STATE OF OHIO v. CLIFFORD F. ORAVEC
No. 96654
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 10, 2011
2011-Ohio-5831
BEFORE: Cooney, J., Blackmon, P.J., and Stewart, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-522295
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
James J. McDonnell
75 Public Square
Suite 700
Cleveland, Ohio 44113-2001
COLLEEN CONWAY COONEY, J.:
{¶ 1} Plaintiff-aрpellant, the state of Ohio (“State“), appeals the trial court‘s sealing the record of defendant-appellee, Clifford Oravec (“Oravec“). Finding merit to the appeal, we reverse.
{¶ 2} In March 2009, Oravec was charged with felonious assault. He pled guilty to a lesser charge of assault, a misdemeanor, and was sentenced to 15 days in jail. In October
{¶ 3} The State now appeals, arguing in its sole assignment of error that the trial court еrred in granting Oravec‘s request to seal his record.
{¶ 4} Expungement is an act of grace created by the state. State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 665 N.E.2d 669. The expungement provisions are remedial in nature and must be liberally construed to promote their purposes. State ex rel. Gains v. Rossi (1999), 86 Ohio St.3d 620, 622, 716 N.E.2d 204. However, expungement should be granted only whеn all requirements for eligibility are met. State v. Simon, 87 Ohio St.3d 531, 533, 2000-Ohio-474, 721 N.E.2d 1041, citing State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 665 N.E.2d 669. The procedures for sealing a record of conviction are set forth in specific statutory provisions,
{¶ 5}
{¶ 6}
“If the court determines * * * that the applicant is a first offender * * *, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant‘s conviction * * * sealed are nоt outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation оf an applicant who is a first offender * * * has been attained to the satisfaction of the court, the сourt * * *, shall order all official records pertaining to the case sealed * * *.”
{¶ 7} An applicant is not a “first offender” when he applies for expungement after multiple convictions, even if he seeks exрungement of the first conviction. In Re Overmyer (Sept. 1, 1983), Cuyahoga App. Nos. 46383, 46384, 46385, citing State v. Mottl (Sept. 28, 1978), Cuyahoga App. No. 37649. Thus, a defendant with a prior conviction, whether expunged or not, is not a first оffender and may not have subsequent convictions expunged.
{¶ 8} In the instant case, the State argues that Oravеc was not eligible for expungement of this conviction due to a prior expungement for a 2002 conviсtion for disorderly conduct. The State argues that since the 2002 conviction was expunged in 2005, he cannot have his most recent conviction expunged as well. Oravec concedes in his brief that he was conviсted
“For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters is not a previous or subsequent conviction.”
Oraveс argues that this statute declares all minor misdemeanors do not constitute previous or subsequent conviсtions.1 This argument ignores the fact that, having already received an expungement, Oravec is, thereforе, not a first offender.
{¶ 9} Oravec admitted he received a prior expungement for a prior conviсtion. He maintains that since the record of the prior conviction has been sealed, the court was unable to determine the degree of the offense. However, having had the conviction expunged in 2005 does not alter the fact that Oravec has a “prior conviction.” Thus, Oravec is not a first offender. In turn, the trial court lacked jurisdiction to grant his motion to expunge because the requirements for eligibility were not met.
{¶ 11} Accordingly, we sustain the State‘s sole assignment of error.
{¶ 12} Judgment reversed and сase remanded to vacate the sealing of the record.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandаte pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY