Opinion
Nos. 48933 through 48940
Decided April 22, 1985.
Criminal law — Expungement of prior criminal conviction — R.C. 2953.32 — Applicant must be a first-time offender.
O.Jur 3d Criminal Law § 1655.
1. In order for an applicant to be entitled to expungement under R.C. 2953.32 he must have no other criminal convictions.
2. When an applicant for expungement has previously, at a single hearing, pled guilty to eight separate indictments charging him with theft offenses committed at different times over a period of years, those offenses do not merge into one offense for purposes of expungement under R.C. 2953.32.
APPEALS: Court of Appeals for Cuyahoga County.
John T. Corrigan, prosecuting attorney, and George J. Sadd, for appellee.
Leonard Saltzer, pro se.
Appellant, Leonard Saltzer, appeals the denial of his application for expungement made pursuant to R.C. 2953.32.
Saltzer was charged with grand theft from the Bureau of Workers' Compensation in October of 1976. The grand jury returned eight separate indictments against appellant and other co-defendants for separate theft offenses which occurred from October of 1972 through May of 1976. Appellant entered a guilty plea to each indictment on November 10, 1976. He was sentenced for all the offenses on January 24, 1977.
On January 28, 1983, Saltzer applied for expungement pursuant to R.C. 2953.31 et seq. The court denied the application without hearing in eight separate journal entries July 8, 1983. We reversed because the trial court did not afford Saltzer a hearing on his application. State v. Saltzer (1984), 14 Ohio App.3d 394.
R.C. 2953.32 describes the procedure for expungement of records. It provides in pertinent part:
"(A) A first offender may apply to the sentencing court if convicted in the state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of his conviction, at the expiration of three years after his final discharge if convicted of a felony, or at the expiration of one year after his final discharge if convicted of a misdemeanor.
"(B) Upon the filing of the application, the court shall set a date for a hearing and shall notify the prosecuting attorney of the hearing on the application. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant.
"(C) If the court finds that the applicant is a first offender, that there is no criminal proceeding against him, that his rehabilitation has been attained to the satisfaction of the court, and that the sealing of the record of his conviction is consistent with the public interest, the court shall order all official records pertaining to the case sealed and, except as provided in division (F) of this section, all index references to the case deleted. The proceedings in the case shall be deemed not to have occurred and the conviction of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31 to 2953.33 of the Revised Code. Upon the filing of an application under this section, the applicant shall, unless he is indigent, pay a fee of fifty dollars. The court shall pay thirty dollars of the fee into the state treasury; and twenty dollars into the county general revenue fund if the sealed conviction was under a state statute, or into the general revenue fund of the municipal corporation involved if the sealed conviction was under a municipal ordinance."
On remand a hearing was held on May 31, 1984. Appellant argued that he was entitled to expungement because, "* * * I pled guilty to these eight counts simultaneously. I did not plead to the eight counts separately." He also stated that he has been gainfully employed as an accountant since 1979. Appellant did not submit a complete transcript of the May 31, 1984 hearing. Therefore, we have no record of the arguments advanced by the prosecutor. The trial court denied appellant's application for expungement as he was found not to be a first-time offender as defined by R.C. 2953.31.
Appellant raises the following error on appeal:
"The Trial Court erred in denying Appellant's application for expungement even though Appellant was convicted of a multiple count charge of the same offense as he is a first offender as defined by Ohio Revised Code Section 2953.31 and is otherwise eligible for expungement."
Appellant contends that he is a first offender for purposes of R.C. 2953.31. He argues that the legislature did not intend to bar expungement for defendants who have been indicted several times for an identical offense. He also states that because one proceeding disposed of all the indictments against him, he was only "once convicted." We disagree.
R.C. 2953.31 states:
"As used in sections 2953.31 to 2953.36 of the Revised Code, `first offender' means anyone who has once been convicted of an 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."
Appellant cites State v. Penn (1977), 52 Ohio App.2d 315 [6 O.O.3d 357], in support of his arguments. It is true that the court in Penn determined that the defendant was a first offender when he committed two robberies in the same general location and within fifteen minutes of each other. However, Penn also recognized that when crimes are committed in different years, a defendant is not a first-time offender. Id. at 318. In the case sub judice several separate theft offenses occurred over a four-year period.
This court has held that just because offenses were of a like nature does not cause them to be treated as a single offense. State v. Stujenske (Jan. 28, 1982), Cuyahoga App. Nos. 43669 and 43670, unreported. Furthermore, when separate indictments are considered by a trial court at the same time, those offenses do not merge into one offense. State v. Londrico (Dec. 28, 1978), Cuyahoga App. No. 38174, unreported.
In order for a defendant to be entitled to expungement pursuant to R.C. 2953.31 et seq., he must be a first-time offender. That means he must have no other criminal convictions. State v. Stadler (1983), 14 Ohio App.3d 10; Chillicothe v. Herron (1982), 3 Ohio App.3d 468. The purpose of R.C. 2953.31 is to recognize that persons who have only a single criminal infraction may be rehabilitated. State v. Petrou (1984), 13 Ohio App.3d 456. A trial court has no jurisdiction to grant expungement unless the applicant is a first-time offender. State v. Thomas (1979), 64 Ohio App.2d 141 [18 O.O.3d 106].
Appellant was not a first offender as defined by R.C. 2953.31. He was convicted of eight separate theft offenses which occurred over a period of several years. Therefore, the trial court properly determined that appellant's criminal record is not entitled to expungement.
Appellant's assignment of error is not well-taken.
Judgment affirmed.
CORRIGAN, C.J., and PATTON, J., concur.