State v. B.C. , 2014 Ohio 4091 ( 2014 )

[Cite as State v. B.C., 2014-Ohio-4091.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100984
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
B.C.
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-01-406540-A
BEFORE: Jones, J., Boyle, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: September 18, 2014
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Cuyahoga County Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment
entry granting defendant-appellee’s, B.C.,1 motion for expungement. We reverse and
remand.
{¶2} In July 2013, defendant-appellee, filed an application under R.C.
2953.32(A)(1) to have the record of conviction in this case sealed; a hearing was
requested.
{¶3} The trial court ordered an expungement report. The matter was never set for
a hearing. In a judgment entry dated December 9, 2013, the trial court granted
defendant-appellee’s unopposed motion. A revised judgment entry, also granting the
motion, was dated December 31, 2013. The state filed this appeal on February 12, 2014.
Defendant-appellee moved this court to dismiss this appeal for lack of jurisdiction on the
ground that the appeal was untimely. This court denied the motion.2
{¶4} In its sole assignment of error, the state contends that the trial court erred in
granting defendant-appellee’s motion without first holding a hearing.
Defendant-appellee contends that this appeal should be dismissed because the state failed
to file a timely appeal. The state responds that it did not receive the judgment granting
the expungement until January 22, 2014, and, therefore, its appeal was timely.
{¶5} This court already considered defendant-appellee’s position on the timeliness
of this appeal, and found it not well-taken. Thus, because this issue has been previously
1
It is this court’s policy to refer to defendants in matters involving expungements by their initials.
2
See motion no. 473840, denying defendant-appellee’s motion to dismiss.
resolved by this court, and it is not now presented again via a motion for reconsideration,
we decline to address it again. That said, we now consider the state’s assigned error.
{¶6} We generally review a trial court’s decision on an expungement motion for an
abuse of discretion. State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, ¶ 7.
An abuse of discretion occurs when a decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶7} R.C. 2953.32 governs expungement and provides in relevant part as follows:
(B) 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 the
hearing. The prosecutor shall specify in the objection the reasons for
believing a denial of the application is justified. * * *
(Emphasis added.) R.C. 2953.32(B).
{¶8} The state contends that defendant-appellee does not meet the requirements for
an eligible offender under R.C. 2953.31(A).3 The trial court did not set the matter for
hearing, nor give notice to the state. We find this to be an abuse of discretion. The
state’s assignment of error is therefore sustained.
{¶9} Judgment reversed; case remanded to the trial court with instructions to
conduct a hearing and make the necessary findings under R.C. 2953.32 on the record.
It is ordered that appellant recover from appellee costs herein taxed. The
court finds there were reasonable grounds for this appeal.
3
Defendant-appellee previously filed a motion for expungement in 2009, which the state opposed, and
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.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
the trial court denied.