[Cite as Silver Lake v. Osman, 2012-Ohio-1329.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO/                                         C.A. No.    26023
VILLAGE OF SILVER LAKE

        Appellee
                                                       APPEAL FROM JUDGMENT
        v.                                             ENTERED IN THE
                                                       STOW MUNICIPAL COURT
RAYMOND L. OSMAN                                       COUNTY OF SUMMIT, OHIO
                                                       CASE No.   2008 CRB 00010
        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: March 28, 2012



        CARR, Presiding Judge.

        {¶1}    Appellant, Raymond L. Osman, appeals the judgment of the Stow Municipal

Court. We affirm.

                                                  I.

        {¶2}    On October 23, 2007, Osman pleaded guilty to theft in violation of R.C. 2913.02,

a misdemeanor of the first degree. The conviction stemmed from an incident that occurred on

October 16, 2007. Subsequently, on February 14, 2008, Osman pleaded guilty to possession of

drug paraphernalia in violation of Section 513.12(c)(1) of the Silver Lake Codified Ordinances, a

misdemeanor of the fourth degree. The offense occurred on January 1, 2008.

        {¶3}    On April 14, 2011, Osman filed an application to have his convictions expunged

in the Stow Municipal Court. In his application, Osman argued that it was in the public’s best

interest that he be designated as a first time offender pursuant to R.C. 2953.31. The trial court

held an expungement hearing on June 7, 2011. The prosecution did not file an objection to the
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application. At the request of the trial court, Osman submitted a supplemental brief on June 13,

2011. On June 16, 2011, the trial court issued a journal entry denying Osman’s application.

       {¶4}    Osman filed a notice of appeal on July 12, 2011. On appeal, he raises two

assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DID NOT
       FIND APPELLANT TO BE A FIRST OFFENDER SINCE THE COURT
       FAILED TO MAKE A FINDING THAT IT IS NOT IN THE PUBLIC
       INTEREST TO COUNT THE OFFENSES AS ONE WHEN THE STATUTE
       REQUIRES THAT IF THE COURT DOES NOT MAKE THAT
       DETERMINATION; THEN THE COURT SHALL DETERMINE THAT THE
       OFFENDER IS A FIRST OFFENDER.

       {¶5}    In his first assignment of error, Osman argues that, because the trial court did not

make a finding that it was not in the public interest to construe his two convictions as a single

conviction, it was error to conclude that he was not a “first offender” pursuant to R.C. 2953.31.

This Court disagrees.

       {¶6}    Pursuant to the authority of R.C. 2953.32(A)(1), a “first offender may apply to the

sentencing court *** for the sealing of the conviction record *** at the expiration of one year

after the offender’s final discharge if convicted of a misdemeanor.” If the applicant is not a first

offender, the lower court lacks jurisdiction to order the expungement. State v. Cuttiford, 9th

Dist. No. 97CA006724, 1998 WL 78695 (Feb. 11, 1998). Pursuant to R.C. 2953.31, a “first

offender” is defined 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. 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 incident, information, or complaint,
                                                 3


       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.

       {¶7}      This Court has recognized that multiple offenses need not occur simultaneously to

be considered “connected with the same act.” State v. Taylor, 9th Dist. No. 97CA006850, 1998

WL 281352 (May 27, 1998), quoting State v. McGinnis, 90 Ohio App.3d 479 (4th Dist.1993).

This Court emphasized, however, that “in order to be ‘connected with the same act,’ the two

offenses must be ‘linked together coherently or logically’ in such a way that they can properly be

considered ‘the same act’ for purposes of expungement.” Taylor, quoting McGinnis, 90 Ohio

App.3d at 482.

       {¶8}      At the June 7, 2011 hearing on this matter, counsel for Osman argued that his two

convictions were connected by Osman’s “drug habit.” Specifically, counsel argued that Osman

was using marijuana during the period of time that both incidents occurred and the theft offense

was committed so he could support his drug habit. When the trial court questioned whether it

was “a stretch” to link the shoplifting conviction to the possession of paraphernalia offense on

the basis of marijuana use, counsel for Osman responded that offenders who commit theft

offenses to support their drug habit are often “sen[t] [] to drug rehab.” When the trial court

expressed continued skepticism, counsel for Osman noted, “[when] the person says that they

were stealing for the purposes of supporting a drug habit, that is more than grounds enough to

send them and have the government pay for drug rehabilitation for them.”

       {¶9}      In its June 16, 2011 order, the trial court determined that Osman was not eligible

to have the record of his prior convictions sealed because he was not a first offender pursuant to

R.C. 2953.31. In reaching this conclusion, the trial court noted that while it “sympathize[d] with
                                                 4


the Applicant’s plight,” the convictions were simply “not connected with the same act.” In

addressing Osman’s argument that both of his convictions stemmed from an underlying drug

addiction, the trial court concluded that the crimes were “seemingly unrelated.” The trial court

further noted that because Osman was not a first offender under the statute, it was unnecessary to

conduct further analysis under the expungement statute.

       {¶10} Osman argues on appeal that because the trial court did not make a finding that

sealing his record was not in the public interest, it was required to conclude that Osman was a

first offender.   Osman contends that while R.C. 2953.31 is “somewhat ambiguous,” R.C.

2953.32 requires the trial court to find that the applicant is a first offender as “a consequence” of

failing to find that sealing the record would not be in the public interest. Osman notes that the

statutory framework should be construed liberally pursuant to R.C. 1.11. In support of his

position that the two convictions should be counted as a single offense, Osman cites to several

Ohio appellate cases, including State v. McGinnis, 90 Ohio App.3d 479 (4th Dist.1993), for the

proposition that convictions that arise from a common provocation may be counted as a single

conviction. McGinnis involved a situation where a man committed two offenses, approximately

twelve hours apart, while on a drunken binge after learning that his wife was having an affair.

The Fourth District held that the offenses, namely vandalism and operating a vehicle while

impaired, were logically linked together because they both stemmed from a “drunken spree”

which resulted from a disturbing experience. Id. at 482.

       {¶11} While this Court shares in the trial court’s sympathy for Osman’s plight, we are

compelled to uphold the trial court’s judgment.         As an initial matter, we note that R.C.

2953.32(A)(1) provides that “a first offender may apply to the sentencing court *** for the

sealing of the conviction record.” If the trial court concludes that an applicant is not a first
                                                5


offender pursuant to R.C. 2953.31, the trial court lacks jurisdiction to order expungement and

further analysis regarding whether it would be in the public interest to count the offenses as a

single offense is unnecessary. See Cuttiford. Moreover, in this case, the two convictions for

which Osman wished to have the record sealed were separate and complete offenses. This case

does not involve a scenario where “two or more convictions result from or are connected with

the same act or result from offenses committed at the same time[.]” R.C. 2953.31(A). Nor does

this case involve “two or three convictions result[ing] from the same indictment, information, or

complaint, from the same plea of guilty, or from the same official proceeding[.]” Id.         On

October 23, 2007, Osman entered a guilty plea to theft in relation to a shoplifting incident which

had occurred on October 16, 2007. Two and a half months later, Osman was arrested for

possession of drug paraphernalia, and subsequently pleaded guilty. The two convictions at issue

here involved separate offenses that occurred at separate times, and proceeded through the

judicial system independently of each other. Unlike McGinnis, the crimes in this case were not

committed merely twelve hours apart and did not arise out of a single, anguish-induced binge.

Osman has failed to establish a nexus that would have compelled the trial court to logically

conclude that these two convictions should be counted as one conviction. Thus, as Osman had

two separate and distinct convictions on his record, the trial court correctly denied Osman’s

application on the basis that he was not a “first offender” as defined by R.C. 2953.31(A).

       {¶12} Osman’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND
       THAT APPELLANT OSMAN’S TWO (2) MISDEMEANORS WERE FOUR (4)
       MONTHS APART WHEN THEY ACTUALLY OCCURRED ON OCTOBER
       16, 2007[,] AND JANUARY 1, 2008; TWO AND ONE HALF (2 ½) MONTHS
       APART, WHEN THE STATUTE REQUIRES FOR FIRST TIME OFFENDER
       STATUS THAT THE MISDEMEANORS BE NOT MORE THAN THREE (3)
                                                 6


       MONTHS APART; AS THE MISDEMEANORS ACTUALLY WERE, AND
       NOT AS THE COURT FOUND, SINCE THE COURT’S ERRONEOUS
       FINDING ELIMINATES APPELLANT’S ELIGIBILITY FOR FIRST
       OFFENDER STATUS.

       {¶13} In his second assignment of error, Osman contends that the trial court erred in

determining that his convictions occurred four months apart. Because our resolution of the first

assignment of error is dispositive of this appeal, this Court declines to address the Osman’s

second assignment of error as it is rendered moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶14} Osman’s first assignment is overruled. This Court declines to address his second

assignment of error as it is rendered moot. The judgment of the Stow Municipal Court is

affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT


DICKINSON, J.
CONCURS

BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶15} I reluctantly concur in the judgment of the majority. Given the limited record

before us, which does not include any testimony or other evidence, I cannot say that the trial

court erred in concluding that Mr. Osman was not a first offender as that term is defined by R.C.

2953.31(A).

       {¶16} I write to point out that pursuant to R.C. 1.11, “[r]emedial laws and all

proceedings under them shall be liberally construed in order to promote their object and assist

the parties in obtaining justice.” See also State v. Dzama, 9th Dist. No. 25404, 2011-Ohio-2634,

¶ 8, quoting State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999). Thus, given the

requirements of R.C. 1.11 and the somewhat ambiguous language contained in R.C. 2953.31(A),

I believe the phrase “connected with the same act” must be broadly construed. As such, if the

record supported Mr. Osman’s assertions, I think it is possible that two convictions separated in

time could be “connected with the same act[.]”     R.C. 2953.31(A). However, as Mr. Osman’s

arguments are not supported by the record, I concur in the majority’s judgment.

APPEARANCES:

DONALD P. MITCHELL, JR., Attorney at Law, for Appellant.

STACY MCGOWAN and JOHN CHAPMAN, Attorneys at Law, for Appellee.
