State v. T.M.R. ( 2020 )

[Cite as State v. T.M.R., 2020-Ohio-3555.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 19AP-434
Plaintiff-Appellant, : (C.P.C. No. 90CR-2521)
(C.P.C. No. 90CR-5609)
v. : (C.P.C. No. 91CR-6776)
[T.M.R.], : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on June 30, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellant. Argued: Barbara A.
Farnbacher.
On brief: Dennis C. Belli, for appellee. Argued: Dennis C.
Belli.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals the July 1, 2019 judgment entry
sealing the record of conviction of defendant-appellee, T.M.R. For the following reasons,
we reverse.
I. Facts and Procedural History
{¶ 2} This matter involves appellee's application to seal her record of convictions
originating in three separate criminal cases, the facts of which are undisputed. On May 16,
1990, a Franklin County Grand Jury filed an indictment in case No. 90CR-2521 charging
appellee with ten criminal counts: one count of theft, in violation of R.C. 2913.02, a felony
of the third degree; and nine counts of forgery, in violation of R.C. 2913.31, all felonies of
the fourth degree. On May 9, 1991, appellee entered a plea of guilty to four counts of forgery,
No. 19AP-434 2
which were listed in the indictment as Counts 2, 3, 6, and 8. As specified in the indictment,
the charged offenses involved four different checks drawn on the account of Financial Press
of Ohio Inc. on or about March 7, March 19, June 7, and June 15, 1988. On September 4,
1991, the trial court filed an entry accepting appellee's plea of guilty, finding her guilty, and
sentencing her to 18 months on each count with all counts to be served concurrently.
{¶ 3} On February 1, 1991, a Franklin County Grand Jury filed an indictment in
case 90CR-5609 charging appellee with four counts of forgery, in violation of R.C. 2913.31,
all felonies of the fourth degree. On November 25, 1991, the trial court filed a judgment
entry accepting appellee's plea of guilty to Count 1 of the indictment, finding her guilty, and
sentencing her to six months incarceration, which were suspended for time served. As
specified in the indictment, count one occurred on or about June 20, 1989 and involved a
check from the account of PH Hydraulics and Automation.
{¶ 4} On November 22, 1991, a Franklin County Grand Jury filed an indictment in
case No. 91CR-6776 charging appellee with six counts of forgery, in violation of R.C.
2913.31, all felonies of the fourth degree. As specified in the indictment, the charged
offenses involved six different checks which were drawn on the account of the Ohio Sheep
Improvement Association on May 8, June 10, 1991, twice on June 11, July 15, and August 13,
1991. On August 25, 1992, the trial court filed a judgment entry accepting appellee's plea of
guilty to all six counts as indicted, finding her guilty, and imposing a sentence of
incarceration for a period of 18 months on each count, which were to be served concurrently
with each other and concurrently with the sentences in case Nos. 90CR-2521 and 90CR-
5609.
{¶ 5} On March 29, 2019, appellee filed an application for order sealing record of
convictions pursuant to R.C. 2953.32. On May 17, 2019, the state filed an objection to
appellee's application to seal her record of convictions. On June 27, 2019, the trial court
held a hearing on appellee's application. On July 1, 2019, the trial court filed a judgment
entry granting appellee's motion to seal her record of convictions.
No. 19AP-434 3
II. Assignment of Error
{¶ 6} The state appeals and assigns a single error for our review:
THE TRIAL COURT ERRED IN SEALING MULTIPLE
CONVICTIONS, WHEN THE APPLICANT DID NOT MEET
THE DEFINITION OF "ELIGIBLE OFFENDER," IN R.C.
2953.31(A)(1).
III. Analysis
{¶ 7} In Ohio, the sealing of a record of conviction is a two-step process.1 First, a
court must make a legal determination as to whether the applicant is an "eligible offender"
under the pertinent statute. Compare R.C. 2953.32 with 2953.52. A court may grant an
application to seal a record of conviction only to an "eligible offender" who meets all the
statutory requirements. State v. Young, 10th Dist. No. 19AP-49, 2019-Ohio-3161, ¶ 10;
State v. Paige, 10th Dist. No. 15AP-510, 2015-Ohio-4876, ¶ 8. Here, appellee filed an
application to seal her records under R.C. 2953.32. R.C. 2953.32(A)(1) provides in
pertinent part as follows:
[A]n eligible offender may apply to the sentencing court * * *
for the sealing of the record of the case that pertains to the
conviction. Application may be made at one of the following
times:
(a) At the expiration of three years after the offender's final
discharge if convicted of one felony;
(b) When division (A)(1)(a) of section 2953.31 of the Revised
Code applies to the offender, at the expiration of four years
after the offender's final discharge if convicted of two felonies,
or at the expiration of five years after final discharge if
convicted of three, four, or five felonies.
(c) At the expiration of one year after the offender's final
discharge if convicted of a misdemeanor.
R.C. 2953.31(A)(1) defines "eligible offender" as follows:
(a) Anyone who has been convicted of one or more offenses, but
not more than five felonies, in this state or any other
1We note that " '[i]n Ohio, "expungement" remains a common colloquialism used to describe the process of
sealing criminal records pursuant to statutory authority.' " State v. A.L.M., 10th Dist. No. 16AP-722, 2017-
Ohio-2772, ¶ 11, quoting State v. Nichols, 10th Dist. No. 14AP-498, 2015-Ohio-581, ¶ 8, citing State v. Pariag,
137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11. See State v. C.L.H., 10th Dist. No. 18AP-495, 2019-Ohio-3786.
No. 19AP-434 4
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 one felony
conviction, not more than two misdemeanor convictions, or
not more than one felony conviction and one misdemeanor
conviction in this state or any other jurisdiction. 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.
{¶ 8} If an applicant is not an eligible offender, a trial court lacks jurisdiction to
grant the application. State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6. The
question of "[w]hether an applicant is an 'eligible offender' for purposes of an application
to seal the record of a conviction is an issue that we review de novo." State v. A.L.M., 10th
Dist. No. 16AP-722, 2017-Ohio-2772, ¶ 9.
{¶ 9} Second, if the court finds the applicant to be an eligible offender, it must use
its discretion to: (1) consider objections, if any, raised by the prosecutor, and (2) weigh the
interests of the applicant to seal the record against the legitimate needs, if any, of the
government to maintain those records. R.C. 2953.52(B)(2)(c) and (d). We apply an abuse
of discretion standard when reviewing a trial court's resolution of these issues. Paige at ¶ 5,
citing State v. Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 6. An abuse of discretion
occurs when a court's judgment is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
No. 19AP-434 5
{¶ 10} R.C. 2953.32(B) provides that a prosecutor may object to the granting of the
application by filing an objection, including therein the reasons for believing a denial of the
application is justified, with the court prior to the date set for the hearing on the application.
If the trial court finds the applicant to be an eligible offender and, using its discretion, finds
the other statutory factors support sealing the records of conviction, the trial court "shall
order all official records of the case that pertain to the conviction * * * sealed." (Emphasis
added.) R.C. 2953.32(C)(2). "Statutes providing for the sealing of records 'are remedial
and are, therefore, to be construed liberally to promote their purpose and assist the parties
in obtaining justice.' " State v. C.L.H., 10th Dist. No. 18AP-495, 2019-Ohio-3786, ¶ 14,
quoting State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 11, citing State ex rel.
Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999), citing R.C. 1.11. See Barker v. State, 62 Ohio
St.2d 35, 42 (1980).
{¶ 11} Here, the state argues the trial court erred in its determination that appellee
was an eligible offender. We agree. First, appellee does not meet the requirements to be
considered an eligible offender under R.C. 2953.31(A)(1)(a) because she had more than five
felony convictions.
{¶ 12} Next, we consider whether appellee is an eligible offender under R.C.
2953.31(A)(1)(b). An applicant is an eligible offender pursuant to R.C. 2953.31(A)(1)(b) if
2953.31(A)(1)(a) does not apply and he or she has "not more than one felony conviction,
not more than two misdemeanor convictions, or not more than one felony conviction and
one misdemeanor conviction." Because appellee has more than one felony conviction, we
must consider whether either of the two merger provisions under R.C. 2953.31(A)(1)(b)
apply.
{¶ 13} Under the first merger provision, "[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). Here, the trial court
stated that "there[] [were] different acts that happened because there were different checks
on different dates." (Tr. at 11.) Thus, the trial court correctly determined that appellee was
unable to avail herself of the first merger provision under R.C. 2953.31(A)(1)(b). In re
Sealing of the Record of A.H., 10th Dist. No. 15AP-555, 2016-Ohio-5530, ¶ 22; State v.
Yorde, 10th Dist. No. 11AP-404, 2011-Ohio-6671, ¶ 17.
No. 19AP-434 6
{¶ 14} Under the second merger provision, "[w]hen 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." R.C.
2953.31(A)(1)(b). Furthermore, the court may decide not to count the two or three
convictions as one conviction because it is not in the public interest pursuant to R.C.
2953.32(C)(1)(a). Here, appellee does not qualify as an eligible offender under R.C.
2953.31(A)(1)(b) because she has more than two or three convictions from multiple
different proceedings. See State v. Price, 10th Dist. No. 17AP-535, 2017-Ohio-8591, ¶ 7;
State v. Sanders, 10th Dist. No. 14AP-916, 2015-Ohio-2050, ¶ 10.
{¶ 15} Appellee does not contend that she qualifies under R.C. 2953.31(A)(1)(b),
but, instead, argues that the merger provisions contained in R.C. 2953.31(A)(1)(b) apply
with equal force to the provisions of R.C. 2953.31(A)(1)(a). Applying the second merger
provision in R.C. 2953.31(A)(1)(b), appellee argues she has fewer than five felony
convictions, which makes her an eligible offender under R.C. 2953.31(A)(1)(a). At the
hearing, the trial court made the following findings:
If you look at 2953.31(A)(1)(b), it says when two or more
convictions result from the same indictment, which is what we
have here, and result from related criminal acts that were
committed within a three-month period but do not result from
the same act, they shall be counted as one conviction, provided
that a court determines that it's not against the public interest
in counting it as one conviction.
So what I did is, I went through the indictment. In case number
* * * 91CR-6776, the State counts six convictions. If you look at
the indictment, she pled guilty to all six counts.
Count One was May 6th of '91. Count Two, June 11th of '91.
Count Three, June 11, '91. Count Four, June 10, '91. Count Five,
July 15, '91.
Those all occurred within a three month-period, and some of
them involve the same checks. I would count those as one
conviction.
No. 19AP-434 7
If you go to Count Six, it was outside the 90-day period. It's
actually, you know, 97 days. That would be a second conviction.
There's two convictions, in my mind, as to if I determine it's not
against the public interest on that case.
If you go to 90CR-2521, * * * [s]he pled guilty to Counts Two,
Three, Six and Nine.
Count Two was March 7th of '88. Count Three was March 19th
of '88. Count Six was June 7th of '88. Those are all within the
90-day period. She also pled to Count Nine, which was July 3rd
of '88, which would be outside the 90-day period. * * *
As the Court views that, there's two convictions. I would say
that would only be four total convictions in applying [R.C.]
2953.31(A)(1)(b), which would make her eligible in my opinion.
(Tr. at 4-6.) Thus, it appears from the trial court's reasoning that it found the second merger
provision under R.C. 2953.31(A)(1)(b) applied when counting the number of convictions
for purposes of determining whether appellee is an eligible offender under R.C.
2953.31(A)(1)(a).
{¶ 16} In cases of statutory interpretation, "our paramount concern is the legislative
intent in enacting the statute." State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-
Ohio-4960, ¶ 21, citing State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395,
2003-Ohio-1630, ¶ 12. "In determining this intent, we first review the statutory language,
reading words and phrases in context and construing them according to the rules of
grammar and common usage." Id., citing State ex rel. Rose v. Lorain Cty. Bd. of Elections,
90 Ohio St.3d 229, 231 (2000), and R.C. 1.42. See Jacobson v. Kaforey, 149 Ohio St.3d
398, 2016-Ohio-8434, ¶ 9, quoting Black-Clawson Co. v. Evatt, 139 Ohio St. 100, 104
(1941) (stating that a court, in determining legislative intent, must take care "not to 'pick
out one sentence and disassociate it from the context' "). When a statute's meaning is clear
and unambiguous, a court must apply the statute as written. State v. Gonzales, 150 Ohio
St.3d 276, 2017-Ohio-777, ¶ 4; State v. J.L.S., 10th Dist. No. 18AP-125, 2019-Ohio-4173,
¶ 71. However, "when legislative intent is unclear, we invoke statutory-construction
principles." State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, ¶ 7, citing Cline v. Ohio
Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97 (1991).
No. 19AP-434 8
{¶ 17} Here, it is unnecessary to resort to rules of statutory construction, as the
statute's meaning is clear and unambiguous. R.C. 2953.31(A)(1)(b) states that it applies "to
whom division (A)(1)(a) of this section does not apply." Thus, it is clear that the merger
provisions in R.C. 2953.31(A)(1)(b) are not meant to be considered for purposes of
determining the number of felony convictions under R.C. 2953.31(A)(1)(a). Furthermore,
the trial court incorrectly applied the second merger provision in finding that applied to
appellee's "two or more convictions." (Tr. at 4.) The second merger provision under R.C.
2953.31(A)(1)(b) applies under certain specified circumstances when the applicant has "two
or three convictions," unlike the first merger alternative which allows for "two or more
convictions" to merge if they "result from or are connected with the same act or result from
offenses committed at the same time." As previously noted, appellee had more than three
convictions, and consequently cannot avail herself of the second merger provision under
R.C. 2953.31(A)(1)(b).
{¶ 18} Although appellee's convictions all occurred over 27 years ago and the trial
court found that appellee presented "the exact kind of case where we should grant an
expungement," we are constrained by the statutory text in agreeing with the state that
appellee is not an eligible offender under current law. (Tr. at 9.) Therefore, because
appellee was not an eligible offender as defined by R.C. 2953.31(A)(1), the trial court erred
in granting appellee's application to seal her record of convictions pursuant to R.C. 2953.32.
Accordingly, we sustain the state's sole assignment of error.
IV. Conclusion
{¶ 19} Having sustained the state's single assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas.
Judgment reversed,
and cause remanded.
LUPER SCHUSTER and NELSON, JJ., concur.