State v. Williams

[Cite as State v. Williams, 2014-Ohio-718.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130328
C-130329
Plaintiff-Appellee, : TRIAL NOS. B-0406634
01CRB-37180
vs. :
O P I N I O N.
THOMAS WILLIAMS, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas and
Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: February 28, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher
Liu, Assistant City Prosecutor, for Plaintiff-Appellee City of Cincinnati,
George Parker, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Thomas Williams sought to expunge convictions for possession of
cocaine and selling alcohol to minors from his record in two separate proceedings, one
in common pleas court and one in municipal court. Both trial courts denied his request,
concluding that he was ineligible for expungement. Ohio law limits eligibility for
expungement to offenders who have no more than one felony conviction and one
misdemeanor conviction. The courts below found Mr. Williams ineligible because he
had one felony conviction and two misdemeanor convictions. Mr. Williams challenges
these determinations in these appeals, which we have sua sponte consolidated for
purposes of our opinion. We find no merit to his arguments and affirm the judgments.
Two Trial Courts Deny Mr. Williams’s Expungement Applications
{¶2} In the case numbered C-130328, Mr. Williams sought to expunge his
conviction for possession of cocaine. The state objected to the application, contending
that in addition to the possession conviction, Mr. Williams had misdemeanor
convictions for selling alcohol to minors, operating a vehicle while intoxicated (“OVI”),
and underaged drinking. At the hearing on his application, Mr. Williams argued that the
OVI, which occurred in Kentucky, and the underaged-drinking conviction did not count
as convictions for purposes of determining eligibility for expungement. The common
pleas court concluded that due to his OVI conviction, in addition to the convictions for
possession and selling alcohol to minors, Mr. Williams was not eligible for
expungement.
{¶3} The municipal court reached a similar conclusion in the case numbered
C-130329, denying his application to expunge his conviction for sale of alcohol to
minors. At the hearing below, Mr. Williams acknowledged that he had a Kentucky OVI,
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OHIO FIRST DISTRICT COURT OF APPEALS
but argued that the conviction was excluded from the definition of “conviction” under
R.C. 2953.32(A). He also argued that his conviction in 1999 was for a minor
misdemeanor. For purposes of the expungement statute, minor misdemeanors are not
considered convictions. R.C. 2953.32(A). The trial court concluded that Mr. Williams’s
conviction in 1999 for underaged drinking was a misdemeanor, and that therefore Mr.
Williams was ineligible for expungement.
The Common Pleas Court Decision
{¶4} We turn first to the common pleas court’s decision. In his sole
assignment of error appealing that decision, Mr. Williams asserts that the court erred in
finding him ineligible for expungement based upon the Kentucky OVI. During oral
argument before this court, Mr. Williams suggested for the first time that the state had
offered no evidence below in support of its allegation that he had been convicted of OVI
in Kentucky. But at the hearing before the common pleas court, Mr. Williams did not
dispute the existence of the conviction. Rather, he argued “that the action in Kentucky
doesn’t meet the statutory definition in Ohio to prohibit the Court from considering the
sealing of the record of this felony.” Ohio appellate courts have disagreed about which
party has the burden either to prove or disprove an offender’s eligibility for
expungement. Compare State v. Reed, 10th Dist. Franklin No. 05AP-335, 2005-Ohio-
6251, ¶ 13 (“There is no burden upon the state other than to object to an application for
expungement where appropriate.”) with State v. Davis, 8th Dist. Cuyahoga No. 84470,
2005-Ohio-188, ¶ 86 (“[I]t is the state, not defendant, which bears the burden of proving
that a defendant is not a first offender.”). We need not address whether the state had the
burden to prove Mr. Williams had an OVI conviction in Kentucky because Mr. Williams
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OHIO FIRST DISTRICT COURT OF APPEALS
waived any objection by not challenging the existence of the conviction before the trial
court.
{¶5} The issue that Mr. Williams did preserve for our review is whether an
OVI in Kentucky is excluded from the definition of conviction for purposes of
determining whether an offender is eligible for expungement. R.C. 2953.32(A) provides
that “an eligible offender” may apply to have his convictions sealed. An “eligible
offender” is defined as “anyone who has been convicted of an offense in this state * * *
and who has * * * not more than one felony conviction and one misdemeanor conviction
in this state or any other jurisdiction.” R.C. 2953.31(A). Mr. Williams concedes that he
has one felony conviction (possession of cocaine) and one misdemeanor conviction
(selling alcohol to minors). He argues, however, that his Kentucky OVI does not count
as a conviction for purposes of the statute. As we explain, this argument reflects a
fundamental misreading of the statutory scheme.
{¶6} The statute first excludes minor misdemeanors and traffic convictions
from the definition of “conviction” for purposes of determining an offender’s eligibility:
[A] conviction for a minor misdemeanor, for a violation of any section of
Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a
violation of a municipal ordinance that is substantially similar to any
section in those chapters is not a conviction.
R.C. 2953.31(A). We will refer to this sentence as the “Exclusionary Sentence.”
{¶7} Next, the statute creates an exception to the Exclusionary Sentence. It
places back within the definition of conviction certain enumerated Ohio traffic offenses
that would otherwise be excluded from the definition of conviction because they fall
within the five chapters of the Revised Code identified in the Exclusionary Sentence:
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OHIO FIRST DISTRICT COURT OF APPEALS
However, a conviction for a violation of section 4511.19 [OVI], 4511.251
[street racing], 4549.02, 4549.021, 4549.03 [failure to stop after an
accident], 4549.042 [motor vehicle master key violation], or 4549.62
[tampering with vehicle identification numbers] * * * shall be considered
a conviction.
We will refer to this sentence as the Exception Sentence.
{¶8} Mr. Williams argues that because the Exception Sentence cited above
includes only Ohio code sections, his Kentucky OVI conviction must not be considered a
conviction for purposes of R.C. 2953.31. What he ignores, however, is that this
Exception Sentence only applies as an exception to the Exclusionary Sentence. The
Exception Sentence does not apply in this case because his Kentucky conviction was not
first excluded from the definition of conviction by the Exclusionary Sentence.
{¶9} Of course, the Exclusionary Sentence would exclude his Kentucky
conviction if the offense was a “conviction for a minor misdemeanor.”1 Kentucky law
does not include a designation for “minor misdemeanor.” See Ky.Rev.Stat.Ann.
431.060. Thus, we must determine whether Mr. Williams’s OVI conviction is equivalent
to a minor misdemeanor in Ohio. To do so, we must compare the Kentucky OVI
penalties to Ohio’s minor misdemeanor penalties. State v. Detskas, 2d Dist.
Montgomery No. 23794, 2010-Ohio-4392, ¶ 4. Ohio defines a minor misdemeanor as
“[a]ny offense not specifically classified [as a felony or misdemeanor] * * * if the only
penalty that may be imposed is one of the following: * * * a fine not exceeding one
hundred fifty dollars, community service under division (C) of section 2929.27 of the
1In this case, we are not confronted with a situation where a defendant’s out-of-state conviction
was not a minor misdemeanor but was substantially similar to an Ohio traffic offense that was not
considered a “conviction” for expungement purposes under the statutory scheme. As evidenced
by the Exception Sentence, the Ohio legislature plainly intended for an OVI conviction to count as
a conviction for purposes of the expungement statute.
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OHIO FIRST DISTRICT COURT OF APPEALS
Revised Code, or a financial sanction other than a fine under section 2929.28 of the
Revised Code.” R.C. 2901.02(G). Under Kentucky law, the minimum penalty for an
OVI is a fine “not less than two hundred dollars * * * or [imprisonment] in the county jail
for not less than forty-eight (48) hours * * * or both.” Ky.Rev.Stat.Ann. 189A.010(5)(a).
Based on these minimum penalties, the Kentucky OVI is of a greater degree than an
Ohio minor misdemeanor. Thus, the conviction is not excluded as a minor
misdemeanor from the definition of “conviction” for purposes of R.C. 2953.31(A). The
common pleas court did not err when it denied Mr. Williams’s application for
expungement based on his Kentucky OVI conviction.
The Municipal Court Decision
{¶10} In the brief in support of his appeal of the municipal court’s decision,
Mr. Williams again asserts that the court erred in finding he was ineligible for
expungement based upon the Kentucky OVI. But it is clear from the record that the
municipal court determined that Mr. Williams was ineligible due to his conviction for
underaged drinking in 1999, so we recast his assignment of error in the municipal
appeal to reflect the argument made regarding that conviction.
{¶11} Mr. Williams’s argument below regarding his application to expunge his
conviction for selling alcohol to minors was that his 1999 conviction was for a minor
misdemeanor, rather than a misdemeanor. The judge’s sheet from the 1999 municipal
court conviction indicates that Mr. Williams was charged with underaged drinking in
violation of R.C. 4301.632. According to the sheet, Mr. Williams pleaded no contest and
was found guilty, and the court imposed a fine of $100. In considering Mr. Williams’s
application, the trial court reviewed the judge’s sheet, researched the offense, and
determined that a violation of R.C. 4301.632 was a misdemeanor in 1999.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Mr. Williams now argues that the judge’s sheet indicates that he was
convicted for a minor misdemeanor. He points to a stamp on the sheet that references
R.C. 4301.62, which prohibits violations of Ohio’s open-container law. The stamp
appears to have been added by the office of the Hamilton County Clerk of Courts to
record Mr. Williams’s payment of his fine and costs three weeks after he was found
guilty. The original caption on the judge’s sheet, which indicates that Mr. Williams was
charged with a violation of R.C. 4301.632 (underaged drinking), was not altered. During
the hearing before the trial court, Mr. Williams did not dispute that he had been
convicted of underaged drinking. The apparent discrepancy with the stamp was not
brought to the court’s attention. The finding that Mr. Williams had been convicted of
misdemeanor underaged drinking in 1999 was supported by the evidence before the
court and will not be disturbed on appeal. In light of its finding, the trial court properly
determined that Mr. Williams was ineligible for expungement.
{¶13} We overrule Mr. Williams’s assignments of error. The judgments are
affirmed.
Judgments affirmed.
D INKELACKER , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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