COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59179 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DONNA L. CONROY : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1991 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court No. CP CR-51472 JUDGMENT: REVERSED AND VACATED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant Justice Center - Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: THOMAS J. WAGNER 1600 Rockefeller Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, C.J.: Appellant State of Ohio appeals from an order of the Cuyahoga County Court of Common Pleas granting appellee's application for expungement of her criminal convictions. The relevant facts follow: Donna Conroy, the appellee herein filed an application for the sealing of the record in the Cuyahoga Court of Common Pleas of her conviction pursuant to R.C. 2953.32(A)./1\ Appellant State of Ohio (hereinafter "the State") filed a brief in opposition to the application, pursuant to R.C. 2953.32(B)./2\ The brief filed by the State alleged that Conroy had been convicted of eight counts of robbery stemming from three separate incidents which occurred over a three-week period. The State, therefore, opposed Conroy's application for expungement, arguing that the crimes for which she had been convicted occurred over too long a /1\ R.C. 2953.32(A) provides the following: A first offender may apply to the sentencing court if convicted in the state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of his conviction at the expiration of one year after his final discharge if convicted of a misdemeanor. /2\ R.C. 2953.32(B) provides in relevant part: Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for 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 he believes justify a denial of the application. - 3 - period of time to qualify as "one act," thus negating her status as a "first offender" under R.C. 2953.32./3\ The trial court granted Conroy's expungement pursuant to R.C. 2953.32(C),/4\ and ordered the record sealed. The State timely appeals, citing one assignment of error. The State's sole assignment of error follows: THE LOWER COURT ERRED IN GRANTING THE DEFENDANT'S MOTION TO EXPUNGE HER FELONY CONVICTION WHERE THE DEFENDANT WAS NOT A FIRST TIME OFFENDER AS DEFINED BY OHIO REVISED CODE 2953.31. This assignment of error has merit. /3\ R.C. 2953.31 provides that, as used in section 2953.32: (A) "First offender" means anyone who has been convicted of an offense in this state or any other jurisdiction, and who has not been previously or subsequently convicted of the same or a different offense in this state or any other jurisdiction... /4\ R.C. 2953.32(C)(2) provides: If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender, that no criminal proceeding is pending against him, that his rehabilitation has been attained to the satisfaction of the court, and that the interests of the applicant in having the records pertaining to his conviction sealed are not outweighed by any legitimate governmental needs to maintain such records, the court shall order all official records pertaining to the case sealed and, except as provided in division (F) of this section, all index references to the case deleted. The proceedings in the case shall be deemed not to have occurred and the conviction of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31 to 2953.33 of the Revised Code. - 4 - The State argues that Conroy was indicted on eight separate counts of aggravated robbery, and that these robbery indictments stemmed from three separate incidents involving three different banks. However, the State has neither provided evidence of defendant's convictions nor a transcript of the hearing held by the trial court. In State v. Macky (Oct. 18, 1990), Cuyahoga App. No. 59244, unreported, this court affirmed an expungement when the State provided no proof of the defendant's conviction and no transcript of the trial court proceedings. In the absence of proof of convictions or a record, this court presumed regularity of the trial court proceedings and affirmed. On appeal, the duty to provide a transcript for appellate review falls upon the appellant. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197; Columbus v. Hodge (1987), 37 Ohio App. 3d 68; Tyrell v. Investment Assoc., Inc. (1984), 16 Ohio App. 3d 47. Appellant bears the burden of showing error by reference to matters in the record. Knapp, supra; see, also, State v. Skaggs (1978), 53 Ohio St. 2d 162; Macky, supra, at 3. However, the State's failure with regard to its burden of proof is not dispositive of this appeal. R.C. 2953.32(C) provides in relevant part as follows: (C)(1) The court shall do each of the following: (a) Determine whether the applicant is a first offender or whether the forfeiture of bail was - 5 - agreed to by the applicant and the prosecutor in the case; (b) Determine whether criminal proceedings are pending against the applicant; (c) If the applicant is a first offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court; (d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection; (e) Weigh the interests of the applicant in having the records pertaining to his conviction sealed against the legitimate needs, if any, of the government to maintain those records. (Emphasis added.) In the case sub judice, there is evidence in the official sealed trial court's record as required by R.C. 2953.32(B) to exemplify defendant's status as a multiple offender and negate defendant's status as a first offender. Therefore, the trial court's order granting defendant's expungement must be reversed for the following two reasons: (1) the trial court lacked jurisdiction because defendant was not a first offender; State v. Thomas (1979), 64 Ohio App. 2d 141; (2) the trial court failed to follow the law since it had evidence before it sealed in the official court record that defendant was not a first offender, State v. Thomas, supra. - 6 - In the case sub judice, an important document exists in the record on appeal. It is contained in the record for the reason that R.C. 2953.32(B), which the trial court was required to follow, provides in relevant part: *** The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant. (Emphasis added.) In its journal entry dated January 23, 1990, "Order to Seal Records," the trial court noted "a report has been received from the Probation Department as to the defendant." (Vol. 909, p. 655). The Probation Department's Expungement Investigation Report is indeed in the trial court's sealed record. In the area marked "Case Data" appears the following: INDICTMENT: 12-6-79 - AGG. ROBBERY (8 CTS) PLEA: 6-23-80 - ROBBERY (8 CTS) REVISED CODE: (PENALTY): 2911.02 (AF - 2) DISPOSITION: 12-6-79 SENTENCED TO OSR FOR WOMEN 4 TO 15 Y 11-19-80 SHOCK Probation granted (2 years) 11-19-82 Probation terminated 8-10-82 Court costs pay in full (271.96) *** CR: 51472: Between October 17, 1979, and November 5, 1979, t defendant, Donna Conroy participated in three (3) aggravat bank robberies by collaborating with co-defendants Willi Berry and Sandra Gedeon. - 7 - Pertinent information regarding these offenses follows: DATE LOCATION October 17, 1979 Banc Ohio $ 3386 Warren Road October 23, 1979 Parkview Savings & Loan $ 11000 Clifton Road November 5, 1979 Central National Bank $ 6300 Brookpark Rd. $ In a written statement given to Police, at the time of h arrest, the defendant admitted her involvement in the insta offenses. According to the defendant, she played a simil role in each of these robberies. Co-defendant Berry and t defendant would both drive their cars. The defendant wou park several blocks away and remain in her car, while c defendants Berry and Gedeon robbed the bank. After t robbery, Berry would abandon his car and the defendant wou drive the trio to a location (usually a motel) where they wou divide the money. According to official records the victims' losses tot $12,499.25. The defendant claims she realized $1550.00 for h efforts. PRIOR RECORD A record check has been made with the Cleveland Poli Sheriff's department, SIU, FBI, and the Bureau of Crimin Identification which reflects one additional arrest record evidence. The applicant was arrested on June 4, 1981 for The in Parma Heights. The applicant indicated to this officer th the case for Theft was dismissed. This officer contacted Par Heights Municipal Court and they indicated that the applica pay Court costs./5\ In the case sub judice, therefore, there is a report compiled by the probation department required by R.C. 2953.32(B) /5\ The fact the defendant "pay Court costs" indicates this case was probably not dismissed as defendant has stated. - 8 - which was made part of the official record on appeal. The trial court had the probation report before it and simply chose to ignore it. This is unlike the situation this court faced in State v. York (October 15, 1987), Cuyahoga App. No. 53806, unreported, in which expungement was granted for lack of such report or any evidence of other offenses contained in the record on appeal. There is evidence in the official record on appeal to support the state's claim that defendant is not a "first offender" within the meaning of R.C. 2953.31. Based upon the probation department report, this court has notice that the trial court lacked jurisdiction to grant the expungement under R.C. 2953.32. In Thomas, supra, on this issue, the court decided two and one-half years after entry of judgment granting expungement, such judgment can be vacated because of a factual error at the time of hearing. *** [P]rior to invoking the jurisdiction of the court under R.C. 2953.32, the applicant must in fact be a "first offender" as defined in R.C. 2953.31. If, at any time subsequent to the granting of the expungement, there is brought to the court's attention evidence demonstrating that appellant's status was not that of a "first offender" at the time of application, then the expungement is void and must be vacated, the court having lacked jurisdiction to grant the expungement in the first place. Inasmuch as the requirement of "first offender" is jurisdictional, the standard for determining whether an expungement should be vacated on appeal or on a motion to vacate is identical. If the applicant was not a first offender at the time of the application for expungement, or if the other - 9 - requirements of R.C. 2953.32(A) were not satis- fied at the time of application, the court lacked jurisdiction to grant the expungement and vacation of the expungement would be in order. (Emphasis added.) Id. The case sub judice is similar to State v. Saltzer (1985), 20 Ohio App. 3d 277. In Saltzer, the defendant was indicted for separate theft offenses which occurred over a period of time. He entered a guilty plea to each indictment and was sentenced for all the offenses on one date. When he applied for expungement, the trial court denied the application. On appeal, defendant argued that separate indictments disposed of at one time caused him to be a "first offender." This court disagreed. *** [W]hen separate indictments are considered by a trial court at the same time, those offenses do not merge into one offense. State v. Londrico (Dec. 28, 1978), Cuyahoga App. No. 38174, unreported. State v. Saltzer, supra. In the case sub judice, the probation department's report to the trial court regarding defendant indicates three different robbery offenses occurring over a three-week period of time, plus an additional arrest in Parma Heights for theft. This is part of the official record on appeal. Cf. State v. Macky (Oct. 18, 1990), Cuyahoga App. No. 59244, unreported. Since there is evidence demonstrating defendant was not a "first offender" at the time of her application for and the - 10 - court's order granting the expungement, the trial court lacked jurisdiction to grant the expungement. Accordingly, the State's assignment of error is well taken. Therefore, the order of the trial court granting the expungement is reversed and vacated. - 11 - This cause is reversed and vacated. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. NAHRA, J., CONCURS DYKE, J., DISSENTS (See Dissenting Opinion, Dyke, J., attached) CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59179 STATE OF OHIO : : Plaintiff-appellant : : D I S S E N T I N G vs. : : O P I N I O N : DONNA L. CONROY : : Defendant-appellee : : : DATE: OCTOBER 31, 1991 DYKE, J., DISSENTS: I respectfully dissent from the majority's disposition. As the majority recognizes, appellant failed to file with this court a transcript and therefore failed to meet its burden of showing error by reference to matters in the record. I am unwilling, however, to accept as evidence, dispositive of this appeal, an unsworn, unsigned, uncertified copy of a probation report contained in the sealed file. Further, in the absence of a transcript, we have no idea whether appellee successfully rebutted the contents of the probation report so that the trial court's conclusion would be supported i.e., that appellee was a proper candidate for expungement. I would presume regularity in the proceedings below and affirm the expungement. .