[Cite as State v. Hart,
2022-Ohio-1706.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2021-11-064
Appellee, : OPINION
05/23/2022
:
- vs -
:
MICHAEL J. HART aka MICHAEL LEE :
HART,
:
Appellant.
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 1998-CR-5038
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
Gary A. Rosenhoffer, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Michael Hart, appeals a decision of the Clermont County Court of
Common Pleas denying his application to seal the record of his previous convictions.
{¶ 2} In 1998, Hart was convicted of one count of breaking and entering in violation
of R.C. 2911.13, a fifth-degree felony, and one count of safecracking in violation of R.C.
2911.13, a fourth-degree felony. These felony convictions arose out of the same
Clermont CA2021-11-064
transaction. Neither offense was an offense of violence or a sex offense. Hart was
sentenced to prison. He was subsequently granted judicial release and released from
prison on community control. In April 2003, Hart successfully completed his term of
community control and was discharged.
{¶ 3} On September 28, 2021, Hart moved to seal the record of his convictions
pursuant to R.C. 2953.32. A hearing on the motion revealed that Hart also had three
misdemeanor OVI convictions, a misdemeanor passing bad check conviction, and perhaps
a misdemeanor watercraft OVI conviction. Relying on the R.C. 2953.31 definition of
"eligible offender" in effect from October 2018 to April 2021, the trial court found that Hart
was not an eligible offender because he had more than two misdemeanor convictions. On
November 5, 2021, the trial court issued an entry, denying Hart's application to seal the
record of his convictions for breaking and entering and safecracking:
The Court directed the Adult Probation Dept. to conduct a
review of his criminal and traffic convictions and that report was
timely submitted to the Court. It reflects that he has been
convicted of two felony charges, both in his case, thus the Court
will consider them as only one felony conviction. However, the
review of his criminal and traffic convictions reflect[s] he has
been convicted of at least four misdemeanors.
Therefore, Defendant is not an eligible offender under R.C.
2953.31(A)(1)(b).
{¶ 4} Hart now appeals, raising one assignment of error:
{¶ 5} THE TRIAL COURT'S CONCLUSION THAT HART IS INELIGIBLE TO HAVE
THE RECORD OF THIS CASE SEALED IS CONTRARY TO LAW.
{¶ 6} Hart argues, and the state concedes, that the trial court erred in finding that
Hart was not an eligible offender under R.C. 2953.31(A)(1).
{¶ 7} Generally, we review a trial court's decision granting or denying an application
to seal a criminal record for an abuse of discretion. State v. Gross, 12th Dist. Warren No.
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Clermont CA2021-11-064
CA2010-03-030, 2011-Ohio-55, ¶ 4. However, whether an applicant is an eligible offender
under R.C. 2953.31 is a question of law that this court reviews de novo. State v. Puckett,
12th Dist. Clermont No. CA2020-11-065,
2021-Ohio-2634, ¶ 7-8; State v. Futrall,
123 Ohio
St.3d 498,
2009-Ohio-5590, ¶ 6-7. The statutory law in effect at the time of the filing of an
R.C. 2953.32 application to seal a record of conviction is controlling. State v. LaSalle,
96
Ohio St.3d 178,
2002-Ohio-4009, paragraph two of the syllabus.
{¶ 8} R.C. 2953.31(A) defines who is an eligible offender. At the time Hart filed his
application to seal the record of his convictions on September 28, 2021, the statute defined
"eligible offender" in pertinent part as follows:
(a) Anyone who has been convicted of one or more offenses in
this state or any other jurisdiction, if all of the offenses in this
state are felonies of the fourth or fifth degree or misdemeanors
and none of those offenses are an offense of violence or a
felony sex offense and all of the offenses in another jurisdiction,
if committed in this state, would be felonies of the fourth or fifth
degree or misdemeanors and none of those offenses would be
an offense of violence or a felony sex offense;
(b) Anyone who has been convicted of an offense in this state
or any other jurisdiction, to whom division (A)(1)(a) of this
section does not apply, and who has not more than two felony
convictions, has not more than four misdemeanor convictions,
or, if the person has exactly two felony convictions, has not more
than those two felony convictions and two misdemeanor
convictions in this state or any other jurisdiction. The conviction
that is requested to be sealed shall be a conviction that is
eligible for sealing as provided in section 2953.36 of the Revised
Code. When two or more convictions result from or are
connected with the same act or result from offenses committed
at the same time, they shall be counted as one conviction.
{¶ 9} "R.C. 2953.31(A)(1)(a) plainly states that an offender … who has been
convicted of more than one offense, is an eligible offender if all of the offenses are, or would
be, felonies of the fourth or fifth degree or misdemeanors in Ohio and none of those offenses
are, or would be considered, an offense of violence or a felony sex offense in Ohio." State
v. Cruz, 12th Dist. Butler Nos. CA2021-06-066 thru CA2021-06-070, 2021-Ohio-4241, ¶ 30.
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Clermont CA2021-11-064
The record shows that Hart had a fourth-degree felony conviction, a fifth-degree felony
conviction, and four or five misdemeanor convictions, and that none of these offenses are
an offense of violence or a felony sex offense. Hart is therefore an eligible offender under
R.C. 2953.31(A)(1)(a).
{¶ 10} Accordingly, we find that the trial court erred in applying a version of R.C.
2953.31(A)(1) that was no longer in effect at the time of Hart's application to seal the record
of his convictions and further erred in determining Hart was not an eligible offender under
R.C. 2953.31(A)(1). The first assignment of error is well-taken and sustained.
{¶ 11} Judgment reversed and remanded.
HENDRICKSON and BYRNE, JJ., concur.
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