[Cite as In re Application for Sealing of Records of A.J., 2016-Ohio-5495.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



In re:                                                  :

Application for the Sealing of the                      :                     No. 15AP-974
Records of:                                                           (M.C. No. 2015 CRX 50095)
                                                        :
[A.J.].                                                             (REGULAR CALENDAR)
                                                        :



                                     N U N C P R O T U N C1
                                        D E C I S I O N

                                      Rendered on August 23, 2016


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

                 On brief: Law Offices of Paul Scott, and Paul Scott, for
                 appellee. Argued: Paul Scott.

                        APPEAL from the Franklin County Municipal Court

SADLER, J.
          {¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin
County Municipal Court, which granted defendant-appellee's, A.J., application to seal the
record of a dismissed felony case. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
          {¶ 2} On March 19, 2013, in case No. 2013CRA-6173, Westerville police charged
appellee with telecommunications harassment pursuant to R.C. 2917.21(A)(3). In the
complaint, the charging officer indicated that appellee made a telecommunication to a
certain person on February 11, 2013 and knowingly caused that person to believe that he


1This decision replaces, nunc pro tunc, the decision rendered on August 11, 2016 to replace appellee's name
with initials.
No. 15AP-974                                                                             2


would cause serious physical harm to her. The complaint further indicated that appellee
had previously been convicted of two similar offenses and designated the charge as a fifth-
degree felony.
       {¶ 3} On July 5, 2013, in case No. 2013CRB-16386, the same Westerville police
officer charged appellee with telecommunications harassment, pursuant to R.C. 2917.21,
and cited to the same February 11, 2013 incident, but this time did not indicate that
appellee had prior similar convictions and correspondingly designated the charge as a
first-degree misdemeanor.
       {¶ 4} The parties do not dispute that the telecommunications harassment charges
in case Nos. 2013CRA-6173 and 2013CRB-16386 arose from the exact same facts and
conduct of appellee on February 11, 2013.
       {¶ 5} The record indicates that on September 27, 2013, the charge for felony
telecommunications harassment in case No. 2013CRA-6173 was dismissed in
arraignment. Appellant pled guilty to and was convicted of telecommunications
harassment, pursuant to R.C. 2917.21, as a first-degree misdemeanor in case No.
2013CRB-16386.
       {¶ 6} On January 20, 2015, appellee filed an application to seal the record of the
dismissed charge of felony telecommunications harassment in case No. 2013CRA-6173
pursuant to R.C. 2953.52.     Appellant filed objections to the application to seal on
March 30, 2015, and the trial court held a hearing on the matter on June 25, 2015. At the
hearing, appellant argued that because the case involves multiple charges with different
dispositions—the felony dismissal and the misdemeanor conviction—and appellee is
ineligible to seal the misdemeanor conviction due to his prior record, appellee's
application to seal the felony dismissal is barred by R.C. 2953.61 and State v. Pariag, 137
Ohio St.3d 81, 2013-Ohio-4010. Appellant further argued that if the court were to order
the felony dismissal sealed under statutory definitions, it is not possible to seal all the
official records involved, essentially resulting in an unlawful partial sealing. Appellee
countered that, essentially, this scenario does not present two separate offenses to invoke
R.C. 2953.61 and Pariag. The trial court judge noted that at the initial arraignment
hearing on both matters, the felony case was never indicted.
No. 15AP-974                                                                                 3


         {¶ 7} On October 5, 2015, the trial court granted appellee's application to seal the
record of the felony dismissal. In doing so, the trial court explained that at the initial
arraignment hearing, appellant "entered a guilty plea to the misdemeanor, whereupon the
felony case was dismissed upon the realization that it was the same incident that had
initially been filed as a felony then refiled as a misdemeanor." (Trial Ct. Decision at 2.)
The trial court noted "[t]his was done with the knowledge and approval of the Westerville
City Attorney." (Trial Ct. Decision at 2.) Therefore, the trial court found R.C. 2953.61 and
the Pariag analysis inapplicable to the case at hand because the two cases involved "are
the exact same charge" or "the same charge filed twice," rather than different charges
from the same set of facts and circumstances. (Trial Ct. Decision at 2.) Appellant filed a
timely appeal.
II. ASSIGNMENT OF ERROR
         {¶ 8} Appellant asserts a single assignment of error:
                THE TRIAL COURT LACKED JURISDICTION TO SEAL
                THE RECORD OF A DISMISSED CHARGE, WHERE THE
                APPLICATION WAS BARRED BY R.C. 2953.61.

III. STANDARD OF REVIEW
         {¶ 9} Generally, "[a] reviewing court 'will not reverse a trial court's decision on an
R.C. 2953.52 application to seal absent an abuse of discretion.' " In re K.J., 10th Dist. No.
13AP-1050, 2014-Ohio-3472, ¶ 10, discretionary appeal not allowed, 141 Ohio St.3d
1489, 2015-Ohio-842, quoting In re Dumas, 10th Dist. No. 06AP-1162, 2007-Ohio-3621,
¶ 7. However, we engage in de novo review of issues on appeal involving questions of law.
Pariag at ¶ 9 (applying de novo review to interpretation of R.C. 2953.61); State v. Futrall,
123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6 (finding abuse of discretion standard
inappropriate for "erroneous interpretation of the law"); K.J. at ¶ 18 (applying a "hybrid"
standard of review to trial court's ruling under R.C. 2953.61 by reviewing the trial court's
findings of fact for an abuse of discretion but application of those facts to the law de
novo).
IV. DISCUSSION
         {¶ 10} The first argument under appellant's assignment of error is premised on the
applicability and barring effect of R.C 2953.61(A) and Pariag in respect to appellee's
No. 15AP-974                                                                               4


application to seal the record of his dismissed felony charge under R.C. 2953.52. Appellee
disagrees that he is "a person charged with two or more offenses" and, therefore, argues
R.C. 2953.61(A) and the holding in Pariag do not apply. For the following reasons, we
agree.
         {¶ 11} R.C. 2953.52 provides for sealing of records after not guilty findings,
dismissals of proceedings, or no bills by a grand jury. Under this statute, "[a]ny person
* * * who is the defendant named in a dismissed complaint * * * may apply to the court for
an order to seal the person's official records in the case." R.C. 2953.52(A)(1). Such
application may be filed at any time after the dismissal of the complaint, "[e]xcept as
provided in section 2953.61 of the Revised Code." R.C. 2953.52(A)(1).
         {¶ 12} R.C. 2953.61 supplies the law for sealing records where a person is charged
with multiple offenses. In pertinent part, R.C. 2953.61(A) states:
               [A] person charged with two or more offenses as a result of or
               in connection with the same act may not apply to the court
               pursuant to * * * 2953.52 of the Revised Code for the sealing
               of the person's record in relation to any of the charges when at
               least one of the charges has a final disposition that is different
               from the final disposition of the other charges until such time
               as the person would be able to apply to the court and have all
               of the records pertaining to all of those charges sealed
               pursuant to section 2953.32 or 2953.52 of the Revised Code.

(Emphasis added.)
         {¶ 13} In Pariag, the Supreme Court of Ohio examined R.C. 2953.61(A) in the
context of a traffic stop which yielded two separate cases, each involving different offenses
and resulting in different dispositions: one case charged Pariag with a traffic offense
resulting in a conviction pursuant to a plea and one case charged Pariag with criminal
drug offenses resulting in a dismissal. Pursuant to R.C. 2953.52, Pariag filed an
application to seal the record of the dismissed drug offense charges, but the state argued
that the dismissed case could not be sealed under R.C. 2953.61 since the traffic case could
not be sealed. The Supreme Court found that, "regardless of whether the charges are filed
under separate case numbers," R.C. 2953.61 bars a trial court from sealing the record of a
dismissed charge if the "dismissed charge arises 'as the result of or in connection with the
same act' that supports a conviction when the records of the conviction are not sealable
No. 15AP-974                                                                                5


under R.C. 2953.36." Id. at syllabus. The court clarified that "[t]he 'same act' plainly
refers to the 'same conduct' " and remanded the matter for the trial court to determine
whether the dismissed charges for drug offenses stemmed from the same conduct as
Pariag's traffic violation.2 Id. at ¶ 16.
          {¶ 14} Appellee argues that this case is distinguishable from cases precluding
sealing under R.C. 2953.61 because he was charged with the same offense twice in two
separate cases. In support of this argument, appellee cites to State v. Klembus, 146 Ohio
St.3d 84, 2016-Ohio-1092.
          {¶ 15} In Klembus, the Supreme Court addressed the question of "whether raising
the felony level for an OVI offense [under R.C. 4511.19] and imposing a sentencing
enhancement on a specific class of OVI offenders [under R.C. 2941.1413] violates the right
to equal protection" by imposing different punishments for identical criminal conduct.
Id. at ¶ 1. The court described R.C. 4511.19(G)(1) as a statute designed to raise the level of
the OVI offense in a graduated system based on the number and type of previous
convictions and correspondingly impose a graduated penalty for an OVI offense and
described R.C. 2941.1413 as a means to impose a mandatory additional prison term for
repeat OVI offenders. In concluding that no equal protection violation occurred, the court
in Klembus analyzed whether the case involved multiple criminal offenses.             In part
pertinent to this issue, the court in Klembus states:
                  To define a criminal offense, a statute must prohibit
                  specific conduct. R.C. 2901.03(B). Specifications such as
                  R.C. 2941.1413 do not prohibit conduct; they add sentencing
                  enhancements to the violation of a predicate statute that does
                  prohibit conduct. State v. Ford, 128 Ohio St.3d 398, 2011-
                  Ohio-765, 945 N.E.2d 498, ¶ 16. And a factor that merely
                  increases the degree of the offense does not itself
                  define the offense. See Blackburn v. State, 50 Ohio St.
                  428, 36 N.E. 18 (1893), paragraph three of the syllabus; State
                  v. Allen, 29 Ohio St.3d 53, 55, 29 Ohio B. 436, 506 N.E.2d 199
                  (1987). Thus, although higher felony levels and
                  specifications may increase the length of a sentence,
                  they do not prohibit conduct. See State v. Witwer, 64
                  Ohio St.3d 421, 429, 1992 Ohio 136, 596 N.E.2d 451 (1992).


2   After the remand, no public record shows how the Pariag case was resolved.
No. 15AP-974                                                                                6


(Emphasis added.) Id. at ¶ 17. Therefore, the court concluded that the case did not
involve multiple criminal offenses because "[t]he conduct prohibited in this case was
Klembus's act of driving while under the influence in 2012," and "[t]he mere status of
having a history of OVI convictions is not a criminal offense in Ohio." Id. at ¶ 18.
       {¶ 16} Here, appellee was charged two times with telecommunications harassment
for the exact same conduct. Like Klembus, the only difference between the cases is a
change in the degree of the offense as a result of prior convictions. Specifically, the
charging officer designated the first case as a fifth-degree felony charge of
telecommunications harassment based on prior convictions and designated the second
case as a first-degree misdemeanor charge of telecommunications harassment without
reference to prior convictions.
       {¶ 17} The Supreme Court in Klembus states how a criminal offense is defined by
statute. The court rejected the idea that a factor, such as a prior conviction, that increases
the degree of the offense thereby defines a separate offense and emphasized that the
specific underlying conduct at issue defines the offense. Id. at ¶ 17-18. See also R.C.
2945.75(A) (setting forth law applicable where proof of prior convictions as an additional
element "makes an offense one of more serious degree"); State v. Adams, 106 Ohio
App.3d 139, 143 (10th Dist.1995) (describing effect of defendant's prior conviction as
"elevat[ing] the degree of the offense" in case concerning priority and prejudice of
evidence of prior conviction at trial); State v. Crosky, 10th Dist. No. 06AP-655, 2008-
Ohio-145, ¶ 152-53 (discussing an offense to include various degrees ranging from first-
degree misdemeanors to several felony enhancements).
       {¶ 18} While the facts here exhibit charges filed in both municipal court and the
court of common pleas, the focus in applying R.C. 2953.61 unambiguously centers on a
person "charged with two or more offenses." (Emphasis added.) R.C. 2953.61(A). See
Pariag at ¶ 17, 20 (stating "when multiple offenses have different dispositions, an
application to seal a record may be filed only when the applicant is able to apply to have
the records of all the offenses sealed" and "R.C. 2953.61 thus focuses not on when
separate offenses occurred, but on whether [the separate offenses] arose from the same
conduct of the applicant"). (Emphasis added.) Therefore, considering the clear statutory
language that two or more separate offenses, not just charges, must be involved to invoke
No. 15AP-974                                                                               7


R.C. 2953.61 and case law stating that prior convictions merely elevate the degree of the
offense rather than create a separate offense, we find that appellee was not a person
"charged with two or more offenses." R.C. 2953.61(A). As such, R.C. 2953.61 does not
apply.
         {¶ 19} The second argument under appellant's assignment of error is premised on
the impropriety and impracticality of partial sealing as discussed in Futrall at ¶ 20-21. In
Futrall, a defendant entered guilty pleas on charges for five criminal offenses brought in a
single case. By statute, one of his resultant convictions could not be sealed. When the
defendant filed an application to seal the record of the case, the Supreme Court
determined that R.C. 2953.61 did not apply, but, nonetheless, an applicant with multiple
convictions in one case may not partially seal his or her record, pursuant to R.C. 2953.32,
when one of the convictions is statutorily exempt from being sealed under R.C. 2953.36.
In doing so, the court described the "impractical reality" of sealing only certain
convictions within a case and concluded that the "General Assembly[] intend[ed] to
authorize the sealing of cases, not the sealing of individual convictions within cases." Id.
at ¶ 20.
         {¶ 20} In K.J., 2014-Ohio-3472, this court extended Futrall to preclude the trial
court from sealing the record of a dismissed charge for a drug offense docketed under the
same case number as another dismissed charge which was not sealable. K.J. at ¶ 29, 31.
We reiterated the General Assembly's intent to authorize the sealing of cases, rather than
charges of individual offenses within a single case.
         {¶ 21} Later, in State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 27-33,
discretionary appeal not allowed, 144 Ohio St.3d 1505, 2016-Ohio-652, this court
rejected the state's argument that the trial court abused its discretion in granting an
application to seal the records in two cases because the order would arguably require
duplicate records in another non-sealable case to be sealed. In doing so, we found that
R.C. 2953.52(B)(4), stating that a court's sealing order is directed at "all official records
pertaining to the case," only affects official records of the sealed case itself. Id. at ¶ 29
("[W]e find that the legislature's unambiguous language here suggests that the 'official
records' to be sealed are just those that relate to the individual case or cases being
sealed."). As a result, we concluded the fact that the same information was used in
No. 15AP-974                                                                            8


multiple case files, one of which could not be sealed, does not render all those cases
exempt from sealing.
       {¶ 22} Therefore, for the above stated reasons and under existing case law, we find
that appellant's argument regarding partial sealing lacks merit.
       {¶ 23} Accordingly, appellant's sole assignment of error is overruled.
V. CONCLUSION
       {¶ 24} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Municipal Court.
                                                                       Judgment affirmed.
                        DORRIAN, P.J., and HORTON, J., concur.
                                   ______________
