[Cite as State v. H.H., 2019-Ohio-5083.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellant,            :
                                                                    No. 18AP-512
v.                                               :               (C.P.C. No. 05CR-2208)

[H.H.],                                          :           (ACCELERATED CALENDAR)

                 Defendant-Appellee.             :



                                           D E C I S I O N

                                   Rendered on December 10, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellant. Argued: Michael P. Walton.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals an entry of the Franklin County
Court of Common Pleas, issued on June 22, 2018, sealing all official records in Franklin
C.P. No. 05CR-2208 pursuant to R.C. 2953.32. Because defendant-appellee, H.H., was not
an eligible offender under the version of the sealing statutes in effect at the time the trial
court issued the sealing order, we sustain the State's assignment of error, and reverse the
judgment of the trial court
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 1, 2005, a Franklin County Grand Jury indicted H.H. for two third-
degree-felony counts of tampering with records. (Apr. 1, 2005 Indictment.) After initially
pleading not guilty, H.H. ultimately entered a guilty plea to one stipulated fifth-degree
felony conviction for tampering. (Apr. 11, 2005 Plea Form; Aug. 3, 2005 Plea Form.) The
trial court imposed one year of non-reporting community control (also referred to in the
record as "probation"). (Aug. 3, 2005 Jgmt. Entry at 2.) H.H. was discharged from
No. 18AP-512                                                                              2


community control on August 16, 2006 with the notation that court costs had not yet been
paid. (Aug. 16, 2006 Entry.)
       {¶ 3} Approximately 11 years later, on December 12, 2017, H.H. filed an application
to seal his conviction. (Dec. 12, 2017 Application for Sealing.) The State objected on the
sole ground that H.H. was ineligible because, in addition to the fifth-degree felony he
sought to seal, he had also been convicted of fleeing (a first-degree misdemeanor) and
expired license plates (a fourth-degree misdemeanor). (May 2, 2018 Objs. at 1.) The
records the State attached in support of its objection indicated that H.H. was convicted of
fleeing and expired license plates in November 2005 and March 1999, respectively. (Docket
1999CRB-4378; Docket 2005TRD-192076.) The State argued that under the statute as
then constituted, H.H. was not permitted to have more than one felony conviction, OR two
misdemeanor convictions, OR one felony and one misdemeanor conviction. (Objs. at 1,
quoting former R.C. 2953.31(A).) The State urged the trial court to find that H.H., who had
a felony AND two misdemeanor convictions, was ineligible. Id. at 1-2.
       {¶ 4} On June 22, 2018, the trial court entered an order and concluded that H.H.
had been rehabilitated to the satisfaction of the court and that the records of past criminal
activity should be sealed. (June 22, 2018 Sealing Entry.) The trial court made no mention
of whether H.H. was an eligible offender within the meaning of former R.C. 2953.31(A).
       {¶ 5} The State now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 6} The State assigns a single error for review:
               THE TRIAL COURT LACKED JURISDICTION TO GRANT
               DEFENDANT'S APPLICATION FOR SEALING, AS HE WAS
               NOT QUALIFIED AS AN "ELIGIBLE OFFENDER" WITHIN
               THE MEANING OF R.C. 2953.31(A).
III. DISCUSSION
       {¶ 7} Granting an application to seal criminal records requires a two-step analysis.
The first step is a determination of whether the offender is an "eligible offender," including
whether the offender has waited the requisite time period before filing. State v. C.A., 10th
Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 9. We review this step de novo. State v. C.L.W.,
10th Dist. No. 18AP-658, 2019-Ohio-1965, ¶ 7. The second step involves a trial court using
its discretionary powers to judge and weigh against one another a number of considerations
for and against sealing an applicant's criminal records. See C.A. at ¶ 10. A trial court's
No. 18AP-512                                                                                          3


judgment about these considerations are reviewable according to an abuse of discretion
standard. Id.; C.L.W. at ¶ 7. Despite employing discretion in weighing these substantive
considerations for and against sealing, a trial court "shall" grant an application to seal
criminal records when all the statutory requirements are met. R.C. 2953.32(C)(2); see also
C.A. at ¶ 11; State v. Schoenberger, 10th Dist. No. 15AP-451, 2015-Ohio-4870, ¶ 8. The
State's arguments in this case, concern only the first step, whether H.H. met the statutory
eligibility requirements to permit the trial court to grant the sealing.
        {¶ 8} At the time when H.H. applied to have the records sealed and at the time the
trial court issued an entry sealing the records, R.C. 2953.31(A) set forth eligibility
requirements as follows:
                "Eligible offender" means 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. When 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. When two or three convictions result from the same
                indictment, information, or complaint, from the same plea of
                guilty, or from the same official proceeding, and result from
                related criminal acts that were committed within a three-
                month period but do not result from the same act or from
                offenses committed at the same time, they shall be counted as
                one conviction, provided that a court may decide as provided
                in division (C)(1)(a) of section 2953.32 of the Revised Code that
                it is not in the public interest for the two or three convictions to
                be counted as one conviction.
R.C. 2953.31(A) (prior to Oct. 29, 2018). Because an offender must be eligible for the trial
court to be empowered to exercise its discretion to grant an application to seal criminal
records, we have interpreted this requirement strictly. State v. Sanders, 10th Dist. No.
14AP-916, 2015-Ohio-2050, ¶ 9.
        {¶ 9} It is apparently undisputed1 that H.H. was convicted of a first-degree
misdemeanor on November 21, 2005, a fifth-degree felony on August 3, 2005, and a fourth-
degree misdemeanor on March 23, 1999. (Aug. 3, 2005 Jgmt. Entry at 2; Docket 2005TRD-


1Despite the fact that the State only submitted docket sheets regarding the misdemeanors and not copies of
the judgment entries, the record does not indicate that H.H. disputed having the convictions.
No. 18AP-512                                                                                                 4


192076; Docket 1999CRB-4378.) The three convictions were charged at separate times in
three separate cases.           (Apr. 1, 2005 Indictment; Docket 2005TRD-192076; Docket
1999CRB-4378.) Thus, having one felony AND two misdemeanors on his record that could
not be "counted as one conviction," H.H. could not meet former R.C. 2953.31(A)'s definition
of "eligible offender." The trial court erred in ordering the records of his conviction to be
sealed when it entered the sealing order on June 22, 2018.2
        {¶ 10} In short, H.H. was not an "eligible offender" at the time when he filed his
application or when the trial court granted it, and thus that sealing order cannot stand. We
therefore sustain the State's sole assignment of error and remand for dismissal.
IV. CONCLUSION
        {¶ 11} At the time H.H. filed his application to seal and at the time the trial court
granted it, R.C. 2953.31(A) excluded anyone who had more than one felony conviction, OR
two misdemeanor convictions, OR one felony and one misdemeanor conviction from the
definition of "eligible offender."             H.H., who had one felony AND two misdemeanor
convictions outside of a three-month period was therefore ineligible, and the trial court
erred by granting the sealing. For that reason, we sustain the State's assignment of error
and reverse the judgment of the Franklin County Court of Common Pleas.
                                                                                             Judgment reversed.

                                 DORRIAN, J., concurs.
                      LUPER SCHUSTER, J., concurring in judgment only.




2 We note, however, effective approximately four months later, the sealing statutes were substantially
broadened to permit persons to apply for sealing who have an unlimited number of misdemeanors and five or
fewer fourth or fifth-degree felonies (so long as such crimes are not violent or felony sex offenses). 2018
Am.Sub.S.B. No. 66 (archived online at 2017 Ohio SB 66). As potentially relevant to this case, an offender
who is now legally eligible to have conviction records sealed is:
                 Anyone who has been convicted of one or more offenses, but not more than
                 five felonies, * * * if all of the offenses * * * are felonies of the fourth or fifth
                 degree or misdemeanors and none of those offenses are an offense of
                 violence or a felony sex offense.
R.C. 2953.31(A)(1)(a). It appears none of H.H.'s convictions contained in the record before us is an offense of
violence or a felony sex offense. See, e.g., R.C. 2901.01(A)(9); R.C. 2929.01(RR); R.C. 2967.28(A)(3). Hence,
depending on the current state of H.H.'s criminal record, H.H. might consider reapplying to see if he is eligible
under the new law.
No. 18AP-512                                                                           5



LUPER SCHUSTER, J., concurring in judgment only.
      {¶ 12} While I concur with the majority that this matter should be reversed, I write
separately because I would reverse based on State v. J.M., 148 Ohio St.3d 113, 2016-Ohio-
2803 and State v. R.P., 10th Dist. No. 19AP-36, 2019-Ohio-2540.
