State v. Lovelace

• Decision Date: 17 August 2012
• Docket Number: No. C–110715.,C–110715.
• Citation: 2012 -Ohio- 3797,975 N.E.2d 567
• Parties: STATE of Ohio, Plaintiff–Appellant, v. William LOVELACE, Defendant–Appellee.
• Court: Ohio Court of Appeals

975 N.E.2d 567
2012 -Ohio- 3797

STATE of Ohio, Plaintiff–Appellant,
v.
William LOVELACE, Defendant–Appellee.

No. C–110715.

Court of Appeals of Ohio,
First District, Hamilton County.

Aug. 17, 2012.

John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jennifer Bishop, Assistant Prosecutor, for Plaintiff–Appellant.

Chevalier, Ginn, Shirooni & Kruer, P.S.C., and James Kruer, for Defendant–Appellee.

SYLVIA SIEVE HENDON, Judge.

{¶ 1} Plaintiff-appellant the state of Ohio appeals the judgment of the Hamilton County Municipal Court granting defendant-appellee William Lovelace's motion to reinstate the expungement of his criminal conviction. We reverse the trial court's judgment because the trial court had no authority to grant the expungement.

{¶ 2} Lovelace was convicted of theft and disorderly conduct in 2009. On July 1, 2011, the trial court granted Lovelace's application for the expungement of the theft conviction. The state did not object

[975 N.E.2d 568]

to the application and did not appeal the trial court's order.

{¶ 3} Shortly thereafter, the trial court received a probation department report that indicated Lovelace had been ineligible for expungement because he had had a prior disorderly conduct conviction. On July 18, 2011, the court sua sponte journalized an entry stating that the conviction had been “expunged in error” and purporting to reinstate the theft conviction.

{¶ 4} Three months later, on October 28, 2011, Lovelace filed a motion for the reinstatement of the expungement of his theft conviction. According to Lovelace, neither he nor his counsel had been notified of the court's July 18 entry.

{¶ 5} In November, the court reinstated Lovelace's expungement. The state now appeals.

{¶ 6} In its first assignment of error, the state argues that the trial court erred by expunging Lovelace's theft conviction because he was not a first offender. The state contends that the trial court lacked jurisdiction to grant the expungement, and that its judgment was, therefore, void.

{¶ 7} The expungement process is set forth in R.C. 2953.32. Subsection (A)(1) provides:

Except as provided in section 2953.61 of the Revised Code, a first 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 conviction record. 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.

{¶ 8} A first offender is defined as “anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction.” R.C. 2953.31(A).

An Order Granting Expungement to an Unqualified Applicant is Void

{¶ 9} We have held that a trial court has no jurisdiction to expunge a conviction where the applicant did not qualify as a first offender under R.C. 2953.32. See State v. Coleman, 117 Ohio App.3d 726, 691 N.E.2d 369 (1st Dist.1997). We have further held that if, at any time after the expungement is granted, the trial court becomes aware that the applicant was not a first offender at the time of the application, then the expungement is void and must be vacated, the court having lacked jurisdiction to grant the expungement in the first place. See State v. Bundy, 1st Dist No. C–020411, 2003-Ohio-567, 2003 WL 255746.

{¶ 10} In Bundy, we followed the reasoning of the Eighth Appellate District in State v. Thomas, 64 Ohio App.2d 141, 411 N.E.2d 845 (8th Dist.1979). In Thomas, the trial court had granted the state's motion to vacate an expungement order made two years after the court had entered the expungement order. Thomas held that a court's jurisdiction is not properly invoked under the expungement statute unless the applicant is a first offender. Id. at syllabus. Therefore, the court held, the expungement was void for lack of jurisdiction. Id.

{¶ 11} In 2004 and in 2005, the Tenth Appellate District relied on the Eighth District's Thomas decision. In three cases, the Tenth District held that an order expunging the record of one who is not a first offender is void for lack of jurisdiction and may be vacated at any time. See State v. McCoy, 10th Dist. No. 04AP–121, 2004-Ohio-6726, 2004 WL 2896356, ¶ 11;

[975 N.E.2d 569]

State v. Winship, 10th Dist. No. 04AP–384, 2004-Ohio-6360, 2004 WL 2715906, ¶ 9, and In re Barnes, 10th Dist. No. 05AP–355, 2005-Ohio-6891, 2005 WL 3528786, ¶ 13.

Or is it Voidable?

{¶ 12} But a few years later, the Tenth Appellate District considered a state's appeal from a trial court's judgment denying its motion to vacate a four-year-old expungement order. The appellate court noted that “the Thomas court's jurisdictional interpretation of R.C. 2953.32 was without the benefit of the recently announced Supreme Court cases explaining the difference between subject matter jurisdiction and jurisdiction over a particular case.” State v. Smith, 10th Dist. No. 06AP–1059, 2007-Ohio-2873, 2007 WL 1674086, ¶ 14, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992 and In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851. The Smith court held that “[a] subsequent finding that an applicant is not a first offender * * * does not divest the court of subject matter jurisdiction so that the expungement order is void ab initio. Instead, it constitutes an error in the court's exercise of jurisdiction over a particular case, which is voidable either by way of direct appeal or pursuant to the provisions of Civ.R. 60(B).” (Citations omitted.) Smith at ¶ 15.

{¶ 13} The Tenth District explained that, although its earlier decisions in McCoy,Winship, and Barnes had “combined the word ‘void’ with ‘jurisdiction,’ the cases do not stand for the proposition that a court lacks subject matter jurisdiction over an expungement applicant. * * * Because the judgments in those cases were properly challenged on direct appeal, the court had the necessary power to ‘void’ the ‘voidable’ judgments.” Id. at ¶ 12.

{¶ 14} Then, in 2010, the Eighth Appellate District followed Smith and held that its own rule in Thomas had been “superseded by a more accurate and thorough understanding of the nuances of ‘jurisdiction.’ ” See Mayfield Hts. v. N.K., 8th Dist. No. 93166, 2010-Ohio-909, 2010 WL 877524, ¶ 29. In that case, months after it had granted an expungement, the trial court sua sponte vacated the order upon learning that the applicant was not a first offender. The appellate court held that the order granting expungement to an applicant who was later discovered to be ineligible for expungement because he was not a first offender was voidable. Id. at ¶ 29. Therefore, the judgment would be subject to attack only by direct appeal or a Civ.R. 60(B) motion. Id. Because the judgment was merely voidable, the trial court had no authority to sua sponte vacate it. Id. at ¶ 30.

{¶ 15} In Mayfield Hts., the Eighth District also relied on the reasoning of the Second Appellate District in State v. Wilfong, 2d Dist. No. 2000–CA–75, 2001 WL 256326 (Mar. 16, 2001). In Wilfong, the state had moved to vacate an expungement order well over a year after its issuance, arguing that the judgment was void for lack of jurisdiction. The court reasoned that “[a] judgment may only be declared void for lack of jurisdiction if the case does not fall within a class of cases over which the trial court has subject matter jurisdiction.” On the other hand, the court noted, a court's “exercise of jurisdiction * * * encompasses the trial court's authority to determine a specific case within that class of cases that is within its subject matter jurisdiction.” The court held that the trial court had had subject-matter jurisdiction over criminal cases, including motions for expungement, so that its judgment granting the expungement was voidable, not void. Id.;see also State v. Powers, 5th Dist. No. 02 CA 39, 2002-Ohio-6672, 2002 WL 31730985 (a trial court's improper exercise

[975 N.E.2d 570]

of jurisdiction in granting an expungement resulted in a voidable order).

It's Void.

{¶ 16} To further demonstrate the pinball nature of the case law in the area of expungements, just last year the Second Appellate District cited the Eighth District's rule in Thomas, the 1979 case that that court had later abrogated in Mayfield Hts., in reliance on the Second District's 2001 Wilfong decision. See State v. Stephens, 195 Ohio App.3d 724, 2011-Ohio-5562, 961 N.E.2d 734 (2d Dist.). In Stephens, the Second District held that because an applicant did not qualify as a first offender, he was not eligible for expungement. Id. at ¶ 25. The court held that “[t]he trial court lacked jurisdiction to grant Defendant's application for expungement, and its order doing so is void and must be vacated.” Id.

{¶ 17} And the Tenth Appellate District held in 2011 that a trial court did not have jurisdiction to grant an expungement where the applicant was not a first offender, so that the resulting judgment was void. See State v. Knapp, 10th Dist. No. 11AP–32, 2011-Ohio-3792, 2011 WL 3300157.

{¶ 18} Admittedly, Stephens and Knapp each involved a direct appeal by the state of a trial court's expungement order whereas Mayfield Hts.,Wilfong and Smith had each involved an expungement order that, because it was only voidable, had not been timely appealed. But these cases illustrate that in the context of expungements, courts have been distracted by the terminology (“void,” “voidable,” and “jurisdiction”) and have lost sight of the expungement statute itself. The statute, R.C. 2953.32, grants trial courts only a limited power to expunge criminal records.

No Authority to Act

{¶ 19} We recognize that Mayfield Hts. and Smith reached their conclusions that an order granting expungement to an unqualified applicant...