[Cite as State v. Moulder, 2013-Ohio-1036.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98661




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    KEVIN MOULDER
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-518387

        BEFORE:          Celebrezze, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED:                     March 21, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Adrienne Cavender
       Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

      {¶1} Appellant, Kevin Moulder, seeks review of the denial of his motion to

expunge his 2009 attempted assault conviction. Appellant argues that the trial court

failed to liberally apply the expungement statute in his favor and that the court erred in

failing to hold a hearing on his motion. Finding merit to his second assignment of error,

we reverse and remand for a hearing.

                            I. Factual and Procedural History

      {¶2} Appellant was indicted by a grand jury on December 2, 2008, on charges of

assault in violation of R.C. 2903.13, and kidnapping in violation of R.C. 2905.01(A)(4).

On April 13, 2009, appellant pled guilty to second-degree-misdemeanor attempted assault

in violation of R.C. 2903.13(B). He was sentenced to a suspended 90-day jail term, a

$750 fine, and six months of probation.

      {¶3} On October 18, 2010, after completing his probation without incident, he

applied to have the records of his conviction sealed pursuant to R.C. 2953.32(A). The

state filed a brief in opposition to his application, and the trial court denied it without

holding a hearing.

      {¶4} On October 7, 2011, appellant filed another application. Again, the state

filed a brief opposing expungement. The trial court denied this application on June 8,

2012, without holding a hearing. Appellant then filed an appeal from that denial raising

two assignments of error:
       I. The trial court abused its discretion when it denied [appellant’s]
       application for expungement.

       II. The trial court erred and denied [appellant] due process of law when it
       failed to set a hearing pursuant to R.C. 2953.52(B)

                                  II. Law and Analysis

       {¶5} Because appellant’s second assignment of error is determinative, it will be

addressed first. Appellant claims that the trial court erred when it did not hold a hearing

before denying his application to seal the records of his conviction. The expungement

statutes, R.C. 2953.31 et seq.,1 are to be liberally construed in favor of the applicant to

promote the legislative purpose of allowing expungements. State v. Boddie, 170 Ohio

App.3d 590, 2007-Ohio-626, 868 N.E.2d 699 (8th Dist.). The trial court must weigh the

interests of the applicant in having the records sealed against the interests the state

possesses in maintaining those records open to the public. Cleveland v. Cooper-Hill, 8th

Dist. No. 84164, 2004-Ohio-6920. Alleged errors that a trial court makes in regard to

expungement are reviewed for an abuse of discretion. Id. An abuse of discretion implies

that a trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶6} According to recent developments in case law in this jurisdiction, where the

state raises a determinative question of law2 in its brief in opposition to expungement that



       Former R.C. 2953.31 and 2953.32 apply to this case. The legislature
       1

amended these statutes effective September 28, 2012.
       2 Such issues would include whether the offense was one prohibited by
statute from being expunged or whether the applicant was a first offender where
can be decided without a hearing, a trial court could, in its discretion, deny the motion

without a hearing. State v. J.K., 8th Dist. No. 96574, 2011-Ohio-5675, ¶ 16. But see

State v. Hann, 173 Ohio App.3d 716, 2007-Ohio-6201, 880 N.E.2d 148, ¶ 9 (8th Dist.)

(holding a hearing is mandatory).

       {¶7} However, when, as here, the state raises only issues regarding its interest in

maintaining records of conviction based on the nature of the offense, a trial court abuses

its discretion when it fails to hold a hearing on an application made pursuant to R.C.

2953.31. State v. Houston, 8th Dist. No. 80015, 2002-Ohio-329; State v. Salim, 8th Dist.

No. 82204, 2003-Ohio-2024. This is because former R.C. 2953.32(B) requires a hearing

on such a motion, stating, “[u]pon 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.” This language indicates a hearing is mandatory. The state concedes

this error.3

       {¶8} Therefore, the denial of appellant’s application for expungement without

holding a hearing constitutes an abuse of the trial court’s discretion. Appellant’s second

assignment of error is sustained. This holding renders appellant’s first assignment of

error moot.

                                      III. Conclusion


the state had submitted proof of convictions precluding expungement.
       3  Additionally, appellant’s successive application does not mean
expungement is barred by res judicata because no hearing was held on the first
application either. State v. Minch, 8th Dist. No. 87820, 2007-Ohio-158.
       {¶9} The denial of appellant’s application for expungement without a necessary

hearing constitutes an abuse of the trial court’s discretion. A hearing is mandatory.

       {¶10} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
