Mentor v. Spehar

2018 Ohio 3441

Opinion

[Cite as Mentor v. Spehar, 2018-Ohio-3441.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

CITY OF MENTOR, : OPINION

Plaintiff-Appellee, : CASE NO. 2017-L-103 - vs - :

MARTIN E. SPEHAR, :

Defendant-Appellant. :

Criminal Appeal from the Mentor Municipal Court, Case No. 2017 CRB 01050.

Judgment: Affirmed.

Lisa Klammer, Mentor City Prosecutor, 8500 Civic Center Boulevard, Mentor, OH 44060 (For Plaintiff-Appellant).

Martin E. Spehar, Pro Se, 7495 Hopkins Road, Mentor, OH 44060 (Defendant- Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} Martin E. Spehar appeals from the judgment of the Mentor Municipal Court,

finding him guilty of violating Mentor Codified Ordinance 505.13, which makes it a

misdemeanor to keep farm animals in Mentor on properties less than two acres in size.

Mr. Spehar kept chickens at his property, which is evidently only .52 acres. He alleges

violations of the Ohio Constitution, various Ohio statutes, and the Rules of Criminal

Procedure. Finding no reversible error, we affirm. {¶2} June 20, the Mentor police filed a misdemeanor complaint against Mr.

Spehar. July 10, 2017, he moved to dismiss. The matter came on for bench trial July 17,

2017. The trial court denied the motion to dismiss, and found Mr. Spehar guilty. He was

assessed a $150 fine, and court costs. He timely noticed this appeal, assigning four

errors.

{¶3} Initially, we note that Mr. Spehar has filed a CD of the proceedings in the

trial court, but no transcript. Pursuant to App.R. 9(B)(1), it was his duty to file a transcript

conforming to the requirements of App.R. 9(B)(6). Since he failed to do so, our review of

this case is limited to matters of law.

{¶4} The first assignment of error reads: “The trial court erred by denying the

motion to dismiss, and assuming that subject matter jurisdiction existed and that a

criminal court is the proper venue for a municipal ordinance regulating farm animals and

that a monetary fine, outside the remedy sanctioned in R.C. 715.23, is a legitimate

punishment with regard to the 14th Amendment.”

{¶5} Mr. Spehar first argues that M.C.O. 505.13 violates R.C. 715.13,

“Impounding animals.” That division provides:

{¶6} “Except as otherwise provided in section 955.221 of the Revised Code

regarding dogs, a municipal corporation may regulate, restrain, or prohibit the running at

large, within the municipal corporation, of cattle, horses, swine, sheep, goats, geese,

chickens, or other fowl or animals, impound and hold the fowl or animals, and, on notice

to the owners, authorize the sale of the fowl or animals for the penalty imposed by any

ordinance, and the cost and expenses of the proceedings.”

2 {¶7} Mr. Spehar argues that a municipality is limited to the remedies provided by

the division: seizure and sale of the animals.

{¶8} We respectfully disagree. Mr. Spehar ignores R.C. 715.67, which provides:

“Any municipal corporation may make the violation of any of its ordinances a

misdemeanor, and provide for the punishment thereof by fine or imprisonment, or both.

The fine, imposed under authority of this section, shall not exceed five hundred dollars

and imprisonment shall not exceed six months.” Thus, M.C.O. 505.13 is a perfectly valid

exercise of Mentor’s power to make ordinance violations misdemeanors.

{¶9} Under this assignment of error, Mr. Spehar also argues the trial court did

not spend sufficient time reviewing his motion to dismiss. He alleges the trial court spent

about 35 minutes reading the motion.

{¶10} First, this brings up a factual matter, which we will not reach due to the lack

of a transcript. Second, as the state points out, Crim.R. 12(F), “Ruling on Motion,”

provides: “The court may adjudicate a motion based upon briefs, affidavits, the proffer of

testimony and exhibits, a hearing, or other appropriate means.”

{¶11} The first assignment of error lacks merit.

{¶12} The second assignment of error reads: “The trial court erred in its

interpretation of R.C. 2901.02(G)(2), 2901.03(A), and 2901.04(A) by strictly construing an

act against the accused and liberally in favor of the state.” Under this assignment of error,

Mr. Spehar again argues that M.C.O. 505.13 violates R.C. 715.23, which argument we

rejected under his first assignment of error.

{¶13} While he does not argue the applicability of any of the statutory sections

mentioned in the assignment of error to his case, we review them briefly.

3 {¶14} R.C. 2901.02(G)(2) provides, in relevant part:

{¶15} “Any offense not specifically classified is a minor misdemeanor if the only

penalty that may be imposed is one of the following: * * * (2) For an offense committed on

or after January 1, 2004, a fine not exceeding one hundred fifty dollars, community service

under division (D) of section 2929.27 of the Revised Code, or a financial sanction other

than a fine under section 2929.28 of the Revised Code.”

{¶16} We fail to see any relevance of the statute to this case. M.C.O. 505.13(d)

defines a first time offense as a minor misdemeanor; a second offense within 12 months

of the first as a fourth degree misdemeanor; and three or more offenses within 12 months

as a third degree misdemeanor.

{¶17} R.C. 2901.03(A) provides: “No conduct constitutes a criminal offense

against the state unless it is defined as an offense in the Revised Code.” This section

simply sets forth the abolition of common law crimes embodied in the Ohio Constitution.

Violation of M.C.O. 505.13 is not a common law crime.

{¶18} R.C. 2901.04(A) provides: “(A) Except as otherwise provided in division (C)

or (D) of this section, sections of the Revised Code defining offenses or penalties shall

be strictly construed against the state, and liberally construed in favor of the accused.”

Mr. Spehar does not dispute that he violated M.C.O 505.13. We fail to see how the trial

court did not construe the ordinance strictly against Mentor, and liberally in his favor.

{¶19} The second assignment of error lacks merit.

{¶20} The third assignment of error reads: “The trial court erred in the assessment

of fines and costs after the conviction of the Appellant.” Mr. Spehar argues that R.C.

715.23 does not allow a municipality to assess fines for keeping farm animals. We have

4 previously explained that this is incorrect. He further objects to being charged costs in

relationship to his filings under Crim.R. 16.

{¶21} As Mentor points out, R.C. 1901.26(A)(1)(a) provides, in pertinent part: “The

municipal court * * * by rule, shall establish a schedule of fees and costs to be taxed in

any civil or criminal action or proceeding.” The trial court simply followed its published

fee schedule, which was certainly available to Mr. Spehar.

{¶22} The third assignment of error lacks merit.

{¶23} The fourth assignment reads: “The trial court erred by not adhering to the

Criminal Rules of Procedure.” Mr. Spehar points to Crim.R. 1(C)(6), which provides that

the criminal rules do not apply to forfeiture cases, and argues that under R.C. 715.23,

Mentor’s only remedy was to seek forfeiture and sale of his chickens. We have previously

explained that this is untrue.

{¶24} This assignment of error lacks merit.

{¶25} The assignments of error lacking merit, the judgment of the Mentor

Municipal Court is affirmed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.