[Cite as State v. Potts, 2020-Ohio-989.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                       TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :       OPINION

                   Plaintiff-Appellee,            :
                                                          CASE NOS. 2019-T-0038
          - vs -                                  :                 2019-T-0039

 REGGIE L. POTTS,                                 :

                   Defendant-Appellant.           :


 Civil Appeals from the Trumbull County Court of Common Pleas.
 Case Nos. 1993 CR 00360 and 1994 CR 00159.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor; Ashleigh Musick and Ryan J. Sanders,
 Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W.,
 Warren, OH 44481 (For Plaintiff-Appellee).

 Harry R. Reinhart, Reinhart Law Office, One Americana, Suite 301, 400 South Fifth
 Street, Columbus, OH 43215 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}       Appellant, Reggie L. Potts, appeals from two judgments 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. The cases were consolidated

for review both below and on appeal. For the reasons that follow, the judgments are

affirmed.
      {¶2}   In 1993, appellant was indicted on four counts of misconduct related to his

position as Bazetta Township Chief of Police (case No. 1993 CR 00360). A jury found

appellant guilty of two counts: 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}   In 1994, appellant was indicted a second time on two counts of misconduct

also 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 from January 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 suspended prison term of 18 months and was placed

on probation for five years. 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 a suspended jail term of six months and was placed on

probation for two years. The sentences were run concurrently with each other.

      {¶5}   Appellant first moved to have his record sealed in the year 2000. The trial

court found that the three convictions were all part of the same act because they were

investigated simultaneously and occurred in relation to appellant’s position as Chief of

Police. The trial court ordered the records sealed. On appeal by the state of Ohio, the

trial court’s judgment was reversed. This court held that appellant was not a “first

offender” as defined in former R.C. 2953.31(A) and, therefore, was not eligible to have




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the records sealed. State v. Potts, 11th Dist. Trumbull Nos. 2001-T-0016 & 2001-T-0017,

2001 WL 1647209 (Dec. 21, 2001) (“Potts II”).

       {¶6}   In 2011, appellant again attempted to have his records sealed, arguing the

trial court has inherent judicial power to do so in unusual and exceptional circumstances,

regardless of statutory requirements. On appeal from the trial court’s denial, this court

affirmed. We held that appellant’s only available remedy—as a convicted defendant—is

statutory through R.C. 2953.32. State v. Potts, 11th Dist. Trumbull No. 2011-T-0054,

2012-Ohio-741, ¶16 (“Potts III”).

       {¶7}   In 2017, appellant filed applications to seal the record of his convictions,

pursuant to R.C. 2953.32. The trial court denied the applications, and the judgment was

affirmed. We held that appellant was not an “eligible offender” as defined in the statute

at that time. Therefore, the trial court did not have discretion to consider appellant’s

applications. State v. Potts, 11th Dist. Trumbull Nos. 2017-T-0089 & 2017-T-0090, 2018-

Ohio-2074 (“Potts IV”). Appellant’s convictions remained unsealed.

       {¶8}   Relevant to this appeal, on May 6, 2019, appellant again filed applications

to seal the record of his convictions in both cases. He argued that he “would be eligible

to have all three [convictions] sealed under the new provisions of Ohio Revised Code §

2953.31.” Appellee, the state of Ohio, responded in opposition, asserting appellant is not

an “eligible offender” under the revised statutory provisions.

       {¶9}   The trial court denied appellant’s application in each case on the basis that

appellant remains ineligible to have his records sealed, and, therefore, it lacked

jurisdiction to consider the applications.

       {¶10} From these entries, appellant raises one assignment of error for our review:




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              R.C. §2953.32(B) requires the trial court to set a hearing on the
              application which can be opposed by the state. The language of the
              statute is mandatory and not precatory. It is prejudicial and
              reversible error for the trial court to summarily dismiss the application
              without setting it for a hearing.

       {¶11} Under his first issue presented for review, appellant argues that the

unambiguous language of R.C. 2953.32(B) requires the trial court to set the matter for a

hearing whenever an application for the sealing of a record is filed.

       {¶12} We review issues of statutory interpretation de novo. Wayt v. DHSC, L.L.C.,

155 Ohio St.3d 401, 2018-Ohio-4822, ¶15. “When a statute is plain and unambiguous,

we apply the statute as written, and no further interpretation is necessary.” Id. (internal

citations omitted).

       {¶13} R.C. 2953.32(A)(1) states: “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.” The

relevant portion of R.C. 2953.32(B) provides: “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.”

       {¶14} Generally speaking, courts of this state have held that the requirement of a

hearing under this section is mandatory. See, e.g., Aurora v. Bulanda, 11th Dist. Portage

No. 95-P-0130, 1996 WL 648995, *4 (June 14, 1996), citing State v. Saltzer, 14 Ohio

App.3d 394 (8th Dist.1984). “This holding is obviously predicated upon the fact that,

under normal circumstances, a trial court would be required to hear evidence before

rendering its decision on the motion.” Id.; see also State v. Matthews, 6th Dist. Wood No.

WD-14-059, 2015-Ohio-3517 and State v. Hagopian, 10th Dist. Franklin No. 98AP-1572,




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1999 WL 731381 (Sept. 21, 1999) (the trial court’s failure to hold a hearing where the

applicant’s eligibility was in dispute constituted reversible error).

       {¶15} That said, it has also been held that a hearing is not required when it “simply

would serve no purpose.” More precisely, there are circumstances where no factual

issues need resolved in determining an applicant’s eligibility for the sealing of his or her

record. See Bulanda, supra, at *4 (where the applicant was convicted of an offense not

eligible to be sealed under R.C. 2953.36, she “could not have presented any evidence

which could have changed the outcome in this case because the trial court simply had no

discretion to grant her motion”); see also State v. Clark, 4th Dist. Athens No. 11CA8,

2011-Ohio-6354 (a hearing was not required where the applicant conceded he had a prior

conviction and there were no factual questions related to his eligibility) and In re McBride,

10th Dist. Franklin Nos. 13AP-658, 13AP-680, 2013-Ohio-5718 (a hearing was not

required where the applicant’s second motion to seal his records was barred by res

judicata).

       {¶16} We conclude, and logic dictates, that when there are no factual issues

related to an applicant’s eligibility for the sealing of a record of conviction, a hearing on

the matter is not required under the statute.

       {¶17} The first issue presented by appellant is not well taken.

       {¶18} Under his second issue presented for review, appellant argues it was

reversible error for the trial court to dismiss his applications without first setting the matter

for a hearing. As stated, whether the trial court was required to set the matter for a hearing

depends on whether factual issues exist as to appellant’s eligibility under the statute.




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       {¶19} The trial court held appellant was not eligible to have his records sealed

under the version of the statute in effect at the time of his May 6, 2019 applications. This

determination is also reviewed de novo. Potts IV, supra, at ¶15, quoting State v. Widener,

2d Dist. Miami No. 2013 CA 29, 2014-Ohio-333, ¶8 (“‘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.’”).

       {¶20} “Sealing of a record of conviction pursuant to R.C. 2953.32 is a

postconviction remedy that is civil in nature.” State v. LaSalle, 96 Ohio St.3d 178, 2002-

Ohio-4009, ¶19, citing State v. Bissantz, 30 Ohio St.3d 120, 121 (1987). “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.” Id. at paragraph two of the syllabus.

       {¶21} Effective as of October 29, 2018, as used in sections 2953.31 to 2953.36 of

the Revised Code, “eligible offender” means either of the following:

              (a) Anyone who has been convicted of one or more offenses, but not
              more than five felonies, in this state * * *, if all of the offenses in this
              state are felonies of the fourth or fifth degree or misdemeanors and
              none of those offenses are an offense of violence or a felony sex
              offense * * *;

              (b) Anyone who has been convicted of an offense in this state or any
              other jurisdiction, to whom division (A)(1)(a) of this section does not
              apply, 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 related criminal acts that



                                               6
              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.

R.C. 2953.31(A)(1)(a)-(b) (emphasis added).

       {¶22} The language of division (A)(1)(b) has not been revised since our decision

in Potts IV. Twice now, this court has concluded that appellant is not eligible to have his

records sealed pursuant to this language. We initially determined appellant had been

convicted of three distinct offenses that did not involve the same act and that were not

committed at the same time. Potts II, supra, at *3. Subsequently, we held that none of

the offenses were committed within a three-month period. Potts IV, supra, at ¶22.

       {¶23} Accordingly, it is the law of the case that appellant is not an “eligible

offender” under the definition found in (A)(1)(b). See id. at ¶18, citing Nolan v. Nolan, 11

Ohio St.3d 1, 3 (1984) (“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”).

       {¶24} Appellant is also not an “eligible offender” under the language found in the

newly added division (A)(1)(a). His felony conviction for Theft in Office was a felony of

the third degree—not, as is required, a felony of the fourth or fifth degree. There is no

evidence appellant could have submitted at an evidential hearing to change this outcome.

       {¶25} As appellant is not an “eligible offender,” as a matter of law, under either

definition found in R.C. 2953.31(A)(1), the trial court was not required to set the matter

for a hearing before dismissing appellant’s applications.

       {¶26} The second issue is not well taken.



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       {¶27} Appellant’s sole assignment of error is without merit. The trial court did not

commit prejudicial or reversible error by dismissing appellant’s applications to seal his

records of conviction without setting the matter for a hearing.

       {¶28} The judgments of the Trumbull County Court of Common Pleas are

affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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