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State v. C.D.D

Court of Appeals of Ohio, Tenth District

November 19, 2019

State of Ohio, Plaintiff-Appellant,
v.
[C.D.D], Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. Nos. 96CR-6559 & 98CR-1266

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellant.

          Yeura R. Venters, Public Defender, and Robert D. Essex, for appellee.

         Argued:

          Barbara A. Farnbacher.

          Robert D. Essex.

          DECISION

          NELSON, J.

         {¶ 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 of violence."

         {¶ 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 [various ...


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