         [Cite as State v. Blair, 2016-Ohio-5714.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-160333
                                                         TRIAL NO. B-1504262A
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

AHKEYYA BLAIR,                                       :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 9, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Presiding Judge.

       {¶1}   Defendant-appellant Ahkeyya Blair appeals the decision of the

Hamilton County Municipal court denying her application to seal the record in a

criminal case.   This is a case of first impression involving the issue of what

constitutes a “criminal proceeding” under R.C. 2953.32, the statute which permits

the sealing of records. We find no merit in Blair’s sole assignment of error, and we

affirm the trial court’s judgment.

       {¶2}   Blair was originally charged with one count of aggravated robbery with

accompanying firearm specifications and one count of robbery. Following a bench

trial, she was acquitted of both charges. She subsequently filed an application to

have the record of that case sealed. The state objected, arguing that she still had a

criminal proceeding pending against her because she was on community control for

a misdemeanor conviction for menacing. The trial court denied Blair’s motion on

that basis, but told her that she could file another application when her community

control was terminated. This appeal followed.

       {¶3}   In her sole assignment of error, Blair contends that the trial court

erred in denying her application to seal the record. She argues that “probation” is

not a sentence, and therefore, there was no pending criminal proceeding. This

assignment of error is not well taken.

       {¶4}   Generally, an appellate court will not disturb a trial court’s decision to

grant or deny an application to seal records absent an abuse of discretion. State v.

Pankey, 1st Dist. Hamilton Nos. C-110547 and C-110548, 2012-Ohio-936, ¶ 3. But

where, as in this case, the dispute about the sealing of records involves a purely legal




                                           2
                      OHIO FIRST DISTRICT COURT OF APPEALS



question, we review the issue de novo. State v. Futrall, 123 Ohio St.3d 498, 2009-

Ohio-5590, 918 N.E.2d 497, ¶ 6; Pankey at ¶ 3.

       {¶5}    R.C. 2953.52(A) allows any person found not guilty of an offense by a

jury or a court to apply to the court for an order to seal the record in the case. Upon

the filing of the application, R.C. 2953.52(B) requires the trial court to set a date for a

hearing and to notify the prosecutor. The prosecutor can then file an objection. R.C.

2953.52(C) requires the trial court to do several things before ruling on the

application including determining “whether criminal proceedings are pending”

against the applicant.

       {¶6}    The statute does not define “criminal proceedings.” Blair argues that

“probation” is a civil matter, and therefore, there is no pending criminal proceeding.

Blair misapprehends the distinction between community control and probation.

       {¶7}    Former Ohio law allowed a court to suspend a prison sentence and

grant probation as “an act of grace allowing a convict to go free on conditions and as

a contract for leniency between the offender and the sentencing judge.” State v.

Heinz, ___ Ohio St.3d ___, 2016-Ohio-2814, ___ N.E.3d ___, ¶ 11. Nevertheless

the offender remained subject to any conditions imposed and a breach of those

conditions permitted the imposition of the suspended sentence. Id. Probation-

revocation proceedings were not considered a stage of a criminal prosecution. See

Gangon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Heinz

at ¶ 12; State v. Jones, 60 Ohio App.2d 178, 180, 396 N.E.2d 244 (1st Dist.1978).

       {¶8}    Effective July 1, 1996, the General Assembly revised Ohio’s felony-

sentencing statutes and replaced probation with community control.                 Unlike

probation, which is a period of time served during suspension of a sentence,



                                            3
                     OHIO FIRST DISTRICT COURT OF APPEALS



community-control sanctions are imposed as the punishment for an offense at a

sentencing hearing. Heinz at ¶ 14. It is a part of the offender’s sentence. State v.

Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 8. The revocation of

community control is an exercise of the sentencing court’s criminal jurisdiction, and

community-control-violation hearings are formal, adversarial proceedings. Heinz at

¶ 15-16. Following a community-control violation, the court sentences the offender

anew. State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17.

       {¶9}    Thus, a sentence of community control is part of the criminal

proceedings. Because Blair was still on community control, a criminal proceeding

was pending.    Therefore, as a matter of law, she was not entitled to have her

application to the seal the record granted.

       {¶10} This case is distinguishable from State v. Z.J., 8th Dist. Cuyahoga No.

87912, 2007-Ohio-552, cited by Blair. In that case, the defendant had been found

not guilty by reason of insanity and had been committed to a mental hospital for

treatment. The trial court granted the defendant’s application to seal the records of

the case, and the state appealed. The state argued that the criminal case against the

defendant was still pending.

       {¶11} The Eighth Appellate District rejected the state’s argument, stating

that the trial court’s continuing jurisdiction over a person acquitted of a crime by

reason of insanity “is civil by nature, not criminal.” Id. at ¶ 18. It noted that the

defendant had been acquitted and then civilly committed for treatment. “When the

court found appellee not guilty by reason of insanity, the criminal proceedings

against her terminated.” Id. Community-control proceedings, on the other hand,

are criminal in nature. Consequently, Z.J. is not dispositive of the case before us.



                                              4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12} Because as a matter of law Blair was not entitled to have the record

sealed, the trial court did not err in overruling her application.      Therefore, we

overrule Blair’s assignment of error and affirm the trial court’s judgment.

                                                                  Judgment affirmed.


H ENDON and M OCK , JJ., concur.


Please note:
       The court has recorded its own entry this date.




                                           5
