State v. Zarconi ( 2013 )

[Cite as State v. Zarconi, 2013-Ohio-891.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 11 MA 207
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
LAURA ZARCONI, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown
Municipal Court, Case No. 11CRB1904.
JUDGMENT: Affirmed in part; Reversed in part.
APPEARANCES:
For Plaintiff-Appellee: Attorney Dana Lantz
Prosecuting Attorney
Attorney Kathleen Thompson
Assistant Prosecuting Attorney
26 South Phelps Street, 4th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Ryan Ingram
7330 Market Street
Youngstown, Ohio 44512
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 8, 2013
[Cite as State v. Zarconi, 2013-Ohio-891.]
VUKOVICH, J.
{¶1} Defendant-Appellant Laura Zarconi appeals the decision of the
Youngstown Municipal Court finding her guilty of violating Youngstown City
Ordinance 505.19(b), a first-degree misdemeanor, and ordering her to surrender her
dog to the Mahoning County Dog Warden. Two issues are raised in this appeal. The
first issue is whether the trial court had the authority to order her to surrender her dog
to the Mahoning County Dog Warden. The second issues is whether her no contest
plea to Youngstown City Ordinance 505.19 was entered into knowingly, intelligently
and voluntarily when the trial court did not advise her of the potential penalties for the
crime.
{¶2} For the reasons expressed below, we find no merit with the second
issue because there is no requirement in Crim.R. 11 that for petty offenses the
defendant must be advised of the potential penalties before a plea can be entered
into knowingly, intelligently and voluntarily. However, as to the first issue, we find
merit with the argument presented by Zarconi. Youngstown Ordinance 505.19 does
not specifically authorize the trial court to order that the dog be impounded. For that
reason, we reverse the municipal court’s impoundment decision. That said, all other
penalties issued by the trial court remain in effect. Therefore, the municipal court’s
decision is reversed in part and affirmed in part.
Statement of the Case
{¶3} On September 15, 2011, Zarconi was charged by complaint with two
counts of allowing a vicious dog to leave her property without being securely leashed
or restrained in violation of Youngstown Ordinance 505.19(b), first-degree
misdemeanors, and two counts of failing to confine a dangerous dog in violation of
R.C. 955.22(D)(2)/(G)(3), first-degree misdemeanors. Zarconi initially pled not guilty
to all four counts in the complaint. However, after reaching a plea agreement with
the City, Zarconi changed her plea and pled no contest to one count of allowing a
vicious dog to leave her property without being securely leashed or restrained in
violation of Youngstown Ordinance 505.19(b), a first degree misdemeanor. The City,
in exchange, dismissed the other three counts that were alleged in the complaint.
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{¶4} Following a plea colloquy, the municipal court accepted her no contest
plea and found her guilty of violating Youngstown Ordinance 505.19(b). 10/31/11
J.E.
{¶5} At the sentencing hearing the victim appeared and indicated that the
dog caused damage to her door, which amounted to $50 worth of damages. 12/21/11
Tr. 7-8. The trial court then sentenced Zarconi to one year of probation and ordered
her to pay a $250 fine, $25 for attorney appointment fees, and $50 in restitution. The
court also ordered her to pay $100 for reimbursement for the community control
supervision, but stated that such requirement would be waived if the sanctions are
satisfied. In addition to these orders, the trial court additionally ordered Zarconi to
surrender the dog to the Mahoning County Dog Warden the next day. 12/21/11 J.E.;
12/21/11 Tr. 8-9.
{¶6} Zarconi timely appealed the decision and filed a motion with the
municipal court requesting a stay of execution of the sentence. 12/22/11 Motion and
Notice of Appeal. Specifically, in her stay of execution request, she asked that the
time period for delivering the dog to the Mahoning County Dog Warden be
suspended pending the appeal. The municipal court denied her request. Zarconi
then filed a motion for stay with this court. In response to her request, we ordered
her to immediately surrender the dog to the Mahoning County Dog Warden, but
indicated that the dog was not to be euthanized or adopted during the pendency of
appeal. Approximately two weeks later, Zarconi asked this court to modify the stay
order and asked us to allow the dog to return to her residence. She attached a letter
from the Mahoning County Dog Warden to the motion which stated that the dog was
susceptible to disease or depression while impounded and that the dog had not
demonstrated aggressive behavior while impounded. We granted her request on the
condition that she pay all boarding charges and keep the dog secured at all times
when it leaves the house. 02/22/12 J.E.
COURT’S AUTHORITY TO ORDER IMPOUNDMENT
First Assignment of Error
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{¶7} “The trial court erred when it ordered the Defendant-Appellant to forfeit
her dog to the Mahoning County Dog Warden because such an order is not expressly
authorized by Youngstown Municipal Code § 505.19, therefore such an order is
beyond the jurisdiction of the court.”
{¶8} Zarconi was convicted under Youngstown Ordinance 505.19(b). That
code section provides, in pertinent part:
(b) No person owning or harboring or having the care of a
vicious dog shall suffer or permit such dog to go beyond the premise of
such person unless such dog is securely leashed or otherwise securely
restrained.
(c) Definitions
(1) * * *
(2) “Vicious dog” as used in this section means:
A. Any dog with a propensity, tendency or
disposition to attack, to cause injury to or to otherwise endanger the
safety of human beings or other domestic animals; and
B. Any dog which attacks a human being or
another domestic animal without provocation.
***
(e) Whoever violates this section is guilty of one of the following:
(1) Misdemeanor One: If the dog causes injury to any
person;
(2) Misdemeanor Four: If the dog does not otherwise
cause injury to any persons.
(3) When any person is found guilty of a subsequent
offense such person is guilty of a misdemeanor of the third degree.
Youngstown Ordinance 505.19.
{¶9} As can be seen, this section indicates that a person found guilty of this
section is guilty of a first, third or fourth degree misdemeanor, depending on the
circumstances. Trial courts only have authority to impose sentences permitted by the
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applicable statutes. State v. Roach, 4th Dist. No. 11CA12, 2012-Ohio-1295, ¶ 5.
There is no provision in this ordinance that impoundment is an option when there is a
violation of the ordinance. Therefore, the clear language of Youngstown Ordinance
505.19 only authorized the trial court to issue penalties consistent with the degree of
misdemeanor that Zarconi was found guilty of, which in this case would be a first
degree misdemeanor.
{¶10} The city acknowledges that Youngstown Ordinance 505.19 does not
specifically authorize impoundment. However, it contends that the court’s authority to
order impoundment is found in Youngstown Ordinance 505.02. We disagree. The
first sentence of this ordinance specifically states, “A police officer or animal
warden may impound every animal or dog found in violation of Section 505.01,
505.19 or 505.191.” Youngstown Ordinance 505.02(a) (Emphasis added). Thus,
this section applies to the authority of a police officer or animal warden to impound an
animal, not a trial court’s authority to issue an impoundment order. We read this
section to mean that the police officer or animal warden may impound an animal
when the owner is cited for violating any of those three ordinances. Thus, we cannot
find that the wording of this ordinance authorizes the trial court to order the
impoundment of the animal as a penalty when the owner is found guilty of those
sections.
{¶11} Consequently, there is no statute or ordinance that provides
impoundment of the canine as a penalty for a first-degree misdemeanor.
{¶12} The fact that there is not a specific authorization for impoundment in
Youngstown Ordinance 505.19 means that the trial court was without authority to
order the impoundment of the canine. Had the City desired to make impoundment a
penalty for violating Youngstown Ordinance 505.19, language to that effect could
have been included in the ordinance or Youngstown Ordinance 505.02 as the City
did in its enactment of Ordinance 505.191.
{¶13} Youngstown Ordinance 505.191 is titled Prohibition of Pit Bull Terriers
and subsection (d), the penalty section, provides:
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Whoever violates subsection (b) hereof shall be guilty of a
misdemeanor of the first degree. In addition to any other penalty
available for a violation of subsection (b) hereof, the “Pit Bull Terrier”
that is the subject of the offense(s) shall be impounded and humanely
destroyed according to the provisions of Section 505.02 and any person
found guilty of violating this section shall pay all expenses, including
shelter, food, boarding, or veterinary expenses necessitated by the
impounding and humane destruction of the dog. Whoever violates any
provision of subsection (c) hereof shall be guilty of a minor
misdemeanor. For any subsequent violation of any provision of
subsection (c) hereof, the person shall be guilty of a misdemeanor of
the first degree. In addition to any other penalty available for a
subsequent violation of subsection (c) hereof, the “Pit Bull Terrier” that
is subject of the offense(s) shall be impounded and humanely
destroyed according to the provisions of Section 505.02 and any person
found guilty of violating this Section shall pay all expenses, including
shelter, food, boarding, or veterinary expenses necessitated by the
impounding and humane destruction of the dog.
Youngstown Ordinance 505.191(d).
{¶14} Youngstown Ordinance 505.191 demonstrates that the City knew how
to make impoundment and humane destruction a penalty for violating that section.
The City, however, in enacting Youngstown Ordinance 505.19 did not put language
in the statute that the trial court is authorized to order the impoundment of an animal
for a violation of that section.
{¶15} Admittedly, Youngstown Ordinance 505.191 does specifically reference
Youngstown Ordinance 505.02 when authorizing the trial court to order impoundment
and humane destruction. By referencing Youngstown Ordinance 505.02 in this
manner, Youngstown Ordinance 505.191 is specifically authorizing the trial court to
order impoundment and humane destruction when certain qualifications are met.
Youngstown Ordinance 505.19, however, does not make reference to Youngstown
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Ordinance 505.02 and does not explicitly authorize the trial court to order
impoundment.
{¶16} Therefore, considering the above Youngstown Ordinance 505.191
clearly demonstrates that the City knew how to make impoundment a penalty,
however, when enacting Youngstown Ordinance 505.19, the City did not take the
steps necessary for impoundment to be a penalty. Therefore, impoundment is not an
option as a penalty for a violation of Youngstown Ordinance 505.19.
{¶17} Consequently, for those reasons, this assignment of error has merit.
We find that the municipal court was without the authority to order the impoundment
of the canine in this situation. Therefore, the impoundment decision must be
reversed. However, all other penalties, i.e. probation, fines and costs, issued by the
municipal court remain in effect.
VOLUNTARINESS OF THE PLEA
Second Assignment of Error
{¶18} “The Defendant-Appellant’s no contest plea was not voluntarily entered
because at no point during the proceeding was she informed that the forfeiture of her
dog was a potential penalty.”
{¶19} To ensure that pleas are knowingly, intelligently, and voluntarily made,
Crim.R. 11 sets forth specific procedural requirements the trial court must follow,
depending upon the level of offense to which the defendant is pleading. State v.
Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. Crim.R. 11(C)(2)
applies to felony cases only. Id. at ¶ 27. Crim.R. 11(D) applies to cases involving
“serious offenses,” which are “any felony, and any misdemeanor for which the
penalty prescribed by law includes confinement for more than six months.” Crim.R.
2(C). Finally, Crim.R. 11(E) applies to misdemeanors involving “petty offenses,”
which are “a misdemeanor other than [a] serious offense.” Crim.R. 2(D).
{¶20} Zarconi entered a no contest plea to the vicious dog ordinance, a first-
degree misdemeanor, subject to a sentence of not more than 180 days, and thus, a
petty offense. Youngstown Ordinance 501.99(b)(1); Crim.R. 2(D). Therefore,
Crim.R. 11(E) controls.
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{¶21} The Ohio Supreme Court has clearly indicated that under Crim.R.
11(E), the trial court is only required to inform the defendant of the effect of the
specific plea being entered. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093,
877 N.E.2d 677, paragraph one of the syllabus. Therefore, in this case, the trial court
was only required to inform Zarconi of the effect of her no contest plea. Zarconi does
not argue in her appellate brief that the trial court’s advisement on the effect of her no
contest plea was inadequate. Her only argument is that her plea was not voluntary
because the trial court did not inform her of the potential penalties. Thus, her
argument fails on the basis that there is no requirement in Crim.R. 11(E) that she be
informed of the potential penalties. On that basis alone, this assignment of error
lacks merit.
{¶22} That said, in the interest of fairness, even if we review the trial court’s
advisement on the effect of her no contest plea, we still find that this assignment of
error lacks merit. Crim. R. 11(B)(2) states that a “plea of no contest is not an
admission of defendant’s guilt, but is an admission of the truth of the facts alleged in
the indictment, information, or complaint, and the plea or admission shall not be used
against the defendant in any subsequent civil or criminal proceeding.” Crim.R. 11(B).
{¶23} Before accepting her no contest plea, the trial court addressed Zarconi
as follows:
THE COURT: I have here Case No. 11 CRB 1904. Per Rule 11
negotiations and agreement the Defendant is withdrawing her previous
plea of not guilty to the charge of, under the vicious dog ordinance,
which is a misdemeanor of the 1st degree, which has potential penalty
of a fine up to $1,000, potential jail sentence up to six months in jail.
Laura Zarconi, I see here you intend to change your plea from
not guilty to no contest. I am to inform you that a no contest plea
stipulates that the Court may make a finding of guilty or not guilty based
on the facts presented or a stipulation and that the probabilities are that
you will be found guilty. Given that information and understanding you
are changing your plea to?
-8-
MISS ZARCONI: No contest.
THE COURT: Very well. Further, a no contest plea waives
certain legal rights, your right to a trial, a jury trial, to confront your
accuser, ask questions and cross examine any and all witnesses the
State would bring forward to testify against you at a trial, your right to
subpoena witnesses who would come and testify on your behalf,
remain silent, raise any and all defenses you may have, testify at your
own trial among other Constitutional and statutory rights. Do you
understand that you would be waiving those rights?
MISS ZARCONI: Yes, I do.
10/31/11 Tr. 3.
{¶24} In this plea colloquy, the trial court failed to expressly notify Zarconi that
a no contest plea means an admission of the truth of the facts alleged in the
complaint. Further, the trial court did not inform her that the plea or admission shall
not be used against her in any subsequent civil or criminal proceeding. See State v.
Hough, 7th Dist. No. 10MA178, 2011-Ohio-6425, ¶ 16-27 (trial court engaged in very
similar plea colloquy, which did not inform defendant of the effect of the no contest
plea). Moreover this information was not contained in the written plea agreement.
{¶25} That said, in order to vacate a plea for failure to inform the defendant of
the plea’s effect, there must be prejudice, which means the plea otherwise would not
have been entered. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at
¶ 52. See also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 15. Here, Zarconi has not alleged that any prejudice resulted from the trial
court’s failure to explain the effect of her no contest plea. Likewise, the record does
not indicate that the facts of this case were in dispute or that Zarconi would not have
pled no contest had the court explained that “no contest” meant admitting to the truth
of the facts in the complaint rather than admitting guilt. Thus, Zarconi was not
prejudiced and the trial court’s failure to comply with Crim.R. 11(E) does not require
reversal. See Hough at ¶ 28; State v. McGilton, 7th Dist. No. 07BE9, 2008-Ohio-
1185, ¶ 28.
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{¶26} Therefore, for all the above stated reasons, this assignment of error
lacks merit.
Conclusion
{¶27} In conclusion, on the basis of the first assignment of error, the municipal
court’s impoundment decision is reversed in part and affirmed in part. Youngstown
Ordinance 505.19 does not specifically authorize the trial court to order that the dog
to be impounded. That said, all other penalties issued by the trial court remain in
effect.
Donofrio, J., concurs.
DeGenaro, P.J., concurs in part; dissents in part; see concurring in part; dissenting in
part Opinion.
DeGenaro, P.J., concurring in part and dissenting in part.
While I concur with the majority’s resolution of the second assigned error
regarding Zarconi’s plea, I dissent from the resolution of the first assigned error. The
trial court had authority to order that Zarconi surrender her dog due to a judicially
determined violation of the vicious dog ordinance. Accordingly, the judgment of the
trial court should be affirmed in its entirety.
The majority and I differ on how to interpret what the Fourth District in Roach
meant by the provision “applicable statutes” when reviewing a trial court’s sentencing
authority. Consistent with the historically broad discretion vested with trial courts in
this country and Ohio for sentencing purposes, Youngstown Ordinance 505.02(a) is
an applicable statute and thus its impoundment provision a penalty within the trial
court’s authority to order here. Zarconi pled no contest to permitting a vicious dog to
leave her premise unrestrained in violation of Youngstown Ordinance 505.19; thus
she admitted those facts, and the trial court convicted her accordingly. Reading the
applicable ordinances in pari materia, the trial court was within its discretion to order
impoundment. Moreover, a plain reading of Youngstown Ordinance 505.02
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expressly provides that the owner of a vicious dog may not redeem the subject
animal.
Youngstown Ordinance 505.02(a) provides in pertinent part:
A police officer or animal warden may impound every animal or dog
found in violation of Section 505.01, 505.19 or 505.191. * * * Any dog
seized and impounded, other than a vicious dog as defined in Section
505.19 or a "non-exempt Pit Bull Terrier" as defined in Section 505.191,
may be redeemed by its owner, keeper or harborer at any time prior to
the applicable redemption period upon payment of all lawful costs
assessed against the animal and upon providing the dog with a valid
registration tag if it has none.
Youngstown Ordinance 505.191(b) provides: “No person shall own, keep,
harbor or possess a "Pit Bull Terrier" within the municipal limits of the City of
Youngstown.” Ownership of a Pit Bull, whether or not a particular dog’s
temperament is that of a ‘vicious dog’ as defined in Youngstown Ordinance
505.19(c)(2), is a per se violation of the ordinance. Thus, Youngstown Ordinance
505.191 is a strict liability ordinance. Conversely, Youngstown Ordinance 505.19 is
not; for all other breeds it requires proof that a particular animal has either the
propensity to attack a person/another domestic animal, or in fact has attacked a
person/another domestic animal without provocation, as defined in sub-part (c)(2),
before an owner is found to have violated Youngstown Ordinance 505.19.
The circumstances under which a dog is usually impounded involve the police
or animal warden either seeing or receiving a call of a dog running loose. Thus,
Youngstown Ordinance 505.02 vests a police officer or animal warden with the
discretion to impound a particular dog found running loose, and then provides for
notice to the owner where the dogl is wearing a registration tag and a process for the
owner to redeem the dog. Obviously this fact pattern involves impounding a dog
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prior to identifying the owner and/or a judicial finding that an owner has, in fact, let a
vicious dog run loose in violation of Youngstown Ordinance 505.19. It is appropriate
under these circumstances, before any legal proceedings are commenced against
the owner, that the police and animal warden are given the discretion concerning
impoundment of a particular dog.
It follows that the automatic nature of the penalty is also different based upon
the breed of the dog. Youngstown Ordinance 505.191, the per se Pit Bull prohibition,
in sub-part (d) specifically provides that the subject dog of an offense under this
ordinance "shall be impounded and humanely destroyed according to the provisions
of Section 505.02 * * *." Conversely, Youngstown Ordinance 505.02 does not
impose an automatic destruction penalty for alleged violations of Youngstown
Ordinance 505.19 involving other breeds of dogs. Where the owner has been
charged with violating this ordinance, first a two-fold judicial determination must be
made; specifically, that the subject dog’s temperament is vicious as defined by the
ordinance, and that the owner failed to keep the dog on their property or otherwise
restrained. Only then does the penalty of 505.02 become applicable, namely barring
the owner from redeeming the dog from impoundment.
The City of Youngstown has made two valid public policy determinations to
ensure public safety. First, that all Pit Bulls are vicious dogs per se as that term is
defined in the companion ordinance, irrespective of a particular Pit Bull’s
temperament. Second, as to all other dog breeds, whether or not a particular dog is a
vicious dog must be judicial determined. This affords the owner of an alleged vicious
dog notice and due process to defend an alleged violation of the ordinance. This
ordinance scheme balances the City’s interest in maintaining public safety with
preserving a dog owner’s due process rights. .
To further ensure public safety, the City gave police and the animal warden
the discretion to immediately impound a dog running loose, based upon the mere
presumption that the dog was vicious and the owner in violation of the ordinance. To
give the ordinance meaningful effect, it must be construed to give trial judges the
same discretion to order an owner convicted of violating the ordinance to turn over a
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dog judicially determined to be vicious. It would undercut the purpose and effect of
the ordinances to give a trial court less authority to impose a penalty on an owner
than that given the police or animal warden, especially considering that the police
and animal warden can exercise that authority with much less due process afforded
to the owner.
During the sentencing hearing defense counsel informed the court that the
incident occurred because the dog was chained on that day but had broken loose;
moreover, he did not believe the dog had a prior history of violence. Defense
counsel further stated that the dog caused damage to a neighbor’s screen door.
Katherine Peoples, the owner of the damaged door, also gave a statement: “[S]ince
that incident happened the dog has still been outside. [Zarconi] does keep the dog
on a leash but the other family members don’t. And we just want her to keep control
of their dog because this dog is like this big, literally. And there is a lot of kids and
they are not being cautious about their dog * * *.”
Youngstown Ordinance 505.02 permits impounding a dog without prior notice
to the owner where the dog has been found roaming free, let alone before any
judicial determination that the owner has violated the ordinance. Moreover,
Youngstown Ordinance 505.02 prohibits an owner from redeeming a dog found to be
a vicious dog under Youngstown Ordinance 505.19. Zarconi’s no contest plea is an
admission to the facts supporting a violation of the vicious dog ordinance, and the
trial court convicted her of that offense. As a matter of law, she was precluded from
redeeming her dog. Because the trial court found Zarconi guilty of the vicious dog
ordinance, her dog was subject to impoundment, and the trial court had the authority
to order that she surrender her dog to the dog warden. Accordingly, the judgment of
the trial court should be affirmed.