[Cite as State v. Gearhardt, 2019-Ohio-391.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 28088
                                                     :
 v.                                                  :   Trial Court Case No. 2015-CR-2465
                                                     :
 MICHAEL S. GEARHARDT                                :   (Criminal Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                            Rendered on the 8th day of February, 2019.

                                                ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

BRYAN K. PENICK, Atty. Reg. No. 0071489 and JOSHUA R. SCHIERLOH, Atty. Reg.
No. 0078325, 1900 Kettering Tower, 40 N. Main Street, Dayton, Ohio 45423
      Attorneys for Defendant-Appellant

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


DONOVAN, J.

       {¶ 1} This matter is before the Court on the August 13, 2018 Notice of Appeal of

Michael S. Gearhardt. Gearhardt appeals from the trial court’s July 13, 2017 entry

denying his motion to seal the record of his case. The State filed a notice of conceded

error pursuant to Loc.R. 2.24 of the Second District Court of Appeals. We hereby reverse

the judgment of the trial court and remand the matter for proceedings consistent with this

opinion.

       {¶ 2} Gearhardt was indicted on October 26, 2015, on two counts of possession of

drugs (cocaine and heroin) (Counts 1 and 2); one count of illegal use or possession of

drug paraphernalia (Count 3); four counts of driving while under the influence of alcohol

and/or drugs (Counts 4 through 8); and one count of possession of hashish (Count 9).

       {¶ 3} Gearhardt pled not guilty on November 10, 2015. On November 11, 2015,

he filed a “Motion for Intervention in Lieu of Conviction.” After a continuance, Gearhardt

pled guilty on December 31, 2015, to Count 5, driving while under the influence of alcohol,

a drug of abuse, or a combination of them, in violation of R.C. 4511.19(A)(1)(b), a

misdemeanor of the first degree.

       {¶ 4} On January 5, 2016, the trial court issued a “Decision and Order of

Intervention in Lieu of Conviction,” effective December 31, 2015, which provided:

       On DECEMBER 31, 2015, pursuant to the defendant’s Application for

       Intervention in Lieu of Conviction (ILC) filed in accordance with Section

       2951.04 of the Ohio Revised Code, and the defendant having tendered a

       plea of guilty to the offense(s) of POSSESSION OF COCAINE (less than 5

       grams)(F5); POSSESSION OF HEROIN (F5); DRUG PARAPHERNALIA
                                                                                       -3-


      OFFENSE (M4); POSSESSION OF HASHISH (MM), under Ohio Revised

      Code Section 2925.11(A), 2925.14(C)(1), the Court concludes that the

      defendant is eligible for Intervention in Lieu of Conviction (ILC), withholds

      an adjudication of guilt and orders that all criminal proceedings be stayed.

(Emphasis omitted.)

      {¶ 5} Also on January 5, 2016, the court issued a Judgment Entry of Conviction

on the offense of operating a vehicle while under the influence of drugs, alcohol or

combination of both (Count 5). The court sentenced Gearhardt to community control

sanctions for a period not to exceed five years and imposed a requirement that he “abide

by all terms and conditions imposed for Counts 1, 2, 3 and 9 (Possession of Cocaine (less

than 5 grams)(F)(5); Possession of Heroin (F)(5); Drug Paraphernalia Offense (M4);

Possession of Hashish (MM)(Granted ILC).” (Emphasis omitted.) The remaining charges

were dismissed (Counts 4, 6, 7, and 8).

      {¶ 6} On January 6, 2017, the trial court terminated Gearhardt’s community

control, finding that he had “abided by all the sanctions of community control previously

imposed, and [was] rehabilitated to the extent that the community control period should

be terminated.” On January 26, 2017, the Court issued a “Termination Entry” which

stated that Gearhardt had “successfully completed Intervention in Lieu of Conviction” and

dismissed the case.

      {¶ 7} On June 22, 2018, Gearhardt filed a motion to seal the record of his

conviction and arrest pursuant to R.C. 2953.52(A)(1) and a supporting affidavit. The

court set a hearing on the motion for July 19, 2018, but on July 9, 2018, the hearing was

continued to August 2, 2018, due to a scheduling conflict of defense counsel.
                                                                                     -4-


      {¶ 8} Inexplicably, on July 13, 2018, the court issued an entry denying the motion

to seal the record. The court determined that Gearhardt “does not meet the criteria

according to R.C. 2953.52(B)(2).” The court found that there “appear[ed] to be a

governmental need to maintain the record of dismissal.” The court noted:

             Mr. Gearhardt was granted ILC on Counts 1, 2, 3, and 9 of the

      indictment on December 31, 2015, and successfully completed it on

      January 26, 2017, and [these counts] of the indictment [were] dismissed.

      He was granted community control sanctions on Count 5 on December 31,

      2015, and was granted a complete termination of probation on January 26,

      2017. Counts 4, 6, 7, and 8 were dismissed on December 31, 2015. As

      the OVI conviction is by statute not a sealable offense, the record of

      Dismissal as to counts 1, 2, 3, and 9 of this case should be maintained as

      the result of or in connection with the same act that supports a conviction,

      when the records of conviction are not sealable.

      {¶ 9} Gearhardt asserts two assignments of error on appeal, which we will consider

together. They are as follows:

             THE    TRIAL    COURT      ERRED      WHEN      IT   DETERMINED

      GEARHARDT WAS NOT ELIGIBLE TO SEAL DISMISSED CHARGES.

             THE TRIAL COURT COULD NOT DETERMINE WHETHER

      GEARHARDT’S DISMISSED CHARGES WERE PRECLUDED FROM

      BEING SEALED BY R.C. § 2953.61 WITHOUT FIRST HOLDING AN

      EVIDENTIARY HEARING.

      {¶ 10} Gearhardt “acknowledges his OVI conviction cannot be sealed” pursuant
                                                                                            -5-


to R.C. 2953.36(A)(2). However, he asserts that R.C. 2953.52 authorized the trial court

to seal criminal records related to Gearhardt’s dismissed charges, regardless of his OVI

conviction, subject to the provisions found in R.C. 2953.61. Gearhardt further asserts

that the “trial court could not overrule [his] application to seal records without holding an

evidentiary hearing.” He acknowledges that “if the record of one charge cannot be

sealed, any charges filed as a result of or in connection with the act that resulted in the

unsealable charg[e] cannot be sealed. However, to make that determination, a trial court

is required to make specific factual findings that can only be made following a hearing.”

Gearhardt seeks a remand for a hearing.

       {¶ 11} The State concedes that Gearhardt was entitled to a hearing on his motion

to seal records and that this case should be remanded to allow the trial court to hold a

hearing and make the necessary findings.

       {¶ 12} R.C. 2953.52 provides:

                (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
                                                                                   -6-

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;
                                                                                        -7-


             (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.

(Emphasis added.)

      {¶ 13} R.C. 2953.61 provides:

             (A) Except as provided in division (B)(1) of this section, a person

      charged with two or more offenses as a result of or in connection with the

      same act may not apply to the court pursuant to section 2953.32 or 2953.52

      of the Revised Code for the sealing of the person's record in relation to any

      of the charges when at least one of the charges has a final disposition that

      is different from the final disposition of the other charges until such time as

      the person would be able to apply to the court and have all of the records

      pertaining to all of those charges sealed pursuant to section 2953.32 or

      2953.52 of the Revised Code.

             (B)(1) When a person is charged with two or more offenses as a

      result of or in connection with the same act and the final disposition of one,

      and only one, of the charges is a conviction under any section of Chapter

      4507., 4510., 4511., or 4549., other than section 4511.19 or 4511.194 of

      the Revised Code, or under a municipal ordinance that is substantially

      similar to any section other than section 4511.19 or 4511.194 of the Revised

      Code contained in any of those chapters, and if the records pertaining to all

      the other charges would be eligible for sealing under section 2953.52 of the

      Revised Code in the absence of that conviction, the court may order that
                                                                                           -8-


       the records pertaining to all the charges be sealed. In such a case, the court

       shall not order that only a portion of the records be sealed.

       {¶ 14} The State further directs our attention to State v. Davis, 175 Ohio App.3d

318, 2008-Ohio-753, 886 N.E.2d 916, ¶ 18 (2d Dist.) (“This court has held that the

requirement of a hearing, as set forth in R.C. 2953.52(B) is mandatory * * *.”). The State

asserts that it “very well may be the case that all of Gearhardt’s offenses arise ‘as a result

of or in connection with’ the OVI, and are, therefore, unsealable. But the court made no

such findings of fact. In other words, the record, as it stands, does not support any

decision on [the merits of] Gearhardt’s motion. The solution is to remand for a hearing.”

       {¶ 15} Based upon the foregoing, Gearhardt’s assigned errors are sustained. The

judgment of the trial court is reversed, and the matter is remanded for further proceedings

consistent with this opinion.



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



HALL, J. and TUCKER, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Bryan K. Penick
Joshua R. Schierloh
Hon. Mary L. Wiseman
