[Cite as State v. K.T., 2017-Ohio-8748.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellant,            :
                                                                    No. 17AP-299
v.                                               :             (C.P.C. No. 16EP-884)

[K.T.],                                          :           (REGULAR CALENDAR)

                 Defendant-Appellee.             :




                                           D E C I S I O N

                                    Rendered on November 30, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Barbara A. Farnbacher, for appellant. Argued: Barbara A.
                 Farnbacher.

                 On brief: Andrew P. Avellano, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
          {¶ 1} Plaintiff-appellant, State of Ohio, appeals from the April 3, 2017 judgment
of the Franklin County Court of Common Pleas, granting the application filed by
defendant-appellee, K.T., to seal the record of her prior conviction. For the following
reasons, we reverse.
I. Facts and Procedural History
          {¶ 2} In November 2011, the state filed an indictment against K.T. alleging she
committed felonious assault, in violation of R.C. 2903.11, a felony of the second degree.
On May 30, 2012, K.T. entered a guilty plea to a stipulated lesser offense of assault, in
violation of R.C. 2903.13, a felony of the fourth degree. On July 13, 2012, the trial court
sentenced K.T. to two years of community control. On July 31, 2013, community control
was terminated early in accordance with R.C. 2951.09. The court found that K.T. had
No. 17AP-299                                                                               2


"adjusted satisfactorily and * * * complied with the terms of probation." (July 31, 2013
Entry.)
       {¶ 3} On December 30, 2016, K.T. filed an application to seal the record of her
assault conviction pursuant to R.C. 2953.32. Along with the application, K.T. included a
letter in which she expressed to the court her sincere remorse for having injured the
victim of her crime, her acknowledgment that she had made a poor choice in acting as she
did, and her assurance that she has learned from her mistake. K.T. stated she has "deeply
apologized to [the victim] for [her] actions, and hope[s] that she too can one day find it in
her heart to forgive [K.T.] for [her] poor choice." (Dec. 30, 2016 App. for Expungement,
attachment.) K.T. also informed the court that since her conviction she has earned an
Associate's Degree in business management, is working toward her Bachelor's Degree in
criminal justice, and has completed real estate courses in hopes of becoming a real estate
agent. She further informed the court that she is active in her church, committed to
volunteering with non-profit organizations, and working to become a positive role model.
K.T. detailed that as a result of her conviction, she lost her employment, is prevented from
fully assisting with coaching her daughters' cheerleading squad, and that an offer of future
employment with a real estate agency is "pending the expungement of [her] criminal
record." (Dec. 30, 2016 App. for Expungement, attachment.) K.T. attached several letters
in support from a leader of the non-profit organization with which she volunteers, her
daughters' cheerleading coach, and a family friend who wrote of K.T.'s love and care for
her own children as well as for their half-sibling. K.T. also attached her academic records
and certificates of completion.
       {¶ 4} On March 14, 2017, the state objected to K.T.'s application on the basis she
did not meet the legal criteria for sealing of the record because, pursuant to R.C.
2953.36(A)(3) and 2901.01(A)(9)(a), her conviction was for an offense of violence.
       {¶ 5} On March 28, 2017, the trial court conducted a hearing. At the hearing, K.T.
explained that she could not get her real estate license with this conviction on her record.
The court acknowledged that K.T. had been convicted of an offense of violence and,
therefore, did not meet the criteria for sealing of the record. Nevertheless, the court
granted K.T.'s application to seal the record noting that K.T. had "done more that what's
No. 17AP-299                                                                                3


required of a person to show that they have learned and recovered from the experience
that [she] put [herself in]." (Tr. at 6.) The court specifically found the following:
               Number one, the Court finds that this record is causing
               hardship on you and creating a situation that--where its
               impeding your ability to earn a living and to receive a license
               to pursue your career goals.

               The Court further finds that based upon the information
               provided to the Court that you have taken steps to
               rehabilitate yourself from what occurred during the course of
               this incident that occurred back in 2011, 2010.

               And based upon that, the Court finds that it's appropriate to
               grant you the expungement so that you will have the
               opportunity to pursue your career goals unimpeded by an
               indiscretion that occurred more than five years ago.

(Tr. at 6-7.) The court observed the state would probably appeal.
II. Assignment of Error
       {¶ 6} The state appealed and assigns the following single assignment of error for
our review:
               THE TRIAL COURT ERRED WHEN IT GRANTED AN
               APPLICATION TO SEAL A CONVICTION OF AN
               "OFFENSE OF VIOLENCE," IN CONTRAVENTION OF R.C.
               2953.36(A)(3).

III. Discussion
       {¶ 7} In its assignment of error, the state argues the trial court erred when it
granted K.T.'s application to seal the record of her conviction. More specifically, the state
asserts K.T. was not eligible to have the record of her conviction sealed and, thus, the trial
court erred as a matter of law when it granted K.T.'s application.
       {¶ 8} Expungement " ' "is an act of grace created by the state" and so is a privilege,
not a right.' " In re Koehler, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 14, quoting
State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d
636, 639 (1996). In Ohio, "expungement" remains a common colloquialism used to
describe the process of sealing criminal records pursuant to statutory authority. State v.
Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11. Pursuant to R.C. 2953.32(A)(1), "an
eligible offender may apply to the sentencing court * * * for the sealing of the record of the
No. 17AP-299                                                                                            4


case that pertains to the conviction." A court may grant the expungement only when the
applicant meets all statutory requirements for eligibility. State v. Brewer, 10th Dist. No.
06AP-464, 2006-Ohio-6991, ¶ 5, citing In re White, 10th Dist. No. 05AP-529, 2006-Ohio-
1346, ¶ 4-5. Where the offender was convicted of a felony, "[a]pplication may be made at
the expiration of three years after the offender's final discharge." R.C. 2953.32(A)(1).
        {¶ 9} "There is no burden upon the state other than to object to an application for
expungement where appropriate." State v. Reed, 10th Dist. No. 05AP-335, 2005-Ohio-
6251, ¶ 13. "Applicants whose conviction falls within any category of R.C. 2953.36 are
ineligible for expungement." State v. Menzie, 10th Dist. No. 06AP-384, 2006-Ohio-6990,
¶ 7, citing Simon at 533. As relevant here, an offender is not eligible for expungement
with respect to a conviction "of an offense of violence when the offense is a misdemeanor
of the first degree or a felony." R.C. 2953.36(A)(3).
        {¶ 10} An appellate court generally reviews a trial court's disposition of an
application to seal a record of conviction under an abuse of discretion standard. State v.
Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 6. However, whether an applicant is
considered an eligible offender is an issue of law for a reviewing court to decide de novo.
See State v. Hoyles, 10th Dist. No. 08AP-946, 2009-Ohio-4483, ¶ 4.
        {¶ 11} R.C. 2953.36 enumerates various convictions which are not eligible for
sealing, and states:
                (A) Except as otherwise provided in division (B) of this
                section, sections 2953.31 to 2953.35 of the Revised Code do
                not apply to any of the following:

                ***

                (3) Convictions of an offense of violence when the offense is
                a misdemeanor of the first degree or a felony and when the
                offense is not a violation of section 2917.03 of the Revised
                Code and is not a violation of section 2903.13 [assault],
                2917.01 [inciting violence], or 2917.31 of the Revised Code
                [inducing panic] that is a misdemeanor of the first degree[.]

(Emphasis added.)1


1See State v. Ventura, 12th Dist. No. CA2005-03-079, 2005-Ohio-5048, ¶ 11-12, regarding interpretation of
reference to R.C. 2903.13 in R.C. 2953.36(A)(3), formerly 2953.36(C). The Twelfth District held:
No. 17AP-299                                                                                                   5


        {¶ 12} R.C. 2901.01(A)(9)(a) provides that "[a]s used in the Revised Code," the
term "[o]ffense of violence" means any of the following: "[a] violation of section * * *
2903.13."      Thus, because R.C. 2901.01 defines assault as an offense of violence for
purposes of the Ohio Revised Code, and R.C. 2953.36(A)(3) exempts only misdemeanor
assault, the state asserts that R.C. 2953.36(A)(3) prohibits K.T. from sealing the record of
her felony of the fourth degree assault conviction.2 We agree with the state.
        {¶ 13} Recently, in State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, ¶ 17, the
Supreme Court of Ohio noted as follows:
                 The process of sealing a record of conviction does not consist
                 of the general evaluation of a person's soul—it is statutory.
                 Because the record of his conviction is prohibited from being

                 After reviewing R.C. 2953.36(C), we conclude that the statute, while not
                 artfully drafted, dictates that the common pleas court could not expunge
                 appellant's felony assault conviction. Pursuant to R.C. 2953.36(C),
                 appellant's assault conviction was an offense of violence as defined in R.C.
                 2901.01(A)(9); it was a felony; it was not a violation of the riot statute (R.C.
                 2917.03); and it was not a first-degree misdemeanor violation of the
                 assault statute (R.C. 2903.13), the inciting violence statute (R.C. 2917.01),
                 or the inducing panic statute (R.C. 2917.31). We find that the clause, "that
                 is a misdemeanor of the first degree," modifies the word, "violation," and
                 therefore applies to R.C. 2903.13, R.C. 2917.03, and R.C. 2917.31.
                 Accordingly, the statute removes from the "offense of violence" exception
                 to the expungement procedures a "violation of section 2903.13, 2917.01 or
                 2917.31 of the Revised Code that is a misdemeanor of the first degree."
                 (Emphasis added.)

                 Our construction of R.C. 2953.36(C) shows an intent by the legislature to
                 authorize expungement for a few specific first-degree misdemeanor
                 "offenses of violence," while not authorizing expungement for any felony
                 "offenses of violence." Appellant's construction of the statute would grant
                 courts the authority to expunge two felony "offenses of violence," assault
                 and inciting violence, while not authorizing expungement for any of the
                 other 31 felony "offenses of violence" listed in R.C. 2901.01(A)(9). Such a
                 result is not consistent with a careful reading of the statute's language nor
                 is it consistent with the apparent purpose of the statute. Our construction
                 of the statute is consistent with the conclusion reached by the court of
                 appeals in City of Euclid v. El-Zant (2001), 143 Ohio App.3d 545, 547, 758
                 N.E.2d 700.

2 K.T. argues that the relevant part of the assault statute, which qualifies as a fourth-degree felony is R.C.
2903.13(C)(5). R.C. 2903.13(C)(5) states that the victim of the offense is one of the enumerated public
officials who was in "the performance of their official duties" at the time of the assault. There was no
allegation that the victim of K.T.'s offense was one of the enumerated public officials nor that the victim was
performing an official duty. K.T. argues, therefore, that her conviction is not a lesser-included offense of R.C.
2903.11 and thereby renders her conviction a legal impossibility. K.T. further argues that her conviction is
void. We decline to address the merits of this argument as no such argument was made before the trial
court. Furthermore, an expungement proceeding is not the appropriate avenue for such a collateral attack
on her conviction.
No. 17AP-299                                                                              6


               sealed pursuant to [R.C. 2953.36(A)(3)], [the applicant's]
               rehabilitation is irrelevant in this case. There seems to be little
               doubt that [this applicant] has made significant personal
               progress * * * and that he is the type of person that Ohio's
               sealing statutes are designed to benefit. However, the General
               Assembly has left the courts no room to seal the record of [this
               applicant's] conviction, regardless of his being 18 when he
               committed the crime or the extent of his rehabilitation since
               his conviction. The focus in R.C. 2953.36 is on the crime
               committed rather than on the person who committed it. Any
               change in that calculus must come from the General
               Assembly.

We share the Supreme Court's sentiment in this case, and are compelled to find the trial
court erred in granting K.T.'s application to seal the record.
IV. Conclusion
       {¶ 14} Based on the foregoing, the state's single assignment of error is sustained.
As such, we reverse the judgment of the Franklin County Court of Common Pleas and
remand to that court for further proceedings consistent with this decision.
                                                                           Judgment reversed
                                                                         and cause remanded.
                             KLATT and HORTON, JJ., concur.
