from the Franklin County Court of Common Pleas C.P.C. Nos.
96CR-6559 & 98CR-1266
O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher,
R. Venters, Public Defender, and Robert D. Essex, for
Barbara A. Farnbacher.
1} The parties agree that over the years, appellee
C.D.D. has been convicted of various crimes including
possession of cocaine as a fourth-degree felony (1997),
possession of cocaine as a fifth-degree felony (1998), and
domestic violence as a fourth-degree misdemeanor pursuant to
Ohio Revised Code 2919.25 (2000).
2} Purporting to act "[i]n accordance with
Section 2953.32 [of the] Ohio Revised Code," the trial
court now has granted C.D.D.'s expungement application
and ordered the sealing of the records of his felony drug
convictions. March 1, 2019 Entry Sealing Record of Conviction
Pursuant to R.C. 2953.32. The state appeals, urging that
because C.D.D. "failed to meet the definition of
'eligible offender, '" the trial court was
without authority to act as it did. Appellant's Brief at
3 (capitalizations adjusted). Because the relevant statutes
clearly preclude expungement under these circumstances, we
will sustain the assignment of error and reverse the judgment
of the common pleas court.
3} The statutory scheme for the sealing of criminal
records is reasonably straightforward as applied to the facts
of this matter. Only an "eligible offender" is
eligible to apply to have his or her record of conviction
sealed. R.C. 2953.32(A)(1). Logically enough, then, the court
to which the application is made "shall" first
"[d]etermine whether the applicant is an eligible
offender * * *." R.C. 2953.32(C)(1)(a).
4} An "eligible offender" is someone who
either (a) "has been convicted of one or more offenses,
but not more than five felonies" if none of the offenses
is of a degree higher than a fourth-degree felony and
"none of those offenses [is] an offense of
violence" or a felony sex offense, or (b) (to the extent
relevant here) "has not more than one felony
conviction." R.C. 2953.31(A)(1)(a) and (b).
5} Because C.D.D. has been convicted of two
felonies, he cannot qualify as an eligible offender under
R.C. 2953.31(A)(1)(b). And he cannot qualify under R.C.
2953.31(A)(1)(a) if he has been convicted of "an offense
6} The question therefore becomes whether his
conviction of domestic violence as a fourth-degree
misdemeanor pursuant to R.C. 2919.25 constitutes "an
offense of violence." Not surprisingly, perhaps, it
does. Ohio's legislature has specified that "[a]s
used in the Revised Code" the phrase"
'[o]ffense of violence' means * * * [a] violation of