COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71155 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION LAWRENCE MITCHELL : : Defendant-Appellee : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION MAY 1, 1997 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. CR-315074 JUDGMENT Reversed and vacated. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS JONES JAYE M. SCHLACHET, ESQ. Cuyahoga County Prosecutor JEROME EMOFF, ESQ. L. Christopher Frey, Assistant 620 Terminal Tower Prosecuting Attorney 50 Public Square 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App. R.11.1 and Loc.App.R. 25. Plaintiff-appellant State of Ohio appeals from an order of expungement sealing the criminal record of the defendant-appellee Lawrence Mitchell in which he plead guilty to criminal damaging (R.C. 2909.06), a misdemeanor of the second degree. The State contends that defendant was not eligible for expungement because he plead guilty to a nonprobational offense inasmuch as a firearm was used in the crime. We reverse the order below for the reasons hereinafter stated. Defendant was indicted on October 18, 1994 on three counts: felonious assault with firearm and violence specifications (R.C. 2903.11); improperly discharging a firearm at or into a habitation or school with a firearm specification (R.C. 2923.161); and vandalism (R.C. 2909.05). Defendant's indictment stems from an incident that occurred on September 8, 1994 wherein defendant reportedly fired his C.M.H.A. service revolver three times into his girlfriend's car and then at her as she fled. Photos were taken of the damage caused to the car. On December 21, 1994, defendant entered into a plea agreement with the State in which he pled guilty to an amended Count III, criminal damaging (R.C. 2909.06) without any specifications. All other charges and specifications were dismissed. Defendant was - 3 - sentenced on the same date to six months in jail, sentence suspended and ordered either to pay a monetary fine of $500 or surrender his gun to his employer, C.M.H.A. He chose the latter. Defendant was also ordered to pay $265 to his girlfriend or the auto body shop for repairs to the vehicle. Defendant also agreed to resign from his post at C.M.H.A. No term of probation was imposed. After a year had passed, defendant filed an application for expungement on April 11, 1996, which was granted by the trial court over the State's opposition. The State filed a timely notice of appeal herein. The State's sole assignment of error states: I. THE COURT OF COMMON PLEAS ERRED IN GRANTING DEFENDANT'S APPLICATION TO EXPUNGE HIS CRIMINAL RECORD WHERE THE DEFENDANT WAS NOT ELIGIBLE DUE TO THE PROHIBITION AGAINST GRANTING PROBATION TO A PERSON WHO USES A FIREARM IN THE COMMISSION OF AN OFFENSE. The State argues that the trial court erred in granting an expungement because defendant was ineligible for such relief, in that the indictment contained charges which were nonprobationable due to the alleged use of a firearm. Defendant asserts in return that the "record contains no admission or stipulation by defendant that he discharged a gun or that it was operable as defined by R.C. 2923.11(B), and there is no independent evidence of operability." We are not persuaded by defendant's argument. - 4 - Defendant entered a guilty plea to a charge of criminal damaging (R.C. 2909.06), a misdemeanor of the second degree. All other charges and specifications in the indictment were dismissed. The State argues that defendant is ineligible for expungement because R.C. 2953.36 prohibits such relief "*** when the offender is subject to a mandatory prison term ***." The State further argues that since defendant was originally indicted for committing an offense with a gun, he could not receive probation pursuant to R.C. 2951.02(F)(3), and therefore defendant was subject to a mandatory prison term. We find merit in the State's argument. The expungement statute is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having the record of their first conviction sealed should the court, in its discretion, so decide. State v. Thomas (1979), 64 Ohio App.2d 141, 145. Expungement of a criminal record is an "act of grace created by the State." State v. Hamilton (1996), 75 Ohio St.3d 636, 639. Because expungement is a matter of privilege, not of right, the requirements of the expungement must be strictly followed. State v. Heaton (1995), 108 Ohio App.3d 38, 40; State v. Harris (March 4, 1982), Cuyahoga App. No. 43689, unreported. The expungement or sealing of a person's record of conviction is governed by R.C. 2953.32 through R.C. 2953.61. R.C. 2953.36 states: "Sections 2953.31 to 2953.35 of the Revised Code do not apply to convictions when the offender is subject to a mandatory - 5 - prison term ***." Probation is precluded by R.C. 2951.02 which at the time of defendant's sentencing provided: (F) An offender shall not be placed on probation and shall not otherwise have the offender's sentence of imprisonment suspended pursuant to division (D)(2) or(4) of section 2929.51 of the Revised Code when any of the following applies: * * * (3) The offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code. Significantly, the above statute does not refer to the firearm as actually being "used" and thus "operable," rather, it merely refers to the fact that the offender was "armed" at the time of the commission of the offense. State v. Ervin (1994), 93 Ohio App.3d 178, 179; State v. Theiss (1988), 48 Ohio App.3d 251, 253; State v. Pope (Sept. 2, 1993), Cuyahoga App. No. 63606, unreported. The Ohio Supreme Court has held that the trial court may determine that the offender committed an offense while armed with a firearm for purposes of R.C. 2951.02(F)(3) even when a jury had acquitted the defendant of a gun specification. State v. Koss (1990), 49 Ohio St.3d 213, 219-220. In Koss, the court reasoned that "although the jury acquitted appellant of the gun specification, the evidence established that the victim died of a gunshot wound to the head." The Koss court held that probation is not appropriate where the offense is committed with a firearm. See, also, Ervin, supra and State v. Fisher (1985), 26 Ohio App.3d - 6 - 197, 198, cited by the Koss court for the proposition that facts discovered in a presentence investigation may be used by the trial court to determine that an offense is nonprobationable. More recently, in State v. Bistarkey (1996), 75 Ohio St. 7, 9, the Ohio Supreme Court held that a defendant was not eligible for shock probation since he was originally ineligible for probation due to the fact that a firearm was used in the offense to which defendant pled guilty, even though the firearm specification was dismissed as part of plea negotiations. This Court has held that expungement is not available when a defendant has been convicted of an offense involving the use of a firearm. State v. Moore (1986), 31 Ohio App.3d 225, 227; State v. Himons (Feb. 2, 1995), Cuyahoga App. No. 67827/67828, unreported. In Himons, this Court held: A court has discretion whether or not to seal criminal records under R.C. 2953.32 and 2953.52. State v. McGinnis (1993), 90 Ohio App.3d 479, 481, 629 N.E.2d 1084; State v. Lesinski (1992), 82 Ohio App.3d 829, 830, 613 N.E.2d 691. "Not every applicant is entitled to have his record expunged." State v. Mastin (1992), 83 Ohio App.3d 814, 816, 615 N.E.2d 1084. The court has a duty to weigh the interest of the person seeking sealing of the records against the legitimate need of the government to maintain the records. Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 377, 421 N.E.2d 1303. However, under R.C. 2953.36 first offenders convicted of nonprobationable offenses are not eligible for expungement pursuant to R.C. 2953.36. "The fact that he received probation does not 'overcome the statutory prohibition of R.C. 2953.36 that one cannot seal a record for a nonprobationable offense.'" State v. Leers (1992), 84 Ohio App.3d 579, 581, 617 N.E.2d 754; State v. - 7 - Moore (1986), 31 Ohio App.3d 225, 227, 510 N.E.2d 825. In the present case, the defendant was indicted for a nonprobationable offense, felonious assault by use of a firearm, with which he shot the victim. Under R.C. 2951.02(F)(3), an offender shall not be placed on probation and shall not have his sentence suspended when the offense involved was committed while the offender was armed with a firearm or dangerous ordinance. The probation restriction remains in effect even if the gun specification has been deleted pursuant to a plea bargain. State v. Ellis (1992), 78 Ohio App.3d 221, 225, 604, N.E.2d 229. We find that the trial court acted within its discretion when it denied the defendant's application for expungement. The fact remains that, even though the firearm specification was dropped in plea bargaining, defendant used a firearm in the commission of a crime. That defendant was given probation for what was a nonprobationable offense does not alter the thrust of R.C. 2953.36 which prohibits sealing of criminal records in such circumstances. State v. Leers, supra. Under R.C. 2953.32(C)(1)(d), the court was obliged to consider the prosecutor's objections pointing out the use of the firearm in the crime when weighing the interests of the applicant against the legitimate needs of the government to maintain the records. See State v. May (1991), 72 Ohio App.3d 664, 667, 595 N.E.2d 980 ("in order to oppose the application for expungement, the prosecutor need only file an objection with the court prior to the day of hearing and specify *** the reasons which he believes justify denial of the application"). The court was not bound to turn a blind eye to the firearm use simply because it was dropped in plea bargaining. In the present case, defendant was originally indicted on a three count indictment which included two firearm specifications. Defendant was charged with shooting his C.M.H.A. revolver into his girlfriend's automobile. The felonious assault charge and the improperly discharging a firearm at or into a habitation or school, - 8 - along with the two firearm specifications were nolled pursuant to the plea bargain. While the vandalism charge to which he pled makes no reference to the use of a firearm, the record is replete with evidence and references to the fact that a firearm was used by defendant. The original police report stated that the defendant "shot at victim's car three times then at the victim *** as she attempted to flee. Photo's [sic] taken." Photographs were taken of the damage, presumably bullet holes, caused to the victim's car and part of defendant's plea called for him to pay for the damage caused by the shooting. Defendant was also forced to resign his position at C.M.H.A. and was to return his service revolver to the C.M.H.A. police and security department. Defendant does not contest that he surrendered his revolver to his former employer following his conviction. Defendant argues there is "insufficient proof in the record of the use of a 'firearm'" and in the alternative, that there is insufficient proof of operability of the firearm. Proof of operability can be met through the presentation of circumstantial evidence. State v. Butler (1994), 97 Ohio App.3d 322. R.C. 2923.11(B)(2) provides: (2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm. - 9 - In State v. Murphy (1990), 49 Ohio St.3d 206, syllabus, the Ohio Supreme Court set forth the type of evidence necessary to prove operability: The state must prove beyond a reasonable doubt that a firearm was operable at the time of the offense before a defendant can receive an enhanced penalty pursuant to R.C. 2929.71(A). However, such proof can be established beyond a reasonable doubt by the testimony of lay witnesses who were in a position to observe the instrument and the circumstances surrounding the crime. (State v. Gaines [1989], 46 Ohio St.3d 65, modified.) In Tilley v. McMackin (1993), F.2d 222, 225, the Sixth Circuit Court of Appeals, applying R.C. 2923.11(B)(1)(2), stated in relevant part: Under Ohio law, operability of the firearm *** is an element which must be proven beyond a reasonable doubt. Although the firearm may not be available to the prosecution for test firing or admission into evidence, the fact of operability nevertheless may be established by circumstantial evidence. This may include, for example, testimony that a gunshot was heard or that shell casings or bullet holes were found. It also may include evidence that can be viewed as an acknowledgment by the individual exercising control over the firearm that it was operable, through testimony about how he used the gun, his statements, and his conduct. Further, proving operability does not require the State to provide a ballistic analysis or examination of the firearm, as such requirement would only frustrate the intent of the General Assembly of deterring the use of deadly weapons. Murphy, supra at 209; State v. Moore (1986), 31 Ohio App.3d 225, 227. In the present case, there was sufficient evidence to show the firearm was operable. Defendant was indicted for discharging his - 10 - revolver into his girlfriend's car. The police responded to the shooting and photographed the resulting damage to the victim's vehicle. Pursuant to his plea, defendant agreed to resign from the C.M.H.A. police and security department, turn in his revolver, and pay for the damage caused by the shooting. The record below is limited in that no transcript of the guilty plea was ordered by the State. The State also failed to introduce the confiscated weapon into evidence. The record before us, however, does show by sufficient circumstantial evidence that a firearm was used by the defendant and that it was operable. State v. Launer (1995), 107 Ohio App.3d 42, is factually similar to the case at bar. In Launer, the accused pled guilty to a charge of vandalism. R.C. 2909.05. Included in the trial record was the transcript of the plea and sentencing hearing in which defendant was quoted as accepting responsibility for shooting a gun at a police vehicle. Launer's admission that the gun was operable was sufficient to permit the conclusion that the gun was a firearm, making him ineligible for expungement. R.C. 2953.36 clearly states that expungement is not available for nonprobationable offenses. The trial court erred in sealing the defendant's conviction. The State's sole assignment of error is well taken. Judgment of expungement is reversed and vacated; the case is remanded to the lower court for proceedings consistent with this opinion. - 11 - It is ordered that appellant recover of appellee its 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 Court of Common Pleas 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. DAVID T. MATIA, PRESIDING JUDGE JAMES M. PORTER, JUDGE CHARLES D. ABOOD*, JUDGE (*Judge Charles D. Abood, Retired, Sixth District Court of Appeals, Sitting by Assignment) N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .