[Cite as State v. S.D.A., 2017-Ohio-8415.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   C.A. CASE NO. 27447
                                                   :
 v.                                                :   T.C. NO. 15-CR-641
                                                   :
 S.D.A.                                            :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 3rd day of November, 2017.

                                              ...........

ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 N. Main Street, Suite 2, Springboro,
Ohio 45066
      Attorney for Defendant-Appellant

                                             .............

FROELICH, J.
                                                                                           -2-




       {¶ 1} S.D.A. appeals from a judgment of the Montgomery County Court of

Common Pleas, which denied her application to seal the record of the proceedings

against her. For the following reasons, the trial court’s judgment will be reversed, and

the matter will be remanded for further proceedings.

                             I. Facts and Procedural History

       {¶ 2} On April 1, 2015, S.D.A. was indicted for violating the terms of a protection

order, in violation of R.C. 2919.27(A)(1). Because S.D.A. had previously been convicted

of violating a protection order, the offense was a felony of the fifth degree.           R.C.

2919.27(B)(3).   S.D.A. requested, and the trial court granted, intervention in lieu of

conviction (ILC), pursuant to R.C. 2951.041. On November 22, 2016, the trial court

found that S.D.A. had successfully completed ILC, that she had received the maximum

benefit from the drug treatment facility or program, and that the treatment had served its

intended purpose; the court ordered that S.D.A.’s case be dismissed.

       {¶ 3} On December 1, 2016, S.D.A., pro se, filed an “application for sealing of

record after not guilty finding, dismissal of proceedings or no true bill,” pursuant to R.C.

2953.52(A).1 The State did not file an objection to the application.

       {¶ 4} There is no indication in the trial court’s docket that the trial court scheduled

a hearing on the application, and there is nothing in the record to show that S.D.A. (or the

prosecutor) received notice of a hearing. However, the State has supplemented the



1
  S.D.A. also sought to seal the record in another case, similarly involving violations of a
protection order, in which she had successfully completed ILC. State v. S.D.A.,
Montgomery C.P. No. 2014 CR 4315. That application was also denied, and the denial
is the subject of an appeal in State v. S.D.A., 2d Dist. Montgomery No. 27446.
                                                                                          -3-


record with a transcript of a January 10, 2017 hearing. The entire transcript of that

hearing reads:

       (TUESDAY, JANUARY 10, 2017, 11:19 A.M.)

       THE COURT: On page 11, 14CR4315 and 15CR641, State of Ohio versus

       [S.D.A.]. The matter is set for hearing on the defendant’s motion to seal

       the record. [S.D.A.].

       THE BAILIFF: Your Honor, there was no response from the hallway.

       THE COURT: All right. After reviewing the record, the Court finds that

       there is a governmental need to maintain the record of the dismissal of

       these two cases.     The defendant has prior convictions for violation of

       protection orders which are the offenses in this case. Given the serious

       nature of the offenses and all of the circumstances, I will find that there is a

       governmental need to maintain those records and deny the petitions in each

       of the two cases.

       (Proceedings concluded at 11:19 a.m.)

       {¶ 5} The same day (January 10), the trial court issued a written entry denying

S.D.A.’s application.   The trial court indicated that it had determined “whether the

applicant was found not guilty, or the complaint, indictment, or information in the case

was dismissed; or a no bill was returned in the case; whether criminal proceedings are

pending against the applicant at the present time; and whether the interest of the applicant

in having the records pertaining to the case sealed are not outweighed by the

government’s need to maintain these records, and whether, in the case of a no bill, the

application was filed in a timely manner.” The trial court gave the following reasons for
                                                                                         -4-


its denial of the application:

       There does appear to be a governmental need to maintain the record of

       Dismissal. [S.D.A.’s] criminal history also includes a Violation of a TPO

       (M1) conviction (14CRB880/ Montgomery County Municipal Court –

       Eastern Division), as well as a Violation of a TPO (F5) case (14CR4315) on

       which she successfully completed ILC. This record of Dismissal should be

       maintained for potential future involvement with law enforcement.

       {¶ 6} S.D.A. appeals from the trial court’s judgment.

                         II. Denial of Application to Seal Record

       {¶ 7} In her sole assignment of error, S.D.A. claims that the trial court abused its

discretion when it denied her application to seal her record. Based on a belief that no

hearing had been scheduled, S.D.A. argues in her appellate brief that the trial court erred

in denying her application without a hearing. The State counters that “the trial court fully

complied with R.C. 2953.52 and held a hearing as mandated by statute,” but S.D.A. failed

to attend the hearing. In her reply brief, S.D.A. responds that the trial court gave no

notice of the hearing and that she was unaware that a hearing had been held.

       {¶ 8} Of relevance here, R.C. 2953.52(A)(1) provides that any person who is the

defendant named in a dismissed indictment may apply to the trial court for an order to

seal the person’s official records in the case. Upon the filing of an application, the trial

court “shall set a date for a hearing and shall notify the prosecutor in the case of the

hearing on the application.” R.C. 2953.52(B)(1). The prosecutor may file objections to

the application prior to the hearing. Id.

       {¶ 9} After the hearing, the trial court must (1) determine whether the indictment in
                                                                                           -5-


the case was dismissed, and if so, “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;” (2) “[d]etermine whether criminal proceedings

are pending against the person;” (3) if the prosecutor filed an objection, consider the

reasons against granting the application specified by the prosecutor in the objection;

and (4) “[w]eigh 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).

       {¶ 10} If the trial court determines that the indictment was dismissed, that no

criminal proceedings are pending against the person, and that 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 record, the trial court must direct that

all official records pertaining to the case be sealed and that the proceedings in the

case be deemed not to have occurred. R.C. 2953.52(B)(4).

       {¶ 11} The requirement of a hearing, as set forth in R.C. 2953.52(B), is mandatory.

State v. Davis, 175 Ohio App.3d 318, 2008-Ohio-753, 886 N.E.2d 916, ¶ 18 (2d Dist.);

State v. Rybarczyk, 6th Dist. Wood Nos. WD-15-020, WD-15-021, 2015-Ohio-4211.

Accord State v. L.L., 2d Dist. Clark No. 2016-CA-74, 2017-Ohio-5489, ¶ 5 (failure to

conduct a hearing required by R.C. 2953.32(B) requires reversal of trial court’s decision

to deny application to seal the record). In addition, the statute expressly requires the trial

court to notify the prosecutor of the hearing, thus providing the prosecutor with an

opportunity to file objections prior to the hearing. R.C. 2953.52(B)(1).

       {¶ 12} More fundamentally, due process generally requires that parties receive
                                                                                             -6-

notice of a scheduled hearing. See, e.g., Ohio Valley Radiology Assoc., Inc. v. Ohio

Valley Hosp. Assn., 28 Ohio St.3d 118, 124, 502 N.E.2d 599 (1986). Although R.C.

2953.52 required that the prosecutor receive notice of the hearing on an application to

seal the record, due process required that S.D.A, as the movant, also receive notice of

any scheduled hearing on her application. “Ohio courts have traditionally held that while

some form of notice of a trial date is required to satisfy due process, an entry of the date

of trial on the court’s docket constitutes reasonable, constructive notice of that fact.”

Ohio Valley Radiology Assoc. at 124; see also Local Rule 1.15(B) of the Montgomery

C.C.P. (requiring eFiling of all court-initiated filings, such as notices and orders, and

service by eService).

       {¶ 13} In this case, S.D.A. filed her application to seal the record, and the trial court

apparently scheduled a hearing for January 10, 2017. However, no scheduling entry

was filed with the clerk of court, and there is no indication that S.D.A. and the prosecutor

were otherwise notified of the hearing; S.D.A. did not appear. At some point, the State

became aware of the hearing, as it supplemented the record with the transcript of the

hearing, but there is no indication that a prosecutor was present at the hearing and/or had

received prior notice of the hearing; we can only speculate about when and how the State

learned of the hearing. On this record, we conclude that the trial court did not comply

with the statutory requirements that it notify the prosecutor of the scheduled hearing and

that it provide S.D.A. with a hearing.

       {¶ 14} S.D.A.’s assignment of error is sustained.

                                         III. Conclusion

       {¶ 15} The trial court’s judgment will be reversed, and the matter will be remanded
                                                  -7-


for further proceedings.

                                  .............

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Alice B. Peters
Pamela L. Pinchot
Hon. Mary Katherine Huffman
