State v. Cresie

I must respectfully dissent from what I view as the overly restrictive reading the majority gives to a statute which I believe should be given a liberal construction. In discussing the enactment of R.C. 2953.31 et seq., the Ohio Supreme Court inBarker v. State (1980), 62 Ohio St.2d 35, 41, 16 O.O.3d 22, 25-26, 402 N.E.2d 550, 555, wrote that the purpose of the expungement statute "is to provide remedial relief to qualified offenders in order to facilitate the prompt transition of these individuals into meaningful and productive roles." The court went on to hold that these remedial provisions are to be liberally construed to promote their purposes. Id.

R.C. 2953.31(A) states that when two or more convictions result from or are connected with the same act, they shall be counted as one conviction. My colleagues in the majority are clearly of the opinion that when two or more offenses were committed at different times and resulted in two convictions, they cannot be counted as one conviction under R.C. 2953.31. As there is no case from the Ohio Supreme Court which compels the reading the majority gives to this statute, and given what the Supreme Court has said about the purpose of the statute, I give it a different reading. I believe that the attempted theft and attempted forgery offenses which were properly before the trial court were clearly connected with the same act.¹ Furthermore, both offenses were misdemeanor offenses involving no violence toward any person. They occurred in 1984. The defendant successfully completed probation in 1988 and has not been convicted of any offenses since then. It is now 1993. Expungement should make it easier for the defendant to become a productive member of society, which is, after all, the purpose of the statute.

This dissent should not be read to mean that I believe that every instance that involves a series of crimes which occur at or near the same time or a single crime spree would entitle the perpetrator to an expungement as a first offender. I believe each case must be individually scrutinized, based upon its own particular facts and circumstances. Considerable deference should be given to the trial court, which is in the best position to make this individualized review. I find that in this case the trial court properly granted the application for expungement to this defendant. I would therefore affirm the decision of the trial court.

¹ The entire issue of a misdemeanor conviction in municipal court for filing a false alarm was not properly before the trial court because it was not properly introduced and proved by the state pursuant to R.C. 2953.32(E). Therefore, the relationship of that charge to the ones before the trial court in the case at bar and the question of whether that disqualifies the defendant from first-offender status is not considered either in the majority decision or in this dissent.