[Cite as Animal Control v. Keller, 2023-Ohio-3995.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

GREENE COUNTY

ANIMAL CONTROL 

 Appellee

v. 

NICOLE M. KELLER

 Appellant

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C.A. No. 2022-CA-49

Trial Court Case Nos. CRB2100837A; 

CRB2100965A; CRB2100965B; 

CRB2100966A; CRB2100966B

(Criminal Appeal from Municipal Court)

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O P I N I O N

Rendered on November 3, 2023

. . . . . . . . . . . 

MATTHEW J. BARBATO, Attorney for Appellee

 

ROBERT ALAN BRENNER, Attorney for Appellant

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} Nicole M. Keller appeals from a resentencing following her conviction on 

misdemeanor charges of failure to confine or control a dog in three cases.1

{¶ 2} Keller contends the trial court lacked subject-matter jurisdiction to proceed in 

1 Although Keller referenced Fairborn M.C. No. CRB2100966 in her notice of appeal, her 

appellate brief contains no arguments related to that case.
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one of the cases because the complaint failed to recite the subsection of the statute she 

allegedly violated. She also claims the trial court erred in accepting her no-contest plea 

in that case and making a finding of guilt where the charge was not specified and there 

was no “statement of facts.” Finally, she argues that the trial court abused its discretion 

in ordering her two dogs to be destroyed. 

{¶ 3} We conclude that the absence of statutory subsection did not deprive the trial 

court of subject-matter jurisdiction, that Keller’s plea was valid, and that the trial court did 

not abuse its discretion in ordering her dogs to be euthanized. Accordingly, the trial court’s 

judgments will be affirmed. 

I. Background

{¶ 4} In Fairborn M.C. No. CRB2100837, Keller pled no contest to one count of 

failure to confine or control a dog, a fourth-degree misdemeanor, and was found guilty.

{¶ 5} In Fairborn M.C. No. CRB2100965, Keller pled guilty to two counts of failure 

to confine or control a dangerous dog, a third-degree misdemeanor.

{¶ 6} In Fairborn M.C. No. CRB2100966, Keller pled guilty to two counts of failure 

to confine or control a dangerous dog, a third-degree misdemeanor.

{¶ 7} During a sentencing hearing, the trial court imposed a combination of 

suspended jail sentences with unclear references to consecutive and concurrent service. 

The trial court’s judgment entries also differed from the sentences it orally imposed. On 

direct appeal, we pointed out ambiguities in the sentences. For that reason, we reversed 

the trial court’s judgment in each case and remanded for a new sentencing hearing. See

Animal Control v. Keller, 2d Dist. Greene Nos. 2021-CA-34, 2021-CA-35, 2021-CA-36, 
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2022-Ohio-2164.

{¶ 8} The trial court held a new sentencing hearing on August 11, 2022. It then

filed new judgment entries imposing suspended jail terms in each case. The trial court 

clarified the consecutive or concurrent nature of the sentences. It also imposed sanctions 

including fines, court costs, and restitution. As it had in its original judgment entry, the trial 

court ordered the two dogs at issue to be euthanized. This order was stayed pending 

appeal. 

II. Analysis

{¶ 9} Keller’s first assignment of error states:

THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION IN 

CRB2100837A ON COUNT II.

{¶ 10} Keller challenges the validity of her conviction on one count of failure to 

confine or control a dog in Fairborn M.C. No. CRB2100837. She contends the trial court 

lacked subject-matter jurisdiction to proceed because the complaint failed to recite the 

subsection of the statute she allegedly violated. The complaint alleged that she had 

“[f]ail[ed] to confine or keep dog(s) under reasonable control, contrary to ORC 955.22[,] 

to wit: Male Pit Bull Blue White ‘Duke.’ ” Keller notes that this charge more specifically

was a violation of R.C. 955.22(C). She argues that the absence of a reference to the 

applicable subsection resulted in a lack of notice, thereby depriving the trial court of 

subject-matter jurisdiction. 

{¶ 11} Keller’s argument implicates Crim.R. 3(A), which provides: “The complaint 

is a written statement of the essential facts constituting the offense charged. It shall also 
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state the numerical designation of the applicable statute or ordinance.” Here Keller’s 

complaint did state the essential facts constituting a violation of R.C. 955.22(C), and it did 

include the numerical designation 955.22.

{¶ 12} The absence of a specific subsection in a complaint is permissible where

the factual allegations make the violation clear. State v. Stefanopoulos, 12th Dist. Butler 

No. CA2011-10-187, 2012-Ohio-4220, ¶ 21; State v. Jones, 1st Dist. Hamilton Nos. C120570, C-120571, 2013-Ohio-4775, ¶ 15. In State v. Mays, 104 Ohio App.3d 241, 661 

N.E.2d 791 (2d Dist.1995), this court considered a complaint that cited a non-existent 

statute. Despite that more significant defect, we held that the trial court possessed 

subject-matter jurisdiction. We reasoned that “where the text of the complaint is sufficient 

to satisfy the essential purpose of placing the defendant on notice of the charge against 

him, a misnumbering of the section of the applicable statute or ordinance having no 

tendency to mislead the defendant as to the nature of the offense with which he was 

charged would not, in our view, constitute a defect of jurisdictional magnitude.” Id. at 246.

{¶ 13} Here Keller’s complaint referenced the correct statute, R.C. 955.22. It also 

contained language that recited a violation of R.C. 955.22(C). Under these 

circumstances, the complaint placed her on notice of the offense at issue notwithstanding 

the lack of a specific reference to subsection (C). The omission of the subsection did not 

deprive the trial court of subject-matter jurisdiction. The first assignment of error is 

overruled. 

{¶ 14} Keller’s second assignment of error states:

THE TRIAL COURT ERRED WHEN ACCEPTING KELLER’S NO 
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CONTEST PLEA IN CRB 2100837.

{¶ 15} Keller challenges the validity of her no-contest plea to one count of failure 

to confine or control a dog in Fairborn M.C. No. CRB2100837. She again relies on the 

absence of a reference to subsection (C) in the complaint alleging a violation of R.C. 

955.22. Without a reference to the subsection, Keller contends the record fails to establish 

the specific offense to which she entered a plea, making the plea itself invalid. She also 

maintains that there was no “statement of facts” from which the trial court could have 

found her guilty.

{¶ 16} Keller’s arguments lack merit. As explained above, the language of the 

complaint made clear that she was charged with failing to confine or keep her dog Duke 

under control in violation of R.C. 955.22(C). Therefore, the offense to which she entered 

a no-contest plea was apparent. Keller’s passing reference to the lack of a “statement of 

facts” might be intended to address R.C. 2937.07, which requires an “explanation of 

circumstances” before a judge may make a finding of guilt on a no-contest plea to a 

misdemeanor other than a minor misdemeanor. “[T]he explanation-of-circumstances 

requirement is best understood as providing a level of procedural protection to the 

defendant.” City of Girard v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d 

151, ¶ 18-19. It enables a trial court to acquit a defendant where the actual facts do not 

establish a crime notwithstanding a defendant’s admission to the allegations of the 

complaint through a no-contest plea. Id.

{¶ 17} Here Keller’s attorney expressly waived an explanation of circumstances 

during her September 9, 2021 plea hearing and stipulated to the facts. Therefore, the trial 
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court did not err in finding her guilty without an explanation of circumstances. We note too 

that a trial court’s failure to elicit an explanation of circumstances prior to making a finding 

of guilt is not an error of jurisdictional magnitude. In Giordano, the Ohio Supreme Court 

found the error to be somewhat akin to “trial error.” The lack of an explanation of 

circumstances may render a conviction voidable on direct appeal. But Keller did not raise 

that issue in her first direct appeal, and our remand was solely for purposes of 

resentencing. Therefore, res judicata would preclude her from challenging her conviction 

now even if her attorney had not waived an explanation of circumstances. The second 

assignment of error is overruled.

{¶ 18} Keller’s third assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY ORDERING THE 

DOGS TO BE DESTROYED.

{¶ 19} Keller challenges the trial court’s order in Fairborn M.C. No. CRB2100965

for her two dogs to be humanely euthanized. She points out that R.C. 955.99(G) 

authorized the trial court to deal with the situation in multiple ways, including (1) ordering 

her personally to supervise the dogs, (2) requiring the dogs to complete obedience 

training, (3) ordering her to obtain liability insurance, and (4) requiring the dogs to be 

destroyed.

{¶ 20} Keller argues that one of the lesser alternatives to destruction would protect 

the public. Although her dogs bit two people when they escaped her yard on one 

occasion, she notes that they did not bite anyone when they briefly escaped two other 

times. She also cites the absence of evidence that the biting incident caused severe 
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injuries. 

{¶ 21} We conclude that the trial court’s order for Keller’s dogs to be euthanized 

was not an abuse of discretion. During her original September 2021 sentencing hearing, 

the trial court stated that it did not make its decision “lightly,” suggesting that it gave the 

issue thoughtful consideration. The trial court also cited the existence of prior incidents, 

pointing out that Keller had been involved with this type of charge a total of four times. 

The trial court was not obligated to find that a solution short of destruction adequately 

would protect the public. The fact that the dogs did not bite someone every time they 

escaped fails to establish an abuse of discretion in the trial court’s decision. The order for 

the dogs to be destroyed was not unreasonable, arbitrary, or unconscionable. The third 

assignment of error is overruled. 

III. Conclusion

{¶ 22} The trial court’s judgments are affirmed. 

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WELBAUM, P.J. and EPLEY, J., concur.