State v. Lively , 2022 Ohio 462 ( 2022 )

[Cite as State v. Lively, 2022-Ohio-462.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DAVID LIVELY, : Case No. 21 CAA 09 0046
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
82 CR I 09 0111
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 16, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL MICHAEL A. MARROCCO
Delaware County Prosecuting Attorney Saia & Piatt, Inc.
98 North Union Street
By: LAURA K. DELGADO Delaware, Ohio 43015
Assistant Prosecuting Attorney
Delaware County Prosecutor’s Office
145 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 21 CAA 09 0046 2
Baldwin, J.
{¶1} Defendant-appellant David Lively appeals from the August 24, 2021
Judgment Entry denying his Motion to Expunge and Seal Record. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 22, 1982, the Delaware County Grand Jury indicted
appellant on one count of grand theft (a motorcycle) in violation of R.C. 2913.02, then a
felony of the third degree. Appellant, on February 10, 1983, entered a plea of guilty to
grand theft. On March 15, 1983, appellant was sentenced to a term of incarceration of no
less than one year and no more than ten years on the offense of grand theft.
{¶3} Appellant, on June 30, 2021, filed a Motion to Expunge and Seal Record.
The trial court, pursuant to a Judgment Entry filed on August 24, 2021, denied the same.
{¶4} Appellant now appeals, raising the following assignment of error on appeal:
{¶5} “I. THE COURT ERRED IN FINDING APPELLANT STATUTORILY
INELIGIBLE FOR THE SEALING OF HIS RECORDS PER OHIO CODE [SECTION]
2953.31.”
I
{¶6} Appellant, in his sole assignment of error, argues that the trial court erred in
denying his Motion to Expunge and Seal Record. We disagree.
{¶7} The issue in this case is whether or not the trial court erred in finding that
appellant was statutorily ineligible for the sealing of this record under R.C.
2953.32(A)(1)(a).
Delaware County, Case No. 21 CAA 09 0046 3
{¶8} A person convicted of a crime has no substantive right to have the record
of that conviction sealed. State v. V.M.D., 148 Ohio St.3d 450, 71 N.E.3d 274, 2016-Ohio-
8090, ¶ 13. The sealing of the record of a conviction “is an act of grace created by the
state.” State v. Hamilton, 75 Ohio St.3d 636, 639. 1996-Ohio-440, 665 N.E.2d 669.
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, 918 N.E.2d 497, 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.
{¶9} R.C. 2953.32(A)(1) sets forth the procedure for applying for expungement
proceedings: Such section provides, in relevant part, as follows:
{¶10} (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...
{¶11} R.C. 2953.31 defines an “eligible offender”, in part, as follows:
{¶12} (A)(1) “Eligible offender” means either of the following:
{¶13} (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
Delaware County, Case No. 21 CAA 09 0046 4
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.
{¶14} There is no dispute that appellant was convicted of a felony of the third
degree and, therefore, not an eligible offender as defined by R.C. 2953.31(A)(1)(a).
However, appellant argues that, in 1996, Senate Bill No.2 revised the felony sentencing
laws and that under the revisions, his charge of theft of a motor vehicle now fails under
theft (of a motor vehicle) under R.C. 2913.02(A)(5) which would be classified as a felony
of the fourth degree making him eligible.
{¶15} The question thus becomes if the third degree felony for which appellant
was convicted becomes a fourth degree felony retroactively.
{¶16} In State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634, 1998-Ohio-423, the
Ohio Supreme Court made clear that the sentencing provisions of Senate Bill 2 only
applied to crimes committed on or after July 1, 1996, the effective date of S.B. 2, and are
not to be applied retroactively. Id. at para. 2 of syllabus. See, also, State v. Warren, 118
Ohio St.3d 200, 887 N.E.2d 1145, 2008-Ohio-2011 (extensive revisions to criminal
statutes that were enacted in Senate Bill 2, effective July 1, 1996, apply only to crimes
committed on or after July 1, 1996).
{¶17} Senate Bill 2, therefore, did not apply to appellant’s crime because it did not
apply retroactively.
{¶18} Based on the forgoing, we find that the trial court did not err in denying
appellant’s Motion to Expunge and Seal Record.
{¶19} Appellant’s sole assignment of error, is, therefore, overruled.
Delaware County, Case No. 21 CAA 09 0046 5
{¶20} Accordingly, the judgment of the Delaware County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Gwin, J. concur.