State v. Moorehart, 2009 Ohio 2844 (Ohio App. 6/8/2009), 2008-CA-0072.

• Court: United States Court of Appeals (Ohio)
• Citation: 2009 Ohio 2844
• Docket Number: No. 2008-CA-0072.,2008-CA-0072.
• Parties: State of Ohio, Plaintiff-Appellee, v. Glenn F. Moorehart, Defendant-Appellant.
• Decision Date: 08 June 2009

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2009 Ohio 2844 State of Ohio, Plaintiff-Appellee,
v.
Glenn F. Moorehart, Defendant-Appellant. No. 2008-CA-0072. Court of Appeals of Ohio, Fifth District, Fairfield County. Date of Judgment Entry: June 8, 2009.

Criminal Appeal From Fairfield County Court Of Common Pleas Case No. 1987-CR-064.

Affirmed.

James A. Edwards, Fairfield County Assistant, Prosecuting Attorney, 201 South Broad Street, 4^th Floor, Lancaster, Ohio 43130, for Plaintiff-Appellee.

James R. Kingsley, 157 West Main Street, Circleville, Ohio 43113, for Defendant-Appellant.

Before: W. Scott Gwin, P.J., John W. Wise, J., Julie A. Edwards, J.

OPINION

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EDWARDS, J.

{¶1} Appellant, Glenn F. Moorehart, appeals the trial court's denial of his motion to expunge his felony conviction for one count of felonious assault. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On May 15, 1987, appellant pleaded guilty to one count of felonious assault in violation of R.C. 2903.11, a first degree felony. Appellant was sentenced to serve an indefinite sentence of not less than eight (8) and not more than fifteen (15) years in prison. On December 22, 1987, the court granted appellant's motion for shock probation.

{¶3} On December 2, 1991, the State filed a motion to revoke appellant's probation. On December 8, 1992, the State dismissed the motion for revocation. On December 22, 1992, the court by judgment entry terminated appellant's probation and restored appellant's civil rights.

{¶4} On December 6, 2002, the appellant filed a motion to expunge his felonious assault conviction. The State filed a motion in opposition. The court set the matter for hearing on March 3, 2003. On February 28, 2003, appellant voluntarily dismissed his motion for expungement otherwise than on the merits.

{¶5} More than five (5) years later, on July 8, 2008, appellant re-filed his motion to expunge his felonious assault conviction. The court held an oral hearing on the issue of whether the court had authority to hear the motion to expunge, but did not hold an evidentiary hearing at that time. On September 29, 2008, the trial court denied appellant's motion for lack of jurisdiction. The court found that because appellant's

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petition was filed after the March 23, 2000, amendment to R.C. 2953.36, which eliminated persons convicted of an offense of violence from eligibility for expungement, and appellant was convicted of felonious assault which is an offense of violence, the court did not have jurisdiction to consider his motion for expungement. The trial court further found that appellant's constitutional arguments regarding the application of the expungement statute lacked merit.

{¶6} It is from this judgment that appellant now seeks to appeal setting forth the following assignment of error:

{¶7} "IS THE AMENDMENT TO R.C. § 2953.36 UNCONSTITUTIONAL AS APPLIED TO A MOTION FILED ON 7/8/08 WHICH IS AFTER ITS ENACTMENT DATE OF 3/23/00, TO EXPUNGE A CONVICTION DATED 5/15/87, WHICH IS BEFORE ITS ENACTMENT, WHEN THE RESULT IS THAT THE CONVICTION, WHICH WAS EXPUNGABLE AT THE TIME OF THE PLEA, IS NOT EXPUNGABLE AT THE TIME OF APPLICATION AND WHEN THE CONVICTION DIRECTLY AFFECTS EMPLOYMENT?"

{¶8} In this sole assignment of error, appellant argues that the trial court erred in applying R.C. 2953.36 as amended on March 23, 2000, to exclude violent offenders from eligibility for expungement because the statute did not become effective until after appellant's conviction for felonious assault on May 15, 1987. Specifically, appellant argues that R.C. 2953.36 is unconstitutional as applied because it affects appellant's substantive right to obtain employment because he is a truck driver and cannot get a special license to carry hazardous materials if he has a felony conviction. Appellant argues that the statute is unconstitutionally retroactive. He further argues that the

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statute violates his right to due process, the right to contract (i.e. enter a plea agreement) and equal protection, and violates the constitutional safeguards against cruel and unusual punishment, ex post facto laws and bills of attainder.

{¶9} R.C. 2953.31 et. seq., Ohio's Expungement statutes, allow a first time offender to apply to a sentencing court to seal a record of conviction. State v. McCrea, Warren App. No. CA2005-01-001, 2005-Ohio-4918. Expungement is an act of grace created by statute; it is a privilege, not a right. State v. Simon, 87 Ohio St.3d 531, 2000-Ohio-474, 721 N.E.2d 1041. The expungement statute is remedial and not substantive in nature. State v. Bissantz (1987), 30 Ohio St.3d 120, 121, 507 N.E.2d 1117, 1118. A party does not have a vested right in a remedial remedy. State v. Hartup (1998), 126 Ohio App. 3d 768, 711 N.E.2d 315, 318. Accordingly, the court has the discretion to deny a request for expungement even if the applicant meets the statutory prerequisites. State v. Heaton (1995), 108 Ohio App.3d 38, 40, 669 N.E.2d 885, 886-887; See also State v. Rose, Delaware App. No. 04-CA-C-04-027, 2004-Ohio-4433.

{¶10} R.C. 2953.32(A)(1) sets forth the procedure for applying for expungement proceedings:

{¶11} "Except as provided in section 2953.61 of the Revised Code, a first 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 conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor."

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{¶12} However, R.C. 2953.36 provides that the Code sections setting forth a procedure for expungement do not apply to offenders convicted of certain crimes, including:

{¶13} "(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;"

{¶14} Appellant was convicted of felonious assault in violation of R.C. 2903.11, a felony of the first degree, which is an offense of violence as defined by R.C. 2901.01(A)(9)(a). While the amendment to R.C. 2953.36, which excluded appellant from the class of persons eligible for expungement, occurred after his conviction, 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, 772 N.E. 2d 1172, 2002-Ohio-4009, paragraph 2 of the syllabus. Thus, unless we accept appellant's arguments concerning the unconstitutionality of the statute, appellant is not eligible for expungement, and the trial court did not err in dismissing his application.

{¶15} Appellant argues that R.C. 2953.36 impinges upon his right to employment, as he is a self-employed truck driver and cannot obtain a license to haul hazardous materials if he has a felony conviction. We disagree.

{¶16} Appellant cites State v. Williams, 88 Ohio St. 3d 513, 728 N.E. 2d 342, 2000-Ohio-428, in support of his argument. In Williams, the Ohio Supreme Court considered a claim that R.C. Chapter 2950, the sex offender registration law, impinged upon the right to pursue an occupation. The court held that every individual has the

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right to pursue...