[Cite as State v. M.D., 196 Ohio App.3d 174, 2011-Ohio-1804.] 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95383

THE STATE OF OHIO,

APPELLEE,

v. 

M.D.,

APPELLANT.

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-360551 

BEFORE: E. Gallagher, J., Kilbane, A.J., and Stewart, J. 

RELEASED AND JOURNALIZED: April 14, 2011 
2

ATTORNEYS: 

William D. Mason, Cuyahoga County Prosecuting Attorney, and 

Diane Smilanick, Assistant Prosecuting Attorney, 

for appellee. 

Zukerman, Daiker & Lear Co., L.P.A., 

Larry W. Zukerman, and S. Michael Lear, 

for appellant. 
3

EILEEN A. GALLAGHER, Judge. 

{¶ 1} Appellant, M.D.,1 appeals the trial court’s June 9, 2010 order denying his 

application to seal all official records of his four 1998 convictions. Appellant’s sole of 

assignment of error complains that the trial court erred in holding that he was not a “first 

offender” for purposes of expungement under R.C. 2953.31. For the following reasons, 

we reverse and remand. 

{¶ 2} On March 3, 1998, M.D. was charged in a six-count indictment with two 

counts of receiving stolen property, as well as forgery, uttering, obstructing justice, and 

tampering with evidence. At trial, the jury found M.D. not guilty of the first count of 

receiving stolen property and guilty of the remaining charges. The 

tampering-with-evidence conviction was subsequently vacated on appeal in 2004. M.D. 

completed his sentences on the remaining convictions for Count 2, receiving stolen 

property; Count 3, forgery; Count 4, uttering; and Count 5, obstructing justice. 

{¶ 3} On July 2, 2008, appellant filed an application to seal all official records. 

The trial court held a hearing on the matter and denied the application without opinion on 

November 12, 2008. M.D. appealed the trial court’s decision and, in State v. M.D., 8th 

Dist. No. 92534, 2009-Ohio-5694, this court reversed and remanded the matter with 

instructions to the trial court to issue findings in accordance with R.C. 2953.32. On June 

 1

The anonymity of the defendant is preserved in accordance with this court’s Guidelines for sealing records on criminal 
4

9, 2010, the trial court issued a journal entry finding that appellant did not qualify as a 

“first offender” under R.C. 2953.31 and again denied M.D.’s application to seal all 

official records. It is from this order that appellant presently appeals. 

{¶ 4} A trial court shall grant expungement only to an applicant who meets all the 

requirements presented in R.C. 2953.32. State v. Simon (2000), 87 Ohio St.3d 531, 533, 

721 N.E.2d 1041. Pursuant to R.C. 2953.32(C), before ruling on a motion to seal a record 

of conviction, the court must determine whether the applicant is a first offender, whether 

criminal proceedings are pending against him or her, and whether the applicant has been 

rehabilitated to the court’s satisfaction. Additionally, the court must consider any 

objections of the prosecutor and weigh the interests of the applicant in having the records 

pertaining to his or her conviction sealed against the legitimate needs, if any, of the 

government to maintain those records. R.C. 2953.32(C). If the applicant fails to meet 

one of the requirements in R.C. 2953.32(C), the trial court must deny the motion for 

expungement. State v. Krantz, Cuyahoga App. No. 82439, 2003-Ohio-4568, ¶ 23. 

{¶ 5} The sole issue before us is whether appellant qualifies as a first offender for 

the purpose of expunging his criminal convictions. Appellant initially argues that his 

status as a first offender has already been established because, at oral hearing in the prior 

appeal, the state conceded that appellant was a first offender. Appellant incorrectly 

treats the “first offender” status as a fact that can be stipulated to by the state. “First 

 

appeals.
5

offender” status is a legal question that R.C. 2953.32(C)(1)(a) obligates the trial court to 

determine. Further, whether an applicant is a first offender is a question of law to be 

reviewed de novo by an appellate court without deference to the trial court’s 

determination. State v. McGinnis (1993), 90 Ohio App.3d 479, 481, 629 N.E.2d 1084. 

{¶ 6} R.C. 2953.31(A) defines “first offender” as the following: 

{¶ 7} “(A) ‘First offender’ means 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. 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 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.” 

{¶ 8} The trial court, based upon a review of the indictment, the defendant’s prior 

appeal from the trial verdicts, the court’s expungement investigation report, and 

reasonable inferences from the known information, set forth the relevant facts as follows. 
6

 Appellant’s receiving-stolen-property conviction (Count 2) stemmed from his receipt of 

a laptop computer stolen from the Cleveland Clinic. The indictment states the date of this 

offense as July 1, 1996, to June 2, 1997. Then, on August 29, 1997, appellant forged a 

pawn ticket and/or a sales slip for the computer and uttered it to the state in an effort to 

deflect or minimize his criminal responsibility. 

{¶ 9} Pursuant to the “first offender” definition in R.C. 2953.31, we must 

determine whether appellant’s convictions can be considered a single conviction for the 

purposes of expungement under R.C. 2953.32. In the present instance, the trial court 

properly found that appellant’s convictions for forgery, uttering, and obstructing justice 

must be counted as one conviction as they resulted from offenses committed at the same 

time. 

{¶ 10} However, the trial court erred in applying the exception in R.C. 2953.31 for 

“two or three convictions [resulting] from the same indictment,” because it incorrectly 

stated the time frame from the first count of receiving stolen property with which 

appellant was charged, i.e., February 26, 1996, to June 30, 1996. Based on these dates, 

the trial court concluded that 14 months separated appellant’s first 

receiving-stolen-property conviction and appellant’s August 29, 1997 merged offenses. 

Appellant, however, was not convicted of the first count of receiving stolen property. 

He was convicted of the second count of receiving stolen property that had a time frame 

of July 1, 1996, to June 2, 1997. Thus, the trial court applied the incorrect time frame in 
7

deciding whether appellant’s convictions were within a three-month period for the 

purposes of merger under this exception. The proper relevant date for appellant’s 

receiving-stolen-property conviction, June 2, 1997, is within three months of appellant’s 

August 29, 1997 merged offenses. As appellant’s receiving-stolen-property conviction 

and the previously merged August 29, 1997 offenses resulted from the same indictment 

and resulted from related criminal acts committed within a three-month period, they must 

be considered one conviction for the purposes of R.C. 2953.32. 

{¶ 11} Appellant’s sole assignment of error is sustained. We find that appellant is 

a first offender pursuant to R.C. 2953.31(A). The trial court’s judgment denying 

appellant’s application is reversed, and the cause is remanded to complete the necessary 

analysis pursuant to R.C. 2953.32. 

Judgment accordingly. 

KILBANE, A.J., and STEWART, J., concur.