State v. Thames

2022 Ohio 1715

• Court: Ohio Court of Appeals
• Decided: May 23, 2022
• Docket: 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099
• Status: Published

Opinion

[Cite as State v. Thames, 2022-Ohio-1715.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NOS. 2021-L-094 2021-L-095 Plaintiff-Appellee, 2021-L-096 2021-L-097 -v- 2021-L-098 2021-L-099 PATRICIA THAMES,

Defendant-Appellant. Criminal Appeals from the Willoughby Municipal Court

Trial Court Nos. 2020 CRB 00568 A 2020 CRB 00568 B 2020 CRB 00568 C 2020 CRB 00568 D 2020 CRB 00568 E 2020 CRB 00568 F

OPINION

Decided: May 23, 2022 Judgment: Modified and affirmed as modified

J. Jeffrey Holland, Holland & Muirden, 1343 Sharon-Copley Road, P.O. Box 345, Sharon Center, OH 44274 (For Plaintiff-Appellee).

Michela J. Huth, P.O. Box 17, Bolivar, OH 44612 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Patricia Thames, appeals following her conviction of cruelty

against companion animals in the Willoughby Municipal Court. {¶2} Appellant was charged with six counts of cruelty against companion animals

in violation of R.C. 959.131(D)(1), all misdemeanors. A jury found her guilty on all counts

and she was sentenced to probation.

{¶3} Appellant raises four assignments of error: (1) that she was not given written

notice of random probationary searches; (2) that the trial court was required to hold a

separate hearing on restitution; (3) that when ordering reimbursement, the trial court did

not fully consider whether she has the ability to pay; and (4) that the permanent bar to

owning companion animals conflicted with the five-year probation period.

{¶4} After a review of the record and applicable law, we find Appellant’s

assignments of error to be without merit. The trial court did provide written notice

regarding terms of random probationary searches because the term was clearly written

on the document titled “Conditions of Probation”. The trial court did not err by determining

Appellant’s ability to pay reimbursement without holding a separate hearing because the

court is not statutorily required to do so. Further, the record shows that the trial court

considered all relevant circumstances and Appellant’s argument that she was unable to

pay reimbursement. Finally, the trial court did not err by exceeding the scope of

Appellant’s five-year probation by permanently barring Appellant from owning companion

animals because a permanent bar in such circumstances is an expressly authorized

penalty for the crimes committed. The judgment of the Willoughby Municipal Court is

affirmed.

{¶5} On February 12, 2020, the Lake County Humane Society reported to

Appellant’s home after receiving a complaint that there was possible neglect of

companion animals. After the Lake County Humane Society determined that the animals

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 were neglected, Appellant was charged with six counts of cruelty against companion

animals in violation of R.C. 959.131(D)(1). The court found Appellant to be indigent and

appointed a public defender to represent her.

{¶6} On June 25, 2020, Appellant terminated her appointed counsel and retained

private counsel.

{¶7} A jury trial was held on June 14 and 15, 2021. The jury found Appellant

guilty on all six counts.

{¶8} On August 5, 2021, the court held a sentencing hearing and sentenced

Appellant to five years of probation. The terms of probation were that Appellant: (1) shall

obtain a mental health assessment, treatment, and follow aftercare recommendations; (2)

shall not own, care for, possess, or reside with any animal other than her cat, Lovey; (3)

shall be subject to random, daylight inspections to ensure compliance with probation; and

(4) is permanently barred from owning or caring for any companion animal.

{¶9} The court also ordered that Appellant pay “restitution” to the impounding

agency in the amount of $1,704 for costs associated with caring for the animals.

{¶10} At sentencing, Appellant’s counsel asserted to the court that Appellant was

unable to pay the $1,704. Appellant’s counsel advised the court that it had found

Appellant indigent earlier in this case and had initially appointed her an attorney. The

court stated that it took that information into consideration, but also noted that Appellant

retained private counsel for trial and for an appeal. The court then finalized the order of

“restitution” on the judgment entry.

{¶11} Also on August 5, 2021, the court filed a document titled, “Conditions of

Probation,” setting forth the terms of Appellant’s probation, which Appellant signed.

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 {¶12} “FIRST ASSIGNMENT OF ERROR: The trial court erred and abused its

discretion when it failed to provide Appellant with the statutory mandated Ohio Revised

Code Section 2951.02(A) written notice of probation searches.”

{¶13} R.C. 2951.02(A) requires a court ordering probation to provide the offender

with written notice informing them that they may be subject to random searches if the

supervising probation officer has reasonable grounds to believe that the offender is not

abiding by the law or otherwise is not complying with the conditions of the offender's terms

of probation.

{¶14} Appellant asserts that the “statutory written notice was not provided to

Appellant, and the record contains no suggestion that such notice exists.” Appellant’s

assertion is incorrect.

{¶15} The “Conditions of Probation” filed on August 5, 2021 set forth the terms of

Appellant’s probation. The eleventh condition on the document states: “Pursuant to R.C.

2951.02 you are subject to a search of your person, residence, motor vehicle, and any

other tangible personal property by a probation officer while on probation if probation

officer has responsible [sic] grounds to believe that you are not abiding by the law or are

not complying with the terms and conditions of your probation.”

{¶16} The Conditions of Probation document was signed by Appellant. Right

above Appellant’s signature, the document reads: “I fully understand the conditions of my

probation and will abide by them.”

{¶17} Appellant’s position disregards the Conditions of Probation, which clearly

provides written notice of random probationary searches. Appellant signed it,

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 acknowledging that she understood those terms and conditions. Thus, the trial court

complied with R.C. 2951.02(A).

{¶18} Appellant’s first assignment of error is without merit.

{¶19} “SECOND ASSIGNMENT OF ERROR: The trial court erred and abused its

discretion when it failed to conduct a restitution hearing.”

{¶20} In her second assignment of error, Appellant contends that the trial court

was required to hold a restitution hearing because she disputed the amount at sentencing.

{¶21} R.C. 2929.28(A)(1) generally requires the court to hold a restitution hearing

when a party disputes the amount of restitution. However, here, the court mistakenly

referred to the payment ordered as restitution when the payment is actually

reimbursement. Thus, R.C. 2929.28(A)(1) does not apply here.

{¶22} Restitution is payment to a victim based on the victim’s economic loss as a

result of a crime. R.C. 2929.28(A)(1). Yet, “restitution cannot be ordered to be paid to a

humane society—or other governmental entity—for the costs of caring for an animal

victim of abuse under R.C. 2929.28.” State v. Marcellino, 11th Dist. Geauga 2019-Ohio-

4837, 149 N.E.3d 927, ¶ 30.

{¶23} Reimbursement is payment to a government agency for costs incurred as a

result of the offender’s actions. R.C. 2929.28(A)(3).

{¶24} R.C. 959.99(E)(6)(b) governs reimbursement in cruelty to companion

animal cases and provides: “A court may order a person who is convicted of or pleads

guilty to a violation of section 959.131 of the Revised Code [cruelty to companion animal]

to reimburse an impounding agency for the reasonably necessary costs incurred by the

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 agency for the care of a companion animal that the agency impounded as a result of the

investigation or prosecution of the violation * * *.”

{¶25} While R.C. 2929.28(A)(1) requires the court to hold a hearing when a party

disputes the amount of restitution, R.C. 2929.28(B) provides otherwise for

reimbursement.

{¶26} R.C. 2929.28(B) applies to reimbursement and provides that a hearing is

permissive. “If the court determines a hearing is necessary, the court may hold a hearing

to determine whether the offender is able to pay the financial sanction imposed pursuant

to this section or court costs or is likely in the future to be able to pay the sanction or

costs.” R.C. 2929.28(B).

{¶27} The judgment entry refers to the payment ordered as restitution. Yet, the

payment ordered is not to a victim, but is to a government agency. Therefore, the

payment ordered in this instance is reimbursement, not restitution.

{¶28} Under R.C. 2929.28(B), holding a hearing for reimbursement is

discretionary and the court is not required to do so. The court did not abuse its discretion

when it determined that a hearing was not necessary in this instance because Appellant

offered very little, if any, evidence to demonstrate that she would be unable to pay

reimbursement and the court employed its discretion to determine the ability to pay based

on the evidence in front of the court at the time.

{¶29} To be clear, trial courts are without statutory power to order an offender to

pay restitution to a humane society. Id. at ¶ 30. However, the court improperly ordered

restitution and the mistake must be corrected for the order to be enforceable.

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 {¶30} Under the Ohio Constitution, appellate courts may modify final judgments if

modification is provided for by law. Ohio Const. Article IV, Section 3(A)(2). “Courts of

appeals shall have such jurisdiction as may be provided by law to review and affirm,

modify, or reverse judgments or final orders of the courts of record inferior to the court of

appeals within the district.” Ohio Const. Article IV, Section 3(A)(2). R.C. 2953.03 allows

such modification and provides: “[U]pon the hearing of an appeal other than an appeal

from a mayor's court, the appellate court may affirm the judgment or reverse it, in whole

or in part, or modify it * * *.”

{¶31} We modify the judgment entry to reflect the $1,704 payment ordered to be

paid to the Lake County Humane Society is reimbursement, not restitution.

{¶32} Appellant’s second assignment of error is without merit, but we modify the

judgment to reflect reimbursement.

{¶33} “THIRD ASSIGNMENT OF ERROR: The trial court erred and abused its

discretion when it ordered restitution based upon Appellant ‘retaining’ and ‘hiring’ trial and

appellate counsels.”

{¶34} “Misdemeanor sentencing is evaluated under an abuse of discretion

standard of review.” State v. Petrovich, 11th Dist. Lake No. 2017 CR 000862, 2019-Ohio-

3547, ¶ 23. Ordering restitution and reimbursement is part of criminal sentencing. State

v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 6. Thus, we review

restitution and reimbursement orders in a misdemeanor case for an abuse of discretion.

State v. Dent, 11th Dist. Lake No. 2020-L-110, 2021-Ohio-2551, ¶ 15, State v. Marcellino,

11th Dist. Geauga, 2019-Ohio-4837, 149 N.E.3d 927, ¶ 23, State v. Flanagan, 11th Dist.

Ashtabula No. 2015-A-0020, 2015-Ohio-5528, 2015 WL 9594509, ¶ 42.

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 {¶35} In State v. Ciresi, 11th Dist. Geauga, 2020-Ohio-5305, 162 N.E.3d 846, ¶

5, this court correctly stated that “since the enactment of H.B. 86, we review felony

sentences, which include restitution orders, under R.C. 2953.08(G)(2).” Ciresi was a

felony restitution case and came to the correct outcome. However, in Ciresi, this court

overruled Marcellino, supra, and Flanagan, supra, because in those cases this court had

held that “we review restitution orders for an abuse of discretion.” Ciresi. at ¶ 5. This

court did not acknowledge that Marcellino and Flanagan were restitution orders in

misdemeanor cases, not felony cases. The section of Ciresi “overruling” Marcellino and

Flanagan was mere obiter dictum1 and is not the law of this district. To clarify, we review

restitution and reimbursement orders in a misdemeanor case for an abuse of discretion.

{¶36} “An abuse of discretion connotes more than a difference in opinion in the

application of the law to the facts; it means rather that the trial court's decision was

unreasonable, arbitrary or unconscionable.” In re Sullivan, 11th Dist. Geauga Nos. 2005–

G–2641, 2005–G–2642, 167 Ohio App. 3d 458, 2006-Ohio-3206, 855 N.E.2d 554, ¶ 12.

The reviewing court must find that there “is no sound reasoning process that would

support that decision.” Id.

{¶37} Appellant contends that the trial court abused its discretion when it ordered

restitution and found that Appellant was able to pay the full reimbursement. Specifically,

Appellant argues that the trial court erred because it considered that Appellant retained

private counsel for the trial and this appeal.

1. “An incidental and collateral opinion uttered by a judge, and therefore (as not material to his decision or judgment) not binding.” State ex rel. Gordon v. Barthalow, 150 Ohio St. 499, 505-506, 83 N.E.2d 393 (1948). 8

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 {¶38} R.C. 2929.28(A)(3)(b) provides: “The amount of reimbursement ordered * *

* shall not exceed the total amount of reimbursement the offender is able to pay and shall

not exceed the actual cost of the sanctions.”

{¶39} Appellant asserts in her brief that the court should have determined

“whether Appellant paid for her attorneys, or a family member paid, or the attorneys

charged a reduced rate or took the case pro bono.” However, under R.C. 2929.28(A), it

is in the court’s discretion which factors to consider, and the weight given to each. “There

are no particular factors that a trial court must weigh in determining an offender's ability

to pay a financial sanction.” State v. Anderson, 11th Dist. Lake, 172 Ohio App. 3d 603,

2007-Ohio-3849, 876 N.E.2d 632, ¶ 24. Rather, the requirements “are met when the trial

court indicates in its judgment entry that it has considered the offender's present and

future ability to pay.” Id.

{¶40} Here, the court heard Appellant’s argument offered to dispute that she had

the ability to pay reimbursement and stated that it considered all the relevant

circumstances. That is all the court is required to do. Id. Additionally, Appellant only

offered three arguments: (1) that the court had determined Appellant indigent earlier in

this case before she terminated appointed counsel and retained private counsel; (2) that

Appellant was “concerned” she would not be able to pay reimbursement due to being

retired for several years; and (3) the cryptic statement that Appellant’s retaining private

counsel “does not mean that she’s paying the attorneys.”

{¶41} A trial court can only consider the evidence presented, and it was not an

abuse of discretion for the court to not inquire how the attorneys are being paid. It is not

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 unreasonable for the court to have considered Appellant’s retention of private counsel for

the case and its appeal.

{¶42} Appellant’s third assignment of error is without merit.

{¶43} “FOURTH ASSIGNMENT OF ERROR: The trial court erred and abused its

discretion when it ‘permanently barred [Appellant] from owning or caring for any

companion animal.’”

{¶44} In her fourth assignment of error, Appellant argues that the judgment is

inconsistent and invalid because a term of probation is that Appellant is permanently

barred from owning a companion animal, which exceeds the five-year probation period

imposed.

{¶45} The imposition of probation conditions is reviewed under an abuse of

discretion standard. State v. Bechtel, 11th Dist. Lake, 2020-Ohio-4889, appeal not

allowed, 161 Ohio St. 3d 1440, 2021-Ohio-375, 162 N.E.3d 822, ¶ 9.

{¶46} R.C. 2929.25(A)(2) provides: “The duration of all community control

sanctions imposed upon an offender and in effect for an offender at any time shall not

exceed five years.”

{¶47} R.C. 959.99(E)(6)(a) provides: With respect to “a person who is convicted

of or pleads guilty to a violation of section 959.131 of the Revised Code,” the sentencing

court “may prohibit or place limitations on the person's ability to own or care for any

companion animals for a specified or indefinite period of time.”

{¶48} Here, R.C. 2929.25(A)(2) and R.C. 959.99(E)(6)(a) conflict in determining

whether Appellant is permanently barred from owning a companion animal, or whether

the bar is limited to five years.

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099 {¶49} To resolve this issue, “[W]ell-established principles of statutory construction

require that specific statutory provisions prevail over conflicting general statutes. State v.

Volpe, 38 Ohio St.3d 191, 193, 527 N.E.2d 818, 820–821 (1988).

{¶50} When a court orders a permanent bar to owning companion animals as a

term of probation, R.C. 959.99(E)(6)(a) prevails because it is the more specific statute

and the permanent bar is upheld. Bechtel, at ¶ 12, 13.

{¶51} Thus, because permanently barring an offender from owning or caring for a

companion animal is a statutorily authorized penalty for the crime committed, the court

did not abuse its discretion.

{¶52} Appellant’s fourth assignment of error is without merit.

{¶53} The judgment of the Willoughby Municipal Court is modified and affirmed

as modified.

CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.

Case Nos. 2021-L-094, 2021-L-095, 2021-L-096, 2021-L-097, 2021-L-098, 2021-L-099