[Cite as State v. Wilson, 2014-Ohio-1807.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant, : Nos. 13AP-684 

 (C.P.C. No. 13EP-98)

v. : and 

 No. 13AP-685 

Patrick Wilson, : (C.P.C. No. 13EP-99)

 

 Defendant-Appellee. : (REGULAR CALENDAR) 

 

 

D E C I S I O N 

Rendered on April 29, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, 

for appellant. 

Patrick Wilson, pro se. 

 

APPEALS from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Plaintiff-appellant, the State of Ohio ("state"), appeals from the judgments 

of the Franklin County Court of Common Pleas sealing the record of a felony conviction 

and the record of a no bill entered against defendant-appellee, Patrick Wilson. Because (1) 

defendant is not an eligible offender under R.C. 2953.31(A), and (2) defendant failed to 

present evidence to establish his interest in having the record of the no bill sealed, we 

reverse the judgment and remand the case to the trial court. 

I. FACTS & PROCEDURAL HISTORY 

{¶ 2} On January 29, 2013, defendant filed two applications to seal the record. 

Under case No. 13EP-98, defendant filed an application pursuant to R.C. 2953.32, asking 

that the court seal the record of his conviction for aggravated trafficking in drugs, a felony 

of the third degree, in case No. 83CR-60B. The memorandum in support of the 
Nos. 13AP-684 and 13AP-685 2 

application noted simply that defendant was an eligible offender under R.C. 2953.31, that 

more than three years had lapsed since his conviction, and that defendant otherwise 

satisfied the requirements of R.C. 2953.32 for granting the application. Defendant was 

convicted of the aggravated trafficking offense on May 26, 1983. 

{¶ 3} Under case No. 13EP-99, defendant filed an application pursuant to R.C. 

2953.52, asking that the court seal the record of the no bill, which was returned by the 

grand jury in case No. 83CR-61. The memorandum in support of the application noted 

that no criminal proceedings were pending against defendant, that more than two years 

had passed since the foreman of the grand jury reported the no bill to the court, and that 

all other R.C. 2953.52(B)(2) factors supported granting the application. The record 

demonstrated that the grand jury returned the no bill in case No. 83CR-61 on 

February 10, 1983. The entry of no bill states that case No. 83CR-61 was re-indicted under 

case No. 83CR-60B. 

{¶ 4} The state filed objections to both applications on May 22, 2013. Regarding 

the application to seal the record of his conviction, the state asserted that defendant was 

not an "eligible offender," since his criminal history report showed that, in addition to the 

felony conviction at issue, defendant also had multiple convictions for operating a vehicle 

while under the influence of alcohol and/or drugs ("OVI"), and a conviction for petit 

theft. Regarding the application to seal the record of the no bill, the state asserted that it 

had a significant interest in maintaining the record of the no bill, as the records from case 

No. 83CR-61 supported the conviction in case No. 83CR-60B. 

{¶ 5} The trial court held a hearing on both applications on July 31, 2013. 

Defendant did not appear for the hearing and, accordingly, did not present any evidence 

to support his interests in having the records sealed. Regarding the no bill, the court noted 

that the state had filed its objection "based on the state having significant interest in 

maintaining access to the records in this case." (Tr. 2.) The court, however, held that there 

was "nothing in the state's objection indicating [defendant] does not otherwise qualify for 

expungement." (Tr. 2.) The state noted that it was additionally objecting to the sealing of 

the record "based on Mr. Wilson's failure to appear and put forth a particularized need for 

that expungement." (Tr. 3.) Regarding the felony conviction, the court noted that there 

was "no indication that the defendant has done anything since 1983." (Tr. 3.) The court 
Nos. 13AP-684 and 13AP-685 3 

orally granted both applications at the hearing and issued judgment entries sealing the 

records in both cases on August 5, 2013. 

II. ASSIGNMENTS OF ERROR 

{¶ 6} The state appeals, assigning the following errors: 

FIRST ASSIGNMENT OF ERROR: 

THE TRIAL COURT ERRED IN GRANTING THE 

APPLICATION TO SEAL THE RECORD OF A CONVICTION 

WHERE THE APPLICANT WAS NOT AN ELIGIBLE 

OFFENDER. 

SECOND ASSIGNMENT OF ERROR: 

THE TRIAL COURT ABUSED ITS DISCRETION IN 

GRANTING THE APPLICATIONS IN 13EP-98 AND 13EP-99, 

WHERE THE APPLICANT FAILED TO ESTABLISH ANY 

PARTICULAR NEED. 

IV. FIRST ASSIGNMENT OF ERROR – R.C. 2953.32 

{¶ 7} The state's first assignment of error asserts the trial court erred in granting 

defendant's application to seal the record of his conviction in case. No. 83CR-60B as 

defendant is not an "eligible offender," and accordingly is not entitled to have the record 

of his conviction sealed. We agree. 

{¶ 8} " 'Expungement is a post-conviction relief proceeding which grants a 

limited number of convicted persons the privilege of having record of their * * * 

conviction sealed.' " Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12, 

quoting State v. Smith, 3d Dist. No. 9-04-05, 2004-Ohio-6668, ¶ 9. Neither the United 

States nor Ohio Constitutions endows one convicted of a crime with a substantive right 

to have the record of a conviction expunged. Koehler at ¶ 14, quoting State v. Gerber,

8th Dist. No. 87351, 2006-Ohio-5328, ¶ 9. "Rather, ' "[e]xpungement is an act of grace 

created by the state" and so is a privilege, not a right.' " Koehler, quoting State v. Simon,

87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639 

(1996). 

{¶ 9} In light of its nature, sealing should be granted only when all requirements 

for eligibility are met. Simon at 533. If an applicant is not an eligible offender, the trial 

court lacks jurisdiction to grant the application. See In re Barnes, 10th Dist. No. 05AP355, 2005-Ohio-6891, ¶ 12. As a result, an order sealing the record of one who is not an 
Nos. 13AP-684 and 13AP-685 4 

eligible offender is void for lack of jurisdiction and may be vacated at any time. Id. at 

¶ 13; State v. McCoy, 10th Dist. No. 04AP-121, 2004-Ohio-6726, ¶ 11. Whether an 

applicant is an eligible offender is an issue of law that we review de novo. State v. 

Hoyles, 10th Dist. No. 08AP-946, 2009-Ohio-4483, ¶ 4. 

{¶ 10} As relevant herein, an "eligible offender" is "anyone who has been 

convicted of an offense in this state or any other jurisdiction and who has * * * not more 

than one felony conviction and one misdemeanor conviction." R.C. 2953.31(A). If an 

applicant is an eligible offender, then a trial court's treatment of an application to seal a 

conviction is reviewed under an abuse-of-discretion standard. State v. Potts, 11th Dist. 

No. 2011-T-0054, 2012-Ohio-741, ¶ 10, citing State v. Shaffer, 11th Dist. No. 2009-

G2929, 2010-Ohio-6565, ¶ 15. 

{¶ 11} The record demonstrates that defendant is not an eligible offender. Along 

with its objection filed in case No. 13EP-98, the state also filed a confidential disclosure 

containing defendant's criminal record. The criminal record report reveals that, in 

addition to his 1983 felony conviction for aggravated trafficking in drugs, defendant has 

an OVI conviction from May 23, 1985, an OVI conviction from January 24, 1985, and an 

OVI conviction from August 24, 1982. The report also reveals that defendant has a petit 

theft conviction from October 5, 1982. A conviction under R.C. 4511.19 for OVI shall be 

considered a conviction for purposes of R.C. 2953.31. R.C. 2953.31(A). Typically, an OVI 

conviction is a misdemeanor of the first degree. R.C. 4511.19(G). As defendant has three 

OVI convictions, one petit theft conviction, and a conviction for aggravated trafficking in 

drugs, he has more than one felony conviction and one misdemeanor conviction. 

Accordingly, defendant is not an eligible offender under R.C. 2953.31(A), and the trial 

court did not have jurisdiction to grant defendant's application. 

{¶ 12} Based on the foregoing, we sustain the state's first assignment of error. As 

such, we vacate the judgment of the Franklin County Court of Common Pleas, entered in 

case No. 13EP-98, granting defendant's application to seal the record of his conviction. 

V. SECOND ASSIGNMENT OF ERROR – R.C. 2953.52 

{¶ 13} R.C. 2953.52(A) permits any person who has been found not guilty by a 

jury, who is the defendant named in a dismissed indictment, or against whom the grand 
Nos. 13AP-684 and 13AP-685 5 

jury enters a no bill, to apply to the court for an order sealing the official records of the 

case. R.C. 2953.52(B) provides, in relevant part, as follows: 

(B)(1) Upon the filing of an application pursuant to division 

(A) of this section, the court shall set a date for a hearing and 

shall notify the prosecutor in the case of the hearing on the 

application. The prosecutor may object to the granting of the 

application by filing an objection with the court prior to the 

date set for the hearing. The prosecutor shall specify in the 

objection the reasons the prosecutor believes justify a denial 

of the application. 

(2) The court shall do each of the following, except as 

provided in division (B)(3) of this section: 

(a)(i) Determine whether the person was found not guilty in 

the case, or the complaint, indictment, or information in the 

case was dismissed, or a no bill was returned in the case and a 

period of two years or a longer period as required by section 

2953.61 of the Revised Code has expired from the date of the 

report to the court of that no bill by the foreperson or deputy 

foreperson of the grand jury; 

(ii) If the complaint, indictment, or information in the case 

was dismissed, determine whether it was dismissed with 

prejudice or without prejudice and, if it was dismissed without 

prejudice, determine whether the relevant statute of 

limitations has expired; 

(b) Determine whether criminal proceedings are pending 

against the person; 

(c) If the prosecutor has filed an objection in accordance with 

division (B)(1) of this section, consider the reasons against 

granting the application specified by the prosecutor in the 

objection; 

(d) Weigh the interests of the person in having the official 

records pertaining to the case sealed against the legitimate 

needs, if any, of the government to maintain those records. 

{¶ 14} If a court determines that an applicant satisfies the requirements in 

2953.52(B)(2), "the court shall issue an order directing that all official records pertaining 
Nos. 13AP-684 and 13AP-685 6 

to the case be sealed and that * * * the proceedings in the case be deemed not to have 

occurred." R.C. 2953.52(B)(4). 

{¶ 15} A reviewing court "will not reverse a trial court's decision on an R.C. 

2953.52 application to seal absent an abuse of discretion." In re Dumas, 10th Dist. No. 

06AP-1162, 2007-Ohio-3621, ¶ 7, citing State v. Haney, 70 Ohio App.3d 135, 138 (10th 

Dist.1991). In considering an application under R.C. 2953.52, "the trial court is to 

'[w]eigh the interests of the person in having the official records pertaining to the case 

sealed against the legitimate needs, if any, of the government to maintain [those] 

records.' " In re Dumas at ¶ 8, quoting R.C. 2953.52(B)(2)(d). See also State v. Widder,

146 Ohio App.3d 445, 447 (9th Dist.2001) (noting that,"[i]n denying an application to 

seal records pursuant to R.C. 2953.52, '[a] trial court must make the necessary findings 

as required by R.C. 2953.52(B)(2) and weigh the interests of the parties to the 

expungement' "). Accordingly, "R.C. 2953.52(B)(2)(d) contains a balancing test in which 

the trial court must engage," and a trial court "abuses its discretion in denying" or 

granting "an R.C. 2953.52 application without balancing the requisite factors." In re 

Dumas at ¶ 8. The burden is on the applicant to demonstrate that his interest in having 

the records sealed are equal to or greater than the government's interest in maintaining 

those records. State v. Newton, 10th Dist. No. 01AP-1443, 2002-Ohio-5008, ¶ 9. 

{¶ 16} The trial court's entry sealing the record of the no bill states that the court 

found that the sealing of the record was "consistent with the public interest." (Entry 

Sealing the Record Pursuant to R.C. 2953.52.) This statement would seem to indicate 

that the trial court had balanced defendant's personal interests against the government's 

interest. See State v. C.R., 10th Dist. No. 11AP-411, 2011-Ohio-6567, ¶ 9 (noting that the 

trial court's statement in its judgment entry that " 'the sealing of the record of the 

applicant's finding of not guilty * * * is consistent with the public interest' " indicated 

that the court had "balanced defendant's personal interest against those of the 

government, or public, interest"). 

{¶ 17} Although defendant stated in his application to seal the record of the no 

bill that "[a]ll other factors listed in R.C. 2953.52(B)(2) support granting this 

application," merely reciting the statutory requirements is insufficient to satisfy a 

defendant's burden to establish their interest in having the records of the case sealed. 
Nos. 13AP-684 and 13AP-685 7 

See In re: Application for Sealing of Record of Brown, 10th Dist. No. 07AP-715, 2008-

Ohio-4105, ¶ 13 (finding that the applicant failed to meet her burden to demonstrate 

need for sealing the record under R.C. 2953.52, where her written application merely 

stated that she met all the requirements of R.C. 2953.52). As defendant did not appear 

at the hearing, or otherwise present any evidence to demonstrate his interest in having 

the record of the no bill sealed, there is no evidence in the record to establish 

defendant's interest. Accordingly, defendant failed to meet his burden under R.C. 

2953.52(B)(2)(d). See Newton at ¶ 9 (noting that the appellant failed to meet his burden 

under R.C. 2953.52(B)(2)(d) where his "written request merely state[d] that he [met] all 

the requirements of R.C. 2953.52," and, at the hearing on the application, "counsel for 

appellant did not set forth any particular need or present any evidence supporting 

appellant's interest in sealing the records"); State v. Shaffer, 11th Dist. No. 2009-G2929, 2010-Ohio-6565, ¶ 30. 

{¶ 18} As the trial court was obligated to balance defendant's interest in having 

the record sealed against the government's interest in maintaining those records, and 

defendant did not put forth any evidence to establish his interest, the trial court abused 

its discretion in granting defendant's application to seal the record of the no bill entered 

by the grand jury in case No. 83CR-61. 

{¶ 19} Based on the foregoing, the state's second assignment of error is sustained. 

The judgment of the Franklin County Court of Common Pleas granting defendant's 

application to seal the record of the no bill entered in case No. 83CR-61 is vacated. 

VI. DISPOSITION 

{¶ 20} Having sustained both of the state's assignments of error, we reverse the 

judgments of the Franklin County Court of Common Pleas and remand this cause to that 

court for proceedings in accordance with law and consistent with this decision. 

Judgments reversed; cause remanded. 

TYACK and KLATT, JJ., concur. 

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