State v. Lively

2022 Ohio 462

Opinion

[Cite as State v. Lively, 2022-Ohio-462.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Earle E. Wise, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : DAVID LIVELY, : Case No. 21 CAA 09 0046 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 82 CR I 09 0111

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 16, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL MICHAEL A. MARROCCO Delaware County Prosecuting Attorney Saia & Piatt, Inc. 98 North Union Street By: LAURA K. DELGADO Delaware, Ohio 43015 Assistant Prosecuting Attorney Delaware County Prosecutor’s Office 145 North Union Street Delaware, Ohio 43015 Delaware County, Case No. 21 CAA 09 0046 2

Baldwin, J.

{¶1} Defendant-appellant David Lively appeals from the August 24, 2021

Judgment Entry denying his Motion to Expunge and Seal Record. Plaintiff-appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On September 22, 1982, the Delaware County Grand Jury indicted

appellant on one count of grand theft (a motorcycle) in violation of R.C. 2913.02, then a

felony of the third degree. Appellant, on February 10, 1983, entered a plea of guilty to

grand theft. On March 15, 1983, appellant was sentenced to a term of incarceration of no

less than one year and no more than ten years on the offense of grand theft.

{¶3} Appellant, on June 30, 2021, filed a Motion to Expunge and Seal Record.

The trial court, pursuant to a Judgment Entry filed on August 24, 2021, denied the same.

{¶4} Appellant now appeals, raising the following assignment of error on appeal:

{¶5} “I. THE COURT ERRED IN FINDING APPELLANT STATUTORILY

INELIGIBLE FOR THE SEALING OF HIS RECORDS PER OHIO CODE [SECTION]

2953.31.”

I

{¶6} Appellant, in his sole assignment of error, argues that the trial court erred in

denying his Motion to Expunge and Seal Record. We disagree.

{¶7} The issue in this case is whether or not the trial court erred in finding that

appellant was statutorily ineligible for the sealing of this record under R.C.

2953.32(A)(1)(a). Delaware County, Case No. 21 CAA 09 0046 3

{¶8} A person convicted of a crime has no substantive right to have the record

of that conviction sealed. State v. V.M.D., 148 Ohio St.3d 450, 71 N.E.3d 274, 2016-Ohio-

8090, ¶ 13. The sealing of the record of a conviction “is an act of grace created by the

state.” State v. Hamilton, 75 Ohio St.3d 636, 639. 1996-Ohio-440, 665 N.E.2d 669.

Whether an applicant is an eligible offender under R.C. 2953.31 is a question of law that

this court reviews de novo. State v. Puckett, 12th Dist. Clermont No. CA2020-11-065,

2021-Ohio-2634, ¶ 7-8; State v. Futrall, 123 Ohio St.3d 498, 918 N.E.2d 497, 2009-Ohio-

5590, ¶ 6-7. The statutory law in effect at the time of the filing of an R.C. 2953.32

application to seal a record of conviction is controlling. State v. LaSalle, 96 Ohio St.3d

178, 2002-Ohio-4009, paragraph two of the syllabus.

{¶9} R.C. 2953.32(A)(1) sets forth the procedure for applying for expungement

proceedings: Such section provides, in relevant part, as follows:

{¶10} (A)(1) Except as provided in section 2953.61 of the Revised Code or as

otherwise provided in division (A)(1)(d) of this section, an eligible offender may apply to

the sentencing court if convicted in this state, or to a court of common pleas if convicted

in another state or in a federal court, for the sealing of the record of the case that pertains

to the conviction, except for convictions listed under section 2953.36 of the Revised

Code...

{¶11} R.C. 2953.31 defines an “eligible offender”, in part, as follows:

{¶12} (A)(1) “Eligible offender” means either of the following:

{¶13} (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 Delaware County, Case No. 21 CAA 09 0046 4

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.

{¶14} There is no dispute that appellant was convicted of a felony of the third

degree and, therefore, not an eligible offender as defined by R.C. 2953.31(A)(1)(a).

However, appellant argues that, in 1996, Senate Bill No.2 revised the felony sentencing

laws and that under the revisions, his charge of theft of a motor vehicle now fails under

theft (of a motor vehicle) under R.C. 2913.02(A)(5) which would be classified as a felony

of the fourth degree making him eligible.

{¶15} The question thus becomes if the third degree felony for which appellant

was convicted becomes a fourth degree felony retroactively.

{¶16} In State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634, 1998-Ohio-423, the

Ohio Supreme Court made clear that the sentencing provisions of Senate Bill 2 only

applied to crimes committed on or after July 1, 1996, the effective date of S.B. 2, and are

not to be applied retroactively. Id. at para. 2 of syllabus. See, also, State v. Warren, 118

Ohio St.3d 200, 887 N.E.2d 1145, 2008-Ohio-2011 (extensive revisions to criminal

statutes that were enacted in Senate Bill 2, effective July 1, 1996, apply only to crimes

committed on or after July 1, 1996).

{¶17} Senate Bill 2, therefore, did not apply to appellant’s crime because it did not

apply retroactively.

{¶18} Based on the forgoing, we find that the trial court did not err in denying

appellant’s Motion to Expunge and Seal Record.

{¶19} Appellant’s sole assignment of error, is, therefore, overruled. Delaware County, Case No. 21 CAA 09 0046 5

{¶20} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Wise, Earle, P.J. and

Gwin, J. concur.