[Cite as In re M.C.H., 2013-Ohio-2656.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
IN THE MATTER OF: M.C.H.                      :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                                              :       Hon. Sheila G. Farmer, J.
                                              :
                                              :
                                              :       Case No. 12-CA-130
                                              :
                                              :
                                              :       OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County Court of
                                                  Common Pleas, Case No. 2010-DL-280

JUDGMENT:                                         Affirmed in part; reversed in part and
                                                  remanded

DATE OF JUDGMENT ENTRY:                           June 20, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

GREG MARX                                         SHERRIE HUSTEAD
BY: LORI THOMSON                                  1998 Refugee Street N.E.
239 West Main Street, Suite 100                   Millersport, OH 43046
Lancaster, OH 43130
[Cite as In re M.C.H., 2013-Ohio-2656.]


Gwin, P.J.

        {¶1}    Appellant M.C.H.1 a minor, appeals the October 26, 2012 judgment of the

Court of Common Pleas, Juvenile Division, Fairfield County, Ohio denying his motion to

Seal/Expunge Juvenile Records.

                                          Facts and Procedural History

        {¶2}    On June 25, 2010 in Case Number 2010-TR-0415 M.C.H. was cited by

the Millersport Police Department for Failure to Yield at an intersection while riding his

bicycle.2

        {¶3}    On June 28, 2010, a delinquency complaint was filed in case number

2010-DL-280 charging M.C.H. with one count of Assault, in violation of R.C. 2903.13,

one count of Sexual Imposition, in violation of R.C. 2907.06, one count of Menacing, in

violation of R.C. 2903.22, and one count of Disorderly Conduct, in violation of 2917.11.3

        {¶4}    By Judgment Entry filed July 30, 2010, the trial court granted the state

leave to nolle prosequi the traffic case because the parties had reached an agreement

and a delinquency case was pending.

        {¶5}    By Judgment Entry filed November 8, 2010 in the delinquency case, the

trial court granted the state’s motion to dismiss due to “inability to proceed.”

        {¶6}    On September 27, 2012, M.C.H. filed a “Motion to Seal Juvenile Records,”

pursuant to R.C. 2151.356(B)(1)(d) in both the traffic and the delinquency cases.

        {¶7}    On October 26, 2012, the trial court filed entries in each case denying the

motions because M.C.H. "has not shown to be rehabilitated to a satisfactory degree."


        1
          Counsel should adhere to Rule 45(D) of the Rules of Supt. for Courts of Ohio concerning
disclosure of personal identifiers.
        2
          5th Dist. No. 12-CA-131.
        3
          5th Dist. No. 12-CA-130.
Fairfield County, Case No. 12-CA-130                                                         3

                                           Assignments of Error

      {¶8}      M.C.H. raises one assignment of error,

      {¶9}      “I.    THE       JUVENILE         COURTS          ORDER         DENYING   THE

SEALING/EXPUNGEMENT                OF    THE     JUVENILES        DISMISSED        DELINQUENCY

OFFENSES AND THE NOLLE. PROSEQUI TRAFFIC OFFENSE IS CONTRARY TO

THE PLAIN WORDING OF O.R.C. 2151.356(B)(1)(d).”4

                                                  Analysis

      {¶10} No transcript of any court proceedings have been filed in the case at bar.

Because the transcript of the proceeds have not been not filed with the trial court or

made a part of the record for purposes of appeal, it does not constitute part of the

record on appeal. See App.R. 9(A).

                “When portions of the transcript necessary for resolution of

      assigned errors are omitted from the record, the reviewing court has

      nothing to pass upon and thus, as to the assigned errors, the court has no

      choice but to presume the validity of the lower court's proceedings, and

      affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400

      N.E.2d 384, 385(1980). If a partial record does not conclusively support

      the trial court's decision, it is presumed that the omitted portion provides

      the necessary support.

Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506(1993); In re

Adoption of Foster, 22 Ohio App.3d 129, 131, 489 N.E.2d 1070, 1072-1073(1985).

      {¶11} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d

528(2001), the Supreme Court noted: “a reviewing court cannot add matter to the
      4
          The assignment of error is identical in Case Nos. 12-CA-130 and 12-CA-131.
Fairfield County, Case No. 12-CA-130                                                    4


record before it that was not a part of the trial court's proceedings, and then decide the

appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500(1978). It is also a longstanding rule "that the record cannot be enlarged by

factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL

350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio

App. 55, 59, 201 N.E.2d 227(1963). In the case In re Lodico, this Court observed,

             “A trial court may not take judicial notice of prior proceedings in the

      court, but may only take judicial notice of prior proceedings in the

      immediate case. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of

      Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330. See, also, D

      & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53, 701

      N.E.2d 32; In re Knotts (1996), 109 Ohio App.3d 267, 271, 671 N.E.2d

      1357; Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, 660

      N.E.2d 520; State v. Velez (1991), 72 Ohio App.3d 836, 838, 596 N.E.2d

      545; Kiester v. Ehler (1964), 9 Ohio App.2d 52, 56, 222 N.E.2d 782; Burke

      v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776. The rationale for

      this holding is that, if a trial court takes notice of a prior proceeding, the

      appellate court cannot review whether the trial court correctly interpreted

      the prior case because the record of the prior case is not before the

      appellate court. Dues, supra, at 53, 701 N.E.2d 32. See Deli Table, Inc. v.

      Great Lakes Mall (Dec. 31, 1996), Lake App. No. 95-L-012, at 13; Phillips

      v. Rayburn (1996), 113 Ohio App.3d 374, 379, 680 N.E.2d 1279.”
Fairfield County, Case No. 12-CA-130                                                    5

5th Dist. No. 2003-CA-00446, 2005-Ohio-172, ¶94, quoting State v. Blaine, 4th Dist No.

03CA9, 2004-Ohio-1241, ¶ 19.

       {¶12} Accordingly, the state’s material and factual assertions contained in its

brief in this Court concerning other juvenile case involving M.C.H. may not be

considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d

386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d

1202, ¶16.

       {¶13} Therefore, we have disregarded facts in either party's brief that are outside

of the record.

       {¶14} In his sole assignment of error, M.C.H. argues that the trial court erred by

not sealing his juvenile records.

       {¶15} It is well settled that “‘[e]xpungement is an act of grace created by the

state,’ and so is a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 2000-

Ohio-474, quoting State v. Hamilton, 75 Ohio St.3d 636, 639(1996). The statutory law in

effect at the time of the filing of an application to seal a record of conviction is

controlling. State v. LaSalle, 96 Ohio St.3d 178, 772 N.E.2d 1172, 2002-Ohio-4009,

paragraph 2 of the syllabus; State v. Moorehart, 5th Dist. No. 2008-CA-0072, 2009-

Ohio-2844, ¶14.

       {¶16} R.C. 2156.356 sets forth the procedure to apply for the sealing of records

in juvenile cases. In 2012, the statute provided in relevant part,

                 (B)(1) The juvenile court shall promptly order the immediate sealing

       of records pertaining to a juvenile in any of the following circumstances:
Fairfield County, Case No. 12-CA-130                                                  6


             (a) If the court receives a record from a public office or agency

      under division (B)(2) of this section;

             (b) If a person was brought before or referred to the court for

      allegedly committing a delinquent or unruly act and the case was resolved

      without the filing of a complaint against the person with respect to that act

      pursuant to section 2151.27 of the Revised Code;

             (c) If a person was charged with violating division (E)(1) of section

      4301.69 of the Revised Code and the person has successfully completed

      a diversion program under division (E)(2)(a) of section 4301.69 of the

      Revised Code with respect to that charge;

             (d) If a complaint was filed against a person alleging that the person

      was a delinquent child, an unruly child, or a juvenile traffic offender and

      the court dismisses the complaint after a trial on the merits of the case or

      finds the person not to be a delinquent child, an unruly child, or a juvenile

      traffic offender;

             (e) Notwithstanding division (C) of this section and subject to

      section 2151.358 of the Revised Code, if a person has been adjudicated

      an unruly child, that person has attained eighteen years of age, and the

      person is not under the jurisdiction of the court in relation to a complaint

      alleging the person to be a delinquent child.

      {¶17} M.C.H. has alleged in the trial court as well as in this Court that he is

entitled to have his record sealed pursuant to R.C. 2151.356(B)(1)(d) because the

charges were dismissed or nolled.
Fairfield County, Case No. 12-CA-130                                                         7


       {¶18} The primary purpose of the judiciary in the interpretation or construction of

a statue is to give effect to the intention of the legislature, as gathered from the

provisions enacted by application of well-settled rules of construction or interpretation.

Henry v. Central National Bank, 16 Ohio St.2d 16, 20, 242 N.E.2d 342(1968), quoting

State ex rel. Shaker Heights Public Library v. Main, 83 Ohio App. 415, 80 N.E.2d

261(8th Dist.1948). It is a cardinal rule that a court must first look to the language itself

to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304

N.E.2d 378(1973). If that inquiry reveals that the statute conveys a meaning that is

clear, unequivocal and definite, at that point, the interpretive effort is at an end, and the

statute must be applied accordingly. Id. at 105–106, 304 N.E.2d 378. In determining

legislative intent, it is the duty of the court to give effect to the words used, not to delete

words used or to insert words not used. Columbus–Suburban Coach Lines v. Public

Utility Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8(1969). See also, In re:

McClanahan, 5th Dist. No. 2004AP010004, 2004–Ohio–4113, 2004 WL 1758408, ¶ 16.

       {¶19} R.C. 1.42 states, “1.42 Common and technical usage. Words and phrases

shall be read in context and construed according to the rules of grammar and common

usage. Words and phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed accordingly.”

       {¶20} R.C. 2151.356(B)(1)(d) clearly states that to be eligible for sealing of the

records, a dismissal must occur “after a trial on the merits of the case.” In the case at

bar no trial took place. See, Juv. R. 28(F)(1). The effect of a dismissal or a nolle has

been explained,
Fairfield County, Case No. 12-CA-130                                                         8


              The entry of a nolle prosequi restores an accused to the status of a

       person against whom charges have never been filed, Columbus v. Stires

       (1967), 9 Ohio App. 2d 315, 317. Sander v. State of Ohio (S.D. Ohio,

       1973), 365 F. Supp. 1251, 1253, holds that no jeopardy attaches where a

       nolle prosequi is entered before a jury is sworn. Further, the acceptance of

       a guilty plea on some counts and the nolle of others, is not functionally

       equivalent to a verdict of not guilty on the dismissed charges, Hawk v.

       Berkemer (6th Cir. 1979), 610 F. 2d 445, 447.

State v Frost, 8th Dist. No. 45561, 1983 WL 5507(June 23, 1983). Accord, State v.

Cole, 9 Ohio App.3d 315, 317, 224 N.E.2d 369(1967); State v. Eubank, 6th Dist. No. L-

11-1211, 2012-Ohio-3512, ¶7. As jeopardy has not attached and the accused can be

re-prosecuted for the same offense, a dismissal or nolle is not the functional equivalent

of an acquittal.

       {¶21} The second provision for sealing of the records in a juvenile case

envisions a trial court specifically finding the person “not to be a delinquent child, an

unruly child, or a juvenile traffic offender.” In the case at bar, the trial court did not make

a finding that M.C.H. was not a delinquent child, an unruly child, or a juvenile traffic

offender. Rather, the trial court denied the motion to seal the records because M.C.H.

“has not shown to be rehabilitated to a satisfactory degree.” It appears, therefore, that

the trial court’s denial of M.C.H.’s application to seal the records was not based upon

R.C. 2151.356(B)(1)(d).

       {¶22} R.C. 2151.356 further provides,
Fairfield County, Case No. 12-CA-130                                                   9


             (C)(1) The juvenile court shall consider the sealing of records

      pertaining to a juvenile upon the court's own motion or upon the

      application of a person if the person has been adjudicated a delinquent

      child for committing an act other than a violation of section 2903.01,

      2903.02, 2907.02, 2907.03, or 2907.05 of the Revised Code, an unruly

      child, or a juvenile traffic offender and if, at the time of the motion or

      application, the person is not under the jurisdiction of the court in relation

      to a complaint alleging the person to be a delinquent child. The motion or

      application may be made at any time after two years after the later of the

      following:

             (a) The termination of any order made by the court in relation to the

      adjudication;

             (b) The unconditional discharge of the person from the department

      of youth services with respect to a dispositional order made in relation to

      the adjudication or from an institution or facility to which the person was

      committed pursuant to a dispositional order made in relation to the

      adjudication.

                                          ***

      {¶23} If the prosecuting attorney does not object to the sealing of the records,

the court may order the records sealed without conducting a hearing. R.C.

2151.356(C)(2)(d)(ii). However, if the prosecuting attorney objects to the sealing of the

records, the trial court “shall conduct a hearing on the motion” and must give notice of

the date, time and location of the hearing to the prosecutor and the person who is the
Fairfield County, Case No. 12-CA-130                                                    10


subject of the records under consideration. R.C. 2151.356(C)(2)(d)(iii). The statute

further provides,

              (e) After conducting a hearing in accordance with division (C)(2)(d)

       of this section or after due consideration when a hearing is not conducted,

       except as provided in division (B)(1)(c) of this section, the court may order

       the records of the person that are the subject of the motion or application

       to be sealed if it finds that the person has been rehabilitated to a

       satisfactory degree. In determining whether the person has been

       rehabilitated to a satisfactory degree, the court may consider all of the

       following:

       (i) The age of the person;

       (ii) The nature of the case;

       (iii) The cessation or continuation of delinquent, unruly, or criminal

       behavior;

       (iv) The education and employment history of the person;

       (v) Any other circumstances that may relate to the rehabilitation of the

       person who is the subject of the records under consideration.

                                           ***

       {¶24} In the case at bar, the trial court’s finding that M.C.H. “has not shown to be

rehabilitated to a satisfactory degree” mirrors the language of R.C. 2151.356(C)(2)(e).

The record reveals that the state filed its objection to the sealing of M.C.H.’s records on

October 26, 2012. The trial court was, therefore, required to conduct a hearing before
Fairfield County, Case No. 12-CA-130                                                     11


denying the motion as mandated by R.C. 2151.356(C)(2)(d)(iii). The trial court did not

conduct a hearing.

       {¶25} An additional concern is that the trial court did not state its findings on the

record or in its judgment entry. In the context of the adult expungement statue, we have

held that a trial court must include proper findings in its judgment entry to illustrate

compliance with R.C. 2953.32. State v. Bates, 5th Dist. No. 03-COA-057, 2004-Ohio-

2260, ¶24. Accord, State v. Poole, 5th Dist. No. 10-CA-21, 2011-Ohio-2956, ¶20;

Beachwood v. D.Z., 8th Dist. No. 94024, 2010-Ohio-3320, ¶7; State v. Berry, 135 Ohio

App.3d 250, 253, 733 N.E.2d 651(2nd Dist. 1999).

       {¶26} Accordingly, we sustain M.C.H.’s assignment of error only to the extent

that the trial court was required to conduct a hearing and make proper findings to

demonstrate compliance with R.C. 2151.356(C)(2)(e). We sustain the trial court’s

judgment that M.C.H. is not eligible for expungement under R.C. 2151.356(B)(1)(d).

       {¶27} Our holding does not imply that the trial court must reach a specific

conclusion after conducting the appropriate hearing and analysis. Rather, the purpose

of our remand is to ensure statutory compliance and proper consideration of the

requisite statutory factors.
Fairfield County, Case No. 12-CA-130                                                    12


       {¶28} The judgment of the Fairfield County Court of Common Pleas, Juvenile

Division is affirmed in part and reversed in part and this matter is remanded to that court

with instructions to conduct a hearing, make the necessary findings, and express those

findings in some manner on the record.

By Gwin, P.J., and

Farmer, J., concur

Hoffman, J., concurs in part,

dissents in part




                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _________________________________
                                              HON. SHEILA G. FARMER



WSG:clw 0521
Fairfield County, Case No. 12-CA-130                                                 13


Hoffman, J., concurring in part and dissenting in part

      {¶29} I concur in the majority’s analysis and conclusion Appellant is not entitled

to sealing of his record pursuant to R.C. 2151.356(B)(1)(d). Because that statute is the

sole basis for his argument, I find remand for a hearing unnecessary.




                                                ________________________________
                                                HON. WILLIAM B. HOFFMAN
[Cite as In re M.C.H., 2013-Ohio-2656.]


             IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF: M.C.H.                      :
                                              :
                                              :
                                              :
                                              :
                                              :       JUDGMENT ENTRY
                                              :
                                              :
                                              :
                                              :       CASE NO. 12-CA-130




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Fairfield County Court of Common Pleas, Juvenile Division is affirmed in part and

reversed in part and this matter is remanded to that court with instructions to conduct a

hearing, make the necessary findings, and express those findings in some manner on

the record. Costs to be shared equally between the parties.




                                                  _________________________________
                                                  HON. W. SCOTT GWIN


                                                  _________________________________
                                                  HON. WILLIAM B. HOFFMAN


                                                  _________________________________
                                                  HON. SHEILA G. FARMER
