[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 complainedof 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.