State v. S.E.

• Decision Date: 12 April 2018
• Docket Number: No. 106367,106367
• Citation: 2018 Ohio 1414
• Parties: STATE OF OHIO PLAINTIFF-APPELLANT v. S.E. DEFENDANT-APPELLEE
• Court: Ohio Court of Appeals

2018 Ohio 1414

STATE OF OHIO PLAINTIFF-APPELLANT v. S.E. DEFENDANT-APPELLEE

No. 106367

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

April 12, 2018

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 expungementhearing 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...