State v. McColor

2013 Ohio 1279

• Court: Ohio Court of Appeals
• Decided: March 27, 2013
• Docket: 11 MA 64
• Status: Published

Opinion

[Cite as State v. McColor, 2013-Ohio-1279.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 11 MA 64 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) JAMES McCOLOR ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 10 CRB 2507

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Dana Lantz Youngstown City Prosecutor Atty. Bassil Ally Senior Assistant Law Director 26 S. Phelps Street Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones 42 N. Phelps Street Youngstown, Ohio 44503-1130

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: March 27, 2013 [Cite as State v. McColor, 2013-Ohio-1279.] WAITE, J.

{¶1} Appellant James McColor appeals his sentence imposed after he

pleaded guilty to six violations of various Youngstown Municipal dog ordinances

following an incident where his pit bulls chased a mother and her daughter. He was

sentenced to 180 days in jail. Appellant argues that he was sentenced primarily

because he did not properly transfer ownership of the dogs after he had been cited

for the violations in the instant case. Appellant asserts that he was never charged

with a violation of the dog transfer ordinance, and that the record does not indicate

that he violated the dog transfer ordinance. He contends that the trial court should

not have relied on a false accusation about the improper transfer of ownership of his

dogs as the basis for sentencing. Appellant also argues that the sentence should be

reversed because the trial judge did not consider any of the misdemeanor sentencing

factors found in R.C. 2929.22. Appellant is mistaken and the trial court is affirmed.

{¶2} Appellant pleaded guilty to unlawful possession of a pit bull terrier,

failure to confine a vicious dog, and failure to maintain insurance for a vicious dog,

and he was sentenced on these charges. The record contains many factors that the

trial court relied on in reaching its sentence, including Appellant's extensive prior

criminal record, the statement of the victim, the recommendation of the probation

department, statements made by Appellant and by the dog warden, and several

other documents in the presentence investigation report. Further, the sentencing

judge may rely on uncharged conduct as a factor at sentencing, and it was

permissible for the judge to consider whether Appellant violated the dog transfer

ordinance even though he was not charged with violating this ordinance. Although -2-

there is no mention of sentencing factors in the court's judgment entry, it is clear from

the sentencing hearing transcript that the judge considered a variety of sentencing

factors from R.C. 2929.22 prior to imposing sentence. Hence, the trial court did not

err in this matter.

History of the Case

{¶3} On December 17, 2010, Appellant was charged with four counts of

violating the City of Youngstown ordinances, and eight counts of violating state dog

statutes. The charges consisted of four counts of unlawful possession of a pit bull

terrier (Municipal Ord. 505.191(B)), four counts of failing to confine a vicious dog

(former R.C. 955.22(D)(1)), and four counts of failing to maintain insurance for a

vicious dog (former R.C. 955.22(E)). All of the charges were first degree

misdemeanors, each punishable by up to six months in jail and a $1,000 fine.

{¶4} On February 28, 2011, Appellant pleaded no contest to four counts of

unlawful possession of a pit bull, one count of failing to confine a vicious dog, and

one count of failing to maintain insurance. Appellant was represented by counsel,

and a change of plea hearing took place on February 28, 2011. The remaining six

counts were dismissed pursuant to Appellant's Crim.R. 11 plea agreement.

Appellant was advised of the maximum penalties he faced by entering his plea. A

sentencing hearing was held on April 12, 2011. Appellant and his attorney spoke in

mitigation of sentence. The charging officer testified about the circumstances of the

charges and his prior interactions with Appellant and his dogs. At the end of hearing,

the court sentenced Appellant to two consecutive jail terms of 180 days each on two

of the counts of illegal possession of pit bulls. The court also imposed community -3-

control sanctions in the form of intensive probation supervision for five years. R.C.

2929.27(A)(5). No jail time was imposed on the remaining charges. Finally, the court

ordered fines, court costs, repayment of the costs of community control sanctions,

and restitution to the victims. This appeal followed.

ASSIGNMENT OF ERROR NO. 1

The Trial Court Imposed an Unconstitutional Sentence, Based on

Perceptions of Mr. McColor’s Alleged Criminal Conduct that were

Fundamentally Untrue as Matters of Either Fact or of Law.

{¶5} The essence of this assignment of error is that Appellant believes he

did not receive due process at sentencing and raises three reasons: (1) the court

based its sentence, in part, on the assumption that Appellant had transferred

ownership of the dogs without first obtaining a transfer of dangerous dog certificate;

(2) the court relied on hyperbole at sentencing when it stated that pit bulls “eat little

children,” (Tr., p. 13.); and (3) the court assumed that the crime in this case was a

violation of a dog bite statute, when the crimes involved possessing pit bulls, failing to

confine a pit bull, and failure to maintain insurance on a pit bull.

{¶6} Appellant contends that a sentence that does not conform to basic due

process is invalid and must be reversed. Appellant relies on the case of Townsend v.

Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), in which a sentence was

reversed because it was based on assumptions about the defendant's criminal record

that were materially untrue. The judge assumed that the defendant had previously

been convicted of receiving a stolen saxophone, even though that charge had been -4-

dismissed. An additional problem in Townsend was that the sentencing judge made

a facetious comment about the saxophone (“What did you want with a saxophone?

Didn't hope to play in the prison band then, did you?” Id. at 740.). The key factor in

Townsend was that the defendant was without counsel during the entire criminal

proceeding. The prosecutor and the court took advantage of his lack of counsel by

failing to explain the law and by materially misrepresenting facts. Id. at 739-741.

Thus, Townsend sets standards of due process for uncounseled defendants.

{¶7} The facts of this case are not comparable to those in Townsend. First,

Appellant was represented by counsel. Appellant has no basis for reliance on a case

defining the limits of due process for uncounseled defendants when he had counsel

available to protect his rights at sentencing.

{¶8} Second, Appellant acknowledges that he did not obtain a transfer of

dangerous dog certificate. Appellant cannot base his argument on the trial court's

alleged misrepresentation of this fact when Appellant himself acknowledges the truth

of this fact in question. While Appellant contends that he did not need such a

certificate, that involves his legal conclusion, not a factual dispute.

{¶9} Third, the fact that Appellant was not charged with failure to obtain a

transfer certificate is not a basis for claiming a due process error. Uncharged crimes

are relevant to the defendant's social history and may be considered at sentencing.

State v. Johnson, 7th Dist. No. 10 MA 32, 2010-Ohio-6387, ¶26.

{¶10} Fourth, the court's use of hyperbole in stating that pit bulls “eat children”

was not meant to be facetious, but was merely an attempt to dramatize the very

significant danger posed when vicious dogs are not properly confined. The judge -5-

could just as easily have said that pit bulls kill, maim, or maul little children. We

would not need to look very far for examples of this in recent years and this would not

have been hyperbole. In the recent Ohio Supreme Court case of Toledo v. Tellings,

the court cited evidence that:

[P]it bulls, compared to other breeds, cause a disproportionate amount

of danger to people. The chief dog warden of Lucas County testified

that (1) when pit bulls attack, they are more likely to inflict severe

damage to their victim than other breeds of dogs, (2) pit bulls have

killed more Ohioans than any other breed of dog, (3) Toledo police

officers fire their weapons in the line of duty at pit bulls more often than

they fire weapons at people and all other breeds of dogs combined and

(4) pit bulls are frequently shot during drug raids because pit bulls are

encountered more frequently in drug raids than any other dog breed.

The trial court also found that pit bulls are “found largely in urban

settings where there are crowded living conditions and a large number

of children present,” which increases the risk of injury caused by pit

bulls.

Toledo v. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724, 871 N.E.2d 1152, ¶26.

{¶11} The victims in the instant case, a mother and her daughter, were

chased by Appellant's dogs, and the mother was injured when she fell while running

away from the dogs. Although the victims were not bitten, the injuries occurred as

part of a natural reaction to the fear of being bitten or mauled by a pit bull. It is -6-

beyond dispute that many types of dogs, particularly pit bulls, can and do attack

people, and sometimes these attacks are fatal. There was nothing inappropriate in

the trial court commenting on this danger even though, as is illustrated by this case,

the danger may be more related to the dog owners than the dogs themselves. Thus,

the trial court's comment in this case is nothing like the facetious statement about the

saxophone made by the trial judge in the Townsend case.

{¶12} Because Appellant's entire argument is made by analogy to Townsend,

and because Townsend is not applicable, Appellant's first assignment of error is

overruled.

ASSIGNMENT OF ERROR NO. 2

The Sentence is Contrary to Law, R.C. Chapt. 2929, Insofar as Nothing

of Record Evinces a Need for a Term of Confinement.

{¶13} Appellant maintains that the trial court should have sentenced him to

community control rather than jail, and that if the court had considered any of the

misdemeanor sentencing factors in R.C. 2929.22, community control would have

been found to be appropriate. The record of the sentencing hearing shows that the

court considered many of the factors found in R.C. 2929.22, and Appellant's

argument is without merit.

{¶14} 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 (1st Dist.). Abuse of discretion means more than a mere error -7-

of judgment; it implies that the trial court's decision was unreasonable, arbitrary, or

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

{¶15} A trial court must consider the criteria of R.C. 2929.22 and the

principles of R.C. 2929.21 before imposing a misdemeanor sentence. State v.

Crable, 7th Dist. No. 04 BE 17, 2004-Ohio-6812, ¶24. R.C. 2929.22(A) gives the trial

court discretion in determining the most effective way to achieve the purposes and

principles of sentencing. R.C. 2929.22(B) sets forth specific factors for the trial court

to consider before imposing a sentence, including the nature and circumstances of

the offense, the offender's history of criminal conduct, the victim's circumstances, and

the likelihood that the offender will commit future crimes.

{¶16} The trial court is not required to state on the record its consideration of

sentencing factors when determining a misdemeanor sentence. Id. When a

misdemeanor sentence is within the statutory range, “a reviewing court will presume

that the trial judge followed the standards in R.C. 2929.22, absent a showing to the

contrary.” State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, ¶21. A silent

record gives rise to the presumption that the trial court considered the proper

sentencing factors and that its findings were correct. State v. Best, 7th Dist. No. 08

MA 260, 2009-Ohio-6806, ¶14; State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-

4643, 918 N.E.2d 218, ¶48 (7th Dist.).

{¶17} The sentence in the instant case is well within the sentencing ranges for

the combined potential sentence for six first degree misdemeanors, each of which

carried a possible 180-day jail term and $1,000 fine. Appellant was sentenced to two

consecutive jail terms of 180 days each, for a total of 360 days in jail, along with -8-

$1,200 in fines. Thus, the question that remains is whether the court abused its

discretion in imposing the sentence.

{¶18} R.C. 2929.22 states, in pertinent part:

(B)(1) In determining the appropriate sentence for a misdemeanor, the

court shall consider all of the following factors:

(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; -9-

(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.

(2) In determining the appropriate sentence for a misdemeanor, in

addition to complying with division (B)(1) of this section, the court may

consider any other factors that are relevant to achieving the purposes

and principles of sentencing set forth in section 2929.21 of the Revised

Code.

(C) Before imposing a jail term as a sentence for a misdemeanor, a

court shall consider the appropriateness of imposing a community

control sanction or a combination of community control sanctions under

sections 2929.25, 2929.26, 2929.27, and 2929.28 of the Revised Code.

A court may impose the longest jail term authorized under section

2929.24 of the Revised Code only upon offenders who commit the

worst forms of the offense or upon offenders whose conduct and

response to prior sanctions for prior offenses demonstrate that the

imposition of the longest jail term is necessary to deter the offender

from committing a future crime.

(D)(1) A sentencing court shall consider any relevant oral or written

statement made by the victim, the defendant, the defense attorney, or

the prosecuting authority regarding sentencing for a misdemeanor. -10-

This division does not create any rights to notice other than those rights

authorized by Chapter 2930. of the Revised Code.

{¶19} Although the trial court's sentencing entry does not state which specific

factors were relied on in determining the sentence, the hearing transcript reflects a

consideration of many of the enumerated factors. The court considered the nature of

the offenses as all being related to Appellant's ownership and control over pit bull

terriers. The court considered Appellant's criminal history as contained in the

presentence investigation report (PSI). Appellant's attorney acknowledged the PSI

was accurate. (Tr., p. 8.) The court considered the harm to the victims in this case,

and the harm posed to future potential victims.

{¶20} More specifically, the court considered the nature of the offenses and

Appellant's prior violations of the dog statutes, particularly as related by the testimony

of Officer Dave Nelson. (Tr., pp. 9-12.) He testified about what occurred when he

arrived in response to a call about a dog attack:

MR. NELSON: * * * on December 16th I was contacted by the

Youngstown Police Department in reference to a woman that was being

attacked on the south side by a pit bull. As I arrived, she was up

against her vehicle. The dog was at the curb coming after her. I pulled

my service weapon. I tried to get the dog back into the yard. As the

dog went to the corner of the house, I pulled in the driveway. At that

time three young men pulled up in vehicles and said that I know who -11-

lived there and said get off the property. I had the dog in front of me at

gunpoint. I had three guys behind me. I had to call for backup.

(Tr., p. 9.)

{¶21} Officer Nelson also testified about his prior encounters with Appellant

and his pit bulls:

MR. NELSON: Okay. We have been dealing with Mr. McColor for

months in different locations. He has had a house at 178 East

Auburndale that he has had pit bulls residing there. He has had 2371

Mount Vernon pit bulls there, [sic] address on Champlain, as well as an

address on Westin Avenue. He was told back then, even months ago

he could not get rid of the dogs. He has to do a vicious dog transfer,

which requires us to have full knowledge. You just can't give it to the

guy down the street. There [are] laws pertaining to that.

***

THE COURT: Prior to this event in December did you have any

involvement with him?

MR. NELSON: Yes. I had several issues on Westin when he lived

there on confinement and restraint of the dogs down there. And I

advised him from there it is a matter of $100,000 insurance per dog.

They have to be confined. We talked about this. I gave him all my

spew about how the law is on the confinement of these animals. He -12-

removed the dogs from there and that's when I believe they were sent

to different locations.

THE COURT: Well, Mr. McColor, I get the impression you are going to

do what you want to do when you want to do it, how you want to do it.

MR. McCOLOR: No, Your Honor. I never was told that I had to come

to him and get them release forms for the dogs. I never was told that. I

said everything would have been avoided.

THE COURT: Why would he lie to you?

MR. McCOLOR: I didn't say he lied to me or none of that. I just said I

didn't hear that from him.

(Tr., pp. 9-12.)

{¶22} The court engaged in an extensive colloquy with Appellant about his

mitigation testimony. During this colloquy, the court considered Appellant's lack of

remorse, his pattern of disobeying the vicious dog statutes, and his propensity to

continue disobeying the law with respect to his dogs. The court was particularly

incensed by the fact that Appellant blamed Officer Nelson and the county dog

warden for his problems, but would not acknowledge his own responsibility for the

crimes. (Tr., p. 16.) Although the word “remorse” is not expressly used in R.C.

2929.22, the references in the statute to the offender's “character and condition,” to

the offender's likelihood of committing future crimes, and to the discretion the trial

court has to consider “any other factors that are relevant,” signify that remorse, or the -13-

lack of remorse, are legitimate factors to be considered at sentencing. See, e.g.,

Akron v. Lewis, 179 Ohio App.3d. 649, 2008-Ohio-6256, 903 N.E.2d 352, ¶45 (9th

Dist.) (in another case involving violations of dog ordinances); State v. Samuels, 8th

Dist. No. 81334, 2003-Ohio-2865, ¶45. It is evident from the record that the trial

court did actually consider many of the factors listed in R.C. 2929.22, and therefore,

Appellant's argument is not persuasive.

{¶23} Appellant contends that the court assumed it was punishing him for

violating a dog-bite statute, but there is nothing in the record supporting this. In point

of fact, the victims were not bitten and there is no discussion about his dogs biting the

victims. The general discussion about pit bulls biting people arose from a concern

that Appellant had no appreciation of the public danger created when his dogs were

allowed to run loose, nor did he show remorse for the legitimate fear the victims had

when they were attacked by Appellant’s dogs. There is no indication that the trial

judge was in any way confused about the nature of the crimes and their related

penalties.

{¶24} Appellant contends that the trial court did not consider imposing

community control sanctions, but the record indicates that one type of community

control sanction was incorporated into the sentence: intensive probation supervision.

See R.C. 2929.27(A)(5). Since the court actually imposed a type of community

control, the record certainly does not support the conclusion that the court failed to

consider the factors relating to community control sanctions.

{¶25} As there is no indication in the record that any abuse of discretion

occurred in sentencing, Appellant's second assignment of error is overruled. -14-

Conclusion

{¶26} Appellant alleges error in the sentence imposed after he pleaded no

contest to six charges relating to his ownership of pit bulls. Appellant contends that

the sentence violates his due process rights under the holding of Townsend, supra.

The Townsend case, which dealt with untruthful and facetious comments made at

sentencing by a judge and the prosecutor regarding a defendant who did not have

counsel, is inapposite to the facts of the instant appeal. Appellant had counsel, and

he has not pointed to any untrue or facetious comments at sentencing. The trial

judge made a statement about pit bulls that may be described as hyperbole, but the

statement was not facetious and was intended to highlight the danger posed by

owners who do not control their vicious dogs. Appellant also argues that if the court

had considered the proper sentencing factors he would have imposed a less severe

sentence that included community control. The record reflects that the court did

consider many of the factors contained in R.C. 2929.22, and that the judge actually

imposed a type of community control, so the court necessarily considered whether or

not to impose community control. Appellant's assignments of error are without merit

and the judgment of the trial court is affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.