State of Ohio v. Jerrod Clark
Case No: 11CA8
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
Filed: December 7, 2011
[Cite as State v. Clark, 2011-Ohio-6354.]
Kline, J.
DECISION AND JUDGMENT ENTRY
K. Robert Toy, Toy Law Office, Athens, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecutor, and Sabrina J. Ennis, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee.
Kline, J.:
{1} Jerrod Clark (hereinafter “Clark“) appeals the judgment of the Athens County Court of Common Pleas, which denied his application to seal a conviction record. On appeal, Clark contends that the trial court erred by not holding a hearing on his application. We disagree. First, the trial court was not necessarily required to hold a hearing under
I.
{2} In 2003, Clark was convicted of possession of cocaine.
{4} On November 10, 2010, Clark filed a second “Motion for Expungement of Record of Conviction and to Seal Records of Arrest.” In his second motion, Clark addressed his two misdemeanor convictions. As to the first conviction, Clark acknowledged that he was convicted of a minor misdemeanor. Clark noted, however, that a minor misdemeanor is “not considered a subsequent conviction for purposes of expungement.” November 10, 2010 Motion for Expungement. As to the second conviction, Clark acknowledged that he was “convicted of a violation of Ohio Revised Code Section 4503.11.” Id. But for various reasons, Clark argued that “his conviction under
{5} On November 12, 2010, the trial court ordered the Adult Parole Authority to conduct an investigation “and report back to the Court regarding Defendant‘s eligibility for expungement.” November 12, 2010 Order for Investigation.
{6} On January 14, 2011, the state filed its objection to Clark‘s second motion for expungement. Once again, the state argued that Clark is not a first offender.
{7} The trial court did not (1) set a hearing date or (2) hold a hearing on Clark‘s second motion for expungement. Instead, the trial court denied his motion in a March 18, 2011 journal entry. As the trial court found, the Adult Parole Authority Expungement
{8} “Because the Defendant is not a ‘first offender’ pursuant to
{9} Clark appeals and asserts the following assignment of error: I. “THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONDUCTING A HEARING ON APPELLANT‘S APPLICATION FOR EXPUNGEMENT.”
II.
{10} In his sole assignment of error, Clark contends that the trial court erred by not holding a hearing on his motion for expungement.
{11} “We review a trial court‘s decision to deny an application to seal a record under an abuse-of-discretion standard.” State v. Wright, 191 Ohio App.3d 647, 2010-Ohio-6259, at ¶ 7. The present case, however, requires us to interpret and apply various sections of the Ohio Revised Code. To the extent that we must interpret and apply these statutes, our review is de novo. See Roberts v. Bolin, Athens App. No. 09CA44, 2010-Ohio-3783, at ¶ 20, quoting State v. Sufronko (1995), 105 Ohio App.3d 504, 506 (“‘When interpreting statutes and their application, an appellate court conducts a de novo review, without deference to the trial court‘s determination.‘“).
A.
{13} Even though a trial court must set a date for a hearing, we also find that a trial court is not necessarily required to hold that hearing. We base this finding on the plain language of
{14} Accordingly, we find the following: (1) the trial court erred by not setting a hearing date; and (2) the trial court was not necessarily required to hold a hearing.
B. Clark‘s Status as a First Offender
{15} Here, we find (1) that Clark is not a first offender and (2) that the trial court correctly denied his application based on the application itself, the prosecutor‘s objections, and the investigation reports. Accordingly, the trial court was not required to hold a hearing. And although the trial court erred by not setting a hearing date, that error is harmless. See Crim.R. 52(A).
{16} “The determination of [Clark‘s] status as a first-time offender * * * is a question of law subject to an independent review by this court without deference to the trial court‘s decision.” State v. Derugen (1996), 110 Ohio App.3d 408, 410.
{17} Clark is not a first offender because he has a fourth-degree misdemeanor conviction for violating
{18} Clark cites several cases for the proposition that a trial court must hold a hearing under
{19} The cases cited by Clark do not share these similarities. For example, there were factual questions related to the petitioner‘s first-offender status in State v. Woolley (Mar. 30, 1995), Cuyahoga App. No. 67312. The Woolley petitioner did not concede his prior convictions. Instead, the petitioner presented “documentation from the Royal Canadian Mounted Police (RCMP) showing it had no record of any criminal conviction relating to defendant.” Id. There were also factual questions related to the petitioner‘s first-offender status in State v. Hagopian (Sep. 21, 1999), Franklin App. No. 98AP-1572. As the Tenth District Court of Appeals found, “[W]e cannot determine that a hearing would be futile, as the only item in the record suggesting defendant is not a first offender is the ‘objection’ the state filed, with no supporting documentation attached.” Id. Finally, Wright features at least two key differences from the present case. First, in Wright, “the record [did] not reflect that the state filed any opposition to Wright‘s application[.]” Wright at ¶ 13. And second, it was not clear “whether [Wright‘s] presentence investigation was before the trial court when it denied her application.” Id at ¶ 13, fn. 1. Therefore, the Wright court could not have found that the trial court properly acted upon (1) the petitioner‘s application, (2) the prosecutor‘s objections, and (3) the investigation reports.
{20} Additionally, the trial courts did not indicate why applications were denied in Wright, Hagopian, and Woolley. See Wright at ¶ 13. As a result, in those cases, it was unclear how the trial courts resolved the various factual issues. In the present case, however, Clark conceded his conviction, and the trial court expressly found that Clark is
C. Conclusion
{21} In conclusion, because Clark is not a first offender, the trial court correctly denied his application for expungement based on (1) the application itself, (2) the prosecutor‘s objections, and (3) the investigation reports. Therefore, the trial court was not required to hold a hearing, and any error related to the hearing date is harmless.
{22} Because the trial court did not abuse its discretion, we overrule Clark‘s assignment of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
{23} I agree that when an application for expungement admits the existence of a non-exempt conviction, the trial court need not conduct a hearing to determine the applicant is not a first offender. However, I cannot join the opinion‘s overly broad conclusion that the court may forgo the need for a hearing based upon the prosecutor‘s objections and/or the court‘s investigative reports. A myriad of courts have determined that normally a hearing is required prior to deciding whether to grant an application to seal the record. See, State v. Minch, Cuyahoga App. No. 87820, 2007-Ohio-158, at ¶ 12, citing at least ten appellate decisions to that effect. Even though expungement is a privilege and not a right, due process requires an opportunity to contest assertions made by the state and its agents.
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
McFarland, J.: Concurs in Judgment and Opinion.
Harsha, P.J..: Concurs in Judgment Only with Opinion.
For the Court
BY: __________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.