Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
REVERSED AND REMANDED
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Tasha Forchione, Assistant Prosecuting
Attorney, for appellant.
Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellee.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE
1} The state appeals the trial court's decision
to seal A.H.'s record of his February 2001 convictions,
which are based on a violation of R.C. 2907.06 (misdemeanor
sexual imposition) and a violation of R.C. 2903.13
(misdemeanor assault). For the following reasons, we reverse
the decision of the trial court.
2} A.H. filed a motion to seal his record of
conviction in February 2017. In order to avail himself of the
statutory provisions for sealing a record of conviction, A.H.
had to demonstrate that the statutory provisions establishing
the right to seal a record of conviction apply in his case
and, if those provisions apply, that he is considered an
"eligible offender" under R.C. 2953.31. Throughout
these proceedings, A.H. has largely ignored R.C. 2953.36,
which unambiguously establishes that sections 2953.31 through
2953.35 of the Revised Code do not apply to convictions under
RC. 2907.06. In A.H.'s motion to seal the record, he
merely assumed that R.C. 2953.31 through 2953.35 applied.
3} At the time of filing, R.C. 2953.31 defined
"eligible offender" to include any offender who has
been convicted of not more than one felony or two misdemeanor
convictions. Id., effective Sept. 19, 2014. If two
or more convictions arose from the same facts and
circumstances, those convictions were treated as a single
conviction. Id. Before the trial court held a
hearing on the matter, the General Assembly amended R.C.
2953.31(A), effective Oct. 29, 2018, to expand the definition
of "eligible offender." Under the current version
of the statute, an "eligible offender" also
includes anyone convicted of not more than five felonies,
unless those felonies are offenses of violence or felony sex
offenses. RC. 2953.31(A)(1)(a). The former definition
remained unaltered. RC. 953.31(A)(1)(b).
4} A.H. argues that in light of the changes to R.C.
2953.31(A)(1)(a) that expand the applicability of the
statute, and because he could be considered an "eligible
offender" under that provision, he is entitled to have
his record of convictions sealed. According to A.H., the
amended version of R.C. 2953.31(A) permits offenders with
misdemeanor sex offense convictions to have their records
sealed because any such offender can be deemed
"eligible" under that statutory section in light of
the fact that the legislature only excluded felony sex
offenders from seeking to seal a record of conviction. The
state objected, claiming that A.H. cannot avail himself of
R.C. 2953.31 because that section does not apply to
misdemeanor convictions for violations of R.C. 2907.06
according to the unambiguous language of R.C. 2953.36(A). The
trial court disagreed with the state, and in ordering
A.H.'s record of conviction sealed, the court concluded
that AH. "is an eligible offender under RC. 2953.31(A) *
* *." The state appealed.
5} Our review is quite broad. Whether an applicant
is eligible to seek the sealing of a criminal record is an
issue of law, which appellate courts review de novo.
State v. Paige, 10th Dist. Franklin No. 15AP-510,
2015-Ohio-4876, ¶ 5, citing State v. Hoyles,
10th Dist. Franklin No. 08AP-946, 2009-Ohio-4483, ¶ 4,
and State v. Black, 1oth Dist. Franklin No.
14AP-338, 2014-Ohio-4827, ¶ 6.
6} The entire focus of A.H.'s motion to seal his
record of conviction was to establish that he is an
"eligible offender" as the term of art is defined
under R.C. 2953.31(A). Consideration of whether A.H. meets
that statutory definition is not the dispositive issue. The
sole question is whether R.C. 2953.31 is even applicable to
the particular crimes A.H. committed. If R.C. 2953.31 is not
applicable, then A.H.'s ability to demonstrate that he is
an "eligible offender" thereunder is of little
consequence. An offender has no substantive right to have a
record of conviction sealed. State v. V.M.D., 148
Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 13.
Sealing a record "'is an act of grace created by the
state.'" Id., quoting State v.
Hamilton, 75 Ohio St.3d 636, 639, 1996-Ohio-440, 665
N.E.2d 669. The threshold question that must be resolved
before the trial court can exercise its discretion to
consider whether to seal any record of conviction, is whether
sections 2953.31 to 2953.35 of the Revised Code, which
authorize the trial court to act, apply to the offender.
7} The Ohio Supreme Court has unambiguously
concluded that "R.C. 2953.36 precludes the sealing of
records of certain convictions; thus, an offender seeking to
have sealed the records of conviction for an offense listed
in R.C. 2953.36 is an ineligible offender" irrespective
of R.C. 2953.31. Id. at ¶ 14. Further,
"R.C. 2953.36 speaks for itself." Id.
Courts cannot indulge in consideration of legislative intent
if the statute is clear and unambiguous. Id. at
¶ 15. "'When the General Assembly has
plainly and unambiguously conveyed its legislative intent,
there is nothing for a court to interpret or construe, and
therefore, the court applies the law as written.'"
Id., quoting State v. Kreischer, 109 Ohio
St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus. In other
words, according to V.M.D., the first step in the
process of sealing a record of conviction is to determine
whether the offender is eligible under RC. 2953.36 in the
colloquial sense, i.e., eligible to invoke RC. 2953.31
through R.C. 2953.35. If he is, then the court must determine
whether the offender is an "eligible offender" as
that specific term of art is defined under R.C. 2953.31(A).
If R.C. 2953.36 precludes an offender from applying sections
2953.31 through 2953.35 to the particular convictions at
issue, then the offender is an "ineligible
8} As applicable to the current case, under R.C.
2953.36, the General Assembly unambiguously provided that
R.C. 2953.31 through 2953.35 do not apply to convictions for
violations of R.C. 2907.06, unless, under division (B) of
that section, it is determined that "on the date of the
conviction, [sections 2953.31 to 2953.35 of the Revised Code]
did not apply to the conviction, but after the date of the
conviction, the penalty for or classification of the
offense was changed so that those sections apply to the
conviction." (Emphasis added.)
9} The penalty for, or the classification of, the
sexual imposition offense under R.C. 2907.06 has not changed
since A.H.'s original conviction in 2001. Under the
version of RC. 2907.06 then in effect, as it stands today,
the crime has always been punishable as a misdemeanor sex
offense. Regardless of whether A.H. could be considered an
"eligible offender" under R.C. 2953.31(A), his
record of conviction cannot be sealed according to the
unambiguous language of R.C. 2953.36(A)(2), which provides
that sections 2953.31 through 2953.35 of the Revised Code do
not apply to any conviction for a violation of RC. 2907.06.
The exception to the prohibition announced under RC.
2953.36(A) does not apply. In light of the unambiguous
language of RC. 2953.36(A), it necessarily follows that R.C.
2953.31 does not apply to A.H.'s conviction. Because R.C.
2953.31(A) does not apply, the trial court erred in
considering whether A.H. was an "eligible offender"