N. Olmsted v. Donnelly

[Cite as N. Olmsted v. Donnelly, 2023-Ohio-3712.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

CITY OF OLMSTED TOWNSHIP, :

Plaintiff-Appellee, :
No. 112334
v. :

DIANE DONNELLY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 12, 2023

Criminal Appeal from the Berea Municipal Court
Case No. 22CRB01331

Appearances:

Holland and Muirden and J. Jeffrey Holland, for appellee.

Michela Huth, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Diane Donnelly, appeals from the trial court’s

judgment entry that imposed as a condition of probation that she is “subject to

random inspection by [the] APL or Human[e] Society or any other entity performing

similar services, to assure compliance.” For the reasons that follow, we affirm.
 In 2022, Donnelly was named in a four-count complaint, charging her

with cruelty to animals in violation of R.C. 959.13, misdemeanors of the second

degree. The complaints alleged that “on or about July 1, 2022 through August 19,

2022 * * * Donnelly, who was the owner or caretaker of a companion animal, did

negligently torture, torment, or commit an act of cruelty of [15 named dogs].”

On December 1, 2022, and with the assistance of counsel, Donnelly

entered into a plea agreement with the prosecutor in which she agreed to plead no

contest to Count 1 of the complaint and the remaining counts would be dismissed.

Donnelly’s attorney advised the court that Donnelly would be “waiving a reading of

the facts and explanation of circumstances.” (Tr. 5.) Following the trial court’s

explanation of what a plea of “no contest” means, Donnelly responded “yes” to the

court’s question of whether she “understood that.” (Tr. 3.) The court then reviewed

the complaint and found her guilty of the offense.

When the court inquired whether it should continue the matter for

the purpose of obtaining a presentence-investigation report (“PSI”) to assist the

court with sentencing, Donnelly’s attorney advised the court, “Judge, I believe that

we have a recommended sentence.” (Tr. 6.) The prosecutor agreed, stating, “Your

Honor, the joint recommendation in this case is five years of non-reporting

probation, during which time Ms. Donnelly should not own, keep, nor reside with

more than four spayed or neutered dogs. Those dogs are to be kept inside of her

residence in a humane, sanitary, and lawful manner. * * * In addition, she shall

undergo random inspections by the APL or other humane society to ensure
compliance with that term.” (Tr. 6-8.)1 Donnelly did not make any statements about

these conditions. The attorneys and the trial court discussed that four dogs would

be returned to Donnelly and when asked, Donnelly provided the names of the four

dogs to the court. Following this interaction, the court asked if “everybody [was]

happy,” and both Donnelly’s counsel and the prosecutor responded by thanking the

trial judge; Donnelly, herself, did not make any comments. (Tr. 10-11.)

The trial court’s judgment entry of conviction provided the following

sentence:

1. A fine of $50.00 plus all costs $50.00 of fine suspended.

2. Defendant shall be placed on Basic 5 Yr Probation.

3. May not own or reside with more than four dogs that have been
spayed or neutered, they are kept in humane, sanitary and lawful
conditions within the residence.

4. Subject to random inspection by APL or Human[e] Society or any
other entity performing similar services, to assure compliance.

5. Remaining animals to be forfeited excluding Swade, Lux, Dash, and
Star. The previously paid bond on the companion civil matter shall be
forfeited to Animal Protective League.

6. Defendant advised that failure to comply with any and all conditions
of Probation will result in the imposition of the maximum penalties
allowed under the charge of which defendant was convicted.

Donnelly now appeals, contending in her sole assignment of error

that the trial court erred by requiring her, as part of the sentence and accompanying

1 The prosecutor set forth additional conditions, including forfeiture of the posted

bond and of 11 of the dogs removed from Donnelly’s possession; Donnelly was permitted
to retain possession of four dogs, but only after those dogs were spayed or neutered.
community-control conditions, to subject herself and her home to random

probation inspections. Appellee contends, however, that Donnelly consented to

random searches as part of an agreed, recommended sentence that the court

imposed and thus, cannot challenge this condition on appeal. Appellee maintains

that this court should reject her assignment of error on the basis of invited error.

A trial court enjoys broad discretion in imposing sentence on a

misdemeanor offense. Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-

Ohio-2265, ¶ 7. Accordingly, an appellate court reviews a trial court’s sentence on a

misdemeanor violation under an abuse-of-discretion standard. R.C. 2929.22;

Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-Ohio-674, ¶ 13.

However, this discretion is not unfettered and still must comport with the law. In

fact, in Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463

¶ 38, the Ohio Supreme Court reiterated that “a court does not have discretion to

misapply the law.”2

At the time when Donnelly pleaded no contest and was sentenced,

R.C. 2951.02(A) provided, in relevant part:

During the period of a misdemeanor offender’s community control
sanction or during the period of a felony offender’s nonresidential
sanction, authorized probation officers who are engaged within the

2 Unlike felony sentencing review that limits appellate review for agreed sentences,

the Revised Code does not offer similar guidance for appellate review of misdemeanor
sentences. For felonies, an agreed sentence “is not subject to review under [R.C.
2953.08(D)] if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.”
(Emphasis added.) Accordingly, an agreed-upon sentence is reviewable if it is not
authorized by law.
 scope of their supervisory duties or responsibilities may search, with or
without a warrant, the person of the offender, the place of residence of
the offender, and a motor vehicle, another item of tangible or intangible
personal property, or other real property in which the offender has a
right, title, or interest or for which the offender has the express or
implied permission of a person with a right, title, or interest to use,
occupy, or possess if the probation officers have reasonable grounds to
believe that the offender is not abiding by the law or otherwise is not
complying with the conditions of the misdemeanor offender’s
community control sanction or the conditions of the felony offender’s
nonresidential sanction.

(Emphasis added.)

Donnelly contends that the community-control condition of random,

searches is not authorized by R.C. 2951.02(A) because the law requires probation

officers to have “reasonable grounds” of noncompliance before conducting

warrantless searches.3

In support, Donnelly relies on this court’s decision in State v. Turner,

2019-Ohio-3378, 132 N.E.3d 766 (8th Dist.), and the Ohio Supreme Court’s

subsequent decision in State v. Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626, __

N.E.3d ___, cert denied, ___U.S.___ , 2023 U.S. LEXIS 2720 (June 26, 2023).

In Turner, this court considered whether the trial court abused its

discretion in imposing as a condition of probation that the defendant be subject to

random, warrantless searches conducted by the APL. The court also considered

whether the APL is an authorized probation officer with the authority to conduct the

3 Donnelly makes no argument that this condition violates her constitutional right

to be free from unreasonable searches and seizures under the Fourteenth Amendment to
the United States Constitutions, and Article I, Section 24 of the Ohio Constitution.
searches. Id. at ¶ 50. The Turner defendant was convicted of bestiality. Over

objection, the trial court ordered as a condition of his community control that the

defendant undergo random home inspections to ensure that he had no contact with

animals. Id. at ¶ 51, 60. The defendant appealed this condition, contending that

random, warrantless searches violated his rights to unreasonable searches and

seizures. This court agreed, finding that “random” home inspections by a probation

officer were not authorized under R.C. 2951.02(A). This court stated:

While R.C. 2929.21 authorized a trial court broad discretion when
imposing community control sanctions, R.C. 2951.02(A) requires
“reasonable grounds” to believe a misdemeanor offender is not abiding
by the law or the community control sanctions before a warrantless
search of real property can be conducted.

Id. at ¶ 51. In so holding, this court relied on the Ohio Supreme Court’s axiom that

a “‘sentencing court has broad authority to shape community control sanctions

provided that the sanctions are constitutionally and statutorily permitted.’”

(Emphasis sic.) Id. at ¶ 57, quoting State v. Anderson, 143 Ohio St.3d 173, 2015-

Ohio-2089, 35 N.E.3d 512, ¶ 19. This court concluded that because random,

warrantless searches are not authorized by statute, the trial court abused its

discretion ordering “random” home inspections inconsistent with the “reasonable

grounds” requirement set forth in R.C. 2951.02(A). This court also concluded that

APL officers are probation officers under the law. Id. at ¶ 61-63.

This court’s holding in Turner is consistent with other districts in

Ohio. In State v. Helmbright, 2013-Ohio-1143, 990 N.E.2d 154, ¶ 20 (10th Dist.),the

court held that a “warrantless search, pursuant to R.C. 2951.02(A), complies with
the Fourth Amendment if the officer who conducts the search possesses ‘reasonable

grounds’ to believe that the probationer has failed to comply with the terms of their

probation.” In State v. Smith, 5th Dist. Stark No. 2011CA00140, 2011-Ohio-6872,

the court upheld a search of a residence because the probation officer had

reasonable grounds necessary to perform the search. See also United States v.

Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (finding that

“[w]hen an officer has reasonable suspicion that a probationer subject to a search

condition is engaged in criminal activity, there is enough likelihood that criminal

conduct is occurring that an intrusion on the probationer’s significantly diminished

privacy interests is reasonable”).

Subsequent to Turner, the Ohio Supreme Court considered whether

evidence obtained by a probation officer following a random, warrantless search of

a felony probationer’s cell phone should be suppressed when the probationer

consented to warrantless searches as a condition of his community control.

Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626. The court analyzed this issue

under two “sources of legal authority” — the Fourth Amendment’s prohibition of

unreasonable searches and seizures and R.C. 2951.02(A)’s authorization of a

probation officer to search a probationer and his property upon having “reasonable

grounds to believe” that the probationer is violating the law or community-control

conditions. Id. at ¶ 2.

Regarding Fourth Amendment protections, the court held that the

probation officer’s random, warrantless search did not violate the Fourth
Amendment because the probationer signed a “consent-to-search” agreement as a

condition of community control allowing random searches. Id. at ¶ 3. The court

specifically noted that its holding was consistent with its prior decision in Benton,

82 Ohio St.3d at 317, 695 N.E.2d 757, that held “that the Fourth Amendment did not

prohibit ‘a random search of the residence of a parolee who, as a condition of parole,

consented to warrantless searches by parole officers at any time.’” Id. at ¶ 11.

The court found, however, that the random, warrantless search

violated R.C. 2951.02(A) because under the plain language of R.C. 2951.02(A), the

probation officer did not have “reasonable grounds” to believe that the probationer

was violating the law or terms of community control. Id. The court determined that

the “consent-to-search” agreement was irrelevant because “the probation officer’s

authority to conduct the search was limited by the statute.” Id.

In so holding, the court stated that “probation officers are statutory

creations, see R.C. 2301.27, they ‘have no more authority than that conferred upon

them by statute, or what is clearly implied therefrom.’” Campbell, 170 Ohio St.3d

278, 2022-Ohio-3626, at ¶ 16, quoting Hall v. Lakeview Local School Dist. Bd. of

Edn., 63 Ohio St.3d 380, 383, 588 N.E.2d 785 (1992). The court stated that the

consent-to-search agreement did not expand the probation officer’s authority

because

the legislature specifically defined the level of suspicion (“reasonable
grounds”) required to authorize a probation officer to search a
probationer. Implicit in this authorization was the denial of authority
to search a probationer without reasonable grounds. If that were not
so, and probation officers were nonetheless authorized to conduct
 searches without reasonable grounds for doing so, then R.C.
2951.02(A) would be nothing more than advice.

It does not matter that Campbell had been required to consent
to the search as a condition of his community control, because the
probation officer was still constrained by the statutory limits of her
authority. Consent and authority are not the same. If Campell had
given his consent for the probation officer to take his wallet, he might
expect his wallet to be taken, but that would not mean that the
probation officer was authorized to take it. So too here. Campbell’s
consent to random searches as a condition of his community-control
sanctions limited his legitimate expectation of privacy but did not grant
the probation officer additional authority.

(Emphasis added.)

Id. at ¶ 17-18. Accordingly, pursuant to Campbell, a defendant can consent to

random searches as a condition of his probation, but this consent cannot expand the

statutory authority granted to a probation department — the probation officer needs

“reasonable grounds to believe” that the probationer is violating the law or terms of

community control.4 Although this holding appears counterproductive, it is

nonetheless the limitation of authority the General Assembly established for

probation officers.

To be certain that the holding in Campbell expressly found the

agreement or consent to random searches irrelevant when applying R.C. 2951.02,

4 The Campbell Court determined that the evidence found on Campbell’s cell

phone was not subject to the exclusionary rule because no Fourth Amendment violation
occurred. Absent a legislative mandate, the exclusionary rule does not apply “to statutory
violations falling short of constitutional violations. * * * A plain reading of R.C. 2951.02(A)
reveals no such legislative mandate to impose an exclusionary remedy for a violation of
the statute’s reasonable-grounds requirement.” Id. at ¶ 22. Accordingly, it appears that
even though a probation officer cannot perform a random search on a person’s property,
any “fruit” obtained during that search would not be excluded when a defendant enters
into a consent-to-search agreement.
the General Assembly, in response to Campbell, amended R.C. 2951.02 under

Am.Sub.S.B. 288, effective April 4, 2023, by adding two additional subsections that

permit a felony offender to expressly consent to random, warrantless searches by

authorized probation officers. Under both of those subsections, a probation officer

has the authority to conduct random, warrantless searches if (1) the court requires

the offender’s consent to searches as a part of the terms and conditions of

community control and the offender agreed to those terms, or (2) the offender

otherwise provides consent to the search. R.C. 2951.02(A)(1)(b) and (c). Both of

those subsections, however, apply only to felony offenders — not misdemeanor

offenders like Donnelly. Accordingly, the General Assembly had the opportunity to

remove the “reasonable grounds” restriction from all probationers and searches, but

chose not to do so for misdemeanor probationers.5 Based on the foregoing, it would

appear that the trial court’s imposition of random searches as part of Donnelly’s

community control was possibly error.

However, this determination does not end this court’s discussion or

dictate this court’s resolution of this case because the procedural posture in

Campbell and the facts in Turner are distinguishable. In Campbell, the Ohio

Supreme Court reviewed whether the probation officer had exceeded her statutory

5 The General Assembly’s decision to not remove the “reasonable grounds”
restrictions from all probationers and searches failed to take into account that not all who
receive supervision by the court are convicted of felonies. In fact, it would be logical to
allow consent-to-search by all probationers to ensure that rehabilitation is achieved prior
to reaching felony status. Otherwise, how is the court able to measure compliance with
the terms and conditions of probation conditions?
scope in searching the defendant’s cell phone and whether the evidence obtained as

a part of that search should be suppressed. In the case before this court, the APL or

humane society has not exceeded their statutory authority under R.C. 2951.02. In

the example that the Campbell Court provided, a defendant can consent to the

probation officer taking his wallet, but that does not mean that the officer was

authorized to do so. Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626, at ¶ 18.

Accordingly, a defendant can consent to random searches, but this consent cannot

expand a probation officer’s statutory authority. We find that until the APL expands

its authority under the guise of the consent-to-search agreement, the issue is

arguably not ripe for review. It is quite possible that when the APL or other humane

society officer visits Donnelly’s home to gauge compliance, it could be based on

“reasonable grounds.”

Additionally, Turner is factually distinguishable. In Turner, the

defendant specifically objected to the trial court’s imposition of random searches as

part of his community-control sanctions. In this case, Donnelly did not object, but

rather acquiesced and negotiated this condition. In fact, the random-inspection

term of probation was part of the agreed, recommended sentence that was part and

parcel of her overall plea agreement. Accordingly, we agree with appellee that

Donnelly has invited the error that she now complains of on appeal.

Under the invited-error doctrine, “[a] party will not be permitted to

take advantage of an error which he himself invited or induced the trial court to

make.” Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145 (1943), paragraph one of the
syllabus. The doctrine requires “more than mere ‘acquiescence in the trial judge’s

erroneous conclusion.’” State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178

(2000), quoting Corrothers v. Hunter, 23 Ohio St.2d 99, 103, 262 N.E.2d 867

(1970). In order for the doctrine of invited error to apply, defense counsel “must

have been actively responsible for the trial court’s error.” Campbell at 324.

The doctrine of invited error is a corollary of the principle of equitable
estoppel. Under the doctrine of invited error, an appellant, in either a
civil or a criminal case, cannot attack a judgment for errors committed
by himself or herself; for errors that the appellant induced the court to
commit; or for errors into which the appellant either intentionally or
unintentionally misled the court, and for which the appellant is actively
responsible. Under this principle, a party cannot complain of any action
taken or ruling made by the court in accordance with that party’s own
suggestion or request.

(Citations omitted.) Daimler/Chrysler Truck Fin. v. Kimball, 2d Dist. Champaign

No. 2007-CA-07, 2007-Ohio-6678, ¶ 40, citing 5 Ohio Jurisprudence 3d, Appellate

Review, Section 448, at 170-171 (1999, Supp.2007).

Based on this court’s review of the record, even assuming that the trial

court committed error in imposing random searches as part of her probation

conditions, Donnelly invited the error. Her counsel advised the court that a plea

agreement had been reached with Donnelly agreeing to plead no contest to one

charge of animal cruelty in exchange for the state dismissing three other charges.

Additionally, her counsel advised the court that a PSI would not be necessary

because the parties proposed a joint, recommended sentence, which according to

the prosecutor, included Donnelly agreeing to random inspections by the APL or

other humane society to ensure compliance with the conditions that she possessed
no more than four dogs inside of her home and that those dogs be kept in humane,

sanitary, and lawful conditions. At no time did either Donnelly or her counsel object

to this assertion or express that this was not their understanding of the agreed

sentence.

Moreover, during the exchange with the court, Donnelly provided the

names of the dogs that would be returned to her as part of this agreement. This

court finds that this is not a situation where the defendant merely acquiesced to the

trial court’s condition to order random inspections; rather Donnelly and her defense

counsel actively participated in the plea negotiations, which contained an agreed,

recommended sentence that included a probation condition of random inspections.

It is telling to this court that Donnelly acquiesced to these conditions

during her plea agreement because she did not attempt to vacate her plea with the

trial court or raise an argument on appeal contending that she did not make a

knowing, voluntary, or intelligent plea. Donnelly has not raised any argument that

she was unaware what the “random inspection” requirement involved, and that had

she known, she would not have pleaded no contest. Finally, we further note that

Donnelly has not raised any argument that her trial counsel was ineffective for

acquiescing or failing to object to this condition of probation that she now opposes.

The record is clear to this court that Donnelly invited the complained-

of error. Whether a subsequent random search of Donnelly’s residence by APL

officers will be considered lawful under R.C. 2951.02(A)(1)(a) is yet to be

determined. But under Campbell, by agreeing to random searches as a condition of
community control, Donnelly has waived any Fourth Amendment protection.

Campbell, 170 Ohio St.3d 278, 2022-Ohio-3626, at ¶ 3. Accordingly, this court

cannot say that the trial court abused its discretion in accepting the plea agreement

and imposing the joint recommended sentence presented by the parties. Donnelly’s

assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Berea

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the

trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., CONCURS;
EMANUELLA D. GROVES, J., DISSENTS (WITH SEPARATE OPINION)

EMANUELLA D. GROVES, J., DISSENTING:

I respectfully dissent from the majority opinion. Notably, I agree

with the majority up to its detour from both Campbell and Turner. I disagree with

the distinctions that supposedly render these cases inapplicable in this case. First,
this case shares the procedural posture of Campbell. Although the search has not

occurred in this case, the legality of the random search condition is ripe for review.

Since the majority opinion has already established that the condition is contrary to

law, no further factual development is needed.

In State v. Mims, 8th Dist. Cuyahoga No. 111789, 2023-Ohio-1044,

the state objected to the imposition of jail-time credit on a firearm specification.

Mims argued this issue was not ripe because the application of jail-time credit would

only become an issue if Mims is granted judicial release. However, this court

rejected that argument and found the issue ripe for review. A claim is fit for review

if it is (1) “fit for judicial decision” and (2) “whether withholding court consideration

will cause hardship to the parties.” State v. Maddox, 168 Ohio St.3d 292, 2022-

Ohio-764, 198 N.E.3d 797, ¶ 8. The first prong is met when the controversy

presented in the case is purely legal and clarification of the fact does not require

further development. Mims at ¶ 14, quoting State v. Maddox, 168 Ohio St.3d292,

2022-Ohio-764, 198 N.E.3d 797, ¶ 8, quoting Thomas v. Union Carbide Agriculture

Prods. Co., 473 U.S. 568, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). In Mims, the

decision to resolve the legal issue then was made because the court was perfectly

capable of addressing the issue at that time and failure to do so would cause hardship

to the parties. Similarly, the issue here is the legality of the probation condition that

allows random searches. The hardship to Donnelly is obvious. The suggestion that

Donnelly should wait until a search is conducted to determine whether the search is

reasonable would potentially expose Donnelly to an unreasonable search. Given the
lack of limitations on the warrantless search, Donnelly could be subjected to

countless warrantless searches before a court could review and order cessation of

searches without reasonable grounds.

In regard to Turner, I believe the facts are not distinguishable. In

Turner, at sentencing the defense attorney stated, “Turner has no objection…We

would ask that the court not grant intrusive home inspection.” Turner at ¶ 60. This

request is not an objection. There is nothing in the opinion that reflects an objection

was made once the request was denied. Therefore, the facts here are not

distinguishable and the precedent established in Turner should apply.

Finally, I do not believe that Donnelly invited the error to subject

herself to warrantless searches for five years. The majority’s recitation of facts that

Donnelly initiated the plea agreement and provided details are not sufficient to

demonstrate Donnelly invited the error. If anything, it merely demonstrated

Donnelly’s cooperation and acceptance of responsibility for her conduct. I find this

conduct akin to mere acquiescence as opposed to active responsibility for the trial

court’s error. Moreover, these facts are insufficient to demonstrate she knowingly

and voluntarily waived her Fourth Amendment protection preserved in

R.C. 2951.02(A). Consequently, I would have reversed the trial court’s imposition

of warrantless searches without reasonable grounds to do so.