[Cite as State v. Kiptanui,
2024-Ohio-4706.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 30051
:
v. : Trial Court Case No. 12CRB1024
:
JAMES T. KIPTANUI : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on September 27, 2024
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JAMES T. KIPTANUI, Pro Se Appellant
STEPHANIE L. COOK, Attorney for Appellee
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TUCKER, J.
{¶ 1} James T. Kiptanui appeals from the trial court’s January 23, 2024 order
denying an application to seal misdemeanor convictions for violating a protection order
and criminal trespass.
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{¶ 2} Kiptanui contends the trial court erred in denying his application without a
hearing and without providing any reasoning. He maintains that he was an eligible
offender and that his misdemeanor offenses were eligible for sealing.
{¶ 3} We conclude that R.C. 2953.32 to R.C. 2953.34, which provide for the
sealing and expungement of criminal records, did not apply to Kiptanui’s conviction for
violating a protection order. Therefore, the trial court did not err in refusing to seal the
record of that conviction. With regard to the criminal-trespass offense, the trial court never
imposed a sentence after making a finding of guilt. That being so, there was no record of
conviction to seal. In addition, the existence of the protection-order conviction precluded
sealing of the criminal-trespass offense. Accordingly, the trial court’s judgment will be
affirmed.
I. Background
{¶ 4} Following a 2014 bench trial, Kiptanui was found guilty of violating a
protection order in contravention of R.C. 2919.27 and criminal trespass in violation of R.C.
2911.21. The trial court imposed a 180-day jail sentence for the protection-order violation.
Its judgment entry neglected to impose a sentence for criminal trespass.
{¶ 5} In July 2020, Kiptanui filed an R.C. 2953.32 application for sealing of his
criminal record. The trial court denied the application in March 2021. Kiptanui filed a
second application in November 2023. He requested a hearing and sought to participate
via Zoom as he was being detained by the U.S. Immigration and Customs Enforcement
agency. A summary of the trial court’s docket indicates that a hearing occurred. The trial
court’s docket entries, however, contain no indication of a hearing or Kiptanui’s
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participation in one. In any event, the trial court denied his application on January 23,
2024. In its entry, the trial court check-marked a box finding that Kiptanui’s two offenses
were ineligible to be sealed. A line for the trial court to explain why they were ineligible
was left blank.
II. Analysis
{¶ 6} Although Kiptanui’s pro se brief lacks a traditional assignment of error, he
challenges the trial court’s finding that his convictions were ineligible for sealing. He
argues that he was eligible to have his offenses sealed and that they qualified for sealing.
He also asserts that the trial court erred in failing to provide reasoning and to hold a
hearing.
{¶ 7} Upon review, we find Kiptanui’s arguments to be unpersuasive. He filed his
application for sealing on November 6, 2023. The applicable version of the sealing
statutes was the one in effect on that date. State v. LaSalle, 2002-Ohio-4009, ¶ 19. On
appeal, Kiptanui cites an earlier version of R.C. 2953.32, which differed in some ways
from the current version of that statute. The current version, which was in effect when he
filed his most recent application, provides that Ohio’s sealing and expungement statutes,
R.C. 2953.32 to R.C. 2953.34, “do not apply” to specified convictions. They include his
conviction under R.C. 2919.27 for violating a protection order. See R.C. 2953.32(A)(1)(f).
{¶ 8} Given that R.C. 2953.32(A) excludes Kiptanui’s protection-order conviction
from the entire sealing process, nothing in the remainder of R.C. 2953.32 applies to that
conviction—including an offender’s right under R.C. 2953.32(B)(1) to apply for sealing of
a conviction and a trial court’s obligation under R.C. 2953.32(C) to hold a hearing on an
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application. If R.C. 2953.32(A) did not make this clear enough, R.C. 2953.32(B)(1) also
limits the right it grants an offender to seek sealing. It authorizes an offender to apply for
sealing of a criminal record “except for convictions listed in division (A)(1) of this section.”
As noted above, Kiptanui’s protection-order conviction is listed in R.C. 2953.32(A)(1).
Therefore, under R.C. 2953.32(A) the entire sealing process did not apply to that
conviction, and under R.C. 2953.32(B)(1) he had no right to file an application to have it
sealed. It logically follows that the trial court had no obligation to hold a hearing on
Kiptanui’s unauthorized application for sealing of his ineligible protection-order conviction.
{¶ 9} We recognize that the Eighth District Court of Appeals recently reached a
contrary conclusion in State v. K.L., 2024-Ohio-1777 (8th Dist.). In that case, the Eighth
District cited R.C. 2953.32(A) and acknowledged that “the entire statute” did not apply to
the defendant’s conviction for assaulting a peace officer. Id. at ¶ 12. The Eighth District
also cited R.C. 2953.32(B)(1) and recognized that an offender had no right to file an
application for the sealing of such a conviction. Id. at ¶ 8.
{¶ 10} Despite acknowledging that the entire sealing process did not apply and
that the defendant had no right to seek the sealing of his conviction, the Eighth District
nevertheless found a hearing on the defendant’s application necessary. In support, the
appellate court cited R.C. 2953.32(C), which provides that “upon the filing of an
application under this section” a trial court shall schedule and hold a hearing. The Eighth
District observed too that one of a trial court’s obligations at such a hearing is to
“[d]etermine whether the applicant is pursuing sealing or expunging a conviction of an
offense that is prohibited under division (A) of this section[.]” Id. at ¶ 13, citing R.C.
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2953.32(D).
{¶ 11} In finding a hearing necessary on the defendant’s application for sealing of
his conviction for assaulting a peace officer, the Eighth District reasoned:
In concluding that a hearing is required on K.L.’s application, we
recognize that the April 2023 version of R.C. 2953.32 is internally
inconsistent. Subsection (A) unambiguously states that the statute “does
not apply” to certain offenses. However, subsections (C) and (D) require a
hearing to assess, among other things, whether the defendant is seeking to
seal a conviction for an offense to which the statute explicitly does not apply.
See R.C. 2953.32(A).
Id. at ¶ 15.
{¶ 12} While we agree that R.C. 2953.32 is worded peculiarly, we respectfully
disagree with the Eighth District’s analysis. As set forth above, R.C. 2953.32(A) rendered
the sealing and expungement statutes wholly inapplicable to Kiptanui’s protection-order
conviction. In addition, R.C. 2953.32(B)(1) denied him the right to file an application for
sealing of that conviction. Under these circumstances, R.C. 2953.32(C)’s requirement for
a hearing “upon the filing of an application under this section” did not apply to him for two
reasons. First, R.C. 2953.32(C) itself did not apply to Kiptanui’s protection-order
conviction (see R.C. 2953.32(A)). Second, Kiptanui could not have filed an application
“under” R.C. 2953.32(C) because R.C. 2953.32(B)(1) precluded him from doing so.
{¶ 13} Given that Kiptanui had no right to an R.C. 2953.32(C) hearing on his
unauthorized application, the trial court had no duty to make any findings. With regard to
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the Eighth District’s recognition that R.C. 2953.32(D) obligates a trial court conducting a
hearing under R.C. 2953.32(C) to “determine whether” an offender is seeking to seal an
ineligible conviction, we read the obligation as a safeguard to ensure that such convictions
are not accidentally sealed. We do not read it as implicitly granting Kiptanui a right to a
hearing in direct contravention of everything that precedes R.C. 2953.32(C).
{¶ 14} In opposition to our analysis, Kiptanui points out that we previously have
found a hearing required when a defendant applies to seal his criminal record. He cites
Dayton v. P.D., 2002-Ohio-5589 (2d Dist.). Without conducting a hearing, the trial court
in D.P. denied the defendant’s application to seal an assault conviction on the grounds
that it was ineligible to be sealed. This court reversed and remanded for a hearing. We
noted that eligibility turned on whether the victim was a minor, and the record lacked
evidence of the victim’s age. Therefore, a hearing was necessary. Id. at ¶ 6, 8. Kiptanui’s
case is distinguishable. Under R.C. 2953.32(A), a conviction for violating R.C. 2919.27 is
ineligible for sealing. On its face, the judgment entry of conviction established that
Kiptauni had been convicted of violating R.C. 2919.27. Unlike P.D., determining whether
the protection-order conviction may be sealed did not require evidence outside the record.
Nowhere in his application for sealing did Kiptanui dispute whether he actually had a
conviction for violating a protection order.
{¶ 15} This court also has found a hearing required in other record-sealing cases.
In State v. Hutchen, 2010-Ohio-6103 (2d Dist.), we reversed and remanded for a hearing
on the defendant’s application to seal a decades-old conviction for carrying a concealed
weapon. The trial court denied the application without a hearing on the basis that the
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defendant was ineligible for sealing. The defendant argued on appeal, however, that he
was eligible as a “first and only” offender. We cited P.D. and found the defendant entitled
to a hearing to resolve the issue. Id. at ¶ 9. Once again, Kiptanui’s case is unlike P.D. or
Hutchen. He does not allege the existence of a factual dispute regarding whether he has
a conviction for violating R.C. 2919.27.
{¶ 16} In State v. D.L., 2015-Ohio-1664 (2d Dist.), we found a hearing required
where the trial court incorrectly found the defendant statutorily ineligible for sealing based
on the nature of his misdemeanor assault conviction. Under the applicable statute, the
defendant’s conviction actually was excluded from offenses that were ineligible for
sealing. We also found a hearing required because the record lacked incontrovertible
evidence that the defendant had additional convictions that precluded sealing of the
assault conviction. The only evidence of additional convictions was found in a pretrial-
services report, and we determined that the defendant had a right to challenge the report
at a hearing. We distinguished State v. Clark,
2011-Ohio-6354 (4th Dist.), in which the
Fourth District found no hearing necessary where the petitioner conceded the existence
of a prior conviction and there were no factual questions related to his first-offender status.
In our view, Kiptanui’s case more closely resembles Clark than D.L. The record before us
contains a judgment entry of conviction for violating R.C. 2919.27, which on its face
rendered him ineligible for sealing. There are no factual disputes about the conviction.
{¶ 17} In State v. L.L., 2017-Ohio-5489 (2d Dist.), we found a hearing required on
the defendant’s application to seal a conviction for theft of drugs. The trial court had
denied the application without a hearing, but it is unclear whether it did so based on a
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finding of statutory ineligibility for sealing or based on a finding that sealing simply was
unwarranted. In reaching our conclusion, however, we cited Hutchen and D.L., which we
have addressed above.
{¶ 18} In State v. Webb, 2010-Ohio-5743 (2d Dist.), we affirmed the trial court’s
denial of a defendant’s application to seal an arson conviction without a hearing. As in the
present case, the trial court found the defendant statutorily ineligible to have the
conviction sealed. In affirming the trial court, we reasoned that whether the defendant’s
undisputed conviction was eligible for sealing presented a pure question of law and,
therefore, “no hearing [was] necessary to resolve that question.” Id. at ¶ 9. We reach the
same conclusion in Kiptanui’s case. Whether his undisputed conviction for violating R.C.
2919.27 was eligible for sealing was a legal question that did not require the presentation
of evidence. Moreover, based on our analysis of the current version of R.C. 2953.32
above, we do not believe the statute compelled the trial court to hold a hearing.
Accordingly, we conclude that the trial court did not err in denying Kiptanui’s application
to seal his protection-order conviction without a hearing.
{¶ 19} We turn next to Kiptanui’s criminal-trespass offense. As noted above, the
trial court’s docket is devoid of any sentence being imposed for that offense. The trial
court’s March 14, 2012 judgment entry made a finding of guilt, but the sentencing portion
of the form is blank. A “conviction” typically requires both a finding of guilt and a sentence.
State v. Henderson, 58 Ohio St.2d 171, 179 (1979); State v. Maye,
129 Ohio App.3d 165,
169 (10th Dist. 1998); Crim.R. 32(C). Here, the sealing statute plainly contemplates an
application for sealing being filed after sentencing. It provides that an offender “may apply
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to the sentencing court if convicted in this state[.]” R.C. 2953.32(B)(1). It also authorizes
an application for sealing to be filed after an offender’s “final discharge.” Id. There is no
final discharge until after a sentence is imposed and completed. State v. Weirauch, 2018-
Ohio-5001, ¶ 18 (2d Dist.), quoting State v. Aguirre,
2014-Ohio-4603, ¶ 28. Given that the
trial court never imposed a sentence for criminal trespass, the sealing statute currently
has no applicability.
{¶ 20} Finally, even if Kiptanui had completed a sentence for criminal trespass, the
conviction would be ineligible for sealing. The trial court’s inability to seal his protection-
order conviction would preclude sealing the criminal trespass. A defendant’s criminal
record in a case cannot be partially sealed. In other words, no sealing is permitted where
at least one offense statutorily is ineligible. See, e.g., State v. Futrall, 2009-Ohio-5590,
¶ 19-20; State v. Pariag,
2013-Ohio-4010, ¶ 18; State v. Hetrick,
2022-Ohio-1993, ¶ 8,
13. Accordingly, the trial court properly denied Kiptanui’s application as to the criminal-
trespass offense.
III. Conclusion
{¶ 21} The judgment of the Dayton Municipal Court, Criminal Division, is affirmed.
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EPLEY, P.J. and HUFFMAN, J., concur.
