State v. SeverinoState v. Severino
William P. Bobulsky, William P. Bobulsky Co., L.P.A., 1612 East Prospect Road, Ashtabula, OH 44004 (For Defendant-Appellee).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, State of Ohio, appeals the judgment of the Ashtabula Municipal Court in which the court granted appellеe Ericka H. Severino‘s motion to seal the record of her criminal case without first holding a hearing on the motion. At issue is whether the court was required to hold a hearing prior to sealing all arrest and other official records in this case. For the reasons that follow, we reverse and remand.
{¶2} On September 10, 2008, appellee was charged in a complaint filed in the trial court with one count of obstructing official business, in violation of
{¶3} Thereafter, on August 27, 2009, appellee filed a “motion for sealing of record,” pursuant to
{¶4} The state аppeals the trial court‘s judgment granting appellee‘s motion to seal the record, asserting the following for its sole assignment of error:
{¶5} “The Trial Court erred in ruling on a Motion to Seal the Record pursuant to
{¶6} As a preliminary mаtter, we note that, since appellee‘s motion to seal the records was filed pursuant to
{¶7} “(A) (1) Any person, who is *** the defendant named in a dismissed complaint, *** may apply to the court for an order to seal his official records in the case. *** [T]he application may be filed at any time after the *** dismissal of the complaint *** is entered upon the minutes of the court or the journal, whichever entry occurs first.
{¶8} “***
{¶9} “(B) (1) Upon the filing of an application pursuant to division (A) of this section, the court shall set a date for a hearing and shall notify the prosecutor in the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall spеcify in the objection the reasons he believes justify a denial of the application.
{¶10} “(2) The court shall do each of the following:
{¶11} “(a) Determine whether the *** complaint *** in the case was dismissed ***;
{¶12} “(b) Determine whether criminal proceedings are pending against the рerson;
{¶13} “(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
{¶14} “(d) Weigh thе interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.
{¶15} “(3) If the court determines, after complying with division (B)(2) of this sеction, that the *** complaint *** in the case was dismissed ***; that no criminal
proceedings are pending against the person; and the interests of the person in having the records pertaining to the case sealed are not outweighed by any legitimate governmental needs to maintain such records, *** the court shall issue an order directing that all official records pertaining to the case be sealed ***.” (Emphasis added.)
{¶16} This court has held that the standard оf review of an appellate court in reviewing the grant or denial of an application for expungement is abuse of discretion. State v. Selesky, 11th Dist. No. 2008-P-0029, 2009-Ohio-1145, at ¶17. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it imрlies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” State v. Desellems (Feb. 12, 1999), 11th Dist. No. 98-L-053, 1999 Ohio App. LEXIS 458, at *8, citing State v. Montgomery (1991), 61 Ohio St.3d 410, 413.
{¶17} In Ohio, a defendant seeking expungement following the dismissal of the charges must follow the procedures set forth in
{¶18} In Selesky, supra, this court held:
{¶19} “*** [U]pon thе filing of an application to seal a record either following a conviction pursuant to
{¶20} “*** [T]he record reflects that the prosecutor was not given notice of the motion hearing scheduled for January 15, 2008. The trial court docket reflects that
{¶21} At the hearing on the motion for expungement, the trial court must “weigh” the interest of the applicant in having his or her records sealed against the legitimate needs of the government to maintain those records.
{¶22} “Thus,
{¶23} In Dumas, supra, the Tenth District reversed the trial court‘s decision denying the application for expungement, holding:
{¶24} “*** [T]he trial court did not weigh appellant‘s interests against the state‘s interests, but instead decided, categorically, not to seal first- or second- degree felony cases resulting in an acquittal after a trial. The balancing factors in
{¶25} The Tenth District in Dumas further held that the trial court abused its discretion in denying appellant‘s application on such a categorical basis and without weighing the requisite interests of the defendant and the state. Id.
{¶26} In State v. Gilchrist (Dec. 7, 1994), 9th Dist. No. 16800, 1994 Ohio App. LEXIS 5575, the trial court denied the defendant‘s motion to seal the records. The Ninth District reversed, holding that the trial court abused its discretion in denying Gilchrist‘s motion because “the record contain[ed] no evidеnce indicating that the trial court []weighed the parties’ competing interests as required by
{¶27} In State v. Stoica, 10th Dist. No. 06AP-176, 2006-Ohio-4990, the Tenth District held:
{¶28} “In view of the language contained in
{¶29} Turning to the facts of the instant case, based on our review of the record, upon the filing of appellee‘s application for expungement, the trial court did not set the
{¶30} Further, the judgment granting appellee‘s motion to expunge does not indicate that the court weighed the interests of the parties as required by the statute. Of course, the court could not have weighed the interests of the parties since the trial court did not hold a hearing before granting appellee‘s motion. As a result, appellee was not given an opportunity to present evidence in support of her motion, and the state was not given an opportunity to present countervailing evidence. Because no evidence was presented to the court as required by
{¶31} The only argument presented by appellee on appeal is that a hearing was not required because the charges were dismissed pursuant to the parties’ stiрulation of dismissal. She argues the state‘s present demand for a hearing violates the terms of the stipulated dismissal. Appellee is incorrect for two reasons. First, the stipulation of dismissal does not even refer to expungemеnt. It therefore does not purport to restrict the state from asserting the public‘s interests in any later hearing on an application to seal the records. Thus, contrary to appellee‘s argument, the stipulation of dismissal did not amount to an agreement on the part of the state not to oppose a later motion for expungement. Second, even if it did, such agreement could not in effect allow the parties to circumvent
{¶32} Based on the foregoing analysis, we hold that the trial court abused its discretion in granting appellee‘s motion for expungement without a hearing and without weighing the interests of appellee and the state as required by
{¶33} The state‘s assignment of error is sustained.
{¶34} For the reasons stated in the Opinion of this court, it is the order and judgment of this court that the judgment of the Ashtabula Municipal Court is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
DIANE V. GRENDELL, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.