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State v. Potts

Court of Appeals of Ohio, Eleventh District, Trumbull

May 29, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
REGGIE L. POTTS, Defendant-Appellant.

          Criminal Appeals from the Trumbull County Court of Common Pleas. Case Nos. 93 CR 360 & 94 CR 159.

          Dennis Watkins, Trumbull County Prosecutor; Diane Barber and Ashleigh Musick, Assistant Prosecutors, (For Plaintiff-Appellee).

          Matthew O. Williams, (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Reggie L. Potts, appeals from the August 21, 2017 judgment of the Trumbull County Court of Common Pleas, denying appellant's applications to seal his record of convictions in case Nos. 1993 CR 360 and 1994 CR 159, which were consolidated for review. The judgment is affirmed.

         {¶2} Appellant was the Bazetta Township Chief of Police from 1978 until 1993. In 1993, appellant was indicted on four counts for misconduct related to his position as Chief of Police (case No. 1993 CR 00360). A jury found appellant guilty of Counts Three and Four: Theft in Office, a third-degree felony in violation of R.C. 2921.41(A)(2), which occurred on or about August 9, 1987; and Falsification, a first-degree misdemeanor in violation of R.C. 2921.13(A)(5), which occurred on or about October 17, 1989.

         {¶3} Appellant was indicted a second time in 1994 on two counts related to his position as Chief of Police (case No. 1994 CR 00159). Appellant pled guilty to a reduced charge of Tampering with Records, a first-degree misdemeanor in violation of R.C. 2913.42(A)(1), which occurred on or about January 1, 1991, through March 1992; the second count was dismissed.

         {¶4} Appellant was sentenced in both cases on December 12, 1994. In the 1993 case, appellant was sentenced to a combined 18 months in prison and fined $1, 000.00. The trial court suspended the prison sentence, and appellant was placed on probation for five years with the special condition that he serve 60 days of house arrest. The conviction was affirmed in State v. Potts, 11th Dist. Trumbull No. 95-T-5182, 1996 WL 297006 (May 10, 1996) ("Potts I "). In the 1994 case, appellant was sentenced to six months in jail and fined $1, 000.00. The trial court suspended the jail sentence, and appellant was placed on probation for two years with the special condition that he serve 60 days of house arrest. The sentence was run concurrently with the sentence imposed in the 1993 case. Appellant's probation was terminated on November 7, 1997.

         {¶5} After completing his probation, in 2000, appellant moved to have the record of these convictions sealed. The trial court ordered the records sealed based on its finding that the three convictions were all part of the same act because they were investigated at the same time and they all occurred in relation to appellant's employment as Chief of Police. The state of Ohio appealed that decision, and this court reversed the trial court's judgment in State v. Potts, 11th Dist. Trumbull Nos. 2001-T-0016 & 2001-T- 0017, 2001 WL 1647209 (Dec. 21, 2001) ("Potts II").

         {¶6} At the time of his 2000 application, R.C. 2953.32(A)(1) provided, in pertinent part: "Except as provided in section 2953.61 of the Revised Code, a first offender may apply to the sentencing court if convicted in this state * * * for the sealing of the conviction record." (Emphasis added.) The definition of "first offender" was found in former R.C. 2953.31(A):

'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. 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.

         {¶7} This court held that appellant was not a "first offender" because he was convicted of three distinct offenses that did not involve the same act and were not committed at the same time. Potts II, supra, at *3. The following analysis was used in reaching this conclusion:

The three convictions in this case are not related enough to be considered the same offense. The only connection between these crimes is that they were all committed in relation to Potts' employment. The crimes Potts committed occurred first in 1987, then in 1989, and finally over a period of time in 1991-1992. There is nearly five years separating these offenses. The first offense involved lending a loaned car, with undercover license plates issued to the police department, to a friend for an out-of-state trip. This offense is in no way related to the second offense, falsifying a document, by asserting an individual worked at the Bazetta Police Department, which was an untrue statement. Neither of these first two offenses have anything to do with the final conviction, tampering with the drug unit records.

Id. The trial court's judgment was reversed, and the record of appellant's convictions ...


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