[Cite as State v. Rogers, 2013-Ohio-1865.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
                    Plaintiff-Appellant        :     Hon. William B. Hoffman, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :     Case No. CT2012-0042
DAVID N. ROGERS                                :
                                               :
                                               :
                       Defendant-Appellee      :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County Court,
                                                   Case No. CRB 0900585


JUDGMENT:                                          REVERSED AND REMANDED



DATE OF JUDGMENT ENTRY:                            May 3, 2013



APPEARANCES:

For Appellant:                                       For Appellee:
MICHAEL HADDOX                                       DAVID N. ROGERS, pro se
MUSKINGUM CO. PROSECUTOR                             1321 Cooper Mill Road
MARIA N. KALIS                                       Zanesville, OH 43701
27 North 5th Street
Zanesville, OH 43701
[Cite as State v. Rogers, 2013-Ohio-1865.]


Delaney, P.J.

        {¶1} Appellant State of Ohio appeals from the judgment entry of the

Muskingum County Court granting the application of appellee David N. Rogers to seal

the record of his conviction.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} A statement of the facts underlying appellant's original conviction is

unnecessary to our disposition of this appeal, which originated with appellee’s pro se

“Motion” of May 18, 2012 asking the trial court to “seal the record of conviction from

case no 0900585 and CVB09585 namely the charge of weapon while intoxicated ***.”

        {¶3} Appellant responded with a Memorandum in Opposition on the basis

appellant is not a “First Offender” and stating in pertinent part:

                 * * * *.

                 The State would object to the sealing of this conviction for the

                 following reason: it would appear from [appellee’s] criminal history

                 that applicant does not qualify as a first offender; convictions are

                 noted for a 1984 OVI conviction from Zanesville Municipal Court

                 and a 1982 OVI conviction from Muskingum County Court. The

                 Court should have a copy of [appellee’s] CCH in its file; also,

                 please see attached dockets from Zanesville Municipal Court and

                 a certified copy of the docket from Muskingum County Court.

                 * * * *.

        {¶4} The original Memorandum in Opposition contained in the record does not

include any attachments. Nor were we able to find any docket in the record from
Muskingum County, Case No. CT2012-0042                                                 3


Zanesville Municipal Court or Muskingum County Court, nor any other document or

exhibit reflecting appellee’s alleged past convictions.

       {¶5} A hearing was held on June 28, 2012. The record of the hearing is

before us, and it consists almost entirely of the trial court explaining the process of

expungement to appellee. The trial court noted appellant would have to establish

appellee’s prior convictions. No exhibits were offered by either party and the trial

court gave appellee 10 days to provide additional information.

       {¶6} Appellee provided a pro se “Memorandum” dated July 2, 2012 to which

is attached a letter from the Clerk of the Zanesville Municipal Court stating the

following: “Please be advised that David Rogers came into my office on June 28,

2012 requesting information from a 1984 OVI case in the Zanesville Municipal Court.

Those records were destroyed years ago and that information is no longer available.”

       {¶7} On August 10, 2012 the trial court issued a Judgment Entry granting

appellee’s application to seal the record of his conviction. Appellant timely appeals

from the trial court’s Judgment Entry.

       {¶8} Appellant raises one Assignment of Error:

       {¶9}   “I. THE TRIAL COURT ERRED BY GRANTING THE EXPUNGEMENT

REQUEST OF DEFENDANT/APPELLEE, DAVID N. ROGERS, AS HE WAS NOT A

FIRST TIME OFFENDER AND WAS INELIGIBLE FOR EXPUNGEMENT.”

                                            I.

       {¶10} Appellant asserts the trial court improperly granted appellee’s application

to seal the record of his conviction. We agree.
Muskingum County, Case No. CT2012-0042                                                      4


       {¶11} The version of R.C. 2953.32 in effect at the time of the court’s ruling1

permits sealing of the record of a “first offender,” defined in R.C. 2953.31(A)2 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 * * * *.” Moreover, “* * * a trial court lacks

jurisdiction to order expungement if the applicant was not a first offender.” State v.

May, 72 Ohio App.3d 664, 667, 595 N.E.2d 980 (8th Dist.1991); State v. Coleman,

117 Ohio App.3d 726, 691 N.E.2d 369 (1st Dist.1997); State v. McCoy, 10th Dist. No.

04AP-121, 2004-Ohio-6726, ¶ 11 [“* * *[t]he issue is appropriately considered on

appeal, as the first offender requirement of R.C. 2953.32 is jurisdictional.”].

       {¶12} We have thoroughly reviewed the transcript of the hearing and the entire

record of the underlying case, and disagree with the State’s characterization that the

trial court “acknowledged that [appellee], in fact, was not a first time offender by

referencing a prior conviction for OVI.” The status of appellee’s prior conviction, if it

exists, is not evident from the record. Although it would be helpful had appellant

submitted certified copies of the convictions(s) upon which its objection and

subsequent appeal is based, we recognize, however, that appellant is not required to

do so and need only register its objection to appellee’s application to seal. It has been

held that the state need not submit a certified copy of a defendant’s prior convictions

which would defeat the defendant’s status as a first-time offender. May, supra, 72

Ohio App.3d at 667. R.C. 2953.32(B) indicates that to oppose the application for



1
 R.C. 2953.32 was amended effective September 28, 2012. The amended statute
broadens the class of those who may apply to have their records sealed from “first
offenders” to “eligible offenders.”
Muskingum County, Case No. CT2012-0042                                                      5


expungement, the prosecutor need only file an objection with the court, prior to the

day of hearing, and specify in the objection the reasons which justify denial of the

application.

         {¶13} The status of the applicant as a first offender is essential to jurisdiction of

the trial court, however, and the obligation rests with the court to determine whether

defendant is an eligible offender. The trial court did not make such finding in this

case.     The version of R.C. 2953.32 in effect at the time of the hearing states in

pertinent part:

                (A)(1) Except as provided in section 2953.61 of the Revised Code,

                a first offender may apply to the sentencing court if convicted in

                this state* * *for the sealing of the conviction record. Application

                may be made at the expiration of three years after the offender's

                final discharge if convicted of a felony, or at the expiration of one

                year after the offender's final discharge if convicted of a

                misdemeanor.

                * * * *.

                (B) 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. The prosecutor may object

                to the granting of the application by filing an objection with the

                court prior to the date set for the hearing. The prosecutor shall

                specify in the objection the reasons for believing a denial of the



2
    The former version of R.C. 2953.31, in effect until September 27, 2012.
Muskingum County, Case No. CT2012-0042                                               6


           application is justified. The court shall direct its regular probation

           officer, a state probation officer, or the department of probation of

           the county in which the applicant resides to make inquiries and

           written reports as the court requires concerning the applicant.

           (C)(1) The court shall do each of the following:

           (a) Determine whether the applicant is a first offender or whether

           the forfeiture of bail was agreed to by the applicant and the

           prosecutor in the case. If the applicant applies as a first offender

           pursuant to division (A)(1) of this section and has two or three

           convictions that 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, in making

           its determination under this division, the court initially shall

           determine whether it is not in the public interest for the two or

           three convictions to be counted as one conviction. If the court

           determines that it is not in the public interest for the two or three

           convictions to be counted as one conviction, the court shall

           determine that the applicant is not a first offender; if the court does

           not make that determination, the court shall determine that the

           offender is a first offender.
Muskingum County, Case No. CT2012-0042                                                    7


              (b) Determine whether criminal proceedings are pending against

              the applicant;

              (c) If the applicant is a first offender who applies pursuant to

              division (A)(1) of this section, determine whether the applicant has

              been rehabilitated to the satisfaction of the court;

              (d) If the prosecutor has filed an objection in accordance with

              division (B) of this section, consider the reasons against granting

              the application specified by the prosecutor in the objection;

              (e) Weigh the interests of the applicant in having the records

              pertaining to the applicant's conviction sealed against the

              legitimate needs, if any, of the government to maintain those

              records.

              * * * *.

       {¶14} R.C. 2953.32(B) requires the court to direct a probation officer or

department to investigate the state's allegations and file a written report with the court.

The Ohio Supreme Court has reiterated that “the procedure outlined for an

expungement hearing requires the court to direct a probation official ‘to make inquiries

and written reports' regarding information relevant to its inquiry.” State v. Hamilton, 75

Ohio St.3d 636, 639, 665 N.E.2d 669 (1996).

       {¶15} We note the trial court’s judgment entry makes no reference to whether

appellee was found to be a first offender. The trial court may not infer jurisdiction,

therefore, we find the court lacked jurisdiction to grant the application to seal. The trial

court had an obligation to determine the effect of the alleged prior conviction as
Muskingum County, Case No. CT2012-0042                                              8


required by R.C. 2953.32(B). Because defendant's legal status as a first offender was

not properly evaluated by the trial court, the case must be reversed and remanded for

determination of the trial court's jurisdiction to grant the application to seal.

       {¶16} The judgment of the Muskingum County Court is vacated and the matter

is remanded for further proceedings consistent with this Opinion.

By: Delaney, P.J.

And Farmer, J. concur.

Hoffman, J. dissents




                                          HON. PATRICIA A. DELANEY



                                          HON. WILLIAM B. HOFFMAN



                                          HON. SHEILA G. FARMER


PAD:kgb
Muskingum County, Case No. CT2012-0042                                                  9

Hoffman, J., dissenting
      {¶17} I respectfully, dissent from the majority opinion.

       {¶18} Unlike the majority, I find the trial court had jurisdiction to grant the

application to seal.     I find the trial court’s subject matter jurisdiction was properly

invoked by Appellee’s filing of the application to seal. Upon doing so, the trial court

must determine Appellee’s eligibility as a first offender.       Any error made in that

determination is subject to appellate review. While the trial court may have erred in its

determination or the procedure in which it arrived at its determination3, I believe it had

jurisdiction to exercise it.

       {¶19} I am left with Appellant’s allegation in its Memorandum in Opposition,

Appellee had two prior disqualifying convictions. Appellee presented evidence of the

lack of any record of the 1984 OVI conviction. There is no record evidence Appellee

had a 1982 OVI conviction.

       {¶20} While the trial court may have granted the application prematurely in the

absence of a proper investigation by probation, the record before us fails to reflect any

document, exhibit, or testimony regarding a 1982 OVI conviction of Appellant in the

Muskingum County Court.

       {¶21} Because the record fails to affirmatively demonstrate Appellee was not a

first offender, I would affirm the trial court’s decision.

                                                    _______________________________
                                             _
                                                    HON. WILLIAM B. HOFFMAN



3
 While the trial court may have failed to order an investigation through the appropriate
probation officer and/or agency, Appellant has not assigned such possible failure as
error in this Court.
[Cite as State v. Rogers, 2013-Ohio-1865.]


            IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                   Plaintiff-Appellant         :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
DAVID N. ROGERS                                :
                                               :
                                               :   Case No. CT2012-0042
                   Defendant-Appellee          :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court is reversed, the judgment is vacated, and the matter is

remanded for further proceedings consistent with this Opinion. Costs assessed to

appellee.




                                             HON. PATRICIA A. DELANEY



                                             HON. WILLIAM B. HOFFMAN



                                             HON. SHEILA G. FARMER
