[Cite as State v. A.G., 2021-Ohio-3460.]
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