[Cite as In re Application for Sealing of Records of McBride, 2013-Ohio-5718.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

In the Matter of the                                 :
Application for the Sealing                                                 No. 13AP-658
of the Records of:                                   :                (M.C. No. 2013 CRX-051087)
                                                                                 and
Michael C. McBride,                                  :                      No. 13AP-680
                                                                      (M.C. No. 2013 CRX-051086)
                 Appellant,                          :
                                                                     (REGULAR CALENDAR)
[City of Whitehall,                                  :

                 Appellee].                          :




                                            D E C I S I O N

                                   Rendered on December 24, 2013



                 Michael C. McBride, pro se.

                 Michael T. Shannon, Whitehall City Attorney, and Craigg E.
                 Gould, for appellee.

                      APPEALS from the Franklin County Municipal Court

O'GRADY, J.

        {¶ 1} Appellant, Michael C. McBride, appeals from the judgments of the Franklin
County Municipal Court denying his applications to seal his criminal records in two cases.
For the following reasons, we affirm the judgments of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In Franklin County Municipal Court case No. 2005 CRB 31523, appellant
was charged with one count of making a false police report on November 23, 2005. On
December 19, 2006, appellant pleaded no contest to an amended charge of criminal
mischief, a third-degree misdemeanor, in violation of R.C. 2909.07. The court found him
guilty of the offense.
Nos. 13AP-658 and 13AP-680                                                               2


       {¶ 3} In Franklin County Municipal Court case No. 2006 CRB 15313, appellant
was charged with six counts of violating a civil protection order ("VPO").              On
December 19, 2006, appellant pleaded no contest to two of the counts, and the court
found him guilty of the offenses, both violations of R.C. 2919.27 and first-degree
misdemeanors. The court dismissed the remaining four counts.
       {¶ 4} In April 2013, in Franklin County Municipal Court case No. 2013 CRX
051086, appellant applied to have his official records sealed in the VPO case. In Franklin
County Municipal Court case No. 2013 CRX 051087, appellant applied to have his official
records sealed in the criminal mischief case. The court scheduled an expungement
hearing on both applications for July 8, 2013. On that date, in case No. 2013 CRX
051086, the court denied the application because the interests of appellant were
outweighed by any legitimate governmental need to maintain the records at issue. In case
No. 2013 CRX 051087, the court denied the application because appellant was not an
"eligible offender."
II. ASSIGNMENT OF ERROR
       {¶ 5} In these consolidated appeals, appellant presents this court with one
assignment of error for our review:
              THE LOWER COURT ERRORED [sic] AS A MATTER OF
              LAW BY NOT GRANTING A FULL HEARING UNDER R.C[.]
              2953.32[.]

III. DISCUSSION
       {¶ 6} Under his sole assignment of error, appellant contends the trial court erred
as a matter of law by not conducting a full hearing on his applications under R.C. 2953.32.
       {¶ 7} Initially, we note appellant filed his applications under R.C. 2953.32 and
2953.52. R.C. 2953.32 governs the sealing of conviction records, while R.C. 2953.52
governs the sealing of official records in other circumstances, such as when a person has
had a criminal complaint dismissed. Because appellant limits his appeal to R.C. 2953.32,
we will do the same.
Nos. 13AP-658 and 13AP-680                                                                   3


       {¶ 8} R.C. 2953.32 provides:

              (A)
              (1) Except as provided in section 2953.61 of the Revised Code,
              an eligible offender may apply to the sentencing court if
              convicted in this state, or to a court of common pleas if
              convicted in another state or in a federal court, 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 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.

       {¶ 9} The sealing of a criminal record is also known as expungement. State v.
Boykin, ___ Ohio St.3d ___, 2013-Ohio-4582, ¶ 11, citing State v. Pariag, ___ Ohio
St.3d ___, 2013-Ohio-4010, ¶ 11. "Sealing of a record of conviction pursuant to R.C.
2953.32 is a postconviction remedy that is civil in nature." State v. LaSalle, 96 Ohio St.3d
178, 2002-Ohio-4009, ¶ 19, citing State v. Bissantz, 30 Ohio St.3d 120, 121 (1987).
" '[E]xpungement is an act of grace created by the state,' and so is a privilege, not a right."
State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d
636, 639 (1996). Expungement should be granted only when the applicant meets all
requirements for eligibility. Boykin at ¶ 11.
       {¶ 10} We have previously stated "R.C. 2953.32 'requires a court to hold a hearing,
gather information, and consider certain interests before ruling on the [expungement]
application.' " In re Fuller, 10th Dist. No. 11AP-579, 2011-Ohio-6673, ¶ 7, quoting In re
Esson, 10th Dist. No. 11AP-208, 2011-Ohio-5770, ¶ 15. We have also stated "[f]ailure to
Nos. 13AP-658 and 13AP-680                                                                 4


hold a hearing will result in reversal on appeal." State v. Bootes, 10th Dist. No. 10AP-
691, 2011-Ohio-1605, ¶ 10, citing In re Bonner, 10th Dist. No. 05AP-1317, 2006-Ohio-
3958. According to the Supreme Court of Ohio, "[i]t is apparent from a study of R.C.
2953.32 that the essential purpose of an expungement hearing is to provide a reviewing
court with all relevant information bearing on an applicant's eligibility for expungement."
Hamilton at 640. Although the General Assembly has amended R.C. 2953.32 since the
Hamilton court issued its decision, the essential purpose of the expungement hearing
remains the same.
       {¶ 11} Nonetheless, this court has recognized that, under some circumstances, an
expungement hearing is not required.       In State v. Haney, 10th Dist. No. 99AP-159
(Nov. 23, 1999), the defendant filed an expungement application which the trial court
denied, and this court affirmed the denial. The defendant then filed a second application
which the trial court denied without a hearing based on the doctrine of res judicata. On
appeal, this court agreed res judicata prohibited the second application because the
defendant made the same arguments in both applications and failed to allege any change
in circumstances since his first application. We rejected the defendant's contention the
trial court's failure to conduct a hearing before denying the second application violated his
due process rights. We explained:
              Under these circumstances, appellant could not have
              presented any evidence that would have changed the outcome
              because the trial court had no discretion to grant the second
              application. The trial court was required, as a matter of law, to
              find the second application barred by res judicata.
              Accordingly, this court concludes that the trial court was not
              required to hold an evidentiary hearing under these
              circumstances. See City of Aurora v. Bulanda (June 14, 1996),
              Portage App. No. 95-P-0130, unreported (finding that the trial
              court was not required to hold a hearing pursuant to R.C.
              2953.32 because the defendant did not commit an offense that
              could be expunged under R.C. 2953.36, and, thus, the
              defendant could not have presented any evidence that could
              have changed the outcome).

       {¶ 12} Appellant contends the trial court erred by not having a full hearing on his
expungement applications. Appellant asserts the court simply stated "this is off the
record" and notified him it would be denying his applications. (Appellant's brief, at 7.)
Nos. 13AP-658 and 13AP-680                                                                  5


Appellee suggests the events appellant describes do constitute a hearing and the fact that
the court conducted it off the record "is not indicative of a lack of or denial of a hearing."
(Appellee's brief, at 7.) Appellee contends, because appellant did not provide this court
with a transcript of the hearing, we must presume the regularity of the trial court's
proceedings on his applications.
       {¶ 13} Alternatively, appellee argues a hearing was unnecessary because appellant
is not an "eligible offender" for expungement under R.C. 2953.32.           R.C. 2953.31(A)
defines "eligible offender":
              "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 if the convictions are not of the
              same offense, 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

       {¶ 14} "If an applicant is not an eligible offender, the trial court lacks jurisdiction
to grant the application." State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6,
citing In re Barnes, 10th Dist. No. 05AP-355, 2005-Ohio-6891, ¶ 12. Thus, "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., citing Barnes at ¶ 13; State v. McCoy, 10th Dist. No.
04AP-121, 2004-Ohio-6726, ¶ 11. "Whether an applicant is an eligible offender is an issue
of law that we review de novo." Id., citing State v. Hoyles, 10th Dist. No. 08AP-946,
2009-Ohio-4483, ¶ 4.
Nos. 13AP-658 and 13AP-680                                                                6


       {¶ 15} Appellee contends appellant has five convictions arising out of three
separate and different acts. First, he has the criminal mischief conviction. Second, he has
the two VPO convictions, which appellee suggests count as one conviction for purposes of
R.C. 2953.31(A).      Third, he has misdemeanor convictions in the Ashland County
Municipal Court from 2006 for obstructing official business and resisting arrest. See
State v. McBride, 5th Dist. No. 13-COA-004, 2013-Ohio-3491. Appellee also suggests
these offenses count as one conviction for purposes of R.C. 2953.31(A). Under appellee's
analysis, appellant has three misdemeanor convictions and is not an eligible offender
under R.C. 2953.31(A). In his reply brief, appellant argues he is entitled to a hearing to
prove the "relation" or "sameness" of his convictions. (Appellant's reply brief, at 8.)
       {¶ 16} Appellant filed an application to seal the records of his Ashland County
convictions in the Ashland County Municipal Court, the court denied the application after
a hearing, and the Fifth District Court of Appeals affirmed. Although neither party raises
the issue, the existence of this action raises an issue of res judicata.
       {¶ 17} "Whether the doctrine of res judicata applies in a case is a question of law."
Arth Brass & Aluminum Castings, Inc. v. Ryan, 10th Dist. No. 07AP-811, 2008-Ohio-
1109, ¶ 7. "The doctrine of res judicata has two aspects: claim preclusion and issue
preclusion." Id. at ¶ 8, citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 381 (1995).
"Claim preclusion holds that a valid, final judgment on the merits bars all subsequent
actions based upon any claim arising out of the transaction or occurrence that was the
subject matter of the previous action." Id., citing Grava at syllabus. "Issue preclusion,
also known as collateral estoppel, provides that 'a fact or a point that was actually and
directly at issue in a previous action, and was passed upon and determined by a court of
competent jurisdiction, may not be drawn into question in a subsequent action between
the same parties or their privies, whether the cause of action in the two actions be
identical or different.' " Id., quoting Fort Frye Teachers Assn. v. State Emp. Relations
Bd., 81 Ohio St.3d 392, 395 (1998).
       {¶ 18} Collateral estoppel applies when (1) the fact or issue was actually and
directly litigated in the prior action, (2) the fact or issue was passed upon and determined
by a court of competent jurisdiction, and (3) the party against whom collateral estoppel is
asserted was a party or in privity with a party to the prior action. See id. at ¶ 9, quoting
Nos. 13AP-658 and 13AP-680                                                               7


Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994). " 'The essential test in determining
whether the doctrine of collateral estoppel is to be applied is whether the party against
whom the prior judgment is being asserted had full representation and a "full and fair
opportunity to litigate that issue in the first action." ' " Id., quoting Cashelmara Villas
Ltd. Partnership v. DiBenedetto, 87 Ohio App.3d 809, 813 (8th Dist.1993), quoting Hicks
v. De La Cruz, 52 Ohio St.2d 71, 74 (1977).
       {¶ 19} In McBride, the Fifth District stated:
              On January 29, 2013, the trial court filed a judgment entry
              stating its reasons for denying appellant's motion to seal
              record of conviction, and denying appellant's motion to seal
              record pending his appeals.

              Appellant claims the trial court erred in not sealing his record.
              We disagree.

              R.C. 2953.32 governs sealing of record of eligible offender.

              ***

              An "eligible offender" is defined in R.C. 2953.31(A) * * *[.]

              ***

              In its judgment entry filed January 29, 2013, the trial court
              stated the following:

              Defendant previously filed a Motion seeking sealing of his
              convictions pursuant to Section 2953.32 of the Ohio Revised
              Code. The Court conducted a hearing on January 11, 2013.
              Defendant was present and presented evidence in support of
              his Motion. The State opposed the Motion. The Court found
              that the defendant was not an eligible offender due to his
              multiple convictions in Ashland and Franklin Counties. The
              Court also found that the State's interest in maintaining the
              records outweighed Defendant's interest in having them
              sealed. This finding was based in large part on the violent
              nature of the offenses.

              The record demonstrates that appellant was convicted in
              Ashland County conceded that the two convictions qualified
              as one conviction. T. at 9. Appellant was also convicted in
              Franklin County on one count of criminal mischief (false
Nos. 13AP-658 and 13AP-680                                                      8


            alarm charge) and two counts of violating a protection order
            in December of 2006. T. at 10–11. The criminal mischief
            offense occurred on November 23, 2005, and the protection
            order violations occurred between February 25, and March 2,
            2006. Id. The trial court concluded the Ashland County
            convictions constituted one conviction, and the Franklin
            County convictions constituted two convictions, stating the
            following (T. at 15–16):

            So, you know, I do agree that the incidents in Ashland County
            arose out of one course of conduct and should be considered
            one offense out of the statute.

            ***

            But I find that based on the facts that you are not a two-time
            offender, that your false alarm charge that resulted in the
            criminal mischief is a separate course of conduct from that
            which resulted in the violation of protection order convictions.
            Even though the pleas were entered on the same date, the
            offenses occurred on different dates.

            Therefore I'm finding that those should not be combined and
            treated as one offense.

            Appellant argues the Franklin County convictions "should be
            considered one case because it was a simultaneous agreement
            on that date indicated." T. at 8. The fact that appellant pled to
            the three Franklin County charges on the same date is
            irrelevant under R.C. 2953.31. The determining factors are
            when the crimes were committed and whether there was a
            connection between the crimes.

            Because the Franklin County convictions did not occur at the
            same time, did not involve an ongoing course of conduct, and
            were separated by more than three months, they constitute
            two separate convictions. The two separate convictions,
            coupled with the Ashland County conviction, equals three
            convictions, making appellant an ineligible offender under
            R.C. 2953 .31(A). Since appellant did not qualify as an eligible
            offender under the statute, the trial court could not use its
            discretion to seal the record. State v. Lovelace, 1st Dist.
            Hamilton No. C-110715, 2012-Ohio-3797. Any decision
            involving discretion was superfluous.
Nos. 13AP-658 and 13AP-680                                                              9


                  The trial court's denial of appellant's motion to seal record of
                  conviction is consistent with R.C. 2953 31, et seq., and does
                  not violate the Ohio Constitution, Article I, Section 9, and the
                  Eighth Amendment to the U.S. Constitution.

                  Upon review, we find the trial court did not err in denying
                  appellant's motion to seal record of conviction

Id. at ¶ 7- 17.
       {¶ 20} Here, the parties actually and directly litigated in the Ashland County
Municipal Court the issue of whether appellant qualified as an eligible offender under
R.C. 2953.31 based on the same convictions at issue in this case. The Ashland court, a
court of competent jurisdiction, found appellant was not an eligible offender and not
entitled to expungement under R.C. 2953.32. From the Fifth District's recitation of the
Ashland court's proceedings, it is evident appellant had a full and fair opportunity to
litigate the eligibility issue.    The Ashland court conducted a hearing on appellant's
expungement application and addressed the issue of eligibility. Appellant was present
and presented evidence in support of his application. The Ashland court addressed
appellant's arguments about whether his Franklin County convictionsthe convictions at
issue in this appealshould be treated as one conviction. Appellant's arguments failed at
the trial and appellate level, and he did not file a timely appeal of the Fifth District's
decision in the Supreme Court of Ohio. Moreover, the circumstances surrounding
appellant's eligibility have not changed since his application in the Ashland court was
denied.
       {¶ 21} Under these circumstances, we find collateral estoppel precludes appellant
from relitigating his status as an eligible offender under R.C. 2953.31. Because appellant
is not an eligible offender, the trial court in this case lacked jurisdiction to grant his
applications under R.C. 2953.32. Therefore, the trial court properly denied appellant's
applications, even if it did so for reasons other than collateral estoppel. See Reid v.
Plainsboro Partners, III, 10th Dist. 09AP-442, 2010-Ohio-4373, ¶ 20, citing Columbus
Steel Castings Co. v. King Tool Co., 10th Dist. No. 08AP-385, 2008-Ohio-6309, ¶ 7
(stating "an appellate court need not reverse an otherwise correct judgment merely
Nos. 13AP-658 and 13AP-680                                                         10


because the trial court utilized different or erroneous reasons as the basis for its
determination"). A hearing is not necessary to reach this conclusion. See Haney.
IV. CONCLUSION
      {¶ 22} Accordingly, we overrule the sole assignment of error and affirm the
judgments of the Franklin County Municipal Court.
                                                                   Judgments affirmed.

                       DORRIAN and McCORMAC, JJ., concur.

             McCORMAC, J., retired, formerly of the Tenth Appellate
             District, assigned to active duty under authority of the Ohio
             Constitution, Article IV, Section 6(C).
