[Cite as State v. Widener,

.]

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellant : C.A. CASE NO. 2013 CA 29

v. : T.C. NO. 20940003

CHAD WIDENER : (Civil appeal from Common Pleas Court, Juvenile Division)

Defendant-Appellee :

:

..........

OPINION

Rendered on the 31st day of January , 2014.

..........

MELISSA L. WOOD, Atty. Reg. No. 0089748, Assistant Prosecuting Attorney, Shelby County, 108 East Poplar Street, Sidney, Ohio 45365 Attorney for Plaintiff-Appellant

JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373 Attorney for Defendant-Appellee

..........

FROELICH, P.J.

{¶ 1} The State appeals from a judgment of the Miami County Court of 2

Common Pleas, Juvenile Division, which granted Chad Widener’s application to seal the

record of his conviction for contributing to the delinquency of a child.

{¶ 2} Widener, a teacher, was accused of having sexually explicit electronic

conversations and sexual contact with a minor student, and he was charged with

importuning. In March 2009, Widener was found guilty in the Juvenile Division of the

Miami County Court of Common Pleas, on his guilty plea, of contributing to the

delinquency of a child in violation of R.C. 2919.24, a misdemeanor of the first degree. He

was sentenced to six months in jail, with all but 10 days suspended, to two years of

probation, to perform 20 days of community service, to pay a fine, and to surrender his

teaching license, along with other conditions.

{¶ 3} In April 2013, Widener filed an application to seal the record of his

conviction. The State opposed the application. The parties did not dispute that Widener

had completed his sentence and that no criminal proceedings were pending against him, and

the trial court found that he had been rehabilitated to its satisfaction. The only disputed

issue was whether Widener was eligible to have the record sealed. On July 29, 2013, the

trial court granted Widener’s application to seal the record of his conviction.

{¶ 4} The State appeals, raising one assignment of error.

THE TRIAL COURT ERRED IN GRANTING

DEFENDANT-APPELLEE’S APPLICATION TO SEAL THE RECORD

FOR HIS ADULT CONVICTION OF CONTRIBUTING TO THE

DELINQUENCY OF A CHILD BECAUSE SUCH A CONVICTION IS

NOT ELIGIBLE FOR SEALING. [Cite as State v. Widener,

.] {¶ 5} The State contends that, pursuant to R.C. 2953.36(F), Widener’s conviction

was not eligible to be sealed because it was a misdemeanor of the first degree and the victim

was a minor.

{¶ 6} R.C. 2953.31 et seq. permit a first-time offender to request that his or her

criminal record be sealed. The applicant must be eligible to have the conviction sealed and

the offense must be one that is subject to being sealed. Expungement1 is “an act of grace

created by the state;” as such, it is a privilege, not a right. State v. Simon,

,

(2000), citing State v. Hamilton,

,

(1996). See also State v. Ninness, 6th Dist. Ottawa No. OT-11-024,

; State v. M.R., 8th Dist. Cuyahoga No. 94591,

, ¶ 14; State

v. Reed, 10th Dist. Franklin No. 05AP-335,

.

{¶ 7} “The applicant must meet the statutory eligibility criteria in order to invoke

the court’s jurisdiction to expunge a conviction; the state bears no burden other than, when

appropriate, to object to an application. State v. Menzie, Franklin App. No. 06AP-384,

, ¶ 7. Applicants whose conviction falls within any category of R.C.

2953.36 are ‘ineligible’ for expungement.” (Some internal citations omitted.) M.R. at ¶

15, citing

.

{¶ 8} The trial court’s preliminary determination as to whether the statutory

eligibility requirements for sealing a conviction apply is a question of law that this court

reviews de novo. M.R. at ¶ 15; State v. Talameh, 11th Dist. Portage No. 2011-P-74,

, ¶ 20. After it has properly determined that a conviction is eligible to be

1 See State v. Pariag,

,

,

(acknowledging the continued use of the term “expungement” to describe the process of sealing a conviction). 4

sealed, the trial court’s decision to grant or deny a request to seal records is reviewed for an

abuse of discretion. Ninness at ¶ 8; Talameh at ¶ 20.

{¶ 9} R.C. 2953.36 identifies several types of convictions for which sealing of the

record cannot be considered. Subsections R.C. 2953.36(E) and (F) are discussed by the

parties to this appeal:

(E) Convictions on or after October 10, 2007, under section 2907.08,

2907.09, 2907.21, 2907.22, 2907.23, 2907.31, 2907.311, 2907.32, or 2907.33

of the Revised Code when the victim of the offense was under eighteen years

of age;

(F) Convictions of an offense in circumstances in which the victim of the

offense was under eighteen years of age when the offense is a misdemeanor

of the first degree or a felony, * * *.

Widener’s offense of contributing to the delinquency of a child (R.C. 2919.24) is not one of

the offenses listed in R.C. 2953.36(E).

{¶ 10} The trial court interpreted R.C. 2953.36(E) as a

comprehensive list of the offenses that are not eligible to be

sealed due to the age of the victim. The court stated:

The legislative intent of the [2007] amendment to R.C.

2953.36, specifically paragraph (E), was to except specific

crimes from expungement when the victim was under the age

of 18 by listing them in the statute. Absent from that list is

the crime of contributing to the delinquency of a child. The 5

contributing statute by its very nature requires the victim to be

under the age of 18. So why then does it not appear under

R.C. 2953.36(E)? The answer to this court is that the

legislature did not intend to except it from the sealing process

* * *.

The court also referenced the rule of “ejusdem generis,” stating that the listing of specific

statutory exceptions in subsection (E) led the court to conclude that the general exception set

forth in subsection (F) did not apply to the same general class of offenses. The court further

concluded that the interpretation advocated by the State would frequently result in the

inability to seal cases in situations where it would be “against public policy” (such as in the

prosecution of parents or store owners for contributing or an assault by an 18-year-old on a

16- or 17-year old) and that, in the case of a child-defendant, such a rule is “not in the best

interest of the adjudicated child.” Although the court did not expressly find any ambiguity

in the statute, it stated that it relied on “the totality of the circumstances” in finding that the

State’s argument was “flawed.”

{¶ 11} The State contends that there is no ambiguity in R.C. 2953.36 that required

interpretation by the trial court. In its reading of the statute, Widener’s conviction was

ineligible to be sealed under R.C. 2953.36(F), because his offense was a misdemeanor of the

first degree and the victim of the offense was a minor. We agree. The applicability of the

statutory factors was a straightforward determination to be made based on the stated criteria.

R.C. 2953.36(E) encompasses some offenses of a lesser degree than subsection (F), which

applies only to first-degree misdemeanors and felonies. Any overlap between subsections 6

(E) and (F) results in an offense twice being excluded from consideration for sealing the

record; these subsections cannot reasonably be read to make eligible for sealing any

conviction for a misdemeanor of the first degree or a felony where the victim is a minor.

The trial court erred in considering the “totality of the circumstances” and in considering

whether there might be other circumstances (not presented in this case) in which a

compelling reason to seal a conviction for contributing to the delinquency of a child might

exist.

{¶ 12} Widener argues that, “[w]hen read together, Subsections (F) and (E) are

ambiguous as to which provision, if either, apply [sic] to Ohio’s contributing [to the

delinquency of a child] statute.” Specifically, Widener claims that, because, by definition,

all victims of the offense he committed are minors, the legislature would have included that

offense in subsection (E) if it had intended to prohibit the sealing of such convictions.

{¶ 13} The legislature clearly intended that more than one of the subsections apply

to offenses involving minor victims, as subsections (E) and (F) both expressly apply to this

category of victim. We find no basis in the statutory language for Widener’s argument or

the court’s conclusion that all of the offenses involving minors to which the expungement

exclusion was intended to apply were (or must have been) listed in subsection (E). The

offenses listed in subsection (E) are all in Chapter 2907, entitled “Sex Offenses,” and their

penalties range from second degree felonies to fourth degree misdemeanors. This reflects a

legislative decision not to allow sealing of those specific offenses, regardless of the degree of

the offense. Contributing, on the other hand, is always a first degree misdemeanor and may

or may not involve a “sex offense.” A reasonable interpretation of the statute would be that 7

the legislature intended for non-sex offenses be addressed by subsection (F).

{¶ 14} Other appellate courts have addressed similar issues. In M.R., 8th Dist.

Cuyahoga No. 94591,

, the defendant had taken a picture of his

three-year-old after a bath and had shown it to others. He pled guilty to five counts of

attempted pandering of obscenity. The State objected to the defendant’s subsequent motion

to seal his record, relying on R.C. 2953.36(F), because the obscene material involved a

person under the age of 18. The trial court granted the defendant’s application to expunge,

but the Eighth District reversed, holding that “[a]pplicants whose conviction falls within any

category of R.C. 2953.36 are ‘ineligible’ for expungement.” Id. at ¶ 15. The appellate

court found that the crime fell within R.C. 2953.36(F). The court also noted that pandering

obscenity is an offense listed in R.C. 2953.36(E), and that the provision that the defendant

had “attempted” to commit that offense did not affect R.C. 2953.36(E)’s applicability. Id.

at ¶ 25.

{¶ 15} In Ninness, 6th Dist. Ottawa No. OT-11-024,

, the Sixth

District addressed whether a conviction for child endangering (a first degree misdemeanor in

violation of R.C. 2919.22(C)(1)) could be expunged. Like contributing to the delinquency

of a child, child endangering is an offense in which the victim is, by definition, a minor, but

this offense is not listed in R.C. 2953.36(E). The Sixth District concluded that the

defendant’s guilty plea to child endangering was “itself dispositive of the expungement

issue,” i.e., it established that the offense was excluded from expungement under R.C.

2953.36(F). Id. at ¶ 14.

{¶ 16} Widener argues that the offense of which he was convicted, contributing to 8

the delinquency of a child, could have logically been included in R.C. 2953.36(E), because

the “pertinent characteristic of these statutes [2953.36(E) and (F)] * * * seems to be the age

of the victim.” He argues that we should infer from the legislature’s failure to include

contributing to the delinquency of a child in subsection (E) that the legislature intended to

exclude that offense from the list of “non-sealable offenses,” or that its exclusion at least

creates an ambiguity in the statute; Widener has cited no cases finding an ambiguity therein.

{¶ 17} Even if we were to agree with Widener’s premise that contributing to the

delinquency of a child could have been included in the list of offenses set forth in R.C.

2953.36(E), the legislature’s failure to include it did not create an ambiguity in the statute.

As the cases from other districts demonstrate, there are numerous additional offenses

involving minors as victims that might have been included in R.C. 2953.36(E). It is

reasonable to conclude that the legislature drafted subsection (F) to address these other

offenses. Moreover, there is nothing in the language of the statute to suggest that there can

be no overlap between subsections (E) and (F). The proper role of the courts is to interpret

and apply the statutes as written, not to question why they were not written differently or to

interpret non-ambiguous language in a fashion that arguably is “in the best interests of [an]

adjudicated child”2 or the best “public policy.”

{¶ 18} Because the language of R.C. 2953.36(F) applied to Widener’s conviction,

the trial court erred in concluding that Widener’s conviction was eligible to be sealed.

2 We also note that sealing or expungement of an offense committed by an adjudicated child is separately addressed in the Revised Code. See R.C. 2151.356. 9

{¶ 19} The assignment of error is sustained.

{¶ 20} The judgment of the trial court will be reversed.

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FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Melissa L. Wood Jose M. Lopez Hon. William R. Zimmerman, Visiting Judge