The Akron Legal News

Appeals court rules felony theft conviction will remain on man’s record

ANNIE YAMSON
Special to the Legal News
Published: August 21, 2015

In the 9th District Court of Appeals, a panel of three judges recently ruled that a Lorain County man was not eligible to have a felony theft conviction expunged from his record.

The ruling affirmed the judgment of the Lorain County Court of Common Pleas where, in 1996, Ronald Shelton was convicted on one count of fourth-degree felony theft.

The trial court imposed a suspended jail term of six months combined with a two-year period of probation.

Shelton was discharged from his probation in 2000.

On Aug. 1, 2014, Shelton filed a motion to expunge his conviction.

He underwent an interview with the probation department and the trial court conducted hearing on the matter but did not receive any testimony or evidence.

The trial judge issued an oral denial of Shelton’s motion on the ground that he was not eligible for expungement according to the Revised Code.

“There have been some changes recently that have made it a little more liberal,” the trial court said at the hearing. “It used to be that you had to be strictly a first offender, but now you can have a misdemeanor conviction, in fact, two misdemeanor convictions, and still get your felony record expunged.”

The trial court then made note of the fact that Shelton had two theft convictions that post-dated the offense he was wanted expunged and had misdemeanor traffic offenses.

“That being the case, you have at least three misdemeanor convictions separate and apart from the felony conviction in this case,” the trial court stated, “therefore, you are not eligible for an expungement at this time.”

In his appeal from that judgment, Shelton argued that the trial court erred in denying his request for expungement because it incorrectly found that he had at least three misdemeanor convictions.

“Due to deficiencies in the record, we cannot assess the merits of Shelton’s argument, must presume regularity in the trial court’s proceedings and consequently affirm the trial court’s judgment,” Judge Julie Schafer wrote in the opinion that she authored on behalf of the court of appeals.

Reviewing under the law that existed at the time that Shelton filed his motion in the trial court, the appellate panel noted that a trial court is required to first determine whether a movant is eligible before granting an expungement.

“Neither the United States Constitution nor the Ohio Constitution endows one convicted of a crime with a substantive right to have the record of a conviction expunged,” Schafer wrote, citing 1996’s State v. Hamilton. “Instead, expungement is an act of grace created by the state.”

The appellate panel held that the trial court relied on the report produced by the probation department when it found Shelton ineligible.

“But this report is not contained in the record,” Schafer wrote. “It is the appellant’s duty to transmit the complete record to this court.”

If an appellant fails to satisfy that duty, a court of appeals is bound by law to presume regularity in the trial court proceedings.

“We must follow this principle here since without the probation department’s report, we are unable to determine the facts surrounding Shelton’s other convictions and consider whether the trial court erred in its application of those facts to the statutory requirements for expungement,” Schafer concluded.

Schafer ended by stating that the court of appeals would not “second-guess” the trial court’s judgment and affirming its denial of Shelton’s motion.

Presiding Judge Jennifer Hensal and Judge Beth Whitmore concurred.

The case is cited State v. Shelton, 2015-Ohio-2982.

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