State v. Chipman , 2018 Ohio 33 ( 2018 )

[Cite as State v. Chipman, 2018-Ohio-33.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27484
:
v. : Trial Court Case No. 16-CRB-4824
:
SELMA CHIPMAN : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of January, 2018.
...........
STEPHANIE L. COOK, Atty. Reg. No. 0067101, Dayton Municipal Prosecutor’s Office,
335 West Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 W. Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
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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)
1 The presentence investigation report indicated that Paw Patrol took Chinook to the
veterinarian after receiving Chipman’s consent. However, the prosecutor did not provide
this detail at the plea hearing.
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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
2
R.C. 959.131 was amended, effective September 13, 2016. Former R.C.
959.131(C)(5) is currently codified, with minor revisions, as R.C. 959.131(D)(2). Former
R.C. 959.131(C)(2) is encompassed by current R.C. 959.131(D)(1).
3Under the current version of R.C. Chapter 959, the penalty for a violation of R.C.
959.131(D) is addressed in R.C. 959.99(E)(3).
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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
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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
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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
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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
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not saying what she’s doing. She is just telling you the maximum.
THE DEFENDANT: Oh, okay.
THE COURT: Do you understand that?
THE DEFENDANT: Yeah, yeah.
THE COURT: Okay, how do you plead to one count of companion animal?
THE DEFENSE: That’s no contest.
THE DEFENDANT: No count.
THE DEFENSE: No contest.
THE DEFENDANT: No, no count --
THE DEFENSE: No contest.
THE DEFENDANT: No contest or whatever you want to call it.
THE COURT: I guess I need to call the case too, State of Ohio v. Selma
Chipman, 16 CRB 4824, recalling that. Okay, you are pleading no contest?
THE DEFENDANT: Yes.
THE COURT: Do you understand a no contest plea is not an admission of
guilt but you are not contesting the facts in the complaint?
THE DEFENDANT: Yeah, mm-hmm.
THE COURT: Yes?
THE DEFENDANT: Yes.
THE COURT: And you are giving up your right to trial.
THE DEFENDANT: Yeah, whatever you all say. Whatever you say.
THE COURT: Well, when you, when you plea[d], when you plea[d] do you
understand that we are not going to have a trial today?
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THE DEFENDANT: Yeah, okay.
THE COURT: You are waiving that right, okay.
THE DEFENDANT: Okay.
THE COURT: Your, your plea is being voluntarily and intelligently made?
THE DEFENDANT: My what?
THE COURT: Your [sic] pleading on your own volition?
THE DEFENDANT: Yeah.
THE COURT: Okay, have you had the opportunity to review and sign the
plea of no contest form?
THE DEFENSE: Whhat [sic], is this it right here?
THE COURT: I guess I should have had you take that back.
THE DEFENDANT: Can I ask you a question?
THE COURT: Yeah.
THE DEFENDANT: Where’s Chinook at?
THE COURT: She’s in foster care right now.
THE DEFENDANT: Is she still with the same people?
THE COURT: Yes.
THE DEFENDANT: Can I get her back?
THE COURT: We’re, not right now, I don’t believe so.
THE DEFENDANT: And there is something else I’d like to ask you. I did
not –
THE COURT: Well, why don’t you –
THE DEFENSE: Hold, hold on, it’s one step at a time.
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THE COURT: Hold on, hold on a second. Let’s go through this
paperwork and then I’m going to let you talk at the end, okay?
THE DEFENDANT: Okay, I’m sorry.
THE COURT: No, just take your time for a minute.
THE DEFENDANT: I’m, I’m pretty dumb on these things.
THE COURT: No, we will help you out.
THE DEFENSE: This is every –
THE DEFENDANT: I’ve never been in court before like this.
THE DEFENSE: Miss Chipman, this is everything that we have already
talked about on several occasions, read it again if you want. It’s all the
same.
THE DEFENDANT: Where do I sign, right there?
THE DEFENSE: You sign right there and right there on that line there.
THE COURT: Okay, do you have any questions about your rights?
THE DEFENDANT: All right, what I was asking, is there –
THE DEFENSE: Wait one step at a time.
THE COURT: Just about your rights.
THE DEFENSE: She first, you can tell her that in a minute. She is asking
to make sure you understand what we are doing and –
THE DEFENDANT: Yeah, I understand this now.
THE DEFENSE: What you are signing.
THE COURT: Okay, now the prosecutor has to read the facts into the
record since you have plead [sic] no contest.
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***
{¶ 18} After the prosecutor informed the court of the facts and circumstances of
the offense, the trial court found Chipman guilty on her no contest plea.
{¶ 19} Upon review of the plea hearing transcript and the record, the trial court
substantially complied with the requirements of Crim.R. 11 regarding a plea to a petty
offense. The trial court orally informed Chipman that her no contest plea was not an
admission of her guilt, but was an admission to the truth of the facts alleged in the
complaint. See Crim.R. 11(B)(2). Although the trial court did not orally inform
Chipman that her no contest plea “shall not be used against the defendant in any
subsequent civil or criminal proceeding,” as required by Crim.R. 11(B)(2), that information
was included on the plea form, which Chipman signed in open court; Chipman indicated
that she understood what she was doing when she signed the plea form.
{¶ 20} Chipman’s first assignment of error is overruled.
III. Chipman’s Presentence Motion to Withdraw Plea
{¶ 21} In her second assignment of error, Chipman claims that the trial court
abused its discretion when it denied her presentence motion to withdraw her no contest
plea.
{¶ 22} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest injustice
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.” Under Crim.R. 32.1, a presentence motion to
withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio St. 3d
521, 527, 584 N.E.2d 715 (1992). However, “[a] defendant does not have an absolute
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right to withdraw his plea, even if the motion is made prior to sentencing.” Id.; State v.
Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-961, ¶ 18.
{¶ 23} In reviewing a trial court’s decision on a defendant’s motion to withdraw his
or her plea filed before sentencing, we apply the following nine factors: (1) whether the
accused was represented by highly competent counsel, (2) whether the accused was
given a full Crim.R. 11 hearing before entering the plea, (3) whether a full hearing was
held on the motion, (4) whether the trial court gave full and fair consideration to the motion,
(5) whether the motion was made within a reasonable time, (6) whether the motion sets
out specific reasons for the withdrawal, (7) whether the accused understood the nature
of the charges and possible penalties, (8) whether the accused was perhaps not guilty of
or had a complete defense to the charge or charges, and (9) whether the state is
prejudiced by withdrawal of the plea. E.g., State v. Becraft, 2017-Ohio-1464, __ N.E.3d
__ (2d Dist.); State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29.
{¶ 24} “In considering these factors, the trial court employs a balancing test; no
single factor is dispositive.” Warrix at ¶ 30, citing State v. Preston, 2d Dist. Montgomery
No. 25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is
whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id.,
quoting Xie, 62 Ohio St.3d at 527. A change of heart or mistaken belief about the plea
is not a reasonable basis requiring a trial court to permit the defendant to withdraw his or
her plea. State v. Maddickes, 2d Dist. Clark No. 2013 CA 7, 2013-Ohio-4510, ¶ 15.
However, in considering whether to allow withdrawal of the plea, it is not simply sufficient
for the trial court to find that the Crim.R. 11 colloquy satisfied the requirements of that
Rule and the United States and Ohio Constitutions; if it were, even a presentence plea
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could never be withdrawn. Id.
{¶ 25} It is within the sound discretion of the trial court to grant or deny a motion to
withdraw a plea. Xie at 526. We will not reverse a trial court’s decision to deny a motion
to withdraw a guilty or no contest plea absent an abuse of discretion. Id. at 527, citing
State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 26} The record reflects that Chipman was represented by competent counsel at
the plea hearing, that the trial court had complied with the requirements of Crim.R. 11 for
a petty offense, that Chipman received a hearing on her motion to withdraw her plea, and
the trial court gave full and fair consideration of the motion at the January 30, 2017
hearing. Chipman filed her motion on January 5, 2017, approximately two and one-half
months after her plea hearing, but prior to sentencing. The prosecutor indicated the
State may or may not be prejudiced, depending on witness availability, particularly the
veterinarian’s availability.
{¶ 27} Chipman asserted in her motion that she did not understand the nature of
the charges and that she had a complete defense to the charges. At the hearing on the
motion to withdraw her plea, Chipman did not articulate what her defense would have
been, although she generally asserted that she had never mistreated her dog. Rather,
the hearing focused on whether Chipman had understood the nature of the charges and
the plea proceedings as a whole. The State argued that Chipman simply had a change
of heart.
{¶ 28} When asked if she had anything to say in support of her motion, Chipman
was difficult to follow. She stated:
* * * Your Honor, on the eleventh day of July I finally got a hold of whatever
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her name is and I talked to her and I told her, I will pay the veterinary bill.
She never said yeah, no, or what but she called Mister Turner [defense
counsel] and told him what I had said. If they had of done what I asked
none of this would have been about. This would have all been over and if
she is saying that I don’t under, I don’t understand it. I was in the
impression when we was here back in November4 that, what, that the no
contest that they were going to go all the way back and have like a new trial.
That, that’s what I thought. You know what I’m talking about, I hope.
{¶ 29} The trial court told Chipman that it had listened to a recording of the October
24 plea hearing, and the court asked Chipman several follow-up questions. Chipman
indicated that she did not understand that she had been in court in October for trial; she
stated, “I was under the impression we was in there to try to get things straightened out.”
The trial court noted that, at the motion to withdraw hearing, Chipman seemed “very
concerned about the possible restitution”; the court asked Chipman if that was the reason
she wanted to withdraw her plea. Chipman responded, “No, I’m not, no.” The trial court
summarized for Chipman what she had heard on the recording of the plea hearing, and
commented that “it appears that you [Chipman] had sufficient understanding of what was
going on.” The court also noted that Chipman had “seasoned” counsel who “interjected
as much as he could to make sure that you understood.”
4 At the hearing on the motion to withdraw her plea, Chipman and the prosecutor
incorrectly recalled that the plea hearing had been in November 2016. Upon further
discussion between the parties and the court, defense counsel clarified that the
November 2016 hearing related to the civil case and that the plea hearing had been in
October 2016.
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{¶ 30} The court found that it “[could not] say that you did not understand it [the
plea hearing] because it appeared that you did. And from our conversation 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.” Chipman responded to the court, “And Your
Honor I can’t understand half of what you are saying. I know you know, I don’t but I can’t,
it just don’t grab what you’re, what all you’re saying.” Upon further questioning by the
court, Chipman indicated that she did not realize that the court had found her guilty on
her no contest plea and that she “can’t understand a lot of things that are said.” The
court told Chipman, “Okay and so what I’m saying is that your no contest plea that you
entered in October is a good plea. I am not going to reverse it. I am not going to erase
it. We move on from here.”
{¶ 31} Whether Chipman actually understood the nature of the charges and plea
hearing as a whole at the time of her plea is not entirely clear, and it is possible to interpret
the proceedings multiple ways. Following the opportunity to speak with her attorney in a
conference room, Chipman’s statements during the plea hearing, on their face, expressed
an understanding of what was occurring. And, Chipman signed the plea form and told
the court, “I understand this now.” The trial court concluded that Chipman did, in fact,
understand what had happened during the plea hearing, and there is competent, credible
evidence to support that conclusion. And while Chipman may have been confused after
the fact, particularly given that she had concurrent criminal and civil cases regarding
Chinook, the trial court could have reasonably concluded that Chipman offered no
justifiable reason for withdrawing her plea. Accordingly, we cannot conclude that the trial
court abused its discretion in denying Chipman’s motion to withdraw her no contest plea.
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{¶ 32} Chipman’s second assignment of error is overruled.
IV. Conclusion
{¶ 33} The trial court’s judgment will be affirmed.
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HALL, P. J. and WELBAUM, J., concur.
Copies mailed to:
Stephanie L. Cook
John S. Pinard
Hon. Deirdre E. Logan