[Cite as State v. Erhardt, 2017-Ohio-8456.]


                                        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-31
                                                :
 KENNETH J. ERHARDT                             :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Fairfield County
                                                    Municipal Court, Case No. CRB
                                                    1400543



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             November 7, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 R. KYLE WITT                                       MARK J. MILLER
 PROSECUTING ATTORNEY                               555 City Park Avenue
 ANDREA GREEN BOYD                                  Columbus, OH 43215
 239 W. Main St.
 Lancaster, OH 43130
Fairfield County, Case No. 16-CA-31                                                      2

Delaney, P.J.

       {¶1} Appellant Kenneth J. Erhardt appeals from the July 14, 2016 Entry of the

Fairfield County Municipal Court overruling his Application for Sealing of Dismissal.

Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On March 3, 2014, appellant was charged by criminal complaint with two

counts of rape pursuant to R.C. 2907.02(A)(1)(b), both felonies of the first degree.

       {¶3} On March 6, 2014, appellee filed a nolle prosequi without prejudice pending

further investigation.

       {¶4} On January 25, 2016, appellant filed an application to seal the record of the

dismissal pursuant to R.C. 2953.52(A)(1) and the matter proceeded to hearing on July

11, 2016. The trial court overruled appellant’s application pursuant to an Entry filed July

14, 2016, finding it lacked authority to seal the record pursuant to R.C. 2953.52(B)(3)

because the statute of limitations pertinent to the underlying allegations had not yet

expired. Appellee has not refiled any charges arising from the allegations.

       {¶5} Appellant appealed to this Court on August 12, 2016.

       {¶6} Appellant concedes this Court had ruled contrary to his position in State v.

Dye, 5th Dist. Fairfield No. 15-CA-65, 2016-Ohio-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.
Fairfield County, Case No. 16-CA-31                                                     3


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

and we have lifted the stay.

       {¶8} Appellant raises a single assignment of error:

                               ASSIGNMENT OF ERROR

       {¶9} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

APPELLANT’S APPLICATION TO SEAL ALL OFFICIAL RECORDS AS THIS CASE

DOES NOT INVOLVE THE SEALING OF OFFICIAL RECORDS OF DNA SPECIMENS,

SAMPLES, AND PROFILES.”

                                       ANALYSIS

       {¶10} Appellant argues the trial court erred in denying his application to seal. In

light of the decision of the Ohio Supreme Court in State v. Dye, we agree.

       {¶11} In State v. Dye, Slip Opinion No. 2017-Ohio-7823, --N.E.3d--, 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.

       {¶12} Accordingly, appellant’s sole assignment of error is sustained.
Fairfield County, Case No. 16-CA-31                                             4


                                    CONCLUSION

       {¶13} 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: Delaney, P.J.,

Hoffman, J. and

Baldwin, J., concur.
