[Cite as Bedford v. Bradberry, 2014-Ohio-2058.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100285




                                   CITY OF BEDFORD
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                            MAURICE T. BRADBERRY

                                                        DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                        Civil Appeal from the
                                        Bedford Municipal Court
                                       Case No. 11 CRB 01354

        BEFORE:           Boyle, A.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                       May 15, 2014
ATTORNEYS FOR APPELLANT

Stephanie M. Jackson
Julie C. Cortes
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

John J. Montello
Law Director - Prosecutor
City of Bedford
165 Center Road
Bedford, Ohio 44146
MARY J. BOYLE, A.J.:

       {¶1} Defendant-appellant, Maurice Bradberry, appeals the trial court’s decision

denying his motion to seal his criminal record pursuant to R.C. 2953.32. Finding no

merit to the appeal, we affirm.

                                  Procedural History and Facts

       {¶2} On May 10, 2013, Bradberry filed a motion in the Bedford Municipal Court

to seal his 2011 conviction for theft, a violation of Bedford Codified Ordinances 545.05,

a first-degree misdemeanor.       The trial court held an expungement hearing and noted that

Bradberry had more than one conviction for theft.      Bradberry acknowledged that he had

two convictions.     Following Bradberry’s 2011 conviction for theft, he was also

convicted in a separate case in 2012 for the same offense.            The trial court judge

explained that the law does not allow for expungement when an offender has two of the

same convictions, as here. Consequently, the trial court denied Bradberry’s motion.

       {¶3} Bradberry now appeals, raising a single assignment of error:

       The trial court failed to follow the law when it denied Defendant-Appellant
       Maurice Bradberry’s Motion to Seal Record of Conviction in violation of
       R.C. 2953.31, which provides that an applicant with not more than two
       misdemeanor convictions can seal his/her record of conviction.




                              Application of R.C. 2953.31(A)

       {¶4} The gravamen of Bradberry’s arguments on appeal is that the trial court
erroneously applied R.C. 2953.31(A) in determining whether Bradberry was an eligible

offender.

      {¶5} Generally, this court reviews a trial court’s decision to deny a R.C. 2953.32

expungement application under an abuse of discretion standard of review.          State v.

Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001). But issues of

law, we review de novo.     State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918

N.E.2d 497, ¶ 6. The interpretation of R.C. 2953.31(A) and “the application of that

statute in determining whether an offender is ‘eligible’ to have a conviction expunged are

issues of law that we review de novo.”        State v. Ushery, 1st Dist. Hamilton No.

C-120515, 2013-Ohio-2509, ¶ 6.

      {¶6} In deciding this case, we are guided by the well-established rules of

statutory construction. A court’s principle concern in construing statutes is to ascertain

and give effect to the legislative intent behind the statute. Carnes v. Kemp, 104 Ohio

St.3d 629, 2004-Ohio-7107, 821 N.E.2d 180, ¶ 16. In order to determine intent, courts

must first look to the words of the statute itself. Id. Where the terms of the statute are

clear and unambiguous, the terms should be given their plain and ordinary meaning.

Barth v. Barth, 113 Ohio St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 10.

      {¶7} R.C. 2953.31(A), as amended by S.B. 337 in 2012, now defines an “eligible

offender” as follows:

      anyone who has been convicted of an offense in this state or any other
      jurisdiction and who has not more than one felony conviction, not more
      than two misdemeanor convictions if the convictions are not of the same
      offense, or not more than one felony conviction and one misdemeanor
       conviction in this state or any other jurisdiction.

       {¶8} Bradberry contends that the phrase — “if the convictions are not of the

same offense” — is ambiguous and that the trial court should have construed it to mean

that a “person can seal any two misdemeanors.”        He argues that this is the most logical

reading of the statute that comports with the General Assembly’s recent amendment to

expand the number of offenders eligible for expungement.

       {¶9} Here, the trial court denied Bradberry’s motion to seal his record on the

grounds that Bradberry has been convicted of two separate misdemeanor theft offenses.

We find that the trial court properly applied the statute in reaching this conclusion.   The

plain and ordinary meaning of the statute excludes persons that have two misdemeanor

convictions of the same offense. Contrary to Bradberry’s assertion, we do not find the

phrase “if the convictions are not of the same offense” to be ambiguous. See generally

State v. Mullin, 12th Dist. Clermont No. CA2013-04-033, 2014-Ohio-764 (recognizing

that R.C. 2953.31(A) is “unambiguous,” albeit interpreting the language related to the

time limitation in the statute).

       {¶10} To interpret the statute as Bradberry suggests, we would essentially have to

ignore the plain meaning of the phrase “if the convictions are not of the same offense.”

Such an approach directly contravenes our directive in interpreting statutes.      Nor does

Bradberry cite any authority in support of his interpretation.

       {¶11} Further, we find no merit to Bradberry’s claim that the phrase “if the

convictions are not of the same offense” simply makes clear that the General Assembly
intended to preserve a part of the former statute that treats multiple convictions as a single

conviction if a part of the “same act” or if from related criminal acts committed within a

three-month period. This section of the statute states in pertinent part:

       When two or more convictions result from or are connected with the same
       act or result from offenses committed at the same time, they shall be
       counted as one conviction. When two or three convictions result from the
       same indictment, information, or complaint, from the same plea of guilty, or
       from the same official proceeding, and result from related criminal acts that
       were committed within a three-month period but do not result from the
       same act or from offenses committed at the same time, they shall be counted
       as one conviction * * *.

R.C. 2953.31.

       {¶12} This argument is flawed, however, because the General Assembly in the

adoption of the 2012 amendment specifically preserved the eligibility of these offenders

with the exact same phraseology contained in the 2010 amendment.

       {¶13} And while we agree that the 2012 amendment expanded the opportunity for

expungement to now allow sealing of records for those with two convictions from the

more limited “first offender” definition contained in the 2010 statute, which permitted the

sealing of records for those who had only one conviction, the amendment clearly contains

limitations. Specifically, the statute limits the definition of eligible offender to those

that have been convicted of either a felony and a misdemeanor or two misdemeanors

provided that they were not for “the same offense.”

       {¶14} As for the General Assembly’s reasoning in choosing to treat an offender

with a felony and a misdemeanor more favorably than someone who has been convicted

of two less innocuous misdemeanors of the “same offense,” we note that “[i]t is not a
court’s function to pass judgment on the wisdom of the legislation, for that is the task of

the legislative body which enacted the legislation.” Klein v. Leis, 99 Ohio St.3d 537,

2003-Ohio-4779, 795 N.E.2d 633, ¶ 14.            The statute as written evidences the General

Assembly’s intent to exclude offenders who have a propensity of committing the same

offense.1 Further, because we find that the statute is clear and unambiguous, we need

not go beyond the plain language of the statute to determine the legislative intent.

       {¶15} The sole assignment of error is overruled.

       {¶16} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court 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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR


            We note, however, that there is legislation pending that seeks to amend the statute and
       1


delete the phrase “if the convictions are not of the same offense” in reference to an offender who has
two misdemeanor convictions. See S.B. 143.
