[Cite as State v. D.M.C., 2020-Ohio-3556.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellant,              :
                                                                     No. 19AP-694
v.                                                 :              (C.P.C. No. 09CR-3361)

[D.M.C.],                                          :           (REGULAR CALENDAR)

                 Defendant-Appellee.               :




                                             D E C I S I O N

                                      Rendered on June 30, 2020


                 On brief: Ron O'Brien, Prosecuting               Attorney,     and
                 Barbara A. Farnbacher, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals the October 8, 2019 judgment entry
sealing the record of conviction of defendant-appellee, D.M.C. For the following reasons,
we reverse.
I. Facts and Procedural History
        {¶ 2} This matter involves appellee's application to seal his record of convictions
from two separate criminal cases, the facts of which are undisputed. On February 1, 1999,
a Franklin County Grand Jury filed an indictment in case No. 99CR-483 charging appellee
with three criminal counts: one count of felonious assault in violation of R.C. 2903.11, a
felony of the second degree; and two counts of endangering children in violation of R.C.
2919.22, one of which was a felony of the second degree and the other a felony of the third
degree. In the indictment, it was alleged with regard to both counts of endangering children
that the victim was two years of age. On May 12, 1999, the trial court filed a judgment entry
finding appellee guilty, pursuant to a plea of guilty, of a single count of endangering children
No. 19AP-694                                                                                 2


in violation of R.C. 2919.22, a felony of the third degree. The trial court sentenced appellee
to a three-year period of incarceration.
       {¶ 3} On June 5, 2009, a Franklin County Grand Jury filed an indictment in case
No. 09CR-3361 charging appellee with a single count of possession of cocaine in violation
of R.C. 2925.11, a felony of the fifth degree. On March 31, 2010, appellee entered a plea of
no contest to the indictment. On May 13, 2010, the trial court filed a judgment entry finding
appellee guilty of the charged offense and sentencing appellee to a two-year period of
community control under intensive supervision.
       {¶ 4} On July 15, 2019, appellee filed an application, pursuant to R.C. 2953.32, for
an order sealing his record of convictions in both case Nos. 99CR-483 and 09CR-3361. On
August 27, 2019, the state filed an objection to appellee's application. In the objection, the
state asserted appellee had also been convicted in the Greene County Court of Common
Pleas of one count of trafficking in drugs in violation of R.C. 2925.03, a felony of the fourth
degree, and possessing criminal tools in violation of R.C. 2923.24, a felony of the fifth
degree. Additionally, the state asserted that appellee had been convicted in the Fairborn
Municipal Court of one count of assault in violation of R.C. 2903.13, and one count of
violating a protection order in violation of R.C. 2919.27, both misdemeanors of the first
degree.
       {¶ 5} On October 3, 2019, the trial court held a hearing on appellee's application.
On October 8, 2019, the trial court filed an entry granting appellee's application and
ordering appellee's record of conviction in case No. 09CR-3361 to be sealed.
II. Assignment of Error
       {¶ 6} The state appeals and assigns a single error for our review:
              THE TRIAL COURT LACKED JURISDICTION TO SEAL
              DEFENDANT'S RECORD OF CONVICTION, BECAUSE HE
              FAILED TO MEET THE DEFINITION OF "ELIGIBLE
              OFFENDER."

III. Analysis
No. 19AP-694                                                                                              3


        {¶ 7} In Ohio, the sealing of a record of conviction is a two-step process.1 First, a
court must make a legal determination as to whether the applicant is an "eligible offender"
under the pertinent statute. Compare R.C. 2953.32 with 2953.52. A court may grant an
application to seal a record of conviction only to an "eligible offender" who meets all the
statutory requirements. State v. Young, 10th Dist. No. 19AP-49, 2019-Ohio-3161, ¶ 10;
State v. Paige, 10th Dist. No. 15AP-510, 2015-Ohio-4876, ¶ 8. Here, appellee filed an
application to seal his records under R.C. 2953.32. R.C. 2953.32(A)(1) provides in pertinent
part as follows:
                [A]n eligible offender may apply to the sentencing court * * *
                for the sealing of the record of the case that pertains to the
                conviction. Application may be made at one of the following
                times:

                (a) At the expiration of three years after the offender's final
                discharge if convicted of one felony;

                (b) When division (A)(1)(a) of section 2953.31 of the Revised
                Code applies to the offender, at the expiration of four years
                after the offender's final discharge if convicted of two felonies,
                or at the expiration of five years after final discharge if
                convicted of three, four, or five felonies;

                (c) At the expiration of one year after the offender's final
                discharge if convicted of a misdemeanor.

R.C. 2953.31(A)(1) defines "eligible offender" as follows:

                (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;


1We note that " '[i]n Ohio, "expungement" remains a common colloquialism used to describe the process of
sealing criminal records pursuant to statutory authority.' " State v. A.L.M., 10th Dist. No. 16AP-722, 2017-
Ohio-2772, ¶ 11, quoting State v. Nichols, 10th Dist. No. 14AP-498, 2015-Ohio-581, ¶ 8, quoting State v.
Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11. See State v. C.L.H., 10th Dist. No. 18AP-495, 2019-Ohio-
3786.
No. 19AP-694                                                                                    4


               (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.

       {¶ 8} If an applicant is not an eligible offender, a trial court lacks jurisdiction to
grant the application. State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6. The
question of "[w]hether 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. A.L.M., 10th
Dist. No. 16AP-722, 2017-Ohio-2772, ¶ 9.
       {¶ 9} Second, if the court finds the applicant to be an eligible offender, it must use
its discretion to: (1) consider objections, if any, raised by the prosecutor, and (2) weigh the
interests of the applicant to seal the record against the legitimate needs, if any, of the
government to maintain those records. R.C. 2953.52(B)(2)(c) and (d). We apply an abuse
of discretion standard when reviewing a trial court's resolution of these issues. Paige at ¶ 5,
citing State v. Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 6. An abuse of discretion
occurs when a court's judgment is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 10} R.C. 2953.32(B) provides that a prosecutor may object to the granting of the
application by filing an objection, including therein the reasons for believing a denial of the
application is justified, with the court prior to the date set for the hearing on the application.
If the trial court finds the applicant to be an eligible offender and, using its discretion, finds
the other statutory factors support sealing the records of conviction, the trial court "shall
order all official records of the case that pertain to the conviction * * * sealed." (Emphasis
No. 19AP-694                                                                                      5


added.) R.C. 2953.32(C)(2). "Statutes providing for the sealing of records 'are remedial and
are, therefore, to be construed liberally to promote their purpose and assist the parties in
obtaining justice.' " State v. C.L.H., 10th Dist. No. 18AP-495, 2019-Ohio-3786, ¶ 14,
quoting State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 11, citing State ex rel.
Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999), citing R.C. 1.11. See Barker v. State, 62 Ohio
St.2d 35, 42 (1980).
       {¶ 11} In this matter, at the hearing on appellee's application, the trial court
concluded that the record of appellee's conviction in case No. 99CR-483 was not eligible to
be sealed "because the victim in that case was under the age of 16." (Tr. at 2.) However,
the trial court stated: "[t]he fact that [appellee] has an unrelated case for endangering
[children] does not prohibit under the statute, that I can see, the expungement of the
cocaine case [in 09CR-3361]." (Tr. at 3.) The state argues the trial court erred in its
determination that appellee was an eligible offender. We agree.
       {¶ 12} Before considering appellee's eligibility, it is important to note that, pursuant
to R.C. 2953.32, a court must consider whether an applicant is an eligible offender as
defined under R.C. 2953.31(A)(1), not whether a conviction for a particular offense is, in
and of itself, eligible to be sealed. Paige at ¶ 8. Thus, the trial court appears to have
erroneously considered whether the record of appellee's conviction for possession of
cocaine was eligible to be sealed, not whether, considering appellee's record of convictions,
appellee was an eligible offender. Nevertheless, we proceed to consider de novo whether
appellee meets the requirements to be considered an eligible offender.
       {¶ 13} First, appellee does not meet the requirements to be considered an eligible
offender under R.C. 2953.31(A)(1)(a) because he has been convicted of a felony of the third
degree and an offense of violence. An applicant is an eligible offender under R.C.
2953.31(A)(1)(a) if they have "been convicted of one or more offenses, but not more than
five felonies, * * * 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." Here, because appellant has been convicted of endangering children in violation
of R.C. 2919.22, a felony of the third degree, he cannot be considered an eligible offender
under R.C. 2953.31(A)(1)(a). State v. D.D.G., 8th Dist. No. 108291, 2019-Ohio-4982, ¶ 14;
State v. Potts, 11th Dist. No. 2019-T-0038, 2020-Ohio-989, ¶ 24. Additionally, as asserted
No. 19AP-694                                                                              6


by the state in its objection to appellee's application and reiterated at the hearing on
October 3, 2019, appellee has been convicted of assault in violation of R.C. 2903.13.
Pursuant to R.C. 2901.01(A)(9): " '[o]ffense of violence' means any of the following: (a) A
violation of [R.C.] 2903.13." Therefore, because appellee has been convicted of a felony of
the third degree and an offense of violence, he is not an eligible offender under R.C.
2953.31(A)(1)(a). State v. C.D.D., 10th Dist. No. 19AP-130, 2019-Ohio-4754, ¶ 5-7.
       {¶ 14} Next, we consider whether appellee is an eligible offender under R.C.
2953.31(A)(1)(b). An applicant is an eligible offender pursuant to R.C. 2953.31(A)(1)(b) if
(A)(1)(a) does not apply and he or she has "not more than one felony conviction, not more
than two misdemeanor convictions, or not more than one felony conviction and one
misdemeanor conviction." Because appellee has more than one felony conviction, we must
consider whether either of the two merger provisions under R.C. 2953.31(A)(1)(b) apply.
       {¶ 15} Under the first merger provision: "[w]hen 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." R.C. 2953.31(A)(1)(b). Here, appellee
cannot avail himself of the first merger provision because his felony convictions were
connected with different acts and resulted from offenses committed at different times. In
re Sealing of the Record of A.H., 10th Dist. No. 15AP-555, 2016-Ohio-5530, ¶ 22; State v.
Yorde, 10th Dist. No. 11AP-404, 2011-Ohio-6671, ¶ 17.
       {¶ 16} Under the second merger provision: "[w]hen 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." R.C.
2953.31(A)(1)(b). Furthermore, the court may decide not to count the two or three
convictions as one conviction because it is not in the public interest pursuant to R.C.
2953.32(C)(1)(a). Here, appellee does not qualify as an eligible offender under the second
merger provision because his convictions were from different proceedings and resulted
from criminal acts committed over a period greater than three months. See State v. Price,
10th Dist. No. 17AP-535, 2017-Ohio-8591, ¶ 7; State v. Sanders, 10th Dist. No. 14AP-916,
2015-Ohio-2050, ¶ 10.
No. 19AP-694                                                                             7


         {¶ 17} Therefore, because appellee was not an eligible offender as defined by R.C.
2953.31(A), the trial court erred in granting appellee's application to seal his record of
conviction pursuant to R.C. 2953.32. Accordingly, we sustain the state's sole assignment of
error.
IV. Conclusion
         {¶ 18} Having sustained the state's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas.
                                                                   Judgment reversed and
                                                                        cause remanded.

                          SADLER, P.J., and BROWN, J., concur.
