State v. Porter , 2012 Ohio 5541 ( 2012 )

[Cite as State v. Porter, 2012-Ohio-5541.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 4
v. : T.C. NO. 01CR92
SHIRLEY PORTER : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 30th day of November , 2012.
..........
NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, Courthouse, 200 N.
Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
SHIRLEY PORTER, 2365 W. First Street, Lot 40, Springfield, Ohio 45504
Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Shirley Porter, pro se, appeals from a judgment of the Champaign
County Court of Common Pleas, which denied her application to seal the record of her
2
forgery convictions. For the following reasons, the trial court’s judgment will be affirmed.
{¶ 2} In May 2001, Porter was indicted on one count of theft and five counts of
forgery, all fifth degree felonies. The charges arose from Porter’s stealing the purse of a
woman and writing checks from that woman’s account to pay for purchases at several stores
in Urbana, Springfield, and Bellfontaine, Ohio. Porter subsequently pled guilty to five
counts of forgery; as part of her plea, the theft charge was dismissed.
{¶ 3} In October 2001, after a presentence investigation, the trial court orally
sentenced Porter to three years of community control, which included an order that she pay
restitution of $1,075.93. The court also imposed a $100 fine and ordered her to pay court
costs. The trial court’s sentence was formalized in a Journal Entry of Judgment, Conviction
and Sentence filed on January 14, 2002.1 Porter successfully completed her community
control in October 2004.
{¶ 4} In September 2011, Porter filed an Application for Sealing Record of
Conviction, seeking to seal the record of her forgery convictions. A hearing on the
application was held on December 12, 2011. At the hearing, the State raised questions
about Porter’s eligibility for sealing the record of her convictions. The prosecutor noted
that Porter had a prior domestic violence conviction from 1982 and that she was convicted of
five counts of forgery, which the State argued should not be counted as one conviction under
R.C. 2953.31(A). Porter responded that she had not had any legal trouble since the forgery
convictions and that she needed the convictions sealed so that she could “seek employment,
1
The trial court subsequently issued two orders, which aimed to correct the names of the restitution payees and the total
amount of restitution owed.
3
go to school, do something productive with my life.” When asked about her prior
conviction, Porter agreed that she had previously been convicted of domestic violence. She
stated that she was told that she could have been sentenced to six months in prison and a
$1,000 fine, but she was only required to pay a small fine.
{¶ 5} In January 2012, the trial court denied Porter’s application.
{¶ 6} Porter appeals from the denial of her application to seal the record of her
forgery convictions. She does not state a specific assignment of error, but she argues that
the trial court should have granted her application.
{¶ 7} The sealing of a record of a criminal conviction “is a privilege, not a right.”
State v. Stephens, 195 Ohio App.3d 724, 2011-Ohio-5562, 961 N.E.2d 734, ¶ 8 (2d Dist.),
citing State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000). Therefore, an
application to seal the record of a conviction should be granted only when all of the statutory
requirements for eligibility are met. Id.{¶ 8} Generally, we review the trial court’s decision on an application to seal the
record of conviction for an abuse of discretion. When the decision is based on an
interpretation of the sealing of records statute, we review the court’s interpretation without
any deference to the trial court. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918
N.E.2d 497, ¶ 6.
{¶ 9} When Porter filed her application, R.C. 2953.32 provided that a “first
offender” could apply to the trial court for the sealing of the offender’s conviction.2 Where
the offender committed a felony, the application could be filed no sooner than three years
2
The sealing of records statute was amended, effective September 28, 2012, in S.B. 337.
4
after the offender’s final discharge. R.C. 2953.32(A)(1).
{¶ 10} In addressing the application, the trial court was required to (1) determine
whether the applicant was a first offender within the meaning of R.C. 2953.31, (2) determine
whether criminal proceedings were pending against the applicant, (3) if the offender were a
first offender, determine whether the offender had been rehabilitated, (4) if the prosecutor
objected to the application, consider any reasons against granting the application, and (5)
weigh the interests of the applicant against the legitimate needs of the government to
maintain the record of the conviction. R.C. 2953.32(C)(1).
{¶ 11} Former R.C. 2953.31(A) defined a “first offender” as someone “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.”3 The statute further discussed when multiple convictions were to be
counted as a single conviction. It stated:
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. When two or three convictions result from the same
indictment, information, or complaint, from the same plea of guilty, or from
the same official proceeding, and result from related criminal acts that were
3
Under the current version of the statute, the trial court must determine whether the applicant is an “eligible offender,”
which is defined as “anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than
one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more
than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.” R.C. 2953.31(A).
Whether Porter meets this revised definition is not before us.
5
committed within a three-month period but do not result from the same act or
from offenses committed at the same time, they shall be counted as one
conviction, provided that a court may decide as provided in division (C)(1)(a)
of section 2953.32 of the Revised Code that it is not in the public interest for
the two or three convictions to be counted as one conviction.
R.C. 2953.31(A).
{¶ 12} In its ruling, the court found that (1) the proper time period had passed
since Porter’s conviction and final discharge, (2) no criminal proceedings were pending
against Porter, (3) the prosecutor objected to the granting of the petition, (4) Porter’s
convictions for forgery resulted from the same indictment and plea of guilty and resulted
from related criminal acts that were committed within a three-month period, but did not
result from the same act or from offenses committed at the same time, (5) it was not in the
public interest for the forgery convictions to be counted as one conviction, (6) Porter had a
1982 domestic violence conviction in Champaign County Municipal Court, and (7) Porter
was not a first-time offender.
{¶ 13} Porter did not qualify as a “first offender” under R.C. 2953.31(A), because
she was convicted of misdemeanor domestic violence in 1982, as she acknowledged at the
hearing on her application. Although it was a misdemeanor offense for which she received
only a fine as punishment, that conviction rendered her statutorily ineligible to seal her 2001
convictions for forgery. The trial court correctly denied Porter’s application because she
was not a first offender.
{¶ 14} Given that Porter was not a first offender and thus not eligible to have the
6
record of her forgery convictions sealed under the former version of the statute, we need not
address the trial court’s other findings.
{¶ 15} Porter’s assignment of error is overruled.
{¶ 16} The trial court’s judgment will be affirmed.
..........
FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Nick A. Selvaggio
Shirley Porter
Hon. Roger B. Wilson