State v. Coleman ( 1997 )

The state appeals from the judgment of the trial court granting defendant-appellee Timothy Coleman's motion to expunge his 1975 conviction for possession of narcotics for sale. In its sole assignment of error, the state argues that the trial court erred as a matter of law in granting the expungement because Coleman was not a first offender.¹

Under R.C. 2953.32, a "first offender" may apply to the sentencing court for the sealing of the record of his conviction after the expiration of certain time limits. A "first offender" for purposes of R.C. 2953.32 "means 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).

In order for the trial court to have jurisdiction to expunge the record of conviction, the defendant-applicant must be a first offender. State v. May (1991), 72 Ohio App.3d 664,595 N.E.2d 980; State v. Saltzer (1985), 20 Ohio App.3d 277, 20 OBR 368, 485 N.E.2d 831. The trial court has no discretion in this regard.

It is undisputed that Coleman has four prior convictions of record which were entered when Coleman was between the ages of eighteen and twenty-one. Coleman argued in this court and below that because he was under the age of twenty-one at the time of the four prior convictions, the convictions were juvenile adjudications and should not count against him. However, Coleman's argument misinterprets the law.

Proceedings in juvenile court are not considered in determining first-offender status because these proceedings are not criminal.² When the juvenile court finds a "child" guilty of breaking the law, the child is not convicted, but adjudicated delinquent. A "child" for purposes of the juvenile delinquency law means a person who is under the age of eighteen years. R.C. 2151.011(B)(1)(a). This was also the definition of a "child" at the time of Coleman's prior convictions. R.C.2151.01(B)(1) (promulgated in 1953 and repealed in 1989).

Coleman's four previous convictions occurred when he was between the ages of eighteen and twenty-one. He was not adjudicated delinquent before the juvenile court, but convicted in "adult court." Therefore, Coleman is not a first offender and the trial court did not have jurisdiction to grant the expungement. The assignment of error is sustained, and the judgment of the trial court is vacated for want of jurisdiction.

Judgment vacated.

SUNDERMANN, J., concurs.

MARIANNA BROWN BETTMAN, P.J., concurs separately.

¹ We have sua sponte removed this case from the accelerated calendar.

² However, if a defendant under the age of eighteen is bound over to the appropriate "adult court," a subsequent finding of guilt does count as a conviction for purposes of the expungement statute. See R.C. 2151.011(B)(1)(a).