Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeals from the Trumbull County Court of Common
Pleas. Case Nos. 93 CR 360 & 94 CR 159.
Watkins, Trumbull County Prosecutor; Diane Barber and
Ashleigh Musick, Assistant Prosecutors, (For
Matthew O. Williams, (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
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.
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.
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
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.
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)
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.
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 ...