[Cite as State v. C.N., 2019-Ohio-4673.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellant,            :
                                                                 Nos. 108004 and
                 v.                              :               108007

C.N.,                                            :

                 Defendant-Appellee.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: VACATED AND REMANDED
                 RELEASED AND JOURNALIZED: November 14, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                     Case Nos. CR-06-477912-B and CR-06-477918-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory Ochocki, Assistant Prosecuting
                 Attorney, for appellant.

                 Patrick J. Milligan Co., L.P.A., and Patrick J. Milligan, for
                 appellee.



ANITA LASTER MAYS, P.J.:

                   Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision

to seal the criminal conviction records of defendant-appellee, C.N. After review of
the record, we vacate the decision of the trial court and remand for further

proceedings.

I.    Facts and Procedural History

               In 2006, C.N. pleaded guilty to six felony offenses in two different

cases. In Cuyahoga C.P. No. CR-06-477912-B, C.N. pleaded guilty to two counts of

breaking and entering, fifth-degree felonies, in violation of R.C. 2911.13; and one

count of telecommunications fraud, a fourth-degree felony, in violation of

R.C. 2913.05. In Cuyahoga C.P. No. CR-06-477918-A, C.N. pleaded guilty to one

count of breaking and entering, a fifth-degree felony, in violation of R.C. 2911.13;

one count of theft, a fifth-degree felony, in violation of R.C. 2913.02; and one count

of vandalism, a fifth-degree felony, in violation of R.C. 2909.05. The trial court

sentenced C.N. to one-year prison terms for each offense in both cases, with the

sentences running concurrently to each other.

               On October 29, 2018, C.N. moved to seal the record of convictions in

both cases. The state opposed the motion to seal the record, arguing that C.N. was

not an eligible offender as defined in R.C. 2953.31(A). The trial court conducted a

hearing on the motion to seal the record. The trial court then stated,

      Obviously if I count the case numbers as a felony conviction he’s
      eligible. If I count the counts within the case numbers, he’s ineligible,
      right? So it’s a matter of interpretation, and my thought is that, and I
      do remember this case very well, that [C.N.] and he had some co-
      defendants if I’m not mistaken were involved in a scheme that roughly
      took place at the same time within a six-month period. They were
      charged in separate cases because of the length of investigation that
      was necessary to determine, among other things, restitution. So it
      really I think was one course of conduct.
(Tr. 8-9.) Under the trial court’s interpretation of R.C. 2953.31(A)(1)(a), C.N. was

an eligible offender and it, therefore, granted C.N.’s motion to seal his record of

convictions. As a result, the state filed this appeal and assigns one error for our

review:

      I.    The trail court erred when it found [C.N.] was an eligible
            offender under RC. 2953.31(A).

II.   Eligible Offender

      A.    Standard of Review

              In State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, this

court explained the standard of review for a ruling on a motion to seal a record of

conviction under R.C. 2953.52 as follows:

      Generally, a trial court’s decision to grant or deny a motion to seal
      records filed pursuant to R.C. 2953.52 is reviewed for an abuse of
      discretion. State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-
      5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-
      Ohio-6673, ¶ 7. * * * However, the applicability of R.C. 2953.36 to an
      applicant’s conviction is a question of law that this court reviews de
      novo. State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025,
      ¶ 15, citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918
      N.E.2d 497, ¶ 6.

Id. at ¶ 7. See also State v. Ninness, 6th Dist. Ottawa No. OT-11-024, 2013-Ohio-

974, ¶ 8.

      B.    Whether the Trial Court Erred when it Found [C.N.]
            was an Eligible Offender under R.C. 2953.31(A)

              The purpose of expungement, or sealing a record of conviction, is to

recognize that people may be rehabilitated. State v. Petrou, 13 Ohio App.3d 456,
456, 469 N.E.2d 974 (9th Dist.1984).           When the legislature enacted the

expungement provisions, it recognized that “‘[p]eople make mistakes, but that

afterwards they regret their conduct and are older, wiser, and sadder.           The

enactment and amendment of R.C. 2953.31 and 2953.32 is, in a way, a manifestation

of the traditional Western civilization concepts of sin, punishment, atonement, and

forgiveness.”’ State v. M.D., 8th Dist. Cuyahoga No. 92534, 2009-Ohio-5694, ¶ 8,

quoting State v. Boddie, 170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, ¶ 8

(8th Dist.).

               “‘Expungement is an act of grace created by the state,’ and so it is a

privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041

(2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 665 N.E.2d 669 (1996).

Nonetheless, the Ohio Supreme Court has made it clear that “‘[t]he expungement

provisions are remedial in nature and “must be liberally construed to promote their

purposes.”’” M.D. at ¶ 9, quoting Boddie at id., quoting State ex rel. Gains v. Rossi,

86 Ohio St.3d 620, 716 N.E.2d 204 (1999).

               Before a trial court may exercise its considerable discretion in

determining whether to seal a record of conviction, it must first determine whether

an applicant is an eligible offender. See State v. Helfrich, 2018-Ohio-638, 107

N.E.3d 695, ¶ 16 (3d Dist.).

      Under R.C. 2953.32(A), an “eligible offender” may apply to the
      sentencing court for sealing of the criminal record pertaining to the
      applicant’s conviction. The court must conduct a hearing, and
      determine (a) whether the applicant is an eligible offender; (b)
      whether criminal proceedings are pending against the applicant; and
      (c) whether the applicant has been rehabilitated to the court’s
      satisfaction. R.C. 2953.32(C)(1)(a), (b), and (c). The court must
      further consider the prosecutor’s reasons against granting the
      application, and it must weigh the applicant’s interests in having the
      record sealed against the government’s legitimate needs, if any, to
      maintain the record. R.C. 2953.32(C)(1)(d) and (e).

State v. B.H., 8th Dist. Cuyahoga No. 106380, 2018-Ohio-2649, ¶ 7.

               “Eligible Offender” is defined in R.C. 2953.31(A)(1), as,

      (a) Anyone who has been convicted of one or more offenses, but not
      more than five felonies, in this state or any other jurisdiction, 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 and all of the offenses in another jurisdiction,
      if committed in this state, would be felonies of the fourth or fifth
      degree or misdemeanors and none of those offenses would be 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 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.

               After a review of the limited record, we determine that the state is

incorrect in its interpretation of the statute. The state argued in its brief that C.N.

did not qualify as an eligible offender because he had six felony convictions from
Cuyahoga County, which is more than the “but no more than five felonies” required

by the statute. In response to the state’s objections, the trial court stated,

      so this is a brand new statute, and I’m not sure that this issue has, as
      regards to the brand new statute, the statute reads literally five
      felonies, and that’s what it says, but they do not distinguish whether
      that’s five separate case numbers or five counts in one case number or
      in this case three here, two there and one in Lorain. Obviously if I
      count the case numbers as a felony conviction he’s eligible. If I count
      the counts within the case numbers, he’s ineligible, right? So it’s a
      matter of interpretation, * * * So it really I think was one course of
      conduct. * * * So we’ll grant the motion for expungement.

(Tr. 8-10.)

               The plain reading of R.C. 2953.31(A)(1)(b), in part, states that:

      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[.]

               The state’s contention that each felony count in each case is counted

as a felony conviction is misplaced. C.N. pleaded guilty to three felony counts in

each case, resulting from two indictments, which were a result from the “same plea

of guilty.” The trial court determined C.N.’s convictions to be one conviction, and

stated, “[t]hey were charged in separate cases because of the length of investigation

that was necessary to determine, among other things, restitution. So it really I think

was one course of conduct.”        (Tr. 9.)   The trial court considered C.N.’s two

convictions from the Cuyahoga County cases as one felony conviction for the
purposes of expungement. However, under the facts of this case, whether C.N.’s

Cuyahoga County convictions are considered as one or two felonies does not matter

for the purpose of his expungement as explained below.

              At the time of this hearing, C.N. had a third-degree felony conviction

in Lorain County. Therefore, R.C. 2953.31(A)(1)(a) does not apply to C.N. We must

look to R.C. 2953.31(A)(1)(b). Under R.C. 2953.31(A)(1)(b), C.N. is not an eligible

offender because he has more than one felony conviction.

              C.N. contends that the state’s argument is moot because his felony

conviction from Lorain County was sealed on January 16, 2019. We determine that

C.N.’s contention has no merit because the Lorain County conviction was sealed

after his Cuyahoga County hearing on December 11, 2018, to seal C.N.’s conviction.

Therefore, at the December 11, 2018 hearing in Cuyahoga County, C.N. had two

felony convictions on his record — one in Cuyahoga County and one felony of the

third degree in Lorain County. In reviewing the transcript of the hearing on the

motion to seal the record, we appreciate the trial court’s reasoning where it stated,

      * * * I appreciate your arguments here and the sidebar conversation
      where you educated the Court about this recent modification to the
      expungement law, and I do note that the expungement statute was
      changed by the Ohio legislature in October of 2018, and without
      anybody — without any editorializing or politicizing, obviously
      liberalizing the process of obtaining an expungement, * * *.

(Tr. 8.) However, we determine that C.N. was not an eligible offender and that the

state’s argument is not moot. “‘The statutory law in effect at the time of the filing

of the R.C. 2953.32 application to seal a record of conviction is controlling.’
State v. Lasalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph

two of the syllabus; see also State v. Banks, 10th Dist. Franklin No. 13AP-350,

2013-Ohio-4890, ¶ 12, citing Lasalle.” State v. R.P., 10th Dist. Franklin No. 19AP-

36, 2019-Ohio-2540, ¶ 14.

              The trial court erred in its determination that C.N. is an eligible

offender.

      If an applicant is not an eligible offender, the trial court lacks
      jurisdiction to grant the application. See In re Barnes, 10th Dist. No.
      05AP-355, 2005-Ohio-6891, ¶ 12. As a result, an order sealing the
      record of one who is not an eligible offender is void for lack of
      jurisdiction and may be vacated at any time. Id. at ¶ 13; State v.
      McCoy, 10th Dist. No. 04AP-121, 2004-Ohio-6726, ¶ 11.

State v. Dominy, 10th Dist. Franklin No. 13AP-124, 2013-Ohio-3744, ¶ 6.

              Therefore, we vacate the trial court’s judgment to seal the criminal

conviction records of C.N.

              Appellant’s sole assignment of error is sustained.

              Judgment is vacated and the case remanded for further proceedings

consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
RAYMOND C. HEADEN, J., CONCURS IN JUDGMENT ONLY
