[Cite as State v. Neal, 2017-Ohio-8444.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 16-CA-38, 16-CA-40
DUSTIN E. NEAL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Common
                                               Pleas Court, Case Nos. 11-CR-546,
                                               12-CR-224


JUDGMENT:                                      Reversed and Remanded

DATE OF JUDGMENT ENTRY:                         November 3, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

R. KYLE WITT                                   SCOTT P. WOOD
Prosecuting Attorney                           Conrad/Wood
ANDREA GREEN BOYD                              120 East Main Street, Suite 200
Assistant Prosecuting Attorney                 Lancaster, Ohio 43130
239 W. Main Street
Lancaster, Ohio 43130
Fairfield County, Case No. 16-CA-38, 16-CA-40                                             2

Hoffman, J.


         {¶1}   Defendant-appellant Dustin E. Neal appeals the judgments entered by the

Fairfield County Common Pleas Court overruling his motions to seal records. Plaintiff-

appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   On December 9, 2011, Appellant was indicted on one count of rape of a

three-year-old child (Case Number 2011-CR-546). The charge was dismissed without

prejudice on June 14, 2012, due to a superseding indictment in Case Number 2012-CR-

224.

         {¶3}   Appellant was indicted on multiple felonies, including rape and gross sexual

imposition involving the same three-year-old child, on June 1, 2012, in Case Number

2012-CR-224. The charges were dismissed without prejudice on May 24, 2013. Appellee

has not re-filed any charges related to these allegations.

         {¶4}   Appellant filed motions to seal the record in both cases. On September 21,

2016, the trial court overruled the motion as to Case Number 2012-CR-224, and the court

overruled the motion as to Case Number 2011-CR-546 on October 18, 2016. The trial

court found Appellant was not statutorily eligible to have his records sealed in either case

because the statute of limitations had not expired.

         {¶5}   Appellant filed an appeal in both cases, and we consolidated the appeals

with Case Number 16-CA-38 controlling. In his brief, Appellant conceded this Court had

ruled contrary to his position in State v. Dye, 5th Dist. Fairfield No. 15-CA-65, 2016-Ohio-



1   A rendition of the facts is unnecessary for our disposition of this appeal.
Fairfield County, Case No. 16-CA-38, 16-CA-40                                           3

5065. However, Dye was pending before the Ohio Supreme Court on a certified conflict

with the decision of the Eighth District in State v. C.K., 8th Dist. Cuyahoga No. 99886,

2013-Ohio-5135. Accordingly this Court stayed the appeal sua sponte until the Supreme

Court issued an opinion or otherwise resolved Dye.

      {¶6}   The Ohio Supreme Court issued a merit opinion on September 27, 2017,

and we have lifted the stay. Appellant assigns a single error:

      {¶7}   THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT WAS

STATUTORILY INELIGIBLE TO SEAL RECORDS OF DISMISSED CHARGES.

      {¶8}   In State v. Dye, Slip Opinion No. 2017-Ohio-7823, the Ohio Supreme Court

reversed the decision of this Court, and held R.C. 2953.52 does not require the relevant

statute of limitations to expire before a trial court can grant an application to seal the

records of a case dismissed without prejudice.

      {¶9}   Accordingly, Appellant’s assignment of error is sustained.

      {¶10} The judgment of the Fairfield County Common Pleas Court is reversed.

This case is remanded to that court for further proceedings according to law.


By: Hoffman, J.

Delaney, P.J. and

Baldwin, J. concur
Fairfield County, Case No. 16-CA-38, 16-CA-40   4
