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State v. Walker10/21/2005
t public sale, and should have credited him with the proceeds.
{ } When the present appeal was filed, the trial court had not yet physically disposed of the bears. Consequently, we have no idea if the bears were sold or were given away (the record does not reflect precisely where the bears were sent). As a result, this issue is not properly before us, and the seventh assignment of error is overruled as premature. We note that the same assignment of error has been raised in Greene App. No. 2005-CA-36, which does involve an appeal from an order disposing of the bears.
{ } Based on the preceding discussion, the seventh assignment of error is overruled as premature.
VI.
{ } In the eight assignment of error, Walker contends that the trial court erred in disposing of the bears, since the court was contractually obligated to maintain the animals pursuant to a payment plan that the court established. Walker claims that he entered this contract under duress, but asks, nonetheless that the contract be enforced. The State's response is that the agreement did not mention the care of the bears, and no such terms should be implied.
{ } The agreement in question is dated July 8, 2004, and states that Walker will pay $200 per month toward his fines and costs, beginning in August, 2004. Both Walker and his probation officer, Sandy Clifton, signed the agreement. The agreement also bears a notation that says, among other things, that "I hearby sign this document against my will under penalty of jail." The agreement does not refer to the bears. However, the background surrounding the agreement, as noted above, is that Walker was told he would be responsible for paying for the care of the bears, and was told to contact his probation officer to discuss how he was going to pay for their care.
{ } In view of the disposition of the previous assignments of error, we need not address this issue. Since the trial court abused its discretion in ordering restitution and did not accord due process after the bears were seized, the issue of whether a contract existed for the care of the bears is irrelevant. Accordingly, the eighth assignment of error is overruled as moot.
VI.
{ } The ninth assignment of error challenges the trial court's action in requiring Walker to become licensed through the United States Department of Agriculture in order to own, possess, and/or raise bears in the State of Ohio. Due to our disposition of other assignments of error, this assignment of error is also overruled as moot.
VII.
{ } In the tenth and final assignment of error, Walker claims he is entitled to habeas corpus relief under an unconstitutional statute. Walker's argument in this regard is that R.C. 955.22 was declared unconstitutional in its entirety in State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846. Cowan was issued on September 22, 2004, or during the time Walker's convictions were on direct appeal to our court.
{ } After reviewing this matter, we find that Cowan is inapplicable, because it invalidated only the part of R.C. 955.22 that allows dog wardens to label a dog vicious or dangerous without giving the dog owner an opportunity to contest the label. In Cowan, the Ohio Supreme Court noted that as soon as a dog warden makes a unilateral decision that a dog is vicious or dangerous, the statute places restrictions on the owner and dog. Id. at -13. The court found that this is constitutionally impermissible, because a dog owner must defy the statutory regulations and become a criminal defendant in order to contest the classification. Id. at .
{ } The unconstitutionality of
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