In re Fuller
Rendered on December 22, 2011
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellee.
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Plaintiff-appellant, state of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas granting an application, pursuant to
{¶2} On March 31, 2011, appellee filed, pursuant to
{¶3} A hearing was held on June 17, 2011. Neither evidence nor arguments were presented at the hearing, and the transcript states in its entirety:
THE COURT: I have Fuller right now. I am going to grant Mr. Fuller‘s expungement. He had an assault, and the prosecutor agrees that he is eligible for expungement, but they disagree with expungement because it was an assault with a police officer. But they agree, though, I can still grant it, so I am.
So, your expungement is granted, sir. All right?
[APPELLEE]: All right.
THE COURT: Don‘t hit any more cops. You get in trouble that way.
[PROSECUTOR]: Judge, I would note the State‘s written objection to that.
THE COURT: I know. It is in the record.
(Tr. 2.)
{¶4} A judgment entry granting appellee‘s application for expungement was filed on June 21, 2011. This appeal followed, and appellant brings the following assignment of error for our review:
THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE‘S EXPUNGEMENT APPLICATION, WITHOUT FIRST DETERMINING THAT APPELLEE WAS SATISFACTORILY REHABILITATED.
{¶6} In considering the sealing of the record of a conviction, the trial court must do all of the following:
(a) Determine whether the applicant is a first offender or whether the forfeiture of bail was agreed to by the applicant and the prosecutor in the case. * * *
(b) Determine whether criminal proceedings 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.
{¶7} It is well-settled that ” ‘Expungement 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 (1996), 75 Ohio St.3d 636, 639.
{¶8} In the case before us, it was conceded appellee was a first offender. Additionally, the journal entry states that the trial court found there were no criminal proceedings pending against appellee and that the sealing of his record of conviction was “consistent with the public interest.” (Entry, 1.) Thus, the remaining issue before the trial court was the determination that appellee has been rehabilitated to the court‘s satisfaction as required by
{¶9} In Esson, this court reviewed the trial court‘s denial of an application to seal the records of a criminal matter in which the defendant was found not guilty after his trial. The defendant‘s application to seal indicated that in his criminal case the jury found him not guilty, and, therefore, he was seeking to have the records expunged pursuant to
{¶10} On appeal, the defendant argued it was error for the trial court to deny his application without giving him an opportunity to speak. Agreeing with appellant‘s contention, this court found that “while the trial court held a hearing, there is no indication from the hearing transcript that the court gave appellant the opportunity to speak or offer evidence before it made its decision.” Id. at ¶14. By doing so, we held that the trial court effectively precluded appellant from being heard before it made its decision and thereby denied him the full and fair hearing
{¶11} In the case sub judice, the expungement hearing was more limited than that with which this court was presented in Esson. Here, the hearing consisted solely of the trial court calling the case on the record and then, without more, summarily announcing its decision to grant the application for expungement prior to giving either party an opportunity to speak. Essentially, it appears that, instead of considering the statutory requirements of
{¶12} Just as a trial court cannot categorically deny an application for expungement based solely on the nature of the offense, neither can a trial court categorically grant an application for expungement under
{¶13} Indeed, the remedial expungement provisions of
{¶14} In Bates, the defendant sought the expungement of a theft conviction, and at the expungement hearing, the applicant stated the offense was committed as a result of a gambling addiction. The trial court denied the application based on the nature of the offense and the nature of the addiction. Concluding that such a categorical denial was improper in light of the findings required under
{¶15} Similarly, the record before us indicates the trial court failed to conduct a full and fair hearing as required by
{¶16} Accordingly, appellant‘s sole assignment of error is sustained. The judgment of the Franklin County Court of Common Pleas is reversed 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. Esson at ¶19; Hillman at ¶18 (remand with instructions to conduct a hearing, make necessary findings, and express those findings on the record).
Judgment reversed; cause remanded with instructions.
BROWN and CONNOR, JJ., concur.
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