[Cite as State v. A.L.M., 2017-Ohio-2772.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                      :

                 Plaintiff-Appellant,               :
                                                                    No. 16AP-722
v.                                                  :             (C.P.C. No. 16EP-611)

[A.L.M.],                                           :      (REGULAR CALENDAR)

                 Defendant-Appellee.                :



                                             D E C I S I O N

                                       Rendered on May 11, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                 Swanson, for appellant. Argued: Valerie B. Swanson.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin
County Court of Common Pleas in favor of defendant-appellee, A.L.M., sealing the record
of his conviction in case No. 14CR-1392. For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On December 6, 2004, appellee was convicted in case No. 2004CRB-
012084 of criminal damaging or endangering, in violation of R.C. 2909.06, a
misdemeanor of the first degree, and menacing, in violation of R.C. 2903.22, a
misdemeanor of the fourth degree. Appellee committed the crimes on February 13, 2004.
A charge of disorderly conduct in that case was dismissed.
        {¶ 3} On September 12, 2005, appellee was convicted in case No. 2005CRB-
015845 of negligent assault, in violation of R.C. 2903.14, a misdemeanor of the third
No. 16AP-722                                                                              2


degree. The criminal conduct occurred on July 4, 2005. The original charge of assault
was amended to negligent assault by agreement.
       {¶ 4} On September 12, 2005, appellee was convicted in case No. 2005CRB-
019990 of violating a protection order, in violation of R.C. 2919.27, a misdemeanor of the
first degree. The criminal conduct occurred on August 13, 2005. Appellee was
subsequently convicted in case No. 2011CRB-015984 on July 27, 2011 of illegal use or
possession of drug paraphernalia, in violation of R.C. 2925.14, a misdemeanor of the
fourth degree. The criminal conduct occurred on July 17, 2011.
       {¶ 5} Finally, on July 9, 2014, appellee was convicted in case No. 14CR-1392 of
attempted improper handling of a firearm in a motor vehicle, in violation of R.C. 2923.02
as it relates to R.C. 2923.16, a misdemeanor of the first degree. The trial court sentenced
appellee to two days in jail but suspended the jail sentence.
       {¶ 6} On August 17, 2016, appellee filed an application, pursuant to R.C. 2953.32,
for an order sealing the record of his conviction in case No. 14CR-1392. Appellant filed its
objection to the application on August 25, 2016, arguing that appellee did not qualify as
an eligible offender under the statutory law. On October 14, 2016, the trial court granted
the application.
       {¶ 7} Appellant filed a timely notice of appeal to this court from the trial court
judgment.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Appellant presents the following two assignments of error:
               [1.] THE TRIAL COURT ERRED IN GRANTING THE
               APPLICATION TO SEAL THE RECORD OF CASE NO. 14CR-
               1392, AS IT LACKED JURISDICTION TO SO BASED UPON
               DEFENDANT'S FAILURE TO QUALIFY AS AN "ELIGIBLE
               OFFENDER."

               [2.] THE TRIAL COURT ERRED WHEN IT SEALED THE
               CONVICTION FOR THE EXPRESS PURPOSE OF GIVING
               THE APPLICANT AN ILLEGAL PERIOD OF TIME IN
               WHICH TO DENY THE EXISTENCE OF THIS CONVICTION
               TO EMPLOYERS AND OTHERS.
No. 16AP-722                                                                                3


III. STANDARD OF REVIEW
       {¶ 9} Generally, a reviewing court " 'will not reverse a trial court's decision on an
R.C. 2953.52 application to seal absent an abuse of discretion.' " State v. Nichols, 10th
Dist. No. 14AP-498, 2015-Ohio-581, ¶ 7, quoting In re Dumas, 10th Dist. No. 06AP-1162,
2007-Ohio-3621, ¶ 7, citing State v. Haney, 70 Ohio App.3d 135, 138 (10th Dist.1991).
"The term 'abuse of discretion' connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). "However, where questions of law are in
dispute, an appellate court reviews the trial court's determination de novo." Nichols at
¶ 7, citing State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 9. Whether an applicant
is an "eligible offender" for purposes of an application to seal the record of a conviction is
an issue that we review de novo. State v. Tauch, 10th Dist. No. 13AP-327, 2013-Ohio-
5796, ¶ 7.
IV. LEGAL ANALYSIS
       A. Appellant's First Assignment of Error
       {¶ 10} In appellant's first assignment of error, appellant contends that the trial
court erred when it granted appellee's application to seal the record of his conviction
because appellee is not an eligible offender. We agree.
       {¶ 11} " 'Expungement is a post-conviction relief proceeding which grants a limited
number of convicted persons the privilege of having record of their * * * conviction
sealed.' " In re Koehler, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12, quoting State v.
Smith, 3d Dist. No. 9-04-05, 2004-Ohio-6668, ¶ 9. Expungement " ' "is an act of grace
created by the state" and so is a privilege, not a right.' " Koehler at ¶ 14, quoting State v.
Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639
(1996). " ' "Because expungement is a matter of privilege rather than of right, the
requirements of the expungement statute must be adhered to strictly." ' " State v. Pollard,
11th Dist. No. 2016-A-0004, 2016-Ohio-4744, ¶ 11, quoting State v. Mahaney, 11th Dist.
No. 12-208 (Aug. 12, 1988), quoting State v. Thomas, 64 Ohio App.2d 141, 145 (8th
Dist.1979). "In Ohio, 'expungement' remains a common colloquialism used to describe
the process of sealing criminal records pursuant to statutory authority." Nichols at ¶ 8,
citing Pariag at ¶ 11.
No. 16AP-722                                                                              4


       {¶ 12} Pursuant to R.C. 2953.32(A)(1), "an eligible offender may apply to the
sentencing court * * * for the sealing of the record of the case that pertains to the
conviction." Where the offender was convicted of a misdemeanor, the "[a]pplication may
be made at the expiration of * * * one year after the offender's final discharge." R.C.
2953.32(A)(1). A court can grant an application to seal a criminal record only to an
"eligible offender."   "If an applicant is not an eligible offender, a trial court lacks
jurisdiction to grant the application." State v. Gainey, 10th Dist. No. 14AP-583, 2015-
Ohio-3119, ¶ 10, citing State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6.
       {¶ 13} In this instance, appellee waited the appropriate period of time before filing
his application to seal the record of his conviction in case No. 14CR-1392. As appellant
points out, however, appellee has a total of six misdemeanor convictions. R.C. 2953.31(A)
defines the term "eligible offender" as follows:
               "Eligible offender" means anyone who has been convicted of
               an offense in this state or any other jurisdiction 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.

(Emphasis added.)
       {¶ 14} At the hearing on appellee's application, the trial court made the following
observation:
               THE COURT: Sir, you've applied for a – the Court to seal
               your record.
No. 16AP-722                                                                              5


               One of the things that's required in order for the Court to be
               able to act is that you have to have a limited number of
               convictions.

               And it appears that based upon your Municipal Court
               convictions, although they're lower offenses, that I cannot
               grant you – I could, but it wouldn't do any good – grant you
               your request today. Basically the misdemeanor offenses – it's
               limited to either one felony, one misdemean – plus one
               misdemeanor, or if you have two misdemeanors and then
               you're here trying to get another one done, the Court is
               precluded from being able to grant your request.

(Oct. 13, 2016 Tr. at 2-3.)
       {¶ 15} The trial court did not expressly determine whether any of appellee's six
convictions were "connected with the same act or result from offenses committed at the
same time." R.C. 2953.31(A). Nevertheless, appellee concedes that the two convictions in
case No. 2004CRB-012084, which arise from criminal conduct occurring on the same
day, "likely would count as a single conviction." (Appellant's Brief at 9.) Accordingly, two
of appellee's six misdemeanor convictions count as a single offense for purposes of R.C.
2953.32(A)(1).
       {¶ 16} In Tauch, this court discussed and applied the statutory provision
permitting convictions to be combined when they result from the same official
proceeding. R.C. 2953.31(A). In that case, the applicant, Sophy Tauch, sought an order
sealing the record of certain misdemeanor convictions. Tauch had a total of three
misdemeanor convictions, two of which resulted from related, but not the same, criminal
acts that were committed within a three-month period. This court held that the trial court
erred by not counting the two convictions as a single offense under R.C. 2953.31(A)
because the offenses occurred within three months of one another, and they were resolved
before the same court, the same judge, on the same day, and in the same hearing. Id. at
¶ 10-14.
       {¶ 17} Though appellant disagrees with this court's prior decision in Tauch,
appellant concedes that under Tauch, appellee's conviction of negligent assault in case
No. 2005CRB-015845 and his conviction of violating a protection order in case No.
2005CRB-019990 would likely be counted as a single conviction because the two
No. 16AP-722                                                                                  6


convictions result from "the same official proceeding." Id. at ¶ 11, citing R.C. 2921.01(D).
Thus, two of appellee's other misdemeanor convictions count as a single offense for
purposes of R.C. 2953.32(A)(1).
       {¶ 18} Even though appellee benefits from R.C. 2953.31(A), due to the merging of
four of his misdemeanor convictions into two convictions, appellee still has four
misdemeanor convictions for purposes of R.C. 2953.32(A)(1). Because appellee has more
than two misdemeanor convictions, he is not an "eligible offender" under R.C. 2953.31(A)
and 2953.32(A)(1).      Furthermore, because appellee does not qualify as an eligible
offender, the trial court lacked jurisdiction to grant his application to seal the record of his
conviction in case No. 14CR-1392. Gainey; Dominy.
       {¶ 19} Though the trial court recognized that appellee was not an eligible offender
under the statutory law, the trial court nevertheless granted appellee's application to seal
the record of appellee's conviction in case No. 14CR-1392. In so doing, the trial court
expressed its desire to provide appellee with the opportunity, pending appeal, to obtain
specific employment otherwise foreclosed to him by his conviction in case No. 14CR-1392.
The trial court, however, did not have jurisdiction to grant appellee's application in this
case, regardless of the reason. Thus, the trial court committed reversible error when it
granted appellee's application to seal the record of conviction in case No. 14CR-1392.
Accordingly, we sustain appellant's first assignment of error and remand this matter for
the trial court to vacate its order granting appellee's application to seal the record of his
conviction in case No. 14CR-1392, unseal the record of appellee's conviction, and dismiss
the application.   State v. Wilson, 10th Dist. No. 06AP-1060, 2007-Ohio-1811, ¶ 14;
Koehler at ¶ 33.
       B. Appellant's Second Assignment of Error
       {¶ 20} In appellant's second assignment of error, appellant contends that the trial
court erred when it granted appellee's application to seal the record of his conviction "for
the express purpose of giving the applicant an illegal period of time in which to deny the
existence of this conviction to employers and others." App.R. 12(A)(1), however, provides
that this court shall "[d]etermine the appeal on its merits on the assignments of error set
forth in the briefs * * * [u]nless an assignment of error is made moot by a ruling on
another assignment of error." App.R. 12(A)(1)(b) and (c). In ruling on appellant's first
No. 16AP-722                                                                                 7


assignment of error, we concluded that the trial court did not have jurisdiction to grant
appellee's application to seal the record in case No. 14CR-1392. Accordingly, appellant's
second assignment of error is made moot by our ruling on appellant's first assignment of
error.
         {¶ 21} Appellant argues, however, that this court must issue an order remanding
this matter to the trial court with "specific instructions for the trial court to order
applicant to correct any statement made to any person denying the existence of this
conviction if that statement was made in the time period since the trial court's improper
order granting the sealing on October 14, 2016."         (Appellant's Brief at 13-14.)   We
disagree.
         {¶ 22} Having determined that the trial court lacked jurisdiction of appellee's
application to seal the record in case No. 14CR-1392, the appropriate relief is an order
from this court reversing the judgment of the trial court and remanding the matter for the
trial court to vacate its order granting appellee's application to seal the record of his
conviction, unseal the record, and dismiss the application. Wilson at ¶ 14; Koehler at ¶ 33.
Under the circumstances, the trial court is precluded from taking any further action other
than dismissal, since to do so would involve retaining jurisdiction. See 5 American
Jurisprudence 2d, Appellate Review, Section 760.
         {¶ 23} For the foregoing reasons, appellant's second assignment of error is moot.
V. CONCLUSION
         {¶ 24} Having sustained appellant's first assignment of error and having
determined that appellant's second assignment of error is moot, we reverse the judgment
of the Franklin County Court of Common Pleas and remand this case for the trial court to
enter an order dismissing appellee's application to seal the record of his conviction in case
No. 14CR-1392.
                                                                     Judgment reversed;
                                                         cause remanded with instructions.

                           DORRIAN and HORTON, JJ., concur.
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