[Cite as State v. Ricks, 194 Ohio App.3d 511, 2011-Ohio-3866.]




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

THE STATE OF OHIO,                               :
                                                 :     Appellate Case No. 24185
        Appellee,                                :
                                                 :     Trial Court Case No. 1901-CR-29873
v.                                               :
                                                 :
RICKS,                           :        (Criminal Appeal from
                                                 :     (Common Pleas Court)
        Appellant.                               :
                                                 :
                                             ...........

                                             OPINION

                              Rendered on the 5th day of August, 2011.

                                               .........

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Johnna Shia, Assistant
Prosecuting Attorney, for appellee.

Daniel J. O’Brien, for appellant.

                                               .........

HALL, Judge.

        {¶ 1} Jessie Lee Ricks appeals from the trial court’s denial of his application for

sealing a conviction under R.C. 2953.32. In his sole assignment of error, Ricks contends that

the trial court erred in finding him ineligible to have the conviction sealed.

        {¶ 2} The record reflects that Ricks was indicted in 1969 on a felony charge of

shooting another with intent to kill, in violation of former R.C. 2901.23. Ricks pleaded guilty

in 1971 to a reduced charge of pointing a firearm in violation of former R.C. 3773.04, a
                                                                                             2


misdemeanor. He successfully completed probation in 1972.

       {¶ 3} In May 2010, Ricks filed his application to have the conviction sealed.

Following a June 30, 2010 hearing, the trial court denied his application. In a written entry,

the trial court reasoned:

       {¶ 4} “The Court has determined that the applicant IS NOT eligible under O.R.C.

2953.31, 2953.32(A)(1) or (C)(1), or O.R.C. 2953.36. THEREFORE, the Court finds that the

application should be denied for the following reason(s):

       {¶ 5} “The conviction is for an offense of violence that is a misdemeanor of the first

degree or a felony, and is not a violation of section 2917.03, and is not a violation of section

2903.13, 2917.01 or 2917.31 that is a misdemeanor of the first degree.”

       {¶ 6} On appeal, Ricks disputes the trial court’s finding of ineligibility. He argues

that the crime of pointing a firearm in violation of former R.C. 3773.04 is neither an offense

of violence nor a first-degree misdemeanor. Whether a conviction is exempt from being sealed

involves a question of law that we review de novo. State v. Futrall, 123 Ohio St.3d 498,

2009-Ohio-5590, ¶ 6.

       {¶ 7} We begin our analysis with R.C. 2953.36, which identifies convictions that

cannot be sealed. Among other things, it excludes the following from sealing:

       {¶ 8} “(C) Convictions of an offense of violence when the offense is a misdemeanor

of the first degree or a felony and when the offense is not a violation of section 2917.03 of the

Revised Code [riot] and is not a violation of section 2903.13 [assault], 2917.01 [inciting

violence] or 2917.31 [inducing panic] of the Revised Code that is a misdemeanor of the first

degree[.]”
                                                                                              3


       {¶ 9} Ricks was convicted of violating former R.C. 3773.04, which stated:

       {¶ 10} “No person shall, intentionally and without malice, point or aim a firearm at or

toward another or discharge a firearm so pointed or aimed, or maim or injure a person by the

discharge of a firearm so pointed or aimed.” The maximum penalty for violating former R.C.

3773.04 was a year of incarceration. State v. Fleming (1957), 102 Ohio App. 244, 248.

       {¶ 11} Under R.C. 2901.01(A)(9), an “offense of violence” includes:

       {¶ 12} “(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11,

2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32,

2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01,

2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division

(A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22

of the Revised Code or felonious sexual penetration in violation of former section 2907.12 of

the Revised Code;

       {¶ 13} “(b) A violation of an existing or former municipal ordinance or law of this or

any other state or the United States, substantially equivalent to any section, division, or

offense listed in division (A)(9)(a) of this section;

       {¶ 14} “(c) An offense, other than a traffic offense, under an existing or former

municipal ordinance or law of this or any other state or the United States, committed

purposely or knowingly, and involving physical harm to persons or a risk of serious physical

harm to persons[.]”

       {¶ 15} Ricks’s offense of intentionally pointing a firearm is an offense of violence

under R.C. 2901.01(A)(9)(b) because it is substantially equivalent to an offense listed in R.C.
                                                                                             4


2901.01(A)(9)(a), to wit: aggravated menacing in violation of R.C. 2903.21.                 The

aggravated-menacing statute prohibits “knowingly caus[ing] another to believe that the

offender will cause serious physical harm to the person or property of the other person.” R.C.

2903.21(A). This is similar to former R.C. 3773.04, which, among other things, prohibited

intentionally pointing or aiming a firearm at another person. Cf. State v. Burchett,

Montgomery App. No. 20166, 2004-Ohio-3095, ¶ 20 (“When Burchett opened the door with a

gun pointed at Ponichtera, his conduct reasonably caused Ponichtera to fear that he would be

shot. * * * Thus, Ponichtera and his companions had probable cause to believe Burchett had

committed the crime of aggravated menacing”). We note, too, that Ricks’s offense of

intentionally pointing a firearm also qualifies as an offense of violence under R.C.

2901.01(A)(9)(c) because he purposely created a risk of serious physical harm to persons.

       {¶ 16} The remaining issue is whether Ricks’s offense qualifies as a misdemeanor of

the first degree. Arguing that it does not, he notes that R.C. 2953.36(C) is written in the

present tense and that R.C. 3773.04 had been repealed long before R.C. 2953.36(C) took

effect in 2000. Consequently, he reasons that pointing a firearm cannot qualify as a crime of

violence that “is a misdemeanor of the first degree” because the offense no longer exists.

Ricks also contends that pointing a firearm never was a first-degree misdemeanor, even when

he was convicted in 1971, because misdemeanors were not classified by degree until 1974,

when R.C. 3773.04 was repealed. As a result, he claims, the trial court erred in finding that his

offense is a first-degree misdemeanor offense of violence.

       {¶ 17} Upon review, we find Ricks’s first argument to be without merit. Although

R.C. 3773.04 no longer exists, his conviction under the statute does. For purposes of R.C.
                                                                                           5


2953.36(C), the issue is whether his 1971 conviction is for a first-degree misdemeanor. In our

view, resolution of that issue does not turn on whether pointing a firearm remained a crime

when R.C. 2953.36(C) took effect in 2000.

       {¶ 18} Ricks’s alternative argument—that a violation of R.C. 3773.04 never was a

first-degree misdemeanor—raises a more difficult issue. The parties agree that his violation of

R.C. 3773.04 was a misdemeanor. But because misdemeanors were not classified by degree

until 1974, at which time R.C. 3773.04 was repealed, they disagree about whether Ricks’s

offense qualifies as a first-degree misdemeanor for purposes of R.C. 2953.36(C).

       {¶ 19} In reviewing R.C. 2953.36(C), it appears to us that the General Assembly may

have failed to foresee the present situation when it enacted the statute. Misdemeanors had

been classified by degree for more than 25 years before R.C. 2953.36(C) took effect in 2000,

and the legislature most likely overlooked the possibility that a person such as Ricks might

seek the sealing of a conviction that predated degree classifications.

       {¶ 20} Although neither party has cited (and we have not found) any case law directly

on the point at issue, we conclude that a violation of former R.C. 3773.04 does not qualify as

a first-degree misdemeanor under R.C. 2953.36(C) for two reasons.               First, because

misdemeanors were not classified by degree when Ricks was convicted, his offense, on its

face, is not a first-degree misdemeanor. Second, the penalty for Ricks’s offense makes it

analogous to an unclassified misdemeanor, not a first-degree misdemeanor. As set forth

above, the maximum penalty for violation of R.C. 3773.04 was one year of confinement. The

maximum penalty for a first-degree misdemeanor is 180 days of confinement. R.C.

2929.24(A)(1). The maximum penalty for an unclassified misdemeanor is one year of
                                                                                                                                6


incarceration.1 See R.C. 2901.02(F). Therefore, even if we look to current law for guidance,

Ricks’s offense is more akin to an unclassified misdemeanor than a first-degree misdemeanor.

         {¶ 21} Although the potential penalty for an unclassified misdemeanor is more serious

than the penalty for a first-degree misdemeanor, nothing in R.C. 2953.36(C) precludes the

sealing of a conviction for an unclassified misdemeanor. The failure to prohibit the sealing

of unclassified misdemeanors may have been a legislative oversight, but we are not at liberty

to rewrite an unambiguous statute such as R.C. 2953.36(C). Cf. Fairborn v. DeDomenico

(1996), 114 Ohio App.3d 590 (finding that nothing in R.C. 2953.36(C) prohibited the sealing

of municipal-ordinance violations even though the statute prohibited the sealing of identical

state-law violations). See also 2000 Ohio Atty. Gen.Ops. No. 2000-033 (concluding that a

person convicted of an unclassified misdemeanor was entitled to be a candidate for sheriff

despite the existence of a statute that precluded anyone convicted of a first-degree

misdemeanor from being a candidate).

         {¶ 22} Having found that a violation of former R.C.3773.04 is not a first-degree

misdemeanor, we conclude that Ricks was at least statutorily eligible to have his application

for sealing of his conviction considered on the merits by the trial court. Because the trial

court held otherwise, we sustain his assignment of error, reverse the trial court’s judgment,

and remand the cause for further proceedings consistent with this opinion.




           1
              “An unclassified misdemeanor can be one that imposes not more than one year of incarceration but more than six months,
 which is the maximum for a first degree misdemeanor. * * * The legislative body typically leaves an offense unclassified when it assigns
 penalties which vary from those in the general penalty-listing statute.” State v. Williams, Mahoning App. No. 01 CA 221, 2002-Ohio-5022, ¶
 16-17.
                                                                      7


                                                       Judgment reversed

                                                      and cause remanded.

                                     ..............

GRADY, P.J., and FAIN, J., concur.
