Status as a First Offender Required for Expungement
 The expungement procedure in Ohio is a statutory 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. Expungement is a matter of privilege, not of right. State v. Thomas (1979), 64 Ohio App.2d 141 at 145.
Ohio Revised Code Section 2953.32 governs expungement and the sealing of a record of conviction. It provides in pertinent part as follows:
"(A)(1) Except as provided in section 2953.61 of the Revised Code, a first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor."
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| As a general rule, a trial court's decision to deny expungement will not be disturbed on appeal absent a showing of abuse of discretion. State v. Muller (Nov. 6, 2000), Knox App. No. 99CA18, 2000 Ohio App. LEXIS 5176. However, the determination of "first offender" status is a question of law which is subject to independent review by an appellate court, without deference to the decision of the lower court. State v. Krantz, Cuyahoga App. No. 82439, 2003 Ohio 4568citing State v. McGinnis (1993), 90 Ohio App.3d 479 at 481; State v. Aggarwal (1986), 31 Ohio App.3d 32. |
Ohio Revised Code Section 2953.31 gives the following definition of "first offender:"
"'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."
This means that if you have more than one conviction, but the convictions arise out of 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 and you will be eligible for consideration to have your conviction expunged.
An applicant's status as a first offender is a prerequisite to the trial court's jurisdiction over an application to seal records. State v. Saltzer (1985), 20 Ohio App.3d 277 at 278. While in DUI law there is case law authority that an uncounseled conviction for DUI (meaning that the defendant did not have a lawyer when he was convicted) will not be counted against him for the purposes of enhancing the punishment of a subsequent DUI, an uncounseled DUI conviction can be counted against a person seeking an expungement such that he may not qualify as a first time offender. State v. Oskay, 1994 Ohio App. LEXIS 434 (February 10, 1994) Cuyahoga Co. App. No. 65679.
Continue on to our complete guide to Ohio expungement law
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