In re Application for the Sealing of the Records of [A.H.]

• Citation: 60 N.E.3d 60
• Decision Date: 25 August 2016
• Docket Number: No. 15AP–555.,15AP–555.
• Parties: In re Application for the SEALING OF the RECORDS OF [A.H.].
• Court: United States Court of Appeals (Ohio)

60 N.E.3d 60

In re Application for the SEALING OF the RECORDS OF [A.H.].

No. 15AP–555.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 25, 2016.

On brief: Michael DeWine, Attorney General, and Michael P. Walton, for appellant. Argued: Michael P. Walton.

BROWN

, J.

{¶ 1} This is an appeal by plaintiff-appellant, the State of Ohio, from a judgment of the Franklin County Court of Common Pleas granting an application for the sealing of the records of convictions of defendant-appellee, A.H.

{¶ 2} On September 30, 2006, appellee was charged in Franklin County Municipal Court case No. 2006–CRB–025457 with one count of receiving stolen property, in violation of R.C. 2913.51

, a misdemeanor of the first degree; the conduct giving rise to the charge was alleged to have occurred on that same date. On November 28, 2006, appellee entered a guilty plea to disorderly conduct, a fourth-degree misdemeanor, and the trial court sentenced her the same day.

{¶ 3} On January 18, 2007, appellee was indicted in Franklin County Common Pleas case No. 07CR–495 on one count of receiving stolen property, a felony of the fourth degree. The indictment alleged conduct occurring on January 10, 2007, and listed the victim as S.W. On June 5, 2007, appellee entered a guilty plea before Judge Patrick E. Sheeran to the charge of receiving stolen property. The trial court sentenced appellee by judgment entry filed August 13, 2007.

{¶ 4} On January 29, 2007, appellee was indicted in Franklin County Common Pleas case No. 07CR–771 on two counts of receiving stolen property, in violation of R.C. 2913.51

, felonies of the fourth and fifth degree. The indictment, which also charged a co-defendant (Cornell Sharp), alleged conduct occurring on January 19, 2007, involving two victims, D.F. and J.G. On June 4, 2007, appellee entered a guilty plea before Judge Steven L. McIntosh to the stipulated lesser-included offense of Count 2, receiving stolen property, a misdemeanor of the first degree. The trial court sentenced appellee by judgment entry filed June 6, 2007.

{¶ 5} On February 2, 2007, appellee was indicted in Franklin County Common Pleas case No. 07CR–913 on two counts of receiving stolen property, in violation of R.C. 2923.51

, felonies of the fifth degree. The indictment alleged conduct occurring on January 10, 2007, and listed the victims as H.R. and K.B. Appellee subsequently entered a guilty plea before Judge Sheeran to two counts of the stipulated lesser-included offense of receiving stolen property, both counts being misdemeanors of the first degree. The trial court sentenced appellee by judgment entry filed August 13, 2007.

{¶ 6} On December 27, 2013, appellee filed an application, pursuant to R.C. 2953.32

, for an order to seal the record of convictions in case Nos. 07CR–495, 07CR–771, and 07CR–913. On March 26, 2014, the state filed an objection to the sealing of appellee's record of convictions. The matter came for hearing before the trial court on April 17, 2014, and the court conducted a second hearing on April 30, 2015. By entry filed May 5, 2015, the trial court granted appellee's application to seal the records of conviction in case Nos. 07CR–495, 07CR–771, and 07CR–913.

{¶ 7} On appeal, the state sets forth the following assignment of error for this court's review:

THE TRIAL COURT LACKED JURISDICTION TO SEAL THE RECORD OF CONVICTIONS, AS DEFENDANT WAS NOT AN “ELIGIBLE OFFENDER.”

{¶ 8} Under its single assignment of error, the state argues the trial court lacked jurisdiction to seal the record of convictions because appellee was not an “eligible offender” for expungement. The state argues that appellee's application to seal the records of conviction in case Nos. 07CR–495, 07CR–771, and 07CR–913 failed for two reasons: (1) appellee had multiple misdemeanor convictions “of the same offense” for purposes of R.C. 2953.31(A), and (2)

appellee's conviction in case No. 07CR–771 cannot merge with the other convictions.

{¶ 9} This court has previously noted that “[a]n appellate court generally reviews a trial court's disposition of an application for an order sealing the record of conviction under an abuse of discretion standard.” State v. Black, 10th Dist. No. 14AP–338, 2014-Ohio-4827, 2014 WL 5494015, ¶ 6

. However, with respect to questions of law, “an appellate court reviews the trial court's determination de novo.” Id. Thus, “whether an applicant is considered an eligible offender is an issue of law for a reviewing court to consider de novo.” State v. Weiss, 10th Dist. No. 14AP–957, 2015-Ohio-3015, 2015 WL 4545152, ¶ 5.

{¶ 10} In general, “ ‘expungement is an act of grace created by the state.’ ” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 15

, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). Accordingly, “the sealing of a criminal record is a ‘ “ ‘privilege, not a right’ ” ' and should only be granted when all statutory requirements are met.” Lyons at ¶ 15, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 11, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

{¶ 11} Under Ohio law, “[t]wo different statutes relate to sealing of court documents—R.C. 2953.32

, for sealing of records after conviction, and R.C. 2953.52, for sealing after disposition other than conviction.” Lyons at ¶ 16. At issue in the instant case are the provisions of R.C. 2953.32 relating to the sealing of records after conviction.

{¶ 12} Pursuant to R.C. 2953.32(A)(1)

, an “eligible offender” may file an application to seal a record of conviction. In considering whether an applicant is an eligible offender, a court “must determine whether his or her criminal record reflects a permissible number of convictions, that the conviction(s) sought to be sealed is/are currently eligible to be sealed (based on the time elapsed since the time of final discharge and the nature of the conviction), and that no criminal proceedings are then currently pending against the applicant.” State v. Black, 10th Dist. No. 15AP–539, 2015-Ohio-4256, ¶ 6.

{¶ 13} At the time of appellee's application, former R.C. 2953.31 defined the term “eligible offender” as follows:

(A) “Eligible offender” means anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction.¹

{¶ 14} Ohio courts have interpreted the above language to hold that “the statute limits the definition of eligible offender to those that have been convicted of either a felony and a misdemeanor or two misdemeanors provided that they were not for ‘the same offense.’ ” Bedford v. Bradberry, 8th Dist. No. 100285, 2014-Ohio-2058, 2014 WL 2042163, ¶ 13

. Similarly, this court has held that “[t]he plain meaning of the phrase ‘not more than two misdemeanor convictions if the convictions are not of the same offense’ means that an applicant is an eligible offender if they have two misdemeanor convictions, provided that the two misdemeanor convictions are not of the same offense.” Weiss at ¶ 14. The court in Bradberry observed that the statutory language of former R.C. 2953.31(A), “as written evidences the General Assembly's intent to exclude offenders who have a propensity of committing the same offense.” Id.

{¶ 15} In the present case, the state notes that each of the convictions for which appellee applied to have the record sealed were for receiving stolen property and that in case Nos. 07CR–771 and 07CR–913, appellee was convicted for receiving stolen property as a misdemeanor. The state argues that, because appellee had at least two misdemeanor convictions for the same offense, the trial court lacked jurisdiction to grant the application. The state acknowledges that its objection before the trial court did not raise this particular argument, but asserts that jurisdictional arguments under R.C. 2953.32

can be raised at any time.

{¶ 16} The state further contends there was an additional jurisdictional problem with appellee's application which it did raise in its objection before the trial court. Specifically, the state maintains appellee's conviction in case No. 07CR–771 could not, under the applicable statutory provisions, merge with the convictions in case Nos. 07CR–495 and 07CR–913.

{¶ 17} The state acknowledges that R.C. 2953.31

contains exceptions whereby multiple convictions can be counted as one conviction. This court has recognized, in considering the provisions of R.C. 2953.31, that “a court may, if certain circumstances are satisfied, consider two or three convictions as one.” State v. Sanders, 10th Dist. No. 14AP–916, 2015-Ohio-2050, 2015 WL 3421762, ¶ 7. In this respect, R.C. 2953.31(A) states in part:

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.

{¶ 18} The state argues the indictments in the instant case indicate the convictions at issue did not result from the same act, nor were the offenses committed at the same time; further, the state maintains, while the acts were separated by nine days, there were separate acts and separate victims in each of the three cases, and the charged crimes were not all...