[Cite as State v. Yoder, 2024-Ohio-1264.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 23CA006 MICHAEL ROSS YODER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Holmes County Court of Common Pleas, Case No. 05CR056
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 31, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
MATTHEW MUZIC MATTHEW P. MULLEN Holmes County Prosecuting Attorney Krugliak, Wilkins, Griffiths & Dougherty Company, L.P.A. MICHAEL S. BICKIS, ESQ. 405 Chauncey Avenue, N.W. ROBERT K. HENDRIX New Philadelphia, Ohio 44663 Assistant Prosecuting Attorney 164 E. Jackson Street Millersburg, Ohio 44654 Holmes County, Case No. 23CA006 2
Hoffman, J. {¶1} Defendant-appellant Michael Ross Yoder appeals the August 10, 2023
Journal and Docket Entry entered by the Holmes County Court of Common Pleas, which
denied his Application to Seal a Criminal Record. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 19, 2005, Appellant was indicted by the Holmes County
Grand Jury on two (2) counts of unlawful sexual conduct with a minor, in violation of R.C.
2907.04(A), felonies of the fourth degree. Appellant appeared for arraignment on
September 29, 2005, and entered a plea of guilty to the Indictment. Following a Crim. R.
11 colloquy with Appellant, the trial court found him guilty as charged and deferred
sentencing pending a presentence investigation. The trial court ordered Appellant to
undergo a psychological evaluation and be tested for sexually transmitted diseases. The
trial court conducted a sentencing hearing on January 3, 2006, and imposed a term of
180 days in the Holmes County Jail, followed by three (3) years of community control.
The trial court designated Appellant a sexually oriented offender which required him to
register as a sex offender for ten (10) years.
{¶3} Appellant served his jail time, successfully completed all requirements of
his community control, and was released and discharged therefrom, effective January 18,
2009. Appellant complied with the mandatory sex offender registration requirements,
registering annually for a period of ten (10) years, which expired in 2016.
{¶4} On June 2, 2023, Appellant filed an Application to Seal a Criminal Record
pursuant to Ohio Revised Code 2953.32. The state filed a response on July 31, 2023,
arguing Appellant did not qualify to have his record sealed because “Section 2953.32 * *
* [does] not apply to * * * [c]onvictions of a sexually oriented offense when the offender is Holmes County, Case No. 23CA006 3
subject to the requirements of Chapter 2950. of the Revised Code or Chapter 2950. of
the Revised Code as it existed prior to January 1, 2008.” Response to Motion to Seal, p.
1, unpaginated. Appellant filed a reply on August 4, 2023.
{¶5} The trial court conducted a hearing on August 10, 2023. The state asserted
the same argument made in its Response to Appellant’s Application to Seal, to wit:
Appellant was not an eligible offender because he was subject to the registration
requirements of R.C. Chapter 2950. On the record, the trial court expressed its
agreement with the state’s position.
{¶6} Via Journal and Docket Entry filed August 10, 2023, the trial court denied
Appellant’s application to seal. The trial court found:
If the Court were to adopt [Appellant’s] interpretation of R.C.
2953.32(A)(3) and 2953.32(B)(1)(a)(iv), then all sexually oriented offenses
for which offender registration is required except Tier III offenses (which
require lifetime registration) would be eligible for sealing or expungement 5
years after their registration requirements have ended. This would mean
that someone who has committed kidnapping with sexual motivation * * * or
Gross Sexual Imposition of a Victim under 13 * * * would be eligible. This
is too big a shift in legislative policy for the Court to accept as true. August
10, 2023 Journal and Docket Entry at p. 1, unpaginated.1
1 While courts are, at limited times, tasked with determining legislative intent, it is not within a court’s
prerogative to ascertain legislative policy. Holmes County, Case No. 23CA006 4
{¶7} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW
THAT R.C. 2953.32 DOES NOT PERMIT THE SEALING OF
APPELLANT’S 2006 CONVICTION.
I
{¶8} The decision in this case turns on the interpretation of R.C. 2953.32(A)(3).
We review questions of statutory interpretation de novo. Ceccarelli v. Levin, 127 Ohio
St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.
{¶9} “The intention of the legislature is to be collected from the words they
employ.” State v. Fork, __ Ohio St. 3d. __ , 2024-Ohio-1016, 2024 WL 1200219, ¶ 13,
citing United States v. Wiltberger, 18 U.S. 76, 95, 5 Wheat. 76, 5 L.Ed. 37 (1820).
Therefore, “[t]he question is not what did the general assembly intend to enact, but what
is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E.
574 (1902), paragraph two of the syllabus. “When the statutory language is plain and
unambiguous, and conveys a clear and definite meaning, we must rely on what the
General Assembly has said,” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330,
2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, and apply it as written, Summerville v. Forest
Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18. Holmes County, Case No. 23CA006 5
{¶10} The version of R.C. 2953.32 in effect at the time Appellant filed his
application to seal and at the time of the trial court’s ruling thereon provided, in relevant
part:
(A) Sections 2953.32 to 2953.34 of the Revised Code do not apply
to any of the following:
***
(3) Convictions of a sexually oriented offense when the offender is
subject to the requirements of Chapter 2950. of the Revised Code or
Chapter 2950. of the Revised Code as it existed prior to January 1, 2008;
(B)(1) Except as provided in section 2953.61 of the Revised Code or
as otherwise provided in division (B)(1)(a)(iii) of this section, an eligible
offender may apply to the sentencing court * * * for the sealing or
expungement of the record of the case that pertains to the conviction,
except for convictions listed in division (A) of this section. Application may
be made at whichever of the following times is applicable regarding the
offense:
(a) An application for sealing under this section may be made at
whichever of the following times is applicable regarding the offense:
(iv) If the offender was subject to the requirements of Chapter 2950.
of the Revised Code or Chapter 2950. of the Revised Code as it existed Holmes County, Case No. 23CA006 6
prior to January 1, 2008, at the expiration of five years after the
requirements have ended under section 2950.07 of the Revised
Code or section 2950.07 of the Revised Code as it existed prior to January
1, 2008, or are terminated under section 2950.15 or 2950.151 of the
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[Cite as State v. Yoder, 2024-Ohio-1264.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 23CA006 MICHAEL ROSS YODER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Holmes County Court of Common Pleas, Case No. 05CR056
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 31, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
MATTHEW MUZIC MATTHEW P. MULLEN Holmes County Prosecuting Attorney Krugliak, Wilkins, Griffiths & Dougherty Company, L.P.A. MICHAEL S. BICKIS, ESQ. 405 Chauncey Avenue, N.W. ROBERT K. HENDRIX New Philadelphia, Ohio 44663 Assistant Prosecuting Attorney 164 E. Jackson Street Millersburg, Ohio 44654 Holmes County, Case No. 23CA006 2
Hoffman, J. {¶1} Defendant-appellant Michael Ross Yoder appeals the August 10, 2023
Journal and Docket Entry entered by the Holmes County Court of Common Pleas, which
denied his Application to Seal a Criminal Record. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 19, 2005, Appellant was indicted by the Holmes County
Grand Jury on two (2) counts of unlawful sexual conduct with a minor, in violation of R.C.
2907.04(A), felonies of the fourth degree. Appellant appeared for arraignment on
September 29, 2005, and entered a plea of guilty to the Indictment. Following a Crim. R.
11 colloquy with Appellant, the trial court found him guilty as charged and deferred
sentencing pending a presentence investigation. The trial court ordered Appellant to
undergo a psychological evaluation and be tested for sexually transmitted diseases. The
trial court conducted a sentencing hearing on January 3, 2006, and imposed a term of
180 days in the Holmes County Jail, followed by three (3) years of community control.
The trial court designated Appellant a sexually oriented offender which required him to
register as a sex offender for ten (10) years.
{¶3} Appellant served his jail time, successfully completed all requirements of
his community control, and was released and discharged therefrom, effective January 18,
2009. Appellant complied with the mandatory sex offender registration requirements,
registering annually for a period of ten (10) years, which expired in 2016.
{¶4} On June 2, 2023, Appellant filed an Application to Seal a Criminal Record
pursuant to Ohio Revised Code 2953.32. The state filed a response on July 31, 2023,
arguing Appellant did not qualify to have his record sealed because “Section 2953.32 * *
* [does] not apply to * * * [c]onvictions of a sexually oriented offense when the offender is Holmes County, Case No. 23CA006 3
subject to the requirements of Chapter 2950. of the Revised Code or Chapter 2950. of
the Revised Code as it existed prior to January 1, 2008.” Response to Motion to Seal, p.
1, unpaginated. Appellant filed a reply on August 4, 2023.
{¶5} The trial court conducted a hearing on August 10, 2023. The state asserted
the same argument made in its Response to Appellant’s Application to Seal, to wit:
Appellant was not an eligible offender because he was subject to the registration
requirements of R.C. Chapter 2950. On the record, the trial court expressed its
agreement with the state’s position.
{¶6} Via Journal and Docket Entry filed August 10, 2023, the trial court denied
Appellant’s application to seal. The trial court found:
If the Court were to adopt [Appellant’s] interpretation of R.C.
2953.32(A)(3) and 2953.32(B)(1)(a)(iv), then all sexually oriented offenses
for which offender registration is required except Tier III offenses (which
require lifetime registration) would be eligible for sealing or expungement 5
years after their registration requirements have ended. This would mean
that someone who has committed kidnapping with sexual motivation * * * or
Gross Sexual Imposition of a Victim under 13 * * * would be eligible. This
is too big a shift in legislative policy for the Court to accept as true. August
10, 2023 Journal and Docket Entry at p. 1, unpaginated.1
1 While courts are, at limited times, tasked with determining legislative intent, it is not within a court’s
prerogative to ascertain legislative policy. Holmes County, Case No. 23CA006 4
{¶7} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
THE TRIAL COURT ERRED IN HOLDING AS A MATTER OF LAW
THAT R.C. 2953.32 DOES NOT PERMIT THE SEALING OF
APPELLANT’S 2006 CONVICTION.
I
{¶8} The decision in this case turns on the interpretation of R.C. 2953.32(A)(3).
We review questions of statutory interpretation de novo. Ceccarelli v. Levin, 127 Ohio
St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.
{¶9} “The intention of the legislature is to be collected from the words they
employ.” State v. Fork, __ Ohio St. 3d. __ , 2024-Ohio-1016, 2024 WL 1200219, ¶ 13,
citing United States v. Wiltberger, 18 U.S. 76, 95, 5 Wheat. 76, 5 L.Ed. 37 (1820).
Therefore, “[t]he question is not what did the general assembly intend to enact, but what
is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E.
574 (1902), paragraph two of the syllabus. “When the statutory language is plain and
unambiguous, and conveys a clear and definite meaning, we must rely on what the
General Assembly has said,” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330,
2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, and apply it as written, Summerville v. Forest
Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18. Holmes County, Case No. 23CA006 5
{¶10} The version of R.C. 2953.32 in effect at the time Appellant filed his
application to seal and at the time of the trial court’s ruling thereon provided, in relevant
part:
(A) Sections 2953.32 to 2953.34 of the Revised Code do not apply
to any of the following:
***
(3) Convictions of a sexually oriented offense when the offender is
subject to the requirements of Chapter 2950. of the Revised Code or
Chapter 2950. of the Revised Code as it existed prior to January 1, 2008;
(B)(1) Except as provided in section 2953.61 of the Revised Code or
as otherwise provided in division (B)(1)(a)(iii) of this section, an eligible
offender may apply to the sentencing court * * * for the sealing or
expungement of the record of the case that pertains to the conviction,
except for convictions listed in division (A) of this section. Application may
be made at whichever of the following times is applicable regarding the
offense:
(a) An application for sealing under this section may be made at
whichever of the following times is applicable regarding the offense:
(iv) If the offender was subject to the requirements of Chapter 2950.
of the Revised Code or Chapter 2950. of the Revised Code as it existed Holmes County, Case No. 23CA006 6
prior to January 1, 2008, at the expiration of five years after the
requirements have ended under section 2950.07 of the Revised
Code or section 2950.07 of the Revised Code as it existed prior to January
1, 2008, or are terminated under section 2950.15 or 2950.151 of the
Revised Code * * *
R.C. 2953.32, effective April 6, 2023, through October 2, 2023
(Emphasis added).
{¶11} In finding Appellant was not eligible to have his record sealed, the trial court
agreed with the state’s interpretation of the word “when” in R.C. 2953.32(A)(3) as
meaning “once” the offender is subject to R.C. Chapter 2950., not “while” the offender is
subject to such. August 10, 2023 Journal and Docket Entry. We disagree with the trial
court’s interpretation.
{¶12} Words used in a statute must be accorded their usual, normal, and
customary meaning. State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 173, 661
N.E.2d 1049 (1996), citing R.C. 1.42. Grammatically, the term “when,” as used in R.C.
2953.32(A)(3), is a conjunction. Merriam-Webster Dictionary defines the conjunction
“when” as “1. a. at or during the time that: WHILE; b. just at the moment that; c. at any or
every time that: IF.” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/when. Accessed 26 March 2023.
{¶13} Applying the “usual, normal, and customary meaning” of the term “when,”
we find the legislature meant an offender who is convicted of a sexually oriented offense
is not eligible to have his/her record sealed “during the time” or “at any or every time that” Holmes County, Case No. 23CA006 7
(i.e., when) “the offender is subject to the requirements of Chapter 2950. of the Revised
Code or Chapter 2950. of the Revised Code as it existed prior to January 1, 2008.” R.C.
2953.32(A)(3) (Emphasis added). This interpretation comports with the language of R.C.
2953.32(B)(1)(a)(iv), as set forth supra. To restate:
[A]n eligible offender may apply to the sentencing court * * * for the
sealing or expungement of the record of the case that pertains to the
conviction, except for convictions listed in division (A) of this section. * * *
(a) An application for sealing under this section may be made at whichever
of the following times is applicable regarding the offense: * * * (iv) If the
offender was subject to the requirements of Chapter 2950. of the Revised
Code or Chapter 2950. of the Revised Code as it existed prior to January
1, 2008, at the expiration of five years after the requirements have ended *
* *.
R.C. 2953.32(B)(1)(a)(iv) (Emphasis added).
{¶14} Under the trial court’s interpretation of R.C. 2953.32(A)(3), once an offender
is subject to the R.C. Chapter 2950 registration requirements, he/she would never be
permitted to apply for sealing of records even after the registration period is completed.
Such an interpretation would render subsection (B)(1)(a)(iv) meaningless. “We must give
effect to every term in a statute and avoid a construction that would render any provision
meaningless, inoperative, or superfluous” Rhodes v. New Philadelphia, 129 Ohio St.3d
304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 2. Holmes County, Case No. 23CA006 8
{¶15} We further note, although an offender may be eligible to make an
application for sealing his/her record, a trial court is not required to rubber stamp such an
application and seal an offender’s record. Such determination is left to the discretion of
the trial court, taking into consideration the factors set forth in R.C. 2953.32(D).
{¶16} Based upon the foregoing, Appellant’s sole assignment of error is
sustained.
{¶17} The judgment of the Holmes County Court of Common Pleas is reversed
and the matter is remanded to the trial court for further proceedings consistent with this
Opinion and the law.
By: Hoffman, J. Gwin, P.J. and Baldwin, J. concur