State v. TalamehState v. Talameh
David A. Freeburg, and Katheryn J. McFadden, McFadden & Freeburg Co., L.P.A., 1370 Ontario Street, Suite 600, Cleveland, OH 44113 (For Defendant-Appellant).
O P I N I O N
MARY JANE TRAPP, J.
{¶1} Sam J. Talameh appeals from a judgment of the Portage County Municipal Court, Ravenna Division, which denied his application for a sealing of the record pursuant to
{¶3} Eight years after his conviction, on April 27, 2011, Mr. Talameh filed an application to expunge or seal the record of his misdemeanor conviction.1 In his application form, he indicated he was eligible because (1) he was a first-time offender, (2) there are no pending criminal proceedings against him, and (3) all fines and costs assessed against him have been paid in full.
{¶4} The prosecutor did not file a response; the record, however, contains a letter from the county probation department, which stated that the defendant is ineligible for sealing/expungement of the record because his misdemeanor conviction involved a juvenile. The trial court, without a hearing, denied the expungement request, solely on the ground that his conviction involved a juvenile.
{¶5} Mr. Talameh now appeals, assigning the following error for our review:
{¶6} “The trial court erred in denying the application for expungement.”
The Statute for Sealing the Record
{¶7}
{¶8} “* * * [A] first offender may apply to the sentencing court * * * for the sealing of the conviction record. Applicatiоn may be made at the expiration of three years after the offender‘s final discharge if convicted of a felony, or at the expiration of one year after the offender‘s final discharge if convicted of a misdemeanor.”
{¶10} “(B) Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or thе department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant.
{¶11} “(C) (1) The court shall do each of the following:
{¶12} “(a) Determine whether the applicant is a first offender * * *.
{¶13} “(b) Determine whether criminal proceedings are pending against the applicant;
{¶14} “(c) If the applicant is a first offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;
{¶15} “(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons аgainst granting the application specified by the prosecutor in the objection;
{¶16} “(e) Weigh the interests of the applicant in having the records pertaining to the applicant‘s conviction sealed against the legitimate needs, if any, of the government to maintain those records.”
{¶18} “To invoke the jurisdiction of the trial court in proceedings brought under
{¶19} The expungement of the record is “an act of grace created by the state,” as such, it is “a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton (1996), 75 Ohio St.3d 636, 639. “Expungement should be granted only when all requirements for eligibility are met.” Id. However, ”
Standard of Review
{¶20} Generally, we review a trial court‘s decision to deny an application to seal a record of conviction for an abuse of discretion standard. State v. Wright, 191 Ohio App.3d 647, 2010-Ohio-6259, (3d. Dist), ¶7. See also State v. Selesky, 11th Dist. No. 2008-P-0029, 2009-Ohio-1145, ¶17. This case, however, as we explain below, requires us to interpret and apply various sections of the Ohio Revised Code; to the extеnt that we interpret and apply these statutes, our review is de novo. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶6-7; State v. Clark, 4th Dist. No. 11CA8, 2011-Ohio-6354, ¶11; State v. Sufronko, 105 Ohio App.3d 504, 506 (1995).
The Conviction
{¶21} In the trial court‘s judgment entry denying Mr. Talameh‘s application, the court‘s analysis consists of one sentence: “Due to the fact that Mr. Talameh[‘s] conviction involved a juvenile at the time of offense, this expungement is hereby denied.” Pursuant to
{¶22} We begin our analysis with Mr. Talameh‘s conviction, as his request for sealing the record turns on the degree of his misdemeanor offense. Thе complaint charged him with a violation of
{¶23} We first note that the record in this case reflects that the prosecution of Mr. Talemeh lacks precision. The complaint, a hand-written form, stated that Mr. Talameh, who was under 21, purchased two 12-packs of Coors, one of which was for a 17-year-old. Therefore, Mr. Talameh‘s conduct potentially implicated both sections of the statute, but the complaint only referenced section (A). Therefore, it would apрear he was only charged with a violation of
{¶24} The record also contains a hand-written document titled “Criminal Pre Trial Report,” which was signed by the defendant, his counsel, the prosecutor, and the trial court. The report indicates that the defendant would enter a plea of “guilty to offenses including minors” and the prosecutor would “dismiss balance of charges.” The use of the plural form in both “offenses” and “charges” makes it unclear as to what Mr. Talameh would be pleading guilty and what offense was dismissed. It appears, though, that Mr. Talameh was to plead guilty to the
{¶26} This is the extent of the record regarding Mr. Talmeh‘s conviction. As both the complaint and the “pre-trial report” referenced
The Degree of the Misdеmeanor Offense Committed by the Defendant
{¶27} The degree of Mr. Talameh‘s misdemeanor offense is crucial to his request for sealing the record. Because his offense involved a 17-year-old, whether he would be eligible for sealing the record would depend on whether his misdemeanor offense is of the first degree, рursuant to
{¶28}
{¶30} Regarding division (A) of
{¶31} These two divisions stand in sharp contrast to each other. It appears that the General Assembly singled out division (A) and left it unclassified, while it designated offenses proscribed by the other divisions of
{¶32} We note that misdemeanors began to be classified by degree in 1974. See State v. Rick, 194 Ohio App.3d 511, 2011-Ohio-3866, ¶19 (2d Dist.). Various offenses remain unclassified, however. State v. Williams, 7th Dist. No. CA 221, 2002-Ohio-5022, ¶17, citing State v. Quisenberry, 69 Ohio St.3d 556, 557 (1994). “An unclassified misdemeanor is an offense which is not specifically labeled and for which a penalty of incarceration not exceeding one year may be imposed.” Williams at ¶16, citing
{¶33} Thus, a person convicted of an unclassified misdemeanor potentially faces a more severe penalty, yet, under the expungement statute (
{¶34} As in this case, the misdemeanor of which the defendant in Rick was convicted – pointing a firearm аt another, in violation of former
{¶35} The division of
{¶37} Second, the court reasoned that the penalty for the offense of pointing a firearm at another made it analogous to an unclassified misdemeanor, not a first-degree misdemeanor. This is because the maximum penalty for a first-degree misdemeanor prescribed in
{¶38} Recognizing the paradoxical effect of a straightforward application of the statutes involved, the Second District reasoned that “[a]lthough the potential penalty for an unclassified misdemeanor is more serious than the penalty for a first-degree misdemeanor, nothing in
{¶39} Similarly here, we will apply the plain language of the pertinent statutory provisions without resort to unnecessary statutory interpretation. First,
{¶40} Second, regarding whether the penalty for
{¶41} Construing the expungement statute liberally to promote the legislative purpose of allowing expungements, Hilbert, supra, at 827, we reach the conclusion that Mr. Talameh is eligible for sealing of the record of his misdemeanor conviction, because his misdemeanor offense is not of the first degree. Therefore, the trial court does not lack jurisdiction to consider his application, and it should have held a hearing pursuant to the mandate of
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.