[Cite as State v. Smith, 2013-Ohio-2872.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )   CASE NO. 12 MA 176
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
RYAN E. SMITH,                                    )
                                                  )
        DEFENDANT-APPELLANT.                      )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from
                                                      County Court No. 4,
                                                      Case No. 07 CRA 169.


JUDGMENT:                                             Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Paul J. Gains
                                                      Prosecuting Attorney
                                                      Attorney Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 W. Boardman St., 6th Floor
                                                      Youngstown, OH 44503

For Defendant-Appellant:                              Attorney Edward A. Czopur
                                                      DeGenova & Yarwood, Ltd.
                                                      4 North Phelps Street
                                                      Youngstown, OH 44503


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                      Dated: June 20, 2013
[Cite as State v. Smith, 2013-Ohio-2872.]
DeGenaro, P.J.
        {¶1}     Defendant-Appellant, Ryan E. Smith, appeals the decision of the Mahoning
County Court No. 4 denying his application to seal the record relating to his dismissed
grand theft charge. Smith argues the trial court erred in denying his application because
the State failed to present any interest in maintaining the record and because the trial
court failed to make the requisite findings pursuant to R.C. 2953.52(B)(2). Smith's
arguments are meritorious in part. The trial court was not precluded from denying Smith's
application notwithstanding the State's failure to object and present its interests in
maintaining the record. However, the trial court did err in failing to place its findings
relative to R.C. 2953.52(B)(2) on the record. Accordingly, the judgment of the trial court is
reversed and this cause is remanded for further proceedings and compliance with R.C.
2953.52(B).
                                   Facts and Procedural History
        {¶2}     In 2007, Smith was charged in Mahoning County Court No. 4 in Case No.
2007 CRA 169, with one count of grand theft of a motor vehicle (R.C. 2913.02(A)), a
fourth-degree felony. The State moved to dismiss the charge and following a hearing, the
trial court dismissed the charge in a March 19, 2007 judgment entry.
        {¶3}     On May 2, 2012, Smith filed an application for an order to seal the records
relative to the dismissed grand theft charge. During the hearing, which the State did not
attend, the trial court indicated that the prosecutor would not "sign off" on the application
to seal the records. Defense counsel stated that the prosecutor would not object to the
motion and that the applicable statute provides that if the State objects, it needs to attend
the hearing. Defense counsel further stated that the statute does not require the State to
approve of the motion. The trial court responded, "He's not required to, but I would want
his approval before I expunge (inaudible) for something like that." At the conclusion of
the hearing, the court took the matter under advisement. The trial court issued a
judgment entry denying the application to seal and finding that "the defendant has other
convictions and the State would not approve the Application."
                                                                                          -2-


                                Application to Seal Records
       {¶4}   Smith asserts two assignments of error on appeal, which are interrelated
and will be discussed together:
       {¶5}   "Appellant's motion to seal subsequent to dismissal and pursuant to ORC §
2953.52 was erroneously denied as no interest of the State was presented at the hearing
thereby requiring that the motion to seal be granted."
       {¶6}   "The trial court erred in not making the requisite findings prior to denying
Appellant's motion to seal thereby requiring reversal."
       {¶7}   "An appellate court reviews a trial court's decision to grant or deny a motion
to seal records pursuant to R.C. 2953.52 for an abuse of discretion." State v. Widder,
146 Ohio App.3d 445, 2001-Ohio-1521, 766 N.E.2d 1018, ¶6 (9th Dist.). The term ‘abuse
of discretion’ means an error in judgment involving a decision that is unreasonable based
upon the record; that the appellate court merely may have reached a different result is not
enough. See, Bergman v. Bergman, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis v.
Honeywell, Inc., 2d Dist. Nos.2008 CA1, 2008 CA 2, 2009-Ohio-531, ¶35.
       {¶8}   R.C. 2953.52 sets forth the procedure by which trial courts may seal a
defendant's record following a dismissal of the charges. Once the defendant files an
application to seal the record, "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." R.C. 2953.52(B)(1). In considering the
application, the court shall:

       (a)(i) Determine whether the person was found not guilty in the case, or the
       complaint, indictment, or information in the case was dismissed * * *;
       (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
                                                                                          -3-


       of limitations has expired;
       (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.

R.C. 2953.52(B)(2)(a)-(d).
       {¶9}   Initially, Smith argues that because the State did not object to his
application, it did not present any interest for the trial court to weigh against his interests
in sealing the record. He contends that the trial court misapplied the law in denying the
application when no interest of the State in maintaining the record was before the court.
He argues that because the trial court improperly applied the law, this court should review
under a de novo standard. However, in rejecting a similar argument, the Tenth District
explained that:

       [A] reading of R.C. 2953.52(B)(2) clearly indicates that the court has a duty
       to weigh the interest of the persons seeking sealing of the records against
       legitimate need of the government to maintain those records. The court
       must make this determination whether or not a prosecutor has filed an
       objection. In addition, R.C. 2953.52(B)(3) clearly suggests that the burden
       is upon the applicant to demonstrate that his interests in having the records
       pertaining to the case sealed are equal to any legitimate governmental
       need to maintain such records.

State v. Haney, 70 Ohio App.3d 135, 138, 590 N.E.2d 445 (10th Dist.1991).
       {¶10} Notwithstanding the State's failure to object to Smith's application to seal
                                                                                         -4-


records, the trial court was not precluded from weighing the parties' interests or denying
his application. See State v. Tyler, 10th Dist. No. 00AP-1331, 2001 WL 722092, *1 (June
28, 2001).
         {¶11} Smith next argues that the trial court erred in failing to make the requisite
statutory findings before denying his application.        The State filed a confession of
judgment conceding error on this issue as the trial court failed to include at the hearing or
in the judgment entry its findings pursuant to R.C. 2953.52 concerning its denial of the
application to seal the record.
         {¶12} "In denying an application to seal records pursuant to R.C. 2953.52, '[a] trial
court must make the necessary findings as required by R.C. 2953.52(B)(2) and weigh the
interests of the parties to the expungement [.]'" Widder at ¶17. In Widder, the trial court
announced its decision at the hearing to deny the defendant's motion to seal before
hearing either side's arguments. The trial court stated in its judgment entry that it was
denying the motion "[b]ased on the record and based on the interest of the community."
Id. at ¶21. On appeal, the Ninth District held that it was unclear whether the trial court
weighed the interests of the parties pursuant to R.C. 2953.52(B)(2)(d), and thus reversed
and remanded the case for the trial court to comply with R.C. 2953.52(B). Id. at ¶21, 24.
         {¶13} Similarly, in Cleveland v. Hogan, 8th Dist. No. 85214, 2005-Ohio-3167, the
Eighth District reversed the denial of the defendant's application to seal the record
because the trial court failed to put its findings pursuant to R.C. 2953.52(B) on the record.
Id. at ¶12; see also State v. Swoyer, 7th Dist. No. 94-B-18, 1994 WL 631665, *2 (Nov. 8,
1994).
         {¶14} Here, the hearing on the application to seal the records was very brief. The
trial court discussed whether the prosecutor would approve the motion but did not weigh
Smith's interests against those of the State. Moreover, the trial court's judgment entry
denying the application only mentions the fact that the State did not "approve" the
application and that Smith has other convictions. While the trial court may have weighed
the parties' interests, it did not place such findings in the record. Because the trial court
did not comply with R.C. 2953.52(B)(2), the trial court committed reversible error.
                                                                                           -5-


       {¶15} In sum, Smith's arguments are meritorious in part. The trial court was not
precluded from denying Smith's application despite the State's failure to object and
present its interests in maintaining the records. However, the trial court did err in failing to
place its findings relative to R.C. 2953.52(B)(2) on the record. Accordingly, the judgment
of the trial court is reversed and this cause is remanded for further proceedings and
compliance with R.C. 2953.52(B).
Donofrio, J., concurs.
Vukovich, J., concurs.
