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State v. Dominy

Court of Appeals of Ohio, Tenth District

August 29, 2013

State of Ohio, Plaintiff-Appellant,
v.
Scott D. Dominy, Defendant-Appellee.

APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 12EP10-796

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

Shawn R. Dominy, for appellee.

DECISION

KLATT, P.J.

(¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment entered by the Franklin County Court of Common Pleas sealing the records of conviction of defendant-appellee, Scott D. Dominy. For the following reasons, we affirm that judgment.

I. Factual and Procedural Background

(¶ 2} In 1998, Dominy entered a guilty plea to one count of attempted trafficking in cocaine, a fourth-degree felony. The trial court found him guilty and sentenced him to a two-year period of community control. In 2012, Dominy filed a motion in the trial court, pursuant to R.C. 2953.32, seeking to have the records of that conviction sealed. The state objected, arguing that Dominy was not eligible to have the records sealed because he had more than one felony and more than one misdemeanor conviction. R.C. 2953.31(A). Specifically, the state noted that, in addition to the felony drug conviction, Dominy also had a disorderly conduct conviction, a fourth-degree misdemeanor, and multiple violations of R.C. 5577.04(A), which regulate the weights of vehicles on public highways (hereinafter referred to as "weight convictions"). Relying on case law from this court, Dominy argued that the weight convictions were traffic-related offenses that do not count as convictions for purposes of determining whether he is eligible to have his records sealed.

(¶ 3} After a hearing, the trial court agreed with Dominy that the weight convictions do not count as convictions to determine his eligibility to have his records sealed. Absent those convictions, the trial court found Dominy to be eligible and granted his request to seal the records of his felony drug conviction.

II. The Appeal

(¶ 4} The state appeals and assigns the following error:

THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S APPLICATION FOR SEALING, AS HE WAS NOT AN "ELIGIBLE OFFENDER."

A. Is Dominy an Eligible Offender to have his Conviction Records Sealed?

(¶ 5} The sealing of records of conviction, like expungment, is an act of grace created by the state, and so is a privilege, not a right. See State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). In light of its nature, sealing should be granted only when all requirements for eligibility are met. Simon at 533. The state argues that Dominy does not meet the statutory requirements to have his records sealed because he is not an eligible offender.[1] We disagree.

(¶ 6} If an applicant is not an eligible offender, the trial court lacks jurisdiction to grant the application. See In re Barnes, 10th Dist. No. 05AP-355, 2005-Ohio-6891, ¶ 12. As a result, 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. at ¶ 13; State v. McCoy, 10th Dist. No. 04AP-121, 2004-Ohio-6726, ΒΆ 11. Whether an applicant is an eligible offender is ...


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