[Cite as In re C.L., 2017-Ohio-2654.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 104661




                                          IN RE: C.L.
                                        A MINOR CHILD

                                 [Appeal by the State of Ohio]



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 04106908


        BEFORE: E.T. Gallagher, J., McCormack, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Theodore Parran
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Mark Stanton
Cuyahoga County Public Defender

BY:    Cullen Sweeney
       John T. Martin
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Plaintiff-appellant, the state of Ohio (“the state”), appeals from the judgment

of the Cuyahoga County Court of Common Pleas, Juvenile Division, granting

defendant-appellee, C.L.’s (“C.L.”), motion to seal his juvenile record. The state raises

the following assignment of error for our review:

      1. The juvenile court erred in sealing appellee’s delinquency adjudication,
      as Ohio courts are prohibited from granting motions to expunge and seal
      records of aggravated murder, murder, and rape delinquency.

      {¶2} After careful review of the record and relevant case law, we reverse the

juvenile court’s judgment and remand for further proceedings consistent with this

opinion.

                                I. Procedural History

      {¶3} In July 2004, a complaint was filed in the Cuyahoga County Juvenile Court,

alleging that C.L. was delinquent of rape in violation of R.C. 2907.02(A)(1)(b), a felony

of the first degree if committed by an adult. In October 2004, C.L. was adjudicated

delinquent following a knowing and voluntary admission to the amended offense of

attempted rape in violation of R.C. 2923.02 and 2907.02(A)(1)(b).

      {¶4} In March 2016, C.L. filed an application to seal the official records of his

juvenile delinquency pursuant to R.C. 2151.356(C)(1)(b)(ii). The state filed a responsive

brief, arguing that because C.L. “was found delinquent of attempted rape under R.C.
2907.02, he is statutorily barred from having his delinquency sealed according to R.C.

2151.356(A).” Following a hearing, the juvenile court granted C.L.’s application to seal

his juvenile record, stating in pertinent part:

               The person was not adjudicated delinquent for committing an act that
       is a violation of O.R.C. 2903.01, 2903.02, or 2907.02.

             The person is not under the jurisdiction of the court relative to a
       complaint alleging the person to be a delinquent child.

              The applicant is eighteen years old or older.

              Upon due consideration, the court finds that the person has been
       rehabilitated to a satisfactory degree. In making the finding that the person
       has been rehabilitated to a satisfactory degree, the court considered the
       following: the age of the person; the nature of the case; the cessation or
       continuation of delinquent, unruly or criminal behavior; the education and
       employment history of the person; and other circumstances that may relate
       to the rehabilitation of the person who is the subject of the records that are
       under consideration.

       {¶5} The state now appeals the juvenile court’s judgment.

                                   II. Law and Analysis

       {¶6} In its sole assignment of error, the state argues “the juvenile court erred in

sealing C.L.’s delinquency adjudication, as Ohio courts are prohibited from granting

motions to expunge and seal records of aggravated murder, murder, and rape

delinquency.”

       {¶7} R.C. 2151.356 sets forth the procedure to apply for the sealing of records in

juvenile cases. The statute provides, in relevant part:

       (A) The records of a case in which a person was adjudicated a delinquent
       child for committing a violation of section 2903.01, 2903.02, or 2907.02 of
       the Revised Code shall not be sealed under this section.
      ***

      (C)(1) The juvenile court shall consider the sealing of records pertaining to
      a juvenile upon the court’s own motion or upon the application of a person
      if the person has been adjudicated a delinquent child for committing an act
      other than a violation of section 2903.01, 2903.02, or 2907.02 of the
      Revised Code, an unruly child, or a juvenile traffic offender and if, at the
      time of the motion or application, the person is not under the jurisdiction of
      the court in relation to a complaint alleging the person to be a delinquent
      child. The court shall not require a fee for the filing of the application.

      {¶8} On appeal, the state argues that C.L.’s delinquency adjudication for attempted

rape in violation of R.C. 2923.02 and 2907.02(A)(1)(b) is “expressly barred from sealing”

pursuant to the express language of R.C. 2151.356(A) and (C)(1). In contrast, C.L.

contends that because “R.C. 2151.356 never uses the term ‘attempt’ or makes any

mention of ‘[R.C.] 2923.02,’” the restrictions set forth under R.C. 2151.356(A) and

(C)(1) only apply to the offenses of aggravated murder, murder, and rape, and do not

apply to the offense of attempted rape. (Emphasis added.)

      {¶9} After careful review, we find persuasive value in prior case law addressing

the attempt statute and its implications on the statutory procedure for expungement of

criminal convictions.      See State v. M.R., 8th Dist. Cuyahoga No. 94591,

2010-Ohio-6025.

      {¶10} Pursuant to the expungement procedures set forth in R.C. 2953.31 et seq.,

applicants whose conviction falls within any category of R.C. 2953.36 are “ineligible” for

expungement. Similar to the restrictions set forth under R.C. 2151.356, R.C. 2953.36

provides that a motion to seal a record of conviction does not apply to offenders who
were convicted “under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321,

2907.322, or 2907.323, former section 2907.12, or Chapter 4506, 4507, 4510, 4511, or

4549 of the Revised Code[.]”

       {¶11} In M.R. the state appealed from the trial court’s order that granted an

application to seal the record of the defendant’s convictions for attempted pandering of

obscenity in violation of R.C. 2923.02 and 2907.32. As argued by C.L. in this case,

M.R. maintained that his attempted pandering convictions did not “fall under any of the

exceptions for convictions that may not be sealed under R.C. 2953.36.” (Emphasis

added.) This court disagreed with M.R.’s interpretation of R.C. 2953.36 and reversed the

trial court’s judgment, stating, in relevant part:

             The addition of the attempt statute to the offense did not affect R.C.
       2953.36’s application because the “main” offense was on [the] list of
       excepted offenses. State v. Burnside, 7th Dist. Mahoning No. 08 MA 172,
       2009-Ohio-2653, ¶ 20-21, citing State v. Reid, 2d Dist. Greene No.
       2005CA0028, 2006-Ohio-840, ¶ 13.

       ***

              Since the record demonstrates “the very nature of the offense[s] for
       which [M.R.] was convicted renders the sealing provisions of R.C. 2953.32
       inapplicable to him,” the trial court lacked authority to seal his record.
       State v. Campbell, 9th Dist. Summit No. 24919, 2010-Ohio-128, at ¶ 8.


M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 25-26.

       {¶12} In M.R., this court relied extensively on the reasoning set forth by the

Seventh Appellate District in State v. Burnside, 7th Dist. Mahoning No. 08MA172,

2009-Ohio-2653. In Burnside, the defendant appealed the trial court’s denial of his
motion to seal his attempted rape conviction. In affirming the trial court’s judgment, the

court stated, in relevant part:

              Burnside was convicted of attempted rape pursuant to R.C. 2923.02
       and R.C. 2907.03(A)(1). Convictions under R.C. 2907.03 are precluded
       from sealing pursuant to R.C. 2953.36(B). And even though Burnside was
       convicted of attempted rape and not rape, the exception contained in R.C.
       2953.36(B) still applies. The Second District addressed a similar issue in
       State v. Reid, 2d Dist. Greene No. 2005CA0028, 2006-Ohio-840. In Reid,
       a criminal defendant who was convicted of attempted gross sexual
       imposition appealed the trial court’s denial of his motion to expunge that
       conviction. Gross sexual imposition is listed as an excepted offense under
       R.C. 2953.36(B). The court held that “having been convicted of an
       attempted violation of R.C. 2907.06, Sexual Imposition, Defendant was not
       eligible as a matter of law to have the records of his conviction sealed or
       expunged.” Reid at ¶ 13 (emphasis sic).

(Emphasis sic.) Id. at ¶ 20.

       {¶13} After careful review, we find this court’s interpretation of R.C. 2953.36

applies equally to the statutory restrictions for sealing juvenile records under R.C.

2151.356(A) and (C)(1).           Accordingly, the juvenile court was barred from sealing

records of C.L.’s attempted rape delinquency, because the “main” offense of rape is listed

as an excepted offense under R.C. 2151.356(A).

       {¶14} The state’s sole assignment of error is sustained.

       {¶15} The trial court’s order is reversed, and this case is remanded to the trial court

with instructions to deny C.L.’s application and to unseal the record of his adjudication of

delinquency.

       It is ordered that appellant recover from appellee costs herein taxed. The       court

finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas

Court, Juvenile Division, to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

TIM McCORMACK, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS (WITH SEPARATE OPINION)

MELODY J. STEWART, J., DISSENTING:

       {¶16} This case presents a simple issue of statutory interpretation.   Because R.C.

2151.356 only prohibits the sealing of adjudications for the offense of aggravated murder,

murder, or rape — offenses for which C.L. was not adjudicated delinquent — the trial

court did not err in considering C.L.’s petition and subsequently sealing his records. I

therefore dissent.

       {¶17} R.C. 2151.356 is clear as to when a record of adjudication may not be

sealed:

       (A) The records of a case in which a person was adjudicated a delinquent
       child for committing a violation of section 2903.01 [aggravated murder],
       2903.02 [murder], or 2907.02 [rape] of the Revised Code shall not be sealed
       under this section.

       ***

       (C)(1) The juvenile court shall consider the sealing of records pertaining to
       a juvenile upon the court’s own motion or upon the application of a person
       if the person has been adjudicated delinquent for committing an act other
       than a violation of section 2903.01 [aggravated murder], 2903.02 [murder]
       or 2907.02 [rape] of the Revised Code * * *.

By its own terms, the statute makes the specific offenses that would render a juvenile

record ineligible for sealing both discrete and narrow.         The majority comes to its

decision by painting with a brush much broader than what the legislature intended.        A

review of the statute’s adult counterpart clearly demonstrates that the General Assembly

certainly knew how to include an adjudication for an attempt of one of the prohibited

offenses from being sealed had it intended to do so. See, e.g., R.C. 2953.31 et seq.

The adult sealing statutes preclude sealing convictions of broader “offense[s] of

violence.”   See R.C. 2953.36(A)(3), and the phrase, “offense of violence,” includes

specific enumerated offenses as well as any “attempt to commit” any of those offenses.

See R.C. 2901.01(A)(9)(d). The Ohio Supreme Court in State v. V.M.D., 148 Ohio St.3d

450, 2016-Ohio-8090, also recognized as much.           In noting that the sealing statute

“speaks for itself,” the Supreme Court stated:

       Our first duty in statutory interpretation is to determine whether the statue is
       clear and unambiguous. [W]hen the General Assembly has plainly and
       unambiguously conveyed its legislative intent, there is nothing for a court to
       interpret or construe, and therefore, the court applies the law as written.

Id. at ¶ 15. (Citation omitted.)

       {¶18} Finally, the majority’s reliance on the dicta in State v. M.R., 8th Dist.

Cuyahoga No. 94591, 2010-Ohio-6025, is misplaced. This court in M.R. reversed the

decision of the trial court that granted the application to seal M.R.’s record based on the

fact that M.R.’s record was ineligible for sealing because the circumstances surrounding
his conviction involved a minor — a specific prohibition for sealing. Id. at ¶ 24-25

(referencing R.C. 2953.36 (E) and (F)).       Furthermore, the dicta in M.R. references the

Seventh District’s decision in State v. Burnside, 7th Dist. Mahoning No. 08 MA 172,

2009-Ohio-2653, the analysis of which is a minority view in Ohio. See, e.g., State v.

E.A., 8th Dist. Cuyahoga No. 103829, 2017-Ohio-180; State v. D.G., 8th Dist. Cuyahoga

No. 103861, 2016-Ohio-7609; State v. Clemens, 10th Dist. Franklin No. 14AP-945,

2015-Ohio-3153; State v. Rybak, 11th Dist. Lake No. 2011-L-084, 2012-Ohio-1791; and

State v. Novak, 8th Dist. Cuyahoga No. 92586, 2009-Ohio-6220. And contrary to the

majority’s statement that this court “relied extensively on the reasoning” in Burnside

when deciding M.R., the one-sentence reference to Burnside did no such thing. The

statement is purely dicta.

       {¶19} The juvenile sealing statute is comparatively more simple and narrow than

the adult statute.   It specifically excludes from sealing eligibility three discrete offenses:

adjudications for aggravated murder, murder, and rape. In doing so, the General

Assembly adheres to the well-established fact that juvenile offenders are different from

adult offenders and are to be treated differently.      The limited list of offenses that are

ineligible for sealing of a juvenile record recognizes this difference.        As previously

mentioned, if the General Assembly had wanted to make the scope of ineligible offenses

broader, it certainly knew how to do so. Courts should not interpret or construe that

which the General Assembly clearly did not intend. Accordingly, I dissent.
