State v. Singh , 2020 Ohio 5604 ( 2020 )

[Cite as State v. Singh, 2020-Ohio-5604.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
RAJINDER SINGH NKA RAJINDER MALHI,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0141
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2002 CR 551
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Paul Gains, Mahoning County Prosecutor and Atty. Ralph Rivera, Assistant
Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. Richard Hoppel, Richard V. Hoppel Co., LPA, 16688 St. Clair Avenue, East
Liverpool, Ohio 43920, for Defendant-Appellant.
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Dated:
December 4, 2020
Donofrio, J.
{¶1} Defendant-appellant, Rajinder Singh, n.k.a. Malhi, appeals from a
Mahoning County Common Pleas Court judgment denying his application to seal his
criminal record.
{¶2} Appellant was a licensed physician and became addicted to prescription
pain medication. In order to support his addiction, appellant abused his position as a
physician.
{¶3} In 2000, appellant was convicted of five counts of illegal processing of drug
documents, all fifth-degree felonies, in case number 2000 CR 00415 (Case One). He
was placed in the trial court’s drug court program but was unsuccessfully terminated from
the program in 2001 and was sentenced to prison. Appellant was later granted judicial
release.
{¶4} On May 16, 2002, a Mahoning County Grand Jury indicted appellant in
case number 2002 CR 00551 (Case Two), on seven counts of illegal processing of drugs,
fifth-degree felonies in violation of R.C. 2925.23(B)(1)(F)(2), and five counts of deception
to obtain dangerous drugs, fifth-degree felonies in violation of R.C. 2925.22(A)(B)(2). On
March 10, 2003, appellant pleaded guilty to all counts. The trial court sentenced appellant
to two years of community control, which appellant successfully completed.
{¶5} On November 12, 2019, appellant filed an application to seal his criminal
record in Case Two pursuant to R.C. 2953.31(A)(1). He asserted that his convictions in
Case Two and his convictions in Case One, arose as the result of the same or similar
conduct and that the activities resulting in his convictions were contemporaneous in time
but were investigated and charged separately. Therefore, he asserted the convictions
could be considered as one conviction pursuant to R.C. 2953.31.
{¶6} Plaintiff-appellee, the State of Ohio, filed a response to appellant’s
application arguing that appellant was not an eligible offender due to the number of
felonies he was convicted of.
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{¶7} The trial court overruled appellant’s application, finding that appellant was
not an eligible offender as defined in R.C. 2953.31(A)(1).
{¶8} Appellant filed a timely notice of appeal on December 23, 2019. He now
raises a single assignment of error.
{¶9} Appellant’s assignment of error states:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
APPELLANT’S APPLICATION TO SEAL A CRIMINAL RECORD IN THE
DETERMINATION THAT APPELLANT IS NOT AN ‘ELIGIBLE OFFENDER’
PURSUANT TO THE DEFINITIONS OF AN ELIGIBLE OFFENDER AS
SET FORTH IN O.R.C. §2953.31.
{¶10} Appellant argues that his multiple convictions should actually be counted
as a single conviction under R.C. 2953.31(A)(1)(b), which would result in him being an
eligible offender for having his record sealed. He asserts that multiple convictions
resulting from the same guilty plea are to be considered as one conviction. Additionally,
he contends that even though he was convicted of multiple counts in two different cases,
these separate cases were the result of a single course of conduct which, but for the need
to continue the investigation, would have been contained within one case number.
{¶11} Generally, an appellate court reviews a trial court's disposition of a motion
to seal a record under an abuse of discretion standard. State v. Burnside, 7th Dist.
Mahoning No. 08 MA 172, 2009-Ohio-2653, ¶ 12. But when questions of law are in
dispute, the appellate court reviews the trial court's determination de novo. Id. Whether
an applicant qualifies as an “eligible offender” for purposes of an application to seal the
record of a conviction is an issue of law that we review de novo. State v. A.L.M., 10th
Dist. Franklin No. 16AP-722, 2017-Ohio-2772, ¶ 9.
{¶12} A court may only seal a record when all requirements for eligibility are met.
State v. Tauch, 10th Dist. Franklin No. 13AP-327, 2013-Ohio-5796, ¶ 7. If an applicant
is not an eligible offender, the trial court does not have jurisdiction to grant the application.
Id.{¶13} R.C. 2953.31(A)(1) defines “eligible offender” for purposes of sealing
records. An eligible offender is either:
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(a) 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;
(b) 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.
{¶14} In support of his argument, appellant relies on State v. C.N., 8th Dist.
Cuyahoga No. 108004, 2019-Ohio-4673. In that case, C.N. pleaded guilty to two fifth-
degree felonies and one fourth-degree felony in Case One in Cuyahoga County. In Case
Two in Cuyahoga County, he pleaded guilty to three fifth-degree felonies. He entered the
guilty pleas in both cases at the same time. The trial court sentenced him to one year for
each of the offenses and ordered the sentences to run concurrently. Twelve years later,
C.N. moved to seal the record in both cases. The state opposed the motion arguing C.N.
was not an eligible offender. The trial court found C.N. was an eligible offender because
Case No. 19 MA 0141
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he was involved in a scheme that took place over a six-month period but the counts were
charged in separate cases because of the length of investigation that was necessary to
determine, among other things, restitution. Id. at ¶ 3. Thus, the trial court found both
cases constituted one course of conduct. Id. The state appealed.
{¶15} On appeal, the state argued that C.N. did not qualify as an eligible offender
because he had six felony convictions from Cuyahoga County, which is more than the
“but no more than five felonies” required by R.C. 2953.31(A)(1)(a). Id. at ¶ 9.
{¶16} The Eighth District determined the state’s argument that each felony in
each case is counted as a felony conviction was misplaced. Id. at ¶ 11. It noted that C.N.
pleaded guilty to three felony counts in each case, resulting from two indictments, which
were a result from the “same plea of guilty.” Id. The court pointed out that the trial court
determined C.N.'s convictions to be one conviction because they were a result of one
course of conduct. Id. Thus, the trial court considered C.N.'s two convictions from the
Cuyahoga County cases as one felony conviction for the purposes of expungement. Id.
{¶17} The appellate court, however, found that under the facts, whether C.N.'s
Cuyahoga County convictions were considered as one or two felonies did not matter for
the purpose of his expungement. Id. The court pointed out that at the time of his hearing,
C.N. also had a third-degree felony conviction in Lorain County. Id. at ¶ 12. Therefore,
the court concluded that R.C. 2953.31(A)(1)(b) applied to C.N. instead of R.C.
2953.31(A)(1)(a). Id. The court determined that under R.C. 2953.31(A)(1)(b), C.N. was
not an eligible offender because he had more than one felony conviction. Id. Therefore,
the appellate court found the trial court erred in determining C.N. was an eligible offender
and vacated the trial court's judgment to seal C.N.’s criminal conviction records. Id. at ¶
14-15.
{¶18} The facts of this case differ from those of C.N. In C.N., the trial count
counted C.N.’s three felonies in each case as one offense. Nonetheless, C.N. did not
qualify as an “eligible offender under R.C. 2953.31(A)(1)(a) because he also had a
conviction for a third-degree felony, which took him out of the definition set forth in that
subsection”.
{¶19} In this case, appellant was convicted of 12 felonies in Case Two. R.C.
2953.31(A)(1)(a) specifically states that it applies to “[a]nyone who has been convicted of
Case No. 19 MA 0141
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one or more offenses, but not more than five felonies[.]” (Emphasis added). Thus,
appellant does not meet the definition of “eligible offender” under R.C. 2953.31(A)(1)(a).
{¶20} Next, we must examine whether appellant meets the definition of “eligible
offender” pursuant to R.C. 2953.31(A)(1)(b). In relevant part, R.C. 2953.31(A)(1)(b)
states that an “eligible offender” is someone who has been convicted of an offense and
who has not more than one felony conviction in this state or any other jurisdiction. It goes
on to provide that “[w]hen 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.” R.C. 2953.31(A)(1)(b).
{¶21} Appellant urges us to consider all 12 of his felony convictions in Case Two
as a single conviction. He then askes that we consider this single conviction in Case Two
as part of the same conviction as his five felony convictions in Case One because, he
asserts all convictions are connected with the same act or result from offenses committed
at the same time.
{¶22} Under the terms of the statute, we cannot consider appellant’s 12 felony
convictions in Case Two as a single conviction under R.C. 2953.31(A)(1)(b). They were
all contained in a single indictment. But the dates of the offenses ranged from September
21, 2000 to February 27, 2002, a time period spanning one year and five months.
{¶23} The only provision of R.C. 2953.31(A)(1)(b) under which appellant’s
convictions could possibly be consolidated states that the convictions can be counted as
one if they “result from or are connected with the same act or result from offenses
committed at the same time.” In this case, the convictions resulted from offenses
committed on September 21, 2000; November 10, 2000; December 6, 2000; December
29, 2000; February 1, 2001; October 4, 2001; October 16, 2001; October 31, 2001;
November 1, 2001; December 18, 2001; January 9, 2002; and February 27, 2002.
{¶24} In interpreting the phrase “same act” the Ohio Supreme Court has found
“the ‘same act’ plainly refers to the ‘same conduct.’” State v. Helfrich, 3d Dist. Seneca
No. 13-17-30, 2018-Ohio-638, ¶ 20, quoting State v. Pariag, 137 Ohio St.3d 81, 2013-
Ohio-4010, 998 N.E.2d 401, ¶ 16. When the conduct in question occurs on separate
dates, it suggests the conduct is not the “same act.” Id. at ¶ 22. While appellant’s
convictions were all for similar conduct, because the convictions here spanned a time
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period of a year and five months, they cannot be considered the “same act.” Appellant
committed similar acts on 12 separate dates. Each one required separate “conduct” on
appellant’s part.
{¶25} Thus, the trial court correctly found that appellant does not qualify as an
eligible offender for purposes of having his records sealed.
{¶26} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶27} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, P. J., concurs.
Robb, J., concurs.
Case No. 19 MA 0141
[Cite as State v. Singh, 2020-Ohio-5604.]
For the reasons stated in the Opinion rendered herein, the sole assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.