanted to plead no contest to one charge in exchange for the dismissal of the other. Chipman responded that she did not understand what the court was talking about. When defense counsel told Chipman "[i]t's what we talked about this morning, " Chipman said, "No, you never said anything about if they take one thing and another thing, " and she asked the trial court to explain. The trial court told Chipman that she had "two charges right now. Each of them carry up to ninety days in jail and a seven hundred and fifty dollar fine. They are willing to dismiss one and you can plead no contest to the other."

         {¶ 16} Chipman asked the trial court what the offense was called, and the trial court told her it was called "companion animal." Chipman responded to the court that she loved her dog, that her dog had her "own big chair" in the living room, that she did not mistreat the dog, and that she was treating Chinook with "wound dust, " which is used on horses. (Chipman also had five horses.) Chipman said she didn't know if she wanted to enter a plea. The trial court gave Chipman and her counsel an opportunity to go into a conference room to discuss the matter further.

         {¶ 17} Upon resuming the proceedings, Chipman acknowledged that she had a chance to talk to her attorney and that he had "explained a few things to me." The following exchange then occurred:

THE COURT: Okay, so do you want to take the offer to plead to one count and they will dismiss the other one?
THE DEFENDANT: Yeah, yeah.
THE COURT: Okay and you understand the potential penalty is up to ninety days in jail and a seven hundred and fifty dollar fine. That's the maximum penalty by law.
THE DEFENDANT: Now, is, now wait a minute now.
THE DEFENSE: She is telling you the maximum penalty and fine. She is not saying what she's doing. She is just telling you the maximum.
THE COURT: Do you understand ...

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