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State v. Ushery

Court of Appeals of Ohio, First District

June 19, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
PRINCELLA USHERY, [1] Defendant-Appellant.

Criminal Appeal From: Hamilton County Municipal Court TRIAL NO. C-05CRB-47998

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecutiong Attorney, for Plaintiff-Appellee.

Ohio Justice & Policy Center and Rob Wall, for Defendant-Appellant.

OPINION

PER CURIAM.

{¶1} The issue in this case is whether Princella Ushery's 2005 minor-misdemeanor conviction for the possession of marijuana may be expunged under R.C. 2953.31 et seq., where Ushery failed to pay the court costs assessed at sentencing. Because we hold that Ushery's failure to pay court costs did not prevent the final discharge of her case as contemplated by the expungement statute, we reverse the trial court's judgment and remand the cause to the trial court to determine whether, in its discretion, expungement of the conviction is appropriate.

I. Background Facts and Procedure

{¶2} In 2005, Ushery was convicted of misdemeanor possession of marijuana, a violation of R.C. 2925.11. The trial court imposed a $150 fine as her sentence, and also assessed $85 in costs. Subsequently, the court waived her fine. Over one year later, Ushery applied to the trial court to have her conviction sealed under R.C. 2953.32.

{¶3} The trial court reviewed her application and ordered the probation department to create a report concerning the application. In the report, the probation department accurately indicated that Ushery owed costs, but it erroneously indicated that Ushery still owed the fine that the court had previously waived. Relying on the report, the court found that Ushery was "not eligible" to have the conviction expunged, because she still owed the fine and the court costs, and it denied her application. The court also informed Ushery that she had to wait one year after paying off the fine and the court costs before the conviction could be expunged.

{¶4} In her sole assignment of error, Ushery argues that the trial court erred when it determined that she was ineligible to have her conviction sealed, because she did not owe the fine, and because her failure to pay the court costs did not, as a matter of law, render her ineligible under R.C. 2953.32(A)(1) to have the conviction expunged. We agree.

II. Standard of Review

{¶5} This court's review of the trial court's ruling on expungement varies. Generally, we will not disturb a trial court's decision to deny a R.C. 2953.32 expungement application absent an abuse of discretion. See State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001); State v. Spicer, 1st Dist. Nos. C-040637 and C-040638, 2005-Ohio-4302, ¶ 7.

{¶6} But we review issues of law de novo. See State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6, cited in State v. Pankey, 1st Dist. Nos. C-110547 and C-110548, 2012-Ohio-936, ¶ 3. The interpretation of a statute and the application of that statute in determining whether an offender is "eligible" to have a conviction expunged are issues of law that we review de novo.

III. Analysis

{¶ 7} As relevant to the assignment of error, R.C. 2953.32(A)(1) provides that an otherwise eligible offender may not apply to have the record of a misdemeanor conviction expunged until one year after "the offender's final discharge." The phrase "final discharge" is not defined in the statute, but it has been interpreted to mean that the offender "has served any sentence previously imposed or [has] otherwise been finally discharged by the court." Wi ...


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