State v. A.K.H.

2023 Ohio 220, 206 N.E.3d 817

• Court: Ohio Court of Appeals
• Decided: January 26, 2023
• Docket: 111581
• Status: Published

Opinion

[Cite as State v. A.K.H., 2023-Ohio-220.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111581 v. :

A.K.H., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 26, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-02-422170-ZA

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellant.

MARY EILEEN KILBANE, J.:

Defendant-appellant A.K.H. appeals the trial court’s decision that,

pursuant to R.C. 2953.31, A.K.H. was not an eligible offender for purposes of sealing his conviction and the court’s denial of A.K.H.’s application to seal his records of

conviction (“motion to seal records”). For the following reasons, we affirm.

Factual and Procedural History

This case stems from convictions in two separate criminal cases. In

2002, in Cuyahoga C.P. No. CR-01-410193-B, A.K.H. was convicted of preparation

of drugs for sale and possession of criminal tools, both felonies of the fifth degree.1

In the same year, in Cuyahoga C.P. No. CR-02-422170-ZA, A.K.H. was convicted of

assault, a misdemeanor of the first degree and trafficking in drugs, a felony of the

third degree.2

On October 27, 2021, A.K.H. filed a motion pursuant to R.C. 2953.32

that requested the trial court seal his convictions in the above-referenced cases. On

the same date, the trial court ordered an expungement report. The expungement

report identified the above-referenced convictions as well as a 2005 disorderly

conduct conviction in Bedford Municipal Court; a 2006 disorderly conduct

conviction in Garfield Heights Municipal Court; and a 2012 possession of marijuana

conviction in Lyndhurst Municipal Court.3 The expungement report did not identify

the felony classifications of the 2005, 2006, and 2012 convictions nor the code

1 A.K.H.’s convictions in Cuyahoga C.P. No. CR-01-410193-B will merge for purposes of his motion to seal his records. See R.C. 2953.31(A)(1)(b) that reads, in pertinent part: “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.” 2 A.K.H.’s convictions in Cuyahoga C.P. No. CR-02-422170-ZA will merge for

purposes of his motion to seal his records. See R.C. 2953.31(A)(1)(b). 3 The expungement report listed additional prior charges that were dismissed or

nolled and, therefore, are not referenced here. sections violated in conjunction with the convictions. On November 22, 2021, the

state filed a brief in opposition to A.K.H.’s motion to seal his records that argued

A.K.H. did not meet the statutory definition of an eligible offender. Specifically, the

state argued A.K.H.’s two felony convictions and three misdemeanor convictions

disqualified him under R.C. 2953.31’s definition of an eligible offender.

On March 23, 2022, the trial court conducted a hearing on A.K.H.’s

motion to seal records. During the hearing, the parties stated that the Bedford and

Lyndhurst convictions were classified as misdemeanors of the first degree; the

parties were unaware of the classification for the 2006 Garfield Heights Municipal

Court conviction. A.K.H. argued he met the R.C. 2953.31 definition of an eligible

offender under an equal protection claim. On May 25, 2022, the trial court issued a

journal entry that stated A.K.H. did not qualify as an eligible offender and denied

his motion to seal records.

On June 8, 2022, A.K.H. filed a timely notice of appeal,4 presenting a

single assignment of error for our review:

The trial court erred in denying [A.K.H.’s] application for expungement as he is an eligible offender as a matter of law.

Legal Analysis

In his sole assignment of error, A.K.H. argues that the trial court erred

when it found he was not an eligible offender as defined in R.C. 2953.31 and denied

his motion to seal records. The state argues that A.K.H. failed to introduce sufficient

4 A.K.H. filed an appeal from Cuyahoga C.P. No. CR-02-422170-ZA only. evidence to demonstrate that he was an eligible offender. Specifically, the state

argues that (1) A.K.H. failed to show that his disorderly conduct convictions were for

similar behavior prohibited under R.C. 2917.11 and punished under that statute as

minor misdemeanors, and (2) A.K.H. relied on evidence outside the record.

An appellate court generally reviews a trial court’s denial of an

R.C. 2953.32 motion to seal the record of a conviction under an abuse of discretion

standard. Bedford v. Bradberry, 8th Dist. Cuyahoga No. 100285, 2014-Ohio-2058,

¶ 5, citing State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th

Dist.2001). The term abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-

3304, 187 N.E.3d 463. However, before a court decides whether to grant an

application to seal an offender’s record of conviction, the court must determine

whether the applicant is an eligible offender. R.C. 2953.32(C)(1)(a). The

determination of an applicant’s status as an eligible offender is an issue of law

reviewed under a de novo standard. State v. J.C., 8th Dist. Cuyahoga No. 108730,

2020-Ohio-1617, ¶ 7, citing State v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-

Ohio-4715, ¶ 6, citing State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025,

¶ 15.

Additionally, “R.C. 2953.31 and 2953.32 must be liberally construed

and the relief available must be liberally granted.” State v. J.C., 8th Dist. Cuyahoga

No. 94427, 2010-Ohio-4686, ¶ 9, citing Hilbert at 827, 764 N.E.2d 1064. Ohio law permits a trial court to order the sealing of a record of

conviction of an eligible offender. R.C. 2953.32. An eligible offender includes

(1) those to whom R.C. 2953.31(A)(1)(a) does not apply,5 and (2) those who were

convicted of exactly two felony convictions and two misdemeanor convictions in this

state or any other jurisdiction. R.C. 2953.31(A)(1)(b). A court does not consider

minor misdemeanor convictions when it assesses one’s status as an eligible offender.

R.C. 2953.31(A)(2). Further, “[w]hen 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.” R.C. 2953.31(A)(1)(b).

Applying the statutory definition of eligible offender, we find that

A.K.H.’s two felony convictions in Cuyahoga C.P. No. CR-01-410193-B resulted from

the same act or resulted from the same offenses committed at the same time and,

therefore, are counted as one conviction. R.C. 2953.31(A)(1)(b). Similarly, in

Cuyahoga C.P. No. CR-02-422170-ZA, A.K.H.’s third-degree felony and first-degree

misdemeanor convictions are considered one felony conviction.

5 An individual qualifies as an “eligible offender” under R.C. 2953.31(A)(1)(a) if he or she satisfies the following:

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.

R.C. 2953.31(A)(1)(a). Pursuant to A.K.H.’s criminal history, neither party submitted that A.K.H. qualified as an “eligible offender” under R.C. 2953.31(A)(1)(a). R.C. 2953.31(A)(1)(b). In 2005, the Garfield Heights Municipal Court convicted

A.K.H. of disorderly conduct, a misdemeanor of the first degree, and in 2012, the

Lyndhurst Municipal Court convicted A.K.H. of possession of marijuana, a

misdemeanor of the first degree. We take judicial notice that the 2006 conviction

in Bedford Municipal Court for disorderly conduct was classified as a misdemeanor

of the fourth degree.6 With two felony convictions, two first-degree misdemeanors,

and one fourth-degree misdemeanor, A.K.H. was disqualified as an eligible offender

under R.C. 2953.31. However, our review does not end here, but next addresses

A.K.H.’s alleged equal protection violation.

A.K.H. implicitly conceded at the hearing on his motion to seal

records that he did not initially meet the statutory definition of an eligible offender

but argued that the 2005 and 2006 disorderly conduct convictions demonstrated an

equal protection violation and, therefore, he met the definition of an eligible

offender. Under his equal protection claim, A.K.H. argued that his disorderly

conduct convictions should be treated as minor misdemeanors for expungement

purposes because the Ohio Revised Code classifies such convictions as minor

misdemeanors. Specifically, if A.K.H. were convicted under R.C. 2917.11 for

6 “An appellate court is permitted to take judicial notice of publicly accessible online court dockets.” Fipps v. Day, 8th Dist. Cuyahoga No. 111633, 2022-Ohio-3434, ¶ 2, fn. 1, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516; State v. Estridge, 2d Dist. Miami No. 2021-CA-25, 2022-Ohio-208, ¶ 12, fn. 1 (“We note that it is a common practice for appellate courts to take judicial notice of publicly accessible online court dockets.”). But see State ex rel. Bradford v. Bowen, 167 Ohio St.3d 477, 2022-Ohio-351, 194 N.E.3d 345, ¶ 12 (“Everhart merely recognized that other courts have taken judicial notice of court records that were available on the Internet.”). disorderly conduct — rather than under the Garfield Heights and Bedford municipal

ordinances — he would be eligible to have his records sealed because the convictions,

classified as minor misdemeanors under the Ohio Revised Code, would not impact

his status as an eligible offender. A.K.H. argued the classification of the 2005 and

2006 disorderly conduct convictions as first-degree and fourth-degree

misdemeanor convictions, respectively, denied him equal protection under the law.

This is a creative argument, but we are limited to the facts here and cannot assume

the disorderly conduct convictions were minor misdemeanors.

“[A]n equal protection challenge may be successfully raised where

individuals with convictions from one community defining the offense with an

increased penalty are precluded from having their records sealed whereas

individuals with convictions from another community applying a less stringent

penalty are not precluded from having their records sealed, and this distinction is

not rationally related to a legitimate governmental interest.” State v. T.S., 2020-

Ohio-5182, 162 N.E.3d 137, ¶ 11 (8th Dist.), citing State v. J.S., 8th Dist. Cuyahoga

No. 101329, 2015-Ohio-177, ¶ 14.7

“The federal and state Equal Protection Clauses are essentially the

same and require that all similarly situated individuals be treated in a similar

7 We note that “the Ohio Supreme Court has determined a municipal ordinance that increases the penalty for a crime from a minor misdemeanor to a higher-level misdemeanor, rather than to a felony, is not in conflict with the general laws of Ohio within the meaning of Article XVIII, Section 3, of the Ohio Constitution.” J.S. at ¶ 12, citing Niles v. Howard, 12 Ohio St.3d 162, 165, 466 N.E.2d 539 (1984). Here, a separate issue is raised by A.K.H.’s equal protection claim. manner.” J.S. at ¶ 13, citing Ohio Apt. Assn. v. Levin, 127 Ohio St. 3d 76, 2010-Ohio-

4414, 936 N.E.2d 919, ¶ 33. “‘[A] statute that does not implicate a fundamental right

or a suspect classification’” violates equal-protection principles if it is not “‘rationally

related to a legitimate government interest.’” J.S. at ¶ 13, quoting State v. Williams,

126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 39. This court held that “the

expungement statutes do not implicate a fundamental right or suspect

classification.” J.S. at ¶ 14. Further, we discern no rational basis or legitimate

governmental interest that allows redress for some applicants to seal their

conviction records but denies redress to other similarly situated applicants. See T.S.

at ¶ 14. However, the facts before us do not demonstrate A.K.H. was similarly

situated to offenders convicted under the relevant Ohio Revised Code section —

R.C. 2917.11 — for a minor misdemeanor.

Pursuant to R.C. 2917.11, a conviction of disorderly conduct is

generally classified as a minor misdemeanor. R.C. 2917.11(E)(1). However, if an

offender’s behavior falls within the parameters of R.C. 2917.11(E)(3) or (4), the

offense is elevated to a misdemeanor of the fourth degree. R.C. 2917.11(E)(1)-(4).

Absent evidence that shows A.K.H.’s 2005 and 2006 disorderly conduct convictions

would be classified under R.C. 2917.11 as minor misdemeanors — rather than

misdemeanors of the fourth degree — A.K.H. cannot demonstrate his 2005 and

2006 convictions were for the same conduct that would amount to a minor

misdemeanor if he had been convicted under the Ohio Revised Code. Thus, A.K.H.’s

equal protection claim lacks merit. We are constrained by the evidence presented and, therefore, must

affirm the trial court’s ruling that found A.K.H. did not qualify as an eligible offender

and denied his motion to seal his record of convictions.

Judgment affirmed.

It is ordered that appellee recover from appellant 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.

MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR