1

IN THE DAYTON MUNICIPAL COURT

CRIMINAL DIVISION

STATE OF OHIO Case No. 2000-CRB-█████

CITY OF DAYTON *

Plaintiff, * Judge JOHN S. PICKREL

-vs- *

██████████████ * MOTION FOR RECONSIDERATION

Defendant. *

Now comes Applicant ███████████, by and through counsel Carol J. Holm, and

moves this Honorable Court for reconsideration of its May 12, 2014, denial of his application

to seal the record of his misdemeanor conviction. In support of this motion, Applicant

respectfully submits the following memorandum of law.

Respectfully submitted, ________________________________

CAROL J. HOLM, Reg. No. #0014613

130 W. Second, Suite 1010

Dayton, Ohio 45402

(937)226-1973

Attorney for Defendant/Applicant

2

MEMORANDUM

Applicant ████████████ asks that the Court reconsider its decision because its

denial of his application is tainted by factual error.

Mr. █████ was convicted of misdemeanor domestic violence in the Dayton Municipal

Court on March 14, 2000. He was sentenced to thirty days in jail and a fine of $250.00 plus

costs, with the jail term and $200.00 of the fine suspended on condition of one year

supervised probation with anger management. On March 13, 2014, █████ applied to this

Court for sealing of the record of his misdemeanor conviction under R.C. 2953.32(A)(1) (often

referred to as “expungement”). On April 30, the Court set the case for an expungement

hearing to be held on May 12, 2014. On May 14, the Court issued its decision denying the

application. The Court’s ruling, evidenced by a single checked box on a standardized form,

does not reveal which of the several grounds listed for denial of such an application was the

basis for its decision. However, the information entered onto the form, identifying the

misdemeanor conviction for which Mr. █████ sought expungement, contains a factual error

which likely led the Court to improperly deny his application.

An application for expungement is governed by Sections 2953.31 through 2953.36 of

the Revised Code. Mr. █████ is an “eligible offender” as that term is defined in R.C.

2953.31(A), because he has two misdemeanor convictions and no felony convictions. He

applied for expungement fourteen years after his conviction, which more than satisfies the

one-year period required for misdemeanor expungement under R.C. 2953.32(A)(1). No

criminal proceeding was, or is, pending against him, which would constitute grounds for denial

under R.C. 2953.32(C)(2). R.C. 2953.32(C)(1)(d) permits a court to consider any reasons

against granting the application specified by the prosecutor for the case, so long as the

prosecutor files an objection with the Court prior to the date set for the hearing, in accordance

3

with 2953.32(B). As the docket of this case indicates, no objection was filed with the Court

prior to the date set for Mr. █████’s expungement hearing.

Mr. █████ therefore was entitled to the Court’s consideration of evidence that he has

been rehabilitated, pursuant to R.C. 2953.32(C)(1)(c), and weighing of individual and

governmental interests, pursuant to R.C. 2953.32(C)(1)(e), in order for its decision to be

made.

The only possible basis for failure to proceed to the rehabilitation element and the

balancing test is that the conviction sought to be expunged is excluded from expungement

under R.C. 2953.36. Indeed, the Second District Court of Appeals has ruled that, in such

cases, no hearing need be conducted before the court may deny the application. State v.

Webb, 2d Dist. No. 23892, 2010-Ohio-5743, ¶ 6; but see State v. R.A., 8th Dist. Nos. 97550

and 97551, 2012-Ohio-2507, ¶ 7 (criticizing Webb). R.C. 2953.36 states, in relevant part:

Sections 2953.31 to 2953.35 of the Revised Code do not apply to any of the following: * * *

(C) Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 of the Revised Code and is not a violation of section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a misdemeanor of the first degree * * *.”

R.C. 2953.36(C). Domestic Violence, a violation of R.C. 2919.25, is categorized as an

“offense of violence.” 2901.01(A)(9)(a). However, under some circumstances, a violation of

Section 2919.25 is neither a felony nor a first degree misdemeanor. See R.C. 2919.25(D)(2),

(3), (5) (categorizing certain violations of the statute as second, third, or fourth degree

misdemeanors). A conviction for a misdemeanor of the second, third, or fourth degree is not

precluded from being sealed by R.C. 2953.36(C).

This Court’s “Entry Ruling on Application to Seal Record of Conviction,” a certified copy

of which is attached to this Motion, indicates that the misdemeanor conviction for which Mr.

█████ sought expungement was a violation of R.C. 2919.25(A)(1), a misdemeanor of the

4

first degree. The headings on the pages of the case file, certified copies of which are also

attached, also identifies the domestic violence charge against him as “MISDEMEANOR 1ST

DGR 2919.25A1.M1.” If these were the charges upon which Mr. █████ was convicted, his

application would indeed be properly denied under R.C. 2953.36(C).

However, a review of the record of this case reveals that, though he was initially

charged under division (A)(1) of the domestic violence statute, the charge against Mr. █████

was amended to a violation of R.C. 2919.25(C), a misdemeanor of the fourth degree, and that

is the charge to which he pleaded guilty on March 14, 2000. His conviction was for an “M4”

offense, not for an “M1” offense as the Court’s ruling indicates, and it was therefore not

precluded from being sealed under R.C. 2953.36.

In enacting R.C. 2953.36(C), the Ohio General Assembly expressly chose not to

exclude all convictions for offenses of violence from the possibility of expungement—only

felony or first degree misdemeanor convictions. Compare Am. Sub. S.B. 13, 148 Ohio Laws,

Part IV, 8325-8326 (enactment of division (C) in its current form), with 1999 Sub. S.B. 13 (as

passed by the Senate, May 12, 1999) (which would have amended R.C. 2953.36 to make the

expungement statute inapplicable to any conviction for an offense of violence). It is therefore

important that this Honorable Court not deny Mr. █████’s application for expungement

based on a mistaken belief that his fourth degree misdemeanor conviction was in fact an

ineligible first degree misdemeanor conviction.

Respectfully submitted, ________________________________

CAROL J. HOLM, Reg. No. #0014613

130 W. Second, Suite 1010

Dayton, Ohio 45402

937/226-1973

Attorney for Defendant/Applicant