[Cite as State v. Donaldson, 2015-Ohio-5065.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                   :         OPINION

                 Plaintiff-Appellant,            :
                                                           CASE NO. 2015-G-0022
        - vs -                                   :

PATRICIA A. DONALDSON,                           :
n.k.a. PATRICIA A. BOHN,

                 Defendant-Appellee.             :


Criminal Appeal from the Chardon Municipal Court, Case No. 2012 CRB 969.

Judgment: Affirmed.


Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024
(For Plaintiff-Appellant).

Patricia A. Donaldson, n.k.a. Patricia A. Bohn, pro se, 14707 Rapids Road, Burton, OH
44021 (Defendant-Appellee).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, the State of Ohio, seeks reversal of the trial court’s decision to

seal appellee, Patricia A. Bohn’s criminal record on jurisdiction grounds.           For the

following reasons, we affirm.

        {¶2}     In October 2012, three criminal complaints were brought against appellee:

contributing to a minor’s delinquency, interference with the custody of a child, and

falsification of official documents, all first degree misdemeanors.
       {¶3}    The charges were based upon allegations that appellee was harboring a

runaway teenager and made false statements while attempting to enroll the child in a

Geauga County high school.

       {¶4}    Approximately one year after filing the complaints, the state amended the

“interference” charge to disorderly conduct, a fourth-degree misdemeanor, and the

remaining complaints were dismissed. Appellee pleaded guilty to the amended charge,

was found guilty and ordered her to pay court costs. No additional sentence or fine was

imposed.

       {¶5}    Thirteen months later, appellee moved the trial court to seal the

conviction. The state argued appellee was ineligible because the victim was a child.

       {¶6}    The trial court ultimately found appellee to be eligible regardless of

whether the victim was a minor because the conviction was for a fourth-degree

misdemeanor, as opposed to a first-degree misdemeanor.

       {¶7}    In appealing this determination, the state asserts one assignment of error

for review:

       {¶8}    “The trial court erred as a matter of law in granting the application to seal

the record.”

       {¶9}    In challenging the trial court’s “eligibility” analysis, the state contends that

the court erred in focusing solely upon the point that disorderly conduct, the offense to

which appellee pled guilty, is only a fourth-degree misdemeanor. The state argues that,

in deciding whether the exception to eligibility under R.C. 2953.36(F) applies, the court

should have also considered all underlying facts including that appellee was originally

charged with three first-degree misdemeanors.




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       {¶10} “Our beginning principle is that expungement is a state-created act of

grace and ‘is a privilege, not a right.’ State v. Simon, 87 Ohio St.3d 531, 533, 2000-

Ohio-474, 721 N.E.2d 1041 (2000). A trial court may only grant expungement when an

applicant meets all of the statutory requirements. State v. Hamilton, 75 Ohio St.3d 636,

640, 1996-Ohio-440, 665 N.E.2d 669 (1996).” State v. Williamson, 10th Dist. Franklin

No. 12AP-340, 2012-Ohio-5384, ¶10.

       {¶11} As a general proposition, an appellate court will only reverse a decision on

a motion to expunge when the trial court abused its discretion. State v. Talameh, 11th

Dist. Portage No. 2011-P-0074, 2012-Ohio-4205, ¶20. However, when it is necessary

for the appellate court to interpret and apply statutory provisions, its standard of review

is de novo. Id.

       {¶12} R.C. 2953.32(A)(1) provides that an eligible offender can apply to the trial

court to seal the record of a conviction “at the expiration of one year after the offender’s

final discharge if convicted of a misdemeanor.” Subsection (B) of the statute sets forth

the procedure the trial court must follow prior to issuing a final ruling on the application-

motion. In turn, subsection (C)(1) lists certain findings the court must make as part of its

ruling. These include whether the defendant is an eligible offender, whether there are

any pending criminal actions against her, whether the defendant has been rehabilitated

to the court’s satisfaction, and whether the defendant’s interests in having the conviction

sealed outweighs any legitimate governmental interest in maintaining the record.

       {¶13} R.C. 2953.36 delineates a list of convictions that cannot be considered for

expungement under the statutory scheme.          At issue in our case, R.C. 2953.36(F),

exempts, “Convictions of an offense in circumstances in which the victim of the offense




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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 * * *.”

        {¶14} In concluding that this exemption did not apply to appellee, the trial court

did not address the question of whether the victim of the underlying crime was under the

age of eighteen. Instead, the trial court held that appellee was eligible for expungement

because she had been convicted of a fourth-degree misdemeanor rather than a first-

degree misdemeanor. The court relied upon our prior opinion in Talameh, 2012-Ohio-

4205.

        {¶15} In Talameh, the defendant was convicted of purchasing beer for a person

under the age of eighteen, in violation of R.C. 4301.69(A). In interpreting the statutes

governing that offense and its penalties, this court initially noted that a violation of R.C.

4301.69(A) was designated as a “misdemeanor” with no degree.              Id. at ¶39.   The

Talameh court also noted that the penalties for a violation of R.C. 4301.69(A) were not

analogous to the penalties for first-degree misdemeanors.          Id. at ¶40.   Therefore,

construing the expungement statutes liberally, we concluded that the Talameh

defendant was not exempt from expungement relief under R.C. 2953.36(F) because he

was not convicted of a first-degree misdemeanor. Id. at ¶41. In light of this conclusion,

our opinion never addressed the issue of whether the “victim” of the crime had been

under eighteen.

        {¶16} The state urges that, for purposes of the analysis in the present case, the

Talameh precedent should not be followed. Instead, the state argues that the Supreme

Court precedent in State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041 (2000), must be

applied in deciding the degree of the underlying offense. In Simon, the state contended




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that the defendant was exempt from expungement under R.C. 2953.36(A), which covers

convictions that subject the offender to a mandatory prison term. The Simon defendant

was originally charged with two offenses that contained firearm specifications. Pursuant

to a plea bargain, he was convicted of an amended charge with no firearm specification.

As a result of the state’s decision to not proceed on the specification, the defendant was

no longer subject to a mandatory prison term.

       {¶17} In upholding the appellate court’s decision that the Simon defendant was

ineligible for expungement, the Supreme Court concluded that, even though there was

no conviction on the firearm specifications, the trial court could still consider the fact that

the defendant had possession of a firearm in committing the underlying offense. Id. at

534. In reaching this conclusion, the Simon court emphasized that “when considering

whether an applicant is ineligible to have a conviction record sealed under R.C. 2953.36

because the applicant may have been ‘armed with a firearm or dangerous ordinance’

(R.C. 2951.02) at the time of the offense, a trial court must examine the entire record to

determine whether the applicant was so armed.” Id. at 535.

       {¶18} As the state correctly notes, the Tenth Appellate District has employed the

“entire record” analysis in considering whether a defendant is eligible for expungement

under R.C. 2953.36(F) due to the fact that the victim was under the age of eighteen.

See Williamson, 2012-Ohio-5384, at ¶14; State v. Jithoo, 10th Dist. Franklin No. 05AP-

436, 2006-Ohio-4978; State v. Norfolk, 10th Dist. Franklin No. 04AP-614, 2005-Ohio-

336. However, in each of these cases, the defendant’s actual conviction was for a first-

degree misdemeanor or a fifth-degree felony. Therefore, the state is requesting this

court to extend the “entire record” analysis in any situation in which the defendant is




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charged with a first-degree misdemeanor, but is ultimately convicted of a lesser-degree

misdemeanor.

       {¶19} The wording of R.C. 2953.36(F) does not warrant such an extension. The

provision expressly states that the underlying conviction must be for an offense which is

either a felony or first-degree misdemeanor. The wording of the provision does not

support such a broad interpretation, and would conflict with the general principle, cited

in Talameh, that the expungement statute be construed liberally.

       {¶20} In this case, appellee’s ultimate conviction was for a misdemeanor of the

fourth degree. Hence, the trial court did not err in holding that she was eligible to have

her record sealed. As the state has not contested any other aspect of the trial court’s

decision, its sole assignment of error is without merit.

       {¶21} The judgment of the Chardon Municipal Court is affirmed.



TIMOTHY P. CANNON, P.J.,

DIANE V. GRENDELL, J.,

concur.




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