STATE OF OHIO v. JESSIE LEE RICKS
C.A. CASE NO. CA 24941
T.C. CASE NO. 1901-CR-29873
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
August 24, 2012
2012-Ohio-3851
(Criminal Appeal from Common Pleas Court)
Attorneys for Plaintiff-Appellee
Daniel J. O’Brien, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow St., Dayton, OH 45402
Attorney for Defendant-Appellant
OPINION
GRADY, P.J.:
{¶ 1} Defendant Jessie Lee Ricks appeals from an order of the trial court entered following our remand in State v. Ricks, 194 Ohio App.3d 511, 2011-Ohio-3866, 957 N.E.2d 62 (2d Dist.), in which the trial court had denied Defendant’s application to seal the record of his 1971 conviction.
{¶ 2} In 1969, Defendant was indicted on a felony charge of shooting another with an intent to kill, in violation of former
{¶ 3} In May 2010, Defendant filed an application to have the record of his 1971 conviction sealed pursuant to
{¶ 4} Defendant appealed. We reversed the trial court’s decision, finding that although a violation of former
{¶ 5} On remand the trial court conducted an evidentiary hearing. Finding that Defendant was statutorily ineligible to seal the record of his 1971 conviction because he was not a “first offender,” the trial court again denied Defendant’s application to seal the record.
{¶ 6} Defendant filed a timely notice of appeal. He raises two assignments of error, which will be addressed together.
{¶ 7} Defendant’s first assignment of error:
“THE DEFENDANT-APPLICANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW IN BEING CONFRONTED AT HIS SECOND EXPUNGEMENT HEARING, WITHOUT FAIR WARNING AND/OR NOTICE AND WITHOUT PRIOR DISCOVERY FROM THE STATE REGARDING HIS ALLEGED
CONVICTIONS, ALL AT LEAST 34-40 YEARS AGO AND THE COURT HAVING MADE A FINDING AT THE FIRST EXPUNGEMENT HEARING (JUNE 30, 2010) THAT THERE WERE NO PRIOR CONVICTIONS.”
{¶ 8} Defendant’s second assignment of error:
“THE COURT PREJUDICIALLY ERRED IN ALLOWING THE STATE TO ADMIT INTO EVIDENCE TOTALLY UNRELIABLE, UNAUTHENTICATED AND/OR HEARSAY ‘DOCUMENTS’ OR ‘RECORDS‘, ALL OVER STRENUOUS AND MULTIPLE OBJECTIONS BY DEFENSE COUNSEL, SAID ‘DOCUMENTS’ OR ‘RECORDS’ PURPORTING TO SHOW PRIOR CONVICTIONS OF THE APPLICANT FOR MINOR OFFENSES, BUT TOTALLY FAILED TO SHOW WHETHER OR NOT THE DEFENDANT WAS REPRESENTED BY COUNSEL AT THE TIME OF THOSE ALLEGED AND PURPORTED CONVICTIONS.”
{¶ 9} The expungement or sealing of a record of a criminal conviction “is an act of grace created by the State, and is a privilege, not a right.” State v. Stephens, 195 Ohio App.3d 724, 2011-Ohio-5562, 961 N.E.2d 734 (2d Dist.), ¶ 8, citing State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000). For that reason, an application to seal the record of a criminal conviction should be granted only when all of the statutory requirements for eligibility are met. Id.
{¶ 10} A Defendant who files an application to seal the record of his criminal conviction pursuant to
{¶ 11} “‘The threshold issue in any proceeding on an application to seal the records of a criminal conviction is whether the applicant is qualified for “first offender” status.‘” Stephens, at ¶ 19, quoting Dayton v. Salmon, 108 Ohio App.3d 671, 674, 671 N.E.2d 599 (2d Dist. 1996). As used in
{¶ 12} At the second hearing on his application, Defendant claimed on direct examination that he had no criminal convictions other than the one in 1971. During cross-examination, however, Defendant admitted that he had also been convicted of driving under the influence in 1969 and 1977 and that he was convicted of domestic violence in 1982. Additionally, the State presented testimony from Lieutenant Stiver regarding those three convictions, as well as a 1974 conviction for disorderly conduct. This information was sufficient to support the trial court’s finding that Defendant was not statutorily eligible to seal his 1971 conviction because he was not a “first offender” as defined by
{¶ 13} Defendant claims that he was denied his right to due process and equal protection because he was not given notice of the State’s intent to offer evidence of his other criminal convictions at the hearing. However, an application to seal a record is not structured on the adversary model, and it is not entitled to the same type of notice that is afforded to one accused of a crime. State v. Hamilton, 75 Ohio St.3d 636, 640, 665 N.E.2d 669 (1996). The
{¶ 14} To the extent that Defendant also claims that he should have been provided with discovery regarding his complete criminal record, we point out that an application to seal records pursuant to
{¶ 15} Finally, Defendant argues that the trial court was precluded from considering evidence of his additional convictions because the court had found in the prior proceeding that he had no prior convictions. It is clear, from both the six-page transcript of the first expungement hearing and from the trial court’s first order denying Defendant’s application, that the only issue the trial court considered was whether the offense was “an offense of violence that is a misdemeanor of the first degree or a felony.” Furthermore, our remand specifically instructed the trial court to consider the merits of Defendant’s motion, which would necessarily include Defendant’s eligibility to have his record sealed. Ricks, at ¶ 22.
{¶ 16} Both of Defendant’s assignments of error are overruled. The judgment of the trial court will be affirmed.
Copies mailed to:
Andrew T. French, Esq.
Daniel J. O’Brien, Esq.
Hon. Mary Katherine Huffman