State v. Waxler

Mar 29, 2021

2020-L-109

Versions:

O P I N I O N

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 1999 CR 000068.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Michael P. Harvey, Michael P. Harvey Co., L.P.A., 311 Northcliff Drive, Rocky River, OH 44116 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Howard D. Waxler, appeals from the judgment of the Lake County Court of Common Pleas, denying his application to seal records. At issue is whether appellant is a statutorily eligible offender for sealing the record of his 1999 conviction for attempted burglary, in violation of R.C. 2911.12(A)(3), a felony of the third degree. We answer this question in the negative and affirm the trial court.

{¶2} In 1999, appellant entered a plea of guilty to attempted burglary, a felony of the third degree, in violation of R.C. 2911.12(A)(3) and R.C. 2923.03. On October 5, 2020, appellant filed an application to seal the record of this conviction. The state objected, asserting appellant is not an eligible offender. Appellant filed a memorandum responding to the state‘s objection. The trial court agreed with the state and denied the application. Appellant now appeals and assigns the following as error:

{¶3} “The trial court committed reversible error by finding Mr. Waxler ineligible for the expungement and/or sealing of his felony conviction.”

{¶4} Appellant advances multiple legal arguments in support of his position:

{¶5} “A. An F-4 attempted burglary charge is not a disqualifying expungement offense.

{¶6} “B. Revised Code [Section] 2953.36 does not apply to Mr. Waxler.

{¶7} “C. Revised Code [Section] 2953.36(C) provides that felony convictions of Revised Code [Section] 2903.13 may be expunged.

{¶8} “D. Ohio‘s expungement statutes are to be construed liberally to serve the remedial purpose intended by the General Assembly.

{¶9} “E. Since the statute as both written and construed is ambiguous, this court is free with remedial legislation to construe the statute liberally to give effect to its legislative purpose.

{¶10} “F. Revised Code [Section] 2953.36(C) should not apply to Mr. Waxler‘s situation because it violates the constitutional prohibition against retroactive legislation.

{¶11} “G. The lower court misconstrued the eligibility requirements for expungement in this situation.”

{¶12} In short, appellant argues the trial court erred in denying his application to seal because it misconstrued his eligibility; he additionally argues the sealing statues are ambiguous and cannot be applied retroactively.

{¶13} Only an “eligible offender” is eligible to apply to have his or her record of conviction sealed. R.C. 2953.32(A)(1). Hence, the court to which the application is made “shall” first “[d]etermine whether the applicant is an eligible offender * * *.” R.C. 2953.32(C)(1)(a). An “eligible offender” is someone who either (a) “has been convicted of one or more offenses, but not more than five felonies” if none of the offenses is of a degree higher than a fourth-degree felony and “none of those offenses [is] an offense of violence” or a felony sex offense, or (b) “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.” R.C. 2953.31(A)(1)(a) and (b).

{¶14} In this matter, subsection (a) does not render appellant an eligible offender because the underlying conviction was a felony of the third degree. Moreover, subsection (b) does not apply because, as the trial court pointed out, appellant has three additional misdemeanor convictions: drug paraphernalia, drug abuse, and domestic violence. Thus, appellant is not an eligible offender.

{¶15} Moreover, R.C. 2953.36(A)(3), entitled “Convictions precluding sealing,” states: that except as otherwise provided, expungement sections R.C. 2953.31 to 2953.35 do not apply to “[c]onvictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony” (with certain exceptions that are not directly relevant here). Attempted burglary, in violation of R.C. 2911.12(A)(3), a felony of the third degree, is statutorily defined as an “offense of violence.” R.C. 2901.01(A)(9)(a) and (d). In this respect, appellant‘s conviction, as an offense of violence, is excluded from sealing.

{¶16} Appellant contends that R.C. 2953.36(A)(3) operates to essentially include his convictions as an eligible offense. As noted above, that statute is captioned “convictions precluding sealing.” That is, the statutory section provides further constraints on record sealing, setting forth certain offenses of violence (felonies and various first-degree misdemeanors) that would preclude sealing regardless of any other code provisions. See State v. C.D.D., 10th Dist. Franklin No. 19AP-130, 2019-Ohio-4754, ¶9. R.C. 2953.36(A)(3), consequently, provides additional limitations on sealing a record, not additional avenues. The trial court therefore could not seal appellant‘s felony-three conviction for attempted burglary.

{¶17} Appellant further asserts that the sealing statutes are ambiguous, and this court should accordingly look to the overall remedial legislative purpose of the statutory scheme. Appellant did not raise his ambiguity argument in the trial court and, as a result, this argument is forfeited save plain error. See, e.g., State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶378.

{¶18} Recently, in State v. Jeffries, 160 Ohio St.3d 300, 2020-Ohio-1539, the Supreme Court reiterated general principles of statutory construction:

{¶19} The meaning of statutory language is a question of law, which we review de novo. State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, ¶6. A fundamental preliminary step in our analysis of any legislation is to review the plain language of the statute. Id. at ¶7. “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553 (2000). When there is no ambiguity on the face of the statute, it must simply be applied as written. Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn., 69 Ohio St.3d 521, 524 (1994).

{¶20} We must read statutory words and phrases in context and construe them in accordance with the rules of grammar and common usage. State ex rel. Barley v. Ohio Dept. of Job & Family Servs., 132 Ohio St.3d 505, 2012-Ohio-3329, ¶20. But words and phrases that have a technical or particular meaning by legislative definition must be construed accordingly. Id. at ¶21. “Where a statute defines terms used therein which are applicable to the subject matter affected by the legislation, such definition controls in the application of the statute.” Woman‘s Internatl. Bowling Congress, Inc. v. Porterfield, 25 Ohio St.2d 271 (1971), at paragraph two of the syllabus. Jeffries, at ¶15-16.

{¶21} Here, we discern no ambiguities in the statutory scheme relating to sealing records. To the contrary, the scheme is fairly straightforward. It defines which offenders and which offenses are eligible. Offenses of violence are defined with clarity and appellant‘s conviction for attempted burglary, in violation of R.C. 2911.12(A)(3), is included in that definition. R.C. 2901.01(A)(9)(a) and (d) render appellant ineligible. Where the language of a statute is clear, legislative purpose is irrelevant. We, as well as the trial court, must simply apply the letter of the law. We therefore discern no plain error, and accordingly appellant‘s argument in this regard lacks merit.

{¶22} Finally, appellant asserts the sealing statutes cannot be applied retroactively to him. Similar to the previous argument, appellant failed to raise this issue in the trial court. It is consequently forfeited absent plain error.

{¶23} Appellant fails to specifically argue that attempted burglary, in violation of R.C. 2911.12(A)(3), would have been a conviction eligible for sealing at the time of his conviction. He simply states, in conclusory fashion, that, at the time of his conviction, there were far fewer offenses of violence codified under the Ohio Revised Code. This, however, sheds no light on whether the offense of which he was convicted was or was not an offense of violence when he entered his plea. In this respect, it is unclear a retroactivity argument would be factually applicable to his case.

{¶24} Regardless, in State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, the Supreme Court held: “[t]he law in effect at the time of the filing of an R.C. 2953.32 application to seal a record of conviction is controlling.” Lasalle, supra, at paragraph two of the syllabus. Moreover, this court has observed:

{¶25} The law of Ohio clearly states that changes in statutory law regarding expungement may be applied retroactively. Therefore, a defendant should never be able to assert that their due process rights were violated because they relied on the possibility of expungement, and then the expungement statute changed. If we were to hold otherwise, it would allow every defendant entering a plea agreement to “rely” on the possibility of expungement. The resulting effect would be that changes in statutory law regarding expungement could not be applied ex post facto. That is not the law of Ohio. State v. Rybak, 11th Dist. Lake No. 2011-L-084, 2012-Ohio-1791, ¶29, citing State v. Davenport, 116 Ohio App.3d 6, 11 (12th Dist.1996).

{¶26} Even if appellant adduced some evidence that his conviction would have been eligible for sealing when it was finalized in 1999, his argument would still lack merit. We find no plain error.

{¶27} We therefore hold the trial court did not possess authority to seal appellant‘s record of conviction as it was not an eligible offense.

{¶28} Appellant‘s assignment of error is without merit.

{¶29} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.