State v. Lawrence Mitchell

Decision Date01 May 1997
Docket Number97-LW-1617,71155
PartiesSTATE OF OHIO, Plaintiff-Appellant v. LAWRENCE MITCHELL, Defendant-Appellee CASE
CourtOhio Court of Appeals

Civil appeal from Court of Common Pleas Case No. CR-315074.

For Plaintiff-Appellant: STEPHANIE TUBBS JONES, Cuyahoga County Prosecutor, L. Christopher Frey, Assistant Prosecuting Attorney, 1200 Ontario Street, Cleveland, Ohio 44113.

For Defendant-Appellee: JAYE M. SCHLACHET, ESQ., JEROME EMOFF ESQ., 620 Terminal Tower, 50 Public Square, Cleveland, Ohio 44113.

OPINION

PER CURIAM

This appeal is before the court on the accelerated docket pursuant to App. R.11.1 and Loc.App.R. 25.

Plaintiff-appellant State of Ohio appeals from an order of expungement sealing the criminal record of the defendant-appellee Lawrence Mitchell in which he plead guilty to criminal damaging (R.C. 2909.06), a misdemeanor of the second degree. The State contends that defendant was not eligible for expungement because he plead guilty to a nonprobational offense inasmuch as a firearm was used in the crime. We reverse the order below for the reasons hereinafter stated.

Defendant was indicted on October 18, 1994 on three counts felonious assault with firearm and violence specifications (R.C. 2903.11); improperly discharging a firearm at or into a habitation or school with a firearm specification (R.C. 2923.161); and vandalism (R.C. 2909.05).

Defendant's indictment stems from an incident that occurred on September 8, 1994 wherein defendant reportedly fired his C.M.H.A. service revolver three times into his girlfriend's car and then at her as she fled. Photos were taken of the damage caused to the car.

On December 21, 1994, defendant entered into a plea agreement with the State in which he pled guilty to an amended Count III, criminal damaging (R.C. 2909.06) without any specifications. All other charges and specifications were dismissed. Defendant was sentenced on the same date to six months in jail, sentence suspended and ordered either to pay a monetary fine of $500 or surrender his gun to his employer, C.M.H.A. He chose the latter. Defendant was also ordered to pay $265 to his girlfriend or the auto body shop for repairs to the vehicle. Defendant also agreed to resign from his post at C.M.H.A. No term of probation was imposed.

After a year had passed, defendant filed an application for expungement on April 11, 1996, which was granted by the trial court over the State's opposition. The State filed a timely notice of appeal herein.

The State's sole assignment of error states:

I.

THE COURT OF COMMON PLEAS ERRED IN GRANTING DEFENDANT'S APPLICATION TO EXPUNGE HIS CRIMINAL RECORD WHERE THE DEFENDANT WAS NOT ELIGIBLE DUE TO THE PROHIBITION AGAINST GRANTING PROBATION TO A PERSON WHO USES A FIREARM IN THE COMMISSION OF AN OFFENSE.

The State argues that the trial court erred in granting an expungement because defendant was ineligible for such relief, in that the indictment contained charges which were nonprobationable due to the alleged use of a firearm. Defendant asserts in return that the "record contains no admission or stipulation by defendant that he discharged a gun or that it was operable as defined by R.C. 2923.11(B), and there is no independent evidence of operability." We are not persuaded by defendant's argument.

Defendant entered a guilty plea to a charge of criminal damaging (R.C. 2909.06), a misdemeanor of the second degree. All other charges and specifications in the indictment were dismissed.

The State argues that defendant is ineligible for expungement because R.C. 2953.36 prohibits such relief "* * * when the offender is subject to a mandatory prison term * * *." The State further argues that since defendant was originally indicted for committing an offense with a gun, he could not receive probation pursuant to R.C. 2951.02(F)(3), and therefore defendant was subject to a mandatory prison term. We find merit in the State's argument.

The expungement statute is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having the record of their first conviction sealed should the court, in its discretion, so decide. State v. Thomas (1979), 64 Ohio App.2d 141, 145. Expungement of a criminal record is an "act of grace created by the State." State v. Hamilton (1996), 75 Ohio St.3d 636, 639. Because expungement is a matter of privilege, not of right, the requirements of the expungement must be strictly followed. State v. Heaton (1995), 108 Ohio App.3d 38, 40; State v. Harris (March 4, 1982), Cuyahoga App. No. 43689, unreported.

The expungement or sealing of a person's record of conviction is governed by R.C. 2953.32 through R.C. 2953.61. R.C. 2953.36 states: "Sections 2953.31 to 2953.35 of the Revised Code do not apply to convictions when the offender is subject to a mandatory prison term * * *." Probation is precluded by R.C. 2951.02 which at the time of defendant's sentencing provided:

(F) An offender shall not be placed on probation and shall not otherwise have the offender's sentence of imprisonment suspended pursuant to division (D)(2) or(4) of section 2929.51 of the Revised Code when any of the following applies:

* * *

(3) The offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code.

Significantly, the above statute does not refer to the firearm as actually being "used" and thus "operable," rather, it merely refers to the fact that the offender was "armed" at the time of the commission of the offense. State v. Ervin (1994), 93 Ohio App.3d 178, 179; State v. Theiss (1988), 48 Ohio App.3d 251, 253; State v. Pope (Sept. 2, 1993), Cuyahoga App. No. 63606, unreported.

The Ohio Supreme Court has held that the trial court may determine that the offender committed an offense while armed with a firearm for purposes of R.C. 2951.02(F)(3) even when a jury had acquitted the defendant of a gun specification. State v. Koss (1990), 49 Ohio St.3d 213, 219-220. In Koss, the court reasoned that "although the jury acquitted appellant of the gun specification, the evidence established that the victim died of a gunshot wound to the head." The Koss court held that probation is not appropriate where the offense is committed with a firearm. See, also, Ervin, supra and State v. Fisher (1985), 26 Ohio App.3d 197, 1981 cited by the Koss court for the proposition that facts discovered in a presentence investigation may be used by the trial court to determine that an offense is nonprobationable.

More recently, in State v. Bistarkey (1996), 75 Ohio St. 7, 9, the Ohio Supreme Court held that a defendant was not eligible for shock probation since he was originally ineligible for probation due to the fact that a firearm was used in the offense to which defendant pled guilty, even though the firearm specification was dismissed as part of plea negotiations.

This Court has held that expungement is not available when a defendant has been convicted of an offense involving the use of a firearm. State v. Moore (1986), 31 Ohio App.3d 225, 227; State v. Himons (Feb. 2, 1995), Cuyahoga App. No. 67827/67828, unreported. In Himons, this Court held:

A court has discretion whether or not to seal criminal records under R.C. 2953.32 and 2953.52. State v McGinnis (1993), 90 Ohio App.3d 479, 481, 629 N.E.2d 1084; State v. Lesinski (1992), 82 Ohio App.3d 829, 830, 613 N.E.2d 691. "Not every applicant is entitled to have his record expunged." State v. Mastin (1992), 83 Ohio App.3d 814, 816, 615 N.E. 2d 1084. The court has a duty to weigh the interest of the person seeking sealing of the records against the legitimate need of the government to maintain the records. Pepper Pike v. Doe (1981), 66 Ohio St.2d 3741 377, 421 N.E.2d 1303.
However, under R.C. 2953.36 first offenders convicted of nonprobationable offenses are not eligible for expungement pursuant to R.C. 2953.36. "The fact that he received probation does not `overcome the statutory prohibition of R. C. 2953.36 that one cannot seal a record for a nonprobationable offense.'" State v. Leers (1992), 84 Ohio App.3d 579, 581, 617 N.E.2d 754; State v. Moore (1986), 31 Ohio App.3d 225, 227, 510 N.E.2d 825.
In the present case, the defendant was indicted for a nonprobationable offense, felonious assault by use of a firearm, with which he shot the victim. Under R.C. 2951.02(F)(3), an offender shall not be placed on probation and shall not have his sentence suspended when the offense involved was committed while the offender was armed with a firearm or dangerous ordinance. The probation restriction remains in effect even if the gun specification has been deleted pursuant to a plea bargain. State v. Ellis (1992), 78 Ohio App.3d 221, 225, 604, N.E.2d 229.
We find that the trial court acted within its discretion when it denied the defendant's application for expungement. The fact remains that, even though the firearm specification was dropped in plea bargaining, defendant used a firearm in the commission of a crime. That defendant was given probation for what was a nonprobationable offense does not alter the thrust of R.C. 2953.36 which prohibits sealing of criminal records in such circumstances. State v. Leers, supra. Under R.C. 2953.32 (C)(1)(d), the court was obliged to consider the prosecutor's objections pointing out the use of the firearm in the crime when weighing the interests of the applicant against the legitimate needs of the government to maintain the records. See State v. May (1991), 72 Ohio App.3d 664, 667, 595 N.E.2d 980 ("in order to oppose the application for expungement, the prosecutor need only file an objection with the court prior to the day
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