Opinion
No. 106367
04-12-2018
STATE OF OHIO PLAINTIFF-APPELLANT v. S.E. DEFENDANT-APPELLEE
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor By: Diane Smilanick Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Mark A. Stanton Cuyahoga County Public Defender By: Jeffrey Gamso Assistant Public Defender Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-07-499065-A BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Laster Mays, J.
ATTORNEYS FOR APPELLANT
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Mark A. Stanton
Cuyahoga County Public Defender
By: Jeffrey Gamso
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} Appellant, the state of Ohio, appeals the decision of the trial court that granted the application for sealing the record of conviction of appellee, S.E. Appellee has conceded that the trial court erred in failing to hold an expungement hearing. Upon review, we reverse the decision of the trial court and remand the matter for the trial court to conduct an expungement hearing.
{¶2} On February 13, 2008, S.E. pleaded guilty to several counts of an indictment. The other counts did not apply to her. Thereafter, on March 14, 2008, the trial court sentenced her to two years of community control sanctions with conditions and ordered her to pay restitution in the amount of $7,415 to Third Federal Savings Bank. On December 16, 2008, the trial court found appellant to be in violation of community control sanctions for failure to pay the full restitution ordered by the court. The community control sanctions were terminated upon the signing of a cognovit note for the entire balance of the restitution. The court found that all costs and fees had been paid through community work service.
{¶3} On August 25, 2015, S.E., acting pro se, filed an application for sealing of the record of conviction pursuant to R.C. 2953.32(A)(1) and requested a hearing. The trial court ordered an expungement report/investigation. The state filed a brief in opposition to S.E.'s application, and argued that S.E. was not an eligible offender because she still owed restitution.
{¶4} The trial court set an expungement hearing for February 24, 2016. The parties both indicate that no hearing was held, and the record provides no indication that a formal hearing was held. On September 20, 2017, the trial court issued an order granting S.E.'s application.
{¶5} The state has appealed the trial court's decision.
{¶6} Under its first assignment of error, the state argues that the trial court erred in granting S.E.'s application for sealing of the record without holding an expungement hearing. Appellee concedes the error.
{¶7} R.C. 2953.32(B) requires a trial court to hold a hearing on an application to seal the record. The statute states in pertinent part:
Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for hearing.R.C. 2953.32(B).
{¶8} The hearing requirement "is mandatory," and a trial court must conduct a formal hearing on each application for expungement. State v. Saltzer, 14 Ohio App.3d 394, 395, 471 N.E.2d 872 (8th Dist.1984); State v. M.R., 2017-Ohio-973, 86 N.E.3d 641, ¶ 10 (8th Dist.); see also State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 27-29. "[T]he essential purpose of an expungement hearing is to provide a reviewing court with all relevant information bearing on an applicant's eligibility for expungement." State v. Hamilton, 75 Ohio St.3d 636, 640-641, 665 N.E.2d 669 (1996) (holding that "a prosecutor's participation in a hearing on an application to seal the record of a conviction is not limited to issues specified by the prosecutor in a written objection filed pursuant to R.C. 2953.32(B).")
{¶9} Accordingly, the judgment is reversed and the cause remanded with instructions to the trial court to schedule a hearing on the matter, provide notice to all parties, and hold the hearing to determine whether expungement is proper in this case. The state's first assignment of error is sustained.
{¶10} The state's second assignment of error claims the trial court erred in granting the application because, according to the state, S.E. had not paid all court-ordered restitution and therefore was not eligible for sealing under R.C. 2953.32. In support of its argument, the state cites State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, ¶ 2 (finding a court may not seal an offender's record when offender still owes restitution); and State v. Wainwright, 8th Dist. Cuyahoga No. 60491, 1991 Ohio App. LEXIS 1835 (Apr. 25, 1991) (finding an offender was not eligible for the sealing of his record when the restitution condition had not been fulfilled); see also State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 Ohio App. LEXIS 2424 (May 31, 2001) (finding an offender had not been finally discharged for purposes of R.C. 2953.32 when the cognovit note for the amount of restitution had not been paid in full); State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (8th Dist.1999) (finding same).
{¶11} Because the trial court did not conduct a formal hearing, the record has not been fully developed on this issue. In light of our resolution of the state's first assignment of error, the second assignment of error is deemed moot.
{¶12} Judgment reversed; case remanded.
It is ordered that appellant recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SEAN C. GALLAGHER, JUDGE EILEEN A. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR