State v. Inscho , 2019 Ohio 809 ( 2019 )

[Cite as State v. Inscho, 2019-Ohio-809.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-27
:
v. : Trial Court Case No. 95-CRB-802-1-1
:
FREDERICK R. INSCHO, JR. : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of March, 2019.
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RONALD LEWIS, Atty. Reg. No. 0061980, Prosecuting Attorney, Xenia Municipal Court,
101 North Detroit Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JAMES P. FLEISHER, Atty. Reg. No. 0059509, 6 North Main Street, 400 National City
Center, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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TUCKER, J.
{¶ 1} Defendant-appellant Frederick Inscho, Jr. appeals from the judgment of the
Xenia Municipal Court denying his application for the sealing of the record regarding his
1995 domestic violence conviction. He contends that the court erred by denying the
request. Alternatively, he contends that the judgment of conviction is void and, thus,
must be vacated.
{¶ 2} We conclude that the applicable statutes prohibit the sealing of the record.
We further conclude that the prior conviction is not void. Accordingly, the judgment of
the trial court is affirmed.
I. Course of the Proceedings
{¶ 3} In 1995, after discovering that his wife was involved in an extramarital affair,
Inscho hit her with his vehicle. Inscho was charged with domestic violence in violation
of R.C. 2929.25. He appeared before the Xenia Municipal Court and entered a plea of
no contest. He was sentenced to a jail term of 60 days, with 30 days suspended. He
was also fined $250 and ordered to engage in counseling. Inscho served his sentence,
paid his fine and complied with the requirement regarding counseling.
{¶ 4} In February 2018, Inscho filed an Application for Expungement and Sealing
of Record of Arrest in the Xenia Municipal Court. A confidential report was prepared by
the probation department which recommended that the application be granted. The
State did not file an objection.
{¶ 5} A hearing on the application was conducted on June 19, 2018. At that time,
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the municipal court noted that the original case file had been destroyed.1 The municipal
court attempted to obtain the file of the arresting agency, but that file had also been
destroyed. The municipal court was unable to locate any notes retained by the court
reporter. However, the municipal court was able to obtain information about the prior
conviction from both the Ohio Law Enforcement Gateway Program (OHLEG) and the
Ohio Courts Network (OCN); it also obtained a computer printout of the case docket
sheet.
{¶ 6} The docket, as well as the documents generated by OHLEG and OCN,
indicated that Inscho was convicted of domestic violence in violation of R.C. 2929.25.
None of the documents contained a reference to any particular subsection of that statute.
Both the OHLEG and OCN documents referred to the offense as a minor misdemeanor;
the docket sheet did not cite the degree of the offense.
{¶ 7} In reaching its decision regarding the degree of the offense, the municipal
court stated:
Per Baldwin’s ORC, the only options at that time [1995] would have
been for defendant to have been charged with a first degree or a fourth
degree misdemeanor. While the law in effect at the time allowed for a third
degree misdemeanor for a domestic violence by threats (M4) if there was a
prior enhancing offense, a review of the report prepared regarding
defendant’s application to seal demonstrates defendant had no prior
1
The original criminal case and the application to seal the record were both heard by the
Xenia Municipal Court. Therefore, for ease of reference and in order to differentiate
between the 1995 and 2018 actions, we will refer to the court as “the sentencing court”
with regard to the actions taken in 1995, and as the “municipal court” with regard to the
2018 case.
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enhancers to elevate a DV-4 to a DV-3 in May of 1995. The only available
charges for this defendant at that time were either a Domestic Violence as
a first degree misdemeanor or as a fourth degree misdemeanor.
The docket sheet further reveals that on May 24, 1995, defendant
plead “no contest” and was found “guilty” of “Domestic Violence.”
Defendant was assessed a fine of $250.00, sentenced to 60 days in jail
(with 30 suspended), and was ordered to engage in counseling through the
Community Network.
Under oath during the hearing on Mr. Inscho’s application to seal,
applicant/defendant stated, “So what I don’t remember is if he said he was
definitely dropping the charge to a lower misdemeanor, something to that
effect but he said I’m giving you this opportunity, I’m going to do whatever
it was he said he was going to do, I seem to remember something about
M3. I – M3, being in my - - it sticks in the back of my mind. I don’t know
why. Like I said, it’s been twenty-three years. It’s hard to say for sure, but
I do seem to remember something about that, he was going to drop it to a
lower misdemeanor for me…”
The court questions whether the court in 1995 had a discussion with
applicant/defendant about an M3 since that was not an option since Mr.
Inscho had no prior offense to elevate an M4 to an M3. Additionally, the
docket sheet has a place to note any amended charge. The amended
charge line on the docket sheet is blank.
The court notes that a 60-day jail sentence is not permissible for a
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fourth degree misdemeanor. In this matter there is no evidence of any prior
enhancer offense to elevate an M4 to an M3. The only conclusion the court
can reach, therefore, is that defendant, on May 24, 1995, was convicted in
this court of “Domestic Violence,” a misdemeanor of the first degree. The
court finds that the listing of the conviction at issue herein with OHLEG and
Ohio Courts Network as a minor misdemeanor is the result of a clerical
error. By law, the offense for which defendant was convicted herein,
“Domestic Violence,” as a first degree misdemeanor, cannot be sealed.
Dkt. No. 9.
{¶ 8} The municipal court denied the application. Inscho appeals.
II. Analysis
{¶ 9} Inscho asserts the following as his sole assignment of error:
THE TRIAL COURT ERRED BY DENYING APPELLANT-DEFENDANT
FREDERICK R. INSCHO, JR.’S APPLICATION TO EXPUNGE HIS
DOMESTIC VIOLENCE CONVICTION BECAUSE THE TRIAL COURT
LACKED ANY AUTHORITY TO CONVICT HIM OF MINOR
MISDEMEANOR DOMESTIC VIOLENCE CONTRARY TO THE
APPLICABLE STATUTE; THE JUDGMENT WAS THUS VOID AS A
MATTER OF LAW.
{¶ 10} Inscho contends that the municipal court erred by denying his application to
seal his criminal record. Alternatively, he contends that he was convicted of an offense
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not cognizable under the law thereby rendering his conviction void.
{¶ 11} The purpose of expungement, or sealing a record of conviction, is to
recognize that people may be rehabilitated. State v. Petrou, 13 Ohio App. 3d 456, 469
N.E.2d 974 (9th Dist.1984). Expungement or sealing of a criminal record is an “act of
grace created by the state.” State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010, 998
N.E.2d 401, ¶ 12, quoting State v. Hamilton, 75 Ohio St. 3d 636, 639, 665 N.E.2d 669
(1996). It should be granted only when all requirements for eligibility are met, because
it is a “privilege, not a right.” State v. Futrall, 123 Ohio St. 3d 498, 2009-Ohio-5590, 918
N.E.2d 497, ¶ 6. R.C. 2953.31 et seq. set forth the circumstances in which a trial court
may grant a request to seal a record of conviction.
{¶ 12} Generally, an appellate court reviews a trial court's decision regarding a
motion to expunge and seal the record under an abuse of discretion standard. State v.
Pierce, 10th Dist. Franklin No. 06AP-931, 2007-Ohio-1708, ¶ 5. The term abuse of
discretion is used to indicate that the trial court's attitude was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983). However, where the dispute as to the sealing of a record involves purely a legal
question, our standard of review is de novo. Futrall at ¶ 6-7.
{¶ 13} R.C. 2953.32 permits an eligible offender to apply to the sentencing court
for the sealing of a record of conviction. There is no dispute that Inscho was an eligible
offender as defined by the prior version of R.C. 2953.31.2 However, regardless of an
2
R.C. 2953.31 has been amended since the entry of the trial court’s denial of the
application. 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. A.S., 8th Dist. Cuyahoga
No. 100358, 2014-Ohio-2187, ¶ 10, citing State v. LaSalle, 96 Ohio St. 3d 178, 2002-Ohio-
4009, 772 N.E.2d 1172, paragraph two of the syllabus.
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applicant’s eligibility, R.C. 2953.36(A)(3) precludes the sealing of any conviction for an
offense of violence that is a felony or a first degree misdemeanor.
{¶ 14} As noted, Inscho was convicted of domestic violence, which is classified as
an offense of violence. R.C. 2901.01(A)(9)(a). Inscho contends that, because the
documents regarding his conviction indicate he was convicted of a minor misdemeanor,
his record may be sealed. The municipal court, however, determined that, based upon
the language used in the domestic violence statute in effect at the time of the conviction,
Inscho was convicted of a first degree misdemeanor.
{¶ 15} The version of R.C. 2919.25 in effect at the time of Inscho’s offense
provided in pertinent part as follows:
(A) No person shall knowingly cause or attempt to cause physical harm to a
family or household member.
(B) No person shall recklessly cause serious physical harm to a family or
household member.
(C) No person, by threat of force, shall knowingly cause a family or
household member to believe that the offender will cause imminent
physical harm to the family or household member.
(D) Whoever violates this section is guilty of domestic violence. A violation
of division (C) of this section is a misdemeanor of the fourth degree. A
violation of division (A) or (B) of this section is a misdemeanor of the first
degree. If the offender previously has been convicted of domestic
violence * * * a violation of division (A) or (B) of this section is a felony of
the fourth degree and a violation of division (C) of this section is a
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misdemeanor of the third degree.
{¶ 16} The applicable version of R.C. 2929.21, which governs penalties for
misdemeanor offenses, provided:
(A) Except as provided in section 2929.23 of the Revised Code, whoever is
convicted of or pleads guilty to a misdemeanor other than a minor
misdemeanor shall be imprisoned for a definite term or fined, or both, which
term of imprisonment and fine shall be fixed by the court as provided in this
section. * * *
(B) Terms of imprisonment for misdemeanor shall be imposed as follows:
(1) For a misdemeanor of the first degree, not more than six months;
(2) For a misdemeanor of the second degree, not more than ninety days;
(3) For a misdemeanor of the third degree, not more than sixty days;
(4) For a misdemeanor of the fourth degree, not more than thirty days.
(C) Fines for misdemeanor shall be imposed as follows:
(1) For a misdemeanor of the first degree, not more than one thousand
dollars;
(2) For a misdemeanor of the second degree, not more than seven hundred
fifty dollars;
(3) For a misdemeanor of the third degree, not more than five hundred
dollars;
(4) For a misdemeanor of the fourth degree, not more than two hundred fifty
dollars.
(D) Whoever is convicted of or pleads guilty to a minor misdemeanor shall
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be fined not more than one hundred dollars.
{¶ 17} A plain reading of the domestic violence statute confirms that there was no
option for convicting Inscho of a minor misdemeanor or a second degree misdemeanor.
Further, under the terms of the statute, Inscho could only be found guilty of a third degree
misdemeanor if he had a prior domestic violence conviction. There is no dispute that he
had no such prior conviction. Thus, as determined by the municipal court, the only
offenses available to the sentencing court were first and fourth degree misdemeanors.
We note that the fourth degree misdemeanor offense classification was reserved for
domestic violence resulting from the threat of force. Inscho admitted that he hit his
former wife with his vehicle, an action that does not fit into the threat of force category.
Additionally, Inscho was sentenced to a jail term of 60 days, which is higher than would
have been permitted for a fourth degree misdemeanor under the terms of R.C.
2929.21(B).3 Therefore, based upon these findings, we cannot say that the trial court
abused its discretion or erred as a matter of law in concluding that Inscho was convicted
of a first degree misdemeanor, which precluded the sealing of his record.
{¶ 18} We next address Inscho’s claim that his conviction for domestic violence is
void. He bases this claim upon the argument that the OHLEG and OCN documents
showed he was convicted of a minor misdemeanor, an offense which was not cognizable
under the law in 1995. Inscho disputes the municipal court’s finding that the minor
misdemeanor designation on the OHLEG and OCN documents was merely a clerical
3
Inscho argues that the 60-day sentence indicates that he was sentenced for a third
degree misdemeanor. However, under the sentencing statute, the sentence imposed
was also a permissible sentence for a first degree misdemeanor and, as stated above,
the absence of a prior conviction undercuts the assertion that he was convicted of a third
degree misdemeanor.
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error. He argues that, even assuming that OHLEG and OCN documents “erroneously
listed the degree of conviction as a ‘minor misdemeanor’ instead of ‘first degree
misdemeanor’ as the Municipal Court concluded, the [sentencing] court never corrected
this alleged error and the terms of its journal control.” He further argues that, if the
designation was merely a clerical mistake, it cannot now be corrected, as doing so would
elevate the degree of the convicted offense.
{¶ 19} We note that Inscho did not raise this claim before the trial court. However,
under Ohio law, “a sentence that is not in accordance with statutorily mandated terms is
void.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 233, ¶ 8. A
void sentence “is not precluded from appellate review by principles of res judicata, and
may be reviewed at any time, on direct appeal or by collateral attack.” Id. at paragraph
one of the syllabus.
{¶ 20} A court speaks only through its journal entries. State v. Ellington, 36 Ohio
App.3d 76, 77-78, 521 N.E.2d 504 (9th Dist.1987). “To journalize a decision means that
certain formal requirements have been met, i.e., the decision is reduced to writing, signed
by a judge, and filed with the clerk so that it may become a part of the permanent record
of the court.” Id. at 78. “Dockets and journals are distinct records kept by clerks. See
R.C. 2303.12.” State ex rel. Caldwell v. Gallagher, 8th Dist. Cuyahoga No. 98317, 2010-
Ohio-4608, ¶ 6, quoting State ex rel. White v. Junkin, 80 Ohio St. 3d 335, 337, 686 N.E.2d
267 (1997). “It is the journal entries that are signed by the judge, not the docket entries,
that control.” (Internal citation omitted.) Id., quoting Cleveland v. Gholston, 8th Dist.
Cuyahoga No. 96592, 2011-Ohio-6164, ¶ 20, fn. 1. In other words, the content of the
court’s journal entry, rather than the reference to that entry set forth on the docket, is what
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“reflects the complete substance of the court's judgment.” Id. at ¶ 7. Computerized
docketing systems are not the court’s official journal. Cleveland v. Jovanic, 153 Ohio
App.3d 37, 2003-Ohio-2875. 790 N.E.2d 824, ¶ 8 (8th Dist.).
{¶ 21} Thus, regardless of what the docket or the OHLEG and OCN documents
state, they are not the sentencing court’s journal. Further, in the absence of affirmative
evidence to the contrary, we are constrained by the presumption of regularity and must
conclude, from the limited record, that the trial court did not find Inscho guilty of a minor
misdemeanor, an offense that did not exist at the time of his conviction. State v. Like,
2d Dist. Montgomery No. 21991, 2008-Ohio-1873, ¶ 33; State v. Patton, 2016-Ohio-4867,
68 N.E.3d 273, ¶ 12 (8th Dist.), citing State v. Raber, 134 Ohio St. 3d 350, 2012-Ohio-
5636, 982 N.E.2d 684, ¶ 19. Thus, we conclude that Inscho has failed to demonstrate
that his conviction for domestic violence is void.
{¶ 22} Because the record supports the municipal court’s finding that Inscho was
convicted of a first degree misdemeanor, we conclude that the municipal court did not
abuse its discretion or err as a matter of law in denying the application for expungement
and sealing of the record. We also conclude that Inscho has not demonstrated that the
conviction for domestic violence is void.
{¶ 23} Accordingly, the sole assignment of error is overruled.
III. Conclusion
{¶ 24} The assignment of error being overruled, the judgment of the trial court is
affirmed.
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WELBAUM, P.J., concurs.
DONOVAN, J., concurs in judgment only.
Copies sent to:
Ronald Lewis
James P. Fleisher
Hon. Michael K. Murry