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State of Ohio v. Stephen A. Fedor

October 27, 2011

STATE OF OHIO, PLAINTIFF-APPELLANT,
v.
STEPHEN A. FEDOR,
DEFENDANT-APPELLEE.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 94CR-10-5652)

The opinion of the court was delivered by: Dorrian, J.

Cite as State v. Fedor,

(ACCELERATED CALENDAR)

DECISION

{¶1} Appellant, State of Ohio ("the state"), appeals from the judgment of the Franklin County Court of Common Pleas, which issued an order sealing the conviction record of defendant-appellee, Stephen A. Fedor ("appellee"). For the following reasons, we reverse and remand the matter to the trial court.

{¶2} On June 15, 2010, pursuant to R.C. 2953.32(A), appellee filed an application to seal the record of his 1995 convictions for theft, receiving stolen property, and attempted possession of criminal tools, all misdemeanors of the first degree, in Franklin County Court of Common Pleas case No. 94CR-10-5652. On June 23, 2010, the state filed objections to the sealing of appellee's record of conviction. In support of its objections, the state argued that appellee does not qualify as a first offender because he had previously been convicted for operating a vehicle while intoxicated ("OVI").*fn1

{¶3} The application was set for hearing on August 9, 2010. That same day the application was continued for hearing on October 25, 2010 and again continued until November 22, 2010. It appears that, on November 22, 2010, the hearing was continued until January 11, 2011, then again until February 7, 2011. On February 7, 2011, the court granted appellee's application, and on February 15, 2011, the court filed an "Entry Sealing Record of Conviction Pursuant to R.C. 2953.32." With this entry, the trial court issued an order sealing the record of appellee's 1995 convictions in case No. 94CR-10- 5652.

{¶4} Appellant filed a timely notice of appeal and raises the following assignment of error:

THE TRIAL COURT ERRED BY GRANTING APPELLANT'S [SIC] APPLICATION FOR EXPUNGEMENT BECAUSE APPELLANT [SIC] WAS NOT A FIRST OFFENDER UNDER R.C. 2953.32(A).

{¶5} This assignment of error raises a jurisdictional issue. " '[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-Ohio-474, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 1996-Ohio-440. In light of its nature, "[e]xpungement should be granted only when all requirements for eligibility are met." Simon at 533.

{¶6} R.C. 2953.32 permits a "first offender" to apply to the sentencing court for sealing of a conviction record. R.C. 2953.31(A) defines a "first offender" as:

[A]nyone 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.

{¶7} R.C. 2953.31(A) also mandates that "a conviction for a violation of section 4511.19 * * * for a violation of a substantially equivalent municipal ordinance * * * or for a violation of a substantially equivalent former law of this state or former municipal ordinance shall be considered a previous or subsequent conviction." R.C. 4511.19 prohibits driving under the influence of drugs or alcohol. "[A] conviction of DUI always bars expungement of the record of a conviction for another criminal offense." State v. Sandlin, 86 Ohio St.3d 165, 168, 1999-Ohio-147. See also In re White, 10th Dist. No. 05AP-529, 2006-Ohio-1346, ¶6.

{ΒΆ8} It appears that appellee is not a "first offender" as defined under R.C. 2953.31(A). Parenthetical 4 of the trial court's own "Criteria for Sealing: Conviction / Nolle Prosequi / Dismissal / No Bill / Bond Forfeitures / Not Guilty Finding" checklist indicates that appellee is a first offender. However, the Bureau of Criminal Identification & Investigation Law Enforcement Automated Database Search ("LEADS") report attached to the same checklist ...


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