COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73812 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellant : : -vs- : JOURNAL ENTRY : AND ANTHONY J. CARTELLONE, JR. : OPINION Defendant-Appellee : PER CURIAM : DATE OF ANNOUNCEMENT : JULY 23, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-242381 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Arthur A. Elkins, Esq. Assistant Prosecutor The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellee: George F. Lonjak, Esq. 1995 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Anthony Cartellone, Jr. 2120 Ramrod Avenue #518 Henderson, Nevada 89014 -2- PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Local App.R. 25, the record from the Cuyahoga County Court of Common Pleas, oral argument and briefs of counsel. The State of Ohio, plaintiff-appellant, assigns one error for review. This court, finding error, reverses and remands this case for further proceedings. On October 19, 1989, Anthony J. Cartellone Jr., defendant- appellee, was indicted by the Cuyahoga County Grand Jury on one count of felonious assault in violation of R.C. 2903.11. On June 26, 1990, defendant-appellee entered a plea of guilty to the lesser included offense of aggravated assault. Defendant-appellee was sentenced to prison for a term of eighteen months to five years. The court suspended defendant-appellee's sentence and placed him on two years probation. On June 11, 1993, defendant-appellee's probation was terminated. On February 26, 1997, defendant-appellee filed an application to seal his record pursuant to R.C. 2953.32. On October 27, 1997, the State of Ohio, plaintiff-appellant, filed its objection to said application. Without conducting a hearing, the trial court granted defendant-appellee's application on December 5, 1997. Plaintiff- appellant subsequently filed a motion to vacate. The trial court held a hearing on January 6, 1998, and denied plaintiff-appellant's motion. On January 7, 1998, plaintiff-appellant timely filed this appeal. Plaintiff-appellant states as its sole assignment of error: -3- PURSUANT TO R.C. 2953.32(A)(1), (C)(1), AND R.C. 2953.31(A) THE TRIAL COURT LACKED JURISDICTION TO SEAL APPELLEE'S RECORD OF CONVICTION. Plaintiff-appellant argues the trial court lacked jurisdiction to grant defendant-appellee's application to seal his record since it presented uncontested evidence that defendant-appellee had a prior conviction for driving under the influence of alcohol and as such, was not a first offender as envisioned by R.C. 2953.31(A). We agree. Under R.C. 2953.32, a "first offender" may apply to the sentencing court to seal the record of conviction. A first offender under the statute is "anyone who has been convicted of an offense in this state *** and who previously or subsequently has not been convicted of the same or a different offense ***." R.C. 2953.31(A). Moreover, a conviction for a violation of R.C. 4511.19 (driving under the influence), or a conviction for a violation of a municipal ordinance that is substantially similar to R.C. 4511.19, shall be considered a previous or subsequent conviction. R.C. 2953.31(A). If it is demonstrated to the court that granted an expungement that the defendant was not a first-time offender under R.C. 2953.31, the court is deprived of jurisdiction and the expungement must be vacated. In State v. Thomas (1979), 64 Ohio App.2d 141, this court stated the following: *** [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 -4- "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 requirements of R.C. 2953.32(A) were not satisfied at the time of application, the court lacked jurisdiction to grant the expungement and vacation of the expungement would be in order. See, also, State v. Saltzer (1985), 20 Ohio App.3d 277 In this case, there is no dispute that defendant-appellee has a prior conviction for driving under the influence. Pursuant to the clear and unambiguous language of R.C. 2953.31, defendant-appellee is not a first offender and the trial court lacked jurisdiction to grant his application. See State v. May (1991), 72 Ohio App.3d 664. Contrary to defendant-appellee's assertions, whether or not defendant-appellee was represented by counsel when he was convicted of driving under the influence is immaterial to the application of R.C. 2953.32. Under Ohio law, when a statute is unambiguous, a court must only read and follow it.1 Wachendorf v. Shaver (1948), 149 Ohio St. 231. Accordingly, plaintiff-appellant's sole assignment of error is well taken. Judgment reversed and remanded with instructions to enter judgment consistent with this opinion and to vacate any order 1It should be noted that expungement proceedings under R.C. 2953.32 are civil in nature. See State v. Bissantz (1987), 30 Ohio St.3d 120. Accordingly, the constitutional right to counsel is not relevant to our review. -5- pertaining to defendant-appellee's expungement including, but not limited to, revoking any and all instructions designed to effect sealment. -6- It is ordered that appellant recover of appellee 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, A.J. JOSEPH J. NAHRA, JUDGE MICHAEL J. CORRIGAN, JUDGE 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 .