State v. Christen , 2021 Ohio 1647 ( 2021 )

[Cite as State v. Christen, 2021-Ohio-1647.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200158
C-200159
Plaintiff-Appellee, : TRIAL NOS. 18TRC-59A
18TRC-59B
vs. :
KIMBERLY CHRISTEN, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 12, 2021
Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Suhre & Associates, LLC, and Joseph B. Suhre IV, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Kimberly Christen appeals the trial court’s denial of her application to
seal the records of her conviction for reckless operation and the dismissed charge of
operating a motor vehicle with a prohibited blood alcohol level (“OVI”), and a traffic-
light violation. Christen argues, in a single assignment of error, that the trial court
erred in concluding that R.C. 2953.61(B)(1) did not explicitly allow her reckless-
operation conviction to be sealed and in determining her dismissed OVI charge could
not be sealed. We agree. For the following reasons, we reverse the judgment of the
trial court and remand the matter to the trial court to seal the records of her
conviction and dismissed OVI charge.
Factual Background
{¶2} Kimberly Christen was charged with operating a motor vehicle while
impaired, operating a motor vehicle with a prohibited blood-alcohol level, and a
traffic light violation. Christen pled guilty to an amended charge of reckless
operation, a fourth-degree misdemeanor under Cincinnati Municipal Code 506-6,
and the remaining charges were dismissed. The municipal code section is
substantially similar to R.C. 4511.20, the state reckless-operation statute.
{¶3} Christen filed an application to seal the record of the conviction and
dismissed charges. The trial court determined that she was an eligible offender, but
the reckless-operation conviction could not be sealed under R.C. 2953.36(A)(2)
which states:
(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:
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OHIO FIRST DISTRICT COURT OF APPEALS
(2) Convictions under section 2907.02, 2907.03, 2907.04, 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 2953.61 of the Revised Code.
{¶4} The trial court also found that R.C. 2953.61 did not contain an
exception to R.C. 2953.36(A)(2) to allow the sealing of the reckless-operation
conviction. R.C. 2953.61(B)(1) provides, in relevant part:
(B)(1) When a person is charged with two or more offenses as a result
of or in connection with the same act and the final disposition of one,
and only one, of the charges is a conviction under any section of
Chapter 4507., 4510., 4511., or 4549., other than section 4511.19 or
4511.194 of the Revised Code, or under a municipal ordinance that is
substantially similar to any section other than section 4511.19 or
4511.194 of the Revised Code contained in any of those chapters, and if
the records pertaining to all the other charges would be eligible for
sealing under section 2953.52 of the Revised Code in the absence of
that conviction, the court may order that the records pertaining to all
the charges be sealed. In such a case, the court shall not order that
only a portion of the records be sealed.
{¶5} Although the trial court concluded that the conviction was ineligible
for sealing, the court determined that Christen’s interest in having the conviction
sealed outweighed the state’s need to maintain the records.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} After making this finding, the court analyzed whether her dismissed
charges were eligible to be sealed. The court determined that the dismissed traffic-
light violation could be sealed, but the dismissed OVI charge was ineligible.
Accordingly, the trial court sealed the records of the dismissed traffic-light violation.
Law and Analysis
{¶7} In her sole assignment of error, Christen argues that the trial court
erred in denying her application to seal her record. Because the error involves the
interpretation and application of statutes, we review the judgment de novo. State v.
Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 6.
{¶8} R.C. 2953.32(A)(1)(c) provides, in relevant part, that “(e)xcept as
provided in section 2953.61 of the Revised Code, an eligible offender may apply to
the sentencing court * * * for the sealing of the record of the case that pertains to the
conviction * * * [a]t the expiration of one year after the offender’s final discharge if
convicted of a misdemeanor.” In this case, the trial court found that Christen was an
“eligible offender” under R.C. 2953.31, and the parties do not challenge that finding.
{¶9} R.C. 2953.36 precludes the sealing of records of certain offenses.
Under 2953.36(A)(2), convictions under R.C. Chapter 4511, or a substantially similar
municipal ordinance, are ineligible to be sealed “except as otherwise provided in
section 2953.61 of the Revised Code.” The language of the statute creates an
exception to this general prohibition for applications governed by R.C. 2953.61.
{¶10} Because Christen sought to seal both a conviction and nonconvictions,
R.C. 2953.61, which governs the sealing of records containing multiple offenses with
different dispositions, applies. R.C. 2953.61(B)(1) provides:
When a person is charged with two or more offenses as a result of or in
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OHIO FIRST DISTRICT COURT OF APPEALS
connection with the same act and the final disposition of one, and only
one, of the charges is a conviction under any section of Chapter 4507.,
4510., 4511., or 4549., other than section 4511.19 or 4511.194 of the
Revised Code, or under a municipal ordinance that is substantially
similar to any section other than section 4511.19 or 4511.194 of the
Revised Code contained in any of those chapters, and if the records
pertaining to all the other charges would be eligible for sealing under
section 2953.52 of the Revised Code in the absence of that conviction,
the court may order that the records pertaining to all the charges be
sealed. In such a case, the court shall not order that only a portion of
the records be sealed.
{¶11} Here, both parties concede that Christen was charged with multiple
offenses as a result of the same act and that the disposition of one charge was a
conviction of a municipal ordinance that was substantially similar to a conviction
under R.C. Chapter 4511.
{¶12} However, Christen contends that the trial court erred in concluding
that the dismissed OVI charge was ineligible for sealing. She further argues that the
reckless-operation conviction was eligible for sealing because R.C. 2953.61(B)(1)
creates an exception for a conviction under a municipal ordinance that is
substantially similar to a conviction under R.C. Chapter 4511 and allows the court to
seal all of the charges.
{¶13} Notably, the city concedes in its brief that the trial court erred in
concluding that the dismissed OVI charge was ineligible for sealing because R.C.
2953.61(B)(1) precludes the sealing of OVI convictions, but not dismissed OVI
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OHIO FIRST DISTRICT COURT OF APPEALS
charges.
{¶14} However, the city argues that the reckless-operation conviction is
ineligible to be sealed because the exception in R.C. 2953.61(B)(1) only allows the
trial court to seal nonconvictions that occurred in connection with a single conviction
under R.C. Chapter 4511. Essentially, the city interprets the statute to allow the
dismissed charges to be sealed while prohibiting the reckless-operation conviction
from being sealed. The city’s argument disregards the statutory mandate that “the
court shall not order that only a portion of the records be sealed” and the language
that states “if the records pertaining to all the other charges would be eligible for
sealing under section 2953.52 of the Revised Code in the absence of that conviction,
the court may order that the records pertaining to all the charges be sealed.”
{¶15} Applying the plain language of the statute, if the sole conviction is
under any section of R.C. Chapter 4507., 4510., 4511., or 4549 or a substantially
similar municipal ordinance, the trial court has the discretion to “order that the
records pertaining to all the charges be sealed” provided that the records pertaining
to the dismissed charges would be eligible for sealing under R.C. 2953.52. R.C.
2953.61(B)(1).
{¶16} In this case, as the state correctly admits, the dismissed charges are
eligible to be sealed under R.C. 2953.52, and we conclude that the trial court erred in
determining the dismissed OVI was ineligible for sealing. See State v. Pankey, 1st
Dist. Hamilton Nos. C-110547 and C-110548, 2012-Ohio-936, ¶ 10-11. Because the
sole conviction is substantially similar to a conviction under R.C. Chapter 4511, the
trial court had the discretion to seal all of the records. Therefore, the trial court
erroneously concluded that the reckless-operation conviction was ineligible to be
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OHIO FIRST DISTRICT COURT OF APPEALS
sealed.
{¶17} Accordingly, we sustain the assignment of error. Ordinarily, we would
remand the matter to the trial court to make the factual findings and balance the
interests required by R.C. 2953.32(C). See id. at ¶ 12. Here, the trial court already
made the findings that she was an eligible offender, no criminal proceedings were
pending, and that her interests in having the record sealed outweighed the state’s
needs to maintain the records. Therefore, we remand the cause for the trial court to
seal the records pertaining to all of the charges.
Conclusion
{¶18} Having sustained Christen’s sole assignment of error, we reverse the
judgment of the trial court and remand the cause to the trial court to order the
records sealed.
Judgment reversed and cause remanded.
BERGERON and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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