[Cite as State v. Spohr, 2012-Ohio-556.]



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



STATE OF OHIO,                               :          APPEAL NO. C-110314
                                                      TRIAL NO. 06CRB-18488-B
          Plaintiff-Appellant,               :

        vs.                                  :

PAUL SPOHR,                                  :               O P I N I O N.

          Defendant-Appellee.                :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 15, 2012




John Cupp, Solicitor, City of Cincinnati, Charles A. Rubenstein, Interim City
Prosecutor, and William T. Horsley, Assistant City Prosecutor, for Plaintiff-
Appellant,

Katz, Greenberger & Norton, L.L.P., and Kevin R. Brewer, for Defendant-Appellee.




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



FISCHER, Judge.

       {¶1}   The state of Ohio appeals the judgment of the Hamilton County

Municipal Court granting defendant-appellee Paul Spohr’s application for the sealing

of records regarding his domestic-violence acquittal. We determine that the plain

language of the statutes applicable to the sealing of criminal records in Ohio

prohibits the sealing of records related to Spohr’s domestic-violence charge;

therefore, we must reverse.

       {¶2}   Spohr had been charged with assault and domestic violence in 2006.

The details of the events underlying Spohr’s charges are not significant in resolving

this appeal, as Spohr concedes that both charges had resulted from the same

conduct. Spohr proceeded to a trial to the bench on both charges, where he was

acquitted of the domestic-violence charge and found guilty of the lesser-included

offense of disorderly conduct on the assault charge.

       {¶3}   In 2011, Spohr filed an application to seal the records regarding his

domestic-violence acquittal only. Spohr conceded that he was not eligible to have his

disorderly-conduct conviction expunged. The trial court granted Spohr’s motion,

and the state now appeals.

       {¶4}   In a single assignment of error, the state contends that the trial court

acted contrary to law in granting Spohr’s application for the sealing of records

pertaining to the domestic-violence charge because, under the applicable statutes,

Spohr’s disorderly-conduct conviction operated as a bar to such sealing.

                                  Standard of Review

       {¶5}   Generally, an appellate court reviews a trial court’s decision regarding

a motion to expunge and seal the record under an abuse-of-discretion standard.

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                   OHIO FIRST DISTRICT COURT OF APPEALS



State v. Pierce, 10th Dist. Case No. 06AP-931, 2007-Ohio-1708, ¶ 5. In this case,

however, where the dispute as to the sealing of records involves purely a legal

question, our standard of review is de novo. State v. Futrall, 123 Ohio St.3d 498,

2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

                                          Analysis

       {¶6}   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. R.C. 2953.52(A)(1) provides as follows

              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

              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.

       {¶7}   R.C. 2953.61, specifically referenced in R.C. 2953.52, provides that

              [w]hen a person is charged with two or more offenses as

              a result of or in connection with the same act and at

              least one of the charges has a final disposition that is

              different than the final disposition of the other charges,

              the person may not apply to the court for the sealing of

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                   OHIO FIRST DISTRICT COURT OF APPEALS



              his record in any of the cases until such time as he would

              be able to apply to the court and have all of the records

              in all of the cases pertaining to those charges sealed

              pursuant to divisions (A)(1) and (2) of section 2953.32

              and divisions (A)(1) and (2) of section 2953.52 of the

              Revised Code.

       {¶8}   Under R.C. 2953.32(A)(1), a “first offender” may apply for

expungement of a conviction. A “first offender” is “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).

       {¶9}   Spohr concedes that he is not a first offender, and therefore, he cannot

apply for an expungement of his disorderly-conduct conviction under R.C.

2953.32(A)(1).    Because his disorderly-conduct and domestic-violence charges

resulted from the same actions, and the two charges had different dispositions—one

resulting in a conviction and one in an acquittal—Spohr “may not apply to the court

for the sealing of his record in any of the cases until such time as he would be able

to apply to the court and have all of the records in all of the cases pertaining

to those charges sealed pursuant to divisions (A)(1) and (2) of section 2953.32 and

divisions (A)(1) and (2) of section 2953.52 of the Revised Code.” R.C. 2953.61. As

already noted, however, R.C. 2953.32(A)(1) prohibits expungement of Spohr’s

disorderly-conduct conviction. Therefore, Spohr cannot apply to have his domestic-

violence acquittal sealed under R.C. 2953.52(A)(1).




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Spohr contends that he is not statutorily barred from having his

domestic-violence charge sealed. He argues that R.C. 2953.52(A)(1) governs the

timing of the application only, not whether an offender is eligible to have a record

sealed, and he further argues that R.C. 2953.52(A)(1) does not contain the same “first

offender” hurdle that R.C. 2953.32 contains. Spohr concedes the applicability of R.C.

2953.61 governing two or more charges with different dispositions, but he argues

that this statute only imposes an additional timing requirement, and that R.C.

2953.32(A)(1) allows for expungement of a misdemeanor conviction after one year of

the offender’s final discharge.

       {¶11} We cannot support Spohr’s interpretation of the statutory framework

as such an interpretation is contrary to the unambiguous language of the applicable

statutes. Although R.C. 2953.52(A)(1), the basis for Spohr’s motion to seal, does not

itself contain a first-offender requirement, it does require compliance with R.C.

2953.61, which in turn requires compliance with the first-offender prerequisite of

R.C. 2953.32(A)(1). And R.C. 2953.32(A)(1) does not allow for the expungement of

Spohr’s disorderly-conduct conviction after one year because Spohr is not a first

offender.

       {¶12} Spohr further contends that the General Assembly’s use of the phrase

“would be able” in R.C. 2953.61, which provides that “the person may not apply to

the court for the sealing of his record in any of the cases until such time as he would

be able to apply to the court and have all of the records in all of the cases pertaining

to those charges sealed,” suggests that the General Assembly did not intend for R.C.

2953.61 to prevent the sealing of a record. If the legislature had so intended, Spohr

argues, then it would have used the phrase “is eligible” instead of “would be able.”

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       {¶13} In further support of his legislative-intent argument, Spohr relies on In

re Hankins, 10th Dist. No. 99AP-797, 2000 Ohio App. LEXIS 2072 (May 18, 2000).

In In re Hankins, the offender had been charged with speeding and possessing an

open container, resulting from the same traffic stop. The offender had entered into a

plea bargain with the state, whereby he had pleaded guilty to speeding in exchange

for a dismissal of the open-container charge. The offender later applied to have his

open-container charge sealed, which the trial court denied. On appeal, the appellate

court concluded that the trial court erred in denying the application and that the

offender was entitled to a new hearing. The appellate court determined that, even

though speeding was not an expungeable offense, R.C. 2953.61 did not bar the

offender from applying for the sealing of records on the open-container charge

because the General Assembly did not intend for R.C. 2953.61 to bar an individual

from sealing a dismissed offense because of a speeding conviction.

       {¶14} The court in Hankins employed methods of statutory interpretation in

reaching its holding, including examining uncodified legislative statements to

discern legislative intent.   Unlike the Hankins court, we find it unnecessary to

employ rules of statutory interpretation in applying R.C. 2953.61 because we

determine that the language of the statute is plain and unambiguous. See State v.

Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶ 12 (“When the

language of a statute is plain and unambiguous and conveys a clear and definite

meaning, there is no need for this court to apply rules of statutory interpretation.”).

Thus, in interpreting the statute, we need not examine the legislature’s word choice.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                         Conclusion

       {¶15} In conclusion, we determine that the plain language of Ohio’s record-

sealing and expungement statutes prevent the defendant in this case from applying

to have the records regarding his domestic-violence acquittal sealed. The judgment

of the trial court is reversed, and the cause is remanded for proceedings consistent

with this opinion.

                                                Judgment reversed and cause remanded.

CUNNINGHAM, P.J., and DINKELACKER, J., concur.


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




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