[Cite as State v. Banks, 2013-Ohio-4890.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellant,              :            No. 13AP-350
                                                           (C.P.C. Nos. 00CR-4350
v.                                                 :               and 04CR-8131)

Kendall L. Banks,                                  :     (REGULAR CALENDAR)

                 Defendant-Appellee.               :




                                            D E C I S I O N

                                    Rendered on November 5, 2013


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

                  APPEAL from the Franklin County Court of Common Pleas.


BROWN, J.
        {¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of
the Franklin County Court of Common Pleas granting an application to seal the record of
conviction of defendant-appellee, Kendall L. Banks pursuant to R.C. 2953.32.
        {¶ 2} On November 9, 2000, appellee entered a plea of guilty in common pleas
case No. 00CR-4350 to one count of attempted breaking and entering, in violation of R.C.
2923.02, a misdemeanor of the first degree. The trial court ordered a sentence of six
months incarceration with all time suspended subject to one-year probation.
        {¶ 3} On May 24, 2007, appellee entered a guilty plea in common pleas case No.
04CR-8131 to one count of carrying a concealed weapon, in violation of R.C. 2923.12, a
misdemeanor of the first degree. The trial court ordered a sentence of two months
No. 13AP-350                                                                               2


incarceration with the balance of the sentence suspended provided appellee incur no new
offenses for one year.
       {¶ 4} On February 22, 2012, appellee filed an application to seal the record of his
convictions in case Nos. 00CR-4350 and 04CR-8131. On April 18, 2012, the state filed an
objection, asserting that appellee failed to qualify as a first offender because he was
convicted of separate offenses committed years apart. On August 1, 2012, the state filed a
supplement to its objection, noting that, in June 2012, the Governor of Ohio had signed
Am.Sub. S.B. No. 337 (hereafter "S.B. No. 337"), which amended the definition of those
eligible for expungement; the state argued that the amendments to the expungement
statutes (R.C. 2953.31 to 2953.36) resulting from S.B. No. 337 did not apply to appellee's
application because he filed it prior to the effective date (September 28, 2012) of the
amendments.
       {¶ 5} The matter came for hearing before the trial court on October 11, 2012.
During the hearing, the trial court informed appellee: "When you filed the application for
sealing the record back on April 18th of 2012, the previous statute was in effect." (Tr. 2.)
The court further informed appellee that, if the state's argument "is correct, what you
need to do is withdraw this [application], file it again, we'll have a hearing on it and the
new law will be in effect." (Tr. 3.) By entry filed March 28, 2013, the trial court ordered
the sealing of appellee's record of conviction in both cases.
       {¶ 6} On appeal, the state sets forth the following assignment of error for this
court's review:
              THE TRIAL COURT ERRED WHEN IT GRANTED THE
              DEFEDNANT'S      APPLICATION    TO     SEAL HIS
              CONVICTIONS WHEN HE WAS NOT A "FIRST
              OFFENDER" IN CONTRAVENTION OF FORMER R.C.
              2953.31(A) AND FORMER R.C. 2953.32(A).

       {¶ 7} Under its single assignment of error, the state argues that appellee filed his
application to seal the record of his convictions prior to the passage of S.B. No. 337, which
changed the definition of an applicant from a "first offender" to "eligible offender." Thus,
the state argues, the provisions of former R.C. 2953.31 to 2953.36 were in effect for
purposes of appellee's application. The state maintains that appellee cannot qualify as a
first offender under the former statutes because he had two separate convictions.
No. 13AP-350                                                                                  3


       {¶ 8} Under Ohio law, "[t]he process for ordering a record of conviction to be
sealed (more commonly referred to as 'expungement') is governed by R.C. 2953.31 et
seq.," and it is "well-settled that '[e]xpungement is an act of grace by the state, and so is a
privilege, not a right.' " State v. Thompson, 10th Dist. No. 06AP-881, 2007-Ohio-1503,
¶ 4, citing State v. Simon, 87 Ohio St.3d 531, 533 (2000). Thus, "a trial court should only
order an expungement when all of the requirements for eligibility have been met." Id.,
citing State v. Hamilton, 75 Ohio St.3d 636 (1996).
       {¶ 9} The provisions of former R.C. 2953.32 "permitted a 'first offender' to apply
to the sentencing court for sealing of a conviction record." State v. Reedus, 10th Dist. No.
12AP-1066, 2013-Ohio-2752, ¶ 5. Under former R.C. 2953.31(A), a "first offender" was
defined in part as one "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."
       {¶ 10} The general rule under the former expungement provisions was that only a
person with a single conviction was eligible for expungement, subject to two exceptions.
In re Koehler, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 17. Under the first exception,
" '[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.' " Id.,
quoting former R.C. 2953.31(A). Under the second exception, " 'when two or three
convictions result from the same indictment, * * * 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.' " Id. Accordingly,
applying the former provisions, "different acts committed at different times resulting in
separate convictions generally mean a defendant is not a first offender." State v. Yorde,
10th Dist. No. 11AP-404, 2011-Ohio-6671, ¶ 13, citing Koehler at ¶ 28.
       {¶ 11} If an applicant under former R.C. 2953.32 "is not a first offender, the trial
court lacks jurisdiction to grant the requested expungement." Reedus at ¶ 5, citing In re
Barnes, 10th Dist. No. 05AP-355, 2005-Ohio-6891, ¶ 12. The question of whether an
applicant is a first offender "is an issue of law for a reviewing court to decide de novo." Id.
No. 13AP-350                                                                               4


        {¶ 12} In the present case, we agree with the state that the former expungement
statutes were in effect at the time of appellee's application. See State v. LaSalle, 96 Ohio
St.3d 178, 2002-Ohio-4009, paragraph two of the syllabus ("The statutory law in effect at
the time of the filing of an R.C. 2953.32 application to seal a record of conviction is
controlling."). See also Reedus at ¶ 2, fn. 1 ("The former version of R.C. 2953.31 through
2953.36 applies to Reedus's motion because she filed her motion before September 28,
2012, the effective date of changes to those statutes."). We further agree with the state
that appellee did not qualify as a first offender under the former statutory provisions in
light of his two separate convictions. Because appellee did not qualify as a first offender,
we sustain the state's assignment of error, reversing the trial court's decision and
remanding this matter to the trial court to enter judgment denying appellee's application.
Id. at ¶ 8.
        {¶ 13} Based upon the foregoing, the state's single assignment of error is sustained,
the judgment of the Franklin County Court of Common Pleas is reversed, and this matter
is remanded to that court for further proceedings in accordance with law, consistent with
this decision.
                                                     Judgment reversed; cause remanded.

                          O'GRADY and McCORMAC, JJ., concur.

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

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