THE STATE OF OHIO, APPELLANT, v. [J.M.], APPELLEE.
Nos. 2015-1221
SUPREME COURT OF OHIO
May 4, 2016
Slip Opinion No. 2016-Ohio-2803
FRENCH, J.
Certified by the Court of Appeals for Franklin County, No. 15AP-77, 2015-Ohio-2669. Submitted February 23, 2016.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-2803
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. J.M., Slip Opinion No. 2016-Ohio-2803.]
Criminal law—
FRENCH, J.
{¶ 1} In this certified-conflict appeal, we address whether a fourth-degree-misdemeanor conviction under
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellee, J.M., applied to the Franklin County Court of Common Pleas to seal his 24-year-old third-degree-felony conviction for receiving stolen property. When he applied, J.M. also had a third-degree-misdemeanor conviction for negligent assault and a fourth-degree-misdemeanor conviction for failure to register a motor vehicle under
{¶ 3} In support of his position, J.M. submitted to the trial court a copy of In re Mooney, 10th Dist. Franklin No. 12AP-376, 2012-Ohio-5904. In Mooney, the Tenth District held that fourth-degree-misdemeanor convictions for failure to register motor vehicles under
The trial court later ordered sealed J.M.‘s felony conviction for receiving stolen property.
{¶ 4} The state appealed the trial court‘s judgment to the Tenth District Court of Appeals. In a fractured opinion, the Tenth District affirmed the trial court‘s judgment ordering J.M.‘s record sealed. The Tenth District granted the state‘s request to certify that the court‘s decision conflicts with State v. Clark, 4th Dist. Athens No. 11CA8, 2011-Ohio-6354. 2015-Ohio-2669 (10th Dist.), ¶ 19.
{¶ 5} We declined to accept the state‘s discretionary appeal, 143 Ohio St.3d 1481, 2015-Ohio-3958, 38 N.E.3d 902, but we determined that a conflict exists, 143 Ohio St.3d 1476, 2015-Ohio-3958, 38 N.E.3d 899. We ordered the parties to brief one issue:
Whether a violation of
R.C. 4503.11 , concerning failure to register a motor vehicle, a fourth-degree misdemeanor, must be counted as an offense when determining eligible offender status underR.C. 2953.31 ?
Id., quoting 2015-Ohio-2669, at ¶ 19.
{¶ 6} For the reasons below, we answer the certified question in the affirmative. Consistent with that conclusion, we reverse the Tenth District‘s judgment.
ANALYSIS
{¶ 7} Our primary concern when construing statutes is legislative intent. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). In determining that intent, we first look to the plain language of the statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18, citing Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 11. When the language is unambiguous and definite, we apply it as written. Id.
{¶ 8} The definitions in
Eligible offender means 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, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.
* * *
For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters is not a conviction.
{¶ 9} In deciding whether to grant an application to seal an offender‘s record, the trial court must first determine whether the applicant is an eligible offender.
{¶ 10} To be classified as an eligible offender under
{¶ 11} In response to the plain language of the statute, J.M. argues in support of the lead opinion of the court of appeals. First, he notes that effective July 1, 2015, convictions for failure to register a motor vehicle under
{¶ 12} The language of
{¶ 13} It is true that offenders convicted under
CONCLUSION
{¶ 14} Under the plain language of
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and KENNEDY, J., concur.
LANZINGER, J., concurs in judgment with an opinion that O‘NEILL, J., joins.
PFEIFER and O‘DONNELL, JJ., dissent and would dismiss the cause and find that no conflict exists.
{¶ 15} As we noted in State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 11:
The sealing of a criminal record, also known as expungement, see State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 11, is an act of grace created by the state. State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). It should be granted only when all requirements for eligibility are met, because it is a privilege, not a right. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.
{¶ 16} Unfortunately for J.M., at the time of his conviction and sentence for failing to register a motor vehicle in 2013, that offense was a fourth-degree misdemeanor.
{¶ 17} Effective July 1, 2015, however, failing to register a motor vehicle is merely a minor misdemeanor,
{¶ 18} I concur in the court‘s judgment because J.M. has not met the General Assembly‘s test to be eligible to have his felony conviction expunged.
O‘NEILL, J., concurs in the foregoing opinion.
Yeura R. Venters, Franklin County Public Defender, and David L. Strait, Assistant Public Defender, for appellee.