[Cite as State v. Lovelace,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-110715 TRIAL NO. 09CRB-5563 Plaintiff-Appellant, :

vs. : O P I N I O N.

WILLIAM LOVELACE, : Defendant-Appellee. :

Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Final Judgment Entered

Date of Judgment Entry on Appeal: August 17, 2012

John P. Curp, City Solicitor, Charlie Rubenstein, City Prosecutor, and Jennifer Bishop, Assistant Prosecutor, for Plaintiff-Appellant,

Chevalier, Ginn, Shirooni & Kruer, P.S.C., and James Kruer, for Defendant-Appellee.

Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

S YLVIA S IEVE H ENDON , Judge.

{¶1} Plaintiff-appellant the state of Ohio appeals the judgment of the Hamilton

County Municipal Court granting defendant-appellee William Lovelace’s motion to reinstate

the expungement of his criminal conviction. We reverse the trial court’s judgment because

the trial court had no authority to grant the expungement.

{¶2} Lovelace was convicted of theft and disorderly conduct in 2009. On July 1,

2011, the trial court granted Lovelace’s application for the expungement of the theft

conviction. The state did not object to the application and did not appeal the trial court’s

order.

{¶3} Shortly thereafter, the trial court received a probation department report that

indicated Lovelace had been ineligible for expungement because he had had a prior

disorderly conduct conviction. On July 18, 2011, the court sua sponte journalized an entry

stating that the conviction had been “expunged in error” and purporting to reinstate the

theft conviction.

{¶4} Three months later, on October 28, 2011, Lovelace filed a motion for the

reinstatement of the expungement of his theft conviction. According to Lovelace, neither he

nor his counsel had been notified of the court’s July 18 entry.

{¶5} In November, the court reinstated Lovelace’s expungement. The state now

appeals.

{¶6} In its first assignment of error, the state argues that the trial court erred by

expunging Lovelace’s theft conviction because he was not a first offender. The state

contends that the trial court lacked jurisdiction to grant the expungement, and that its

judgment was, therefore, void.

{¶7} The expungement process is set forth in R.C. 2953.32. Subsection (A)(1)

provides:

2 OHIO FIRST DISTRICT COURT OF APPEALS

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.

{¶8} A first offender is defined 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.” R.C.

2953.31(A).

An Order Granting Expungement to an Unqualified Applicant is Void

{¶9} We have held that a trial court has no jurisdiction to expunge a conviction

where the applicant did not qualify as a first offender under R.C. 2953.32. See State v.

Coleman,

,

(1st Dist. 1997). We have further held that if,

at any time after the expungement is granted, the trial court becomes aware that the

applicant was not a first offender at the time of the application, then the expungement is

void and must be vacated, the court having lacked jurisdiction to grant the expungement in

the first place. See State v. Bundy, 1st Dist No. C-020411,

.

{¶10} In Bundy, we followed the reasoning of the Eighth Appellate District in State

v. Thomas,

,

(8th Dist. 1979). In Thomas, the trial court

had granted the state’s motion to vacate an expungement order made two years after the

court had entered the expungement order. Thomas held that a court’s jurisdiction is not

3 OHIO FIRST DISTRICT COURT OF APPEALS

properly invoked under the expungement statute unless the applicant is a first offender.

at syllabus. Therefore, the court held, the expungement was void for lack of jurisdiction.

{¶11} In 2004 and in 2005, the Tenth Appellate District relied on the Eighth

District’s Thomas decision. In three cases, the Tenth District held that an order expunging

the record of one who is not a first offender is void for lack of jurisdiction and may be

vacated at any time. See State v. McCoy, 10th Dist. No. 04AP-121,

;

State v. Winship, 10th Dist. No. 04AP-384,

, ¶ 9, and In re Barnes, 10th

Dist. No. 05AP-355,

.

Or is it Voidable?

{¶12} But a few years later, the Tenth Appellate District considered a state’s appeal

from a trial court’s judgment denying its motion to vacate a four-year-old expungement

order. The appellate court noted that “the Thomas court’s jurisdictional interpretation of

R.C. 2953.32 was without the benefit of the recently announced Supreme Court cases

explaining the difference between subject matter jurisdiction and jurisdiction over a

particular case.” State v. Smith, 10th Dist. No. 06AP-1059,

, citing

Pratts v. Hurley,

,

,

and In re J.J.,

,

,

. The Smith court held that “[a]

subsequent finding that an applicant is not a first offender * * * does not divest the court of

subject matter jurisdiction so that the expungement order is void ab initio. Instead, it

constitutes an error in the court’s exercise of jurisdiction over a particular case, which is

voidable either by way of direct appeal or pursuant to the provisions of Civ.R. 60(B).”

(Citations omitted.) Smith at ¶ 15.

{¶13} The Tenth District explained that, although its earlier decisions in McCoy,

Winship, and Barnes had “combined the word ‘void’ with ‘jurisdiction,’ the cases do not

4 OHIO FIRST DISTRICT COURT OF APPEALS

stand for the proposition that a court lacks subject matter jurisdiction over an expungement

applicant. * * * Because the judgments in those cases were properly challenged on direct

appeal, the court had the necessary power to ‘void’ the ‘voidable’ judgments.” Id. at ¶ 12.

{¶14} Then, in 2010, the Eighth Appellate District followed Smith and held that its

own rule in Thomas had been “superseded by a more accurate and thorough understanding

of the nuances of ‘jurisdiction.’ ” See Mayfield Hts. v. N.K., 8th Dist. No. 93166, 2010-Ohio-

909, ¶ 29. In that case, months after it had granted an expungement, the trial court sua

sponte vacated the order upon learning that the applicant was not a first offender. The

appellate court held that the order granting expungement to an applicant who was later

discovered to be ineligible for expungement because he was not a first offender was

voidable. Id. at ¶ 29. Therefore, the judgment would be subject to attack only by direct

appeal or a Civ.R. 60(B) motion. Id. Because the judgment was merely voidable, the trial

court had no authority to sua sponte vacate it. Id. at ¶ 30.

{¶15} In Mayfield Hts., the Eighth District also relied on the reasoning of the

Second Appellate District in State v. Wilfong, 2d Dist. No. 2000-CA-75,

(Mar. 16, 2001). In Wilfong, the state had moved to vacate an expungement

order well over a year after its issuance, arguing that the judgment was void for lack of

jurisdiction. The court reasoned that “[a] judgment may only be declared void for lack of

jurisdiction if the case does not fall within a class of cases over which the trial court has

subject matter jurisdiction.” On the other hand, the court noted, a court’s “exercise of

jurisdiction * * * encompasses the trial court’s authority to determine a specific case within

that class of cases that is within its subject matter jurisdiction.” The court held that the trial

court had had subject-matter jurisdiction over criminal cases, including motions for

expungement, so that its judgment granting the expungement was voidable, not void. Id.;

5 OHIO FIRST DISTRICT COURT OF APPEALS

see also State v. Powers, 5th Dist. No. 02 CA 39,

(a trial court’s improper

exercise of jurisdiction in granting an expungement resulted in a voidable order).

It’s Void.

{¶16} To further demonstrate the pinball nature of the case law in the area of

expungements, just last year the Second Appellate District cited the Eighth District’s rule in

Thomas, the 1979 case that that court had later abrogated in Mayfield Hts., in reliance on

the Second District’s 2001 Wilfong decision. See State v. Stephens,

,

,

(2d Dist.). In Stephens, the Second District held that

because an applicant did not qualify as a first offender, he was not eligible for expungement.

Id. at ¶ 25. The court held that “[t]he trial court lacked jurisdiction to grant Defendant’s

application for expungement, and its order doing so is void and must be vacated.” Id.

{¶17} And the Tenth Appellate District held in 2011 that a trial court did not have

jurisdiction to grant an expungement where the applicant was not a first offender, so that

the resulting judgment was void. See State v. Knapp, 10th Dist. No. 11AP-32, 2011-Ohio-

3792.

{¶18} Admittedly, Stephens and Knapp each involved a direct appeal by the state of

a trial court’s expungement order whereas Mayfield Hts., Wilfong and Smith had each

involved an expungement order that, because it was only voidable, had not been timely

appealed. But these cases illustrate that in the context of expungements, courts have been

distracted by the terminology (“void,” “voidable,” and “jurisdiction”) and have lost sight of

the expungement statute itself. The statute, R.C. 2953.32, grants trial courts only a limited

power to expunge criminal records.

6 OHIO FIRST DISTRICT COURT OF APPEALS

No Authority to Act

{¶19} We recognize that Mayfield Hts. and Smith reached their conclusions that an

order granting expungement to an unqualified applicant was merely voidable based on their

interpretations of decisions by the Ohio Supreme Court in Pratts and In re J.J. But we are

not persuaded that those cases compel such a result.

{¶20} In Pratts, the Supreme Court noted, “Subject-matter jurisdiction is a court’s

power over a type of case. It is determined as a matter of law and, once conferred, it

remains.”

,

,

, ¶ 34. In that case, the

common pleas court had had subject-matter jurisdiction over the defendant’s aggravated-

murder case. But the Supreme Court determined that the trial court had simply erred in the

exercise of its jurisdiction by failing to convene a three-judge panel under R.C. 2945.06.

That failure constituted an error in judgment that was required to be raised on direct

appeal. Id. at ¶ 35.

{¶21} Similarly, in In re J.J., the Supreme Court held that “[i]n a court that

possesses subject-matter jurisdiction, procedural irregularities in the transfer of a case to a

visiting judge affect the court’s jurisdiction over a particular case and render the judgment

voidable, not void.”

,

,

, paragraph one of

the syllabus.

{¶22} However, the case before us does not involve “an error in judgment” or a

procedural irregularity; this case involves a prohibited act. The court simply had no

authority to grant an expungement to an ineligible offender.

{¶23} In this case, the expungement of the record of Lovelace’s misdemeanor theft

conviction was granted by the municipal court. Municipal courts are created by statute, and

their subject-matter jurisdiction is set by statute. See R.C. 1901.01; Cheap Escape Co. v.

Haddox, L.L.C.,

,

,

. With respect to

7 OHIO FIRST DISTRICT COURT OF APPEALS

criminal matters, municipal courts have subject-matter jurisdiction over misdemeanors

occurring within their territorial jurisdiction. R.C. 1901.20(A)(1). This includes the power

to seal the record of a misdemeanor conviction for a qualified applicant. See R.C. 2953.32.

{¶24} Expungement is an act of grace created by the state. It is a privilege, not a

right. State v. Simon,

,

,

. R.C.

2953.32 makes clear that only a first offender may apply for expungement. The statute does

not grant trial courts the power to expunge criminal convictions for non-first offenders.

{¶25} We decline to adopt the reasoning of those courts that have declared as

merely voidable an improperly granted expungement. By holding that improperly granted

expungements are voidable, courts have shifted the onus from applicants to the state. For

instance, if a trial court improperly grants an expungement to an unqualified applicant, the

state would be forced to appeal a judgment that the trial court had no authority to enter in

the first place. And if the state failed to file a “timely” appeal or to properly file a Civ.R.

60(B) motion, then the trial court’s illegal order would stand.

Lovelace Was Not a First Offender

{¶26} In this case, the record demonstrates that, in addition to the theft conviction,

Lovelace had been convicted for disorderly conduct. Because Lovelace was not a first

offender at the time of his application, he was ineligible for expungement, and the trial court

had no authority to grant it.

{¶27} Lovelace does not dispute the additional conviction. Instead, he argues that,

even though he had committed the theft and disorderly conduct offenses on two different

dates, he had “received [the] two convictions on the same date, at the same court

appearance.” Therefore, he contends, he was a first offender because “he had not previously

or subsequently been convicted of the same or a different offense in any jurisdiction” under

8 OHIO FIRST DISTRICT COURT OF APPEALS

R.C. 2953.31(A). But this court has long held that two convictions resulting from two

offenses that occurred at separate times cannot be regarded as one conviction for purposes

of R.C. 2953.31. See State v. Cresie,

,

(1st Dist. 1993);

State v. Guthrie, 1st Dist. No. C-990285,

(Oct. 29, 1999).

{¶28} Lovelace was not a first offender and the trial court erred by granting his

motion for expungement. We sustain the state’s first assignment of error.

{¶29} In its second assignment of error, the state argues that the trial court erred

when it granted Lovelace’s motion to reinstate the expungement. Our disposition of the

first assignment of error renders the second assignment of error moot. Consequently, we

reverse the trial court’s judgment and hereby reinstate Lovelace’s theft conviction.

Judgment accordingly. SUNDERMANN, P.J., concurs. FISCHER, J., dissents. FISCHER, J., dissenting.

{¶30} This court has held that sentencing courts lack jurisdiction over expungement

applications where the applicant is not a “first offender” as defined by R.C. 2953.31(A). See

State v. Taylor, 1st Dist. No. C-110282,

; State v. Broadnax, 1st Dist. No.

C-040375,

; State v. Prosser, 1st Dist. No. C-030187,

; State v. Bundy, 1st Dist. No. C-020411,

, ¶ 3; State v. Coleman,

,

(1st Dist. 1997). Today the majority explicates this precedent

by implicitly holding that municipal courts lack subject-matter jurisdiction over such

applications. For the following reasons, I respectfully dissent.

{¶31} From Coleman to Taylor, this court has either directly or indirectly followed the

seminal case interpreting the first-offender requirement of R.C. 2953.32: State v. Thomas,

,

(8th Dist. 1979). Over 30 years ago, the Thomas court held

9 OHIO FIRST DISTRICT COURT OF APPEALS

that where “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.” (Emphasis

added.)

.

{¶32} “ ‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings.’ ”

Steel Co. v. Citizens for a Better Environment,

,

,

(1998), quoting United States v. Vanness,

(D.C. Cir. 1996). The Ohio

Supreme Court contrasted two such meanings—subject-matter jurisdiction and the exercise of

jurisdiction over a particular case—in Pratts v. Hurley,

,

,

. “Subject-matter jurisdiction,” the court observed, refers to “a court’s power

over a type of case.” (Emphasis added.). Id. at ¶ 34. The exercise of jurisdiction over a

particular case, on the other hand, “encompasses the trial court’s authority to determine a

specific case within that class of cases that is within its subject matter jurisdiction.” Id. at ¶ 12,

quoting State v. Parker,

,

,

(Cook, J.,

dissenting).

{¶33} This subtle distinction has profound practical implications: generally “[i]t is

only when the trial court lacks subject-matter jurisdiction that its judgment is void; lack of

jurisdiction over the particular case merely renders the judgment voidable.” Id.; see also State

v. Payne

,

,

. A voidable judgment can

be challenged “only through a direct appeal or through a motion for relief from judgment

pursuant to Civ.R. 60(B).” In re Bowers, 10th Dist. No. 07AP-49,

. A void

judgment is, however, a nullity. Romito v. Maxwell,

,

(1967). “It may be attacked at any time, and the party attacking the judgment need not meet

10 OHIO FIRST DISTRICT COURT OF APPEALS

the requirements of Civ.R. 60(B).” Plant Equip., Inc. v. Nationwide Control Serv., Inc.,

,

,

(1st Dist.).

{¶34} In Pratts, the defendant waived his right to a jury trial and pleaded guilty to

aggravated murder with death-penalty and firearm specifications before a single judge rather

than a three-judge panel as mandated by R.C. 2945.06. Pratts,

, 2004-Ohio-

1980,

, at ¶ 2. He later petitioned for a writ of habeas corpus, arguing that his

conviction was void because the trial court had lacked jurisdiction due to this error. Id. at ¶ 3.

The Ohio Supreme Court disagreed, holding that “the failure to convene such a panel does not

divest a court of subject-matter jurisdiction so that a judgment rendered by a single judge is

void ab initio. Instead, it constitutes an error in the exercise of jurisdiction over a particular

case, for which there is an adequate remedy at law by way of direct appeal.” Id. at ¶ 24.

Explaining its precedent, the court clarified that when it had previously held that a trial

court “lacks jurisdiction” to try a criminal defendant without a jury without strictly

complying with the jury-waiver requirements of R.C. 2945.05, it was referring to an error in

the exercise of jurisdiction, not a lack subject-matter jurisdiction. Id. at ¶ 26, citing State v.

Pless,

,

(1996), paragraphs one and two of the syllabus. See

also In re J.J.,

,

,

, paragraph one of the

syllabus (“In a court that possesses subject-matter jurisdiction, procedural irregularities in the

transfer of a case to a visiting judge affect the court’s jurisdiction over the particular case and

render the judgment voidable, not void.”).

{¶35} Following Pratts, the Eighth and Tenth Appellate Districts have reconsidered

their reliance on Thomas, and have held that an expungement order concerning an applicant

who is later discovered to be a non-first offender is error in the exercise of jurisdiction, thus

voidable, not void. Mayfield Heights v. N.K., 8th Dist. No. 93166,

(recognizing

Thomas as “superseded by a more accurate and thorough understanding of the nuances of

11 OHIO FIRST DISTRICT COURT OF APPEALS

‘jurisdiction’ ”); State v. Smith, 10th Dist. No. 06AP-1059,

(explaining that

“the Thomas court’s jurisdictional interpretation of R.C. 2953.32 was without the benefit of the

recently announced Supreme Court cases explaining the difference between subject matter

jurisdiction and jurisdiction over a particular case”), citing J.J. and Pratts. At least three

appellate districts, however, have muddled the issue by reaching discordant results without

discussing their prior precedents. See, e.g., State v. Wilfong, 2d Dist. No. 2000-CA-75,

(Mar. 16, 2001) (voidable); State v. Stephens,

,

,

(2d Dist.) (void); State v. Powers, 5th Dist. No. 02-CA-39,

(voidable); State v. Cantrell, 5th Dist. No. 06CA105,

(void);

In re Bowers, 10th Dist. No. 07AP-49,

(voidable); State v. Knapp, 10th Dist.

No. 11AP-32,

(void).

{¶36} We, too, have not been entirely consistent. See State v. Taylor, 1st Dist. No. C-

110282,

(affirming the trial court’s denial of an expungement application

because the applicant was not a first offender, rather than recognizing that the application

should have been dismissed for lack of subject-matter jurisdiction); State v. Broadnax, 1st

Dist. No. C-040375,

(same).

{¶37} Like the majority, I turn to the statute itself. R.C. 2953.32(A)(1) generally

provides that “a first offender may apply to the sentencing court if convicted in this state * * *

for the sealing of the conviction record.” After affording the prosecutor the opportunity to

respond,

If the court determines * * * that the applicant is a first offender

* * *, that no criminal proceedings are pending against the

applicant, and that the interests of the applicant in having the

records * * * sealed are not outweighed by any legitimate

governmental needs to maintain those records, and that the

12 OHIO FIRST DISTRICT COURT OF APPEALS

rehabilitation of an applicant who is a first offender * * * has been

attained to the satisfaction of the court, * * * the court [subject to

certain exceptions] shall order all official records pertaining to

the case sealed and [subject to certain exceptions] all index

references to the case deleted * * * .

R.C. 2953.32(C)(2).

{¶38} A “first offender” is defined 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.” R.C. 2953.31(A). The

statute further provides that where

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 * * * that it is not in the public interest for the

two or three convictions to be counted as one conviction.

{¶39} The majority suggests that these statutes empower municipal courts to

adjudicate only those expungement applications filed by first offenders. In light of Pratts,

however, I do not share this narrow reading.

{¶40} The first-offender analysis is too discretionary and too inextricably linked to the

merits of each specific expungement application to conclude that the legislature intended to

deprive municipal courts of the power even to deny the applications of non-first offenders.

Indeed there may be cases where the court must decide whether multiple offenses resulted

13 OHIO FIRST DISTRICT COURT OF APPEALS

from “related criminal acts that were committed within a three-month period,” and whether

it is in “the public interest” for “two or three convictions to be counted as one conviction.”

R.C. 2953.31(A). The General Assembly clearly intended for courts to adjudicate these

issues—along with whether there has been “rehabilitation” and whether there are any

countervailing “legitimate governmental needs to maintain those records,” R.C.

2953.32(C)(2)—when determining the merits of an expungement application, not as a

threshold inquiry into the court’s own power.

{¶41} I, therefore, cannot say that a municipal court lacks subject-matter

jurisdiction over expungement applications by non-first offenders. Otherwise, because the

statute commits so many issues to the court’s discretion, each individual judge could expand

or contract the scope of his or her court’s subject-matter jurisdiction on an unpredictable

case-by-case basis. Instead, I would hold that where a sentencing court grants the

expungement application of a non-first offender, the court exceeds only its “authority to

determine a specific case within that class of cases that is within its subject matter

jurisdiction.” Pratts at ¶ 12, quoting State v. Parker,

,

,

(Cook, J., dissenting). Absent another reason, I consider such judgments

voidable, not void. See Ohio Pyro, Inc. v. Ohio Dept. of Commerce,

, 2007-

Ohio-5024,

.

{¶42} I understand that expungement applicants are in the best position to know

their criminal record, and I fully appreciate the concern that, on occasion, a less-than-

forthcoming applicant may benefit from an expungement order that he or she was ineligible to

receive as a non-first offender. In such a case, however, the order may be void due to fraud.

See

(“When a judgment was issued without jurisdiction or was procured by fraud, it is void

and is subject to collateral attack.”), citing Coe v. Erb,

, 271,

(1898).

But here, nothing in the record suggests that Lovelace acted fraudulently. I therefore follow

14 OHIO FIRST DISTRICT COURT OF APPEALS

the “firm and longstanding principle that final judgments are meant to be just that—final.” Id.

at ¶ 22. Because the state neither directly appealed from the initial expungement order nor

moved for relief from judgment under Civ.R. 60(B), I must respectfully dissent.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

15