[Cite as State v. Black, 2015-Ohio-4256.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellant,                :                       No. 15AP-539
                                                                         (C.P.C. No. 14EP-536)
v.                                                   :
                                                                 (ACCELERATED CALENDAR)
Aleicia D. Black,                                    :

                 Defendant-Appellee.                 :




                                            D E C I S I O N
                                            NUNC PRO TUNC1

                                   Rendered on November 20, 2015


                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

        {¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision of the Franklin
County Court of Common Pleas that granted Aleicia Black's2 application to seal records of
a criminal conviction. We conclude that Black is ineligible to have her criminal records
sealed until the expiration of the three-year statutory period in R.C. 2953.32(A)(1), even
though the trial court found that she had satisfied the requirements of R.C. 2953.32(C).
We therefore reverse with instructions to dismiss her application to seal her records of a
criminal conviction.3



1 This decision replaces, nunc pro tunc, the nunc pro tunc decision released October 15, 2015, and is effective

as of that date. Specifically, this decision indicates Judge Sadler concurs in judgment only.

2 The record varies the spelling of Black's name between Aleicia and Alecia. The application giving rise to
this case spells it Aleicia and is the spelling used herein.

3We specifically do not determine in our decision what final discharge is for the purposes of sealing criminal
records when the requirements of a community control sentence are completed after community control has
been terminated.
No. 15AP-539                                                                              2

I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} By entry filed August 7, 2009, Black was convicted of a fifth-degree felony,
in violation of R.C. 2925.11, entitled "possession of controlled substances," and sentenced
to a period of 2 years of community control, including a requirement to complete 150
hours of community service. On July 12, 2011, the probation department requested that
her probation be revoked based on her failure to complete 115.25 hours of her 150-hour
community service requirement. The trial court held a hearing on August 2, 2011, and
concluded that, although Black had not completed her community service requirement,
probation need not be revoked. Instead, the court terminated Black from probation as
"Unsuccessful."
       {¶ 3} On August 4, 2014, Black applied to have her conviction records sealed
pursuant to R.C. 2953.32. On October 9, 2014, the state objected on grounds that Black
had not completed her community service requirement. The state also noted, "until it can
be established that applicant has completed community service and fulfilled the
mandatory waiting period, applicant remains ineligible to seal this record." (Objections,
2.) The trial court held a hearing on the matter on April 28, 2015. During the hearing,
Black introduced evidence (a copy of which is in the record before us by way of
supplemental filing) to show that she had volunteered an additional 116.17 hours through
Volunteers of America. (Supplemental Record shows 116 hours and 10 minutes.)
       {¶ 4} Based on the fact that Black had been terminated from probation and had
thereafter completed her community service, the trial court granted Black's application.
The state now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 5} The state advances a single assignment of error for our review:
               THE TRIAL COURT LACKED JURISDICTION TO SEAL
               THE RECORD OF CONVICTION, WHERE DEFENDANT
               HAD NOT FULFILLED THE MANDATORY WAITING
               PERIOD.

III. DISCUSSION
       {¶ 6} Sealing records in Ohio is a two-step process. In the first step, a trial court
is called on to determine if a person is eligible. The specific requirements for eligibility
vary depending on whether a person is seeking to seal records of convictions and bail
forfeitures or seeking to seal records relating to arrests and cases ending in "not guilty"
findings, dismissals, and "no bill" verdicts. Compare R.C. 2953.32 with 2953.52. When
No. 15AP-539                                                                               3

an applicant for expungement seeks to seal records of a conviction, he or she must first be
determined to be an "eligible offender"; that is, a court must determine whether his or her
criminal record reflects a permissible number of convictions, that the conviction(s) sought
to be sealed is/are currently eligible to be sealed (based on the time elapsed since the time
of final discharge and the nature of the conviction), and that no criminal proceedings are
then currently pending against the applicant. See R.C. 2953.31(A); 2953.32(A) and
(C)(1)(a) and (b).
       {¶ 7} R.C. 2953.31(A), as amended by 2012 Am.Sub.S.B. No. 337 ("S.B. No. 337")
expanded the number of offenses subject to sealing of the records (also referred to as
"expungement" in some circumstances) in determining whether an applicant is an
"eligible offender":
               [A]nyone 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 has not
               more than one felony conviction, not more than two
               misdemeanor convictions if the convictions are not of the
               same offense, 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.

(Emphasis sic.) S.B. No. 337.
       {¶ 8} Under R.C. 2953.32(C)(1)(a) and (b), when a trial court reviews an
application for the sealing of an adult criminal record, it must determine as a threshold
question whether an applicant is an "eligible offender" as is set forth in R.C. 2953.32(A)
and 2953.31(A). A court lacks jurisdiction to seal records when an applicant is not an
"eligible offender." State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6.
Whether an applicant is an eligible offender is an issue that we review de novo. State v.
Tauch, 10th Dist. No. 13AP-327, 2013-Ohio-5796, ¶ 7.
No. 15AP-539                                                                                 4

       {¶ 9} Once an applicant has been found to be an eligible offender, the statutes
require a court to use its discretion to weigh a number of factors that vary, depending on
whether the person seeks to seal records of convictions and bail forfeitures or records
relating to arrests and cases ending in dismissals, "not guilty" findings, or "no bill"
verdicts. Compare R.C. 2953.32 with 2953.52. When considering sealing records of a
conviction for an eligible offender, a trial court must make statutorily required
determinations of: (1) whether the applicant has been rehabilitated to the satisfaction of
the court, (2) whether the reasons, if any, offered by the prosecutor in any written
objection against sealing the records are persuasive, and (3) whether the interests of the
applicant in having conviction records sealed outweigh the legitimate needs, if any, of the
state to maintain those records. R.C. 2953.32(C)(1)(c) through (e). We review a trial
court's determination on these issues for abuse of discretion. Tauch at ¶ 17.
       {¶ 10} Except as provided in divisions (G), (H), or (I) of R.C. 2953.32, if the trial
court finds that a person is eligible and using its discretion determines that the facts
supporting the other required findings should be construed to favor sealing the records of
conviction, the trial court "shall order all official records of the case that pertain to the
conviction or bail forfeiture sealed." (Emphasis added.) R.C. 2953.32(C)(2). The sealing
statutes are remedial and are, therefore, to be construed liberally to promote their
purpose and assist the parties in obtaining justice. State ex rel. Gains v. Rossi, 86 Ohio
St.3d 620, 622 (1999), citing R.C. 1.11; Barker v. State, 62 Ohio St.2d 35, 42 (1980).
       {¶ 11} We recently decided a case factually similar to this in State v. Gainey, 10th
Dist. No. 14AP-583, 2015-Ohio-3119. Gainey had applied for sealing of her records but
had not completed her community service. Id. at ¶ 5. We explained that one of the
requirements for sealing the records of a felony is that the application is made " ' "at the
expiration of three years after the offender's final discharge." ' " Id. at ¶ 10, quoting State
v. Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 9, quoting R.C. 2953.32(A)(1).
Then, in reliance on a recent Supreme Court of Ohio case, we noted that an applicant does
not obtain "final discharge" until the applicant has "served all components of his or her
sentence." Id. at 11, citing State v. Aguirre, __ Ohio St.3d __, 2014-Ohio-4603, ¶ 18;
State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7; State v. Pettis, 133 Ohio
App.3d 618, 619 (8th Dist.1999); Black at ¶ 10; State v. Jordan, 10th Dist. No. 07AP-584,
2007-Ohio-6383, ¶ 7; In re White, 165 Ohio App.3d 288, 2006-Ohio-233, ¶ 7 (10th Dist.).
Aguirre and the other cases cited stand for the proposition that restitution is a component
No. 15AP-539                                                                                                5

of an applicant's sentence and must be paid in full before an applicant is considered to
have obtained "final discharge" for purposes of determining eligibility. See id. at syllabus.
Gainey extended that holding to community service and reasoned that Gainey was "not
currently an eligible offender for purposes of the sealing statute" because she had "not
completed the community service component of her sentence." (Emphasis added.) Id. at
¶ 14.
        {¶ 12} In this case, unlike in Gainey, Black presented evidence that she completed
her community service after her community control4 was terminated unsuccessfully. The
trial court, in its discretion, determined that she satisfied the factors contained in R.C.
2953.32(C)(1)(a) through (e). However, nothing in Gainey abrogates the waiting period
set forth in R.C. 2953.32, the waiting period that begins from the date of final discharge.
R.C. 2953.32(A)(1).        Even if final discharge were determined to be the date Black
completed the remaining community service component of her sentence, Black is
ineligible to have her criminal records sealed until the expiration of the three-year
statutory period set forth in R.C. 2953.32(A)(1). Thus, the trial court lacked jurisdiction to
seal her records.
        {¶ 13} We sustain the state's assignment of error.
IV. CONCLUSION
        {¶ 14} Because R.C. 2953.32 forbids application for sealing of felony conviction
records until "the expiration of three years after the offender's final discharge," we
conclude that she was not an eligible offender at the time the trial court granted her
application to seal her records. Accordingly, we reverse the judgment of the Franklin
County Court of Common Pleas and remand with instructions to the trial court to dismiss
Black's application.
                                                                            Judgment reversed and
                                                                   cause remanded with instructions.

                                      KLATT, J., concurs.
                               SADLER, J., concurs in judgment only.




4 This decision replaces, nunc pro tunc, the original decision released October 13, 2015, and is effective as
of that date. This decision replaces the word “service" with "control" in the second line of ¶ 12 to correct a
clerical error.
