In Re Hensley
{¶ 1} Appellant, Gordon Hensley, appeals from the Warren County Common Pleas Court’s denial of his application for relief from statutory disability to possess firearms.
{¶
2}
On October 28, 1994, Hensley pled guilty in the Warren County Common Pleas Court to one count of gross sexual imposition brought pursuant to
{¶ 3} On May 24, 2002, Hensley, acting pursuant to
{¶ 4} On November 12, 2002, the trial court held a hearing on Hensley’s application. Hensley argued that to apply
{¶ 5} Both parties responded with memoranda outlining their respective positions. Hensley argued that applying the current versions of
{¶ 6} On December 19, 2002, the trial court issued a decision and entry that stated as follows:
{¶ 7} “Under
{¶ 8} “The applicant argues that the July 1,1996 version of
{¶ 9} “* * * We conclude that the language of
{¶ 10} “The plaintiffs application is hereby DENIED.”
{¶ 11} Hensley appeals from the trial court’s judgment denying his application, raising three assignments of error. To facilitate our analysis, we shall first address Hensley’s third assignment of error.
Assignment of Error No. 3
{¶ 12} “The trial court erred in holding that the application of
{¶ 13} Hensley argues that the trial court erred by applying the current versions of
{¶ 14}
{¶ 15} “(A) Unless relieved from disability as provided in
{¶ 17} “(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.
{¶ 18} * * ”
{¶ 19}
{¶ 20} The aforementioned versions of
{¶ 21} Hensley argues that his application for relief from statutory disability should be considered under the versions of
{¶ 22} In
State v. Walls,
{¶ 23} “This court has articulated a two-part framework, involving both statutory and constitutional analyses, for determining whether a statute is impermissibly retroactive under Section 28, Article II. Because
{¶ 24} As to the first part of the two-part framework for determining whether a statute is impermissibly retroactive, Hensley concedes, as he must, that the legislature clearly intended for
{¶ 25} As to the second part of the analytical framework for retroactivity issues discussed in
Walls,
Hensley argues that the trial court erred in finding that the changes in
{¶ 26} “* * * A statute is ‘substantive’ if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligation, or liabilities as to a past transaction, or creates a new right.
[Van Fossen,
36 Ohio St.3d] at 107, 522 N.E.2d [489]. Conversely, remedial laws are those affecting only the remedy provided, and include laws that merely substitute a new or more appropriate remedy for the enforcement of an existing right. Id. * * *. A purely remedial statute does not violate Section 28, Article II of the Ohio Constitution, even if applied retroactively. See id. * * *."
State v. Cook
(1998),
{¶27} “Vested” is an adjective meaning “[h]aving become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute * * Black’s Law Dictionary (7th Ed.1999) 1557. A “vested right” is
{¶ 28} The Ohio Supreme Court has held that “where no vested right has been created, ‘a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration * * * created at least a reasonable expectation of finality.’
State ex rel. Matz v. Brown
(1988),
{¶ 29} Applying the foregoing principles to the case before us, we conclude that the provisions contained in the amended versions of
{¶ 30} Second, the retrospective application of the current versions of
{¶ 31} Hensley’s third assignment of error is overruled.
Assignment of Error No. 1
{¶ 32} “The trial court abused its discretion by denying appellant Hensley’s application for relief without holding a hearing as required by
Assignment of Error No. 2
{¶ 33} “The trial court abused its discretion by denying appellant Hensley’s application for relief without specifically reviewing the statutory eligibility criteria set forth in
{¶ 35} Hensley argues that the trial court abused its discretion by denying his application for relief from
{¶ 36}
{¶ 37} “Upon hearing, the court may grant the applicant relief pursuant to this section, if all of the following apply:
{¶ 38} “(1) The applicant has been fully discharged from imprisonment, probation, and parole, or, if he is under indictment, has been released on bail or recognizance;
{¶ 39} “(2) The applicant has led a law-abiding life since his discharge or release, and appears likely to continue to do so;
{¶ 40} “(3) The applicant is not otherwise prohibited by law from acquiring, having, or using firearms.”
{¶ 41} Although the wording of the statute is not as clear as it should be, we conclude that
{¶ 42} In this case, the trial court held a limited hearing on Hensley’s application on November 12, 2002, at which the trial court gave the parties an opportunity to brief constitutional issues raised by Hensley. However, the trial court never held the type of hearing envisioned by the courts in
Smith
and
Jomaa,
i.e., a hearing at which both sides are given an opportunity to present evidence relevant to the criteria listed in
{¶ 43} The trial court began its analysis by noting that one of the prerequisites for granting relief under
{¶ 44} We have concluded that the trial court was correct in determining that the current versions of
{¶ 45} In support of this, we note that
{¶ 46} Thus, it is evident from a careful reading of
{¶ 47} Accordingly, on remand, the trial court shall hold the type of hearing envisioned in
Smith,
Cuyahoga App. No. 65101,
{¶ 48} Hensley’s first and second assignments of error are sustained.
{¶ 49} The trial court’s judgment is affirmed in part and reversed in part, and this matter is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part and cause remanded.
Notes
. {¶ a} The former version of
{¶ b} "(A) Unless relieved from disability as provided insection 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
{¶ c} "* * *
{¶ d} "(2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony;
{¶6> "* * * ”