State v. Rogers

[Cite as State v. Rogers, 2013-Ohio-1865.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. CT2012-0042
DAVID N. ROGERS :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court,
Case No. CRB 0900585
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: May 3, 2013
APPEARANCES:
For Appellant: For Appellee:
MICHAEL HADDOX DAVID N. ROGERS, pro se
MUSKINGUM CO. PROSECUTOR 1321 Cooper Mill Road
MARIA N. KALIS Zanesville, OH 43701
27 North 5th Street
Zanesville, OH 43701
[Cite as State v. Rogers, 2013-Ohio-1865.]
Delaney, P.J.
{¶1} Appellant State of Ohio appeals from the judgment entry of the
Muskingum County Court granting the application of appellee David N. Rogers to seal
the record of his conviction.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's original conviction is
unnecessary to our disposition of this appeal, which originated with appellee’s pro se
“Motion” of May 18, 2012 asking the trial court to “seal the record of conviction from
case no 0900585 and CVB09585 namely the charge of weapon while intoxicated ***.”
{¶3} Appellant responded with a Memorandum in Opposition on the basis
appellant is not a “First Offender” and stating in pertinent part:
* * * *.
The State would object to the sealing of this conviction for the
following reason: it would appear from [appellee’s] criminal history
that applicant does not qualify as a first offender; convictions are
noted for a 1984 OVI conviction from Zanesville Municipal Court
and a 1982 OVI conviction from Muskingum County Court. The
Court should have a copy of [appellee’s] CCH in its file; also,
please see attached dockets from Zanesville Municipal Court and
a certified copy of the docket from Muskingum County Court.
* * * *.
{¶4} The original Memorandum in Opposition contained in the record does not
include any attachments. Nor were we able to find any docket in the record from
Muskingum County, Case No. CT2012-0042 3
Zanesville Municipal Court or Muskingum County Court, nor any other document or
exhibit reflecting appellee’s alleged past convictions.
{¶5} A hearing was held on June 28, 2012. The record of the hearing is
before us, and it consists almost entirely of the trial court explaining the process of
expungement to appellee. The trial court noted appellant would have to establish
appellee’s prior convictions. No exhibits were offered by either party and the trial
court gave appellee 10 days to provide additional information.
{¶6} Appellee provided a pro se “Memorandum” dated July 2, 2012 to which
is attached a letter from the Clerk of the Zanesville Municipal Court stating the
following: “Please be advised that David Rogers came into my office on June 28,
2012 requesting information from a 1984 OVI case in the Zanesville Municipal Court.
Those records were destroyed years ago and that information is no longer available.”
{¶7} On August 10, 2012 the trial court issued a Judgment Entry granting
appellee’s application to seal the record of his conviction. Appellant timely appeals
from the trial court’s Judgment Entry.
{¶8} Appellant raises one Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED BY GRANTING THE EXPUNGEMENT
REQUEST OF DEFENDANT/APPELLEE, DAVID N. ROGERS, AS HE WAS NOT A
FIRST TIME OFFENDER AND WAS INELIGIBLE FOR EXPUNGEMENT.”
I.
{¶10} Appellant asserts the trial court improperly granted appellee’s application
to seal the record of his conviction. We agree.
Muskingum County, Case No. CT2012-0042 4
{¶11} The version of R.C. 2953.32 in effect at the time of the court’s ruling1
permits sealing of the record of a “first offender,” defined in R.C. 2953.31(A)2 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 * * * *.” Moreover, “* * * a trial court lacks
jurisdiction to order expungement if the applicant was not a first offender.” State v.
May, 72 Ohio App.3d 664, 667, 595 N.E.2d 980 (8th Dist.1991); State v. Coleman,
117 Ohio App.3d 726, 691 N.E.2d 369 (1st Dist.1997); State v. McCoy, 10th Dist. No.
04AP-121, 2004-Ohio-6726, ¶ 11 [“* * *[t]he issue is appropriately considered on
appeal, as the first offender requirement of R.C. 2953.32 is jurisdictional.”].
{¶12} We have thoroughly reviewed the transcript of the hearing and the entire
record of the underlying case, and disagree with the State’s characterization that the
trial court “acknowledged that [appellee], in fact, was not a first time offender by
referencing a prior conviction for OVI.” The status of appellee’s prior conviction, if it
exists, is not evident from the record. Although it would be helpful had appellant
submitted certified copies of the convictions(s) upon which its objection and
subsequent appeal is based, we recognize, however, that appellant is not required to
do so and need only register its objection to appellee’s application to seal. It has been
held that the state need not submit a certified copy of a defendant’s prior convictions
which would defeat the defendant’s status as a first-time offender. May, supra, 72
Ohio App.3d at 667. R.C. 2953.32(B) indicates that to oppose the application for
1
R.C. 2953.32 was amended effective September 28, 2012. The amended statute
broadens the class of those who may apply to have their records sealed from “first
offenders” to “eligible offenders.”
Muskingum County, Case No. CT2012-0042 5
expungement, the prosecutor need only file an objection with the court, prior to the
day of hearing, and specify in the objection the reasons which justify denial of the
application.
{¶13} The status of the applicant as a first offender is essential to jurisdiction of
the trial court, however, and the obligation rests with the court to determine whether
defendant is an eligible offender. The trial court did not make such finding in this
case. The version of R.C. 2953.32 in effect at the time of the hearing states in
pertinent part:
(A)(1) 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. 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.
* * * *.
(B) Upon the filing of an application under this section, the court
shall set a date for a hearing and shall notify the prosecutor for the
case of the hearing on the application. The prosecutor may object
to the granting of the application by filing an objection with the
court prior to the date set for the hearing. The prosecutor shall
specify in the objection the reasons for believing a denial of the
2
The former version of R.C. 2953.31, in effect until September 27, 2012.
Muskingum County, Case No. CT2012-0042 6
application is justified. The court shall direct its regular probation
officer, a state probation officer, or the department of probation of
the county in which the applicant resides to make inquiries and
written reports as the court requires concerning the applicant.
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is a first offender or whether
the forfeiture of bail was agreed to by the applicant and the
prosecutor in the case. If the applicant applies as a first offender
pursuant to division (A)(1) of this section and has two or three
convictions that 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, in making
its determination under this division, the court initially shall
determine whether it is not in the public interest for the two or
three convictions to be counted as one conviction. If the court
determines that it is not in the public interest for the two or three
convictions to be counted as one conviction, the court shall
determine that the applicant is not a first offender; if the court does
not make that determination, the court shall determine that the
offender is a first offender.
Muskingum County, Case No. CT2012-0042 7
(b) Determine whether criminal proceedings are pending against
the applicant;
(c) If the applicant is a first offender who applies pursuant to
division (A)(1) of this section, determine whether the applicant has
been rehabilitated to the satisfaction of the court;
(d) If the prosecutor has filed an objection in accordance with
division (B) of this section, consider the reasons against granting
the application specified by the prosecutor in the objection;
(e) Weigh the interests of the applicant in having the records
pertaining to the applicant's conviction sealed against the
legitimate needs, if any, of the government to maintain those
records.
* * * *.
{¶14} R.C. 2953.32(B) requires the court to direct a probation officer or
department to investigate the state's allegations and file a written report with the court.
The Ohio Supreme Court has reiterated that “the procedure outlined for an
expungement hearing requires the court to direct a probation official ‘to make inquiries
and written reports' regarding information relevant to its inquiry.” State v. Hamilton, 75
Ohio St.3d 636, 639, 665 N.E.2d 669 (1996).
{¶15} We note the trial court’s judgment entry makes no reference to whether
appellee was found to be a first offender. The trial court may not infer jurisdiction,
therefore, we find the court lacked jurisdiction to grant the application to seal. The trial
court had an obligation to determine the effect of the alleged prior conviction as
Muskingum County, Case No. CT2012-0042 8
required by R.C. 2953.32(B). Because defendant's legal status as a first offender was
not properly evaluated by the trial court, the case must be reversed and remanded for
determination of the trial court's jurisdiction to grant the application to seal.
{¶16} The judgment of the Muskingum County Court is vacated and the matter
is remanded for further proceedings consistent with this Opinion.
By: Delaney, P.J.
And Farmer, J. concur.
Hoffman, J. dissents
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
Muskingum County, Case No. CT2012-0042 9
Hoffman, J., dissenting
{¶17} I respectfully, dissent from the majority opinion.
{¶18} Unlike the majority, I find the trial court had jurisdiction to grant the
application to seal. I find the trial court’s subject matter jurisdiction was properly
invoked by Appellee’s filing of the application to seal. Upon doing so, the trial court
must determine Appellee’s eligibility as a first offender. Any error made in that
determination is subject to appellate review. While the trial court may have erred in its
determination or the procedure in which it arrived at its determination3, I believe it had
jurisdiction to exercise it.
{¶19} I am left with Appellant’s allegation in its Memorandum in Opposition,
Appellee had two prior disqualifying convictions. Appellee presented evidence of the
lack of any record of the 1984 OVI conviction. There is no record evidence Appellee
had a 1982 OVI conviction.
{¶20} While the trial court may have granted the application prematurely in the
absence of a proper investigation by probation, the record before us fails to reflect any
document, exhibit, or testimony regarding a 1982 OVI conviction of Appellant in the
Muskingum County Court.
{¶21} Because the record fails to affirmatively demonstrate Appellee was not a
first offender, I would affirm the trial court’s decision.
_______________________________
_
HON. WILLIAM B. HOFFMAN
3
While the trial court may have failed to order an investigation through the appropriate
probation officer and/or agency, Appellant has not assigned such possible failure as
error in this Court.
[Cite as State v. Rogers, 2013-Ohio-1865.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
DAVID N. ROGERS :
:
: Case No. CT2012-0042
Defendant-Appellee :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Muskingum County Court is reversed, the judgment is vacated, and the matter is
remanded for further proceedings consistent with this Opinion. Costs assessed to
appellee.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER