[Cite as State v. Wright, 191 Ohio App.3d 647, 2010-Ohio-6259.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PUTNAM COUNTY




The STATE OF OHIO,

        APPELLEE,                                                 CASE NO. 12-10-08

        v.

WRIGHT,                                                           OPINION

        APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                           Trial Court No. 2003-CR-12

                       Judgment Reversed and Cause Remanded

                         Date of Decision: December 20, 2010




APPEARANCES:

        Jennifer L. Klausing, for appellee.

        Karen Wright, for appellant.
Case No. 12-10-08



         ROGERS, Judge.

         {¶ 1} Defendant-appellant, Karen Wright, appeals the judgment of the

Court of Common Pleas of Putnam County denying her application to seal the

records of her conviction for forgery. On appeal, Wright argues that the trial court

abused its discretion in failing to conduct a hearing on her application pursuant to

R.C. 2953.32. Based upon the following, we reverse the judgment of the trial

court.

         {¶ 2} In March 2003, in the Court of Common Pleas of Putnam County,

Wright pleaded guilty to one count of forgery in violation of R.C. 2913.31(A)(3),

a felony of the fifth degree. Thereafter, in June 2003, the trial court sentenced

Wright to a 20-day jail term and three years of community control.

         {¶ 3} In April 2010, Wright filed a pro se “Request for Expungment” [sic],

pursuant to R.C. 2953.32, asserting that she had only one felony conviction, and

requesting that the trial court seal the record of her first offense. The record does

not reflect that the trial court set a date for a hearing on the matter or held a

hearing. Shortly thereafter, the trial court denied Wright’s request, stating, “The

Court, having carefully considered said motion, finds it not well taken.” (Emphasis

sic.)




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       {¶ 4} The state supplemented the record on appeal to contain Wright’s

presentence investigation, revealing that she had the following record as an adult:

one count of assault, one count of domestic violence, one count of petty theft, and

one count of operating a vehicle with no valid operator’s license.

       {¶ 5} It is from the trial court’s judgment that Wright appeals, presenting

the following assignment of error for our review.

              The trial court erred and abused its discretion when it failed to
       conduct a hearing in accordance with R.C. 2953.32(B) on an
       application for expungement of a conviction.

       {¶ 6} In her sole assignment of error, Wright contends that pursuant to

R.C. 2953.32(B), the trial court was required to hold a hearing on her application

to seal the records of her conviction for forgery. Specifically, Wright argues that

the statute indicates that a hearing is mandatory. The state concedes that R.C.

2953.32(B) requires the trial court to hold a hearing on an application to seal

records of a conviction but contends that Wright’s presentence-investigation report

included a list of her convictions for assault, domestic violence, petty theft, and

operating a vehicle with no valid operator’s license; that from this report, Wright

was clearly not a first offender pursuant to R.C. 2953.32(A)(1); that consequently

Wright was ineligible to apply for sealing of her forgery conviction records; and

that because the trial court was aware of Wright’s prior convictions that rendered



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her ineligible as a first offender, a hearing was unnecessary. Alternately, the state

argues that even if the trial court’s failure to hold a hearing was in error, the error

was harmless because Wright was ineligible. We agree with Wright and disagree

with the state’s arguments.

       {¶ 7} We review a trial court’s decision to deny an application to seal a

record under an abuse-of-discretion standard. State v. Haidet, 3d Dist. No. 8-02-

25, 2003-Ohio-937, ¶5.

       {¶ 8} R.C. 2953.32 governs the sealing of records of a first offender and

provides:

               (A)(1) Except as provided in section 2953.61 of the Revised
       Code, a first offender may apply to the sentencing court if convicted
       in this state, or to a court of common pleas if convicted in another
       state or in a federal court, for the sealing of the conviction record.
       Application may be made at the expiration of three years after the
       offender’s final discharge if convicted of a felony, or at the
       expiration of one year after the offender’s final discharge if
       convicted of a misdemeanor.

              ***

              (B) Upon 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.

(Emphasis added.)

       {¶ 9} This court and many other courts have found that once an offender

files an application to seal his records under R.C. 2953.32, a hearing is mandatory,


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and we are bound by that precedent. See State v. Looney, 3d Dist. No. 14-86-34,

1988 WL 138002, citing State v. Saltzer (1984), 14 Ohio App.3d 394. See also

State ex rel. Gains v. Rossi, 7th Dist. No. 98-CA-51, 1999 WL 148364; State v.

Bauer, 2d Dist. No. 15316, 1996 WL 144201; Middletown v. Egelston, 12th Dist.

No. CA85-08-097, 1986 WL 3294; State v. Starkey, 11th Dist. No. 90-T-4463,

1991 WL 26772, *1 (Christley, P.J., concurring) (“A summary denial of the

petition prior to hearing was clearly not contemplated by the legislature. It may

well be that an oral hearing is not always required; nevertheless, once the

petitioner [claims] to be a first offender, an opportunity is required for the

petitioner to submit evidentiary material as well as his or her arguments

concerning that and other issues” [emphasis sic]). We emphasize the Starkey

concurrence finding that an oral hearing is not always required. See also State v.

Williams, 3d Dist. No. 1-10-24, 2010-Ohio-5193, ¶8 (Rogers, J., dissenting, citing

Buckeye Supply Co. v. Northeast Drilling Co. (1985), 24 Ohio App.3d 134,

finding that “[i]t is acceptable practice * * * for trial courts to dispose of motions

without formal hearing, so long as due process rights are afforded”).

       {¶ 10} This court has further emphasized that in determining whether to

seal a record, “‘[t]he court shall do each of the following: (a) Determine whether

the applicant is a first offender * * *; (b) Determine whether criminal proceedings



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are pending against the applicant; (c) If the applicant is a first offender who

applies pursuant to division (A)(1) of this section, determine whether the applicant

has been rehabilitated to the satisfaction of the court; (d) If the prosecutor has filed

an objection in accordance with division (B) of this section, consider the reasons

against granting the application specified by the prosecutor in the objection; (e)

Weigh the interests of the applicant in having the records pertaining to the

applicant’s conviction sealed against the legitimate needs, if any, of the

government to maintain those records.’” (Emphasis sic.) Haidet, 2003-Ohio-937,

at ¶5, quoting R.C. 2953.32(C)(1).

       {¶ 11} The Fifth Appellate District has held that when an appellant is not

eligible to have her conviction sealed, a trial court does not err in entering

judgment and overruling the appellant’s motion without first hearing the merits of

the motion. State v. Rose, 5th Dist. No. 04 CA-04-027, 2004-Ohio-4433, ¶10;

State v. Poole, 5th Dist. No. 1116, 1995 WL 809875. However, Rose involved a

request to seal records of a domestic-violence conviction, for which R.C.

2953.36(C) prohibits sealing (“2953.35 of the Revised Code [does] not apply to

any of the following: * * * (C) Convictions of an offense of violence when the

offense is a misdemeanor of the first degree or a felony”). Similarly, Poole

involved an application to seal records of a conviction for gross sexual imposition,



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for which R.C. 2953.36 prohibits sealing. See also Aurora v. Bulanda, 11th Dist.

No. 95-P-0130, 1996 WL 648995 (finding that a trial court did not err in failing to

hold a hearing on an application to seal records of a conviction for driving while

intoxicated, for which R.C. 2953.36 prohibits sealing).

      {¶ 12} In contrast, courts examining situations more similar to the situation

before us, in which the applicant may have been ineligible because he or she was

not a first offender, have nevertheless found a hearing on the application to be

mandatory. See State v. Hagopian, 10th Dist. No. 98AP-1572, 1999 WL 731381;

State v. Woolley, 8th Dist. No. 67312, 1995 WL 143808. In Hagopian, the trial

court summarily denied an appellant’s application to seal records of his criminal

record after setting a date for a hearing but failing to conduct a hearing on the

matter. On appeal, the state contended that because the appellant was not a first

offender and thus could not satisfy the requirements of R.C. 2953.31(C)(1)(a), the

trial court did not err in failing to hold a hearing, as it would serve no purpose.

However, the court found the situation analogous to Woolley, in that “(1) the state

opposed the application on the grounds that the applicant was not a first offender,

(2) no hearing was held on the application, and (3) the trial court did not indicate

in its entry denying the application that any of the factors set out in R.C.

2953.32(C) were considered,” and found that “a hearing is required under R.C.



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2953.32(B) for any application for expungement.” Moreover, the court noted that

it could not determine that a hearing was futile from the record, because it

contained no evidence that the applicant was not a first offender apart from the

state’s undocumented contention.

         {¶ 13} The facts before us differ slightly from those in Hagopian, as the

record in the case sub judice contains a presentence-investigation report revealing

that Wright had been previously convicted of several offenses, including assault

and domestic violence.1 However, as in Hagopian and Woolley, the trial court

here did not indicate in its entry why the application was denied, such as by setting

forth that it had considered factors in R.C. 2953.32(C). Further, in this case, the

record does not reflect that the state filed any opposition to Wright’s application or

that the trial court set a date for a hearing, oral or nonoral, on the matter. Given

the circumstances of this case, we are persuaded that the trial court was required to

conduct a hearing prior to deciding Wright’s application, particularly given that

R.C. 2953.32(C)(1)(a) provides that one of the purposes of the hearing is for the

trial court to determine whether the applicant is a first offender.

         {¶ 14} Accordingly, we sustain Wright’s assignment of error.



1
     We reiterate that the state supplemented the record on appeal to contain Wright’s presentence
investigation; thus, it is not clear whether the presentence investigation was before the trial court when it
denied her application.


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      {¶ 15} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                                Judgment reversed
                                                               and cause remanded

      WILLAMOWSKI, P.J., concurs.

      PRESTON, J., concurs in judgment only.




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