State v. T.S.State v. T.S.
JUDGMENT: REVERSED AND REMANDED
BEFORE: Blackmon, J., Keough, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 31, 2017
Michael C. O‘Malley
Cuyahoga County Prosecutor
Diane Smilanick
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark Stanton
Cuyahoga County Public Defender
Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
{¶1} The state of Ohio appeals from the trial court‘s order granting an application to seal thе record of conviction filed by appellee T.S. (“T.S.“).1 The state assigns the following error for our review:
The trial court errs in granting a motion to seal the record of conviction when it is without jurisdiction to grant an expungement to an applicant who was convicted of a crime in which the victim of the offense was under eighteen years of age, which is not permitted pursuant to
R.C. 2953.36(F) .
{¶2} Having reviewed the record and pertinent law, we reverse and remand for further proceedings consistent with this opinion. The apposite facts follow. At the outset, we point out that if anyone deserved to have a record expunged, it is T.S.
{¶3} On April 4, 2008, T.S. was indicted for drug possession, two counts of drug trafficking, and possession of criminal tools, all with forfeiture specifications, and three counts of endangering children. On June 16, 2008, she pled guilty to drug possession, possession of criminal tools, and the forfeiture specifications for these charges. She also pled guilty to one count of endangering children in violation of
{¶4} On July 2, 2014, several years after completing her community control sanctions, T.S. filed a motion to seal the record of her conviction. The state filed a brief in opposition to the motion, arguing, inter alia, that under
{¶5} The state assigns a single error for our review, and maintains that T.S. is not eligible for expungement due to her conviction for child endangering. In opposition, T.S. argues that her conviction under
Standard of Review
{¶6} In State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, this court explained the standard of review of a ruling on a motion to seal а record of conviction as follows:
*** Generally, a trial court‘s decision to grant or deny a motion to seal records filed pursuant to
R.C. 2953.52 is reviewed for an abuse of discretion. State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. *** However, the applicability ofR.C. 2953.36 to an applicant‘s conviction is a question of law that this сourt reviews 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.
Id. at ¶ 7. See also State v. Ninness, 6th Dist. Ottawa No. OT-11-024, 2013-Ohio-974, ¶ 8; State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 7.
{¶7} In this matter, the critical question presented herein is whether the trial court had jurisdiction to grant T.S.‘s motion to seal her conviction. Accordingly, we apply the de novo standard of rеview.
Expungement
{¶8}
{¶9}
{¶10}
{¶11} T.S. asserts that only convictions under
A wild chase through the bramble bushes of the Revised Code, in pursuit of some comparative meaning for thе allegedly elusive term “victim,” is unnecessary for three reasons.
First * * * it should be a common sense inference that
R.C. 2919.22(C)(1) already specifies who the “victim” of the endangering offense is even without using that term (i.e., “one or more children under 18 years of age“).***
Second, nothing in
R.C. 2953.36(F) requires inquiry by the court — let alone a series of judicial findings — into “who the victim was,” or “what the victim [thought] about the [guilty] plea,” nor, as Ninness’ counsel also suggests, is the receipt of a victim-impact statement necessаry before the court may rule on an expungement application. *** For that purpose, it is sufficient underR.C. 2953.36(F) if the court receives information that the core act on which the conviction is based invоlved as a putative victim a person under 18-years-old. That a three-year-old child was involved in Ninness’ offenses was never disputed below.Finally, Ninness’ guilty plea to child endangering is itself dispositive of the expungеment issue.
***
Similarly, Ninness’ guilty plea to child endangering completely admitted the factual truth of all its constituent elements, including that “one or more children under eighteen years of age [were] in the vehicle” аt the time she
offended. Having judicially admitted that element, she thereby rendered her conviction ineligible for expungement under R.C. 2953.36(F) and, in turn, left the trial court without jurisdiction to grant the requested relief.
{¶12} Similarly, in A.S., this court held that а conviction for contributing to unruliness or delinquency of a child is not subject to expungement because, “by definition, [it] is an offense in which the victim is a minor, and as previously stated, it is also a misdemeanor of the first dеgree.” Id. at ¶ 12. Accord State v. Widener, 2d Dist. Miami No. 2013 CA 29, 2014-Ohio-333 (defendant‘s conviction for contributing to delinquency of a child under
{¶13} Moreover, when an applicant for expungement of a criminal record has multiple convictions under one case number, and one of these convictions is statutorily exempt from sealing pursuant to
{¶14} In this matter, T.S. pled guilty in 2008 to several drug-related charges, and one count of child endangering that alleged that the child who was the subject of this offense was born in 2003. On this record, the victim was clearly under 16 years of age, so T.S. was not eligible for expungement for this offense. Ninness; Reed; Crankfield. Further, although the current version of
{¶15} Defense counsel notes that the prosecuting attorney failed to appear at thе expungement hearing, and he argues that the state is therefore barred from raising its challenge to T.S.‘s eligibility for expungement. However,
{¶16} In accordance with the foregoing, the state‘s assigned error is well-taken.
{¶17} The trial court‘s order sealing the record is reversed. This case is remanded to the trial court with instructions to deny T.S.‘s motion for expungement and to unseal the record of her conviction.
{¶18} Judgment is reversed and remanded.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issuе out of this court directing the common pleas 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 Procеdure.
PATRICIA ANN BLACKMON, JUDGE
KATHLEEN ANN KEOUGH, A.J., and EILEEN T. GALLAGHER, J., CONCUR