STATE OF OHIO, Plаintiff-Appellee, vs. TIMOTHY M. TAYLOR, Defendant-Appellant.
APPEAL NO. C-110282
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 30, 2012
2012-Ohio-1365
SYLVIA SIEVE HENDON, Judge.
TRIAL NO. 00CRB-1968. Criminal Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Affirmed. Please notе: This case has been removed from the accelerated calendar.
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
O P I N I O N.
{¶1} Defendant-appellant Timothy M. Taylor appeals from the judgment of the Hamilton County Municipal Court denying his application for expungement of a criminal conviction.
The Background
{¶2} In January 2000, Taylor was convicted of possession of illegal drug paraphernalia, in violation of
{¶3} In January 2011, Taylor applied to the muniсipal court for the expungement of his criminal record, pursuant to
{¶4} Taylor filed a memorandum in support of his expungement application, along with copies of the probation report and the court‘s 1983 record of the conviction of “Timothy M. Taylor.” He argued that the court‘s records from the 1983 case were insufficient to conclusively determine that he was the same “Timothy M. Taylor” that had been convicted of the 1983 offense. As an alternative, Taylor argued that even if he had been convicted in 1983, that plea was invalid because it had likely been made without the assistance of counsel.
{¶5} At a hearing on the expungement application, the court asked Taylor‘s counsel, “So you‘re saying it‘s not your client [that had been convicted in 1983]?” And counsel responded, “Thеre‘s no way to prove it positively.” Then the court asked, “He [Taylor] says it‘s not him?” And counsel responded: “I don‘t think the state can meet the
The Appeal
{¶6} In a single assignment оf error, Taylor argues that the trial court erred by denying his application for expungement. He contends that the trial court should have considered him eligible for expungement because the court‘s records did not establish that he had had a prior conviction.
{¶7} Only a first offendеr may apply to a sentencing court to seal the record of his conviction.
{¶8} A first offender is defined as “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.”
{¶9} Upon the filing of an expungement application, the sentencing court must “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.”
Was Taylor a First Offender?
{¶10} Whether an applicant is a first offender is generally a question of law to be determined de novo by a reviewing court. State v. Patterson, 128 Ohio App.3d 174, 714 N.E.2d 409 (1st Dist.1998). However, the issue of whether the applicant is a “first offender” is often a question of fact. Id.
{¶11} In this case, Taylor did not dispute that a conviction for leaving the scene of an accident in violation of
{¶12} Accordingly, the court had to resolve the factual question of whether Taylor had a prior conviction for a violation of
{¶13} The purpose of an expungement hearing is to provide the court “with all relevant information beаring on an applicant‘s eligibility for expungement. Advocacy is subordinated to information gathering.” Hamilton, 75 Ohio St.3d at 640, 665 N.E.2d 669. In determining whether to grant an applicаtion for expungement, the court reviews matters
{¶14} In this case, the court‘s investigation through its probation department revealеd that Taylor had had a prior conviction for leaving the scene of an accident. At the hearing on his application, Taylor had had an opportunity to present testimony or other evidence to dispute that he was the person convicted in 1983. The court attеmpted to gather more information to aid in its determination of whether Taylor was a first offender, but Taylor and his counsel declined to give direct responses to the court‘s questions.
{¶15} The court‘s conclusion that Taylor had had a prior conviction for leaving the scene оf an accident in violation of
{¶16} Taylor also argues that even if the trial court believed that he had sustained the 1983 conviction, that conviction was void because it had been uncounseled. But because this contention is not supported by the record, we find no merit in the argument.
{¶17} Accordingly, we overrule the assignment of error and affirm the trial court‘s judgment.
Judgment affirmed.
HILDEBRANDT, P.J., and FISCHER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.