STATE OF OHIO v. J. B.
C.A. No. 29286
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
November 13, 2019
[Cite as State v. J.B., 2019-Ohio-4659.]
APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE Nos. 1997CRB2031 1998CRB2837 2006CRA2418 2006CRB3868
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
{¶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
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ERRED IN DENYING THE APPLICATION TO SEAL THE RECORD WITHOUT FIRST HOLDING A HEARING PURSUANT TO
{¶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
{¶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
{¶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}
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
{¶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.”
{¶13} Despite the hearing requirement set forth in
{¶14} Relevant to J.B.’s case is
[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 section2903.13 * * * 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
{¶15} Because
{¶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.
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.