[Cite as State v. J.S., 2015-Ohio-177.]



                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA



                                   JOURNAL ENTRY AND OPINION
                                           No. 101329




                                          STATE OF OHIO

                                                        PLAINTIFF-APPELLANT

                                                 vs.

                                                 J.S.

                                                        DEFENDANT-APPELLEE




                                           JUDGMENT:
                                      VACATED AND REMANDED



                                          Civil Appeal from the
                                 Cuyahoga County Court of Common Pleas
                                       Case No. CR-06-480092-A

        BEFORE: S. Gallagher, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                  January 22, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
         Anthony Miranda
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender
By: John T. Martin
Assistant Public Defender
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Cuyahoga County

Court of Common Pleas granting defendant-appellee J.S.’s application for sealing of the record.

For the reasons stated herein, we vacate the judgment of the trial court and remand the matter for

further proceedings as instructed below.

       {¶2} In 2006, appellee was charged with one count of receiving stolen property, one

count of misuse of credit cards, and four counts of forgery, all counts being felonies of the fifth

degree. Following noncompliance with a pretrial diversion program, appellee pled guilty to the

charges in the indictment in 2008. Thereafter, the trial court sentenced him to 12 months of

community control sanctions with conditions, imposed a $250 fine, and ordered appellee to pay

court costs and fees.

       {¶3} On June 14, 2013, appellee filed a pro se application for sealing of the record

pursuant to R.C. 2953.32(A)(1). The state filed a brief in opposition, arguing that appellee was

not an “eligible offender” as defined by R.C. 2953.31(A). The trial court held a hearing.

       {¶4} The state argued that appellee was not an eligible offender because of his prior

convictions. His record included prior convictions for possession of marijuana in Cleveland

Heights Municipal Court in 1992, possessing drug paraphernalia in Lorain County Court of

Common Pleas in 2007, and disorderly conduct in Cleveland Heights Municipal Court in 2008.

The possession of marijuana conviction was a minor misdemeanor, which is not considered a

conviction under R.C. 2953.31. However, his convictions for possessing drug paraphernalia and

for disorderly conduct were both fourth-degree misdemeanors.

       {¶5} Appellee argued that he did qualify for expungement because his conviction for

disorderly conduct, although a fourth-degree misdemeanor under Cleveland Heights Municipal
Code 509.03, would have been a minor misdemeanor under the analogous state statute, R.C.

2917.11. See R.C. 2917.11(E)(2).

       {¶6} The trial court applied a liberal construction to the expungement statute and believed

the fact that Cleveland Heights made a penalty more extreme was unfair and did not promote the

purposes of the expungement statute to effectuate the sealing of records for those who have been

successfully rehabilitated. Therefore, the trial court treated the conviction for disorderly conduct

as a minor misdemeanor, as opposed to a fourth-degree misdemeanor, and found appellee to be

an eligible offender for expungement. The trial court granted the application for the sealing of

the record.

       {¶7} The state has appealed the trial court’s ruling. Under its sole assignment of error,

the state claims the trial court erred in granting appellee’s application for sealing of the record

because appellee is not an eligible offender pursuant to R.C. 2953.32. Expungement eliminates

the general public’s access to conviction information, and the government has a substantial

interest in ensuring that expungement is granted only to those who are eligible.           State v.

Hamilton, 75 Ohio St.3d 636, 639-640, 1996-Ohio-440, 665 N.E.2d 669.

       {¶8} The sealing of a criminal record has been declared “an act of grace,” and courts are

required to apply the requirements prescribed by the General Assembly in its proper exercise of

legislative power. State v. Aguirre, Slip Opinion No. 2014-Ohio-4603, ¶ 26-27; see also State

ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 15.

R.C. 2953.32 is the statute that governs the sealing of a record of conviction for eligible

offenders.    Once an offender has satisfied the prerequisites of a final discharge and the relevant

expiration of time under R.C. 2953.32(A)(1), an application for expungement may be considered
by the trial court, which is to weigh the public’s interest and apply a liberal construction of the

statute so as to promote the legislative purpose of allowing expungement.    Aguirre at ¶ 18.

       {¶9} Under R.C. 2953.31(A), an “eligible offender” is defined to include those convicted

of “not more than one felony conviction, not more than two misdemeanor convictions if the

convictions are not of the same offense, or not more than one felony conviction and one

misdemeanor conviction in this state or any other jurisdiction.” Also, “[w]hen 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.” R.C. 2953.31(A). A conviction for a

minor misdemeanor is not considered a conviction. R.C. 2953.31(A).            The statute further

provides that “a conviction * * * for a violation of any section in 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)

(emphasis added).

       {¶10} The language excluding as a conviction violations of “substantially similar”

municipal ordinances is limited to the named statutory sections, which all relate to minor traffic

or motor vehicle violations. Hence, “the ‘substantially similar’ test was not intended to apply to

all violations of municipal ordinances, but only to violations of municipal traffic ordinances.”

Dayton v. Sheibenberger, 115 Ohio App.3d 529, 534, 685 N.E.2d 841 (2d Dist. 1996).

       {¶11} In this case, because appellee had a felony conviction and two fourth-degree

misdemeanor convictions, and the “substantially similar” test is not applicable to his disorderly

conduct conviction, it would appear appellant does not qualify as an eligible offender for

expungement. However, our analysis does not end here.
       {¶12} On appeal, appellee contends that it would violate the Equal Protection Clause of

the United States and Ohio Constitutions to treat his disorderly conduct conviction that arose

under the Cleveland Heights Municipal Code as a fourth-degree misdemeanor for determining

his eligibility for expungement when the offense is a minor misdemeanor for individuals who are

charged under the Ohio Revised Code.          We recognize that the Ohio Supreme Court has

determined a municipal ordinance that increases the penalty for a crime from a minor

misdemeanor to a higher-level misdemeanor, rather than to a felony, is not in conflict with the

general laws of Ohio within the meaning of Article XVIII, Section 3, of the Ohio Constitution.

Niles v. Howard, 12 Ohio St.3d 162, 165, 466 N.E.2d 539 (1984). Following Niles, several

Ohio appellate courts, including this court, have upheld the constitutionality of similar municipal

ordinances that increase the penalty of an offense from a minor misdemeanor to a higher-level

misdemeanor. See State v. Creamer, 1st Dist. Hamilton No. C-060568, 2007-Ohio-5125, ¶

10-11; Medina v. Szwec, 157 Ohio App.3d 101, 2004-Ohio-2245, 809 N.E.2d 78, ¶ 6-7 (9th

Dist.); Akron v. Ross, 9th Dist. Summit No. 20338, 2001 Ohio App. LEXIS 3083, *9-10 (July 11,

2001); Cleveland Hts. v. Wood, 107 Ohio App.3d 616, 618-619, 669 N.E.2d 281 (8th Dist.1995).

 However, these decisions have not dealt with the equal-protection issue raised herein, which

challenges the application of R.C. 2953.31(A) and R.C. 2953.32 in determining the eligibility for

expungement to these types of offenses.

       {¶13} The federal and state Equal Protection Clauses are essentially the same and require

that all similarly situated individuals be treated in a similar manner. Ohio Apt. Assn. v. Levin,

127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, ¶ 33. “[A] statute that does not implicate

a fundamental right or a suspect classification does not violate equal-protection principles if it is
rationally related to a legitimate government interest.” State v. Williams, 126 Ohio St.3d 65,

2010-Ohio-2453, 930 N.E.2d 770, ¶ 39.

        {¶14} In this case, the expungement statutes do not implicate a fundamental right or

suspect classification. Thus, it must be determined whether precluding the sealing of records for

individuals convicted under a municipal ordinance with an increased penalty, while allowing it

for similarly situated individuals convicted of a minor misdemeanor under an analogous state

statute, is rationally related to a legitimate governmental interest.1             Because this issue was not

vetted out in the trial court and the record has not been fully developed on the issue, we remand

the matter to the trial court for a hearing.

        {¶15} Accordingly, we vacate the judgment of the trial court, and remand the matter with

instructions for the court to hold a hearing to consider the equal-protection issue.

        {¶16} Judgment vacated; case remanded.

        It is ordered that appellant and appellee share costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




        1
             At least two cases, though not involving the exact circumstances as this case, have recognized that an
interpretation of the expungement statutes that would result in people committing the same crime being treated
differently based upon where they were arrested, or whether they were convicted under Ohio statutes or municipal
ordinances, would be inherently unfair and result in an unequal application of the laws. Aurora v. Bulanda, 11th
Dist. Portage No. 95-P-0130, 1996 Ohio App. LEXIS 2453 (June 14, 1996); State v. Greenwald, 11th Dist. Lake
No. 12-076, 1987 Ohio App. LEXIS 9029 (Sept. 30, 1987).
SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
