State v. Klempay

[Cite as State v. Klempay, 2011-Ohio-2643.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 129
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MARK KLEMPAY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from County Court
No. 4, Case No. 08 CR 8464.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Jeffrey A. Kurz
42 N. Phelps Street
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Dated: May 20, 2011
DeGenaro, J.
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{¶1} Defendant-Appellant, Mark Klempay, appeals the July 14, 2010 judgment of
Mahoning County Court No. 4, denying his application to expunge his misdemeanor
assault conviction. Klempay argues that the trial court erred by concluding that R.C.
2903.13 misdemeanor assault convictions are ineligible for expungement. The State has
filed a "Confession of Judgment," conceding that the trial court erred.
{¶2} Upon review, Klempay's assignment of error is meritorious. Although R.C.
2953.26 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. Accordingly, the judgment of the trial court is reversed
and the case is remanded for further proceedings.
Facts and Procedural History
{¶3} On June 16, 2008 following a guilty plea, Klempay was convicted of one
count of assault, a first-degree misdemeanor (R.C. 2903.13(A)) and sentenced
accordingly. On April 19, 2010, Klempay filed an application to seal all records regarding
that conviction. He claimed he was entitled to expungement because he met the
requirements contained in R.C. 2953.32(C)(1). Specifically, that he had served his
sentence (community control) for the misdemeanor assault, he was a first-time offender,
had no criminal charges pending, and that his interests in having the records sealed
outweighed the legitimate goal of the government to maintain those records. Klempay
requested a hearing on the application. All records checks were returned to the court
indicating that Klempay had no convictions other than the assault and no pending
charges. The State did not file an objection to the application to seal records.
{¶4} The case came for hearing on July 7, 2010, and according to the
appearances page on the transcript, the prosecutor attended the hearing, but stood silent.
Klempay testified that he had no criminal charges pending anywhere in the state of Ohio
or elsewhere, and since his assault conviction he had not been arrested or charged with
any other offenses.
{¶5} The trial court then expressed its concern that assault is not an
expungeable offense under the statute. Klempay's counsel argued to the contrary.
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Specifically, counsel contended that although offenses of violence are generally ineligible
for expungement pursuant to R.C. 2953.36(C), this section provides an exception for
several offenses, including misdemeanor assault.
{¶6} In a July 14, 2010 judgment entry, concluding that a conviction under
2903.13 cannot be expunged, the trial court denied Klempay's motion. After Klempay
filed his brief, the State filed a "Confession of Judgment," conceding that the trial court
erred by concluding that Klempay's conviction was ineligible for expungement.
Eligibility for Expungement
{¶7} In his sole assignment of error, Klempay asserts:
{¶8} "The Trial Court erred when it found that a first time misdemeanor assault
conviction under ORC §2903.13 is not expungeable, because that exact criminal charge
was made expressly expungeable under ORC §2953.36(C).
{¶9} Where, as here, a court bases its expungement decision solely on
interpretation of the law, an appellate court reviews that determination de novo. State v.
Campbell, 9th Dist. No. 24919, 2010-Ohio-128, at ¶5, citing, State v. Futrall, 123 Ohio
St.3d 498, 2009-Ohio-5590, 918 N.E.2d 498, at ¶6-7.
{¶10} R.C. 2953.36 precludes from sealing, inter alia, "[c]onvictions 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." R.C. 2953.36(C).
{¶11} R.C. 2901.01(A)(9) provides that, an "offense of violence" includes
violations of R.C. 2903.13, which is the assault statute. Thus, if R.C. 2953.36(C) had
precluded "[c]onvictions of an offense of violence when the offense is a misdemeanor of
the first degree or a felony," and nothing more, then certainly all assault convictions under
R.C. 2903.13 would be precluded from expungement. However, the statute contains four
exceptions from this prohibition from expungement, one of which is first-degree
misdemeanor violations of R.C. 2903.13.
{¶12} Other appellate courts have reached the same conclusion. In Euclid v. El-
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Zant (2001), 143 Ohio App.3d 545, 546-547, 758 N.E.2d 700, a case relied upon by both
parties, the Eighth District employed a similar analysis to conclude that El-Zant's
conviction of first degree misdemeanor assault, in violation of a city ordinance
substantially similar to R.C. 2903.13, was not precluded from expungement:
{¶13} "At the outset, we recognize that [R.C. 2953.36(C)] is difficult to interpret
because it is written in the negative, i.e., it states that the expungement provisions of the
Revised Code do not apply to certain categories of offenses. The first part of subsection
(C) precludes from expungement offenses of violence that are misdemeanors of the first
degree or felonies. If that were the entire context of subsection (C), then the
expungement provisions would not apply to any offense falling under those general
classifications, and because El-Zant's assault conviction is a violent offense and a
misdemeanor of the first degree, the determination of the trial court would have been
correct.
{¶14} However, subsection (C) then conjunctively excepts four specific violent
offenses from the general preclusion: riot (R.C. 2917.03), and misdemeanor violations of
assault (R.C. 2903.13), inciting violence (R.C. 2917.01), and inducing panic (R.C.
2917.31). In this case, El-Zant has been convicted of first degree misdemeanor assault,
in violation of a city ordinance substantially similar to R.C. 2903.13. After analyzing R.C.
2953.36(C), we have concluded that a misdemeanor assault conviction is eligible for
expungement consideration by the trial court because it is one of the specifically excluded
offenses excepted from the application of subsection (C)." El-Zant at 547.
{¶15} Other courts have followed El-Zant. See Dayton v. P.D., 149 Ohio App.3d
684, 2002-Ohio-5589, 778 N.E.2d 648 (Second District): "We agree with the reasoning of
the Eighth Appellate District in Euclid v. El-Zant, supra, that expungement is not
precluded when the applicant is a first offender and the applicant's conviction is a first
degree misdemeanor assault." Id. at ¶6. See, also, State v. Hernandez, 10th Dist. No.
05AP-326, 2005-Ohio-6101, at ¶7-8 (agreeing with reasoning in El-Zant, holding that
appellant's felony assault conviction was not a listed exception and therefore ineligible for
expungement); State v. Ventura, 12th Dist. No. CA2005-03-079, 2005-Ohio-5048, at ¶10-
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12 (agreeing with reasoning in El-Zant, holding that appellant's felony assault on a police
officer conviction was not a listed exception and therefore ineligible for expungement).
{¶16} The reasoning of our sister districts is sound. Thus, Klempay's sole
assignment of error is meritorious. The judgment of the trial court is reversed, and the
cause remanded for further proceedings, including a determination by the trial court of
whether Klempay's assault conviction—which is eligible for expungement—meets all the
other expungement criteria pursuant to R.C. 2953.32(C)(1).
Waite, P.J., concurs.
Vukovich, J., concurs.