[Cite as State v. Dye, 2016-Ohio-5065.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
COLTON DYE                                   :       Case No. 15-CA-65
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 15CRB669




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 21, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL E. COGLEY                                     JAMES L. DYE
123 East Chestnut Street                             P.O. Box 161
Lancaster, OH 43130                                  Pickerington, OH 43147
Fairfield County, Case No. 15-CA-65                                                        2

Farmer, P.J.

       {¶1}    On March 27, 2015, appellant, Colton Dye, was charged with five

misdemeanor counts which allegedly occurred on March 21, 2015 (arson, aggravated

menacing, menacing, criminal damaging, and domestic violence threats). The counts

were subsequently dismissed without prejudice on May 5, 2015.

       {¶2}    On June 23, 2015, appellant filed an application for sealing of the dismissal

pursuant to R.C. 2953.52(A). A hearing was held on November 16, 2015. By journal

entry filed November 17, 2015, the trial court denied the application, finding the applicable

statute of limitations had not run in order to seal the dismissal.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING

APPELLANT WAS STATUTORILY INELIGIBLE TO APPLY FOR SEALING THE

RECORD OF DISMISSAL AS THE STATUTE OF LIMITATIONS HAD NOT YET RUN."

                                              I

       {¶5}    Appellant claims the trial court erred in denying his request to seal the

record of the dismissal without prejudice as the trial court inappropriately required the

expiration of the statute of limitations in order to seal the record. We disagree.

       {¶6}    Statutory interpretation is a question of law, and therefore our standard of

review is de novo. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590. In construing

a statute, the primary goal "is to ascertain and give effect to the intent of the legislature
Fairfield County, Case No. 15-CA-65                                                      3

as expressed in the statute." Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-

Ohio-4505, ¶ 30.

       {¶7}     R.C. 2953.52 governs application to have records sealed and states the

following in pertinent part:



                (A)(1) Any person, who is found not guilty of an offense by a jury or

       a court or who is the defendant named in a dismissed complaint, indictment,

       or information, may apply to the court for an order to seal the person's

       official records in the case. Except as provided in section 2953.61 of the

       Revised Code, the application may be filed at any time after the finding of

       not guilty or the dismissal of the complaint, indictment, or information is

       entered upon the minutes of the court or the journal, whichever entry occurs

       first.

                (B)(2) The court shall do each of the following, except as provided in

       division (B)(3) of this section:

                (a)(i) Determine whether the person was found not guilty in the case,

       or the complaint, indictment, or information in the case was dismissed, or a

       no bill was returned in the case and a period of two years or a longer period

       as required by section 2953.61 of the Revised Code has expired from the

       date of the report to the court of that no bill by the foreperson or deputy

       foreperson of the grand jury;

                (ii) If the complaint, indictment, or information in the case was

       dismissed, determine whether it was dismissed with prejudice or without
Fairfield County, Case No. 15-CA-65                                                      4

      prejudice and, if it was dismissed without prejudice, determine whether the

      relevant statute of limitations has expired;

             (b) Determine whether criminal proceedings are pending against the

      person;

             (c) If the prosecutor has filed an objection in accordance with division

      (B)(1) of this section, consider the reasons against granting the application

      specified by the prosecutor in the objection;

             (d) Weigh the interests of the person in having the official records

      pertaining to the case sealed against the legitimate needs, if any, of the

      government to maintain those records.

             (3) If the court determines after complying with division (B)(2)(a) of

      this section that the person was found not guilty in the case, that the

      complaint, indictment, or information in the case was dismissed with

      prejudice, or that the complaint, indictment, or information in the case was

      dismissed without prejudice and that the relevant statute of limitations has

      expired, the court shall issue an order to the superintendent of the bureau

      of criminal identification and investigation directing that the superintendent

      seal or cause to be sealed the official records in the case consisting of DNA

      specimens that are in the possession of the bureau and all DNA records

      and DNA profiles. The determinations and considerations described in

      divisions (B)(2)(b), (c), and (d) of this section do not apply with respect to a

      determination of the court described in this division.
Fairfield County, Case No. 15-CA-65                                                          5


              (4) The determinations described in this division are separate from

       the determination described in division (B)(3) of this section. If the court

       determines, after complying with division (B)(2) of this section, that the

       person was found not guilty in the case, that the complaint, indictment, or

       information in the case was dismissed, or that a no bill was returned in the

       case and that the appropriate period of time has expired from the date of

       the report to the court of the no bill by the foreperson or deputy foreperson

       of the grand jury; that no criminal proceedings are pending against the

       person; and the interests of the person in having the records pertaining to

       the case sealed are not outweighed by any legitimate governmental needs

       to maintain such records, or if division (E)(2)(b) of section 4301.69 of the

       Revised Code applies, in addition to the order required under division (B)(3)

       of this section, the court shall issue an order directing that all official records

       pertaining to the case be sealed and that, except as provided in section

       2953.53 of the Revised Code, the proceedings in the case be deemed not

       to have occurred. (Emphasis added.)



       {¶8}   In its journal entry filed November 17, 2015, the trial court denied the

application, finding "the movant is not yet eligible for sealing of this record as the matter

was dismissed without prejudice and the statute of limitations has not expired."

       {¶9}   Appellant argues in reading the cited sections in pari materia, it leads to the

conclusion that the passage of the statute of limitations is not determinative, but the trial

court should proceed to the considerations enumerated in subsection (B)(4) e.g., "the
Fairfield County, Case No. 15-CA-65                                                          6


interests of the person in having the records pertaining to the case sealed are not

outweighed by any legitimate governmental needs to maintain such records." In other

words, appellant argues the statute provides for three categories: "1) dismissal with

prejudice; 2) dismissal without prejudice where the applicable statute of limitations has

expired; and 3) dismissal without prejudice where the applicable statute of limitations has

not expired." Appellant's Brief at 2. Appellant argues if the applicant falls under (1) or

(2), subsection (B)(3) applies; however, if the applicant falls under (3), as appellant herein,

then subsection (B)(4) applies and appellant needs to meet a higher burden.

       {¶10} We disagree with appellant's analysis of the relative statutory steps. R.C.

2953.52 requires a trial court to first comply with subsection (B)(2) in making a

determination, including section (B)(2)(a)(ii) which requires a finding on "if it was

dismissed without prejudice, determine whether the relevant statute of limitations has

expired." Only after making a (B)(2) determination does the trial court proceed under

subsection (B)(4) to seal the record. If the applicable statute of limitations on a dismissal

without prejudice has not passed, sealing is not permitted, as the charges may be refiled

prior to the expiration of the statute of limitations. Subsection (B)(3) pertains only to the

sealing of official records regarding DNA evidence which is not relevant to this case. As

subsection (B)(4) states, "[t]he determinations described in this division are separate from

the determination described in division (B)(3) of this section."

       {¶11} Although appellant's case was dismissed without prejudice, the required

two year statute of limitations had not expired.          R.C. 2953.52(B)(2)(a)(i) and (ii).

Therefore, appellant was not eligible for sealing under subsection (B)(4). Appellant's
Fairfield County, Case No. 15-CA-65                                                     7


record is not available for sealing until the passage of two years from the date of the

alleged misdemeanors which will be March 21, 2017.

      {¶12} Upon review, we find the trial court did not err in denying the application to

seal the record.

      {¶13} The sole assignment of error is denied.

      {¶14} The judgment of the Municipal Court of Fairfield County, Ohio is hereby

affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.



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