Opinion
No. 106924
06-07-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. E.C.H. DEFENDANT-APPELLANT
ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender Cullen Sweeney Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: REVERSED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-582230-A BEFORE: Kilbane, P.J., Stewart, J., and Boyle, J.
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
Diane Smilanick
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, E.C.H., appeals from the trial court's denial of his motion to seal his criminal record on the grounds that the trial court did not hold a hearing.
{¶2} The state concedes the error, and our review of the record substantiates the error _ the trial court failed to hold a hearing as required by R.C. 2953.52(B)(1). As a result, we reverse the trial court's denial of E.C.H.'s motion to seal, and we remand the matter for hearing. State v. Delgado, 8th Dist. Cuyahoga No. 102653, 2015-Ohio-5256, ¶ 17. Accordingly, the sole assignment of error is sustained.
The parties rely on R.C. 2953.32(B), which governs sealing of a record of conviction, for the proposition that the trial court was required to hold a hearing. However, E.C.H. moved to seal the record of charges dismissed without prejudice. Therefore, R.C. 2953.52 applies because E.C.H. has no conviction in this case. State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 27. R.C. 2953.52(B)(1) provides in relevant part:
Upon the filing of an application pursuant to division (A) of 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 the hearing.
{¶3} Judgment is reversed and the matter is remanded with instructions to the trial court to schedule an expungement hearing.
It is ordered that appellant recover of 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. /s/_________
MARY EILEEN KILBANE, PRESIDING JUDGE MELODY J. STEWART, J., and
MARY J. BOYLE, J., CONCUR
(Emphases added.)