State v. Fowler

2012 Ohio 4352

Opinion

[Cite as State v. Fowler, 2012-Ohio-4352.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellant : Hon. Julie A. Edwards, J. : -vs- : : Case No. CT2012-CA-0004 CHASITY L. FOWLER : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR 2006-0203

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 12, 2012

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

RONALD WELCH CHASITY L. FOWLER PRO SE Assistant Prosecuting Attorney 5916 McMillan Circle 27 North Fifth Street Columbia, SC 29212 Zanesville, OH 43701 [Cite as State v. Fowler, 2012-Ohio-4352.]

Gwin, P.J.

{¶1} Plaintiff-appellant the State of Ohio appeals a judgment of the Court of

Common Pleas of Muskingum County, Ohio, which expunged the record of defendant-

appellee Chasity Fowler. Appellant assigns a single error to the trial court:

{¶2} “I. THE TRIAL COURT ERRED BY GRANTING THE EXPUNGMENT

REQUEST OF DEFENDANT/APPELLEE CHASITY L. FOWLER AS SHE WAS NOT A

FIRST TIME OFFENDER AND WAS OTHERWISE INELIGIBLE FOR EXPUNGMENT.”

{¶3} R.C. 2953.31 provides:

(A) “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.

*** Muskingum County, Case No. 2012-CA-4 3

{¶4} At the hearing on appellee’s motion, appellee, pro se, gave a statement as

to why she wished her conviction to be sealed. The State advised the court it was

checking to see if there were any prior offenses that might prevent the sealing of the

record. The State reminded the court if appellee had prior convictions she was not

eligible to have this conviction sealed. The court stated there were two other

misdemeanor convictions. Appellee admitted that was accurate, and the State

announced it had nothing further. The court found appellee is a first-time offender and

proceeded to grant the motion to seal the record. The State did not object.

{¶5} The court’s statement is the only indication appellee had other convictions.

The record is devoid of any evidence from which we could determine whether the two

misdemeanor counts to which the court alluded are, under the statutory definition, one

or two prior convictions, or are all to be considered a single conviction which the court

could properly seal.

{¶6} An appellate court reviewing a trial court's judgment presumes the

regularity of the trial court proceedings. A party asserting error in the trial court bears

the burden to demonstrate the error by reference to matters made part of the record.

Hartt v. Munobe, 67 Ohio St.3d 3, 7, 615 N.E.2d 617 (1993), citations deleted.

{¶7} Accordingly, this court cannot find the trial court erred in sealing appellee’s

record. The assignment of error is overruled. Muskingum County, Case No. 2012-CA-4 4

{¶8} For the foregoing reasons, the judgment of the Court of Common Pleas of

Muskingum County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JULIE A. EDWARDS WSG:clw 0824 [Cite as State v. Fowler, 2012-Ohio-4352.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : CHASITY L. FOWLER : : : Defendant-Appellee : CASE NO. 2012-CA-4

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

the Court of Common Pleas of Muskingum County, Ohio, is affirmed. Costs to the

State.

_________________________________ HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

STATE OF OHIO : : Plaintiff-Appellant : : : -vs- : JUDGMENT ENTRY : CHASITY L. FOWLER : : : Defendant-Appellee : CASE NO. 2012-CA-4

The court hereby orders the record of the within appeal sealed.

IT IS SO ORDERED.

_________________________________ HON. JULIE A. EDWARDS