State v. W.H.

[Cite as State v. W.H., 2020-Ohio-3737.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 19AP-115
(C.P.C. No. 91CR-2512A)
v. :
[W.H.], : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on July 16, 2020
On brief: Ron O’Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellant.
On brief: John T. Belton, for appellee.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals the order of the Franklin
County Court of Common Pleas sealing defendant-appellee W.H.'s record of conviction in
Franklin C.P. No. 91CR-2512A.
{¶ 2} In 1991, W.H. pleaded guilty to and was sentenced for the offense of
attempted aggravated trafficking in violation of R.C. 2923.02, a fourth-degree felony. And,
at other times, W.H. was convicted of a total of four misdemeanors, including first-degree
misdemeanor assault under Columbus City Code,1 two different counts of operating a
motor vehicle while impaired, and failure to confine a vicious dog.
{¶ 3} On December 4, 2018, W.H. filed an application to seal his 1991 felony
conviction, but the state objected. The state argued the trial court could not grant the
1 According to the documentation provided by the state, the "charge code" for W.H.'s assault conviction is
C.C.C. 2303.01, or at least it was in November 1986 when he was convicted. The current city code lists
"assault" under C.C.C 2303.13, and there is no provision with a code section of C.C.C. 2303.01. W.H. has not
contested the state's assertion that he was convicted of first-degree misdemeanor assault.
No. 19AP-115 2
motion because first-degree misdemeanor assault is an "offense of violence" as defined in
R.C. 2901.01(A)(9) and W.H. was therefore not an "eligible offender" under the recently
amended version of R.C. 2953.31(A)(1)(a). The state also argued that because W.H. was
previously convicted of operating a motor vehicle while impaired, R.C. 2953.36 precluded
him from obtaining an expungement under R.C. 2953.31(A)(1)(b).
{¶ 4} The trial court held a hearing on W.H.'s application on February 21, 2019.
The court observed that "the State of Ohio, they read that offense of violence as excepting
anybody and everybody that has a conviction for an offense of violence. They think that
knocks them out of the new law. I think that phrase modifies the felony four or felony five.
His felony four is not an offense of violence." (Tr. at 8.) The court further stated that
"[u]nder [R.C.] 2953.36, these are the cases that are excepted out from expungement or
sealing of the record. 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
2903.13, which is assault." Id.{¶ 5} Based on this analysis, the trial court sealed the record of W.H.'s attempted
aggravated trafficking conviction under R.C. 2953.31(A)(1)(a). The state timely appealed,
and now asserts a single assignment of error arguing that "[t]he trial court lacked
jurisdiction to seal the defendant's record of conviction, because he failed to meet the
definition of 'eligible offender.' " (Appellant's Brief at 4.)
{¶ 6} Effective October 29, 2018, Ohio's law on sealing criminal records (often
referred to as "expungement") was expanded to permit the sealing of records of an
unlimited number of misdemeanor offenses and "not more than five felonies," subject to
some conditions. See R.C. 2953.31(A)(1)(a). The definition of "eligible offender," previously
set forth in one subsection, has now been split into subsections (A)(1)(a) and (b):
Anyone 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 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;
Anyone who has been convicted of an offense in this state or
any other jurisdiction, to whom division (A)(1)(a) of this
No. 19AP-115 3
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.
{¶ 7} The language in subsection (A)(1)(a) is brand new, while the language in
subsection (A)(1)(b) essentially mirrors the definition provided in former R.C. 2953.31(A).
Prior to the amendment, the disqualifying conditions for offenders—including exceptions
for "offense[s] of violence"—were not mentioned in R.C. 2953.31(A) at all, but were set forth
entirely in R.C. 2953.36. See former R.C. 2953.31(A) and 2953.36. New subsection (A)(1)(a)
dramatically increases the number of offenses that may be sealed, but does not apply if the
applicant has been convicted of any offense that is "an offense of violence or a felony sex
offense."
{¶ 8} Using the general definition of "offense of violence," convictions of R.C.
2903.13 assault have historically been considered disqualifying "offenses of violence" under
R.C. 2953.36(A)(3), and that exclusion remains in the law. See generally State v. C.D.D.,
10th Dist. No. 19AP-130, 2019-Ohio-4754, ¶ 8 (citing definition of "offense of violence" in
R.C. 2901.01(A)(9)(a) and rejecting argument that R.C. 2953.36(A)(3) was intended to
modify that definition in the context of sealing records). But, as a result of the amendment
to R.C. 2953.31(A), the 2953.36(A)(3) exceptions to eligibility now primarily affect "eligible
offenders" under R.C. 2953.31(A)(1)(b)—new subsection R.C. 2953.31(A)(1)(a) already
excludes eligibility for all offenses that "are an offense of violence or a felony sex offense"
but subsection (A)(1)(b) does not include that qualifier.
{¶ 9} The state, therefore, argues that because W.H. had a conviction for an
"offense of violence" under R.C. 2901.01(A)(9)(a), he could not meet the new definition of
"eligible offender" contained in R.C. 2953.31(A)(1)(a). The state contends the trial court
No. 19AP-115 4
incorrectly concluded that the "offense of violence" language in R.C. 2953.31(A)(1)(a) only
applied to the fourth or fifth-degree felonies that W.H. was attempting to seal. The state
also observes that because W.H. had one felony conviction and four misdemeanor
convictions, he could not qualify as an "eligible offender" under R.C. 2953.31(A)(1)(b).
Finally, the state asserts the trial court erred by concluding R.C. 2953.36(A)(3) excludes
misdemeanor convictions of R.C. 2903.13 assault from being disqualifying "offenses of
violence."
{¶ 10} W.H. responds that the trial court correctly interpreted R.C. 2953.31(A)(1)(a)
in holding that the phrase "none of those offenses are an offense of violence or a felony sex
offense" modifies only the phrase "are felonies of the fourth or fifth degree" and does not
apply to the phrase "or misdemeanors." W.H. also argues the trial court correctly held that
his conviction for assault under the city code is not an offense of violence under the city
code, and finally contends the trial court correctly held that his assault conviction is not an
"offense of violence" under under R.C. 2953.36(A)(3). He therefore asserts he is an "eligible
offender" as defined in R.C. 2953.31(A)(1)(a), in that he was convicted of only one felony of
the fourth degree, and that none of the four misdemeanors for which he was convicted were
an offense of violence or a felony sex offense.
{¶ 11} In analyzing the effect of this amendment on W.H.'s application to seal, we
first observe that W.H.'s conviction for first-degree-misdemeanor assault under the city
code constitutes an offense of violence "[a]s used in the Revised Code." R.C.
2901.01(A)(9)(a) defines "offense of violence" to include "[a] violation of section * * *
2903.13 * * * of the Revised Code," and R.C. 2901.01(A)(9)(b) also includes "[a] violation
of an existing or former municipal ordinance or law of this or any other state or the United
States, substantially equivalent to any section, division, or offense listed in division
(A)(9)(a) of this section." Accordingly, we conclude insofar as the trial court's analysis
rested on the theory that W.H.'s assault conviction was not an "offense of violence," under
the general definition in the Revised Code, it is erroneous. Moreover, we have already
analyzed and rejected the argument that R.C. 2953.36(A)(3) modifies the R.C.
2901.01(A)(9)(a) definition of "offense of violence" for purposes of record-sealing under
R.C. 2953.31 through 35. See C.D.D. at ¶ 8-10. Accordingly, we hold that first-degree
No. 19AP-115 5
misdemeanor assault under the Columbus City Code is an "offense of violence" under the
Ohio Revised Code, and W.H.'s assertion to the contrary is incorrect.2
{¶ 12} Similarly, we cannot accept the trial court's statutory interpretation of R.C.
2953.31(A)(1)(a). That subsection's definition of "eligible offenses" contains the express
limitation that "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."
(Emphasis added.) The trial court's reading does not account for the use of the modifier
"felony" on the phrase "sex offense," which would be unnecessary if the phrase "an offense
of violence or a felony sex offense" did not also generally apply to misdemeanors. And we
simply do not believe there is any cogent way to read the qualifying phrase "and none of
those offenses are an offense of violence" without applying it to the subject
"misdemeanors," which directly precedes it. Such a tortured reading is inconsistent with
the plain language of the statute, and the trial court's contrary interpretation has the effect
of reading the phrase "or misdemeanors" out of the statute entirely.
{¶ 13} Finally, we believe the trial court's analysis has misapplied R.C. 2953.36. The
court concluded that because sections 2953.31 to 2953.35 of the Revised Code do not apply
to the various offenses specified in R.C. 2953.36, that any of those offenses can be sealed.
(Tr. at 8.) But this analysis is backward—R.C. 2953.36 enumerates offenses that preclude
sealing under R.C. 2953.31, it does not list those that can be sealed.
{¶ 14} In short, we conclude that given his conviction for a misdemeanor offense of
violence under Columbus City Code, W.H. is excluded from the plain-language definition
of "eligible offender" in R.C. 2953.31(A)(1)(a). And because under R.C. 2953.36 his prior
convictions for OVI specifically exclude him from eligibility under the remaining provisions
of R.C. 2953.31, the trial court's decision granting his motion to seal was erroneous. For
these reasons, we sustain the state's assignment of error, and reverse the decision of the
Franklin County Court of Common Pleas sealing the record of W.H.'s conviction for
attempted aggravated trafficking.
Judgment reversed.
SADLER, P.J., and NELSON, J., concur.
2Assault under C.C.C. 2303.13 is also defined as an offense of violence under Columbus City Code. See C.C.C.
2301.01(I)(1).