[Cite as State v. Zollnger, 2016-Ohio-8369.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2016 CA 0002
SCOTT A. ZOLLINGER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2010 CR 0263


JUDGMENT:                                      Reversed and Remanded



DATE OF JUDGMENT ENTRY:                        December 22, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GREGG MARX                                     DAVID A. SAMS
PROSECUTING ATTORNEY                           Post Office Box 40
239 West Main Street, Suite 101                West Jefferson, Ohio 43612
Lancaster, Ohio 43130
Fairfield County, Case No. 2016 CA 0002                                                   2

Wise, J.

       {¶1}   Appellant Scott Zollinger appeals from the decision of the Court of Common

Pleas, Fairfield County, which denied his motion to seal a previously-dismissed

indictment. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

follows.

       {¶2}   On June 25, 2010, appellant was indicted by the Fairfield County Grand

Jury (case number 10 CR 0263) on several counts of sexual battery, all felonies of the

third degree. Subsequently, on January 6, 2011, appellant was charged by way of a bill

of information in Fairfield County Common Pleas Court with two counts of attempted

tampering with evidence (case number 11 CR 0002), both felonies of the fourth degree.

       {¶3}   Pursuant to a plea agreement under case number 10 CR 0263, appellant

indicated he would plead guilty to the attempted tampering counts in the bill of information

in 11 CR 0002 in exchange for the State dismissing the sexual battery indictment in 10

CR 0263.

       {¶4}   On January 21, 2011, appellant pled guilty as charged in 11 CR 0002, the

attempted tampering case, and he was thereafter sentenced to community control, with

ninety days in jail and additional conditions. In 10 CR 0263, there were no pleas or

convictions in regard to the sexual battery indictment, and those charges were dismissed

with prejudice.

       {¶5}   On October 12, 2015, appellant filed a “motion to seal record after

dismissal” under 10 CR 0263, asking the trial court to seal the aforementioned dismissed
Fairfield County, Case No. 2016 CA 0002                                                  3


sexual battery indictment pursuant to R.C. 2953.52. On the same day, appellant filed a

motion under 11 CR 0002 to seal his attempted tampering conviction.1

       {¶6}   On December 23, 2015, the trial court conducted a hearing, noting that it

was not in possession of the post-dismissal motion to seal indictment in 10 CR 0263, and

that it would therefore only consider the motion to seal conviction under 11 CR 0002. See

Hearing Tr. at 9-11, 54.

       {¶7}   Following said oral hearing, via a judgment entry issued January 4, 2016,

the trial court granted the motion to seal conviction under 11 CR 0002. However, in a

separate judgment entry filed on the same day, the court overruled the motion to seal the

indictment in 10 CR 0263, indicating the judge had obtained and reviewed said motion

subsequent to the hearing date of December 23, 2015. The court therein ruled in pertinent

part as follows:

              Unlike statutes governing a motion to seal the record of a conviction,

       there is no statutory procedure for sealing a record after the dismissal of a

       case. However, courts have inherent authority to grant that request in

       appropriate circumstances. *** The dismissal of this case resulted from a

       plea agreement in which (a) the defendant admitted guilt for sexual battery

       offenses in this case, and (b) the state agreed to accept guilty pleas in Case

       No. 2011 CR 0002 in lieu of its further prosecution of this case. To the extent

       that the court has any legislative guidance for a motion to seal a dismissal




1  Because the trial court record from 11 CR 0002 is not before us, we rely upon the
assertions in the briefs as to some of the procedural history of that case.
Fairfield County, Case No. 2016 CA 0002                                                     4


         record, R.C. 2953.36(B) precludes a motion to seal the record for a sexual

         battery conviction.

         {¶8}   Judgment Entry, January 4, 2016, at 2.

         {¶9}   On February 2, 2016, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:

         {¶10} “I. THE TRIAL COURT ERRED WHEN OVERRULING A MOTION TO

SEAL THE DEFENDANT-APPELLANT'S DISMISSED INDICTMENT CONTRARY TO

R.C. 2953.36 AND 2953.52.”

                                              I.

         {¶11} In his sole Assignment of Error, appellant contends the trial court erred in

overruling his motion to seal the dismissed sexual battery indictment from 2010. We

agree.

         {¶12} R.C. 2953.52 governs applications to seal records where either the

underlying charges have been dismissed or the individual was found not guilty. See State

ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989,

¶ 24. It first provides in pertinent part that “[a]ny 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. ***.” R.C. 2953.52(A)(1). Furthermore, “[u]pon 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 application. ***.” R.C.

2953.52(B)(1). The statute then directs the trial court to, among other things, “[w]eigh the

interests of the person in having the official records pertaining to the case sealed against
Fairfield County, Case No. 2016 CA 0002                                                     5

the legitimate needs, if any, of the government to maintain those records.” See R.C.

2953.52(B)(2)(d).

        {¶13} Appellant contends his motion in the case sub judice was improperly

overruled in the absence of the trial court statutorily weighing the interests of appellant in

favor of sealing the indictment and of the State against sealing it. Cf. In re M.C.H., 994

N.E.2d 54, 2013-Ohio-2656, ¶ 26 (5th Dist.) (reversing in a juvenile’s appeal of the denial

of his request for sealing of his dismissed delinquency offenses, holding the trial court

was required to conduct a hearing and make proper findings to demonstrate compliance

with the pertinent juvenile statute, R.C. 2151.356(C)(2)(e)). Even though sealing a

dismissed indictment and sealing a conviction are statutorily distinct processes, the State

urges in response that the trial court’s ruling at issue did not create prejudicial error,

because the court was familiar with the testimony and arguments presented in the

December 23, 2015 hearing concerning the motion to seal conviction under 11 CR 0002.

However, in this instance the trial court also concluded that because 10 CR 0263 involved

sex offenses, expungement of the indictment was not permitted pursuant to another

statute, namely R.C. 2953.36. We find this interpretation of the law was erroneous, as

R.C. 2953.36 clearly sets forth the types of convictions that preclude sealing. See State

v. Ritchie, 174 Ohio App.3d 582, 2007-Ohio-6577, ¶ 15 (5th Dist.).2

        {¶14} Ohio's expungement laws are to be construed liberally to serve their

remedial purpose. In re Yoder, 12th Dist. Butler No. CA2016–04–082, 2016-Ohio-7190,

¶ 13. Under the circumstances of this case, given the trial court’s combined failure to hold

a specific hearing under R.C. 2953.52(B), supra, and the court’s improper application of



2   R.C. 2953.36(A)(8) additionally addresses bail forfeitures in traffic cases.
Fairfield County, Case No. 2016 CA 0002                                             6


R.C. 2953.36 to block appellant’s request to seal the dismissed indictment, we find

reversal and remand for a hearing is warranted.

      {¶15} Appellant's sole Assignment of Error is therefore sustained.

      {¶16} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is hereby reversed and remanded for further

proceedings.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.




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