State v. Stephens
Court of Appeals of Ohio, Second District, Montgomery County
October 28, 2011
Holding: In order for a petitioner to have his or her records sealed pursuant to R.C. 2953.32, one must first qualify as a “first offender.” A petitioner with subsequent or prior convictions is not a “first offender,” and is therefore not eligible for criminal record sealing.
Why This Case is Important: R.C. 2953.32 establishes the requirements of sealing a record of conviction. As a prerequisite, a petitioner must be a first time offender in order to be eligible for record sealing. In other words, the conviction must be the petitioner’s first offense in Ohio or in another state.
A petitioner with multiple convictions will not qualify as a first time offender. As such, a petitioner with prior or subsequent convictions is ineligible for record sealing in Ohio. There are instances in which a petitioner with multiple convictions can still qualify for Ohio record sealing. For instance, if a petitioner has two or more convictions that resulted from the same act or resulted from offenses committed at the same time, then the conviction will be counted as one conviction. Such a petitioner would meet the threshold requirement as a first offender.
However, if a petitioner has a conviction in 2000 and a subsequent unrelated conviction in 2004, the petitioner is no longer a first offender. Because this petitioner has two separate convictions, then he will not be eligible to seal his conviction records.
Facts of This Case: In September of 2008, the petitioner in this case entered a plea of guilty to one count of public indecency. In 2009, the petitioner was discharged from probation, and in 2011, he filed an application to seal his record. During the hearing, the prosecutor argued that the petitioner was not eligible for record sealing on the grounds that petitioner was not a first time offender. The prosecutor presented evidence that the petitioner was previously convicted in July of 2008 for disorderly conduct, an unrelated offense. The trial court, however, granted the petitioner’s application on the grounds of undue hardship. The State appealed.
The Court of Appeals of Ohio reversed the trial court’s decision. The court of appeals determined that the trial court had no authority to grant the petitioner’s record sealing application. The appeals court stated that the requirements of conviction record sealing were governed by R.C. 2953.32. The appeals court held that a threshold requirement of section 2953.32 was that petitioner qualified as a first time offender.
The court of appeals defined a first time offender as one who was not previously or subsequently convicted of the same or different offense in the state of Ohio or other state. The court of appeals stated that the petitioner was convicted in July of 2008 and September of 2008 for unrelated offenses. The court of appeals determined that due to the petitioner’s unrelated offenses, he was not a first time offender and did not qualify for expungement.
The court of appeals held that if an applicant is not a first offender, the court lacks jurisdiction to grant expungement. As a result, the court of appeals concluded that the petitioner was not eligible for expungement. It thereby reversed the trial court’s decision and ordered the denial of petitioner’s record sealing request.
Key Language: First offender means 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.
One of the requirements for expungement pursuant to R.C. 2953.32 is that the defendant be a first offender.
Expert Advise: “Being a first time offender is a threshold requirement for conviction record sealing. A petitioner who does not qualify as a first offender will unfortunately not qualify for record sealing services. It is important to divulge all relevant information of criminal history in order to allow an attorney to determine whether conviction record sealing is attainable.” -Attorney Mathew Higbee.
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