[Cite as State v. McBride,

.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : MICHAEL C. MCBRIDE : Case No. 13-COA-004 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 06-CR-B-00626AB

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 7, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

THOMAS R. GILMAN MICHAEL C. MCBRIDE, Pro Se 133 South Market Street 427 East Main Street Loudonville, OH 44842 Loudonville, OH 44842 Ashland County, Case No. 13-COA-004 2

Farmer, P.J.

{¶1} On May 22, 2006, appellant, Michael McBride, was charged with

obstructing official business in violation of R.C. 2921.31 and resisting arrest in violation

of R.C. 2921.33. Appellant was found guilty of the charges on September 20, 2006,

and was subsequently sentenced to 180 days in jail with 120 days suspended.

{¶2} On July 16, 2012, appellant filed a motion to seal record of conviction. A

hearing was held on January 11, 2013. At the conclusion of the hearing, the trial court

denied the motion.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE LOWER COURT ERRORED (SIC) AS A MATTER OF LAW BY

NOT GRANTING A SEALING OF RECORD UNDER R.C. 2953.32."

II

{¶5} "THE LOWER COURT ERRORED (SIC) AS A RESULT OF ABUSING

ITS DISCRETION BY NOT GRANTING A SEALING OF RECORD."

III

{¶6} "THE LOWER COURT ERRORED (SIC) AS A MATTER OF LAW BY

NOT GRANTING A SEALING OF RECORD UNDER THE OHIO CONSTITUTION 1.09,

AND THE EIGHTH AMENDMENT OF THE U. S. CONSTITUTION."

{¶7} At the outset, we note appellant filed his notice of appeal on January 24,

2013 upon the trial court's oral denial at the conclusion of the hearing held on January

11, 2013. Also on January 24, 2013, appellant filed a motion to seal record pending Ashland County, Case No. 13-COA-004 3

outcome of state and federal appeals. On January 29, 2013, the trial court filed a

judgment entry stating its reasons for denying appellant's motion to seal record of

conviction, and denying appellant's motion to seal record pending his appeals. Because

appellant filed his notice of appeal prior to the trial court entering its reasons for denying

the motion to seal record of conviction, we shall treat appellant's notice of appeal as a

premature notice of appeal pursuant to App.R. 4(C) which states: "A notice of appeal

filed after the announcement of a decision, order, or sentence but before entry of the

judgment or order that begins the running of the appeal time period is treated as filed

immediately after the entry."

I, II, III

{¶8} Appellant claims the trial court erred in not sealing his record. We

disagree.

{¶9} R.C. 2953.32 governs sealing of record of eligible offender. Subsection

(A)(1) states the following:

Except as provided in section 2953.61 of the Revised Code, an

eligible 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. Ashland County, Case No. 13-COA-004 4

{¶10} An "eligible offender" is defined in R.C. 2953.31(A) as follows:

"Eligible offender" means anyone who has been convicted of an offense in

this state or any other jurisdiction and who has not more than one felony

conviction, not more than two misdemeanor convictions if the convictions are not

of the same offense, or not more than one felony conviction and one

misdemeanor conviction 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.

{¶11} As our brethren from the Tenth District explained in Koehler v. State, 10th

Dist. Franklin No. 07AP-913,

, ¶ 13:

Before ruling on the application, the trial court must (1) determine

whether the applicant is a first offender, (2) determine whether criminal Ashland County, Case No. 13-COA-004 5

proceedings are pending against the applicant, (3) determine whether the

applicant has been rehabilitated to the satisfaction of the court if the court

finds the applicant to be a first offender, (4) determine if the prosecutor

filed an objection in accordance with R.C. 2953.32(B) and consider the

prosecutor's reasons for the objection, and (5) weigh the applicant's

interests in having the records sealed against the legitimate needs, if any,

of the government to maintain the records.

{¶12} In its judgment entry filed January 29, 2013, the trial court stated the

following:

Defendant previously filed a Motion seeking sealing of his

convictions pursuant to Section 2953.32 of the Ohio Revised Code. The

Court conducted a hearing on January 11, 2013. Defendant was present

and presented evidence in support of his Motion. The State opposed the

Motion. The Court found that the defendant was not an eligible offender

due to his multiple convictions in Ashland and Franklin Counties. The

Court also found that the State's interest in maintaining the records out-

weighed Defendant's interest in having them sealed. This finding was

based in large part on the violent nature of the offenses.

{¶13} The record demonstrates that appellant was convicted in Ashland County

of resisting arrest and obstructing official business in September of 2006. The state Ashland County, Case No. 13-COA-004 6

conceded that the two convictions qualified as one conviction. T. at 9. Appellant was

also convicted in Franklin County on one count of criminal mischief (false alarm charge)

and two counts of violating a protection order in December of 2006. T. at 10-11. The

criminal mischief offense occurred on November 23, 2005, and the protection order

violations occurred between February 25, and March 2, 2006.

The trial court

concluded the Ashland County convictions constituted one conviction, and the Franklin

County convictions constituted two convictions, stating the following (T. at 15-16):

So, you know, I do agree that the incidents in Ashland County

arose out of one course of conduct and should be considered one offense

out of the statute.

***

But I find that based on the facts that you are not a two-time

offender, that your false alarm charge that resulted in the criminal mischief

is a separate course of conduct from that which resulted in the violation of

protection order convictions. Even though the pleas were entered on the

same date, the offenses occurred on different dates.

Therefore I'm finding that those should not be combined and

treated as one offense.

{¶14} Appellant argues the Franklin County convictions "should be considered

one case because it was a simultaneous agreement on that date indicated." T. at 8.

The fact that appellant pled to the three Franklin County charges on the same date is Ashland County, Case No. 13-COA-004 7

irrelevant under R.C. 2953.31. The determining factors are when the crimes were

committed and whether there was a connection between the crimes.

{¶15} Because the Franklin County convictions did not occur at the same time,

did not involve an ongoing course of conduct, and were separated by more than three

months, they constitute two separate convictions. The two separate convictions,

coupled with the Ashland County conviction, equals three convictions, making appellant

an ineligible offender under R.C. 2953.31(A). Since appellant did not qualify as an

eligible offender under the statute, the trial court could not use its discretion to seal the

record. State v. Lovelace, 1st Dist. Hamilton No. C-110715,

. Any

decision involving discretion was superfluous.

{¶16} The trial court's denial of appellant's motion to seal record of conviction is

consistent with R.C. 2953 31, et seq., and does not violate the Ohio Constitution, Article

I, Section 9, and the Eighth Amendment to the U.S. Constitution.

{¶17} Upon review, we find the trial court did not err in denying appellant's

motion to seal record of conviction.

{¶18} Assignments of Error I, II, and II are denied. Ashland County, Case No. 13-COA-004 8

{¶19} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.

_______________________________ Hon. Sheila G. Farmer

_______________________________ Hon. John W. Wise

_______________________________ Hon. Patricia A. Delaney

SGF/sg 719 [Cite as State v. McBride,

.]

IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL C. MCBRIDE : : Defendant-Appellant : CASE NO. 13-COA-004

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio is affirmed. Costs to

appellant.

_______________________________ Hon. Sheila G. Farmer

______________________________ Hon. John W. Wise

_______________________________ Hon. Patricia A. Delaney