[Cite as State v. Evans, 2022-Ohio-341.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellant, 

 vs. 

THOMAS EVANS, 

 Defendant-Appellee. 

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APPEAL NO. C-210251 

TRIAL NO. 87CRB-35256-A 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: February 7, 2022 

Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jon 

Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellant, 

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant 

Public Defender, for Defendant-Appellee. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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BERGERON, Presiding Judge. 

{¶1} During the 1980s, defendant-appellee Thomas Evans was convicted in 

Hamilton County of misdemeanor assault, misdemeanor receiving stolen property, and 

misdemeanor disorderly conduct. Last year, he applied for the sealing of those convictions. 

In between, he ran afoul of the law several times, incurring multiple convictions (including 

felonies). Although the prosecutor advised the trial court that this record deprived Mr. 

Evans of eligibility to have his old misdemeanor convictions sealed, the trial court 

nevertheless granted his application. 

{¶2} On appeal, the city of Cincinnati contests the sealing of Mr. Evans’s assault 

conviction, maintaining that R.C. 2953.32(A)(1) did not grant him eligibility for sealing that 

conviction. The state does not challenge the sealing of Mr. Evans’s convictions for receiving 

stolen property or disorderly conduct, and thus those matters are not before us. 

{¶3} “Generally, an appellate court reviews a trial court’s decision regarding an 

application to seal records under an abuse-of-discretion standard.” State v. Floyd, 2018-

Ohio-5107, 126 N.E.3d 361, ¶ 4 (1st Dist.). But if “the sealing of records involves a purely 

legal question, our standard of review is de novo.” Id., citing State v. Futrall, 123 Ohio St.3d 

498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. Since this case presents a pure statutory 

interpretation question, we review the matter de novo. Wray v. Albi Holdings, P.L.L., 1st 

Dist. Hamilton No. C-200381, 2021-Ohio-3920, ¶ 7 (“We review issues of statutory 

interpretation de novo.”). 

{¶4} R.C. 2953.32(A)(1) allows “eligible offenders” to apply for expungement. The 

General Assembly amended the statutory definition of “eligible offender” shortly after Mr. 

Evans applied for expungement. Former R.C. 2953.31(A)(1)(a)-(b) defined “eligible 

offenders” in two ways. First, under subsection (a), an “eligible offender” included: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Anyone who has been convicted of one or more offenses, but not more than 

five felonies, in this state or any other jurisdiction, if all of the offenses in this 

state are felonies of the fourth or fifth degree or misdemeanors and none of 

those offenses are an offense of violence or a felony sex offense and all of the 

offenses in another jurisdiction, if committed in this state, would be felonies 

of the fourth or fifth degree or misdemeanors and none of those offenses 

would be an offense of violence or a felony sex offense. 

Second, under subsection (b), an “eligible offender” also encompassed: 

Anyone who has been convicted of an offense in this state or any other 

jurisdiction, to whom division (A)(1)(a) of this section does not apply, and 

who has not more than one felony conviction, not more than two 

misdemeanor convictions, or not more than one felony conviction and one 

misdemeanor conviction in this state or any other jurisdiction. When two or 

more convictions result from or are connected with the same act or result 

from offenses committed at the same time, they shall be counted as one 

conviction. When two or three convictions result from the same indictment, 

information, or complaint, from the same plea of guilty, or from the same 

official proceeding, and result from related criminal acts that were committed 

within a three-month period but do not result from the same act or from 

offenses committed at the same time, they shall be counted as one conviction, 

provided that a court may decide as provided in division (C)(1)(a) of 

section 2953.32 of the Revised Code that it is not in the public interest for the 

two or three convictions to be counted as one conviction. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶5} The record reflects three felony convictions for Mr. Evans in Hamilton 

County: second-degree-felony robbery, third-degree-felony failure to comply, and thirddegree-felony trafficking. Based on these convictions, Mr. Evans is ineligible under 

subsection (a) because his felony convictions are not of the fourth or fifth degree. But this 

record also proves fatal under subsection (b) because he has more than one felony 

conviction. Mr. Evans is, therefore, ineligible for expungement under former R.C. 

2953.31(A)(1). 

{¶6} On appeal, Mr. Evans concedes his lack of eligibility for expungement under 

the text of former R.C. 2953.31(A)(1). Mr. Evans nevertheless urges this Court to affirm the 

trial court’s decision as a part of its inherent discretion and authority over applications for 

expungement. We decline that invitation. Although we recognize the salutary nature of 

sealing a 35-year-old conviction for misdemeanor assault, Mr. Evans’s theory would 

contravene the restrictions embodied in R.C. 2953.31(A)(1). We have no authority to 

override an act of the General Assembly merely because of our policy preferences. Groch v. 

GMC, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212 (“It is not this court’s role 

to establish legislative policies or to second-guess the General Assembly’s policy choices.”).

{¶7} We sustain the state’s sole assignment of error, and remand this cause with 

instructions for the trial court to deny Mr. Evans’s application to expunge his misdemeanor 

assault conviction. See, e.g., State v. Taylor, 10th Dist. Franklin No. 15AP-1017, 2016-Ohio4773, ¶ 8 (remanding with instructions to deny the application for expungement where the 

offender was not an eligible offender). Because this appeal did not challenge the sealing of 

Mr. Evans’s convictions for receiving stolen property or disorderly conduct, this judgment 

has no bearing on the sealing of those convictions. 

 Judgment reversed and cause remanded. 

CROUSE andWINKLER, JJ., concur. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Please note: 

The court has recorded its entry on the date of the release of this opinion