State v. Cresie

Per Curiam. This cause came on to be heard upon the appeal, the record filed herein, the briefs, and arguments. We have sua sponte removed this case from this court’s accelerated calendar. In 1985, defendant-appellee Edward Cresie, Sr., was convicted in the common pleas court of attempted theft and attempted forgery. In January 1993, the trial court granted defendant’s application for expungement of these convictions. On appeal, appellant contends, in a single assignment of error, that the trial court erred in granting defendant’s application for an expungement of his convictions for attempted theft and attempted forgery. We agree. Under R.C. 2953.32, a “first offender” may apply to the sentencing court for the sealing of the record of his conviction after the expiration of certain time limits. The phrase “first offender” is defined as follows: “ * * * 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. 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.” R.C. 2953.31. This court has consistently held that where two or more offenses were committed at different times and resulted in two convictions, they cannot be counted as one conviction under R.C. 2953.31. See State v. Freie (Apr. 3, 1991), Hamilton App. No. C-900267, unreported (two convictions cannot be counted as one when the incidents leading to the separate charges occurred approximately one month apart); State v. Stoller (Mar. 9, 1988), Hamilton App. No. C-870235, *69 unreported (incidents leading to. separate charges occurred two days apart, and two convictions, therefore, not counted as one); State v. Davis (Apr. 11, 1984), Hamilton App. No. C-830591, unreported (two convictions resulted from different acts committed at different times, and, therefore, defendant not a first offender); State v. Wheat (Sept. 26, 1984), Hamilton App. No. C-840005, unreported (no first-offender status when three forgery offenses committed at separate locations during a twenty-four-hour period). The record in this case indicates that the attempted-theft offense occurred on October 26, 1984, and that the attempted-forgery offense occurred on October 27, 1984. Following this court’s long line of cases, we hold that the two convictions resulting from these two offenses which occurred at separate times cannot be counted as one conviction under R.C. 2953.31. Defendant, therefore, was not a “first offender” as defined in R.C. 2953.31. Accordingly, he was not entitled to have his record expunged pursuant to R.C. 2953.32. We, therefore, sustain appellant’s assignment of error. The judgment of the trial court is reversed, and this cause is remanded with instructions to vacate the order of expungement of defendant’s convictions. And the court, being of the opinion that there were reasonable grounds for this appeal, allows no penalty. It is further ordered that costs be taxed in compliance with App.R. 24, that a copy of this Memorandum Decision and Judgment Entry shall constitute the mandate, and that said mandate shall be sent to the trial court for execution pursuant to App.R. 27. Exceptions noted. Judgment reversed. Klusmeier, P.J., and Doan, J., concur. M.B. Bettman, J., dissents.