         [Cite as State v. Williams, 2014-Ohio-718.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NOS. C-130328
                                                                   C-130329
        Plaintiff-Appellee,                        :   TRIAL NOS. B-0406634
                                                                 01CRB-37180
  vs.                                              :
                                                            O P I N I O N.
THOMAS WILLIAMS,                                   :

    Defendant-Appellant.                           :




Criminal Appeals From: Hamilton County Court of Common Pleas and
                       Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: February 28, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,

John P. Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher
Liu, Assistant City Prosecutor, for Plaintiff-Appellee City of Cincinnati,

George Parker, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



D E W INE , Judge.

       {¶1}    Thomas Williams sought to expunge convictions for possession of

cocaine and selling alcohol to minors from his record in two separate proceedings, one

in common pleas court and one in municipal court. Both trial courts denied his request,

concluding that he was ineligible for expungement.       Ohio law limits eligibility for

expungement to offenders who have no more than one felony conviction and one

misdemeanor conviction. The courts below found Mr. Williams ineligible because he

had one felony conviction and two misdemeanor convictions. Mr. Williams challenges

these determinations in these appeals, which we have sua sponte consolidated for

purposes of our opinion. We find no merit to his arguments and affirm the judgments.

      Two Trial Courts Deny Mr. Williams’s Expungement Applications

       {¶2}    In the case numbered C-130328, Mr. Williams sought to expunge his

conviction for possession of cocaine. The state objected to the application, contending

that in addition to the possession conviction, Mr. Williams had misdemeanor

convictions for selling alcohol to minors, operating a vehicle while intoxicated (“OVI”),

and underaged drinking. At the hearing on his application, Mr. Williams argued that the

OVI, which occurred in Kentucky, and the underaged-drinking conviction did not count

as convictions for purposes of determining eligibility for expungement. The common

pleas court concluded that due to his OVI conviction, in addition to the convictions for

possession and selling alcohol to minors, Mr. Williams was not eligible for

expungement.

       {¶3}     The municipal court reached a similar conclusion in the case numbered

C-130329, denying his application to expunge his conviction for sale of alcohol to

minors. At the hearing below, Mr. Williams acknowledged that he had a Kentucky OVI,




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but argued that the conviction was excluded from the definition of “conviction” under

R.C. 2953.32(A).    He also argued that his conviction in 1999 was for a minor

misdemeanor. For purposes of the expungement statute, minor misdemeanors are not

considered convictions. R.C. 2953.32(A). The trial court concluded that Mr. Williams’s

conviction in 1999 for underaged drinking was a misdemeanor, and that therefore Mr.

Williams was ineligible for expungement.

                        The Common Pleas Court Decision

       {¶4}    We turn first to the common pleas court’s decision.           In his sole

assignment of error appealing that decision, Mr. Williams asserts that the court erred in

finding him ineligible for expungement based upon the Kentucky OVI. During oral

argument before this court, Mr. Williams suggested for the first time that the state had

offered no evidence below in support of its allegation that he had been convicted of OVI

in Kentucky. But at the hearing before the common pleas court, Mr. Williams did not

dispute the existence of the conviction. Rather, he argued “that the action in Kentucky

doesn’t meet the statutory definition in Ohio to prohibit the Court from considering the

sealing of the record of this felony.” Ohio appellate courts have disagreed about which

party has the burden either to prove or disprove an offender’s eligibility for

expungement. Compare State v. Reed, 10th Dist. Franklin No. 05AP-335, 2005-Ohio-

6251, ¶ 13 (“There is no burden upon the state other than to object to an application for

expungement where appropriate.”) with State v. Davis, 8th Dist. Cuyahoga No. 84470,

2005-Ohio-188, ¶ 86 (“[I]t is the state, not defendant, which bears the burden of proving

that a defendant is not a first offender.”). We need not address whether the state had the

burden to prove Mr. Williams had an OVI conviction in Kentucky because Mr. Williams




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waived any objection by not challenging the existence of the conviction before the trial

court.

         {¶5}    The issue that Mr. Williams did preserve for our review is whether an

OVI in Kentucky is excluded from the definition of conviction for purposes of

determining whether an offender is eligible for expungement. R.C. 2953.32(A) provides

that “an eligible offender” may apply to have his convictions sealed.          An “eligible

offender” is defined as “anyone who has been convicted of an offense in this state * * *

and who has * * * not more than one felony conviction and one misdemeanor conviction

in this state or any other jurisdiction.” R.C. 2953.31(A). Mr. Williams concedes that he

has one felony conviction (possession of cocaine) and one misdemeanor conviction

(selling alcohol to minors). He argues, however, that his Kentucky OVI does not count

as a conviction for purposes of the statute. As we explain, this argument reflects a

fundamental misreading of the statutory scheme.

         {¶6}    The statute first excludes minor misdemeanors and traffic convictions

from the definition of “conviction” for purposes of determining an offender’s eligibility:

         [A] conviction for a minor misdemeanor, for a violation of any section of

         Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a

         violation of a municipal ordinance that is substantially similar to any

         section in those chapters is not a conviction.

R.C. 2953.31(A). We will refer to this sentence as the “Exclusionary Sentence.”

         {¶7}    Next, the statute creates an exception to the Exclusionary Sentence. It

places back within the definition of conviction certain enumerated Ohio traffic offenses

that would otherwise be excluded from the definition of conviction because they fall

within the five chapters of the Revised Code identified in the Exclusionary Sentence:




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        However, a conviction for a violation of section 4511.19 [OVI], 4511.251

        [street racing], 4549.02, 4549.021, 4549.03 [failure to stop after an

        accident], 4549.042 [motor vehicle master key violation], or 4549.62

        [tampering with vehicle identification numbers] * * * shall be considered

        a conviction.

We will refer to this sentence as the Exception Sentence.

        {¶8}     Mr. Williams argues that because the Exception Sentence cited above

includes only Ohio code sections, his Kentucky OVI conviction must not be considered a

conviction for purposes of R.C. 2953.31.            What he ignores, however, is that this

Exception Sentence only applies as an exception to the Exclusionary Sentence. The

Exception Sentence does not apply in this case because his Kentucky conviction was not

first excluded from the definition of conviction by the Exclusionary Sentence.

        {¶9}     Of course, the Exclusionary Sentence would exclude his Kentucky

conviction if the offense was a “conviction for a minor misdemeanor.”1 Kentucky law

does not include a designation for “minor misdemeanor.”                  See Ky.Rev.Stat.Ann.

431.060. Thus, we must determine whether Mr. Williams’s OVI conviction is equivalent

to a minor misdemeanor in Ohio. To do so, we must compare the Kentucky OVI

penalties to Ohio’s minor misdemeanor penalties.                 State v. Detskas, 2d Dist.

Montgomery No. 23794, 2010-Ohio-4392, ¶ 4. Ohio defines a minor misdemeanor as

“[a]ny offense not specifically classified [as a felony or misdemeanor] * * * if the only

penalty that may be imposed is one of the following: * * * a fine not exceeding one

hundred fifty dollars, community service under division (C) of section 2929.27 of the


1In this case, we are not confronted with a situation where a defendant’s out-of-state conviction
was not a minor misdemeanor but was substantially similar to an Ohio traffic offense that was not
considered a “conviction” for expungement purposes under the statutory scheme. As evidenced
by the Exception Sentence, the Ohio legislature plainly intended for an OVI conviction to count as
a conviction for purposes of the expungement statute.



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Revised Code, or a financial sanction other than a fine under section 2929.28 of the

Revised Code.” R.C. 2901.02(G).       Under Kentucky law, the minimum penalty for an

OVI is a fine “not less than two hundred dollars * * * or [imprisonment] in the county jail

for not less than forty-eight (48) hours * * * or both.” Ky.Rev.Stat.Ann. 189A.010(5)(a).

Based on these minimum penalties, the Kentucky OVI is of a greater degree than an

Ohio minor misdemeanor.          Thus, the conviction is not excluded as a minor

misdemeanor from the definition of “conviction” for purposes of R.C. 2953.31(A). The

common pleas court did not err when it denied Mr. Williams’s application for

expungement based on his Kentucky OVI conviction.

                           The Municipal Court Decision

       {¶10}    In the brief in support of his appeal of the municipal court’s decision,

Mr. Williams again asserts that the court erred in finding he was ineligible for

expungement based upon the Kentucky OVI. But it is clear from the record that the

municipal court determined that Mr. Williams was ineligible due to his conviction for

underaged drinking in 1999, so we recast his assignment of error in the municipal

appeal to reflect the argument made regarding that conviction.

       {¶11}    Mr. Williams’s argument below regarding his application to expunge his

conviction for selling alcohol to minors was that his 1999 conviction was for a minor

misdemeanor, rather than a misdemeanor. The judge’s sheet from the 1999 municipal

court conviction indicates that Mr. Williams was charged with underaged drinking in

violation of R.C. 4301.632. According to the sheet, Mr. Williams pleaded no contest and

was found guilty, and the court imposed a fine of $100. In considering Mr. Williams’s

application, the trial court reviewed the judge’s sheet, researched the offense, and

determined that a violation of R.C. 4301.632 was a misdemeanor in 1999.




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       {¶12}    Mr. Williams now argues that the judge’s sheet indicates that he was

convicted for a minor misdemeanor. He points to a stamp on the sheet that references

R.C. 4301.62, which prohibits violations of Ohio’s open-container law. The stamp

appears to have been added by the office of the Hamilton County Clerk of Courts to

record Mr. Williams’s payment of his fine and costs three weeks after he was found

guilty. The original caption on the judge’s sheet, which indicates that Mr. Williams was

charged with a violation of R.C. 4301.632 (underaged drinking), was not altered. During

the hearing before the trial court, Mr. Williams did not dispute that he had been

convicted of underaged drinking. The apparent discrepancy with the stamp was not

brought to the court’s attention. The finding that Mr. Williams had been convicted of

misdemeanor underaged drinking in 1999 was supported by the evidence before the

court and will not be disturbed on appeal. In light of its finding, the trial court properly

determined that Mr. Williams was ineligible for expungement.

       {¶13}    We overrule Mr. Williams’s assignments of error. The judgments are

affirmed.

                                                                      Judgments affirmed.


D INKELACKER , P.J., and F ISCHER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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