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State v. Walker10/21/2005
es prescribed in division (E)(1) of this section, if the offender is guilty of a violation of division (B) or (C) of section 955.22 of the Revised Code, the court may order the offender to personally supervise the dog that the offender owns, keeps, or harbors, to cause that dog to complete dog obedience training, or to do both."
{ } Accordingly, R.C. 955.99 does not contemplate forfeiture of animals. Instead, it focuses on the defendant providing either more stringent supervision or obedience training for the dog. R.C. 955.99 does allow for destruction of dogs, but only of dangerous or vicious dogs, which may be destroyed upon court order. See R.C. 955.99(F) and (G). Even in that situation, due process has been applied. For example, in State v. Browning, Fairfield App. Nos. 2002CA42, 2002CA43, and 2002CA44, 2002-Ohio-6978, the defendants were convicted of fifteen counts of failing to confine vicious dogs. At the sentencing hearing, the trial court took testimony from witnesses for both sides before concluding that two of the fifteen dogs were aggressive and needed to be destroyed. Id. at -11.
{ } The Ohio Supreme Court has said that:
{ } " n determining whether a condition of probation is related to the 'interests of doing justice, rehabilitating the offender, and insuring his good behavior,' courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." State v. Jones (1990), 49 Ohio St.3d 51, 53, 550 N.E.2d 469 (citations omitted).
{ } Based on the above discussion, we find that the trial court abused its discretion in ordering the bears forfeited unless Walker paid restitution for their care. As a preliminary point, we reiterate that the court erred in ordering restitution for the care of the bears. Consequently, the court could not have grounded forfeiture on the failure to comply with its improper order.
{ } As an additional matter, forfeiture was not originally ordered as a "condition of probation." The condition of probation in this case was that Walker "cooperate." If the trial court felt Walker was not cooperating, the proper procedure would have been to institute proceedings to revoke probation. In that event, the court would have had to comply with minimum due process requirements, which consist of:
{ } "(a) written notice of the claimed violations of parole (probation); (b) disclosure to the parolee (probationer) of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body * * * and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking * * * parole (probation)." Bender, 2005-Ohio-919, at , quoting from State v. Miller (1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259.
{ } Furthermore, even if forfeiture were ordered as a condition of probation, it would not have been appropriate because the penalty statutes for failing to confine dogs do not even mention forfeiture as a possibility. Forfeiture, therefore, lacks sufficient relationship to the crime for which the defendant was convicted. 49 Ohio St.3d at 53. We are aware that we previously upheld an order requiring Walker to remove the bears from his property. However, a removal order is quite different from confiscating property. In the
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