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State v. Walker10/21/2005
pending appeal. We granted the stay on February 18, 2005, on condition that Walker post bond in the amount of $45,000, cash or surety, with the Greene County Clerk of Courts no later than the close of business on February 25, 2005, The amount of bond was based on the amount already incurred, plus the amount that might reasonably be incurred during an expedited appeal.
{ } Subsequently, on February 25, 2005, Walker filed a notice of replevin, petition for habeas corpus, and motion to set aside conviction in the Xenia Municipal Court. The trial court denied the motion on March 3, 2005. The court then held another review hearing on March 11, 2005, and ordered the bears placed at a facility to be determined. The court noted that since USDA facilities did not need the bears, selling the bears would be impossible. Walker also appealed from the March 3 and March 11 judgment entries, and that appeal has been docketed in this court as Greene App. No. 2005-CA-36.
{ } Having now outlined the complicated procedural history of this case, we return to the first assignment of error. As we noted, Walker was convicted and was placed on probation for violating R.C. 955.22(C)(1), which requires owners, keepers, or harborers of dogs to keep them physically confined or restrained. Walker contends that the court exceeded its authority under R.C. 2929.21(E), which limits restitution to property damage caused by the offense. The State's response is that subsection (E) no longer applies because it was superseded by new statutory language that became effective on July 31, 2003.
{ } A trial court's authority "is governed by the version of the Ohio Revised Code that was in effect at the time when the crime was committed." State v. Christy, Wyandot App. No. 16-04-04, 2004-Ohio-6963, at , n.1. The crime involved in this case was committed on August 8, 2003. At that time, R.C. 955.99(E) provided that:
{ } "(1) Whoever violates section 955.21 or division (B) or (C) of section 955.22 of the Revised Code shall be fined not less than twenty-five dollars or more than one hundred dollars on a first offense, and on each subsequent offense shall be fined not less than seventy-five dollars or more than two hundred fifty dollars and may be imprisoned for not more than thirty days.
{ } "(2) In addition to the penalties 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."
{ } Consistent with this statute, the trial court imposed a thirty day sentence. The court then suspended the sentence based on certain conditions, which included that Walker could not have other animals on his premises. This condition, in turn, was suspended, contingent on Walker's continued cooperation. Much later, after the bears were seized from another individual (Todd Bell), the court imposed a further condition, i.e., that Walker pay restitution for the cost of maintaining the bears.
{ } The version of R.C. 2929.21(E) that was in effect on August 8, 2003, provided that:
{ } "The court may require a person who is convicted of or pleads guilty to a misdemeanor to make restitution for all or part of the property damage that is caused by the offense and for all or part of the value of the property that is the subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that the person committed. If the court determines that the victim of the offense was sixty-five years of age
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