[Cite as State v. J.M.S, 2019-Ohio-3383.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellant,             :                No. 18AP-772
                                                               (C.P.C. Nos. 15CR-2547
v.                                                :                and 15CR-2977)

[J.M.S.],                                         :           (REGULAR CALENDAR)

                 Defendant-Appellee.              :


                                            D E C I S I O N

                                     Rendered on August 22, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B.
                 Swanson, for appellant. Argued: Valerie B. Swanson.

                ON APPEAL from the Franklin County Court of Common Pleas

McGRATH, J.

        {¶ 1} Plaintiff-appellant, the State of Ohio, has filed an appeal from a judgment of
the Franklin County Court of Common Pleas which granted the application to seal the
record in two cases involving defendant-appellee, J.M.S., case Nos. 15CR-2574 and 15CR-
2977. For the following reasons, we reverse the trial court's judgment.
I. Facts and Procedural History
        {¶ 2} On May 27, 2015, the Franklin County Grand Jury indicted appellee in case
No. 15CR-2574, charging him with theft, a felony of the fifth degree. On June 18, 2015, the
Franklin County Grand Jury indicted appellee in case No. 15CR-2977 with another count
of theft, a felony of the fifth degree. The cases were dismissed after appellee completed
intervention in lieu of conviction.
        {¶ 3} On July 23, 2018, appellee filed an application to seal the record in both case
Nos. 15CR-2574 and 15CR-2977. The state objected to the application arguing that appellee
was ineligible to seal the records because he had a pending criminal proceeding case in the
Franklin County Municipal Court. In case No. 2017CRB-025468, appellee was convicted
No. 18AP-772                                                                               2


of attempted violation of a protection order and placed on community control until May 24,
2020.
        {¶ 4} After a hearing, the trial court found that appellee did not have pending
criminal proceedings even though he was on community control and granted the
application to seal.
II. Assignments of Error
        {¶ 5} The state filed a timely notice of appeal and assigns the following assignment
of error for our review:
                THE TRIAL COURT ERRED WHEN IT GRANTED
                DEFENDANT'S APPLICATION FOR SEALING, AS HIS
                CURRENT STATUS ON COMMUNITY CONTROL
                CONSTITUTES A PENDING CRIMINAL PROCEEDING
                WHICH RENDERS HIM INELIGIBLE.

III. Analysis
        {¶ 6} In Ohio, " 'there are currently two statutory methods to expunge and seal
criminal records.' " State v. Heidrick, 10th Dist. No. 12AP-1054, 2013-Ohio-3544, ¶ 5,
quoting Schussheim v. Schussheim, 12th Dist. No. CA2011-07-078, 2012-Ohio-2573, ¶ 10,
reversed on appeal, 137 Ohio St.3d 133, 2013-Ohio-4529. R.C. 2953.32 permits convicted
first-time offenders to seek the sealing of their conviction records and R.C. 2953.52 permits
the sealing of an applicant who was found not guilty, or the case was dismissed or a grand
jury returned a no bill. Heidrick at ¶ 5.
        {¶ 7}   In this case, the application was filed pursuant to R.C. 2953.52, which
provides, in part:
                (A)(1) Any person, who is found not guilty of an offense by a
                jury or a court or who is the defendant named in a dismissed
                complaint, indictment, or information, may apply to the court
                for an order to seal the person's official records in the case.
                Except as provided in section 2953.61 of the Revised Code, the
                application may be filed at any time after the finding of not
                guilty or the dismissal of the complaint, indictment, or
                information is entered upon the minutes of the court or the
                journal, whichever entry occurs first.

                ***

                (B)(1) Upon the filing of an application pursuant to division
                (A) of this section, the court shall set a date for a hearing and
                shall notify the prosecutor in the case of the hearing on the
No. 18AP-772                                                                               3


               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 * * *;

               (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;

               (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.

       {¶ 8} Thus, when an applicant files a request for the sealing of records, "R.C.
2953.52(B)(2) requires the trial court to: (1) determine whether the applicant was found
not guilty or whether the complaint, indictment, or information was dismissed;
(2) determine whether criminal proceedings are pending against the applicant; and
(3) determine whether the prosecutor filed an objection in accordance with R.C.
2953.52(B)(1) and to consider the prosecutor's reasons for the objection." State v. Newton,
10th Dist. No. 01AP-1443, 2002-Ohio-5008, ¶ 7. The trial court must weigh the interest of
the applicant in having his records sealed against the legitimate need of the government to
maintain those records. If the trial court determines that the applicant's interest in having
the records sealed outweighs the government's interest in maintaining the records, the trial
court shall issue an order sealing the records. R.C. 2953.52(B)(3). The burden is on the
No. 18AP-772                                                                                            4


applicant to demonstrate that his interest in having the records sealed is equal to or greater
than the government's interest in maintaining those records. Newton at ¶ 9.
        {¶ 9} In this case, the trial court was required to determine whether appellee meets
the requirements for sealing the records. The sealing of criminal records " 'is a privilege,
not a right.' " State v. Hooks, 10th Dist. No. 15AP-522, 2016-Ohio-3138, ¶ 7, quoting State
v. Moore, 5th Dist. No. 2012CA00047, 2012-Ohio-4483, ¶ 16. "In Ohio, 'expungement'
remains a common colloquialism used to describe the process of sealing criminal records
pursuant to statutory authority." In re K.J., 10th Dist. No. 13AP-1050, 2014-Ohio-3472,
¶ 8, citing State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11.
        {¶ 10} Generally, an appellate court reviews a trial court's disposition of an
application to seal a record of conviction under an abuse of discretion standard. Newton
at ¶ 8. An abuse of discretion connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219 (1983). However, with issues involving a question of law,
an appellate court reviews the trial court's determination de novo. State v. Norfolk, 10th
Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v. Derugen, 110 Ohio App.3d 408,
410 (3d Dist.1996).
        {¶ 11} In this case, the state filed an objection to sealing appellee's record arguing
he has a pending criminal proceeding against him since he was placed on community
control until May 24, 2020, in case No. 2017CRB-025468. In that case, he was convicted
of attempted violation of a protection order. Thus, the issue is whether community control
constitutes pending criminal proceedings under R.C. 2953.52.
        {¶ 12} The trial court determined that the legislature permitted an applicant to file
anytime pursuant to R.C. 2953.52, where as in R.C. 2953.32, an applicant cannot apply for
sealing the records until three years after a final discharge, if convicted of a felony, which
includes probation or community control being completed.1 (Tr. at 10.) The trial court
reasoned that the language differed because the legislature does not intend an applicant
pursuant to R.C. 2953.52 to have completed probation or community control before filing
an application. The legislature used different language, including "pending" criminal
proceeding versus "final discharge" in the sealing statutes. Compare R.C. 2953.52 with

1 R.C. 2953.32 provides an applicant cannot apply for sealing the records until one year if convicted of a

misdemeanor. We note that R.C. 2953.32 was amended, effective April 8, 2019.
No. 18AP-772                                                                                                  5


R.C. 2953.32. The trial court cited State v. Blair, 1st Dist. No. C-160333, 2016-Ohio-57142
where the applicant was on community control and the First District Court of Appeals
found as a matter of law that the applicant was not eligible to have the record sealed because
the community control constituted a pending criminal proceeding. However, the trial court
in this case noted that Blair was not binding authority and disagreed with Blair and granted
the application to seal the records.
         {¶ 13} The parties do not dispute that appellee is currently serving a term of
community control. R.C. 2929.25 governs misdemeanor community control sanctions.
R.C. 2929.25 provides a trial court with two options when sentencing an offender to
community control, either (1) impose a sentence of community control, or (2) impose a jail
term and suspend some or all of that sentence and place the offender on community
control.    R.C. 2929.25(A)(1)(a) and (b).             If the court sentences the offender to any
community control sanction or combination of community control sanctions, authorized
under R.C. 2929.26, 2929.27 or 2929.28, the sentencing court retains jurisdiction over the
offender for the duration of the sanctions imposed. R.C. 2929.25(C); State v. Floyd, 1st
Dist. No. C-170607, 2018-Ohio-5107, ¶ 14 (Miller, J., dissenting), appeal accepted for
review, 155 Ohio St.3d 1420, 2019-Ohio-1421.
         {¶ 14} In Blair, the court recognized that community control sanctions are imposed
as the punishment for an offense at a sentencing hearing. Blair at ¶ 8, citing State v. Heinz,
146 Ohio St.3d 374, 2016-Ohio-2814, ¶ 14. "It is part of the offender's sentence." Blair at
¶ 8, citing State v. Ushery, 1st Dist. No. C-120515, 2013-Ohio-2509, ¶ 8. The sentencing
court exercises its criminal jurisdiction when it revokes community control and the
community control hearings are formal, adversarial proceedings. Id. If an offender violates
community control, the court sentences the offender anew. Id., citing State v. Fraley, 105
Ohio St.3d 13, 2004-Ohio-7110, ¶ 17. Thus, the court in Blair concluded that "a sentence of
community control is part of the criminal proceedings." Id. at ¶ 9.
         {¶ 15} The Ohio Revised Code does not define "criminal proceedings" or "pending."
The dissent in Floyd discussed the plain meaning of the terms. A "proceeding is the 'regular
and orderly progress in form of law, including all possible steps in an action from its


2Blair was overruled by another panel of the First District Court of Appeals in State v. Floyd, 1st Dist. No. C-
17067, 2018-Ohio-5107. In Floyd, the court found that once a sentence is imposed and the conviction is final,
the criminal proceeding is no longer pending, even when on community control.
No. 18AP-772                                                                                   6


commencement to the execution of judgment.' " Floyd at ¶ 17, (Miller, J., dissenting),
quoting State v. Reynolds, 5th Dist. No. 12-CA-6, 2012-Ohio-4363, ¶ 12 (citations omitted.)
Further, " 'Proceeding' is '[t]he business conducted by a court or other official body; a
hearing.' " Id. at ¶ 18, quoting Black's Law Dictionary (10th Ed.2014). "The term includes
among other things, 'the enforcement of the judgment.' Thus, 'criminal proceeding' is a
broader term than prosecution, and is used to encompass anything on a court's docket."
Id., quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure, 3-
4 (2d Ed.1899). The dissent in Floyd continued and defined "pending" as " ' "[b]egun, but
not yet completed; during; before the conclusion of; prior to the completion of; unsettled;
undetermined; in process of settlement or adjustment. * * * Thus, an action or suit is
'pending' from its inception until the rendition of final judgment." ' " Id. at ¶ 19 (Miller, J.,
dissenting), quoting McNeil v. Kingsley, 178 Ohio App.3d 674, 2008-Ohio-5536 (3d Dist.),
citing Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 103 (1988), superseded by
statute on other grounds, quoting Black's Law Dictionary, 1021 (5th Ed.1979).
       {¶ 16} The dissent in Floyd concludes, and we agree, that a community control
violation results in an additional sentencing hearing in the original case which, therefore,
remains pending.         The judgment is still being executed.     Because the court retains
jurisdiction for the duration of the community control sanction, the case remains pending.
Thus, appellee had criminal proceedings pending against him and was ineligible for sealing
of the records. The trial court erred in ordering the records sealed. The state's assignment
of error is sustained.
IV. Conclusion
       {¶ 17} For the foregoing reasons, the state of Ohio's assignment of error is
sustained, and the judgment of the Franklin County Court of Common Pleas is reversed;
and this case is remanded to that court for further proceedings.
                                                         Judgment reversed; case remanded.

                                  BROWN and DORRIAN, JJ.

               McGRATH, J., retired, of the Tenth Appellate District,
               assigned to active duty under the authority of the Ohio
               Constitution, Article IV, Section 6(C).
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