State v. Potts

[Cite as State v. Potts, 2018-Ohio-2074.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NOS. 2017-T-0089
- vs - : 2017-T-0090
REGGIE L. POTTS, :
Defendant-Appellant. :
Criminal Appeals from the Trumbull County Court of Common Pleas.
Case Nos. 93 CR 360 & 94 CR 159.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor; Diane Barber and Ashleigh Musick,
Assistant Prosecutors, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-
Appellee).
Matthew O. Williams, 21055 Lorain Avenue, Cleveland, OH 44126 (For Defendant-
Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Reggie L. Potts, appeals from the August 21, 2017 judgment of
the Trumbull County Court of Common Pleas, denying appellant’s applications to seal his
record of convictions in case Nos. 1993 CR 360 and 1994 CR 159, which were
consolidated for review. The judgment is affirmed.
{¶2} Appellant was the Bazetta Township Chief of Police from 1978 until 1993.
In 1993, appellant was indicted on four counts for misconduct related to his position as
Chief of Police (case No. 1993 CR 00360). A jury found appellant guilty of Counts Three
and Four: Theft in Office, a third-degree felony in violation of R.C. 2921.41(A)(2), which
occurred on or about August 9, 1987; and Falsification, a first-degree misdemeanor in
violation of R.C. 2921.13(A)(5), which occurred on or about October 17, 1989.
{¶3} Appellant was indicted a second time in 1994 on two counts related to his
position as Chief of Police (case No. 1994 CR 00159). Appellant pled guilty to a reduced
charge of Tampering with Records, a first-degree misdemeanor in violation of R.C.
2913.42(A)(1), which occurred on or about January 1, 1991, through March 1992; the
second count was dismissed.
{¶4} Appellant was sentenced in both cases on December 12, 1994. In the 1993
case, appellant was sentenced to a combined 18 months in prison and fined $1,000.00.
The trial court suspended the prison sentence, and appellant was placed on probation for
five years with the special condition that he serve 60 days of house arrest. The conviction
was affirmed in State v. Potts, 11th Dist. Trumbull No. 95-T-5182, 1996 WL 297006 (May
10, 1996) (“Potts I”). In the 1994 case, appellant was sentenced to six months in jail and
fined $1,000.00. The trial court suspended the jail sentence, and appellant was placed
on probation for two years with the special condition that he serve 60 days of house arrest.
The sentence was run concurrently with the sentence imposed in the 1993 case.
Appellant’s probation was terminated on November 7, 1997.
{¶5} After completing his probation, in 2000, appellant moved to have the record
of these convictions sealed. The trial court ordered the records sealed based on its
finding that the three convictions were all part of the same act because they were
investigated at the same time and they all occurred in relation to appellant’s employment
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as Chief of Police. The state of Ohio appealed that decision, and this court reversed the
trial court’s judgment in State v. Potts, 11th Dist. Trumbull Nos. 2001-T-0016 & 2001-T-
0017, 2001 WL 1647209 (Dec. 21, 2001) (“Potts II”).
{¶6} At the time of his 2000 application, R.C. 2953.32(A)(1) provided, in pertinent
part: “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 * * * for the sealing of the conviction
record.” (Emphasis added.) The definition of “first offender” was found in former R.C.
2953.31(A):
‘First offender’ 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. 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.
{¶7} This court held that appellant was not a “first offender” because he was
convicted of three distinct offenses that did not involve the same act and were not
committed at the same time. Potts II, supra, at *3. The following analysis was used in
reaching this conclusion:
The three convictions in this case are not related enough to be
considered the same offense. The only connection between these
crimes is that they were all committed in relation to Potts’
employment. The crimes Potts committed occurred first in 1987,
then in 1989, and finally over a period of time in 1991-1992. There
is nearly five years separating these offenses. The first offense
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involved lending a loaned car, with undercover license plates issued
to the police department, to a friend for an out-of-state trip. This
offense is in no way related to the second offense, falsifying a
document, by asserting an individual worked at the Bazetta Police
Department, which was an untrue statement. Neither of these first
two offenses have anything to do with the final conviction, tampering
with the drug unit records.
Id. The trial court’s judgment was reversed, and the record of appellant’s convictions
remained unsealed.
{¶8} Relevant to the instant appeal, on June 22, 2017, appellant again filed
applications in both cases to seal the record of his convictions. Appellee, the state of
Ohio, responded in opposition that appellant is not eligible to have his records sealed
based on the definition of “eligible offender” found in the revised statute.
{¶9} “The statutory law in effect at the time of the filing of an R.C. 2953.32
application to seal a record of conviction is controlling.” State v. LaSalle, 96 Ohio St.3d
178, 2002-Ohio-4009, paragraph two of the syllabus.
{¶10} R.C. 2953.32(A)(1) now, and at the time of appellant’s 2017 application,
provides, in pertinent part: “Except as provided in section 2953.61 of the Revised Code,
an eligible offender may apply to the sentencing court if convicted in this state * * * for the
sealing of the record of the case that pertains to the conviction.” (Emphasis added.) The
definition of “eligible offender” is found in current R.C. 2953.31(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, 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
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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.
{¶11} Accordingly, appellant remained ineligible to have his records sealed unless
at least two of his three convictions (one felony and two misdemeanors) are considered
as one conviction under one of the circumstances listed in R.C. 2953.31(A).
{¶12} The trial court denied appellant’s applications based on its conclusion that
appellant remains ineligible and that it, therefore, lacks jurisdiction to consider them. The
trial court stated that, although the analysis in this court’s Potts II opinion related to a
former version of the statute, the reasoning remains the same, and it adopted that
reasoning. In short, the trial court concluded the offenses were separate, distinct crimes
and were not committed within a three-month period of each other.
{¶13} Appellant noticed a timely appeal and asserts two assignments of error:
[1.] The trial court erred and prejudiced Appellant by concluding this
Honorable Court’s Holding in [Potts II] denies the Trial Court
jurisdiction to grant Appellant’s second application to seal his
records.
[2.] The Trial Court erred and prejudiced Appellant by concluding his
convictions in [1993 CR 360] cannot be counted together the present
definition of ‘eligible offender’ as stated in R.C. 2953.32(A) [sic].
Appellant argues the trial court erred in making the preliminary determination that
appellant was not eligible for expungement based on the statutory requirements.
{¶14} “Our beginning principle is that expungement is a state-created act of grace
and ‘is a privilege, not a right.’ State v. Simon, 87 Ohio St.3d 531, 533 (2000). A trial
court may only grant expungement when an applicant meets all of the statutory
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requirements. State v. Hamilton, 75 Ohio St.3d 636, 640 (1996).” State v. Williamson,
10th Dist. Franklin No. 12AP-340, 2012-Ohio-5384, ¶10; see also State v. Pollard, 11th
Dist. Ashtabula No. 2016-A-0004, 2016-Ohio-4744, ¶11-12.
{¶15} “The trial court’s preliminary determination as to whether the statutory
eligibility requirements for sealing a conviction apply is a question of law that this court
reviews de novo.” State v. Widener, 2d Dist. Miami No. 2013 CA 29, 2014-Ohio-333, ¶8
(citations omitted); see also State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶6.
{¶16} Appellant’s first assignment of error states the trial court concluded that our
opinion in Potts II denied it jurisdiction to consider the applications. This is a misstatement
of the trial court’s conclusion, which actually held it lacked jurisdiction to consider the
applications because appellant is ineligible under the statute. To the extent appellant is
arguing the trial court erred in adopting the analysis in Potts II in reaching that conclusion,
the assignment of error is not well taken.
{¶17} In Potts II, this court applied a former version of the statute that has since
been revised by eliminating the requirement that an applicant be a true “first offender”
and, instead, permitting a broader class of “eligible offenders” to apply for expungement.
The decision in Potts II, however, was based on a portion of R.C. 2953.31(A) that has
remained unchanged during the statutory revisions, to wit: “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.” Thus, contrary to appellant’s
assertion, the relevant portion of the statute, as written today, did exist at the time
appellant applied for expungement in 2000.
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{¶18} This court’s application of that portion of the statute, which has remained
unchanged, to appellant’s 1993 and 1994 convictions remains the law of the case. Nolan
v. Nolan, 11 Ohio St.3d 1, 3 (1984) (“[T]he [law of the case] doctrine provides that the
decision of a reviewing court in a case remains the law of that case on the legal questions
involved for all subsequent proceedings in the case at both the trial and reviewing
levels.”); see also State v. Rose, 11th Dist. Lake No. 2016-L-067, 2017-Ohio-4235, ¶15.
{¶19} Appellant’s first assignment of error is without merit.
{¶20} Under his second assignment of error, appellant argues the trial court erred
by not considering the felony conviction and misdemeanor conviction in 1993 CR 360 as
a single conviction for purposes of eligibility.
{¶21} Initially, appellant correctly asserts this is a question of law subject to de
novo review. He then asserts, however, that “[t]he trial court had the discretion to count
the applicant’s convictions in case No. 94-CR-154 as a single conviction rendering the
applicant an eligible offender.” (Emphasis added.) This assertion is meritless, as the
initial determination of eligibility is not discretionary. Additionally, there was only one
conviction in the 1994 case. We can only assume this is an inadvertent error and will
proceed with the argument as it pertains to the convictions in the 1993 case, as stated in
the assignment of error.
{¶22} Nevertheless, the argument is not well taken. As held above, it is the law
of the case that the convictions in the 1993 case did not “result from” the same act, were
not “connected with the same act,” and did not “result from offenses committed at the
same time.” See R.C. 2953.31(A). Additionally, the offenses in the 1993 case “were not
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committed within a three-month period”; they were committed over two years apart. See
id.{¶23} Appellant argues the statute is ambiguous and should not be read in the
conjunctive, as it is written. In other words, appellant would have us read an “or” where
the legislature inserted an “and.” His preferred drafting of the statute would read as
follows: “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, [OR] 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[.]”
{¶24} “The cornerstone of statutory interpretation is legislative intention. In order
to determine legislative intent it is a cardinal rule of statutory construction that a court
must first look to the language of the statute itself. ‘If the meaning of the statute is
unambiguous and definite, it must be applied as written and no further interpretation is
necessary.’” State v. Evankovich, 7th Dist. Mahoning No. 09 MA 168, 2010-Ohio-3157,
¶6, quoting State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio
St.3d 543, 545 (1996) (internal citations omitted). To determine legislative intent, courts
are duty-bound to give effect to the words used in the statute—not to delete words or
insert words. Id. at ¶7, citing Bernardini v. Conneaut Area City School Dist. Bd. of Edn.,
58 Ohio St.2d 1, 4 (1979).
{¶25} Appellant’s ambiguity argument is entirely untenable. The statute is clear
and unambiguous, and there is no basis for this court, in contravention of the legislature,
to unilaterally delete the word “and” in order to insert the word “or” at appellant’s behest.
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{¶26} Appellant’s second assignment of error is without merit.
{¶27} We conclude the trial court did not err in determining appellant was not an
“eligible offender” as defined in R.C. 2953.31(A). Therefore, the trial court did not have
discretion to consider appellant’s applications to seal his record of convictions.
{¶28} The judgment of the Trumbull County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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