[Cite as State v. Grillo,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 14CA51 TIMOTHY D. GRILLO : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 1987 CR0262

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: January 26, 2015

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

JILL COCHRAN JAMES MAYER III Assistant Prosecuting Attorney 34 South Park Street 38 South Park Street Mansfield, OH 44902 Mansfield, OH 44902 [Cite as State v. Grillo,

.]

Gwin, J.,

{¶1} Appellant the State of Ohio appeals the May 16, 2014 judgment of the

Court of Common Pleas, Richland County, Ohio granting appellee Timothy D. Grillo’s

[“Grillo”] motion to Seal/Expunge his record.

Facts and Procedural History

{¶2} On September 14, 1987, Grillo entered a plea of No Contest to one count

of Theft of an Automobile, a felony of the third degree. On December 7, 1987, he was

sentenced to three years of probation with a one year suspended prison sentence. Grillo

successfully completed his probation.

{¶3} On July 21, 2009, Grillo filed an application to have the record of this

conviction sealed. The state filed a response on July 27, 2009, objecting to the sealing of

Grillo’s record because he was not a first time offender under the statute as he had

subsequent convictions for a charge of Reckless Operation, a reduction from the charge

of OVI, in Mansfield Municipal case number 92-TRC-4163, and for Driving Under

Suspension in Ontario Mayor's Court case number 91-TRD-91301.

{¶4} The trial court held a hearing on September 21, 2009 and found Grillo had

at least three disqualifying offenses: a 1986 theft conviction, a 1991 criminal trespass

conviction, and a 1992 reckless operation conviction. During the 2009 hearing, Grillo

acknowledged these prior convictions but argued that in exceptional circumstances the

trial court could grant a sealing to a non-first time offender. Ultimately, though, Grillo

voluntarily withdrew his motion in order to re-file at a later date with the exceptional

circumstances argument. Richland County, Case No. 14CA51 3

{¶5} On April 30, 2010, Grillo filed another application to seal the record of his

felony conviction, arguing that in exceptional circumstances the trial court could grant the

sealing of a record even if the applicant was not a first-time offender as outlined in the

statute. The state objected to this application, again arguing that Grillo was not an

eligible offender due to his previous misdemeanor convictions. The trial court held a

hearing on this application on June 14, 2010. After the presentation of evidence, the

court held that it had no discretion to seal the record under the statute and denied the

application to seal due to Grillo not being a first time offender.

{¶6} In 2012, the Ohio Legislature amended the language of R.C. 2953.32 to

expand the term "first time offender" to "eligible offender." To qualify as a "first time

offender" under the prior version of R.C. 2953.32, an individual could not have more than

one conviction of any kind on his or her record. Relevant to the case at bar, the Ohio

Legislature broadened the definition of an "eligible offender," allowing persons with one

felony and one misdemeanor to be eligible for a sealing of the record. This statute went

into effect on September 28, 2012.

{¶7} On December 5, 2013, Grillo filed a motion in Mansfield Municipal Court

Case No. 91-CRB-3133 to withdraw his 1991 uncounseled no-contest plea to criminal

trespassing, on the basis that it had been made without the assistance of counsel. This

motion as well as a proposed judgment entry was filed with the court and served upon

the Mansfield Law Director. The Assistant Mansfield Law Director approved the

judgment entry, and the court granted the motion to withdraw Grillo's uncounseled plea.

The Law Director subsequently nolled the charge on January 16, 2014. Richland County, Case No. 14CA51 4

{¶8} On February 18, 2014, Grillo filed a third application to seal the record of

his felony charge based on the change in the law that broadened the eligibility

requirements for sealing a record, and his nolled misdemeanor charge. The state filed an

objection to this application arguing that Grillo was not an "eligible offender" due to his

prior convictions of theft, reckless operation, and drag racing. The state objected to

Grillo’s conduct in re-opening a 23-year-old municipal court conviction and getting it

nolled in an attempt to qualify as an "eligible offender" under the new statute. The state

also argued that the criminal trespassing charge, which had been nolled in Mansfield

Municipal Court, should be counted against Grillo. Finally, the state argued in a

supplemental motion that the state's need to preserve the record of the conviction

outweighed the benefit to Grillo. The state further argued that Grillo was barred by res

judicata from having his application considered since he had previously filed an

application, had a hearing and had been denied. No appeal had ever been made of that

denial.

{¶9} On March 31, 2014, the trial court held a hearing on Grillo’s application to

seal the record of his conviction. During this hearing, the state argued that Grillo was not

eligible due to a 1986 drag racing conviction. Grillo argued that the charge was reduced

to speeding during plea negotiations and his conviction was for speeding, not drag

racing. The state was unable to produce any official judgment entry or proof of conviction

to rebut Grillo's contentions. Instead, the state relied on a printout of a docketing sheet

that only showed that there was a change of plea in the case.

{¶10} The trial court determined that the nolled criminal trespassing charge

should not be considered for the purposes of determining eligibility. However, the trial Richland County, Case No. 14CA51 5

court placed the burden of proving that the drag racing charge was reduced to a lesser

charge on Grillo. The court informed both Grillo and the state that if Grillo was able to

provide proof to the court that the drag racing conviction had been reduced, the court

would grant the application to seal. If Grillo could not meet this burden, the court would

consider Grillo ineligible, and Grillo’s application would be denied.

{¶11} Grillo contends that he was able to produce a certified copy of the court's

docket sheet showing that the drag racing charge against him had been amended to

speeding, and a fine of $75 and court costs had been imposed.

{¶12} On May 16, 2014, the trial court filed a judgment entry granting Grillo's

application to seal his record.

Assignments of Error

{¶13} The state raises three assignments of error,

{¶14} “I. THE TRIAL COURT SHOULD NOT HAVE CONSIDERED THE

APPELLEE'S APPLICATION TO SEAL AS THE APPELLEE WAS BARRED BY RES

JUDICATA FROM REAPPLYING.

{¶15} “II. THE TRIAL COURT'S DECISION GRANTING ENSEALMENT OF THE

APPELLEE'S CRIMINAL RECORD WAS CONTRARY TO LAW AS THE APPELLEE

WAS NOT ELIGIBLE FOR ENSEALMENT UNDER R.C. § 2953.32 AND R.C. § 2953.36.

{¶16} “III. THE TRIAL COURT ERRED IN FAILING TO HOLD A FULL AND

PROPER ENSEALMENT HEARING ON THIS MATTER AS REQUIRED UNDER R.C. §

2953.32.” Richland County, Case No. 14CA51 6

I.

{¶17} In the first assignment of error, the state argues that Grillo’s application for

expungement was barred by res judicata. The state argues the September 28, 2012

amendment, which re-defined the individuals who are eligible for expungement, is not a

sufficient change in circumstance to prevent res judicata from barring the Grillo's

application. We disagree.

{¶18} The expungement statute in effect at the time the application is filed is the

statute that controls the court’s ruling. State v. LaSalle,

,

,

, paragraph 2 of the syllabus; State v. Moorehart, 5th Dist.

Fairfield No. 2008-CA-0072,

, ¶14; State v. George, 5th Dist. Ashland

No. 01-CA-100-2,

, ¶9.

{¶19} Res judicata applies to successive motions for sealing when there has

been no change of circumstances since the filing of the offender’s prior motion. See

State v. Haney, 10th Dist. Franklin No. 99AP–159,

(Nov. 23, 1999).

Were it otherwise, there would be no disincentive to offenders who might file repeated

motions for sealing in the hopes of obtaining a different outcome, based on the same set

of circumstances. State v. Singo, 9th Dist. Summit No. 27094,

.

{¶20} In the case at bar, at the time Grillo filed his previous motions for

expungement he did not meet the statutory definition of a "first time offender." However,

on December 5, 2013, the time Grillo filed the motion under consideration in this appeal,

the Ohio Legislature broadened the definition of an "eligible offender," allowing persons

with one felony and one misdemeanor to be eligible for a sealing of the record. Thus, if

the expungement statute in effect at the time the application is filed is the statute that Richland County, Case No. 14CA51 7

controls the court’s ruling, and that statute broadens the class of persons eligible for

expungement from the previous version, we find this constitutes a change in

circumstances between the prior requests for expungement and the instant application

so as to allow a court to consider a subsequent petition and res judicata would not bar its

review. See Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals,

,

(1987).

Res judicata is a rule of fundamental and substantial justice, see

State v. Szefcyk (1996),

,

, citing

Federated Dept. Stores, Inc. v. Moitie (1981),

,

,

, that “ ‘is to be applied in particular situations

as fairness and justice require, and that * * * is not to be applied so rigidly

as to defeat the ends of justice or so as to work an injustice.’ ” Grava v.

Parkman Twp. (1995),

, 386–387,

(Douglas, J., dissenting), quoting 46 American Jurisprudence 2d (1994)

786–787, Judgments, Section 522, and citing Goodson v. McDonough

Power Equip., Inc. (1983),

, 2 OBR 732,

.

State v. Simpkins,

,

,

, ¶25,

superseded by statute on other grounds as stated in State v. Singleton,

,

,

. We would achieve neither fairness nor justice

by preventing a successive application for expungement to be made when the statute is

amended to broaden the class of persons eligible for expungement from the previous

version. Richland County, Case No. 14CA51 8

{¶21} The state’s first assignment of error is overruled.

II.

{¶22} In the second assignment of error, the state contends that Grillo was not

eligible for expungement because he had more than one misdemeanor conviction and

one felony conviction. Specifically, the state argued that Grillo was ineligible due to

convictions for misdemeanor petty theft, driving under suspension, reckless operation,

and drag racing. Further, the state contends that the criminal trespass case in which

Grillo subsequently withdrew his previous uncounseled no contest plea and the state

nolled should count as a conviction for purposes of determining eligibility.

{¶23} “[E]xpungement is an act of grace created by the state,” and so is a

privilege, not a right. State v. Hamilton,

,

(1996). Expungement should be granted only when all requirements for eligibility are

met.

,

. An expungement proceeding is not an adversarial

one; the primary purpose of an expungement hearing is to gather information.

{¶24} Two different statutes relate to sealing of court documents—R.C. 2953.32,

for sealing of records after conviction, and R.C. 2953.52, for sealing after disposition

other than conviction.

A. Sealing of records for a non-conviction or dismissal.

{¶25} The effect of a dismissal or a nolle has been explained,

The entry of a nolle prosequi restores an accused to the status of a

person against whom charges have never been filed, Columbus v. Stires

(1967),

. Sander v. State of Ohio (S.D. Ohio,

1973),

, holds that no jeopardy attaches where a Richland County, Case No. 14CA51 9

nolle prosequi is entered before a jury is sworn. Further, the acceptance of

a guilty plea on some counts and the nolle of others, is not functionally

equivalent to a verdict of not guilty on the dismissed charges, Hawk v.

Berkemer (6th Cir. 1979),

.

State v Frost, 8th Dist. No. 45561,

(June 23, 1983). Accord, State v.

Cole,

,

(12th Dist. 1967); State v. Eubank, 6th

Dist. Lucas No. L-11-1211,

, ¶7. As jeopardy has not attached and the

accused can be re-prosecuted for the same offense, a dismissal or nolle is not the

functional equivalent of an acquittal.

{¶26} R.C. 2953.52 governs applications to seal records where either the

underlying charges have been dismissed or the individual was found not guilty. State ex

rel. Cincinnati Enquirer v. Lyons,

,

,

,

¶24. The statute provides,

(A)(1) Any person, who is found not guilty of an offense by a jury or

a court or who is the defendant named in a dismissed complaint,

indictment, or information, may apply to the court for an order to seal the

person’s official records in the case. Except as provided in section

2953.61 of the Revised Code, the application may be filed at any time

after the finding of not guilty or the dismissal of the complaint, indictment,

or information is entered upon the minutes of the court or the journal,

whichever entry occurs first.

(2) Any person, against whom a no bill is entered by a grand jury,

may apply to the court for an order to seal his official records in the case. Richland County, Case No. 14CA51 10

Except as provided in section 2953.61 of the Revised Code, the

application may be filed at any time after the expiration of two years after

the date on which the foreperson or deputy foreperson of the grand jury

reports to the court that the grand jury has reported a no bill.

(B)(1) 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 in 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 the prosecutor believes justify a denial of the

application.

(2) The court shall do each of the following, except as provided in

division (B)(3) of this section:

(a)(i) Determine whether the person was found not guilty in the

case, or the complaint, indictment, or information in the case was

dismissed, or a no bill was returned in the case and a period of two years

or a longer period as required by section 2953.61 of the Revised Code

has expired from the date of the report to the court of that no bill by the

foreperson or deputy foreperson of the grand jury;

(ii) If the complaint, indictment, or information in the case was

dismissed, determine whether it was dismissed with prejudice or without

prejudice and, if it was dismissed without prejudice, determine whether the

relevant statute of limitations has expired; Richland County, Case No. 14CA51 11

(b) Determine whether criminal proceedings are pending against

the person;

(c) If the prosecutor has filed an objection in accordance with

division (B)(1) of this section, consider the reasons against granting the

application specified by the prosecutor in the objection;

(d) Weigh the interests of the person in having the official records

pertaining to the case sealed against the legitimate needs, if any, of the

government to maintain those records.

(3) If the court determines after complying with division (B)(2)(a) of

this section that the person was found not guilty in the case, that the

complaint, indictment, or information in the case was dismissed with

prejudice, or that the complaint, indictment, or information in the case was

dismissed without prejudice and that the relevant statute of limitations has

expired, the court shall issue an order to the superintendent of the bureau

of criminal identification and investigation directing that the superintendent

seal or cause to be sealed the official records in the case consisting of

DNA specimens that are in the possession of the bureau and all DNA

records and DNA profiles. The determinations and considerations

described in divisions (B)(2)(b), (c), and (d) of this section do not apply

with respect to a determination of the court described in this division.

(4) The determinations described in this division are separate from

the determination described in division (B)(3) of this section. If the court

determines, after complying with division (B)(2) of this section, that the Richland County, Case No. 14CA51 12

person was found not guilty in the case, that the complaint, indictment, or

information in the case was dismissed, or that a no bill was returned in the

case and that the appropriate period of time has expired from the date of

the report to the court of the no bill by the foreperson or deputy foreperson

of the grand jury; that no criminal proceedings are pending against the

person; and the interests of the person in having the records pertaining to

the case sealed are not outweighed by any legitimate governmental needs

to maintain such records, or if division (E)(2)(b) of section 4301.69 of the

Revised Code applies, in addition to the order required under division

(B)(3) of this section, the court shall issue an order directing that all official

records pertaining to the case be sealed and that, except as provided in

section 2953.53 of the Revised Code, the proceedings in the case be

deemed not to have occurred.

{¶27} Accordingly, in the case at bar because the state had filed an objection,

the trial court was required to hold a hearing. In order for the trial court to determine if the

criminal trespass charge qualifies as a prior conviction which would prevent

expungement of a subsequent conviction, the trial court must determine whether the

criminal trespass charge was dismissed without prejudice, and/ or whether the relevant

statute of limitations has expired. R.C. 2953.52(B)(2)(a)(ii).

{¶28} In the case at bar, we find the trial court failed to make the findings as

mandated by R.C. 2953.52 with respect to Grillo’s criminal trespass conviction and

subsequent nolle by the state. The trial court had an obligation to determine the effect of Richland County, Case No. 14CA51 13

the alleged prior conviction as required by R.C. 2953.32(B). State v. Rodgers, 5th Dist.

Muskingum No. CT2012-0042,

.

B. Drag Racing.

{¶29} As for the drag racing charge, the state provided the trial court with a

docket sheet from Mansfield Municipal Court, which showed that Grillo had been

charged with first-degree misdemeanor drag racing in 1986.

{¶30} Grillo asserts he was able to locate the original municipal court docket

sheet that shows that the charge was reduced from drag racing to speeding. Grillo was

sentenced to a $75 fine plus court costs. Grillo asserted in his brief that a certified copy

of this document was provided to both the trial court and the assistant prosecutor.

However, we find no evidence in the record that the trial court or the state was ever

served with a certified copy, or any copy, of the reduction of the drag racing charge.

{¶31} We find that the trial court failed to make any finding on the record relative

to this issue. Neither the transcript nor the judgment entry mention whether the trial court

received and reviewed the docket sheet. The trial court had an obligation to determine

the effect of the alleged prior conviction as required by R.C. 2953.32(B).

{¶32} Accordingly, we find no evidence in the record that the trial court ever

ruled upon this particular conviction when determining whether Grillo was an eligible

offender.

C. Driving under suspension.

{¶33} The state contends that Grillo had a conviction under R.C. 4510.11,

driving under suspension, which is a disqualifying offense. However, we find no evidence

of such a conviction under R.C. 4510.11, other than a mere assertion by the state in its Richland County, Case No. 14CA51 14

response memorandum, was every entered into the record in the trial court.1 We further

find that the state did not include this conviction in either its March 24, 2014 response to

Grillo's application or its March 28, 2014 supplemental memorandum in opposition to

defendant’s motion for sealing of records.

{¶34} The trial court failed to make any finding on the record relative to this

issue. The trial court had an obligation to determine the effect of the alleged prior

conviction as required by R.C. 2953.32(B).

{¶35} Accordingly, we find no evidence in the record that the trial court ever

ruled upon this particular conviction when determining whether Grillo was an eligible

offender.

{¶36} The state’s second assignment of error is sustained.

III.

{¶37} In the third assignment of error, the state contends that pursuant to R.C.

2953.32(B), the trial court was required to hold a hearing on Grillo’s application to seal

the records and the trial court did not conduct a full hearing as mandated by statute.

{¶38} R.C. 2953.32 governs the sealing of records of an eligible offender and

provides:

(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

1 Under the present version of R.C. 2953.02, a conviction for driving under suspension under Chapter 4507., 4510., 4511., 4513., or 4549. Of the Revised Code is not a “conviction” disqualifying an otherwise eligible offender from sealing his or her records. See, R.C. 2953.31(A). Richland County, Case No. 14CA51 15

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. If the

applicant was convicted of or pleaded guilty to a violation of division (A)(2)

or (B) of section 2919.21 of the Revised Code, the probation officer or

county department of probation that the court directed to make inquiries

concerning the applicant shall contact the child support enforcement

agency enforcing the applicant's obligations under the child support order

to inquire about the offender's compliance with the child support order.

(C)(1) The court shall do each of the following:

(a) Determine whether the applicant is an eligible offender or

whether the forfeiture of bail was agreed to by the applicant and the

prosecutor in the case. If the applicant applies as an eligible offender

pursuant to division (A)(1) of this section and has two or three convictions

that result from the same indictment, information, or complaint, from the

same plea of guilty, or from the same official proceeding, and result from

related criminal acts that were committed within a three-month period but

do not result from the same act or from offenses committed at the same

time, in making its determination under this division, the court initially shall

determine whether it is not in the public interest for the two or three

convictions to be counted as one conviction. If the court determines that it

is not in the public interest for the two or three convictions to be counted Richland County, Case No. 14CA51 16

as one conviction, the court shall determine that the applicant is not an

eligible offender; if the court does not make that determination, the court

shall determine that the offender is an eligible offender.

(b) Determine whether criminal proceedings are pending against

the applicant;

(c) If the applicant is an eligible offender who applies pursuant to

division (A)(1) of this section, determine whether the applicant has been

rehabilitated to the satisfaction of the court;

(d) If the prosecutor has filed an objection in accordance with

division (B) of this section, consider the reasons against granting the

application specified by the prosecutor in the objection;

(e) Weigh the interests of the applicant in having the records

pertaining to the applicant's conviction or bail forfeiture sealed against the

legitimate needs, if any, of the government to maintain those records.

(2) If the court determines, after complying with division (C)(1) of

this section, that the applicant is an eligible offender or the subject of a bail

forfeiture, that no criminal proceeding is pending against the applicant,

and that the interests of the applicant in having the records pertaining to

the applicant's conviction or bail forfeiture sealed are not outweighed by

any legitimate governmental needs to maintain those records, and that the

rehabilitation of an applicant who is an eligible offender applying pursuant

to division (A)(1) of this section has been attained to the satisfaction of the

court, the court, except as provided in divisions (G), (H), or (I) of this Richland County, Case No. 14CA51 17

section, shall order all official records of the case that pertain to the

conviction or bail forfeiture sealed and, except as provided in division (F)

of this section, all index references to the case that pertain to the

conviction or bail forfeiture deleted and, in the case of bail forfeitures, shall

dismiss the charges in the case. The proceedings in the case that pertain

to the conviction or bail forfeiture shall be considered not to have occurred

and the conviction or bail forfeiture of the person who is the subject of the

proceedings shall be sealed, except that upon conviction of a subsequent

offense, the sealed record of prior conviction or bail forfeiture may be

considered by the court in determining the sentence or other appropriate

disposition, including the relief provided for in sections 2953.31 to 2953.33

of the Revised Code.

{¶39} A trial court errs in ruling on a motion for expungement filed pursuant to

R.C. 2953.32 without first holding a hearing. R.C. 2953.32(B); State v. Stotler, 5th Dist.

No. 09-CA-17,

, ¶10; 18; State v. Wright,

, 2010-

Ohio-6259,

(3rd Dist. 2010), ¶9.

{¶40} As noted in our disposition of the state’s second assignment of error, the

trial court did not conduct the hearing or make the required findings mandated by statute.

Under R.C. 2953.32(B), the prosecutor is permitted to file an

objection to the application with the court. If an objection is filed, and

specifies reasons allegedly justifying denial of the application, the court is

required to consider the prosecutor's objections regardless of whether the

prosecutor appears at the hearing. R.C. 2953.32(C)(1)(d). The purpose of Richland County, Case No. 14CA51 18

requiring specificity in the written objection filed pursuant to R.C.

2953.32(B), therefore, is to provide the court with the state's rationale for

opposing the application and not to limit the introduction of relevant

information, which the prosecutor possesses or may come to possess,

that is not contained in a written objection.

State v. Hamilton,

, 640- 641,

,

; State

ex rel. Cincinnati Enquirer v. Lyons,

,

,

,¶36(“And even when there is no conviction, it is mandatory for the court to set a

hearing date.”) .

{¶41} In the case at bar, a review of the transcript of the oral hearing on motion

to seal records held March 31, 2014 indicates that the trial court and the parties only

addressed the issue of whether Grillo was “an eligible offender.” T. at 12. The trial court

nowhere found the interests of Grillo in having the records pertaining to his conviction

sealed either are or are not outweighed by any legitimate governmental needs to

maintain those records, and that the rehabilitation of Grillo, if he is an eligible offender

has been attained to the satisfaction of the court.

{¶42} The state’s third assignment of error is sustained.

{¶43} Because defendant’s legal status as a first offender was not properly

evaluated by the trial court, the case must be reversed and remanded for determination

of the trial court’s jurisdiction to grant the application to seal. Richland County, Case No. 14CA51 19

{¶44} For the forgoing reasons, the judgment of the Court of Common Pleas is

reversed. We remand this case to that court to conduct a hearing and make the findings

as required by R.C. 2953.32(C) and R.C. 2953.52(B).

By Gwin, J., and

Wise, J., concur

Hoffman, P.J., concurs in part

dissents in part

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 1215 Richland County, Case No. 14CA51 20

Hoffman, P.J., concurring in part and dissenting in part

{¶45} I concur in the majority's analysis and disposition of Appellant's first

assignment of error. However, I respectfully dissent from the majority's analysis and

disposition of Appellant's second and third assignments of error.

{¶46} In its discussion of Appellant's second assignment of error, the majority

clearly sets forth the procedure required under R.C. 2953.52 for sealing of records after

disposition other than conviction. The majority then concludes the trial court failed to

make the requisite findings specified in R.C. 2953.52 with respect to Appellee's criminal

trespass conviction and subsequent nolle by the state.

{¶47} While I agree the trial court failed to make those findings regarding the

criminal trespass conviction, I find it had no obligation to do so. The criminal trespass

conviction/nolle was not the subject of the motion to seal. The motion to seal was made

with respect to the felony theft conviction. The request for sealing was not for a non-

conviction or dismissal. I find R.C. 2953.52 is not relevant and does not provide a basis

for finding reversible error. I find the nolle of the criminal trespass conviction eliminates

it as a disqualifying factor, as the trial court obviously so determined prior to granting

Appellee's application.2 Because the criminal trespass charge originated in 1991, I think

it beyond dispute the statute of limitations for refiling has long ago expired.

{¶48} As did the majority, I address the remaining two potentially disqualifying

convictions separately but in reverse order.3

2 No appeal from the nolle of the criminal trespass charge was pursued by the state. While different agencies of the state were invoked, I find the action by the Mansfield Law Director binding and not subject to collateral attacked by the state in this appeal. 3 Appellee's prior conviction for petty theft is not disputed. Richland County, Case No. 14CA51 21

DRIVING UNDER SUSPENSION

{¶49} I find the trial court was not required to make any specific finding on the

record relative to this conviction. As the majority points out, the state did not include

this conviction in either its March 24, 2014 response to Appellee's application or its

March 28, 2014 supplemental memorandum in opposition to Appellee's motion to seal.

Furthermore, the prosecutor did not raise the OMVSL conviction as a disqualifying

event during the March 31, 2014 hearing. I find the state waived its right to assert this

as a disqualifying event and the trial court was under no obligation to make separate

findings with regard to it.

DRAG RACING

{¶50} I find the record [or lack thereof] with regard to this alleged conviction very

troubling.

{¶51} From my review of the March 31, 2014 hearing, it is clear the trial court's

ultimate decision to grant or deny expungement hinged on whether it could be

demonstrated Appellee was convicted of speeding rather than drag racing.4 The

hearing concluded with the trial court inviting counsel for Appellee to "let me know" if he

"can't come up with" further information on the drag racing charge. If unable, the

prosecutor would prepare an entry overruling the application. But if it (the drag racing

charge) proved not to be a disqualifying offense, then "you"5 can prepare an entry

granting the expungement.

4 Although the state may have contested the reason for the expungement, it never asserted Appellee was not rehabilitated or offered other legitimate governmental need to maintain record of the conviction. 5 It is unclear whether "you" refers to the prosecutor or Appellee's counsel. Richland County, Case No. 14CA51 22

{¶52} The next entry recorded in the docket is the filing of the Judgment Entry

Granting Application to Seal Record filed May 16, 2014. Interestingly, that entry recites

the court received the report of the State Probation Officer and held the required

hearing, granting the application to seal the record because the applicant is a convicted

eligible offender… has been rehabilitated… and the prosecuting attorney has not

objected that legitimate governmental needs to maintain these records outweighs the

applicant's interest in having the records sealed."

{¶53} The majority correctly notes there is no evidence in the record the trial

court or the state was ever served with a certified copy, or any copy of documentation of

the reduction of the drag racing charge to speeding at the time the court entered its

judgment. The state correctly points out there is nothing in the record showing Appellee

ever gave the trial court proof he was convicted of something other than drag racing.

While true, the record does not affirmatively demonstrate the trial court was not

provided such proof off the record. While not filed of record, I presume something was

provided to either the court or the prosecutor which, in turn, precipitated the entry

granting the application to seal. What is attached to Appellee's brief as an exhibit

reveals what that something likely was.

{¶54} Bearing an identification sticker as "EXHIBIT C," the attached exhibit

appears to be a copy of a docket of the Mansfield Municipal Court reflecting Appellee's

drag racing charge. The exhibit reflects the charge being filed on September 9, 1986; a

not guilty plea entered on 10-8-86; and an amend[ment] to speed on 12-3-86. This

exhibit would support the trial court's finding Appellee was eligible for expungment and

would be consistent with its ultimate decision. Richland County, Case No. 14CA51 23

{¶55} I find particularly troubling the certification from the clerk on Exhibit C. The

certification is a stamped entry of DANIEL F. SMITH, Clerk of the Municipal Court of

Mansfield, Ohio, certifying the exhibit is a true and correct copy of the Docket filed with

him. The date of certification is written in as being the "9th day of Sept. 1986. It is then

signed by a deputy clerk.

{¶56} Daniel F. Smith was not the clerk of the Mansfield Municipal Court in

1986. Why the certification reflects September 9, 1986, rather than sometime near or

after the date of the March 31, 2014 hearing is curious. More curious still, the

certification of September 9, 1986, reflects a date nearly three months prior to the entry

reflecting the amendment to speed!

{¶57} Despite my concern over the otherwise unaccounted for appearance of

Exhibit C in Appellee's brief and my concerns over the accuracy or appropriateness of

the certification by the clerk, the fact remains the trial court invited Appellee's counsel to

present it with further information regarding the drag racing charge and clearly indicated

its ultimate decision would hinge thereon. Neither the state nor Appellee voiced

objection to this procedure. The state does not assert in its brief any claim of lack of

due process concerning the manner further proof was to be submitted to the trial court

after conclusion of the hearing.

{¶58} Given the trial court's clearly declared recognition of the effect of a drag

racing conviction and its clear declaration of how it intended to accept further proof with

regard thereto - and, most importantly, given its ultimate decision to grant Appellee's

motion to seal, I find the presumption of regularity compels the conclusion the trial court

determined the drag racing charge was amended to speeding and did not result in a Richland County, Case No. 14CA51 24

disqualifying conviction barring Appellee's application. The trial court necessarily

determined it was not a disqualifying conviction, a fortiori, when it granted Appellee's

application.

{¶59} I further dissent from the majority's disposition of Appellant's third

assignment of error. The majority concludes the trial court did not conduct the hearing

or make the required findings mandated by statute. I disagree.

{¶60} The trial court conducted a hearing on March 31, 2014. The statute

requires the trial court to make three determinations; 1) eligibility; 2) existence of

pending charges; 3) rehabilitation. The statute then requires the trial court to consider

the reasons against granting the application as specified in the prosecutor's objection

and finally to weigh the applicant's interest to seal against any legitimate needs of the

government to maintain the record. Nowhere does the statute recite the trial court is

required to make specific findings.

{¶61} Despite the lack of a requirement to do so, the trial court's judgment entry

did explicitly make those findings. Again, I think it important to note while the state

questioned the purported need for sealing Appellee's conviction, it never contested his

lack of rehabilitation as set forth in his application nor did the state proffer any legitimate

governmental need for maintaining his record. The time to do so was at the hearing. Richland County, Case No. 14CA51 25

{¶62} I would affirm the trial court's judgment.

________________________________

HON. WILLIAM B. HOFFMAN