[Cite as State v. B.K., 2020-Ohio-4219.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109067 

 v. : 

 

B.K., : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: August 27, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-12-569003-B 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Gregory Ochocki, Assistant Prosecuting 

Attorney, for appellee. 

Friedman & Gilbert L.L.C., and Mary Catherine Corrigan, 

for appellant. 

MARY EILEEN KILBANE, J.: 

B.K. appeals the denial of his motion to seal his multiple felony 

convictions. For the reasons that follow, we affirm. 
I. FACTUAL AND PROCEDURAL BACKGROUND 

In 2012, B.K. was a 24-year-old college student at Baldwin Wallace 

University (“BW”) studying piano performance. He and three fellow university 

students, who later became codefendants, hatched a cockamamie scheme to 

manufacture and distribute the drug Methylenedioxy-methamphetamine, 

commonly known as Ecstasy. We will refer to the drug by its common abbreviation, 

MDMA. 

On May 18, 2012, B.K. and a codefendant broke into the chemistry 

department at BW to obtain some of the supplies and ingredients they would need 

to manufacture MDMA. Over the next few months, B.K. and the codefendants 

obtained additional ingredients and attempted to make MDMA at various locations 

on different days. They never succeeded in making the drug. 

On June 20-21, 2012, text messages between B.K. and his 

codefendants revealed that first they attempted — but failed — to manufacture 

MDMA in a BW dorm room then moved their effort to another location. On October 

19, 2012, law enforcement executing a search warrant at an off-campus house seized 

equipment and ingredients necessary to make MDMA. B.K. and the other 

codefendants were arrested that night. 

In November 2012, B.K. was indicted in a 27-count indictment along 

with three other students. On January 15, 2014, B.K. pled guilty to several amended 

counts in a package plea deal with one of the other codefendants. The plea included 

the agreement to serve mandatory prison time. 
B.K. was convicted of the following: burglary in violation of R.C. 

2911.12(B), a fourth-degree felony, for an offense dated May 18, 2012; assembly or 

possession of chemicals used to manufacture a controlled substance in violation of 

R.C. 2925.041(A), a third-degree felony, for an offense dated June 20-21, 2012; 

attempted illegal manufacturing or cultivation of drugs in violation of R.C. 

2925.04(A) and 2923.02(A), a third-degree felony, for an offense dated October 19, 

2012; and possessing criminal tools in violation of R.C. 2923.24(A), a fifth-degree 

felony, for offenses dated October 19, 2012. 

On February 13, 2014, B.K. was sentenced to a minimum term of 

incarceration of nine months. He was also ordered to pay a $5,000 fine and his 

driver’s license was suspended for nine months. He completed the sentence and 

moved to seal his convictions on April 1, 2019. After a hearing, the trial court denied 

B.K.’s motion to seal, finding that he was not an eligible offender because his 

offenses were not sufficiently connected to be considered the same act under R.C. 

2953.31(A)(1)(b). As a result, B.K. was found to have too many convictions to be 

eligible for sealing. 

This appeal follows. B.K. asserts the following assignment of error: 

Assignment of Error No. 1 

The trial court erred in finding that the Appellant was not an eligible 

offender for expungement under R.C. 2953.31(A)(2)(b). 

II. LAW AND ANALYSIS 

R.C. 2953.31 governs the sealing of convictions. When considering a 

sealing application, the court must first determine whether the applicant is an 
eligible offender, as defined in R.C. 2953.31. State v. C.N., 8th Dist. Cuyahoga Nos. 

108004 and 108007, 2019-Ohio-4673, ¶ 7. ‘“To be ‘eligible’ for sealing, an offender 

must qualify under either subsection (a) or (b) of R.C. 2953.31(A)(1).”’ State v. 

D.D.G., 2019-Ohio-4982, 136 N.E.3d 1271, ¶ 14 (8th Dist.). “The determination of 

whether an applicant is an eligible offender is reviewed de novo.” State v. J.C., 8th 

Dist. Cuyahoga No. 108730, 2020-Ohio-1617, ¶ 7, citing State v. M.E., 8th Dist. 

Cuyahoga No. 106298, 2018-Ohio-4715, ¶ 6, citing State v. M.R., 8th Dist. Cuyahoga 

No. 94591, 2010-Ohio-6025, ¶ 15. 

R.C. 2953.31(A)(1)(a) defines an eligible offender as “[a]nyone who 

has been convicted of one or more offenses, but not more than five felonies, * * * if 

all of the offenses in this state are felonies of the fourth or fifth degree * * *.” B.K. 

concedes that he is not an eligible offender under R.C. 2953.31(A)(1)(a) because he 

has been convicted of two third-degree felonies, in addition to his fourth- and fifthdegree felony convictions. 

Instead, B.K. argues that he is an eligible offender under one of the 

two merger provisions set forth in R.C. 2953.31(A)(1)(b). The second merger 

provision requires the crimes to have occurred within a three-month period, which 

is not the case here. B.K. only argues that the first merger provision applies to him. 

The first merger provision states: 

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. 
B.K. contends that his convictions are sufficiently connected to be 

counted as one because they resulted from offenses committed over a period of five 

months as part of a single, unsuccessful scheme to manufacture and distribute 

MDMA. We find that the trial court did not err in rejecting B.K.’s argument and 

concluding that B.K.’s convictions do not satisfy the “same act” requirement of R.C. 

2953.31(A)(1)(b). In so holding, the trial court relied on State v. Krantz, 8th Dist. 

Cuyahoga No. 82439, 2003-Ohio-4568. In Krantz, we explained: 

Offenses that are linked together logically or coherently are considered 

“connected” for purposes of determining whether a defendant is a first 

offender. State v. McGinnis [90 Ohio App.3d 479, 482, 629 N.E.2d 

1084 (4th Dist.1993)]. However, when different acts resulting in 

separate convictions are committed at different times, a defendant is 

not considered a first offender. Krantz at ¶ 15, citing McGinnis at 482, 

citing State v. Cresie, 93 Ohio App.3d 67, 68, 637 N.E.2d 935 [(1st 

Dist.1993)]. Further, the fact that the charges against the defendant 

are disposed of in a single proceeding does not automatically lead to 

the conclusion that those charges merge into a single offense. Id., citing 

State v. Saltzer [20 Ohio App.3d 277, 278, 485 N.E.2d 831 (8th 

Dist.1985)]. 

Krantz at ¶ 14. 

Krantz pled guilty to three counts of forgery and one count of theft in 

state court. He also pled guilty to four counts of making, uttering, and possessing 

counterfeit bank checks in federal court. The court rejected Krantz’s argument that 

his convictions could be merged because “they were part of a single enterprise to 

illegally obtain and sell pagers and cellular telephones.” Krantz at ¶ 8. The court 

instead found that Krantz was not eligible for sealing “because he was convicted of 

separate and unrelated offenses which occurred over a nine month period and 

involved numerous victims.” Krantz at ¶ 15. 
B.K. contends that Krantz is not controlling here because the case 

involved financial crimes with multiple victims that took place over nine months. 

He claims that his convictions, in contrast, can be merged and counted as one 

because they were all the result of a failed scheme to manufacture and sell MDMA. 

His argument is not well taken. As in Krantz, B.K.’s crimes did not all arise from the 

same act or conduct, did not involve the same victims, and occurred on different 

dates over the course of several months at different locations. We find that the trial 

court did not err in relying on Krantz. 

B.K. also urges us to reverse on the basis of State v. C.N., 8th Dist. 

Cuyahoga Nos. 108004 and 108007, 2019-Ohio-4673, but his reliance on C.N. is 

misplaced. The trial court in C.N. determined that the defendant’s six felony 

convictions in two separate Cuyahoga County cases were the result of “one course of 

conduct” and could be counted as one conviction under R.C. 2953.31(A)(1)(a). C.N.

at ¶ 3. On appeal, we rejected the state’s contention that each felony count in each 

case must be counted as separate felony convictions. Id. at ¶ 9. However, because 

C.N. also had a third-degree felony conviction in Lorain County, we found that he 

was not an eligible offender under either R.C. 2953.31(A)(1)(a) or (b). Id. at ¶ 12. 

We did not determine whether C.N.’s six Cuyahoga County convictions should have 

been considered as one felony conviction for the purpose of sealing and there are 

insufficient facts available for us to make any meaningful comparison between 

C.N.’s convictions and B.K.’s. 
B.K.’s four convictions were based upon different acts on three 

different dates over the span of five months at several different locations. 

Accordingly, the trial court did not err in finding that B.K. was not an eligible 

offender under R.C. 2953.31(A)(1)(b). 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

____________________________________ 

MARY EILEEN KILBANE, JUDGE 

ANITA LASTER MAYS, P.J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR