[Cite as State v. Raber, 2014-Ohio-249.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.       13CA0020

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KYLE D. RABER                                        COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   08-CR-0117

                                 DECISION AND JOURNAL ENTRY

Dated: January 27, 2014



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Kyle Raber, appeals from the judgment of the Wayne

County Court of Common Pleas, denying his motion to expunge and/or seal his record of

conviction. This Court affirms.

                                                 I

        {¶2}     After he was indicted on one count of sexual battery, Raber pleaded guilty to

sexual imposition, a third-degree misdemeanor. At the sentencing hearing, the State asked the

court to classify Raber as a Tier I sexual offender, but the defense argued that classification was

inappropriate.1 Because the court was unclear as to what the State’s burden of proof was under

the Adam Walsh Act, the court took the classification issue under advisement so that the parties

could brief the issue. No additional briefing occurred, however, and the court later issued a




1
 Under R.C. 2950.01(B)(2), certain sexually oriented offenses are exempt from registration if
determined to be the result of consensual sexual conduct or contact.
                                                  2


judgment entry sentencing Raber to jail and community control. The sentencing entry made no

mention of a sexual offender classification.

       {¶3}    More than a year later, the court sua sponte ordered a hearing on the issue of

whether Raber should be classified as a Tier I sexual offender. Both sides presented evidence at

the hearing, and the court determined that a Tier I classification was appropriate. The court then

issued a judgment entry classifying Raber as a Tier I sexual offender, and Raber appealed from

the judgment entry.

       {¶4}    On appeal, Raber argued that his classification was void because the trial court

lacked jurisdiction to classify him. Specifically, he argued that, once the court had issued his

sentencing entry, it was divested of jurisdiction to classify him. State v. Raber, 9th Dist. Wayne

No. 10CA0020, 2011-Ohio-3888, ¶ 5-8. This Court rejected Raber’s argument, but the Supreme

Court reversed this Court’s decision on appeal. See State v. Raber, 134 Ohio St.3d 350, 2012-

Ohio-5636. The Supreme Court held that Raber’s sentencing entry was a final judgment and that

the Double Jeopardy Clause “prohibited the trial court from reopening [the] case, conducting a

separate trial to determine whether the sexual activity at issue [] was consensual, and classifying

Raber as a sex offender subject to Tier I registration.” Id. at ¶ 26.

       {¶5}    On February 21, 2013, Raber filed a motion to expunge and/or seal his record

pursuant to R.C. 2953.32. The court set the matter for a hearing on March 27, 2013. On April

22, 2013, the trial court denied Raber’s motion “[b]ased upon Ohio Revised Code Section

2953.36 and the facts of this case.”

       {¶6}    Raber now appeals from the trial court’s judgment and raises two assignments of

error for our review.
                                                   3


                                                   II

                                Assignment of Error Number One

       THE DOCTRINE OF STATUTORY CONSTRUCTION DICTATES THAT
       O.R.C. 2950.01(B)(2) HAS PRECEDENCE OVER O.R.C. 2953.36 AND,
       THUS, KYLE RABER SHOULD BE ABLE TO HAVE HIS RECORD
       EXPUNGED.

       {¶7}    In his first assignment of error, Raber argues that the trial court erred by denying

his motion to expunge and/or seal his record on the basis that his conviction is one that is

statutorily ineligible for sealing. We disagree.

       {¶8}    This Court applies a de novo standard of review to a trial court’s interpretation of

a statute. See State v. Calderon, 9th Dist. Medina No. 09CA0088-M, 2010-Ohio-2807, ¶ 6. “A

de novo review requires an independent review of the trial court’s decision without any

deference to the trial court’s determination.” State v. Consilio, 9th Dist. Summit No. 22761,

2006-Ohio-649, ¶ 4.

       {¶9}    “R.C. 2953.32 et seq. set out the limits of the trial court’s jurisdiction to grant a

request to seal [a defendant’s] record of conviction[] * * *.” State v. Pariag, 137 Ohio St.3d 81,

2013-Ohio-4010, ¶ 12. “R.C. 2953.36 expressly exempts certain convictions * * * from the

scheme of the sealing statute.” State v. Campbell, 9th Dist. Summit No. 24919, 2010-Ohio-128,

¶ 7. It provides, in relevant part, that “Sections 2953.31 to 2953.35 of the Revised Code do not

apply to * * * [c]onvictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06,

2907.321, 2907.322, or 2907.323, * * * or a conviction for a violation of a municipal ordinance

that is substantially similar to any section contained in any of those chapters.” R.C. 2953.36(B).

“It is axiomatic that, if R.C. 2953.32 does not apply to [a defendant’s] conviction of record, then

the requirements that the trial court set a hearing and make certain determinations pursuant to

R.C. 2953.32[] * * * are not implicated.” Campbell at ¶ 8.
                                                4


       {¶10} Raber was convicted of one count of sexual imposition, a violation of R.C.

2907.06. Because a conviction under R.C. 2907.06 is exempt from sealing, the trial court denied

Raber’s motion for expungement. See R.C. 2953.36(B). Raber argues that the court erred by

relying upon R.C. 2953.36 instead of R.C. 2950.01(B)(2) because “[R.C.] 2950.01(B)(2) controls

and takes precedence over [R.C.] 2953.36.” According to Raber, his record was expungement

eligible because, under R.C. 2950.01(B)(2), he is not a sex offender.

       {¶11} R.C. 2950.01(B)(2) provides that the phrase “sex offender” does not include

       a person who is convicted of * * * a sexually oriented offense if the offense
       involves consensual sexual conduct or consensual sexual contact and either of the
       following applies:

       (a) The victim of the sexually oriented offense was eighteen years of age or older
       and at the time of the sexually oriented offense was not under the custodial
       authority of the person who is convicted of * * * the sexually oriented offense.

       (b) The victim of the offense was thirteen years of age or older, and the person
       who is convicted of * * * the sexually oriented offense is not more than four years
       older than the victim.

“If [an] offender is not a sex offender pursuant to R.C. 2950.01(B), there is no duty to register”

under the Adam Walsh Act. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, at ¶ 17.

       {¶12} Initially, we note that the crime of which Raber was convicted eliminates any

suggestion that the victim here consented. See id. at ¶ 28-33 (O’Connor, C.J., dissenting).

Raber’s indictment charged him with knowingly coercing the victim and he pleaded to “Sexual

Imposition, as amended.” The transcript from the plea hearing evidences that Raber’s original

sexual battery charge was amended to a violation of R.C. 2907.06(A)(1). That subsection

prohibits an offender from having sexual contact with a person when he “knows that the sexual

contact is offensive to the other person.” R.C. 2907.06(A)(1). Offensive sexual contact is, by

definition, not consensual. Raber at ¶ 28-33 (O’Connor, C.J., dissenting). Nevertheless, we
                                                  5


recognize that Raber was never classified as a sexual offender and cannot be required to register

under the Adam Walsh Act. See id. at ¶ 15-27.

       {¶13} Although the General Assembly has amended R.C. 2953.36 since the Adam

Walsh Act’s effective date, its amendments have not included any changes to subsection (B).

R.C. 2953.36(B) continues to provide that a conviction under R.C. 2907.06 is not subject to

sealing. Moreover, subsection (B) does not draw any distinction between the various types of

sexual imposition that an offender might commit. For example, while an offender may be

convicted under R.C. 2907.06(A)(4) absent any showing of force or coercion, the General

Assembly has not seen fit to exclude a conviction under that subsection from R.C. 2953.36(B)’s

ban on sealing. R.C. 2953.36(B) simply contains a blanket statement that a conviction under

R.C. 2907.06 is not subject to sealing.

       {¶14} A court must enforce an unambiguous statute as written, “making neither

additions to the statute nor subtractions therefrom.” State v. Knoble, 9th Dist. Lorain No.

08CA009359, 2008-Ohio-5004, ¶ 12, quoting Hubbard v. Canton City School Bd. of Edn., 97

Ohio St.3d 451, 2002-Ohio-6718, ¶ 14. “Under the plain language of R.C. 2953.36, a defendant

who is [convicted under R.C. 2907.06] is ineligible to have his or her record sealed.” State v.

Simon, 87 Ohio St.3d 531 (2000), paragraph one of the syllabus. Raber essentially asks this

Court to equate a classification, and the registration duties that arise from it, with a conviction for

purposes of expungement. He avers that, because he was not classified as a sexual offender, that

fact somehow removes his sexual imposition conviction from R.C. 2953.36(B)’s ban on sealing.

The plain language of R.C. 2953.36(B), however, contravenes Raber’s argument.

       {¶15} A “conviction” is distinct from a “classification.” See State v. Lester, 130 Ohio

St.3d 303, 2011-Ohio-5204, ¶ 26 (O’Donnell, J., concurring in part and dissenting in part.) (“[A]
                                                 6


judgment of conviction is composed of two essential elements: the adjudication of guilt and the

sentence.”); Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 23 (“[O]ur cases hold that [the

Adam Walsh Act] imposes additional criminal punishment on those convicted of sexually

oriented offenses.”) (Emphasis added.) This case clearly illustrates the difference, as Raber was

convicted, but never classified. Had the General Assembly intended to allow for the sealing of

records in cases where offenders are convicted, but not classified, it certainly could have done so.

Thus far, it has not. By virtue of R.C. 2953.36(B)’s plain language, Raber’s conviction was

statutorily ineligible for sealing. Accordingly, the trial court did not err when it denied Raber’s

motion on the basis of R.C. 2953.36(B). See Campbell, 2010-Ohio-128, at ¶ 8. Raber’s first

assignment of error is overruled.

                                Assignment of Error Number Two

       THE TRIAL COURT CAN EXERCISE ITS INHERENT JUDICIAL POWER
       AND EXPUNGE KYLE RABER’S RECORD ON THE BASIS THAT THE
       OHIO SUPREME COURT EXONERATED HIM AND, THUS, THE
       PROTECTION OF HIS PRIVACY INTEREST IS PARAMOUNT TO
       PREVENT AN INJUSTICE.

       {¶16} In his second assignment of error, Raber argues that the trial court erred by not

employing its inherent judicial authority to grant his motion to expunge and/or seal his record.

We disagree.

       {¶17} “[T]rial courts have the inherent authority to expunge records apart from the

statutes when justified by ‘unusual and exceptional circumstances’ founded on constitutional

guarantees of the right to privacy.” State v. Boykin, 9th Dist. Summit Nos. 25752 & 25845,

2012-Ohio-1381, ¶ 5, quoting Pepper Pike v. Doe, 66 Ohio St.2d 374, 377 (1981). “When

exercising these powers, the trial court should use a balancing test, which weighs the interest of
                                                 7


the accused in his good name and right to be free from unwarranted punishment against the

legitimate need of government to maintain records.” Pepper Pike at 377.

       {¶18} The record reflects that Raber never asked the court to expunge his record based

on the court’s inherent authority. In his motion to expunge and/or seal his record, Raber only

asked the court to grant his motion “pursuant to Ohio Rev. Code § 2953.32.” The court’s

judgment entry indicates that the court denied Raber’s motion “[b]ased upon Ohio Revised Code

Section 2953.36 and the facts of this case.” There is no indication that the court applied the

balancing test set forth in Pepper Pike or understood Raber to be requesting relief pursuant to the

court’s inherent judicial authority.

       {¶19} “When reviewing arguments on appeal, this Court cannot consider issues that are

raised for the first time on appeal.” Carnegie Cos., Inc. v. Summit Properties, Inc., 9th Dist.

Summit No. 25622, 2012-Ohio-1324, ¶ 8, quoting Harris v. Akron, 9th Dist. Summit No. 24499,

2009-Ohio-3865, ¶ 9. Raber never asked the trial court to grant his motion pursuant to the

court’s inherent judicial authority. Because Raber failed to raise this issue in the court below, we

cannot consider it on appeal. Accordingly, his second assignment of error is overruled.

                                                III

       {¶20} Raber’s assignments of error are overruled. The judgment of the Wayne County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

DAVID T. EAGER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
