{¶ 2} Appellee was indicted in case No. 03CR03-1506 on one count of abduction, a third-degree felony. The abduction charge included a firearm specification. The indictment alleged that on January 21, 2003, appellee, armed with an SKS rifle, threatened his ex-wife, demanding that she notarize a document that would permit appellee to take their four-year-old son to South Africa for three weeks. Apparently, his ex-wife notarized the document under duress. Thereafter, appellee went to South Africa with his son and current wife for three weeks. Four days after returning from South Africa, a search warrant was executed at his residence where an SKS rifle, the child's birth certificate, and passport were recovered. Ultimately, appellee pled guilty to attempted interference with custody, a first-degree misdemeanor, pursuant to a plea agreement.
{¶ 3} On July 27, 2004, appellee filed an application for sealing the record under R.C.
{¶ 4} The trial court held a hearing on March 14, 2005. Despite the fact that appellant had previously filed a written objection, appellant's counsel represented to the trial court that appellee's conviction was eligible for expungement. Following a similar representation by appellee's counsel, the trial court granted appellee's application.
{¶ 5} Appellant appeals, assigning the following error:
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S APPLICATION FOR EXPUNGEMENT AS DEFENDANT WAS INELIGIBLE UNDER R.C.
{¶ 6} Preliminarily, we note that "`[e]xpungement is an act of grace created by the state,' and so is a privilege, not a right." State v. Simon (2000),
{¶ 7} Specific statutory provisions govern the sealing of a record of conviction. See R.C.
Section
(A) Convictions when the offender is subject to a mandatory prison term;
* * *
(C) Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section
(D) Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony[.]
{¶ 8} Appellant argues that under R.C.
{¶ 9} Appellee was originally indicted for abduction of his four-year-old son. Although appellee ultimately pled guilty to attempted interference with custody pursuant to a plea agreement, it is undisputed that the victim of the indicted offense (appellee's son) was less than 18 years of age. Appellant contends that this undisputed fact makes appellee's conviction ineligible for expungement. We agree.
{¶ 10} The Supreme Court of Ohio in Simon, supra, held that a court must examine the underlying facts of the offense, rather than the crime to which the defendant ultimately pled, in assessing eligibility for expungement. In Simon, the court examined the defendant's eligibility for expungement under R.C.
{¶ 11} In assessing a defendant's eligibility for expungement under R.C.
{¶ 12} Appellee argues that his ex-wife, not his son, was the victim of appellee's conviction for attempted interference with custody. Therefore, appellee contends that R.C.
{¶ 13} Appellant also argues that because the underlying offense involved the use of a firearm, appellee committed an offense of violence and would have been subject to a mandatory prison sentence if convicted. Therefore, appellant contends that appellee's conviction also is ineligible for expungement under R.C.
{¶ 14} Appellee contends that appellant cannot challenge appellee's eligibility for expungement on appeal because during the expungement hearing, appellant's counsel represented to the trial court that appellee was eligible. We disagree.
{¶ 15} It is well-established that if an applicant's conviction is not eligible for expungement, the trial court lacks jurisdiction to grant the requested relief. White, supra, at ¶ 5 (if applicant is not eligible because applicant is not a first-time offender, the trial court lacks jurisdiction to grant the expungement); In the Matter of Barnes, Franklin App. No. 05AP-355,
{¶ 16} Therefore, the state's affirmative representation to the trial court that appellee was eligible for expungement is immaterial as the court's lack of jurisdiction renders its order void.
{¶ 17} Accordingly, for the foregoing reasons, we sustain the state's sole assignment of error, reverse the judgment of the Franklin County Court of Common Pleas, and remand this cause to that court with instructions to deny appellee's application for expungement.
Judgment reversed and cause remanded with instructions.
Petree and Brown, JJ., concur.