State v. Moulder , 2013 Ohio 1036 ( 2013 )

[Cite as State v. Moulder, 2013-Ohio-1036.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98661
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KEVIN MOULDER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-518387
BEFORE: Celebrezze, P.J., Jones, J., and Keough, J.
RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Adrienne Cavender
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant, Kevin Moulder, seeks review of the denial of his motion to
expunge his 2009 attempted assault conviction. Appellant argues that the trial court
failed to liberally apply the expungement statute in his favor and that the court erred in
failing to hold a hearing on his motion. Finding merit to his second assignment of error,
we reverse and remand for a hearing.
I. Factual and Procedural History
{¶2} Appellant was indicted by a grand jury on December 2, 2008, on charges of
assault in violation of R.C. 2903.13, and kidnapping in violation of R.C. 2905.01(A)(4).
On April 13, 2009, appellant pled guilty to second-degree-misdemeanor attempted assault
in violation of R.C. 2903.13(B). He was sentenced to a suspended 90-day jail term, a
$750 fine, and six months of probation.
{¶3} On October 18, 2010, after completing his probation without incident, he
applied to have the records of his conviction sealed pursuant to R.C. 2953.32(A). The
state filed a brief in opposition to his application, and the trial court denied it without
holding a hearing.
{¶4} On October 7, 2011, appellant filed another application. Again, the state
filed a brief opposing expungement. The trial court denied this application on June 8,
2012, without holding a hearing. Appellant then filed an appeal from that denial raising
two assignments of error:
I. The trial court abused its discretion when it denied [appellant’s]
application for expungement.
II. The trial court erred and denied [appellant] due process of law when it
failed to set a hearing pursuant to R.C. 2953.52(B)
II. Law and Analysis
{¶5} Because appellant’s second assignment of error is determinative, it will be
addressed first. Appellant claims that the trial court erred when it did not hold a hearing
before denying his application to seal the records of his conviction. The expungement
statutes, R.C. 2953.31 et seq.,1 are to be liberally construed in favor of the applicant to
promote the legislative purpose of allowing expungements. State v. Boddie, 170 Ohio
App.3d 590, 2007-Ohio-626, 868 N.E.2d 699 (8th Dist.). The trial court must weigh the
interests of the applicant in having the records sealed against the interests the state
possesses in maintaining those records open to the public. Cleveland v. Cooper-Hill, 8th
Dist. No. 84164, 2004-Ohio-6920. Alleged errors that a trial court makes in regard to
expungement are reviewed for an abuse of discretion. Id. An abuse of discretion implies
that a trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶6} According to recent developments in case law in this jurisdiction, where the
state raises a determinative question of law2 in its brief in opposition to expungement that
Former R.C. 2953.31 and 2953.32 apply to this case. The legislature
1
amended these statutes effective September 28, 2012.
2 Such issues would include whether the offense was one prohibited by
statute from being expunged or whether the applicant was a first offender where
can be decided without a hearing, a trial court could, in its discretion, deny the motion
without a hearing. State v. J.K., 8th Dist. No. 96574, 2011-Ohio-5675, ¶ 16. But see
State v. Hann, 173 Ohio App.3d 716, 2007-Ohio-6201, 880 N.E.2d 148, ¶ 9 (8th Dist.)
(holding a hearing is mandatory).
{¶7} However, when, as here, the state raises only issues regarding its interest in
maintaining records of conviction based on the nature of the offense, a trial court abuses
its discretion when it fails to hold a hearing on an application made pursuant to R.C.
2953.31. State v. Houston, 8th Dist. No. 80015, 2002-Ohio-329; State v. Salim, 8th Dist.
No. 82204, 2003-Ohio-2024. This is because former R.C. 2953.32(B) requires a hearing
on such a motion, stating, “[u]pon 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.” This language indicates a hearing is mandatory. The state concedes
this error.3
{¶8} Therefore, the denial of appellant’s application for expungement without
holding a hearing constitutes an abuse of the trial court’s discretion. Appellant’s second
assignment of error is sustained. This holding renders appellant’s first assignment of
error moot.
III. Conclusion
the state had submitted proof of convictions precluding expungement.
3 Additionally, appellant’s successive application does not mean
expungement is barred by res judicata because no hearing was held on the first
application either. State v. Minch, 8th Dist. No. 87820, 2007-Ohio-158.
{¶9} The denial of appellant’s application for expungement without a necessary
hearing constitutes an abuse of the trial court’s discretion. A hearing is mandatory.
{¶10} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR