[Cite as State v. A.H., 2019-Ohio-5120.]



                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellant,            :
                                                                No. 108205
                 v.                              :

A.H.,                                            :

                 Defendant-Appellee.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: December 12, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-00-397049-ZA


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha Forchione, Assistant Prosecuting
                 Attorney, for appellant.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 John T. Martin, Assistant Public Defender, for appellee.


SEAN C. GALLAGHER, J.:

                   The state appeals the trial court’s decision to seal A.H.’s record of his

February 2001 convictions, which are based on a violation of R.C. 2907.06
(misdemeanor sexual imposition) and a violation of R.C. 2903.13 (misdemeanor

assault). For the following reasons, we reverse the decision of the trial court.

               A.H. filed a motion to seal his record of conviction in February 2017.

In order to avail himself of the statutory provisions for sealing a record of conviction,

A.H. had to demonstrate that the statutory provisions establishing the right to seal

a record of conviction apply in his case and, if those provisions apply, that he is

considered an “eligible offender” under R.C. 2953.31.               Throughout these

proceedings, A.H. has largely ignored R.C. 2953.36, which unambiguously

establishes that sections 2953.31 through 2953.35 of the Revised Code do not apply

to convictions under R.C. 2907.06. In A.H.’s motion to seal the record, he merely

assumed that R.C. 2953.31 through 2953.35 applied.

               At the time of filing, R.C. 2953.31 defined “eligible offender” to

include any offender who has been convicted of not more than one felony or two

misdemeanor convictions. Id., effective Sept. 19, 2014. If two or more convictions

arose from the same facts and circumstances, those convictions were treated as a

single conviction. Id. Before the trial court held a hearing on the matter, the General

Assembly amended R.C. 2953.31(A), effective Oct. 29, 2018, to expand the definition

of “eligible offender.” Under the current version of the statute, an “eligible offender”

also includes anyone convicted of not more than five felonies, unless those felonies

are offenses of violence or felony sex offenses. R.C. 2953.31(A)(1)(a). The former

definition remained unaltered. R.C. 953.31(A)(1)(b).
               A.H. argues that in light of the changes to R.C. 2953.31(A)(1)(a) that

expand the applicability of the statute, and because he could be considered an

“eligible offender” under that provision, he is entitled to have his record of

convictions sealed. According to A.H., the amended version of R.C. 2953.31(A)

permits offenders with misdemeanor sex offense convictions to have their records

sealed because any such offender can be deemed “eligible” under that statutory

section in light of the fact that the legislature only excluded felony sex offenders from

seeking to seal a record of conviction. The state objected, claiming that A.H. cannot

avail himself of R.C. 2953.31 because that section does not apply to misdemeanor

convictions for violations of R.C. 2907.06 according to the unambiguous language

of R.C. 2953.36(A). The trial court disagreed with the state, and in ordering A.H.’s

record of conviction sealed, the court concluded that A.H. “is an eligible offender

under R.C. 2953.31(A) * * *.” The state appealed.

               Our review is quite broad. Whether an applicant is eligible to seek the

sealing of a criminal record is an issue of law, which appellate courts review de novo.

State v. Paige, 10th Dist. Franklin No. 15AP-510, 2015-Ohio-4876, ¶ 5, citing State

v. Hoyles, 10th Dist. Franklin No. 08AP-946, 2009-Ohio-4483, ¶ 4, and State v.

Black, 1oth Dist. Franklin No. 14AP-338, 2014-Ohio-4827, ¶ 6.

               The entire focus of A.H.’s motion to seal his record of conviction was

to establish that he is an “eligible offender” as the term of art is defined under R.C.

2953.31(A). Consideration of whether A.H. meets that statutory definition is not the

dispositive issue. The sole question is whether R.C. 2953.31 is even applicable to the
particular crimes A.H. committed. If R.C. 2953.31 is not applicable, then A.H.’s

ability to demonstrate that he is an “eligible offender” thereunder is of little

consequence. An offender has no substantive right to have a record of conviction

sealed. State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 13.

Sealing a record “‘is an act of grace created by the state.’” Id., quoting State v.

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

question that must be resolved before the trial court can exercise its discretion to

consider whether to seal any record of conviction, is whether sections 2953.31 to

2953.35 of the Revised Code, which authorize the trial court to act, apply to the

offender. Id.

                The Ohio Supreme Court has unambiguously concluded that “R.C.

2953.36 precludes the sealing of records of certain convictions; thus, an offender

seeking to have sealed the records of conviction for an offense listed in R.C. 2953.36

is an ineligible offender” irrespective of R.C. 2953.31. Id. at ¶ 14. Further, “R.C.

2953.36 speaks for itself.” Id. Courts cannot indulge in consideration of legislative

intent if the statute is clear and unambiguous. Id. at ¶ 15. “‘When the General

Assembly has plainly and unambiguously conveyed its legislative intent, there is

nothing for a court to interpret or construe, and therefore, the court applies the law

as written.’” Id., quoting State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706,

848 N.E.2d 496, syllabus. In other words, according to V.M.D., the first step in the

process of sealing a record of conviction is to determine whether the offender is

eligible under R.C. 2953.36 in the colloquial sense, i.e., eligible to invoke R.C.
2953.31 through R.C. 2953.35. If he is, then the court must determine whether the

offender is an “eligible offender” as that specific term of art is defined under R.C.

2953.31(A). If R.C. 2953.36 precludes an offender from applying sections 2953.31

through 2953.35 to the particular convictions at issue, then the offender is an

“ineligible offender.” Id.

               As applicable to the current case, under R.C. 2953.36, the General

Assembly unambiguously provided that R.C. 2953.31 through 2953.35 do not apply

to convictions for violations of R.C. 2907.06, unless, under division (B) of that

section, it is determined that “on the date of the conviction, [sections 2953.31 to

2953.35 of the Revised Code] did not apply to the conviction, but after the date of

the conviction, the penalty for or classification of the offense was changed so that

those sections apply to the conviction.” (Emphasis added.)

               The penalty for, or the classification of, the sexual imposition offense

under R.C. 2907.06 has not changed since A.H.’s original conviction in 2001. Under

the version of R.C. 2907.06 then in effect, as it stands today, the crime has always

been punishable as a misdemeanor sex offense. Regardless of whether A.H. could

be considered an “eligible offender” under R.C. 2953.31(A), his record of conviction

cannot be sealed according to the unambiguous language of R.C. 2953.36(A)(2),

which provides that sections 2953.31 through 2953.35 of the Revised Code do not

apply to any conviction for a violation of R.C. 2907.06. The exception to the

prohibition announced under R.C. 2953.36(A) does not apply. In light of the

unambiguous language of R.C. 2953.36(A), it necessarily follows that R.C. 2953.31
does not apply to A.H.’s conviction. Because R.C. 2953.31(A) does not apply, the

trial court erred in considering whether A.H. was an “eligible offender” thereunder.

A.H. is an ineligible offender regardless of R.C. 2953.31 and is statutorily precluded

from availing himself of the statutory right to seek the sealing of his record of

conviction. The trial court erred in concluding otherwise.

               In response, A.H. claims that R.C. 2953.36 is unconstitutional

because it precludes him, and incidentally all other offenders convicted of sexual

imposition under R.C. 2907.06, from seeking to seal that record of conviction. In

light of the fact that A.H. did not challenge the constitutionality of the statute in the

proceedings below, we decline to consider that argument within the scope of this

appeal. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900,

¶ 15 (courts have discretion to decline consideration of forfeited constitutional

challenges raised for the first time in an appeal). The sole argument advanced in the

trial court proceedings was limited to A.H.’s claim that he was an eligible offender

under R.C. 2953.31(A), a provision that does not apply to A.H.’s conviction.

               Further, even if we were to exercise our discretion to consider the

belated constitutional challenge, we note that A.H. does not have a constitutional

right to seal his record of conviction. Hamilton, 75 Ohio St.3d 636, at 639, 1996-

Ohio-440, 665 N.E.2d 669; State v. McCrea, 12th Dist. Warren No. CA2005-01-001,

2005-Ohio-4918, ¶ 7. He is only afforded the right that has been granted to him by

the legislature. A.H.’s sole argument in this appeal is that R.C. 2953.36 places him

“in the class of people who can never receive the ‘atonement’ and ‘forgiveness’ of
sealing of the record[, which] violates equal protection.” The simple fact that a

conviction for sexual imposition cannot be sealed is not a basis for declaring a

constitutional violation when no offender has a constitutional right to seal any

record of conviction for sexual imposition in the first place. The statutory section

treats all offenders the same. No one convicted for a violation of R.C. 2907.06 may

seek to have that record of conviction sealed.

               In addition, we cannot accept A.H.’s invitation to consider Pepper

Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981), as a basis to create a judicial

right to the sealing of a record of conviction for a violation of R.C. 2907.06. Pepper

Pike has been superseded by statute and was expressly recognized as an exceptional

case even at the time it was announced. State v. Radcliff, 142 Ohio St.3d 78, 2015-

Ohio-235, 28 N.E.3d 69, ¶ 23-25. As the Ohio Supreme Court then determined,

“[a]lthough the judicial power to seal criminal records still exists, ‘it is limited to

cases where the accused has been acquitted or exonerated in some way and

protection of the accused’s privacy interest is paramount to prevent injustice.’” Id.

at ¶ 27, quoting State v. Chiaverini, 6th Dist. Lucas No. L-00-1306, 2001 Ohio App.

LEXIS 1190, 2 (Mar. 16, 2001). A.H. was not exonerated in any fashion. The fact

that R.C. 2953.36 expressly states that R.C. 2953.31 does not apply to any offender

convicted of R.C. 2907.06 does not render R.C. 2953.36 to be unconstitutional, nor

can any court use its inherent authority to seal the record of a valid conviction for a

violation of R.C. 2907.06.
              We understand and can empathize with A.H.’s frustration over the

fact that an offender with up to five felony convictions can seek to seal a record of

conviction while A.H. cannot seek to shield his particular misdemeanor conviction

from public scrutiny. Nevertheless, the scope of what constitutes a sealable record

is purely within the legislative prerogative and any policy considerations, such as

those underlying A.H.’s concerns, must be addressed within the legislative branch

of government. See, e.g., V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d

274, at ¶ 13; Hamilton at 639. The judiciary cannot make policy decisions to expand

the scope of what constitutes a sealable record of conviction against the express

language of the applicable statutory sections. If the legislature intended to permit

offenders such as A.H. to seal a record of a misdemeanor conviction for a violation

of R.C. 2907.06, R.C. 2953.36(A)(2) would have been amended to reflect this intent.

Absent such an amendment, courts must apply the statute as unambiguously

written.

              Accordingly, we reverse the decision of the trial court and order the

unsealing of the records of conviction in this case. Even though A.H. could be

considered an “eligible offender” under R.C. 2953.31(A), that section is inapplicable

to A.H.’s conviction pursuant to R.C. 2953.36(A)(2). The case is remanded for the

sole purpose of carrying our judgment into execution.

      It is ordered that appellant recover from 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.


                                             _____
SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
