State v. J.M. , 2021 Ohio 2668 ( 2021 )

[Cite as State v. J.M., 2021-Ohio-2668.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29874
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
J.M. STOW MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 2015 CRB 1337
DECISION AND JOURNAL ENTRY
Dated: August 4, 2021
CALLAHAN, Judge.
{¶1} Appellant, J.M., appeals an order of the Stow Municipal Court that denied his
motion to seal the record of his criminal conviction. This Court affirms.
I.
{¶2} In 2015, J.M. pleaded guilty to one charge of voyeurism in violation of R.C.
2907.08(B), a second-degree misdemeanor. The trial court fined him $750, with $600 suspended;
suspended a ninety-day jail term; and sentenced him to community control. The trial court also
informed J.M. that his conviction required him to register as a Tier I sex offender. On December
9, 2019, having served his period of community control, J.M. moved to seal the record of his
conviction pursuant to R.C. 2953.32. The trial court determined that J.M.’s motion to seal was not
yet appropriate because it was not filed at least one year after J.M.’s final discharge under R.C.
2953.32(A)(1)(c) and denied the motion. J.M. filed this appeal.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO
SEAL HIS CRIMINAL CONVICTION, IN VIOLATION OF SECTION 2953.31
ET SEQ. OF THE OHIO REVISED CODE, DUE TO THE APPELLANT’S
CONTINUING STATUS AS A REGISTERED SEX OFFENDER FROM THE
SAME CONVICTION.
{¶3} J.M.’s sole assignment of error makes a limited argument: that the trial court erred
by determining that because he was still subject to registration as a sexually oriented offender, he
had not been finally discharged for purposes of R.C. 2953.32(A)(1)(c).1 This Court does not agree.
{¶4} Because this appeal involves a disputed matter that is purely a question of law, this
Court reviews the trial court’s decision de novo. State v. Campbell, 9th Dist. Summit No. 24919,
2010-Ohio-128, ¶ 5, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6. Under
R.C. 2953.32(A)(1)(c), an eligible offender who was convicted of a misdemeanor may apply to
the court that imposed sentence to have the record of the case sealed “[a]t the expiration of one
year after the offender’s final discharge[.]” An “eligible offender” includes “[a]nyone who has
been convicted of one or more offenses, but not more than five felonies, in this state or any other
jurisdiction, if all of the offenses in this state are * * * misdemeanors and none of those offenses
are an offense of violence or a felony sex offense * * * .” R.C. 2953.31(A)(1)(a). Voyeurism, a
violation of R.C. 2907.08(B), is a second-degree misdemeanor, see R.C. 2907.08(E)(3), and it is
not an offense of violence as defined by R.C. 2901.01(A)(9). It is also not otherwise exempted
from the statutes that permit the sealing of a conviction. See R.C. 2953.36(A)(2) (listing sex
offenses to which the procedure for sealing does not apply). For purposes of this appeal, the parties
do not dispute that J.M. is an “eligible offender” within the meaning of R.C. 2953.31(A)(1)(a).
1
J.M. has not articulated any constitutional arguments in support of his assignment of error.
3
{¶5} Because sealing is not a right, but a privilege—an “‘act of grace created by the
state’”—it should only be granted when all of the requirements for eligibility are present. State v.
Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, ¶ 11, quoting State v. Hamilton, 75 Ohio St.3d 636,
639 (1996), and Futrall at ¶ 6. Under R.C. 2953.32(A)(1)(c), a record cannot be sealed until one
year after the offender’s “final discharge,” which occurs when the offender “has completed all
sentencing requirements[.]” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, ¶ 2. The
question presented by this appeal is whether the registration requirements imposed by the Adam
Walsh Act (“AWA”) for a misdemeanor conviction of voyeurism, in violation of R.C. 2907.08(B),
are a requirement of the sentence that must be discharged before the record of the conviction can
be sealed.
{¶6} The Supreme Court of Ohio first considered the nature of sex offender registration
requirements in State v. Cook, 83 Ohio St.3d 404 (1998). In that case, the Supreme Court
considered challenges to then-existing R.C. Chapter 2950 on the grounds that it violated the
Retroactivity Clause of the Ohio Constitution and the Ex Post Facto Clause of the United States
Constitution. Cook at 426-427. In concluding that the registration and notification requirements
did not violate the Ex Post Facto Clause, the Court concluded that former R.C. Chapter 2950
“serve[d] the solely remedial purpose of protecting the public” and was not punitive in effect. Id.
at 423; id. at 417 (“The statute is absolutely devoid of any language indicating an intent to
punish.”). See also State v. Williams, 88 Ohio St.3d 513, 528 (2000) (concluding that former R.C.
Chapter 2950 did not violate the Double Jeopardy Clause of the United States or Ohio Constitution
because “Cook held that R.C. Chapter 2950 is neither ‘criminal,’ nor a statute that inflicts
punishment.”). In a later case, the Supreme Court concluded that classification proceedings under
former R.C. Chapter 2950 were civil in nature. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
4
2202, ¶ 29-32 and syllabus. In yet another case, the Supreme Court rejected the argument that
amendments to former R.C. Chapter 2950 had “transmogrified the remedial statute into a punitive
one[.]” State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, ¶ 32.
{¶7} In 2007, however, the legislature repealed the then-existing version of R.C.
Chapter 2950 and replaced it in its entirety with a comprehensive tiered registration system that
classifies offenders based on the offense committed—the AWA. State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, ¶ 18-28. In light of those amendments, the Supreme Court of Ohio
reexamined the holding of Cook and reached the opposite conclusion: “Following the enactment
of [the AWA], all doubt has been removed: R.C. Chapter 2950 is punitive. The statutory scheme
has changed dramatically since this court described the registration process imposed on sex
offenders as an inconvenience ‘comparable to renewing a driver’s license.’” State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, ¶ 16, quoting Cook at 418. In a subsequent case, the Court
examined aspects of the AWA that applied to certain juvenile offenders in light of the Eighth
Amendment’s prohibition on cruel and unusual punishment, unequivocally characterizing the
registration requirements as a “punishment” and a “sentencing practice.” In re C.P., 131 Ohio
St.3d 513, 2012-Ohio-1446, ¶ 44, 46. Thus, the Supreme Court of Ohio has made it clear that the
AWA “imposes additional criminal punishment on those convicted of sexually oriented offenses.”
State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 23. See also State v. Blankenship, 145
Ohio St.3d 221, 2015-Ohio-4624, (analyzing whether, with respect to adult offenders, the
registration requirements of the AWA constitute cruel and unusual punishment). In summary, the
AWA “represented a shift in the law, replacing the formerly remedial statutory scheme with a
punitive one.” State v. Shockey, 9th Dist. Summit No. 29170, 2019-Ohio-2417, ¶ 15.
5
{¶8} The registration requirements imposed by the AWA are unquestionably punitive.
See Raber at ¶ 23. As reflected in the Supreme Court of Ohio’s recent analysis of the
constitutionality of the AWA, those requirements are a component of the sentence that is
imposed—an “additional criminal punishment.” Id. See also In re C.P. at ¶ 44, 46. This Court,
therefore, agrees with the trial court’s conclusion that obligations imposed by the AWA are
sentencing requirements that must be finally discharged before an offender may apply to have the
record of conviction sealed under R.C. 2953.32(A)(1)(c). See generally Aguirre, 144 Ohio St.3d
179, 2014-Ohio-4603, at ¶ 2.
{¶9} J.M., as noted above, pleaded guilty to voyeurism in violation of R.C. 2907.08(B),
a second-degree misdemeanor. Voyeurism is a sexually oriented offense. R.C. 2950.01(A)(1).
J.M.’s duties imposed by the AWA extend for a period of fifteen years. See R.C. 2950.07(B)(3).
Accordingly, he is not eligible to apply for sealing of the record of his conviction until the
expiration of one year following his final discharge—or, one year after the completion of his
registration requirements under the AWA. See R.C. 2953.32(A)(1)(c); Aguirre at ¶ 2. To the
extent that J.M. urges this Court to reach a different result based on public policy, such arguments
are within the purview of the legislature.
{¶10} The trial court did not err by denying J.M.’s application to seal his criminal
conviction. J.M.’s assignment of error is overruled.
III.
{¶11} J.M.’s assignment of error is overruled. The judgment of the Stow Municipal Court
is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Stow Municipal Court,
County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this
journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
ADAM M. VANHO, Attorney at Law, for Appellant.
THOMAS M. DICAUDO and BENJAMIN R. SORBER, Prosecuting Attorneys, for Appellee.