Opinion
No. 105214
05-11-2017
STATE OF OHIO PLAINTIFF-APPELLEE v. M.L. DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Gregory B. Mathews Fusco, Mackey, Mathews & Gill, L.L.P. 655 Cooper Road Westerville, Ohio 43081-8962 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Diane Smilanick Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: VACATED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-11-549656-A BEFORE: S. Gallagher, J., Keough, A.J., and Celebrezze, J.
ATTORNEY FOR APPELLANT
Gregory B. Mathews
Fusco, Mackey, Mathews & Gill, L.L.P.
655 Cooper Road
Westerville, Ohio 43081-8962
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:
{¶1} M.L. appeals the trial court's decision that denied a motion to seal the record of his conviction, entered without the benefit of an evidentiary hearing. It is well settled that under R.C. 2953.32(B) the trial court is required to hold a hearing before resolving such a motion. State v. M.R., 8th Dist. Cuyahoga No. 104712, 2017-Ohio-973, ¶ 10, citing State v. Hamilton, 75 Ohio St.3d 636, 1996-Ohio-440, 665 N.E.2d 669; State v. Saltzer, 14 Ohio App.3d 394, 471 N.E.2d 872 (8th Dist.1984). A trial court must first hold a hearing because, generally, evidence is required in order to make the several determinations under R.C. 2953.32(C)(1)(a) through (e). Id., citing State v. J.K., 8th Dist. Cuyahoga No. 96574, 2011-Ohio-5675, ¶ 15, and State v. Haney, 10th Dist. Franklin No. 99AP-159, 1999 Ohio App. LEXIS 5524 (Nov. 23, 1999).
{¶2} The state concedes that error occurred. However, the error was not the trial court's alone. In the brief in opposition to M.L.'s motion, the state asked the trial court to either deny the motion outright or to set the matter for a hearing if the trial court was considering granting the request to seal the records. This appeal could have been avoided had the state presented the trial court with the applicable case law as it did in the appellate brief. Further, the state's sole argument against sealing the conviction was based on M.L.'s failure to pay $240 in supervision fees. Immediately after receiving the state's brief, M.L. paid the fee. Evidently, he had been unaware it was outstanding. The trial court denied M.L.'s motion several months later. M.L. is entitled to a hearing; therefore, we vacate the order denying his motion and remand for further proceedings consistent with R.C. 2953.32.
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 KATHLEEN ANN KEOUGH, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR