[Cite as State v. Sklenka, 2015-Ohio-5104.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                        Hon. Sheila G. Farmer, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 15-CA-007, 15-CA-008
RICHARD J. SKLENKA

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Municipal Court, Holmes
                                               County, Case No. 05CRB060


JUDGMENT:                                      Reversed


DATE OF JUDGMENT ENTRY:                         December 7, 2015


APPEARANCES:


For Plaintiff-Appellant                        For Defendant-Appellee


STEVE KNOWLING                                  LUKE T. BREWER
Prosecuting Attorney                            Miller, Mast, Mason & Bowling, Ltd.
164 East Jackson Street                         88 South Monroe St.
Millersburg, Ohio 44654                         Millersburg, Ohio 44654
Holmes County, Case No. 15-CA-007, 15-CA-008                                                 2

Hoffman, P.J.


         {¶1}   Plaintiff-appellant the state of Ohio appeals the April 1, 2015 Judgment

Entry entered by the Holmes County Municipal Court granting an Application to Seal

Criminal Record filed by Defendant-appellee Richard J. Sklenka.

                                    STATEMENT OF THE CASE1

         {¶2}   On February 23, 2005, Appellee was convicted of aggravated menacing, in

violation of R.C. 2903.21(A). On February 19, 2015, Appellee filed an Application to Seal

Criminal Record in the Holmes County Municipal Court.

         {¶3}   The trial court set the application to seal criminal record for an oral hearing

on April 1, 2015. The trial court granted the application via Judgment Entry of the same

date.

         {¶4}   Appellant the state of Ohio appeals, assigning as error:

         {¶5}   “I. THE TRIAL COURT LACKED JURISDICTION TO GRANT APPELLEE’S

APPLICATION FOR RELIEF UNDER OHIO REV. CODE §2953.32 AS THE

UNDERLYING          OFFENSE      COMMITTED BY APPELLEE WAS                    AGGRAVATED

MENACING (OHIO REV. CODE §2903.21), A STATUTORILY DEFINED ‘OFFENSE OF

VIOLENCE’.”

                                                   I.

         {¶6}   The state of Ohio argues Appellee is, as a matter of law, conclusively

ineligible from having his conviction expunged and his record sealed under the provisions

of R.C. 2953.32 because aggravated menacing is an offense of violence pursuant to R.C.




1   A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Holmes County, Case No. 15-CA-007, 15-CA-008                                              3


2953.32 and R.C. 2903.21.        Offenses of violence are specifically excluded from

expungement and sealing under R.C. 2953.36(C). Accordingly, the state concludes the

trial court was without jurisdiction to grant Appellee relief under R.C. 2953.32. We agree.

      {¶7}    R.C. 2953.32 provides, in pertinent part,

              (A)(1) Except as provided in section 2953.61 of the Revised Code, an

      eligible offender may apply to the sentencing court if convicted in this state, or to

      a court of common pleas if convicted in another state or in a federal court, for the

      sealing of the record of the case that pertains to the conviction. Application may

      be made at the expiration of three years after the offender's final discharge if

      convicted of a felony, or at the expiration of one year after the offender's final

      discharge if convicted of a misdemeanor.

              ***

              (C)(1) The court shall do each of the following:

              (a) Determine whether the applicant is an eligible offender or whether the

      forfeiture of bail was agreed to by the applicant and the prosecutor in the case.

      {¶8}    R.C. 2953.36 governs Convictions Precluding Sealing, providing,

              (A) Convictions when the offender is subject to a mandatory prison

      term;

              ***

              (C) 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 section 2917.03 of the Revised Code and is not a violation of
Holmes County, Case No. 15-CA-007, 15-CA-008                                           4


      section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a

      misdemeanor of the first degree;

      {¶9}   R.C. 2903.21 defining aggravated menacing, provides,

             (B) Whoever violates this section is guilty of aggravated menacing.

      Except as otherwise provided in this division, aggravated menacing is a

      misdemeanor of the first degree. If the victim of the offense is an officer or

      employee of a public children services agency or a private child placing

      agency and the offense relates to the officer's or employee's performance

      or anticipated performance of official responsibilities or duties, aggravated

      menacing is a felony of the fifth degree or, if the offender previously has

      been convicted of or pleaded guilty to an offense of violence, the victim of

      that prior offense was an officer or employee of a public children services

      agency or private child placing agency, and that prior offense related to the

      officer's or employee's performance or anticipated performance of official

      responsibilities or duties, a felony of the fourth degree.

      {¶10} At the April 1, 2015 Expungement Hearing, the following exchange occurred

on the record,

             THE COURT: Richard Sklenka, got bad news. You don’t qualify. It’s a

      crime of violence. I mean you have no other charges, you have no other pending.

             MR. ESTILL: Your Honor, it appears the only thing he has on his record is

      (inaudible) Vandalisim [sic].

             THE COURT: But unfortunately you’re not eligible to have it expunged

      because it was Aggravated Menacing.
Holmes County, Case No. 15-CA-007, 15-CA-008                                                      5


                 ***

                 MR. SKLENKA: But I had done a brake job on this guy and I went to try to

       block him when he passed me. What I did wrong was in a split second. You know,

       that was ten (10) years ago and for the for me to be kind of labeled as that for the

       rest of my life. And I’m fifty-six (56) just trying to get a job and it’s really difficult to

       do with that there.

                 THE COURT: Anything further.

                 MS. WILLIAMS: Your Honor I just asked the probation officer if I understand

       by law it can’t be. I don’t know if it’s discretionary with the Court. The State

       wouldn’t object.

                 THE COURT: Every time I try something somebody in your office appeals.

                 MS. WILLIAMS: Uh, I’m not going to appeal it.

                 THE COURT: Well I know it was not ever you it was somebody else in the

       office.

Tr. at p. 2.

       {¶11} The trial court proceeded in granting the application to seal.

       {¶12} In State v. Vale, 8th Dist. No. 85425, 2005-Ohio-3725, the Eighth District

Court of Appeals addressed the issue raised herein,

                 The record demonstrates the trial court lacked jurisdiction to consider

       Vale's application. R.C. 2953.36(C) specifies expungement cannot be

       granted to those persons convicted of an “offense of violence.” A conviction

       for violation of R.C. 2903.21 is defined in R.C. 2901.01(A)(9)(a) as an

       “offense of violence.” Therefore, Vale was ineligible for the relief he sought.
Holmes County, Case No. 15-CA-007, 15-CA-008                                             6

     State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041, 2000–Ohio–474; State

     v. Salim, Cuyahoga App. No. 82204, 2003–Ohio–2024.

            Under these circumstances, the trial court had no authority to order

     the record of Vale's convictions sealed. Id.

            In In Re Black, 10th Dist. No. 08 AP 37, 2008 Ohio 4687,

            “The first basic principle is that expungement is an act of grace

     created by the state and is a privilege, not a right.” State v. Winship, Franklin

     App. No. 04AP-384, 2004-Ohio-6360, at ¶ 8, citing State v. Simon (2000),

     87 Ohio St.3d 531, 533, 721 N.E.2d 1041. Thus, “[e]xpungement should be

     granted only when all requirements for eligibility are met.” Simon, supra,

     citing State v. Hamilton (1996), 75 Ohio St.3d 636, 640, 665 N.E.2d 669

     (noting that “the government possesses substantial interest in ensuring that

     expungement is granted only to those who are eligible”).

            ***

            The parties dispute the effect of the prosecution's statement at the

     expungement hearing. Appellee contends any deficiencies in his meeting

     the statutory criteria render the trial court's judgment merely voidable, and

     the prosecution waived any error when it withdrew its objection to the

     expungement      application.    Appellant,    by   contrast,   contends     the

     prosecution's comments are irrelevant, as the trial court lacked jurisdiction

     to adjudicate the expungement application where the crime to be expunged

     was an offense of violence. As a result, appellant asserts, the entire

     judgment is void.
Holmes County, Case No. 15-CA-007, 15-CA-008                                            7


            Jurisdiction refers to “‘the courts' statutory or constitutional power to

     adjudicate the case.’” Pratts v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992,

     2004-Ohio-1980, at ¶ 11, quoting Steel Co. v. Citizens for a Better

     Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210;

     Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 290 N.E.2d 841. The term

     encompasses jurisdiction over the subject matter and over the person. Id.

     Because subject-matter jurisdiction goes to the power of the court to

     adjudicate the merits of a case, it can never be waived and may be

     challenged at any time. It is a “ ‘condition precedent to the court's ability to

     hear the case. If a court acts without jurisdiction, then any proclamation by

     that court is void.’” Pratts, supra, quoting State ex rel. Jones v. Suster

     (1998), 84 Ohio St.3d 70, 75, 701 N.E.2d 1002, citing Patton v. Diemer

     (1988), 35 Ohio St.3d 68, 518 N.E.2d 941.

            Jurisdiction, however, also refers to a court's exercising its

     jurisdiction over a particular case. Pratts, at ¶ 12. Jurisdiction over a

     particular case encompasses the trial court's authority to determine a

     specific case within the class of cases that is within its subject matter

     jurisdiction. Id. When a trial court lacks subject-matter jurisdiction, its

     judgment is void; lack of jurisdiction over the particular case merely renders

     the judgment voidable. Id.

            The parties agree that if the court lacked subject-matter jurisdiction,

     the judgment of the trial court necessarily would be void and must be

     reversed; the disagreement lies in whether the judgment is void for lack of
Holmes County, Case No. 15-CA-007, 15-CA-008                                               8


     subject-matter jurisdiction or voidable for lack of jurisdiction over the

     particular case. In this case, we need not resolve whether the trial court's

     judgment is void or voidable, because even if the judgment is voidable, the

     error is not waivable. In delineating the dichotomy between subject-matter

     jurisdiction and jurisdiction of the particular case, the Supreme Court noted

     four principles: “1) the statutes require strict compliance, 2) that failure to

     strictly comply is error in the exercise of jurisdiction, 3) that strict compliance

     may not be voluntarily waived and is always reversible error on direct

     appeal, but 4) after direct appeal any error is, in effect, waived and cannot

     be remedied through collateral attack.” Pratts, supra, at ¶ 32. Accordingly,

     the prosecution's decision to withdraw its objection to appellee's

     expungement application, even if it be properly characterized as a waiver,

     does not waive the issue of compliance under Pratts.

            Appellee contends that even if waiver does not apply, the doctrine of

     invited error precludes our concluding that non-compliance with the

     statutory criteria is reversible error. The “doctrine provides that ‘a party is

     not permitted to take advantage of an error that he himself invited or induced

     the court to make.’” Bd. of Clark Cty. Commrs. v. Newberry, Clark App.

     No.2002-CA-15, 2002-Ohio-6087 at ¶ 16, quoting Davis v. Wolfe (2001), 92

     Ohio St.3d 549, 552, 751 N.E.2d 1051.

            The doctrine of invited error does not apply here. The prosecution

     did not ask the trial court to ignore the statutory criteria. To the contrary, the

     trial court requested, in effect, that the prosecution withdraw its objection
Holmes County, Case No. 15-CA-007, 15-CA-008                                            9


     premised on the court's recollection of the plea proceedings. Indeed, the

     court not only requested such action from the prosecution but made clear

     that the prosecution's failure to cooperate would be futile. Under such

     circumstances, invited error doctrine does not apply. See Newberry, supra

     (concluding the doctrine did not apply where the party did not request the

     trial court's ruling, but argued against it).

            In the final analysis, if the judgment is void for lack of subject-matter

     jurisdiction, the judgment must be reversed. Alternatively, if the court had

     subject-matter jurisdiction but lacked jurisdiction of the particular case, the

     judgment nonetheless must be reversed because (1) the court failed to

     comply with the statutory criteria, (2) the error is not waivable, and (3) the

     invited error doctrine does not apply on the facts of this case.***
Holmes County, Case No. 15-CA-007, 15-CA-008                                               10


       {¶13} Pursuant to the case law set forth above, we find the trial court lacked

jurisdiction to seal Appellant's criminal record herein.   Here, the trial court was without

jurisdiction to seal the offense of violence. The state of Ohio did not ask the trial court to

ignore the statutory criteria; rather, the prosecutor stated she would not appeal an error.2

The April 1, 2015 Judgment Entry of the Holmes County Municipal Court is reversed.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur




2 Though the state of Ohio has reneged on its representation not to appeal, we do not
find that to have invited the error complained of herein.
