State v. CalderonState v. Calderon
Dated: June 21, 2010
WHITMORE, Judge.
{¶1} Defendant-Appellant, Keila Calderon, appeals from the judgment of the Medina County Court of Common Pleas, denying her motion to seal official records. This Court reverses.
I
{¶2} On March 5, 2003, a grand jury indicted Calderon on one count of theft, a fifth-degree felony in violation of
{¶4} Calderon now appeals from the court‘s judgment and raises two assignments of error for our review. For ease of analysis, we consolidate her assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO HOLD A FULL AND FAIR HEARING TO REVIEW APPELLANT CALDERON‘S APPLICATION FOR EXPUNGEMENT AS REQUIRED BY
R.C. §2953.32(B) .”
Assignment of Error Number Two
“THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING THAT APPELLANT CALDERON WAS NOT AN ELIGIBLE FIRST OFFENDER AND THEREFORE DENIED HER APPLICATION BASED ON LEGALLY INSUFFICIENT FACTS, PER
R.C. §2953.32(C)(1)(a)-(e) [.]”
{¶6} Depending on the dispute in question, this Court will apply either a de novo standard of review or an abuse of discretion standard of review in appeals from the denial of an application to seal a record of conviction. Compare State v. Campbell, 9th Dist. No. 24919, 2010-Ohio-128, at ¶5 (applying de novo standard of review) with State v. Stringer, 9th Dist. No. 08CA0038-M, 2009-Ohio-909, at ¶5-7 (applying abuse of discretion standard of review). If “the matter in dispute is purely a question of law,” then a de novo standard applies. Campbell at ¶5, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, at ¶6. If the matter in dispute concerns the court‘s discretion, such as its conclusion that the evidence does not weigh in favor of expungement, then an abuse of discretion standard applies. Stringer at ¶5-7.
{¶7}
{¶8} A misdemeanor conviction under
“THE COURT: Keila Calderon. She did violate probation but we took care of that. This is the only crime that she has on her record. She‘s been in school for the past three years, but she was kicked out because of medical clinical -- what were you trying to take?
“MS. CALDERON: My echo cardio clinicals.
“THE COURT: Okay. Oh, unfortunately, you -- well, wait a minute. You had an expungement in the past. Do you believe that makes her ineligible?
“MS. CALDERON: Those are not expungements.
“THE COURT: No. You had an expungement in Cuyahoga County, didn‘t you? I‘m going to -- we need to look in to this a little bit further. I‘m not sure what‘s going on here. She may be ineligible because she‘s had an expungement but she could be ineligible, I believe, because she‘s had, you know, a former charge, you know. Could you look in to that and then we‘ll send her a letter?
“MS. CONLEY: Sure.1
“THE COURT: I don‘t think you‘re going to be eligible, but I‘ll look in to it. Thank you.
“MS. CALDERON: Thank you.
“THE COURT: Sorry about that.”
{¶9} Calderon did not have an opportunity to explain why she never received a past expungement. The court apparently relied upon the investigation report from the Adult Probation Department to reach its conclusion. The investigation report indicates that, in addition to her misdemeanor theft conviction in 2003, Calderon faced charges in 2003 and 2007. In 2003, she was charged with forgery, obstructing justice, and tampering with records in Cuyahoga County. The notation on the investigative report next to those charges indicates that “[t]he record of this case has been [e]xpunged per Cuyahoga County Common Pleas Court.” In 2007, Calderon was charged with failure to display an operator‘s license and speeding in Cuyahoga County. The notation on the investigative report next to those charges indicates that Calderon was found guilty and paid a fine.
{¶10} One cannot discern from the record whether Calderon actually received a previous expungement or whether she is a “first offender.” On appeal, Calderon argues that she never received an expungement in Cuyahoga County. She argues that she was charged in Cuyahoga County in 2003, but never convicted because the charges were dismissed pursuant to a pre-trial diversion program. She further argues that, per
III
{¶11} Calderon‘s assignments of error are sustained. The judgment of the Medina County Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
BETH WHITMORE
FOR THE COURT
MOORE, J.
BELFANCE, P. J.
CONCUR
APPEARANCES:
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MICHAEL P. MCNAMARA, Assistant Prosecuting Attorney, for Appellee.