Summary of a Recent
Judicial Development in
Animal Welfare

Restitution Awarded to Animal Welfare Agency in
Connection with Animal Cruelty Convictions

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Ohio v. Silbaugh, No. 2008-P-0059, 2009 WL 819372, 2009-Ohio-1498 (Ohio Ct. App. Mar. 31, 2009), the Ohio Court of Appeals held that a trial court had jurisdiction to enter an order of restitution to the Animal Protective League (APL) in connection with a criminal defendant's animal cruelty charges, and likewise held that the defendant had not been denied her right to effective assistance of counsel by virtue of her counsel's failure to object to the award, because the defendant herself had previously stipulated to the restitution amount.

Background

The appellant was charged with and plead guilty to, inter alia, ten counts of cruelty to animals in violation of Ohio Revised Code (ORC) § 959.13. Id. at *1. The trial court sentenced her to 90 days in jail for the animal cruelty charges, ordered that she could not own or board any horses while on probation, and ordered her to serve 100 hours of community service. Id. Following a restitution hearing, the trial court ordered her to make restitution to the Animal Protective League in the stipulated amount of $24,363 as a term of her probation, and she appealed from that ruling. Id.

Arguments

The appellant argued that the trial court lacked jurisdiction to enter the order of restitution, that it was plain error for the court to do so, and that she had not received effective assistance of counsel. Id. at *1-2. She argued that the plain language of ORC § 2929.18(A)(1) and § 2929.28(A)(1) makes restitution available only to actual victims of an offense, and the APL was not the "actual victim." Id. at *3.

Analysis and Holdings

The court explained that ORC § 2929.18(A)(1) and § 2929.28(A)(1) "authorize trial courts to impose an order of restitution based on the amount of the victim's economic loss," and that § 2929.18(A)(1) specifically authorizes such restitution to be imposed "on behalf of the victim . . . or to another agency designated by the court." Id. at *2. The court conceded that the APL was not the "actual victim" of the offenses, but pointed out that the appellant herself stipulated to the amount of restitution owed to the APL and thus the trial court had a sufficient basis for entering judgment in that amount. Id. at *3. The court further held that the appellant had not been denied effective assistance of counsel because her counsel "negotiated a favorable plea agreement for [her], despite her gross neglect and maltreatment of multiple horses and a prior conviction for animal cruelty," and furthermore, the appellant herself stipulated to the amount of restitution owed to the APL, so her counsel's failure to object to the judgment entered did not amount to ineffective assistance. Id. at *4. A dissenting justice opined that the trial court lacked jurisdiction to order the restitution award because the appellant's sentence had already become final at the time of the restitution hearing. Id. at *5.

The case was decided on March 31, 2009.