[Cite as State v. Sklenka, 2015-Ohio-5104.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsRICHARD J. SKLENKA 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. Craig R. Baldwin, J. 

Case No. 15-CA-007, 15-CA-008 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Holmes 

County, Case No. 05CRB060 

JUDGMENT: Reversed 

DATE OF JUDGMENT ENTRY: December 7, 2015 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

STEVE KNOWLING LUKE T. BREWER 

Prosecuting Attorney Miller, Mast, Mason & Bowling, Ltd. 

164 East Jackson Street 88 South Monroe St. 

Millersburg, Ohio 44654 Millersburg, Ohio 44654 
Holmes County, Case No. 15-CA-007, 15-CA-008 2

Hoffman, P.J. 

{¶1} Plaintiff-appellant the state of Ohio appeals the April 1, 2015 Judgment 

Entry entered by the Holmes County Municipal Court granting an Application to Seal 

Criminal Record filed by Defendant-appellee Richard J. Sklenka. 

STATEMENT OF THE CASE1

{¶2} On February 23, 2005, Appellee was convicted of aggravated menacing, in 

violation of R.C. 2903.21(A). On February 19, 2015, Appellee filed an Application to Seal 

Criminal Record in the Holmes County Municipal Court. 

{¶3} The trial court set the application to seal criminal record for an oral hearing 

on April 1, 2015. The trial court granted the application via Judgment Entry of the same 

date. 

{¶4} Appellant the state of Ohio appeals, assigning as error: 

{¶5} “I. THE TRIAL COURT LACKED JURISDICTION TO GRANT APPELLEE’S 

APPLICATION FOR RELIEF UNDER OHIO REV. CODE §2953.32 AS THE 

UNDERLYING OFFENSE COMMITTED BY APPELLEE WAS AGGRAVATED 

MENACING (OHIO REV. CODE §2903.21), A STATUTORILY DEFINED ‘OFFENSE OF 

VIOLENCE’.” 

I. 

{¶6} The state of Ohio argues Appellee is, as a matter of law, conclusively 

ineligible from having his conviction expunged and his record sealed under the provisions 

of R.C. 2953.32 because aggravated menacing is an offense of violence pursuant to R.C. 

 

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. 
Holmes County, Case No. 15-CA-007, 15-CA-008 3

2953.32 and R.C. 2903.21. Offenses of violence are specifically excluded from 

expungement and sealing under R.C. 2953.36(C). Accordingly, the state concludes the 

trial court was without jurisdiction to grant Appellee relief under R.C. 2953.32. We agree. 

{¶7} R.C. 2953.32 provides, in pertinent part, 

 (A)(1) Except as provided in section 2953.61 of the Revised Code, 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. 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. 

 *** 

 (C)(1) The court shall do each of the following: 

 (a) Determine whether the applicant is an eligible offender or whether the 

forfeiture of bail was agreed to by the applicant and the prosecutor in the case. 

{¶8} R.C. 2953.36 governs Convictions Precluding Sealing, providing, 

 (A) Convictions when the offender is subject to a mandatory prison 

term; 

 *** 

 (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 
Holmes County, Case No. 15-CA-007, 15-CA-008 4

section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a 

misdemeanor of the first degree; 

{¶9} R.C. 2903.21 defining aggravated menacing, provides, 

 (B) Whoever violates this section is guilty of aggravated menacing. 

Except as otherwise provided in this division, aggravated menacing is a 

misdemeanor of the first degree. If the victim of the offense is an officer or 

employee of a public children services agency or a private child placing 

agency and the offense relates to the officer's or employee's performance 

or anticipated performance of official responsibilities or duties, aggravated 

menacing is a felony of the fifth degree or, if the offender previously has 

been convicted of or pleaded guilty to an offense of violence, the victim of 

that prior offense was an officer or employee of a public children services 

agency or private child placing agency, and that prior offense related to the 

officer's or employee's performance or anticipated performance of official 

responsibilities or duties, a felony of the fourth degree. 

{¶10} At the April 1, 2015 Expungement Hearing, the following exchange occurred 

on the record, 

 THE COURT: Richard Sklenka, got bad news. You don’t qualify. It’s a 

crime of violence. I mean you have no other charges, you have no other pending. 

 MR. ESTILL: Your Honor, it appears the only thing he has on his record is 

(inaudible) Vandalisim [sic]. 

 THE COURT: But unfortunately you’re not eligible to have it expunged 

because it was Aggravated Menacing. 
Holmes County, Case No. 15-CA-007, 15-CA-008 5

 * * * 

 MR. SKLENKA: But I had done a brake job on this guy and I went to try to 

block him when he passed me. What I did wrong was in a split second. You know, 

that was ten (10) years ago and for the for me to be kind of labeled as that for the 

rest of my life. And I’m fifty-six (56) just trying to get a job and it’s really difficult to 

do with that there. 

 THE COURT: Anything further. 

 MS. WILLIAMS: Your Honor I just asked the probation officer if I understand 

by law it can’t be. I don’t know if it’s discretionary with the Court. The State 

wouldn’t object. 

 THE COURT: Every time I try something somebody in your office appeals. 

 MS. WILLIAMS: Uh, I’m not going to appeal it. 

 THE COURT: Well I know it was not ever you it was somebody else in the 

office. 

Tr. at p. 2. 

{¶11} The trial court proceeded in granting the application to seal. 

{¶12} In State v. Vale, 8th Dist. No. 85425, 2005-Ohio-3725, the Eighth District 

Court of Appeals addressed the issue raised herein, 

 The record demonstrates the trial court lacked jurisdiction to consider 

Vale's application. R.C. 2953.36(C) specifies expungement cannot be 

granted to those persons convicted of an “offense of violence.” A conviction 

for violation of R.C. 2903.21 is defined in R.C. 2901.01(A)(9)(a) as an 

“offense of violence.” Therefore, Vale was ineligible for the relief he sought. 
Holmes County, Case No. 15-CA-007, 15-CA-008 6

State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041, 2000–Ohio–474; State 

v. Salim, Cuyahoga App. No. 82204, 2003–Ohio–2024. 

 Under these circumstances, the trial court had no authority to order 

the record of Vale's convictions sealed. Id. 

 In In Re Black, 10th Dist. No. 08 AP 37, 2008 Ohio 4687, 

 “The first basic principle is that expungement is an act of grace 

created by the state and is a privilege, not a right.” State v. Winship, Franklin 

App. No. 04AP-384, 2004-Ohio-6360, at ¶ 8, citing State v. Simon (2000), 

87 Ohio St.3d 531, 533, 721 N.E.2d 1041. Thus, “[e]xpungement should be 

granted only when all requirements for eligibility are met.” Simon, supra, 

citing State v. Hamilton (1996), 75 Ohio St.3d 636, 640, 665 N.E.2d 669 

(noting that “the government possesses substantial interest in ensuring that 

expungement is granted only to those who are eligible”). 

 *** 

 The parties dispute the effect of the prosecution's statement at the 

expungement hearing. Appellee contends any deficiencies in his meeting 

the statutory criteria render the trial court's judgment merely voidable, and 

the prosecution waived any error when it withdrew its objection to the 

expungement application. Appellant, by contrast, contends the 

prosecution's comments are irrelevant, as the trial court lacked jurisdiction 

to adjudicate the expungement application where the crime to be expunged 

was an offense of violence. As a result, appellant asserts, the entire 

judgment is void. 
Holmes County, Case No. 15-CA-007, 15-CA-008 7

 Jurisdiction refers to “‘the courts' statutory or constitutional power to 

adjudicate the case.’” Pratts v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992, 

2004-Ohio-1980, at ¶ 11, quoting Steel Co. v. Citizens for a Better 

Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210; 

Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 290 N.E.2d 841. The term 

encompasses jurisdiction over the subject matter and over the person. Id.

Because subject-matter jurisdiction goes to the power of the court to 

adjudicate the merits of a case, it can never be waived and may be 

challenged at any time. It is a “ ‘condition precedent to the court's ability to 

hear the case. If a court acts without jurisdiction, then any proclamation by 

that court is void.’” Pratts, supra, quoting State ex rel. Jones v. Suster

(1998), 84 Ohio St.3d 70, 75, 701 N.E.2d 1002, citing Patton v. Diemer

(1988), 35 Ohio St.3d 68, 518 N.E.2d 941. 

 Jurisdiction, however, also refers to a court's exercising its 

jurisdiction over a particular case. Pratts, at ¶ 12. Jurisdiction over a 

particular case encompasses the trial court's authority to determine a 

specific case within the class of cases that is within its subject matter 

jurisdiction. Id. When a trial court lacks subject-matter jurisdiction, its 

judgment is void; lack of jurisdiction over the particular case merely renders 

the judgment voidable. Id.

 The parties agree that if the court lacked subject-matter jurisdiction, 

the judgment of the trial court necessarily would be void and must be 

reversed; the disagreement lies in whether the judgment is void for lack of 
Holmes County, Case No. 15-CA-007, 15-CA-008 8

subject-matter jurisdiction or voidable for lack of jurisdiction over the 

particular case. In this case, we need not resolve whether the trial court's 

judgment is void or voidable, because even if the judgment is voidable, the 

error is not waivable. In delineating the dichotomy between subject-matter 

jurisdiction and jurisdiction of the particular case, the Supreme Court noted 

four principles: “1) the statutes require strict compliance, 2) that failure to 

strictly comply is error in the exercise of jurisdiction, 3) that strict compliance 

may not be voluntarily waived and is always reversible error on direct 

appeal, but 4) after direct appeal any error is, in effect, waived and cannot 

be remedied through collateral attack.” Pratts, supra, at ¶ 32. Accordingly, 

the prosecution's decision to withdraw its objection to appellee's 

expungement application, even if it be properly characterized as a waiver, 

does not waive the issue of compliance under Pratts.

 Appellee contends that even if waiver does not apply, the doctrine of 

invited error precludes our concluding that non-compliance with the 

statutory criteria is reversible error. The “doctrine provides that ‘a party is 

not permitted to take advantage of an error that he himself invited or induced 

the court to make.’” Bd. of Clark Cty. Commrs. v. Newberry, Clark App. 

No.2002-CA-15, 2002-Ohio-6087 at ¶ 16, quoting Davis v. Wolfe (2001), 92 

Ohio St.3d 549, 552, 751 N.E.2d 1051. 

 The doctrine of invited error does not apply here. The prosecution 

did not ask the trial court to ignore the statutory criteria. To the contrary, the 

trial court requested, in effect, that the prosecution withdraw its objection 
Holmes County, Case No. 15-CA-007, 15-CA-008 9

premised on the court's recollection of the plea proceedings. Indeed, the 

court not only requested such action from the prosecution but made clear 

that the prosecution's failure to cooperate would be futile. Under such 

circumstances, invited error doctrine does not apply. See Newberry, supra 

(concluding the doctrine did not apply where the party did not request the 

trial court's ruling, but argued against it). 

 In the final analysis, if the judgment is void for lack of subject-matter 

jurisdiction, the judgment must be reversed. Alternatively, if the court had 

subject-matter jurisdiction but lacked jurisdiction of the particular case, the 

judgment nonetheless must be reversed because (1) the court failed to 

comply with the statutory criteria, (2) the error is not waivable, and (3) the 

invited error doctrine does not apply on the facts of this case.*** 
Holmes County, Case No. 15-CA-007, 15-CA-008 10

{¶13} Pursuant to the case law set forth above, we find the trial court lacked 

jurisdiction to seal Appellant's criminal record herein. Here, the trial court was without 

jurisdiction to seal the offense of violence. The state of Ohio did not ask the trial court to 

ignore the statutory criteria; rather, the prosecutor stated she would not appeal an error.2 

The April 1, 2015 Judgment Entry of the Holmes County Municipal Court is reversed. 

By: Hoffman, P.J. 

Farmer, J. and 

Baldwin, J. concur 

 

 

 

2 Though the state of Ohio has reneged on its representation not to appeal, we do not 

find that to have invited the error complained of herein.