State v. A.G.

2021 Ohio 3460

Opinion

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, :

No. 110132

v. :

A.G., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: September 30, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-588501-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brandon A. Piteo, Assistant Prosecuting Attorney, for appellant.

John B. Gibbons, for appellee.

ANITA LASTER MAYS, J.:

Plaintiff-appellant state of Ohio (“the state”) appeals the trial court’s decision to grant defendant-appellee A.G.’s application to seal her criminal record. We reverse the trial court’s decision and order A.G.’s record unsealed.

Prior to A.G.’s record being sealed, A.G. had been convicted of five misdemeanors. In 1999, A.G. was convicted of receiving stolen property, a first- degree misdemeanor, in violation of R.C. 2913.51(A); and attempted unauthorized use of motor vehicle, a first-degree misdemeanor, in violation of R.C. 2923.02 and 2903.02. In 2002, A.G. was convicted of attempted intimidation, a first-degree misdemeanor, in violation of R.C. 2921.04. In 2014, A.G. was convicted of aggravated trespass, a first-degree misdemeanor, in violation of R.C. 2911.211(A); and assault, a first-degree misdemeanor, in violation of R.C. 2903.13(A). I. Facts and Procedural History On September 15, 2020, A.G. filed a motion for expungement pursuant to R.C. 2953.52. The trial court ordered an expungement investigation report for a list of A.G.’s criminal convictions. The state received the report and filed an opposition to A.G.’s motion for expungement on November 12, 2020, arguing that A.G. was not an eligible offender pursuant to R.C. 2953.31(A)(1)(a), and thus, A.G. was not statutorily eligible to have her criminal record sealed.

The trial court filed a journal entry on November 13, 2020, granting A.G.’s motion, ordering the record sealed. In its journal entry, the trial court stated that the “matter came on to be heard” and referenced the motion for expungement. The trial court stated that it considered the evidence and reasons against granting the application specified in the state’s objection. The trial court found that A.G. was an eligible offender under R.C. 2953.31(A). Upon receiving the trial court’s order and filing an appeal, the state requested a copy of the hearing transcript. The state learned from the chief court reporter that no hearing related to A.G.’s case was heard on the aforementioned date.

Upon learning this information, the state filed a notice of unavailability of transcripts and this court, sua sponte, instructed the state to file an amended praecipe. In response, the state filed a notice of appellant’s intention to file a statement of evidence or proceedings in lieu of a transcript under App.R. 9(C). A.G. did not file an objection. On March 1, 2021, the trial court approved the App.R. 9(C) statement.

The state filed this appeal assigning one error for our review:

The trial court erred in granting A.G.’s application to seal her criminal record because she was not an eligible offender as defined by R.C. 2953.31(A)(1).

II. Expungement and Eligible Offender A. Standard of Review “An appellate court generally reviews a trial court’s disposition of an application to seal a record of conviction under an abuse of discretion standard.” State v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715, ¶ 6, citing State v. Black, 10th Dist. Franklin No. 14AP-338, 2014-Ohio-4827, ¶ 6. An abuse of discretion occurs where the trial court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

“However, whether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo.” State v. D.D.G., 2019-Ohio-

4982, 136 N.E.3d 1271, ¶ 13 (8th Dist.), citing M.E. at ¶ 7. “While ‘expungement is a state-created act of grace and ‘is a privilege, not a right,’” M.E. at ¶ 7, quoting State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), “‘a trial court may only grant expungement when an applicant meets all of the statutory requirements. State v. Hamilton, 75 Ohio St.3d 636, 640, 665 N.E.2d 669 (1996).’” Id., quoting State v. Williamson, 10th Dist. Franklin No. 12AP-340, 2012-Ohio-5384, ¶ 10. “R.C. 2953.32 governs the sealing of a record of conviction for ‘eligible offenders.’” Id.

B. Law and Analysis The state argues that the trial court erred when it granted A.G.’s motion for expungement of record of criminal conviction because A.G. is not an eligible offender under R.C. 2953.31(A)(1). R.C. 2953.31(A)(1) states that an eligible offender means either:

(a) Anyone who has been convicted of one or more offenses in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense and all of the offenses in another jurisdiction, if committed in this state, would be felonies of the fourth or fifth degree or misdemeanors and none of those offenses would be an offense of violence or a felony sex offense.

(b) Anyone who has been convicted of an offense in this state or any other jurisdiction, to whom division (A)(1)(a) of this section does not apply, and who has not more than two felony convictions, has not more than four misdemeanor convictions, or, if the person has exactly two felony convictions, has not more than those two felony convictions and two misdemeanor convictions in this state or any other jurisdiction. The conviction that is requested to be sealed shall be a conviction that is eligible for sealing as provided in section 2953.36 of the Revised Code. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.

When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C)(1)(a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction.

The state presents three issues for this court to consider: (1) A.G.’s conviction for misdemeanor assault is an offense of violence, (2) A.G.’s conviction for attempted intimidation is an offense of violence, and (3) A.G. has more than four misdemeanors, which all make A.G. an ineligible offender.

The state’s first issue is that A.G. is not an eligible offender because A.G. has been convicted of assault, which is an offense of violence. However, the state’s argument is misplaced. At the beginning of R.C. 2953.31, it states: “[a]s used in sections 2953.31 to 2953.36 of the Revised Code * * *.” Looking at R.C. 2953.36(A)(4), it states:

Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 of the Revised Code and is not a violation of section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a misdemeanor of the first degree.

A.G. was convicted of violating R.C. 2903.13. In accordance with R.C. 2953.36(A)(4), misdemeanor assault, in violation of R.C. 2903.13, is not considered a conviction of an offense of violence for the purposes of having a criminal record sealed. See Euclid v. El-Zant, 143 Ohio App.3d 545, 758 N.E.2d 700 (8th Dist.2001) (Section 2953.36 did not preclude expungement of first-time misdemeanor assault convictions.); State v. Klempay, 7th Dist. Mahoning No. 10 MA 129, 2011-Ohio-2643, ¶ 2 (“Although R.C. 2953.36 provides generally that convictions for felony and misdemeanor crimes of violence may not be sealed, it provides four exceptions to that rule, one of which is for misdemeanor assault convictions.”). Therefore, the state’s issue regarding the assault conviction is without merit.

The state’s second issue is that A.G. is not an eligible offender because A.G. was convicted of attempted intimidation, in violation of R.C. 2921.04, which is an offense of violence. “The term ‘offense of violence’ is not defined in the specific code sections governing expungement, R.C. 2953.31 to 2953.36.” State v. R.M., 8th Dist. Cuyahoga No. 104327, 2017-Ohio-7396, ¶ 8. However, “[a]n ‘offense of violence’ is defined in R.C. 2901.01, the statute providing various terms for use in the Ohio Revised Code.” Id. R.C. 2901.01(A)(9)(a) states that an “offense of violence” is a violation of R.C. 2921.04, and R.C. 2901.01(A)(9)(d) states that an offense of violence is “[a] conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.” Therefore, attempted intimidation is an offense of violence not included in the R.C. 2953.36 list of exceptions.

We find that the state’s second issue has merit. A.G. was convicted of an offense of violence as defined in R.C. 2901.01(A)(9)(a) and is therefore determined to be an ineligible offender. “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.” State v. A.H., 8th Dist. Cuyahoga No. 108205, 2019-Ohio-5120, ¶ 7. “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., citing State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 15.

A.G.’s conviction for attempted intimidation precludes A.G. from being deemed an eligible offender under R.C. 2953.31(A)(1)(a). The state’s third issue is that A.G.’s number of misdemeanor offenses bars A.G. from being an eligible offender under R.C. 2953.31(A)(1)(b). A.G. has been convicted of five misdemeanors, and the statute states that anyone convicted of more than four misdemeanors is not an eligible offender. Therefore, A.G. is not an eligible offender under the statute.

A.G. argues that this court should instruct the trial court to conduct a hearing on the issue because we do not have the benefit of a written transcription of any hearing. However, “a trial court does not need to hold a hearing when an offender is not eligible as a matter of law and that ineligibility can be established by proof or documentation included in the record.” D.D.G., 2019-Ohio-4982, 136 N.E.3d 1271, ¶ 25 (8th Dist.).

A.G. is statutorily ineligible to have the criminal record sealed, and therefore a hearing is not required. “A hearing is not required under these circumstances for three reasons: (1) R.C. 2953.32(B)’s plain language does not require a trial court to ‘hold’ a hearing, (2) other appellate districts have recognized that a hearing is not necessary when an offender is not eligible for sealing as a matter of law, and (3) judicial economy.” Id.

Therefore, the state’s sole assignment of error is sustained.

Judgment reversed and remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

___________________________

ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, A.J., and LISA B. FORBES, J., CONCUR