State v. M.S.

[Cite as State v. M.S., 2013-Ohio-828.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98892
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
M.S.
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-416852
BEFORE: McCormack, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: March 7, 2013
ATTORNEY FOR APPELLANT
Aaron T. Baker
Aaron T. Baker Co., L.P.A.
38109 Euclid Avenue
Willoughby, OH 44094
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, M.S., appeals from a judgment of
the trial court that denied her application to expunge her criminal record. For the
following reasons, we reverse and remand to the trial court.
{¶2} In 2002, M.S. pleaded guilty to drug trafficking, a fourth degree felony, in
the Cuyahoga County Court of Common Pleas. She was sentenced to one year of
community control sanctions for the conviction. In 2005, she applied for an
expungement of the record of conviction. The state opposed the application, and the
trial court summarily denied it, without a hearing.
{¶3} On April 19, 2012, M.S. filed another application for expungement. The
court ordered an expungement report/investigation, but the docket does not reflect the
report was either completed or filed. The state again opposed her application, alleging
she was ineligible because she was not a first offender — the state alleged she had an
aggravated criminal trespass and assault conviction in Kent, Ohio in 1998, and had
previously received an expungement of other convictions from a court in Bedford, Ohio.
The state, however, did not present any documentation of its allegations for the trial
court’s review.
{¶4} On August 3, 2012, the trial court, without a hearing, again summarily
denied M.S.’s application for expungement.
{¶5} M.S. now appeals, raising one assignment of error. She contends the trial
court abused its discretion in denying her application for expungement because it failed to
hold a hearing before denying her application and also failed to liberally apply the factors
set forth in R.C. 2953.32(C) in her favor.
{¶6} We review a trial court’s decision to deny an application to seal a record of
conviction for an abuse of discretion. State v. Wright, 191 Ohio App.3d 647,
2010-Ohio-6259, 947 N.E.2d 246, ¶ 7 (3d Dist.). An abuse of discretion “implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶7} At the time M.S. filed her application, R.C. 2953.32(A)(1) provided that a
“first offender” could apply to seal a record of conviction. To be eligible, an applicant
must be a “first offender” as that term was defined in R.C. 2953.31(A).1 Moreover, the
offense must not be excepted by R.C. 2953.36, which excludes, among others, an
offender who has been convicted of an offense of violence. Additionally, the
application must not be filed until three years have expired if the conviction is a felony or
one year in the case of a misdemeanor.
We note the legislature revised the statute, and effective September 28, 2012, the statute now
1
refers to “eligible offender,” instead of “first offender.” Generally, an “eligible offender” means
someone who has no more than one felony conviction, no more than two different misdemeanor
convictions, or no more than one felony conviction and one misdemeanor conviction. R.C. 2953.31.
See also State v. Mooney, 10th Dist. No. 12AP-376, 2012-Ohio-5904, ¶ 7.
{¶8} Furthermore, R.C. 2953.32(B) states that upon the filing of an application to
seal the record, “the court shall set a date for a hearing and shall notify the prosecutor for
the case of the hearing on the application.” (Emphasis added.)
{¶9} Former R.C. 2953.32(C)(1) set forth factors the court must consider in an
application to seal the record of conviction. The court must (1) ascertain whether the
applicant is a first offender, (2) determine whether criminal proceedings are pending
against the applicant, (3) satisfy itself whether the applicant has been rehabilitated to the
court’s satisfaction, (4) consider any objections raised by the prosecutor, and (5) weigh
the interests of the applicant in having the records pertaining to his or her conviction
sealed against the legitimate needs, if any, of the government to maintain those records.
R.C. 2953.32(C)(1)(a)-(e). See also State v. M.D., 8th Dist. No. 97300,
2012-Ohio-1545, ¶ 6.
{¶10} “R.C. 2953.32 provides for an emphasis on the individual’s interest in
having the record sealed.” M.D. at ¶ 7, citing State v. Hilbert, 145 Ohio App.3d 824,
764 N.E.2d 1064 (8th Dist.2001). “The statute also acknowledges that the public’s
interest in being able to review the record is a relevant, legitimate governmental need
under the statute. Nonetheless, courts must liberally construe R.C. 2953.32 in favor of
promoting the individual’s interest in having the records sealed.” (Internal citations
omitted.) M.D. at ¶ 7.
{¶11} Here, the trial court denied M.S.’s application without a hearing in
contravention of the statutory requirement for a hearing. This court has repeatedly held
that a hearing is mandatory in an application for expungement, and a failure by the trial
court to hold a hearing is grounds for reversal. See State v. R.A., 8th Dist. Nos. 97550
and 97551, 2012-Ohio-2507, ¶ 6.2 Therefore, we must reverse and remand this matter to
the trial court for a hearing.
{¶12} The state concedes the trial court’s error on appeal. The assignment of
error is sustained.3
{¶13} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee 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 common
pleas court to carry this judgment into execution.
In a recent decision, State v. J.K., 8th Dist. No. 96574, 2011-Ohio-5675, a panel of this
2
court departed from our long line of cases and held that an expungement hearing is not necessary
where the state raises purely an issue of law when opposing the application for expungement. This
case is distinguishable from J.K., because in J.K., the applicant was convicted for arson, which was an
offense of violence excepted under R.C. 2953.36 for expungement, and therefore, the application
involved only a question of law. Here, we recognize that whether an applicant is considered a first
offender is an issue of law. State v. Oravec, 8th Dist. No. 96654, 2011-Ohio- 5831, ¶ 5.
However, there is a question of fact regarding what the alleged prior conviction was because the state
did not provide any documentation for the allegation.
Finally, we note that this is the second application filed by M.S. to seal her record of the 2002
3
conviction and she did not appeal the trial court’s denial of her first application. Her claim,
however, is not barred by res judicata. See State v. Minch, 8th Dist. No. 87820, 2007-Ohio-158(where no hearing was provided in the original motion to seal the record as required by the statute, res
judicata did not apply to bar a second request to seal the record).
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR