Court of Appeals of Ohio, Second District, Montgomery
Appeal from Municipal Court Trial Court Case No. 16-CRB-4824
STEPHANIE L. COOK, Atty., Dayton Municipal Prosecutor's
Office, Attorney for Plaintiff-Appellee
S. PINARD, Atty. Attorney for Defendant-Appellant
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.
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. 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
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
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). Both offenses were second-degree
misdemeanors. Former R.C. 959.99(E)(2). 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
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
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
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.
Chipman's Plea to Cruelty Against Companion
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
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 DEFENDANT: Oh, okay.
THE COURT: Do you understand ...