[Cite as State v. Mills,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No: 10CA3144 : v. : : DECISION AND GREGORY S. MILLS, : JUDGMENT ENTRY : Defendant-Appellant. : File-stamped date: 1-6-11

APPEARANCES:

Gregory S. Mills, pro se, for Appellant.

Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.

Kline, J.:

{¶1} Gregory S. Mills (hereinafter “Mills”), appeals the judgment of the Ross

County Court of Common Pleas, which denied his application to seal criminal records.

On appeal, Mills contends that the trial court erred in denying his application. Because

Mills has just one conviction, and thus qualifies as a first offender, we agree.

Accordingly, we reverse the trial court’s judgment and remand this cause for further

proceedings consistent with this opinion.

I.

{¶2} In 2002, Mills was indicted for theft of drugs, a fourth-degree felony, in

violation of R.C. 2913.02(B)(1)(6). Eventually, Mills pled guilty to theft of drugs, and,

pursuant to R.C. 2951.041, the trial court placed him in an intervention-in-lieu-of- Ross App. No. 10CA3144 2

conviction program. After Mills successfully completed the program, the trial court

dismissed the case against him.

{¶3} On September 10, 2009, Mills filed an application to seal the criminal

records related to his theft-of-drugs charge. After a hearing, the trial court found the

following: “Ohio Revised Code Section[s] 2953.31 to 2953.36 refer to sealing of records

of convictions and are only available to a first offender as that term is defined in [R.C.]

2953.31(A). The problem in this case is that the defendant’s records indicate that he

had an OMVI alcohol and/or drug conviction on April 7, 1997 in the Franklin County

Municipal Court. Such a conviction would mean that the defendant is not a first offender

as to his theft of drugs offense pursuant to Ohio Revised Code Section 2953.31(A) and

thus he is ineligible for the sealing of his records. * * * Thus the court finds that the

defendant is not eligible to have the record in this matter sealed and the application is

denied.” Entry at 3.1

{¶4} Mills appeals and asserts the following assignment of error: “The trial court

erred to the prejudice of Defendant-Appellant in failing to liberally construe Appellant[’]s

pro se motion to seal his records and denying the same.”

II.

{¶5} In his sole assignment of error, Mills contends that the trial court should

have granted the application to seal his theft-of-drugs criminal records. Mills essentially

argues that the trial court should have considered his application under R.C. 2953.52,

the application-to-have-records-sealed statute. Because R.C. 2951.041(E) expressly

1 The trial court also noted the following: “If the court were to consider this case pursuant to Ohio Revised Code Section 2953.52 [the application-to-have-records-sealed statute], the court would readily grant the application for sealing of records.” Entry at 2. As the trial court judge said, “I guarantee it won’t break my heart if I get reversed.” Motion to Seal Records Transcript at 9. Ross App. No. 10CA3144 3

states that R.C. 2953.31-36 applies to individuals who have completed an intervention-

in-lieu-of-conviction program, we disagree with Mills’s essential argument.

Nevertheless, after liberally construing Mills’s assignment of error, we will determine

whether the trial court erred in denying Mills’s application under R.C. 2953.31-36. See,

generally, Stella v. Platz (June 17, 1999), Washington App. No. 98CA18 (“[T]o decide

cases on their merits and further the interest of justice, we must give pro se litigants

wide latitude.”).

{¶6} In the proceedings below, the trial court denied Mills’s application because

only first offenders may have their records sealed under R.C. 2953.31-36. Therefore, to

resolve Mills’s appeal, we must determine whether Mills qualifies as a first offender.

“The determination of [Mills’s] status as a first-time offender * * * is a question of law

subject to an independent review by this court without deference to the trial court’s

decision.” State v. Derugen (1996),

. Additionally, the

present case requires us to interpret and apply various sections of the Ohio Revised

Code. “‘When interpreting statutes and their application, an appellate court conducts a

de novo review, without deference to the trial court’s determination.’” Roberts v. Bolin,

Athens App. No. 09CA44,

, at ¶20, quoting State v. Sufronko (1995),

.

{¶7} The following statutes are relevant to the present case. First, R.C.

2951.041(E) addresses how those who have completed an intervention-in-lieu-of-

conviction program may have their records sealed. This statute provides that “the court

may order the sealing of records related to the offense in question in the manner

provided in sections 2953.31 to 2953.36 of the Revised Code.” R.C. 2951.041(E). Ross App. No. 10CA3144 4

Next, R.C. 2953.32(A)(1) specifies that only first offenders may have their records

sealed. This statute provides that “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.” R.C. 2953.32(A)(1). And finally,

R.C. 2953.31(A) defines a “first offender” as “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.”

{¶8} The trial court found that Mills is not a first offender because of a prior

conviction. Because we may take judicial notice of findings and judgments as rendered

in other Ohio cases, we agree that Mills has a prior conviction for OMVI. See, e.g., In re

N.G., Lawrence App. No. 09CA15,

, at ¶14 (taking judicial notice of a

judgment rendered in the Lawrence County Court of Common Pleas) (citations omitted).

Here, the record lacks specific evidence related to Mills’s OMVI conviction. But a

search of the Franklin County Municipal Court’s website shows that, on April 7, 1997, in

case number 1997 TR C 112733, Mills was convicted of operating a vehicle under the

influence of alcohol in violation of R.C. 4511.19(A)(1). Nevertheless, as it relates to the

present case, having a prior OMVI conviction does not necessarily determine Mills’s

status under R.C. 2953.31(A).

{¶9} Here, Mills has just one conviction: OMVI. He does not have a conviction

for theft of drugs because “successful completion of the [treatment-in-lieu-of-conviction

program] shall be without adjudication of guilt and is not a criminal conviction for

purposes of any disqualification or disability imposed by law and upon conviction of a Ross App. No. 10CA3144 5

crime[.]” R.C. 2951.041(E) (emphasis added). Therefore, because Mills has just one

conviction, we believe that he qualifies as a first offender under R.C. 2953.31(A).

{¶10} Admittedly, we are somewhat uncomfortable with our resolution of this

case. As the facts here demonstrate, the process for sealing criminal records does not

always fit neatly with the treatment-in-lieu-of-conviction statute. For example, R.C.

2953.32(A)(1) expressly provides for the sealing of “conviction record[s],” but there is no

conviction under R.C. 2951.041(E). Therefore, we find an inherent contradiction

between the two statutes. Furthermore, it is relevant that “[s]ections 2953.31 to 2953.35

of the Revised Code do not apply to * * * [c]onvictions under section * * * 4511.” R.C.

2953.36(B). If we interpreted this language broadly enough, we could find that Mills’s

theft-of-drugs records may not be sealed because his first-offender status is the result of

an OMVI conviction under R.C. 4511.19(A)(1). We choose, however, to interpret this

language in Mills’s favor and find that the exclusionary language applies to the offense

to be sealed (theft of drugs), not the offense that qualifies Mills as a first offender

(OMVI). Basically, we have interpreted any inherent ambiguities in Mills’s favor

because we “must liberally construe [R.C. 2953.31-36] so as to promote the legislative

purpose of allowing expungements.” State v. Hilbert (2001),

.

See, also, State ex rel. Gains v. Rossi,

,

(“[T]he

remedial expungement provisions of R.C. 2953.32 and 2953.33 must be liberally

construed to promote their purposes.”).

{¶11} Accordingly, we sustain Mills’s first assignment of error and find that he is

a first offender under R.C. 2953.31(A). Therefore, we find that Mills is eligible to have

his theft-of-drugs records sealed in the manner provided in sections 2953.31 to 2953.36 Ross App. No. 10CA3144 6

of the Revised Code, and we remand this cause to the trial court for further proceedings

consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED. Ross App. No. 10CA3144 7

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND THE CAUSE REMANDED. Appellee shall pay the 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 Ross 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. Exceptions.

McFarland, P.J. and Harsha, J.: Concur in Judgment Only.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.