[Cite as State v. Pankey, 2012-Ohio-936.]


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



STATE OF OHIO,                              :      APPEAL NOS. C-110547
                                                                C-110548
        Plaintiff-Appellee,                 :      TRIAL NOS. 06-TRD-17918
                                                              C-07TRD-43688
  vs.                                       :

CHANELL PANKEY,                             :                O P I N I O N.

     Defendant-Appellant,                   :




Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Causes Remanded

Date of Judgment Entry on Appeal: March 9, 2012


John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

Ohio Justice & Policy Center, Marguerite Slagle, and Devon N. R. Oser, for
Defendant-Appellant.




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




F ISCHER , Judge.

       {¶1}    Defendant-appellant Chanell Pankey applied to the Hamilton County

Municipal Court to seal her official records in the cases numbered 06-TRD-17918 and

C-07TRD-43688 A/B. In the 2006 case, Pankey was cited for operating a vehicle

without authorized license plates, a violation of Cincinnati Municipal Code 503-52. She

was later found not guilty. In the 2007 case, Pankey was cited for speeding and

operating a vehicle under a suspended driver’s license, violations of R.C. 4511.21 and

R.C. 4510.11 respectively. Those citations were later dismissed.

       {¶2}    The trial court denied Pankey’s applications to seal these records. At a

hearing on the matter, the court reasoned that R.C. 2953.36 “was clearly intended to

exclude all routine traffic offenders” from securing sealed records. T.p. 12. Pankey now

appeals, arguing in a single assignment of error that R.C. 2953.36 does not preclude the

sealing of her records in these cases. We agree.

                                  Standard of Review

       {¶3}    Generally, we will not disturb a trial court’s decision to grant or deny an

application to seal records under R.C. 2953.32 or R.C. 2953.52 absent an abuse of

discretion. State v. Spohr, 1st Dist. No. C-110314, 2012-Ohio-556, ¶ 5. However, where

the trial court’s decision was based on “an erroneous interpretation or application of the

law,” as Pankey claims, we review the matter de novo. State v. Hillman, 10th Dist. Nos.

09AP-478, 09AP-479 and 09AP-480, 2010-Ohio-256, ¶ 11, citing State v. Futrall, 123

Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6-7.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                        Analysis

       {¶4}     “The processes for expungement of convictions and sealing of records

after an acquittal or dismissal are governed by R.C. 2953.31 et seq. and R.C. 2953.51 et

seq., respectively.” Spohr at ¶ 6.

       {¶5}     R.C. 2953.32(A)(1) provides that

               Except as provided in section 2953.61 of the Revised

               Code, a first offender may apply to the sentencing court

               if convicted in this state, or to a court of common pleas if

               convicted in another state or in a federal court, for the

               sealing of the conviction record. Application may be

               made at the expiration of three years after the offender's

               final discharge if convicted of a felony, or at the

               expiration of one year after the offender's final discharge

               if convicted of a misdemeanor.

       {¶6}     A “first offender” is defined as “anyone who has been convicted of an

offense in this state or any other jurisdiction and who previously or subsequently has

not been convicted of the same or a different offense in this state or any other

jurisdiction.” R.C. 2953.31(A).

       {¶7}     Similarly, R.C. 2953.52(A)(1) provides that

               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 his official records

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

               Revised Code, the application may be filed at any time



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                       OHIO FIRST DISTRICT COURT OF APPEALS



                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.

       {¶8}     There is no dispute that Pankey was found not guilty in the 2006 case

and that her citations were dismissed in the 2007 case. Thus, her applications are

governed by R.C. 2953.52, not R.C. 2953.32. See State v. LaSalle, 96 Ohio St.3d 178,

2002-Ohio-4009, 772 N.E.2d 1172, ¶ 3, fn. 2 (whether R.C. 2953.32 or R.C. 2953.52

was applicable depended on the disposition of the underlying case).

       {¶9}     Nevertheless, the trial court determined that R.C. 2953.36 barred the

sealing of Pankey’s records because she was cited for traffic violations. R.C. 2953.36

provides that

                Sections 2953.31 to R.C. 2953.35 of the Revised Code do

                not apply to any of the following * * *

                (B) Convictions under section 2907.02, 2907.03,

                2907.04, 2907.05, 2907.06, 2907.321, 2907.322, or

                2907.323, former section 2907.12, or Chapter 4507.,

                4510., 4511., or 4549. of the Revised Code, or a

                conviction for a violation of a municipal ordinance that

                is substantially similar to any section contained in any of

                those chapters * * * .

       {¶10}    By its plain language, R.C. 2953.36 limits only R.C. 2953.31 through

R.C. 2953.35. The statute does not bar applications to seal records that are governed by

R.C. 2953.52. But see Spohr at ¶ 11 (discussing the interplay among R.C. 2953.32,

R.C. 2953.52, and R.C. 2953.61).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11}   For support, the trial court relied on Cincinnati v. Bregger, 1st Dist. No.

C-780372, 1979 Ohio App. LEXIS 10057 (Apr. 4, 1979). That reliance was misplaced,

however, because the Bregger court merely held that an earlier version of R.C. 2953.36

precluded the expungement of traffic convictions. Although Pankey was accused of

violating statutes referenced in R.C. 2953.36, she was never convicted of those offenses.

Accordingly, we sustain her single assignment of error.

       {¶12}   We note, however, that this holding does not resolve the issue of

whether Pankey’s applications should be granted or denied.           Although we have

concluded that she was found not guilty in the 2006 case and that her citations were

dismissed in the 2007 case, the trial court must still (1) determine whether criminal

proceedings are pending against her; (2) consider the reasons against granting the

application specified by the prosecutor; and (3) weigh Pankey’s interest in having her

records sealed against the legitimate needs, if any, of the government to maintain those

records. R.C. 2953.52(B)(2). Because this requires additional fact finding, and a

balancing of interests that R.C. 2953.52(B)(3) commits to the trial court’s discretion, we

shall not decide the merits of Pankey’s applications at this juncture. See State v. Crews,

179 Ohio App.3d 521, 2008-Ohio-6230, 902 N.E.2d 566, ¶ 28 (10th Dist.).

       {¶13}   We, therefore, reverse the judgments of the trial court denying Pankey’s

applications to seal her records, and remand these causes for further proceedings

consistent with this opinion and the law.

                                            Judgments reversed and causes remanded.


H ILDEBRANDT , P.J., and H ENDON , J., concur.


Please note:
       The court has recorded its own entry this date.



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