[Cite as State v. Muse, 2018-Ohio-3402.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :  Appellate Case No. 27972
                                                 :
 v.                                              :  Trial Court Case No. 16-CR-2392
                                                 :
 THOMAS B. MUSE, III                             :  (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellee                      :
                                                 :
                                            ...........

                                           OPINION

                            Rendered on the 24th day of August, 2018.

                                            ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery
County Prosecutor’s Office, Appellate Division, 301 W. Third Street, 5th Floor, Dayton,
Ohio 45422
      Attorney for Plaintiff-Appellee

GARY C. SHAENGOLD, Atty. Reg. No. 0007144, 4 E. Schantz Avenue, Dayton, Ohio
45409
      Attorney for Defendant-Appellant

                                           .............
                                                                                          -2-


HALL, J.

       {¶ 1} Thomas B. Muse III appeals from the trial court’s denial of his application to

seal his record after the successful completion of diversion and the dismissal of a criminal

charge against him.

       {¶ 2} In his sole assignment of error, Muse contends the trial court erred in failing

to follow the statutory mandates of R.C. 2953.52(B) and in failing to conduct a hearing

prior to denying his application. For its part, the State has conceded error in the trial

court’s failure to hold a hearing before denying the application.

       {¶ 3} The record reflects that Muse was charged with theft of $1,000 or more from

an elderly or disabled person, a fourth-degree felony. The trial court placed him in a

diversion program, which he completed successfully. The trial court then filed a

termination entry dismissing the criminal case against Muse with prejudice. Nearly three

months later, he filed a February 13, 2018 application for sealing of the record of the

criminal case pursuant to R.C. 2953.52(A). (Doc. #14). The next entry in the trial court’s

docket is an April 3, 2018 order denying the application for sealing “[f]or the reasons set

forth in the ‘Report of Application for Sealing of Arrest Record[.]’ ” (Doc. #15). The

referenced report, written by an employee of the diversion program, noted that Muse had

been convicted of misdemeanor theft in Xenia Municipal Court just days before filing his

application for sealing. In light of the recent misdemeanor conviction, the diversion officer

had recommended denying the application.

       {¶ 4} With regard to applications for sealing records, R.C. 2953.52(B)(1) and (2)

provide:

       (B)(1) Upon the filing of an application pursuant to division (A) of this
                                                                                   -3-


section, the court shall set a date for a hearing and shall notify the

prosecutor in the case of the hearing on the application. The prosecutor

may object to the granting of the application by filing an objection with the

court prior to the date set for the hearing. The prosecutor shall specify in the

objection the reasons the prosecutor believes justify a denial of the

application.

(2) The court shall do each of the following, except as provided in division

(B)(3) of this section:

(a)(i) Determine whether the person was found not guilty in the case, or the

complaint, indictment, or information in the case was dismissed, or a no bill

was returned in the case and a period of two years or a longer period as

required by section 2953.61 of the Revised Code has expired from the date

of the report to the court of that no bill by the foreperson or deputy

foreperson of the grand jury;

(ii) If the complaint, indictment, or information in the case was dismissed,

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;

(b) Determine whether criminal proceedings are pending against the

person;

(c) If the prosecutor has filed an objection in accordance with division (B)(1)

of this section, consider the reasons against granting the application

specified by the prosecutor in the objection;
                                                                                          -4-


       (d) Weigh 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.

       {¶ 5} Here it is not apparent from the trial court’s bare reference to Muse’s recent

misdemeanor conviction       that it engaged       in the analysis      required by R.C.

2953.52(B)(2)(d), which involves weighing his interest in sealing against any legitimate

government need to maintain the record. We also see no indication that the trial court

scheduled or held a hearing on Muse’s application before denying it, as required by R.C.

2953.52(B)(1). This court has recognized that “[t]he requirement of a hearing, as set forth

in R.C. 2953.52(B), is mandatory.” State v. S.D.A., 2d Dist. Montgomery No. 27446, 2017-

Ohio-8414, ¶ 12. Accordingly, we agree with the parties that the trial court erred in failing

to comply with R.C. 2953.52(B) before denying Muse’s application.

       {¶ 6} The assignment of error is sustained. The judgment of the Montgomery

County Common Pleas Court is reversed, and the cause is remanded for further

proceedings.

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



FROELICH, J. and TUCKER, J., concur.


Copies mailed to:

Mathias H. Heck
Michael P. Allen
Gary C. Schaengold
Hon. Mary Katherine Huffman
