In re M.C.H.

Decision Date20 June 2013
Docket NumberNo. 12–CA–131.,12–CA–131.
Citation994 N.E.2d 47
PartiesIn the Matter of M.C.H.
CourtOhio Court of Appeals

OPINION TEXT STARTS HERE

Greg Marx By: Lori Thomson, Lancanster, OH, for PlaintiffAppellee.

Sherrie Hustead, Millersport, OH, for DefendantAppellant.

W. SCOTT GWIN, P.J., WILLIAM B. HOFFMAN, J., and SHEILA G. FARMER, J.

OPINION

GWIN, P.J.

{¶ 1} Appellant M.C.H.1 a minor, appeals the October 26, 2012 judgment of the Court of Common Pleas, Juvenile Division, Fairfield County, Ohio denying his motion to Seal/Expunge Juvenile Records.

Facts and Procedural History

{¶ 2} On June 25, 2010 in Case Number 2010–TR–0415 M.C.H. was cited by the Millersport Police Department for Failure to Yield at an intersection while riding his bicycle.2

{¶ 3} On June 28, 2010, a delinquency complaint was filed in case number 2010–DL–280 charging M.C.H. with one count of Assault, in violation of R.C. 2903.13, one count of Sexual Imposition, in violation of R.C. 2907.06, one count of Menacing, in violation of R.C. 2903.22, and one count of Disorderly Conduct, in violation of 2917.11.3

{¶ 4} By Judgment Entry filed July 30, 2010, the trial court granted the state leave to nolle prosequi the traffic case because the parties had reached an agreement and a delinquency case was pending.

{¶ 5} By Judgment Entry filed November 8, 2010 in the delinquency case, the trial court granted the state's motion to dismiss due to “inability to proceed.”

{¶ 6} On September 27, 2012, M.C.H. filed a Motion to Seal Juvenile Records,” pursuant to R.C. 2151.356(B)(1)(d) in both the traffic and the delinquency cases.

{¶ 7} On October 26, 2012, the trial court filed entries in each case denying the motions because M.C.H. “has not shown to be rehabilitated to a satisfactory degree.”

Assignments of Error

{¶ 8} M.C.H. raises one assignment of error,

{¶ 9} “I. THE JUVENILE COURTS ORDER DENYING THE SEALING/EXPUNGEMENT OF THE JUVENILES DISMISSED DELINQUENCY OFFENSES AND THE NOLLE. PROSEQUI TRAFFIC OFFENSE IS CONTRARY TO THE PLAIN WORDING OF O.R.C. 2151.356(B)(1)(d).” 4

Analysis

{¶ 10} No transcript of any court proceedings have been filed in the case at bar. Because the transcript of the proceeds have not been not filed with the trial court or made a part of the record for purposes of appeal, it does not constitute part of the record on appeal. See App.R. 9(A).

“When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385 (1980). If a partial record does not conclusively support the trial court's decision, it is presumed that the omitted portion provides the necessary support.

Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506 (1993); In re Adoption of Foster, 22 Ohio App.3d 129, 131, 489 N.E.2d 1070, 1072–1073 (1985).

{¶ 11} In State v. Hooks, 92 Ohio St.3d 83, 748 N.E.2d 528 (2001), the Supreme Court noted: “a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.” See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978). It is also a longstanding rule “that the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227 (1963). In the case In re LoDico, this Court observed,

“A trial court may not take judicial notice of prior proceedings in the court, but may only take judicial notice of prior proceedings in the immediate case. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330.See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53, 701 N.E.2d 32;In re Knotts (1996), 109 Ohio App.3d 267, 271, 671 N.E.2d 1357;Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, 660 N.E.2d 520;State v. Velez (1991), 72 Ohio App.3d 836, 838, 596 N.E.2d 545;Kiester v. Ehler (1964), 9 Ohio App.2d 52, 56, 222 N.E.2d 782;Burke v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776. The rationale for this holding is that, if a trial court takes notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court. Dues, supra, at 53, 701 N.E.2d 32.See Deli Table, Inc. v. Great Lakes Mall (Dec. 31, 1996), Lake App. No. 95–L–012 [1996 WL 761984], at 13;Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 379, 680 N.E.2d 1279.”5th Dist. No. 2003–CA–00446, 2005-Ohio-172, 2005 WL 100953, ¶ 94, quoting State v. Blaine, 4th Dist No. 03CA9, 2004-Ohio-1241, 2004 WL 524667, ¶ 19.

{¶ 12} Accordingly, the state's material and factual assertions contained in its brief in this Court concerning other juvenile case involving M.C.H. may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7,quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16.

{¶ 13} Therefore, we have disregarded facts in either party's brief that are outside of the record.

{¶ 14} In his sole assignment of error, M.C.H. argues that the trial court erred by not sealing his juvenile records.

{¶ 15} It is well settled that [e]xpungement is an act of grace created by the state,’ and so is a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). The statutory law in effect at the time of the filing of an application to seal a record of conviction is controlling. State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph 2 of the syllabus; State v. Moorehart, 5th Dist. No. 2008–CA–0072, 2009-Ohio-2844, 2009 WL 1677840, ¶ 14.

{¶ 16} R.C. 2156.356 sets forth the procedure to apply for the sealing of records in juvenile cases. In 2012, the statute provided in relevant part,

(B)(1) The juvenile court shall promptly order the immediate sealing of records pertaining to a juvenile in any of the following circumstances:

(a) If the court receives a record from a public office or agency under division (B)(2) of this section;

(b) If a person was brought before or referred to the court for allegedly committing a delinquent or unruly act and the case was resolved without the filing of a complaint against the person with respect to that act pursuant to section 2151.27 of the Revised Code;

(c) If a person was charged with violating division (E)(1) of section 4301.69 of the Revised Code and the person has successfully completed a diversion program under division (E)(2)(a) of section 4301.69 of the Revised Code with respect to that charge;

(d) If a complaint was filed against a person alleging that the person was a delinquent child, an unruly child, or a juvenile traffic offender and the court dismisses the complaint after a trial on the merits of the case or finds the person not to be a delinquent child, an unruly child, or a juvenile traffic offender;

(e) Notwithstanding division (C) of this section and subject to section 2151.358 of the Revised Code, if a person has been adjudicated an unruly child, that person has attained eighteen years of age, and the person is not under the jurisdiction of the court in relation to a complaint alleging the person to be a delinquent child.

{¶ 17} M.C.H. has alleged in the trial court as well as in this Court that he is entitled to have his record sealed pursuant to R.C. 2151.356(B)(1)(d) because the charges were dismissed or nolled.

{¶ 18} The primary purpose of the judiciary in the interpretation or construction of a statute is to give effect to the intention of the legislature, as gathered from the provisions enacted by application of well-settled rules of construction or interpretation. Henry v. Central National Bank, 16 Ohio St.2d 16, 20, 242 N.E.2d 342 (1968), quoting State ex rel. Shaker Heights Public Library v. Main, 83 Ohio App. 415, 80 N.E.2d 261 (8th Dist.1948). It is a cardinal rule that a court must first look to the language itself to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). If that inquiry reveals that the statute conveys a meaning that is clear, unequivocal and definite, at that point, the interpretive effort is at an end, and the statute must be applied accordingly. Id. at 105–106, 304 N.E.2d 378. In determining legislative intent, it is the duty of the court to give effect to the words used, not to delete words used or to insert words not used. Columbus–Suburban Coach Lines v. Public Utilities Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). See also, In re: McClanahan, 5th Dist. No. 2004AP010004, 2004-Ohio-4113, 2004 WL 1758408, ¶ 16.

{¶ 19} R.C. 1.42 states: “1.42 Common and technical usage. Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”

{¶ 20} R.C. 2151.356(B)(1)(d) clearly states that to be eligible for sealing of the records, a dismissal must occur “after a trial on the merits of the case.” In the case at bar no trial took place. See,Juv. R. 28(F)(1). The effect of a dismissal or a nolle has been explained,

The entry of a nolle prosequi restores an accused to the status of a person against whom charges have never been filed, Columbus v. Stires (1967), 9 Ohio App.2d 315, 317 .Sander v. State of Ohio (S.D.Ohio, 1973), 365 F.Supp. 1251, 1253, holds that no jeopardy attaches where a nolle prosequi...

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2 cases
  • State v. Lofton
    • United States
    • Ohio Court of Appeals
    • May 24, 2019
  • In re C.M., 108158
    • United States
    • Ohio Court of Appeals
    • June 20, 2019
    ...2152.356(C)(2)(d)(iii) has been interpreted as requiring a hearing when the state objects to the sealing of juvenile records. In re M.C.H., 994 N.E.2d 47, 2013-Ohio-2649, ¶ 25 (5th Dist.). Here, the state objected to C.M.'s application to seal his records in case number DL11118577, but no h......

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