[Cite as State v. J.B., 2019-Ohio-4659.]


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

STATE OF OHIO                                         C.A. No.      29286

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
J. B.                                                 STOW MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE Nos. 1997CRB2031
                                                                 1998CRB2837
                                                                 2006CRA2418
                                                                 2006CRB3868

                                  DECISION AND JOURNAL ENTRY

Dated: November 13, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, J.B., appeals from the judgment of the Stow Municipal Court, denying

his application to seal his records. This Court reverses and remands.

                                                 I.

        {¶2}     J.B. was previously convicted of drug paraphernalia offenses, disorderly conduct,

and passing bad checks in three separate cases. In two other cases, a fail to file income taxes

charge and a passing bad checks charge were both dismissed. Pursuant to R.C. 2953.31 et seq.,

J.B. filed an application to seal his records in the aforementioned cases. An investigation by the

probation department revealed that J.B. was also previously convicted of carrying concealed

weapons and misdemeanor assault in a case before the common pleas court. The trial court,

without holding a hearing, issued an order denying the application to seal the records. J.B. filed

a motion for reconsideration, which the trial court denied.
                                                    2


           {¶3}   J.B. now appeals from the trial court’s denial of his application to seal his records

and raises two assignments of error for this Court’s review.

           {¶4}   Because the issues in this matter are so closely related and J.B.’s arguments

overlap to an extent, we will consolidate and address them together.

                                                    II.

                                  ASSIGNMENT OF ERROR ONE

           THE TRIAL COURT ERRED IN RULING THAT APPLICANT’S
           CONVICTION FOR ASSAULT (M1)[] IS AN “OFFENSE OF VIOLENCE”
           UNDER R.C.[ ]2953.31 THAT PRECLUDED APPLICANT FROM SEALING
           HIS RECORD.

                                 ASSIGNMENT OF ERROR TWO

           THE TRIAL COURT ERRED IN DENYING THE APPLICATION TO SEAL
           THE RECORD WITHOUT FIRST HOLDING A HEARING PURSUANT TO
           R.C. 2953.32.

           {¶5}   In his first assignment of error, J.B. argues that the trial court erred in determining

his prior conviction for an offense of violence, to wit: misdemeanor assault, precluded him from

having his records sealed.

           {¶6}   Contrary to J.B.’s argument, however, the trial court did not find that he was

precluded from sealing his records merely because he was previously convicted of misdemeanor

assault.     Instead, the court recognized assault to be an “offense of violence” under R.C.

2901.01(A)(9), and thus utilized R.C. 2953.31(A)(1)(b) instead of R.C. 2953.31(A)(1)(a) to

determine if J.B. was an “eligible offender” for sealing purposes. The court then found him to be

ineligible for sealing not because he was previously convicted of assault, but because he did not

satisfy the R.C. 2953.31(A)(1)(b) requirement of having “not more than one felony conviction,

not more than two misdemeanor convictions, or not more than one felony conviction and one
                                                 3


misdemeanor conviction[,]” as “the quantity of his convictions exceeds the threshold allowable

under the applicable law.”

       {¶7}    Because J.B.’s first assignment of error is based on a false premise, it is overruled.

His interwoven argument under this assignment of error as to R.C. 2953.36(A)(3)’s effect on the

classification of misdemeanor assault as an “offense of violence” will be addressed below.

       {¶8}    In his second assignment of error, J.B. argues that the trial court erred in denying

his application to seal his records without first holding a hearing. We agree.

       {¶9}    When a case hinges upon the interpretation of the sealing statutes and an

applicant’s eligibility under the same, this Court employs a de novo standard of review. Stow v.

S.B., 9th Dist. Summit No. 27429, 2015-Ohio-4473, ¶ 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.

       {¶10} The sealing of a criminal record * * * is an “act of grace created by the state” and

should be granted only when all requirements for eligibility are met, because it is a “privilege,

not a right.” (Internal citations omitted.) State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, ¶

11. Moreover, “[t]he process of sealing a record of conviction does not consist of the general

evaluation of a person’s soul—it is statutory.” State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-

8090, ¶ 17.

       {¶11} R.C. 2953.32(A)(1) only permits an “eligible offender” to apply for the sealing of

his record. “Pursuant to R.C. 2953.32(C)(1)(a), the trial court must determine whether the

applicant is an eligible offender.” V.M.D. at ¶ 14. Former R.C. 2953.31(A) defined “eligible

offender” as anyone who has been convicted of “not more than one felony conviction, not more

than two misdemeanor convictions, or not more than one felony conviction and one
                                                   4


misdemeanor conviction in this state or any other jurisdiction.” Effective October 29, 2018,

however, the legislature amended R.C. 2953.31. In doing so, the above definition of an “eligible

offender” under Former R.C. 2953.31(A) remained intact under the newly-formed R.C.

2953.31(A)(1)(b), while a new category of “eligible offenders” was created under R.C.

2953.31(A)(1)(a), and is defined as follows:

       Anyone who has been convicted of one or more offenses, but not more than five
       felonies, in this state or any other jurisdiction, if all of the offenses in this state are
       felonies of the fourth or fifth degree or misdemeanors and none of those offenses
       are an offense of violence or a felony sex offense and all of the offenses in another
       jurisdiction, if committed in this state, would be felonies of the fourth or fifth
       degree or misdemeanors and none of those offenses would be an offense of
       violence or a felony sex offense * * *.

(Emphasis added.). J.B. filed his application to seal his records on November 9, 2018, eleven

days after the effective date of this amendment to R.C. 2953.31, and the current version of the

statute is therefore controlling in this case. See State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-

4009, paragraph two of the syllabus (“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.”).

       {¶12} Upon the filing of an application to seal a record, the trial court “shall set a date

for a hearing and shall notify the prosecutor for the case of the hearing on the application.” R.C.

2953.32(B). “The primary purpose of a sealing hearing is the gathering of information in order

to provide the trial court with all the relevant information regarding the applicant’s compliance

with the sealing criteria.” State v. A.V., 9th Dist. Lorain No. 18CA011315, 2019-Ohio-1037, ¶ 8.

This Court has construed the language of R.C. 2953.32(B) to mean that “‘[t]he court may not

dispose of the application without holding a hearing because the language of the statute is

mandatory, not permissive.’” State v. Smith, 9th Dist. Summit No. 23717, 2007-Ohio-7055, ¶ 8,
                                                 5


quoting State v. Mallardi, 9th Dist. Summit No. 19842, 2000 WL 487735, *1 (Apr. 26, 2000).

See also State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, ¶ 27-29.

       {¶13} Despite the hearing requirement set forth in R.C. 2953.32(B), however, this Court

has oft recognized that a hearing is required “[u]nless an offender’s conviction is statutorily

exempt from sealing as a matter of law * * *.” State v. Calderon, 9th Dist. Medina No.

09CA0088-M, 2010-Ohio-2807, ¶ 7, citing State v. Campbell, 9th Dist. Summit No. 24919,

2010-Ohio-128, ¶ 8 (concluding the requirements to set a hearing and make certain

determinations under R.C. 2953.32(B) and (C) are not implicated when the conviction at issue is

expressly excluded from the sealing statutes by R.C. 2953.36). R.C. 2953.36 exempts certain

convictions from the scheme of the sealing statutes. Campbell at ¶ 7. “[T]hus, an offender

seeking to have sealed the records of conviction for an offense listed in R.C. 2953.36 is an

ineligible offender.” V.M.D. at ¶ 14.

       {¶14} Relevant to J.B.’s case is R.C. 2953.36(A)(3), which provides in part:

       [S]ections 2953.31 to 2953.35 of the Revised Code do not apply to * * *
       [c]onvictions of an offense of violence when the offense is a misdemeanor of the
       first degree * * * and is not a violation of section 2903.13 * * * of the Revised
       Code that is a misdemeanor of the first degree * * *.

(Emphasis added.). J.B. concedes that his first-degree misdemeanor assault, prohibited under

R.C. 2903.13, is considered an “offense of violence” under R.C. 2901.01(A)(9). Yet, based on

the language of R.C. 2953.36(A)(3), he posits that misdemeanor assault is nonetheless “excepted

from the definition of a crime of violence” for purposes of the sealing statutes. While this Court

agrees that R.C. 2953.36(A)(3) explicitly excludes misdemeanor assault from its list of exempted

offenses, and thus does not outright preclude the offense from being sealed, we do not agree with

J.B.’s contention that this statute likewise strips misdemeanor assault of its general classification
                                                 6


as an “offense of violence” under R.C. 2901.01(A)(9) for sealing purposes. See V.M.D. at ¶ 15

(“R.C. 2953.36 speaks for itself.”).

       {¶15} Because R.C. 2953.36 does not exempt J.B.’s misdemeanor assault conviction

from the sealing statutes, the trial court was required to hold a hearing in accordance with R.C.

2953.32(B) to determine J.B.’s eligibility for sealing. This Court therefore concludes that the

trial court erred when it issued its order denying J.B.’s application for sealing without first

holding the requisite hearing. The State concedes the error and agrees that the matter must be

remanded back to the trial court for a hearing. We take no position as to whether the trial court

should determine J.B. to be eligible or ineligible to have his records sealed following a hearing

upon remand, but a proper hearing must nonetheless be held under the law.              See R.C.

2953.32(B).

       {¶16} J.B.’s second assignment of error is sustained.

                                                III.

       {¶17} J.B.’s first assignment of error is overruled. His second assignment of error is

sustained. The judgment of the Stow Municipal Court is reversed, and the cause is remanded for

further proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Court, County of Summit, 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.
                                                7


       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 Appellee.




                                                    THOMAS A. TEODOSIO
                                                    FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GREGORY B. MATHEWS, Attorney at Law, for Appellant.

RUSSELL BALTHIS, Director of Law, and GREGORY WARD, Assistant Director of Law, for
Appellee.
