[Cite as State v. A.S., 2014-Ohio-2187.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100358




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                             A.S.
                                                     DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CR-94-312081

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

        RELEASED AND JOURNALIZED:                    May 22, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Diane Smilanick
Joseph J. Ricotta
Assistant County Prosecutors
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113


FOR APPELLEE

A.S., pro se
3152 W. 70th Street
Cleveland, OH 44102
TIM McCORMACK, J.:

        {¶1} Plaintiff-appellant, state of Ohio, appeals from the trial court’s order

granting an application to seal the record of conviction filed by defendant-appellee, A.S.1

We reverse and remand the matter for further proceedings consistent with this opinion.

                                      Procedural History

        {¶2} On July 12, 1994, A.S. was indicted for rape in violation of R.C. 2907.02.

Following a jury trial on May 22, 1995, the jury returned a verdict of not guilty on the

rape. The jury however could not reach a verdict on the lesser included offense of gross

sexual imposition under R.C. 2907.02.           The trial court therefore ordered a mistrial.

Thereafter, on the recommendation of the prosecutor, the indictment was amended to the

lesser included offense of contributing to unruliness or delinquency of a child in violation

of R.C. 2919.24, to which A.S. pleaded guilty on October 25, 1995. The court sentenced

A.S. to time served.

        {¶3} On October 3, 2002, A.S. filed a motion for expungement. 2 The court

ordered the probation department to prepare an expungement report on October 8, 2002,

and, once again, on November 8, 2004. The state opposed A.S.’s motion on May 20,

2005.


           It is this court’s policy to refer to defendants in matters involving sealing of criminal
        1


records under R.C. 2953.32 by their initials.

          “Expungement” is the term used to describe the process to seal a record of conviction
        2


under R.C. 2953.32. State v. Lasalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172.
       {¶4} On August 23, 2013, the trial court granted A.S.’s motion for expungement,

finding the court had given notice of the hearing; a report from the probation department

had been received; the court considered the state’s objections; A.S. is an eligible offender

under R.C. 2953.31(A); the relevant statutory time had expired from the time of the

conviction to the filing of the application; no criminal proceedings were pending against

A.S.; A.S. had been rehabilitated; the offense of which he was convicted is not one under

R.C. 2953.36 for which the sealing of records is precluded; and A.S.’s interests in having

his records expunged are not outweighed by any legitimate governmental needs to

maintain those records. The trial court then ordered that all official records pertaining to

A.S.’s case be sealed.

       {¶5} The state appeals, raising two assignments of error.

       I. The trial court erred by granting a motion to seal the record of
       conviction when it is without jurisdiction to grant said motion to an
       applicant who was convicted of a crime in which the victim of the offense
       was under eighteen years of age. R.C. 2953.36(F).

       II. The trial court erred in ruling on a motion for expungement filed
       pursuant to R.C. 2953.32 without first holding a hearing.

                                    Law and Analysis

       {¶6} In its first assignment of error, the state contends that, pursuant to R.C.

2953.36(F), the trial court did not have the authority to seal A.S.’s conviction because the

offense was a misdemeanor of the first degree and the victim of the offense was under 18

years of age.
      {¶7} Generally, a trial court’s decision to grant or deny a motion to seal records

filed pursuant to R.C. 2953.52 is reviewed for an abuse of discretion. State v. C.K., 8th

Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin

No. 11AP-579, 2011-Ohio-6673, ¶ 7. An abuse of discretion occurs when a decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983). However, the applicability of R.C. 2953.36 to an applicant’s

conviction is a question of law that this court reviews de novo. State v. M.R., 8th Dist.

Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 15, citing State v. Futrall, 123 Ohio St.3d 498,

2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

      {¶8} R.C. 2953.31, et seq., which sets forth the procedure wherein a first-time

offender may request that his or her criminal record be sealed, provides that an applicant

must be eligible to have the conviction sealed and the offense must be one that is subject

to being sealed. Expungement is “an act of grace created by the state” and is therefore a

privilege, not a right. State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000),

citing State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996); M.R. at ¶ 14.

As such, expungement may be granted only “when all requirements for eligibility are

met.” Simon at 533.

      {¶9} An applicant must meet the statutory criteria for eligibility in order to

invoke the court’s jurisdiction to expunge a conviction. State v. Menzie, 10th Dist.

Franklin No. 06AP-384, 2006-Ohio-6990, ¶ 7. The applicant whose conviction falls

under R.C. 2953.36 is “ineligible” for expungement. M.R. at ¶ 15, citing Simon at 533.
        {¶10} The statutory law in effect at the time of the filing of an R.C. 2953.32

application to seal a record of conviction is controlling. State v. LaSalle, 96 Ohio St.3d

178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph two of the syllabus. Here, A.S. filed

his motion in October 2002. At that time, R.C. 2953.36(D) provided that a motion to

seal a record of conviction did not apply to “[c]onvictions of an offense in circumstances

in which the victim of the offense was under eighteen years of age when the offense is a

misdemeanor of the first degree or a felony.”3

        {¶11} A.S. was convicted of contributing to unruliness or delinquency of a child in

violation of R.C. 2919.24, which provides that “[n]o person * * * shall * * * [a]id, abet,

induce, cause, encourage, or contribute to a child or a ward of the juvenile court

becoming an unruly child * * *.” R.C. 2919.24(A). This offense is a misdemeanor of

the first degree. R.C. 2919.24(B). A “child” is a person who is under 18 years of age.

R.C. 2152.02(C)(1).

        {¶12} Contributing to unruliness or delinquency of a child, by definition, is an

offense in which the victim is a minor, and as previously stated, it is also a misdemeanor

of the first degree. Thus, A.S.’s conviction falls under the language of R.C. 2953.36(D).

 A.S. is therefore “ineligible” for expungement, and the trial court had no authority to


             The state cites to the current version of this statute, R.C. 2953.36(F), which is identical to
        3


the statute in effect in 2002, with the exception of the following additional language: “except for
convictions under section [R.C.] 2919.21 [nonsupport of dependents].” Because this case is not a
matter concerning the nonsupport of dependents, the additional language is not relevant to this appeal.
  Our analysis of R.C. 2953.36(D) in this opinion therefore applies equally to the current version of
the statute.
seal his record. State v. Widener, 2d Dist. Miami No. 2013 CA 29, 2014-Ohio-333 (R.C.

2953.36(F) applies to defendant’s conviction for contributing to delinquency of a child

under R.C. 2919.24, and the trial court erred in finding that the conviction was eligible to

be sealed); M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025 (a conviction for

pandering of obscenity, where the obscene material involved a person under the age of

18, falls within R.C. 2953.36(F) and expungement is therefore not available); State v.

Ninness, 6th Dist. Ottawa No. OT-11-024, 2013-Ohio-974 (child endangering is excluded

from expungement under R.C. 2953.36(F) because the offense is one in which, by

definition, the victim is a minor).

       {¶13} The state’s first assignment of error is sustained.

       {¶14} The state contends in its second assignment of error that the trial court erred

in ruling on A.S.’s motion for expungement without a hearing. Based on our disposition

of the first assignment of error, however, the state’s second assignment of error is

overruled as moot. See App.R. 12(A)(1)(c).

       {¶15} The trial court’s order sealing the record is reversed. This case is remanded

to the trial court with instructions to deny A.S.’s motion for expungement and to unseal

the record of his conviction for contributing to unruliness or delinquency of a child.

       It is ordered that appellant recover of said appellee 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.


______________________________________________
TIM McCORMACK, JUDGE

SEAN C. GALLAGHER, P.J., and
KENNETH A. ROCCO, J., CONCUR
