State v. Sklenka , 2015 Ohio 5104 ( 2015 )

[Cite as State v. Sklenka, 2015-Ohio-5104.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Sheila G. Farmer, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 15-CA-007, 15-CA-008
RICHARD J. SKLENKA
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Holmes
County, Case No. 05CRB060
JUDGMENT: Reversed
DATE OF JUDGMENT ENTRY: December 7, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEVE KNOWLING LUKE T. BREWER
Prosecuting Attorney Miller, Mast, Mason & Bowling, Ltd.
164 East Jackson Street 88 South Monroe St.
Millersburg, Ohio 44654 Millersburg, Ohio 44654
Holmes County, Case No. 15-CA-007, 15-CA-008 2
Hoffman, P.J.
{¶1} Plaintiff-appellant the state of Ohio appeals the April 1, 2015 Judgment
Entry entered by the Holmes County Municipal Court granting an Application to Seal
Criminal Record filed by Defendant-appellee Richard J. Sklenka.
STATEMENT OF THE CASE1
{¶2} On February 23, 2005, Appellee was convicted of aggravated menacing, in
violation of R.C. 2903.21(A). On February 19, 2015, Appellee filed an Application to Seal
Criminal Record in the Holmes County Municipal Court.
{¶3} The trial court set the application to seal criminal record for an oral hearing
on April 1, 2015. The trial court granted the application via Judgment Entry of the same
date.
{¶4} Appellant the state of Ohio appeals, assigning as error:
{¶5} “I. THE TRIAL COURT LACKED JURISDICTION TO GRANT APPELLEE’S
APPLICATION FOR RELIEF UNDER OHIO REV. CODE §2953.32 AS THE
UNDERLYING OFFENSE COMMITTED BY APPELLEE WAS AGGRAVATED
MENACING (OHIO REV. CODE §2903.21), A STATUTORILY DEFINED ‘OFFENSE OF
VIOLENCE’.”
I.
{¶6} The state of Ohio argues Appellee is, as a matter of law, conclusively
ineligible from having his conviction expunged and his record sealed under the provisions
of R.C. 2953.32 because aggravated menacing is an offense of violence pursuant to R.C.
1 A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Holmes County, Case No. 15-CA-007, 15-CA-008 3
2953.32 and R.C. 2903.21. Offenses of violence are specifically excluded from
expungement and sealing under R.C. 2953.36(C). Accordingly, the state concludes the
trial court was without jurisdiction to grant Appellee relief under R.C. 2953.32. We agree.
{¶7} R.C. 2953.32 provides, in pertinent part,
(A)(1) Except as provided in section 2953.61 of the Revised Code, 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. Application may
be made at the expiration of three years after the offender's final discharge if
convicted of a felony, or at the expiration of one year after the offender's final
discharge if convicted of a misdemeanor.
***
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is an eligible offender or whether the
forfeiture of bail was agreed to by the applicant and the prosecutor in the case.
{¶8} R.C. 2953.36 governs Convictions Precluding Sealing, providing,
(A) Convictions when the offender is subject to a mandatory prison
term;
***
(C) 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
Holmes County, Case No. 15-CA-007, 15-CA-008 4
section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a
misdemeanor of the first degree;
{¶9} R.C. 2903.21 defining aggravated menacing, provides,
(B) Whoever violates this section is guilty of aggravated menacing.
Except as otherwise provided in this division, aggravated menacing is a
misdemeanor of the first degree. If the victim of the offense is an officer or
employee of a public children services agency or a private child placing
agency and the offense relates to the officer's or employee's performance
or anticipated performance of official responsibilities or duties, aggravated
menacing is a felony of the fifth degree or, if the offender previously has
been convicted of or pleaded guilty to an offense of violence, the victim of
that prior offense was an officer or employee of a public children services
agency or private child placing agency, and that prior offense related to the
officer's or employee's performance or anticipated performance of official
responsibilities or duties, a felony of the fourth degree.
{¶10} At the April 1, 2015 Expungement Hearing, the following exchange occurred
on the record,
THE COURT: Richard Sklenka, got bad news. You don’t qualify. It’s a
crime of violence. I mean you have no other charges, you have no other pending.
MR. ESTILL: Your Honor, it appears the only thing he has on his record is
(inaudible) Vandalisim [sic].
THE COURT: But unfortunately you’re not eligible to have it expunged
because it was Aggravated Menacing.
Holmes County, Case No. 15-CA-007, 15-CA-008 5
***
MR. SKLENKA: But I had done a brake job on this guy and I went to try to
block him when he passed me. What I did wrong was in a split second. You know,
that was ten (10) years ago and for the for me to be kind of labeled as that for the
rest of my life. And I’m fifty-six (56) just trying to get a job and it’s really difficult to
do with that there.
THE COURT: Anything further.
MS. WILLIAMS: Your Honor I just asked the probation officer if I understand
by law it can’t be. I don’t know if it’s discretionary with the Court. The State
wouldn’t object.
THE COURT: Every time I try something somebody in your office appeals.
MS. WILLIAMS: Uh, I’m not going to appeal it.
THE COURT: Well I know it was not ever you it was somebody else in the
office.
Tr. at p. 2.
{¶11} The trial court proceeded in granting the application to seal.
{¶12} In State v. Vale, 8th Dist. No. 85425, 2005-Ohio-3725, the Eighth District
Court of Appeals addressed the issue raised herein,
The record demonstrates the trial court lacked jurisdiction to consider
Vale's application. R.C. 2953.36(C) specifies expungement cannot be
granted to those persons convicted of an “offense of violence.” A conviction
for violation of R.C. 2903.21 is defined in R.C. 2901.01(A)(9)(a) as an
“offense of violence.” Therefore, Vale was ineligible for the relief he sought.
Holmes County, Case No. 15-CA-007, 15-CA-008 6
State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041, 2000–Ohio–474; State
v. Salim, Cuyahoga App. No. 82204, 2003–Ohio–2024.
Under these circumstances, the trial court had no authority to order
the record of Vale's convictions sealed. Id.In In Re Black, 10th Dist. No. 08 AP 37, 2008 Ohio 4687,
“The first basic principle is that expungement is an act of grace
created by the state and is a privilege, not a right.” State v. Winship, Franklin
App. No. 04AP-384, 2004-Ohio-6360, at ¶ 8, citing State v. Simon (2000),
87 Ohio St.3d 531, 533, 721 N.E.2d 1041. Thus, “[e]xpungement should be
granted only when all requirements for eligibility are met.” Simon, supra,
citing State v. Hamilton (1996), 75 Ohio St.3d 636, 640, 665 N.E.2d 669(noting that “the government possesses substantial interest in ensuring that
expungement is granted only to those who are eligible”).
***
The parties dispute the effect of the prosecution's statement at the
expungement hearing. Appellee contends any deficiencies in his meeting
the statutory criteria render the trial court's judgment merely voidable, and
the prosecution waived any error when it withdrew its objection to the
expungement application. Appellant, by contrast, contends the
prosecution's comments are irrelevant, as the trial court lacked jurisdiction
to adjudicate the expungement application where the crime to be expunged
was an offense of violence. As a result, appellant asserts, the entire
judgment is void.
Holmes County, Case No. 15-CA-007, 15-CA-008 7
Jurisdiction refers to “‘the courts' statutory or constitutional power to
adjudicate the case.’” Pratts v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992,
2004-Ohio-1980, at ¶ 11, quoting Steel Co. v. Citizens for a Better
Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210;
Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 290 N.E.2d 841. The term
encompasses jurisdiction over the subject matter and over the person. Id.Because subject-matter jurisdiction goes to the power of the court to
adjudicate the merits of a case, it can never be waived and may be
challenged at any time. It is a “ ‘condition precedent to the court's ability to
hear the case. If a court acts without jurisdiction, then any proclamation by
that court is void.’” Pratts, supra, quoting State ex rel. Jones v. Suster
(1998), 84 Ohio St.3d 70, 75, 701 N.E.2d 1002, citing Patton v. Diemer
(1988), 35 Ohio St.3d 68, 518 N.E.2d 941.
Jurisdiction, however, also refers to a court's exercising its
jurisdiction over a particular case. Pratts, at ¶ 12. Jurisdiction over a
particular case encompasses the trial court's authority to determine a
specific case within the class of cases that is within its subject matter
jurisdiction. Id. When a trial court lacks subject-matter jurisdiction, its
judgment is void; lack of jurisdiction over the particular case merely renders
the judgment voidable. Id.The parties agree that if the court lacked subject-matter jurisdiction,
the judgment of the trial court necessarily would be void and must be
reversed; the disagreement lies in whether the judgment is void for lack of
Holmes County, Case No. 15-CA-007, 15-CA-008 8
subject-matter jurisdiction or voidable for lack of jurisdiction over the
particular case. In this case, we need not resolve whether the trial court's
judgment is void or voidable, because even if the judgment is voidable, the
error is not waivable. In delineating the dichotomy between subject-matter
jurisdiction and jurisdiction of the particular case, the Supreme Court noted
four principles: “1) the statutes require strict compliance, 2) that failure to
strictly comply is error in the exercise of jurisdiction, 3) that strict compliance
may not be voluntarily waived and is always reversible error on direct
appeal, but 4) after direct appeal any error is, in effect, waived and cannot
be remedied through collateral attack.” Pratts, supra, at ¶ 32. Accordingly,
the prosecution's decision to withdraw its objection to appellee's
expungement application, even if it be properly characterized as a waiver,
does not waive the issue of compliance under Pratts.
Appellee contends that even if waiver does not apply, the doctrine of
invited error precludes our concluding that non-compliance with the
statutory criteria is reversible error. The “doctrine provides that ‘a party is
not permitted to take advantage of an error that he himself invited or induced
the court to make.’” Bd. of Clark Cty. Commrs. v. Newberry, Clark App.
No.2002-CA-15, 2002-Ohio-6087 at ¶ 16, quoting Davis v. Wolfe (2001), 92
Ohio St.3d 549, 552, 751 N.E.2d 1051.
The doctrine of invited error does not apply here. The prosecution
did not ask the trial court to ignore the statutory criteria. To the contrary, the
trial court requested, in effect, that the prosecution withdraw its objection
Holmes County, Case No. 15-CA-007, 15-CA-008 9
premised on the court's recollection of the plea proceedings. Indeed, the
court not only requested such action from the prosecution but made clear
that the prosecution's failure to cooperate would be futile. Under such
circumstances, invited error doctrine does not apply. See Newberry, supra
(concluding the doctrine did not apply where the party did not request the
trial court's ruling, but argued against it).
In the final analysis, if the judgment is void for lack of subject-matter
jurisdiction, the judgment must be reversed. Alternatively, if the court had
subject-matter jurisdiction but lacked jurisdiction of the particular case, the
judgment nonetheless must be reversed because (1) the court failed to
comply with the statutory criteria, (2) the error is not waivable, and (3) the
invited error doctrine does not apply on the facts of this case.***
Holmes County, Case No. 15-CA-007, 15-CA-008 10
{¶13} Pursuant to the case law set forth above, we find the trial court lacked
jurisdiction to seal Appellant's criminal record herein. Here, the trial court was without
jurisdiction to seal the offense of violence. The state of Ohio did not ask the trial court to
ignore the statutory criteria; rather, the prosecutor stated she would not appeal an error.2
The April 1, 2015 Judgment Entry of the Holmes County Municipal Court is reversed.
By: Hoffman, P.J.
Farmer, J. and
Baldwin, J. concur
2 Though the state of Ohio has reneged on its representation not to appeal, we do not
find that to have invited the error complained of herein.