[Cite as State v. VanWey,
2023-Ohio-3116.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Respondent-Appellant Hon. William B. Hoffman, J.
Hon. Andrew J. King, J.
-vsCase No. CT2023-0031
KADANCE N. VANWEY
Petitioner-Appellee OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the County Court,
Case No. CRB1700137(A)
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: September 5, 2023
APPEARANCES:
For Respondent-Appellant For Petitioner-Appellee
RONALD L. WELCH KADANCE N. WANWEY
PROSECUTING ATTORNEY PRO SE
JOHN CONNOR DEVER 5025 Brentwood Park
ASSISTANT PROSECUTOR Nashport, Ohio 43830
27 North Fifth Street, P. O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2023-0031 2
Wise, J.
{¶1} Appellant State of Ohio appeals from the April 17, 2023 judgment entry of
the Muskingum County Court. Appellee is Kadance N. Hutchins VanWey. The relevant
facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 9, 2017, Appellant filed a complaint charging Appellee with
one count of Assault in violation of R.C. §2903.13(A) and one count of Operating a Motor
Vehicle While Under the Influence of Alcohol or Drugs in violation of R.C.
§4511.19(A)(1)(a).
{¶3} On February 13, 2017, Appellee entered a plea of no contest to the charges
and was found guilty. She was sentenced to two ten-day jail sentences to be served
consecutively, ordered to pay $375 fine, pay court costs, complete a seventy-two-hour
Driver’s Intervention Program, attend counseling, and have no further criminal
convictions or first-degree misdemeanor traffic offenses for sixty-months. Appellee’s
license was suspended for 180 days.
{¶4} On March 13, 2018, Appellee filed a Motion to Seal Record.
{¶5} On April 18, 2018, Appellant filed an Objection to Appellee’s Motion to Seal
Record arguing that the final date of discharge had not yet occurred, that she is ineligible
to have the record sealed as her Operating a Motor Vehicle While Under the Influence
of Alcohol or Drugs is exempt from sealing.
{¶6} The trial court granted Appellee’s Motion.
{¶7} On July 9, 2018, Appellant filed an appeal to the April 18, 2018 arguing the
trial court inappropriately granted the motion.
Muskingum County, Case No. CT2023-0031 3
{¶8} On December 26, 2018, this Court found that the final date of discharge had
not yet occurred, and the trial court erred in granting Appellee’s Motion to Seal the
Record. State v. Hutchins, 5th Dist. Muskingum No. CT2018-0032, 2018-Ohio-5382, ¶30.
{¶9} On February 17, 2023, Appellee filed an Application to Seal a Criminal
Record pursuant to R.C. §2953.32 requesting the trial court seal the record of her
conviction for assault.
{¶10} On April 14, 2023, Appellant filed an Objection to Defendant’s Application
to Seal Criminal Record arguing that the assault is just one of two convictions in the
applicable case. The other conviction, Operating a Motor Vehicle While Under the
Influence of Alcohol or Drugs, is ineligible to be sealed. Therefore, the case records
cannot be sealed.
{¶11} The trial court granted Appellee’s Application to Seal a Criminal Record.
ASSIGNMENTS OF ERROR
{¶12} Appellant filed a timely notice of appeal and herein raises the following
Assignment of Error:
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY SEALING
KADANCE VANWEY’S ASSAULT CONVICTION IN CRB1700137(A) BECAUSE THAT
CASE NUMBER ALSO INCLUDED AN EXEMPT-FROM-SEALING CONVICTION FOR
AN OVI.”
I.
{¶14} In Appellant’s first Assignment of Error, Appellant argues the trial court erred
in granting Appellee’s Application to Seal a Record. We agree.
Muskingum County, Case No. CT2023-0031 4
{¶15} “An appellate court generally reviews a trial court’s disposition of an
application to seal a record of conviction under an abuse of discretion standard.” State
v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715, ¶6. An abuse of discretion
occurs where the trial court’s decision is arbitrary, unreasonable, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶16} However, an abuse-of-discretion standard is not appropriate when a lower
court’s judgment is based on an erroneous interpretation of the law. State v. Futrall, 123
Ohio St.3d 498,
2009-Ohio-5590,
918 N.E.2d 497, ¶6. A trial court’s interpretation of a
statute is a question of law that we review de novo. State Pariag,
137 Ohio St.3d 81,
2013-Ohio-4010,
998 N.E.2d 401, ¶9. Whether an applicant is considered an eligible
offender is an issue of law for a reviewing court to decide de novo. State v. D.D.G. 8th
Dist. Cuyahoga No. 108291,
2019-Ohio-4982,
136 N.E.3d 1271, ¶13, citing M.E. at ¶7.
{¶17} We will apply an abuse of discretion standard of review to the trial court’s
factual determinations related to Appellee’s Application to Seal a Record and a de novo
standard to issues involving statutory interpretation of the relevant sealing statutes.
{¶18} “While expungement is a state-created act of grace and ‘is a privilege, not
a right,’ M.E. at ¶7, quoting State v. Simon, 87 Ohio St.3d 531, 533,
721 N.E.2d 1041
(2000), a trial court may only grant expungement when an applicant meets all of the
statutory requirements. State v. Hamilton,
75 Ohio St.3d 636, 640,
665 N.E.2d 669
(1996).” M.E. at ¶7, quoting State v. Williamson, 10th Dist. Franklin No. 12AP-340, 2012-
Ohio-5384, ¶10.
{¶19} Further, “[s]tatutes providing for the sealing of records ‘are remedial and
are, therefore, to be construed liberally to promote their purpose and assist the parties
Muskingum County, Case No. CT2023-0031 5
in obtaining justice.’ ” State v. [C.L.H], 10th Dist. Franklin No. 18AP-495, 2019-Ohio-3786,
¶14, quoting State v. C.A. 10th Dist. Franklin No. 14AP738,
2015-Ohio-3437, ¶11, citing
State ex rel. Gains v. Rossi,
86 Ohio St.3d 620, 622,
716 N.E.2d 204 (1999), citing R.C.
1.11.
{¶20} At the time of Appellee’s Application to Seal a Record, R.C. §2953.33
governed the sealing of a record of conviction for ‘eligible offenders.’
{¶21} Pursuant to R.C. §2953.31, in effect at the time Appellee filed her motion to
seal:
(A)(1) “Eligible offender” means either of the following:
(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
Muskingum County, Case No. CT2023-0031 6
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. When two or three convictions result from the same indictment,
information, or complaint, from the same plea of guilty, or from the same
official proceeding, and result from related criminal acts that were
committed within a three-month period but do not result from the same act
or from offenses committed at the same time, they shall be counted as one
conviction, provided that a court may decide as provided in division (C)(1)(a)
of section 2953.32 of the Revised Code that it is not in the public interest
for the two or three convictions to be counted as one conviction.
{¶22} R.C. §2953.32, in effect at the time Appellee filed her motion to seal, in
pertinent part, states:
(A)(1) Except as provided in section 2953.61 of the Revised Code or
as otherwise provided in division (A)(1)(d) of this section, an eligible
offender may apply to the sentencing court if convicted in this state, or to a
court of common pleas if convicted in another state or in a federal court, for
the sealing of the record of the case that pertains to the conviction, except
for convictions listed under section 2953.36 of the Revised Code.
{¶23} R.C. §2953.36, in effect at the time Appellee filed her motion to seal, in
pertinent part, states:
Muskingum County, Case No. CT2023-0031 7
(A) Except as otherwise provided in division (B) of this section,
sections 2953.31 to 2953.35 of the Revised Code do not apply to any of the
following:
…
(2) Convictions under section 2907.02, 2907.03, 2907.05, 2907.06,
2907.321, 2907.322, or 2907.323, former section 2907.12, or Chapter 4506.,
4507., 4510., 4511., or 4549. of the Revised Code, or a conviction for a
violation of a municipal ordinance that is substantially similar to any section
contained in any of those chapters, except as otherwise provided in section
2954.61 of the Revised Code[.]
{¶24} Appellant herein argues that the trial court erred when it granted Appellee’s
Application for Sealing a Record of her criminal conviction because her conviction for
Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of
R.C. §4511.19(A)(1)(a) cannot be sealed, and Appellee’s conviction for Assault in
violation of R.C. §2903.13(A) is part of the same case.
{¶25} The Supreme Court of Ohio has held that “an applicant with multiple
convictions in one case may not partially seal his or her record pursuant to R.C. 2953.32
when one of the convictions is statutorily exempt from being sealed under R.C. 2953.36.”
Pariag, 137 Ohio St.3d 81,
2013-Ohio-4010,
998 N.E.2d 401, at ¶18, citing Futrall,
123
Ohio St.3d 498,
2009-Ohio-5590,
918 N.E.2d 497, at ¶21.
{¶26} In the case sub judice, the record before us shows Appellee was charged
and pled no contest to both Assault in violation of R.C. §2903.13(A) and Operating a
Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of R.C.
Muskingum County, Case No. CT2023-0031 8
§4511.19(A)(1)(a) as part of case 1700137. Appellee’s Operation of a Motor Vehicle
While Under the Influence of Alcohol or Drugs is excluded from sealing by R.C.
§2953.36(A)(2), which excepts Chapter 4511 convictions.
{¶27} During Appellee’s first attempt to seal the record with regard to her Assault
conviction, she started using case number 1700137(A) to separate the two convictions.
However, both the complaint and the Appellee’s plea show these as part of only one
case, 1700137. Appellee has failed to file a brief in support of her position that her
Assault conviction is eligible to be sealed. With no evidence before this Court that the
trial court can seal the record for assault without effecting the records for Appellee’s
conviction for Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs,
we find the trial court erred in granting Appellee’s Application to Seal a Record. We
therefore remand this matter back to the trial court.
{¶28} Appellant’s sole assignment of error is sustained.
{¶29} For the foregoing reasons, the judgment of the County Court of Muskingum
County, Ohio, is reversed and remanded for further proceedings consistent with the law
and this Opinion.
By: Wise, J.
Hoffman, P. J., and
JWW/br 0829
