[Cite as State v. R.A., 2012-Ohio-2507.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97550 and 97551




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                            R. A.
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-455032 and CR-457204

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

        RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEYS FOR APPELLANT

Larry W. Zukerman
S. Michael Lear
Brian A. Murray
Zukerman, Daiker & Lear Co., L.P.A.
3912 Prospect Avenue, East
Cleveland, OH 44115

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

      {¶1} In these consolidated appeals, defendant-appellant, R.A., appeals from the

trial court’s judgments denying his applications for expungement. For the reasons that

follow, we reverse and remand.

                                  I. Procedural History

      {¶2} On January 24, 2005, R.A. pled guilty in Case No. CR-455032 to three

counts of burglary in violation of R.C. 2911.12(A)(3), and to one count of burglary in

violation of R.C. 2911.12 in Case No. CR-457204. On February 24, 2005, the trial court

sentenced him in both cases to five years of community control sanctions.

      {¶3} On August 16, 2011, R.A. filed a motion for expungement of the criminal

record in both cases pursuant to R.C. 2953.32. The trial court ordered an expungement

report from the probation department but did not set the case for hearing. It subsequently

denied the motion without a hearing, ruling that R.A. was not a first offender as required

by R.C. 2953.32. This appeal followed.

                                       II. Analysis

      {¶4} In his first assignment of error, R.A. contends that the trial court erred in

denying his motion for expungement without a hearing. The State concedes the error.

      {¶5} “The procedure to be followed in an expungement under R.C. 2953.32(B) is

very explicitly set out in the statute.” State v. Hilbert, 145 Ohio App.3d 824, 825, 764

N.E.2d 1064 (8th Dist.2001). Specifically, R.C. 2953.32(B) states that “[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.”

       {¶6} This court has repeatedly held that a hearing on an expungement motion is

mandatory, and failure to hold a hearing is cause for reversal. See, e.g., State v. Boddie,

170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, ¶ 4 (8th Dist.); State v. Keller,

8th Dist. No. 92662, 2009-Ohio-3300, ¶ 5; State v. Hann, 173 Ohio App.3d 716, 718,

2007-Ohio-6201, 880 N.E.2d 148 (8th Dist.); State v. Poston, 8th Dist. No. 87216,

2006-Ohio-4125; State v. Powers, 8th Dist. No. 84416, 2004-Ohio-7021; State v. Davis,

8th Dist. No. 81940, 2003-Ohio-1363; State v. Rebello, 8th Dist. No. 77076, 2000 WL

545990 (May 4, 2000); State v. Saltzer, 14 Ohio App.3d 394, 395, 471 N.E.2d 872 (8th

Dist.1984). See also State v. Hamilton, 75 Ohio St.3d 636, 1996-Ohio-440, 665 N.E.2d

669. Specifically, with respect to the hearing requirement of R.C. 2953.32(B), this court

has stated that “[i]t is axiomatic that the use of the word ‘shall’ in a statute indicates that

compliance with the statute is mandatory, absent clear unequivocal legislative intent to

the contrary.” Hann at 718.

       {¶7} Recently, in State v. J.K., 8th Dist. No. 96574, 2011-Ohio-5675, in a

departure from our long line of cases holding that an expungement hearing is mandatory

upon an application to seal the record, this court held that a hearing is not necessary

where the state raises purely an issue of law in opposition to the motion for expungement.

 The J.K. decision relied on State v. Webb, 2d Dist. No. 23892, 2010-Ohio-5743, for this

proposition. But a reading of Webb demonstrates that the Webb court cited no authority
for its conclusion that a hearing is not necessary to resolve issues of law regarding an

application for expungement. And no other cases have cited Webb or J.K. for this

proposition. Accordingly, we decline to follow Webb or J.K. in this case, and hold that

the trial court erred in denying R.A.’s application for expungement without first holding a

hearing.

       {¶8} Further, as this court has stated before:

       [W]e remind the state that “expungement is an act of grace created by the
       state.” “The expungement provisions are remedial in nature and ‘must be
       liberally construed to promote their purposes.’ As one appellate decision
       aptly framed the philosophy underlying expungement: ‘[P]eople make
       mistakes [and] afterwards they regret their conduct and are older, wiser, and
       sadder. The enactment and amendment of R.C. 2953.31 and 32 is, in a
       way, a manifestation of the traditional Western civilization concepts of sin,
       punishment, atonement, and forgiveness. Although rehabilitation is not
       favored in current penal thought, the unarguable fact is that some people do
       rehabilitate themselves.’”

       We note further that whether to prosecute and what charges to file are
       decisions that generally rest in the prosecutor’s discretion. A prosecutor
       should remain free to exercise his or her discretion to determine the extent
       of the societal interest in prosecution. This discretion is no less important
       when applied to issues such as expungement.

(Citations omitted.) Boddie at ¶ 8-9.

      {¶9} Appellant’s first assignment of error is sustained.

      {¶10} R.A.’s second assignment of error, in which he argues that the trial court

erred in not making findings with respect to each of the five factors set forth in R.C.

2953.32(C) for determining whether an applicant is eligible for expungement, is

overruled as moot in light of our resolution of the first assignment of error. App.R.

12(A)(1)(c).
       {¶11} Reversed and remanded.

       It is ordered that appellant recover from 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.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
