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State v. A.H.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellant,
v.
A.H., Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-00-397049-ZA

         JUDGMENT: REVERSED AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellant.

          Mark A Stanton, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellee.

          JOURNAL ENTRY AND OPINION

          SEAN 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. Id.

         {¶ 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 offender." Id.

         {¶ 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" ...


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