[Cite as State v. Inscho, 2019-Ohio-809.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2018-CA-27
                                                 :
 v.                                              :   Trial Court Case No. 95-CRB-802-1-1
                                                 :
 FREDERICK R. INSCHO, JR.                        :   (Criminal Appeal from Municipal Court)
                                                 :
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                            OPINION

                              Rendered on the 8th day of March, 2019.

                                            ...........

RONALD LEWIS, Atty. Reg. No. 0061980, Prosecuting Attorney, Xenia Municipal Court,
101 North Detroit Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

JAMES P. FLEISHER, Atty. Reg. No. 0059509, 6 North Main Street, 400 National City
Center, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            .............
                                                                                          -2-


TUCKER, J.



       {¶ 1} Defendant-appellant Frederick Inscho, Jr. appeals from the judgment of the

Xenia Municipal Court denying his application for the sealing of the record regarding his

1995 domestic violence conviction. He contends that the court erred by denying the

request. Alternatively, he contends that the judgment of conviction is void and, thus,

must be vacated.

       {¶ 2} We conclude that the applicable statutes prohibit the sealing of the record.

We further conclude that the prior conviction is not void. Accordingly, the judgment of

the trial court is affirmed.



                                   I.   Course of the Proceedings

       {¶ 3} In 1995, after discovering that his wife was involved in an extramarital affair,

Inscho hit her with his vehicle. Inscho was charged with domestic violence in violation

of R.C. 2929.25. He appeared before the Xenia Municipal Court and entered a plea of

no contest. He was sentenced to a jail term of 60 days, with 30 days suspended. He

was also fined $250 and ordered to engage in counseling. Inscho served his sentence,

paid his fine and complied with the requirement regarding counseling.

       {¶ 4} In February 2018, Inscho filed an Application for Expungement and Sealing

of Record of Arrest in the Xenia Municipal Court. A confidential report was prepared by

the probation department which recommended that the application be granted. The

State did not file an objection.

       {¶ 5} A hearing on the application was conducted on June 19, 2018. At that time,
                                                                                        -3-


the municipal court noted that the original case file had been destroyed.1 The municipal

court attempted to obtain the file of the arresting agency, but that file had also been

destroyed. The municipal court was unable to locate any notes retained by the court

reporter. However, the municipal court was able to obtain information about the prior

conviction from both the Ohio Law Enforcement Gateway Program (OHLEG) and the

Ohio Courts Network (OCN); it also obtained a computer printout of the case docket

sheet.

         {¶ 6} The docket, as well as the documents generated by OHLEG and OCN,

indicated that Inscho was convicted of domestic violence in violation of R.C. 2929.25.

None of the documents contained a reference to any particular subsection of that statute.

Both the OHLEG and OCN documents referred to the offense as a minor misdemeanor;

the docket sheet did not cite the degree of the offense.

         {¶ 7} In reaching its decision regarding the degree of the offense, the municipal

court stated:

                Per Baldwin’s ORC, the only options at that time [1995] would have

         been for defendant to have been charged with a first degree or a fourth

         degree misdemeanor. While the law in effect at the time allowed for a third

         degree misdemeanor for a domestic violence by threats (M4) if there was a

         prior enhancing offense, a review of the report prepared regarding

         defendant’s application to seal demonstrates defendant had no prior


1
 The original criminal case and the application to seal the record were both heard by the
Xenia Municipal Court. Therefore, for ease of reference and in order to differentiate
between the 1995 and 2018 actions, we will refer to the court as “the sentencing court”
with regard to the actions taken in 1995, and as the “municipal court” with regard to the
2018 case.
                                                                                 -4-


enhancers to elevate a DV-4 to a DV-3 in May of 1995. The only available

charges for this defendant at that time were either a Domestic Violence as

a first degree misdemeanor or as a fourth degree misdemeanor.

       The docket sheet further reveals that on May 24, 1995, defendant

plead “no contest” and was found “guilty” of “Domestic Violence.”

Defendant was assessed a fine of $250.00, sentenced to 60 days in jail

(with 30 suspended), and was ordered to engage in counseling through the

Community Network.

       Under oath during the hearing on Mr. Inscho’s application to seal,

applicant/defendant stated, “So what I don’t remember is if he said he was

definitely dropping the charge to a lower misdemeanor, something to that

effect but he said I’m giving you this opportunity, I’m going to do whatever

it was he said he was going to do, I seem to remember something about

M3. I – M3, being in my - - it sticks in the back of my mind. I don’t know

why. Like I said, it’s been twenty-three years. It’s hard to say for sure, but

I do seem to remember something about that, he was going to drop it to a

lower misdemeanor for me…”

       The court questions whether the court in 1995 had a discussion with

applicant/defendant about an M3 since that was not an option since Mr.

Inscho had no prior offense to elevate an M4 to an M3. Additionally, the

docket sheet has a place to note any amended charge. The amended

charge line on the docket sheet is blank.

       The court notes that a 60-day jail sentence is not permissible for a
                                                                                      -5-


      fourth degree misdemeanor. In this matter there is no evidence of any prior

      enhancer offense to elevate an M4 to an M3. The only conclusion the court

      can reach, therefore, is that defendant, on May 24, 1995, was convicted in

      this court of “Domestic Violence,” a misdemeanor of the first degree. The

      court finds that the listing of the conviction at issue herein with OHLEG and

      Ohio Courts Network as a minor misdemeanor is the result of a clerical

      error.   By law, the offense for which defendant was convicted herein,

      “Domestic Violence,” as a first degree misdemeanor, cannot be sealed.

Dkt. No. 9.

      {¶ 8} The municipal court denied the application. Inscho appeals.




                                       II.        Analysis

      {¶ 9} Inscho asserts the following as his sole assignment of error:

      THE TRIAL COURT ERRED BY DENYING APPELLANT-DEFENDANT

      FREDERICK R. INSCHO, JR.’S APPLICATION TO EXPUNGE HIS

      DOMESTIC VIOLENCE CONVICTION BECAUSE THE TRIAL COURT

      LACKED      ANY     AUTHORITY          TO    CONVICT   HIM     OF     MINOR

      MISDEMEANOR         DOMESTIC       VIOLENCE        CONTRARY       TO    THE

      APPLICABLE STATUTE; THE JUDGMENT WAS THUS VOID AS A

      MATTER OF LAW.

      {¶ 10} Inscho contends that the municipal court erred by denying his application to

seal his criminal record. Alternatively, he contends that he was convicted of an offense
                                                                                          -6-


not cognizable under the law thereby rendering his conviction void.

       {¶ 11} The purpose of expungement, or sealing a record of conviction, is to

recognize that people may be rehabilitated. State v. Petrou, 13 Ohio App.3d 456, 469

N.E.2d 974 (9th Dist.1984). Expungement or sealing of a criminal record is an “act of

grace created by the state.” State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998

N.E.2d 401, ¶ 12, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669

(1996). It should be granted only when all requirements for eligibility are met, because

it is a “privilege, not a right.” State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918

N.E.2d 497, ¶ 6. R.C. 2953.31 et seq. set forth the circumstances in which a trial court

may grant a request to seal a record of conviction.

       {¶ 12} 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. State v.

Pierce, 10th Dist. Franklin No. 06AP-931, 2007-Ohio-1708, ¶ 5. The term abuse of

discretion is used to indicate that the trial court's attitude was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). However, where the dispute as to the sealing of a record involves purely a legal

question, our standard of review is de novo. Futrall at ¶ 6-7.

       {¶ 13} R.C. 2953.32 permits an eligible offender to apply to the sentencing court

for the sealing of a record of conviction. There is no dispute that Inscho was an eligible

offender as defined by the prior version of R.C. 2953.31.2 However, regardless of an


2
 R.C. 2953.31 has been amended since the entry of the trial court’s denial of the
application. The statutory law in effect at the time of the filing of an R.C. 2953.32
application to seal a record of conviction is controlling. State v. A.S., 8th Dist. Cuyahoga
No. 100358, 2014-Ohio-2187, ¶ 10, citing State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-
4009, 772 N.E.2d 1172, paragraph two of the syllabus.
                                                                                             -7-


applicant’s eligibility, R.C. 2953.36(A)(3) precludes the sealing of any conviction for an

offense of violence that is a felony or a first degree misdemeanor.

       {¶ 14} As noted, Inscho was convicted of domestic violence, which is classified as

an offense of violence.     R.C. 2901.01(A)(9)(a).      Inscho contends that, because the

documents regarding his conviction indicate he was convicted of a minor misdemeanor,

his record may be sealed. The municipal court, however, determined that, based upon

the language used in the domestic violence statute in effect at the time of the conviction,

Inscho was convicted of a first degree misdemeanor.

       {¶ 15} The version of R.C. 2919.25 in effect at the time of Inscho’s offense

provided in pertinent part as follows:

       (A) No person shall knowingly cause or attempt to cause physical harm to a

          family or household member.

       (B) No person shall recklessly cause serious physical harm to a family or

          household member.

       (C) No person, by threat of force, shall knowingly cause a family or

          household member to believe that the offender will cause imminent

          physical harm to the family or household member.

       (D) Whoever violates this section is guilty of domestic violence. A violation

          of division (C) of this section is a misdemeanor of the fourth degree. A

          violation of division (A) or (B) of this section is a misdemeanor of the first

          degree.    If the offender previously has been convicted of domestic

          violence * * * a violation of division (A) or (B) of this section is a felony of

          the fourth degree and a violation of division (C) of this section is a
                                                                                      -8-


          misdemeanor of the third degree.

      {¶ 16} The applicable version of R.C. 2929.21, which governs penalties for

misdemeanor offenses, provided:

      (A) Except as provided in section 2929.23 of the Revised Code, whoever is

      convicted of or pleads guilty to a misdemeanor other than a minor

      misdemeanor shall be imprisoned for a definite term or fined, or both, which

      term of imprisonment and fine shall be fixed by the court as provided in this

      section. * * *

      (B) Terms of imprisonment for misdemeanor shall be imposed as follows:

      (1) For a misdemeanor of the first degree, not more than six months;

      (2) For a misdemeanor of the second degree, not more than ninety days;

      (3) For a misdemeanor of the third degree, not more than sixty days;

      (4) For a misdemeanor of the fourth degree, not more than thirty days.

      (C) Fines for misdemeanor shall be imposed as follows:

      (1) For a misdemeanor of the first degree, not more than one thousand

      dollars;

      (2) For a misdemeanor of the second degree, not more than seven hundred

      fifty dollars;

      (3) For a misdemeanor of the third degree, not more than five hundred

      dollars;

      (4) For a misdemeanor of the fourth degree, not more than two hundred fifty

      dollars.

      (D) Whoever is convicted of or pleads guilty to a minor misdemeanor shall
                                                                                         -9-


       be fined not more than one hundred dollars.

       {¶ 17} A plain reading of the domestic violence statute confirms that there was no

option for convicting Inscho of a minor misdemeanor or a second degree misdemeanor.

Further, under the terms of the statute, Inscho could only be found guilty of a third degree

misdemeanor if he had a prior domestic violence conviction. There is no dispute that he

had no such prior conviction. Thus, as determined by the municipal court, the only

offenses available to the sentencing court were first and fourth degree misdemeanors.

We note that the fourth degree misdemeanor offense classification was reserved for

domestic violence resulting from the threat of force. Inscho admitted that he hit his

former wife with his vehicle, an action that does not fit into the threat of force category.

Additionally, Inscho was sentenced to a jail term of 60 days, which is higher than would

have been permitted for a fourth degree misdemeanor under the terms of R.C.

2929.21(B).3 Therefore, based upon these findings, we cannot say that the trial court

abused its discretion or erred as a matter of law in concluding that Inscho was convicted

of a first degree misdemeanor, which precluded the sealing of his record.

       {¶ 18} We next address Inscho’s claim that his conviction for domestic violence is

void. He bases this claim upon the argument that the OHLEG and OCN documents

showed he was convicted of a minor misdemeanor, an offense which was not cognizable

under the law in 1995. Inscho disputes the municipal court’s finding that the minor

misdemeanor designation on the OHLEG and OCN documents was merely a clerical


3
  Inscho argues that the 60-day sentence indicates that he was sentenced for a third
degree misdemeanor. However, under the sentencing statute, the sentence imposed
was also a permissible sentence for a first degree misdemeanor and, as stated above,
the absence of a prior conviction undercuts the assertion that he was convicted of a third
degree misdemeanor.
                                                                                           -10-


error. He argues that, even assuming that OHLEG and OCN documents “erroneously

listed the degree of conviction as a ‘minor misdemeanor’ instead of ‘first degree

misdemeanor’ as the Municipal Court concluded, the [sentencing] court never corrected

this alleged error and the terms of its journal control.” He further argues that, if the

designation was merely a clerical mistake, it cannot now be corrected, as doing so would

elevate the degree of the convicted offense.

       {¶ 19} We note that Inscho did not raise this claim before the trial court. However,

under Ohio law, “a sentence that is not in accordance with statutorily mandated terms is

void.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 233, ¶ 8. A

void sentence “is not precluded from appellate review by principles of res judicata, and

may be reviewed at any time, on direct appeal or by collateral attack.” Id. at paragraph

one of the syllabus.

       {¶ 20} A court speaks only through its journal entries. State v. Ellington, 36 Ohio

App.3d 76, 77-78, 521 N.E.2d 504 (9th Dist.1987). “To journalize a decision means that

certain formal requirements have been met, i.e., the decision is reduced to writing, signed

by a judge, and filed with the clerk so that it may become a part of the permanent record

of the court.” Id. at 78. “Dockets and journals are distinct records kept by clerks. See

R.C. 2303.12.” State ex rel. Caldwell v. Gallagher, 8th Dist. Cuyahoga No. 98317, 2010-

Ohio-4608, ¶ 6, quoting State ex rel. White v. Junkin, 80 Ohio St.3d 335, 337, 686 N.E.2d

267 (1997). “It is the journal entries that are signed by the judge, not the docket entries,

that control.” (Internal citation omitted.) Id., quoting Cleveland v. Gholston, 8th Dist.

Cuyahoga No. 96592, 2011-Ohio-6164, ¶ 20, fn. 1. In other words, the content of the

court’s journal entry, rather than the reference to that entry set forth on the docket, is what
                                                                                         -11-

“reflects the complete substance of the court's judgment.” Id. at ¶ 7. Computerized

docketing systems are not the court’s official journal. Cleveland v. Jovanic, 153 Ohio

App.3d 37, 2003-Ohio-2875. 790 N.E.2d 824, ¶ 8 (8th Dist.).

       {¶ 21} Thus, regardless of what the docket or the OHLEG and OCN documents

state, they are not the sentencing court’s journal. Further, in the absence of affirmative

evidence to the contrary, we are constrained by the presumption of regularity and must

conclude, from the limited record, that the trial court did not find Inscho guilty of a minor

misdemeanor, an offense that did not exist at the time of his conviction. State v. Like,

2d Dist. Montgomery No. 21991, 2008-Ohio-1873, ¶ 33; State v. Patton, 2016-Ohio-4867,

68 N.E.3d 273, ¶ 12 (8th Dist.), citing State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-

5636, 982 N.E.2d 684, ¶ 19. Thus, we conclude that Inscho has failed to demonstrate

that his conviction for domestic violence is void.

       {¶ 22} Because the record supports the municipal court’s finding that Inscho was

convicted of a first degree misdemeanor, we conclude that the municipal court did not

abuse its discretion or err as a matter of law in denying the application for expungement

and sealing of the record. We also conclude that Inscho has not demonstrated that the

conviction for domestic violence is void.

       {¶ 23} Accordingly, the sole assignment of error is overruled.



                                       III.    Conclusion

       {¶ 24} The assignment of error being overruled, the judgment of the trial court is

affirmed.

                                       .............
                                         -12-




WELBAUM, P.J., concurs.

DONOVAN, J., concurs in judgment only.




Copies sent to:

Ronald Lewis
James P. Fleisher
Hon. Michael K. Murry
