State v. Telshaw , 2016 Ohio 479 ( 2016 )

[Cite as State v. Telshaw, 2016-Ohio-479.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 15 MA 76
V. )
) OPINION
RANDALL TELSHAW, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 06CR834
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney Eric Norton
12434 Cedar Road
Cedar-Grandview Building, Suite 6
Cleveland Heights, Ohio 44106
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: February 5, 2016
[Cite as State v. Telshaw, 2016-Ohio-479.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, Randall Telshaw, appeals from a Mahoning
County Common Pleas Court judgment overruling his application to seal his criminal
record.
{¶2} This case was previously before this court on direct appeal in State v.
Telshaw, 195 Ohio App.3d 596, 2011-Ohio-3373, 961 N.E.2d 223 (7th Dist.). A
summary of the facts we previously set out follows.
{¶3} Appellant was the victim of a home invasion and armed robbery in June
2006. Id. at ¶2. He sustained gunshot wounds that required hospitalization. Id.
While he was hospitalized, police searched his house with consent of his friend who
was watching the house and feared the robbers had returned. Id. at ¶3-4. The police
found bomb-making materials including explosive chemicals, rockets, and a bazooka.
Id. at ¶2. On August 10, 2006, appellant was indicted on a charge of possession of
chemicals with intent to manufacture explosives in violation of R.C. 2909.28(A), a
fourth-degree felony. Id. He filed a motion to suppress the items found in his home.
The trial court denied the motion. Id. at ¶9. The case proceeded to a jury trial where
appellant was found guilty. Id. The court sentenced appellant to community-control
sanctions, fines, court costs, and restitution. Id. On appeal, this court affirmed
appellant’s conviction finding that appellant's friend had authority to consent to a
police search of the house for intruders and that the police were engaged in
community-caretaking functions when entering the premises and when they found
the bomb-making materials. Id. at ¶1.
{¶4} On March 27, 2012, the trial court found that appellant had complied
with the rules and regulations of supervision and was no longer in need of
supervision. Therefore, it terminated appellant’s supervision.
{¶5} On April 3, 2015, appellant filed an “application to expunge or seal
record of conviction.” He requested that the court order expungement or sealing of
his conviction records relating to the above conviction. In support, appellant asserted
that he has led a law-abiding life since his conviction and strictly complied with all of
the terms and conditions of his probation. He also noted that prior to this case, he
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had never been charged with or convicted of any criminal offenses. Appellant went
on to state that he was employed as a truck driver in 2012, but was laid off last year.
He stated that he has been seeking new employment and his conviction is an
impediment to becoming re-employed. Therefore, he asked that the court seal or
expunge the record of his conviction.
{¶6} Plaintiff-appellee, the State of Ohio, filed a response in opposition to
appellant’s application. It asserted the state’s interest in maintaining the record of
appellant’s conviction outweighed appellant’s interest in having it sealed.
{¶7} Without holding a hearing on appellant’s application, the trial court
entered a judgment entry overruling it.
{¶8} Appellant filed a timely notice of appeal on May 19, 2015. Appellant
now raises a single assignment of error.
{¶9} Appellant’s assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN
OVERRULING APPELLANT’S APPLICATION TO SEAL HIS
CRIMINAL RECORD WHEN IT FAILED TO (i) HOLD A
STATUTORILY-MANDATED HEARING AND (ii) MAKE ANY FINDING
THAT THE GOVERNMENT’S NEED TO MAINTAIN A RECORD OF
THE CONVICTION OUTWEIGHED APPELLANT’S INTEREST IN
HAVING THE RECORD SEALED.
{¶10} Appellant argues the trial court erred in failing to hold a hearing on his
application to seal his criminal record. He claims reversal is mandated when the
court fails to hold the hearing. He also points out that the court failed to request an
investigation by the probation department to determine whether he is eligible to have
his record sealed. Additionally, appellant argues the court erred in overruling the
application without any indication that it weighed the government’s perceived interest
to maintain a defendant’s record of conviction against the defendant’s interest in
having the conviction expunged.
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{¶11} The state has filed a confession of judgment. It concedes that the trial
court failed to hold the required expungement hearing pursuant to R.C. 2953.32(B).
{¶12} Pursuant to R.C. 2953.32(B), when an eligible offender files an
application to seal the record of his conviction,
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. The prosecutor shall specify
in the objection the reasons for believing a denial of the application is
justified. The court shall direct its regular probation officer, a state
probation officer, or the department of probation of the county in which
the applicant resides to make inquiries and written reports as the court
requires concerning the applicant.
(Emphasis added.) An eligible offender is “anyone who has been convicted of an
offense in this state or any other jurisdiction and who has not more than one felony
conviction, not more than two misdemeanor convictions, or not more than one felony
conviction and one misdemeanor conviction in this state or any other jurisdiction.”
R.C. 2953.31(A).
{¶13} Thus, pursuant to the statute, when an eligible offender files an
application to seal his record, a hearing on the application is mandatory. See, State
v. D.L., 2d Dist. No. 26394, 2015-Ohio-1664, ¶12 (“trial court errs when it fails to
conduct a hearing on an application for sealing a record of conviction, as required by
R.C. 2953.32(B)”); State v. M.S., 8th Dist. No. 98892, 2013-Ohio-828, ¶11 (“a
hearing is mandatory in an application for expungement, and a failure by the trial
court to hold a hearing is grounds for reversal”); State v. Wright, 191 Ohio App.3d
647, 2010-Ohio-6259, 947 N.E.2d 246 (3d Dist.) (“once an offender files an
application to seal his records under R.C. 2953.32, a hearing is mandatory”).
{¶14} Accordingly, appellant’s sole assignment of error has merit.
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{¶15} For the reasons stated above, the trial court’s judgment is hereby
reversed. This matter is remanded for the trial court to hold a hearing on appellant’s
application in accordance with R.C. 2953.32(B).
DeGenaro, J., concurs.
Robb, J., concurs.