[Cite as State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590.] 

THE STATE OF OHIO, APPELLEE, v. FUTRALL, APPELLANT. 

[Cite as State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590.] 

Criminal law — Sealing criminal records — When an applicant with multiple 

convictions under one case number moves to seal his or her criminal 

record in that case pursuant to R.C. 2953.32 and one of those convictions 

is exempt from sealing pursuant to R.C. 2953.36, the trial court may not 

seal the remaining convictions — Judgment affirmed. 

(No. 2008-2391 — Submitted September 1, 2009 — Decided October 29, 2009.) 

APPEAL from the Court of Appeals for Lorain County, No. 08CA009388, 

2008-Ohio-5654. 

__________________ 

SYLLABUS OF THE COURT

When an applicant with multiple convictions under one case number moves to 

seal his or her criminal record in that case pursuant to R.C. 2953.32 and 

one of those convictions is exempt from sealing pursuant to R.C. 2953.36, 

the trial court may not seal the remaining convictions. 

__________________ 

LUNDBERG STRATTON, J. 

{¶ 1} Today this court must decide whether a trial court is precluded 

from sealing an applicant’s convictions that are eligible to be sealed by statute 

when one of the convictions is exempt from being sealed. Because we hold that a 

conviction that is exempt by statute from being sealed also precludes the sealing 

of convictions that are otherwise eligible, we affirm the judgment of the court of 

appeals. 

Facts 

{¶ 2} In May 2001, defendant-appellant, Douglas Futrall, was indicted 

on five criminal offenses: (1) aggravated menacing in violation of R.C. 
SUPREME COURT OF OHIO

2 

2903.21(A), a first-degree misdemeanor, (2) improper handling of firearms in 

violation of R.C. 2923.16(B), a first-degree misdemeanor, (3) carrying a 

concealed weapon in violation of R.C. 2923.12(A), a fourth-degree felony, (4) 

domestic violence in violation of R.C. 2919.25, a fourth-degree misdemeanor, and 

(5) telephone harassment in violation of R.C. 2917.21(A)(4), a first-degree 

misdemeanor. All charges resulted from one incident and were filed under one 

case number. 

{¶ 3} In March 2002, Futrall entered a guilty plea to a negotiated 

misdemeanor charge of carrying a concealed weapon as well as to the other 

misdemeanor charges. The court placed Futrall on a two-year probation. Four 

months later, the trial court terminated Futrall’s probation and restored Futrall to 

all appropriate civil rights. 

{¶ 4} Approximately five years later, Futrall filed an application in the 

trial court to seal his record. After a hearing, the trial court denied the request. 

The trial court concluded that Futrall was sufficiently rehabilitated and was 

“otherwise an outstanding candidate” to have convictions sealed, but “because the 

aggravated menacing charge is statutorily exempt from being sealed, as a matter 

of law, all of his convictions are precluded from being sealed and his application 

to seal record is accordingly denied.” 

{¶ 5} The Court of Appeals for Lorain County affirmed the judgment of 

the trial court. State v. Futrall, 9th Dist. No. 08CA009388, 2008-Ohio-5654. The 

cause is now before this court pursuant to the acceptance of a discretionary 

appeal. State v. Futrall, 121 Ohio St.3d 1424, 2009-Ohio-1296, 903 N.E.2d 324. 

Standard of Review 

{¶ 6} The court of appeals reviewed this matter under an abuse-ofdiscretion standard, noting that “ ‘ “expungement is an act of grace created by the 

state,” and so is a privilege, not a right. Expungement should be granted only 

when all requirements for eligibility are met.’ ” Futrall, 2008-Ohio-5654, ¶ 6, 
January Term, 2009 

3 

quoting State v. Simon (2000), 87 Ohio St.3d 531, 533, 721 N.E.2d 1041, quoting 

State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 665 N.E.2d 669. While we 

agree that expungement is a privilege and not a right, we disagree with the court 

of appeals’ decision to review this matter using the abuse-of-discretion standard, 

because the matter in dispute is purely a question of law. “When a court's 

judgment is based on an erroneous interpretation of the law, an abuse-ofdiscretion standard is not appropriate. See Swartzentruber v. Orrville Grace 

Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; 

Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 

2008 WL 2572598, ¶ 50.” Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 

2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. 

{¶ 7} Therefore, as a preliminary matter, we conclude that the court of 

appeals erred in reviewing the case under an abuse-of-discretion standard. But “ 

‘reviewing courts are not authorized to reverse a correct judgment on the basis 

that some or all of the lower court’s reasons are erroneous.’ ” Goudlock v. 

Voorhies, 119 Ohio St.3d 398, 2008-Ohio-4787, 894 N.E.2d 692, ¶ 12, quoting 

State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio5062, 796 N.E.2d 526, ¶ 8. Because we reach the same conclusion even applying 

a de novo standard of review, we affirm the judgment of the court of appeals. 

Analysis 

{¶ 8} The procedure for expungement is set forth in R.C. 2953.32 and 

provides that the court shall do each of the following when considering an 

application to expunge: 

{¶ 9} “(C)(1)(a) Determine whether the applicant is a first offender or 

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

the case. * * * 

{¶ 10} “(b) Determine whether criminal proceedings are pending against 

the applicant; 
SUPREME COURT OF OHIO

4 

{¶ 11} “(c) If the applicant is a first offender who applies pursuant to 

division (A)(1) of this section, determine whether the applicant has been 

rehabilitated to the satisfaction of the court; 

{¶ 12} “(d) If the prosecutor has filed an objection in accordance with 

division (B) of this section, consider the reasons against granting the application 

specified by the prosecutor in the objection; 

{¶ 13} “(e) Weigh the interests of the applicant in having the records 

pertaining to the applicant’s conviction sealed against the legitimate needs, if any, 

of the government to maintain those records.” 

{¶ 14} R.C. 2953.36 enumerates the crimes that cannot be expunged, 

including convictions of an offense of violence when the offense is a 

misdemeanor of the first degree. R.C. 2953.36(C). “Offense of violence” is 

defined by R.C. 2901.01(A)(9) and includes aggravated menacing, R.C. 2903.21. 

Therefore, Futrall’s conviction for aggravated menacing cannot be sealed. 

{¶ 15} The question then becomes whether an applicant with multiple 

convictions in one case may seal the portion of his or her criminal record that is 

eligible pursuant to R.C. 2953.32 when one of the convictions is statutorily 

exempt from being sealed. For the reasons that follow, we hold that when an 

applicant with multiple convictions under one case number moves to seal his or 

her criminal record in that case pursuant to R.C. 2953.32 and one of those 

convictions is statutorily exempt from sealing pursuant to R.C. 2953.36, the trial 

court may not seal the remaining convictions. 

{¶ 16} Three statutes support our conclusion that the eligible convictions 

may not be separated from the ineligible convictions for purposes of 

expungement. First, although this case does not directly call upon us to determine 

whether the defendant is a first offender, we find support for our holding in the 

definition of “first offender” in R.C. 2953.31: “When two or more convictions 
January Term, 2009 

5 

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.” (Emphasis added.) 

{¶ 17} Second, although R.C. 2953.61 is not directly applicable to this 

case, it, too, is instructive on the issue of how sealing of multicount convictions 

should be handled. R.C. 2953.61 provides: 

{¶ 18} “When a person is charged with two or more offenses as a result 

of or in connection with the same act and at least one of the charges has a final 

disposition that is different than the final disposition of the other charges, the 

person may not apply to the court for the sealing of his record in any of the cases 

until such time as he would be able to apply to the court and have all of the 

records in all of the cases pertaining to those charges sealed * * *.” (Emphasis 

added.) 

{¶ 19} Finally, the process and duties imposed for sealing records outlined 

in R.C. 2953.32 guide us in answering the question before us. R.C. 2953.32(C)(2) 

states that upon determining that the applicant’s record qualifies for sealing under 

R.C. 2953.32(C)(1), the court “shall order all official records pertaining to the 

case sealed and all index references to the case deleted.” (Emphasis added.) R.C. 

2953.32(C)(2). Meeting the requirements of Futrall’s position – parsing out those 

convictions that can be sealed from those that cannot – would be impossible: a 

trial court is unable to order all index references to the case deleted while at the 

same time ordering that index references to one conviction in that case be 

maintained because the case cannot be lawfully sealed. 

{¶ 20} In enacting these provisions, the General Assembly appears to 

have recognized the inherent difficulty of sealing only some convictions in one 

case. Partial sealing would have to be attempted for everything from arrest 

records to written statements to transcripts to journal entries. How this task would 

be accomplished and who would have the authority to attempt it are questions that 

underscore the impractical reality of an attempt to seal certain convictions in one 
SUPREME COURT OF OHIO

6 

case while revealing others. If the General Assembly had intended only partial 

sealing, it would have chosen phrases other than “all official records” or “all 

index cards” in order to give guidance on how to seal a partial expungement. We 

therefore conclude that R.C. 2953.31 (definitions), 2953.61 (sealing of records in 

cases of multiple charges), and 2953.32(C)(2) (sealing of record of conviction) 

illustrate the General Assembly’s intent to authorize the sealing of cases, not the 

sealing of individual convictions within cases. 

Conclusion

{¶ 21} Based on R.C. 2953.31, 2953.61, and 2953.32, we hold that when 

an applicant with multiple convictions under one case number moves to seal his 

or her criminal record in that case pursuant to R.C. 2953.32 and one of those 

convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may 

not seal the remaining convictions. Accordingly, we affirm the judgment of the 

court of appeals. 

Judgment affirmed. 

 PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

 MOYER, C.J., concurs separately. 

__________________ 

 MOYER, C.J., concurring.

{¶ 22} I concur because the majority correctly analyzes R.C. 2953.31, 

2953.32, 2953.36, and 2953.61 and draws the proper conclusion that none of 

appellant’s convictions in this case may be expunged. Still, our path in this case 

is dimly lit by the existing statutory framework. No Ohio statute directly answers 

the question before us. For that reason, we have been required to fashion 

interstitial law, covering the gap between the existing law and the issue in this 

case by tugging at the edges of several closely related statutes. See S. Pacific Co. 

v. Jensen (1917), 244 U.S. 205, 221, 37 S.Ct. 524, 61 L.Ed. 1086 (Holmes, J., 

dissenting). But an opinion of this court is not the preferred method of 
January Term, 2009 

7 

lawmaking. At issue is the ability of a person to expunge the record of his past 

offenses. Such an issue is better resolved in the General Assembly. Therefore, I 

write separately to urge the General Assembly to address the issues posed in this 

case. 

 O’CONNOR, O’DONNELL, and LANZINGER, JJ., concur in the foregoing 

opinion. 

__________________ 

Dennis P. Will, Lorain County Prosecuting Attorney, and Mary R. 

Slanczka, Assistant Prosecuting Attorney, for appellee. 

Giardini, Cook & Nicol, L.L.C., and D. Chris Cook, for appellant. 

______________________