[Cite as State v. Moreland, 2015-Ohio-5386.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      MIAMI COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2015-CA-16
                                                     :
 v.                                                  :   T.C. NO. 03CR325
                                                     :
 WESLEY E. MORELAND                                  :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

              Rendered on the ___22nd___ day of ____December __, 2015.

                                                ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, 201 West
Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373
     Attorney for Defendant-Appellant

                                               .............

FROELICH, P.J.

        {¶ 1} Wesley E. Moreland appeals from a judgment of the Miami County Court of

Common Pleas, which denied his “motion and application” to seal the record of his 2004

conviction for two counts of voyeurism, in violation of R.C. 2907.08(D)(1), felonies of the

fifth degree. For the following reasons, the trial court’s judgment will be affirmed.
                                                                                        -2-


       {¶ 2} Moreland pled guilty to two counts of voyeurism involving his step-daughter,

who was a minor at the time of the offenses. In January 2004, the trial court sentenced

him to five years of community control. Moreland was designated a sexually oriented

offender, which required him to register as a sex offender for ten years.

       {¶ 3} Moreland’s community control was successfully terminated in December

2007. His sex offender registration requirement concluded in January 2014.

       {¶ 4} On April 14, 2015, Moreland filed a “motion and application to seal the

record,” pursuant to R.C. 2953.32. The State opposed the motion, arguing that Moreland

was not an eligible offender. The State asserted that three years had not elapsed since

the final discharge of Moreland’s case, because he was required to register as a sex

offender until January 2014. The State further argued that the nature of Moreland’s

criminal offense and the facts underlying Moreland’s conviction warranted a denial of his

application to seal the record in his case.

       {¶ 5} On June 2, 2015, the trial court overruled Moreland’s application. The court

concluded that Moreland’s conviction could not be sealed, because the offense he

committed (voyeurism) was excluded under R.C. 2953.36(F). Moreland appeals the trial

court’s judgment.

       {¶ 6} In his sole assignment of error, Moreland claims that the trial court erred in

denying his motion and application to seal the record. He argues that R.C. 2953.36(F)

should not be read to preclude the sealing of his conviction for voyeurism when that

offense is not precluded by the specific provisions of R.C. 2953.36(E).

       {¶ 7} “[T]he 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
                                                                                        -3-


178, 2002-Ohio-4009, 772 N.E.2d 1172, ¶ 19. Accordingly, we review the statutory

requirements as they existed in April 2015, not when Moreland was convicted.

       {¶ 8} R.C. 2953.31 et seq. permits an “eligible offender” to request that his or her

criminal record be sealed.1 The application may be made at the expiration of three

years after the offender’s final discharge, if the defendant was convicted of a felony.

R.C. 2953.32.

       {¶ 9} R.C. 2953.36 excludes several types of convictions from being sealed. That

statute provides, in relevant part:

       Sections 2953.31 to 2953.35 of the Revised Code do not apply to any of the

       following: * * *

       (E) Convictions on or after October 10, 2007, under section 2907.08,

       2907.09, 2907.21, 2907.22, 2907.23, 2907.31, 2907.311, 2907.32, or

       2907.33 of the Revised Code when the victim of the offense was under

       eighteen years of age;

       (F) Convictions 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, except for convictions under

       section 2919.21 of the Revised Code[.]


1
 An “eligible offender” is “anyone who has been convicted of an offense in this state or
any other jurisdiction 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.” R.C. 2953.31(A).
Certain offenses (for example, minor misdemeanors) are not counted as convictions,
and the statute provides a somewhat complicated framework for determining when
two or more convictions are counted as one conviction. See id.
                                                                                          -4-


An applicant whose conviction falls within any provision of R.C. 2953.36 is not “eligible”

to have his or her conviction sealed. State v. Widener, 2d Dist. Miami No. 2013-CA-29,

2014-Ohio-333, ¶ 7.

       {¶ 10} The trial court’s preliminary determination as to whether the statutory

eligibility requirements for sealing a conviction apply is a question of law that this court

reviews de novo. After it has properly determined that a conviction is eligible to be

sealed, the trial court’s decision to grant or deny a request to seal records is reviewed for

an abuse of discretion. Widener at ¶ 8.

       {¶ 11} Moreland was convicted in 2004 of two counts of voyeurism, in violation of

R.C. 2907.08, a fifth-degree felony; the offense involved a minor. His conviction was not

excluded by R.C. 2953.36(E), because that provision applies only to convictions under

R.C. 2907.08 that occurred after October 10, 2007, the date that subsection (E) was

added to R.C. 2953.36.        However, his convictions fell under R.C. 2953.36(F), a

subsection that existed prior to the enactment of R.C. 2953.36(E), because his offense

was a felony in which the victim was a minor.2

       {¶ 12} Moreland argues that precluding the sealing of his voyeurism conviction

under R.C. 2953.36(F), when it was not precluded under R.C. 2953.36(E), would create

an ambiguity that must be resolved in his favor. We disagree. As we stated in Widener:

       The applicability of the statutory factors was a straightforward determination

       to be made based on the stated criteria. R.C. 2953.36(E) encompasses

       some offenses of a lesser degree than subsection (F), which applies only


2
 Prior to 2007 Am.S.B. 18, which added R.C. 2953.36(E), the general language of R.C.
2953.36(F) existed as R.C. 2953.36(D). The exclusion in R.C. 2953.36(F) for violations
of R.C. 2919.21 was added in 2012.
                                                                                         -5-


      to first-degree misdemeanors and felonies.              Any overlap between

      subsections (E) and (F) results in an offense twice being excluded from

      consideration for sealing the record; these subsections cannot reasonably

      be read to make eligible for sealing any conviction for a misdemeanor of the

      first degree or a felony where the victim is a minor.

Widener at ¶ 11.

      {¶ 13} In Widener, the defendant was charged with contributing to the delinquency

of a child, a first-degree misdemeanor, in violation of R.C. 2919.24. R.C. 2919.24 is not

listed in R.C. 2953.36(E). Widener claimed that because, by definition, all victims of the

offense he committed are minors, the legislature would have included that offense in

subsection (E) if it had intended to prohibit the sealing of such convictions. We rejected

Widener’s argument and concluded that Widener’s conviction was ineligible for sealing

under R.C. 2953.36(F). We reasoned, in part:

             The legislature clearly intended that more than one of the

      subsections apply to offenses involving minor victims, as subsections (E)

      and (F) both expressly apply to this category of victim. We find no basis in

      the statutory language for Widener’s argument or the court’s conclusion that

      all of the offenses involving minors to which the expungement exclusion

      was intended to apply were (or must have been) listed in subsection (E).

             * * * Moreover, there is nothing in the language of the statute to

      suggest that there can be no overlap between subsections (E) and (F).

      The proper role of the courts is to interpret and apply the statutes as written,

      not to question why they were not written differently or to interpret non-
                                                                                         -6-


       ambiguous language in a fashion that arguably is “in the best interests of

       [an] adjudicated child” or the best “public policy.”

Widener at ¶ 13, ¶ 17.

       {¶ 14} Here, Moreland’s conviction was based on an offense that is listed under

R.C. 2953.36(E), but it does not fall under that exclusion because Moreland’s conviction

preceded the effective date of R.C. 2953.36(E). However, Moreland’s conviction falls

within the unambiguous language of R.C. 2953.36(F), and there is nothing in R.C.

2953.36 to suggest that R.C. 2953.36(F) should not apply to the offenses listed in R.C.

2953.36(E), even if the circumstances of the offense – in this case, the date of the offense

- cause R.C. 2953.36(E) not to apply. Simply stated, Moreland’s conviction cannot be

sealed if it falls under any of the exclusions in R.C. 2953.36. We therefore conclude that

the trial court did not err in denying Moreland’s application under R.C. 2953.36(F).

       {¶ 15} Moreland’s assignment of error is overruled.

       {¶ 16} The trial court’s judgment will be affirmed.

                                          .............

DONOVAN, J. and HALL, J., concur.



Copies mailed to:

Janna L. Parker
Jose M. Lopez
Hon. Christopher Gee
