State v. M.E.State v. M.E.
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Diane Smilanick
Anthony Thomas Miranda
Assistant County Prosecutors
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
Erika B. Cunliffe
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court‘s decision granting the motion to seal record filed by defendant-appellee, M.E. For the reasons that follow, we reverse and remand to the trial court for further proceedings.
{¶2} In 1990, M.E. was convicted of theft, in violation of
{¶3} The law changed in September 2012 defining who was an eligible offender for expungement purposes. Accordingly, in September 2016, M.E. applied to expunge his felony
{¶4} In August 2017, M.E. again applied to seal his record of conviction. The state opposed, contending that M.E.‘s 1992 OVI conviction in Cleveland Heights, 1993 OVI conviction in Cleveland, and 1996 open container conviction made him an ineligible offender. In response, M.E. advised the court that the 1993 OVI conviction in Cleveland was dismissed in July 2017 following the withdrawal of his plea. M.E. further argued that the open container conviction should be treated as a minor misdemeanor for expungement purposes because other jurisdictions and the Ohio Revised Code classify an open container violation a minor misdemeanor. He claimed that he was being denied equal protection under the law.
{¶5} Following a hearing, the trial court granted M.E.‘s motion to seal his record of conviction. The state now appeals, raising as its sole assignment of error that the trial court erred in granting M.E.‘s application to seal his criminal record pursuant to
I. Standard of Review
{¶6} An appellate court generally reviews a trial court‘s disposition of an application to seal a record of conviction under an abuse of discretion standard. State v. Black, 10th Dist. Franklin No. 14AP-338, 2014-Ohio-4827, ¶ 6. However, whether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo. State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 15, citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6; State v. Clemens, 10th Dist. Franklin No. 14AP-945, 2015-Ohio-3153, ¶ 7.
{¶8} An “eligible offender” includes those convicted of “not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony and one misdemeanor conviction.”
{¶9} It is undisputed that M.E. has one felony conviction (theft) and two qualifying misdemeanor convictions (OVI and open container). Accordingly, pursuant to the plain language of
{¶10} The trial court, however, did not make an explicit determination that M.E. was an “eligible offender” pursuant to
A. Change in Cleveland Heights Ordinance
{¶12} M.E. argued in the trial court, and now on appeal, that his open container conviction should be treated as a minor misdemeanor for expungement purposes because Cleveland Hts. Codified Ord. 529.07(b) has recently been amended to provide that an open container violation is a minor misdemeanor, which would not count as a conviction under
{¶13} In 2014, J.M. filed an application seeking to seal the record of his 1989 felony conviction for receiving stolen property.2 When he applied, he also had a third-degree misdemeanor conviction for negligent assault and a fourth-degree misdemeanor conviction for failure to register a motor vehicle under
{¶14} In this case, no authority has been presented to this court that the city of Cleveland Heights intended that the change in degree of the open container offense and penalty would have retroactive application to individuals like M.E. Accordingly, M.E.‘s argument is without merit.
B. Equal Protection Under the Law
{¶15} M.E. also argued in the trial court and now on appeal that he is being deprived of equal protection under the law because the Ohio Revised Code and other local municipalities treat open container convictions as minor misdemeanors, and thus individuals convicted under the statute or those ordinances would be eligible to have their open container conviction expunged. Accordingly, he contends that
{¶16} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.”
Equal protection of the law means the protection of equal laws. It does not preclude class legislation or class action provided there is a reasonable basis for
such classification. The prohibition against the denial of equal protection of the laws requires that the law shall have an equality of operation on persons according to their relation. So long as the laws are applicable to all persons under like circumstances and do not subject individuals to an arbitrary exercise of power and operate alike upon all persons similarly situated, it suffices the constitutional prohibition against the denial of equal protection of the laws.
{¶17} Because the Equal Protection Clauses in the United States Constitution and the Ohio Constitution are functionally equivalent, they require the same analysis. State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 11. “Equal protection analysis begins with the rebuttable presumption that statutes are constitutional.” State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d 963, ¶ 5. The party asserting that a statute is unconstitutional has the burden of proving that the statute is unconstitutional beyond a reasonable doubt. State v. Collier, 62 Ohio St.3d 267, 269, 581 N.E.2d 552 (1991).
{¶18} In State v. J.S., 8th Dist. Cuyahoga No. 101329, 2015-Ohio-177, this court reviewed the same issue we are presented with here — whether the equal protection clauses are violated when treating the applicant‘s “conviction that arose under the Cleveland Heights Municipal Code as a fourth-degree misdemeanor when determining eligibility for expungement when the offense is a minor misdemeanor for individuals who are charged under the Ohio Revised Code.” Id. at ¶ 12.
{¶19} This court held that “the expungement statutes do not implicate a fundamental right or suspect classification.” Id. at ¶ 14. Therefore, “it must be determined whether precluding the sealing of records for individuals convicted under a municipal ordinance with an increased
{¶20} Much like in J.S., we are reluctant to decide the constitutional question when the trial court has failed to address the issue. We recognize that unlike in J.S., the parties in this case have fully briefed the constitutional issue in the trial court. However, we also recognize that the law governing sealing of records was changed effective October 29, 2018, and this change seemingly affects M.E.‘s status as an “eligible offender.” Accordingly, we remand the matter to the trial court to consider the constitutional issue raised by M.E., if it finds that the issue is still relevant for consideration in light of S.B. 66.
II. Conclusion
{¶21} The trial court erred in finding that M.E. was an eligible offender under the plain language of
{¶22} Judgment reversed and remanded for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed. 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.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, P.J., and