[Cite as State v. Julian, 2015-Ohio-5313.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Respondent-Appellee,                       :     CASE NO. CA2015-05-088

                                                   :            OPINION
    - vs -                                                      12/21/2015
                                                   :

DANIEL G. JULIAN,                                  :

        Petitioner-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2004-03-0442



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for respondent-appellee

Gregory J. Vogt, 8310 Princeton-Glendale Road, West Chester, Ohio 45069, for petitioner-
appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Daniel G. Julian, appeals a decision of the Butler County

Court of Common Pleas denying his application for expungement. For the reasons set forth

below, we reverse the trial court's decision.

        {¶ 2} In 2004, Julian was charged with theft after stealing deposits from multiple

United Dairy Farmer ("UDF") stores while working as a district manager for the company.
                                                                         Butler CA2015-05-088

Based upon his theft of deposits from a Butler County UDF, Julian pled guilty to one count of

grand theft, a felony of the fourth degree. After completing his sentence, Julian's probation

was terminated and he was discharged in 2009.

       {¶ 3} In 2014, Julian filed a motion to seal the record of his conviction. The trial court

scheduled a hearing on the motion for April 21, 2015. However, on April 10, 2015, the trial

court filed an entry denying the motion for sealing of record of conviction. The court found

that Julian was ineligible to apply for the sealing of record because of a previous felony

conviction in Hamilton County, Ohio.         Specifically, the trial court found that the two

convictions "arose out of nearly two (2) years of criminal activity; thereby exceeding the three

(3) month timeframe and rendering the defendant ineligible."

       {¶ 4} Julian now appeals that decision, raising two assignments of error for our

review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED AND APPELLANT WAS DENIED DUE

PROCESS OF LAW BY FAILING TO SET AND HOLD A HEARING AS REQUIRED BY

OHIO REVISED CODE §2953.32(B).

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING

APPELLANT'S REQUEST TO HAVE HIS RECORD SEALED.

       {¶ 9} "The sealing of a criminal record, also known as expungement, * * * is an 'act of

grace created by the state.'" State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, ¶ 11,

quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). In light of its nature, expungement

should be granted only when all requirements for eligibility are met. Id., citing State v. Futrall,

123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6. If an applicant is not an "eligible offender" under

R.C. 2953.31, the trial court lacks jurisdiction to grant the expungement application. State v.
                                                -2-
                                                                       Butler CA2015-05-088

Kelly, 12th Dist. Warren No. CA2002-04-041, 2002-Ohio-5887, ¶ 15; State v. Tauch, 10th

Dist. Franklin No. 13AP-327, 2013-Ohio-5796, ¶ 7. Whether an applicant is an eligible

offender is a question of law that we review de novo. Kelly at ¶ 8; Tauch at ¶ 7.

       {¶ 10} R.C. 2953.32 provides "an eligible offender may apply to the sentencing court *

* * for the sealing of the record of the case that pertains to the conviction." Thus, a court

must first determine whether an applicant is an "eligible offender." R.C. 2953.31(A) defines

an eligible offender as:

              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.

       {¶ 11} Thus, an offender with two felony convictions is generally precluded from

applying for expungement. However, the statute provides two exceptions whereby multiple

convictions must be counted as one for purposes of expungement. First, where the

convictions "result from or are connected with the same act or result from offenses

committed at the same time," and second, where the 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."

       {¶ 12} In the present case, the trial court relied on the second exception, finding that
                                              -3-
                                                                         Butler CA2015-05-088

Julian was not an eligible offender because he was convicted of more than one felony arising

out of nearly two years of criminal activity. Specifically, the court cited Julian's fourth-degree

felony theft conviction in Hamilton County. In turn, Julian argues that the criminal acts in

Hamilton County occurred within a three-month period of the criminal acts in the present

case. Julian asserts that the trial court was therefore required to consider them as a single

conviction for purposes of expungement.

       {¶ 13} A review of the record reveals no indication that the basis for the convictions in

Hamilton and Butler Counties were the result of nearly two years of criminal activity. While

information contained within the presentence investigative report may suggest a longer-term

pattern of criminal activity, the convictions themselves resulted only from criminal activity

occurring within a three-month period. Therefore, the trial court erred in finding that the

convictions arose out of nearly two years of criminal activity. However, the convictions in

Hamilton and Butler County did not result from the same indictment, information, or

complaint, from the same plea of guilty, or from the same official proceeding. Thus, the

second exception requiring that courts treat two convictions as one for expungement

purposes does not apply in the present case.

       {¶ 14} Nonetheless, we must still consider whether the first exception applies under

the present facts. As stated above, the first exception requires that two or more convictions

be counted as one where they "result from or are connected with the same act or result from

offenses committed at the same time."

       {¶ 15} In considering this issue, the Fourth District held that a defendant convicted of

vandalism and OMVI was a first offender even though the distinct criminal acts occurred 12

hours apart and in separate counties.         State v. McGinnis, 90 Ohio App.3d 479 (4th

Dist.1993). That court found that offenses which are linked together logically or coherently

are considered "connected" for purposes of expungement. Id. at 482. Similarly, the First
                                               -4-
                                                                         Butler CA2015-05-088

District held that the defendant was a first offender even though he pleaded guilty to two

separate counts of robbery of two victims in two separate cars, approximately 15 minutes

apart. State v. Penn, 52 Ohio App.2d 315 (1st Dist.1977). While the courts in those cases

used the term "first offender," rather than "eligible offender," we recognize that the pertinent

exception to the restriction on eligibility for those having two convictions under the former

statute is identical to the first exception under the current statute.

       {¶ 16} Julian's two convictions were based upon acts of keeping deposits from multiple

UDF stores that were under his management rather than placing those deposits in the proper

bank accounts. The activities that were the basis of those convictions occurred within the

same period of time, in the same manner, and involved the same victim. Thus, they are

logically and coherently linked and must therefore be counted as one offense for

expungement purposes. Accordingly, the trial court should have found that Julian is an

eligible offender and held a hearing to determine whether to grant the sealing of the record.

       {¶ 17} We note that this decision is determinative solely of Julian's eligibility to apply

for expungement, and not the outcome of the application itself. That decision is left to the

discretion of the trial court following the hearing and the required determinations under R.C.

2953.32(B)(2).

       {¶ 18} Judgment reversed and remanded to the trial court for further proceedings

consistent with this opinion.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




                                               -5-
