State v. Bodnar , 2013 Ohio 1115 ( 2013 )

[Cite as State v. Bodnar, 2013-Ohio-1115.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 12-MA-77
)
MARISA BODNAR, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 11CRB1798Y
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Dana Lantz
City Prosecutor
Bassil Ally
Assistant Prosecutor
Youngstown Prosecutor’s Office
26 S. Phelps St.
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Timothy J. Cunning
940 Windham Court, Suite 4
Boardman, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: March 22, 2013
[Cite as State v. Bodnar, 2013-Ohio-1115.]
DONOFRIO, J.
{¶1} Defendant-appellant, Marisa Bodnar, appeals from a Youngstown
Municipal Court judgment convicting her of two counts of owning pit bulls and one
count of cruelty against animals and the sentence that followed.
{¶2} On September 1, 2011, a humane agent filed complaints alleging that
appellant was housing pit bulls and was guilty of cruelty against animals. Appellant
was charged with five counts of violating the prohibition against pit bulls, first-degree
misdemeanors in violation of Youngstown Municipal Ordinance 505.191(B), and two
counts of cruelty against animals, second-degree misdemeanors in violation of R.C.
959.131(C)(2).
{¶3} Appellant initially entered a not guilty plea. She later entered into a plea
agreement with plaintiff-appellee, the City of Youngstown, whereby she entered no
contest pleas to two violations of Youngstown Municipal Ordinance 505.191(B) and
one violation of R.C. 959.131(C)(2). In exchange, the city dismissed the remaining
charges. The trial court found appellant guilty.
{¶4} The trial court later held a sentencing hearing. The trial court
sentenced appellant to 180 days in jail on each of the two first-degree
misdemeanors, to be served consecutive to each other, and a $250 fine on each of
the three counts, for a total of 360 days in jail and $750 in fines.
{¶5} Appellant filed a timely notice of appeal on April 23, 2012. On
appellant’s motion, the trial court stayed her sentence pending this appeal.
{¶6} Appellant raises two assignments of error, the first of which states:
THE TRIAL COURT DEPRIVED THE APPELLANT OF HER
RIGHT OF ALLOCUTION.
{¶7} Appellant argues that the trial court failed to provide her with a
meaningful opportunity to address the court before sentencing her. She contends
that the trial court should not have cut her off during her comments to the court. She
states that the court only permitted her to speak four and a half sentences. Thus,
appellant contends she was denied her right of allocution.
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{¶8} Crim.R. 32(A)(1) provides that when imposing sentence, the trial court
shall: “Afford counsel an opportunity to speak on behalf of the defendant and address
the defendant personally and ask if he or she wishes to make a statement in his or
her own behalf or present any information in mitigation of punishment.” This is
known as the right of allocution. The right of allocution applies in both felony and
misdemeanor cases. State v. Jones, 7th Dist. No. 02-BE-65, 2003-Ohio-3285, ¶15.
{¶9} We must examine the colloquy between the court, appellant, and
appellant’s counsel to determine whether the court afforded appellant her right of
allocution.
{¶10} Appellant’s counsel first made a statement on her behalf. Counsel
attempted to lessen appellant’s culpability by arguing that appellant was really an
animal lover and she took in the dogs as strays. (Tr. 9-10). Counsel went on to state
that appellant’s intentions were good-hearted. (Tr. 10). And counsel told the court
that appellant had two dogs at home that are properly licensed and in good health.
(Tr. 10-11).
{¶11} After counsel’s statement in mitigation of sentence, the court asked
appellant if there was anything she wanted to say. Appellant stated:
MISS BODNAR: I would just like to say that the dogs that I own I
made sure that they were checked out by, me and my lawyer through
Animal Charity. They were in good health. I have had the one for
seven years. My (inaudible) I had for a year and they are in good
health. I know now never to - -
THE COURT: Why doesn’t anybody want to talk about this?
Why don’t you want to talk about this? This is what you’re here for.
MISS BODNAR: I know. The pictures, I took in dogs that I
thought I could help.
THE COURT: And you starved them to death.
MISS BODNAR: I was wrong.
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(Tr. 11-12).
{¶12} The court then imposed its sentence. While the court did cut appellant
off during her initial statement, appellant’s opportunity to address the court did not
end there as she suggests. Instead, after the court questioned appellant, appellant
went on to further exercise her right of allocution. Appellant’s final statement to the
court was “I was wrong.” The court did not cut appellant off here. At this point,
appellant simply stopped speaking.
{¶13} The trial court abruptly interrupted appellant to ask a question as she
was exercising her right of allocution. The court could have approached this situation
in a different manner. The court could have asked appellant once again if she had
anything else she wished to say after she answered the court’s question. Or yet the
better approach would have been to wait until appellant was done speaking before
asking her any questions.
{¶14} But the court allowed appellant to continue to speak after questioning
her. Furthermore, appellant had the last word and chose to stop speaking after
stating, “I was wrong.” And appellant’s counsel had already given a lengthy
statement in mitigation. Therefore, we cannot conclude that the trial court failed to
provide appellant with her opportunity to address the court in mitigation of sentence.
{¶15} Accordingly, appellant’s first assignment of error is without merit.
{¶16} Appellant’s second assignment of error states:
THE TRIAL COURT DID NOT COMPLY WITH THE
APPLICABLE SENTENCING STATUTE WHEN IT SENTENCED THE
DEFENDANT.
{¶17} Appellant contends here that the trial court failed to consider the
applicable factors when sentencing her to 180-day consecutive sentences. She
contends that she was sentenced to almost a year in jail “simply because she owned
a pet.” She points out that she does not have a history of persistent criminal activity.
She states that there was no victim in this case. And she argues that she is unlikely
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to commit future crimes.
{¶18} We review a trial court's sentence on a misdemeanor violation under an
abuse of discretion standard. R.C. 2929.22; State v. Frazier, 158 Ohio App.3d 407,
2004-Ohio-4506, ¶15, 815 N.E.2d 1155 (1st Dist.). Abuse of discretion means more
than a mere error of law or judgment; it implies that the trial court's decision was
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 404
N.E.2d 144 (1980). When reviewing a sentence, an appellate court is guided by the
presumption that the trial court's findings were correct. In re Slusser, 140 Ohio
App.3d 480, 487, 748 N.E.2d 105 (3d Dist.2000).
{¶19} In sentencing an offender on a misdemeanor, the court shall consider
the factors set out in R.C. 2929.22(B)(1):
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender has a history of persistent
criminal activity and that the offender's character and condition reveal a
substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the
offense or offenses indicate that the offender's history, character, and
condition reveal a substantial risk that the offender will be a danger to
others and that the offender's conduct has been characterized by a
pattern of repetitive, compulsive, or aggressive behavior with heedless
indifference to the consequences;
(d) Whether the victim's youth, age, disability, or other factor
made the victim particularly vulnerable to the offense or made the
impact of the offense more serious;
(e) Whether the offender is likely to commit future crimes in
general, in addition to the circumstances described in divisions (B)(1)(b)
and (c) of this section.
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{¶20} When the court's sentence is within the statutory limit, a reviewing court
will presume that the trial court followed the standards in R.C. 2929.22 absent a
showing to the contrary. State v. Crable, 7th Dist. No. 04-BE-17, 2004-Ohio-6812,
¶24.
{¶21} In this case, appellant was subject to a 180-day jail sentence on each of
the two first-degree misdemeanors and a 90-day jail sentence on the second-degree
misdemeanor. R.C. 2929.24(A)(1)(2). The court sentenced her to 180 days on each
of the first-degree misdemeanors and did not impose a jail sentence on the second-
degree misdemeanor. Because appellant’s sentences are within the applicable
ranges, we will presume that the trial court considered the R.C. 2929.22(B)(1)
factors.
{¶22} The trial court did not make any specific findings as to the R.C. 2929.22
factors. However, in a misdemeanor case, a silent record creates a rebuttable
presumption that the sentencing court considered the statutory sentencing criteria.
State v. Vittorio, 7th Dist. No. 09-MA-166, 2011-Ohio-1657, ¶26, citing State v. Best,
7th Dist. No. 08-MA-260, 2009-Ohio-6806, ¶14.
{¶23} Appellant attempts to argue that some of the sentencing factors
weighed in her favor. But she fails to consider some also weighed against her. For
instance, she has a prior conviction involving an animal offense. And the
circumstances of the present offense were that four charges against her were
dismissed in exchange for her no contest plea.
{¶24} Additionally, while the trial court did sentence appellant to two,
maximum 180-day sentences on the two first-degree misdeamors, it chose not to
impose any jail term for the second-degree misdemeanor where it could have
imposed another 90 days.
{¶25} Given the above, appellant cannot overcome the presumption that the
trial court considered the applicable sentencing factors. Therefore, the trial court did
not abuse its discretion in sentencing appellant.
{¶26} Accordingly, appellant’s second assignment of error is without merit.
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{¶27} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.