CITY OF STOW v. S.B.
C.A. No. 27429
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 28, 2015
[Cite as Stow v. S.B., 2015-Ohio-4473.]
APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 2010 CRB 1206
CARR, Presiding Judge.
{1} Defendant-Appellant, S.B., now appeals from the judgment of the Stow Municipal Court, denying his application to seal his record. This Court reverses and remands for further proceedings.
I.
{2} As a result of events that occurred on May 14, 2010, S.B. was charged with public indecency, a fourth-degree misdemeanor in violation of
{3} Three years later, S.B. filed a motion to seal the record of his conviction for public indecency. The trial court held two hearings on the motion and received arguments from both defense counsel and the prosecutor for the City. On May 30, 2014, the trial court denied S.B.s motion because it determined that S.B.s public indecency conviction record was not eligible for sealing.
{4} S.B. now appeals from the trial courts judgment and raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING APPELLANTS (sic) APPLICATION TO SEAL THE RECORD[.]
{5} In his sole assignment of error, S.B. argues that the trial court erred by denying his motion to seal the record of his conviction for public indecency. Because the record reflects that the trial court misapplied the law in deciding S.B.s motion, we reverse its judgment and remand this matter for the trial court to apply the correct law in the first instance.
{6} Because this case hinges upon the interpretation of the sealing statutes and S.B.s eligibility under the same, this Court employs a de novo standard of review. See State v. Raber, 9th Dist. Wayne No. 13CA0020, 2014-Ohio-249, 8. Accord State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 6. “A de novo review requires an independent review of the trial courts decision without any deference to the trial courts determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, 4.
{7} ”
{8} At the time S.B. filed his motion,
Except as provided in [
R.C.] 2953.61 * * *, an eligible offender may apply to the sentencing court * * * for the sealing of the conviction record. Application may be made * * * at the expiration of one year after the offenders final discharge if convicted of a misdemeanor.
(Emphasis added.) Former
{9}
When a person is charged with two or more offenses as a result of or in connection with the same act and at least one of the charges has a final disposition that is different than the final disposition of the other charges, the person may not apply to the court for the sealing of his record in any of the cases until such time as he would be able to apply to the court and have all of the records in all of the cases pertaining to those charges sealed pursuant to divisions (A)(1) and (2) of section
2953.32 * * *.
{10} In State v. Pariag, the Ohio Supreme Court considered whether
{11} Citing
if the record of one charge cannot be sealed, any charges filed as a result of or in connection with the act that resulted in the unsealable charge cannot be sealed. Because
R.C. 2953.61 refers to “all of the records in all of the cases,” our holding is not affected by the fact that the different charges were assigned different case numbers.
Id. at 17. Thus, the Supreme Court determined that Pariags traffic conviction could prevent the sealing of his dismissed drug charges, even though the traffic charge and the drug charges were assigned different case numbers. Id. The Court ultimately remanded the matter to the trial court for a determination as to “whether the dismissed drug charges stemmed from the same act as Pariags traffic violation.” Id. at 20.
{12} Much like Pariag, S.B. was charged with a traffic offense and a criminal offense under separate case numbers and ultimately resolved both cases by way of a plea. There is also no dispute that S.B.s traffic conviction is statutorily exempt from sealing. See Former
{13} By its plain language, Former
{14} S.B. was convicted of a criminal offense and a traffic offense in companion cases and sought the sealing of his criminal case. Compare Futrall, supra (partial sealing prohibited where same case contains both sealable and unsealable offense). As previously noted, Former
[e]xcept as provided in [
R.C.] 2953.61 * * *, an eligible offender may apply to the sentencing court * * * for the sealing of the conviction record. Application may be made * * * at the expiration of one year after the offenders final discharge if convicted of a misdemeanor.
{15} Rather than apply the pertinent portions of
III.
{16} S.B.s sole assignment of error is sustained for the reasons outlined above. The judgment of the Stow Municipal Court 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 Stow Municipal Court, County of Summit, 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(C). The Clerk of the Court of Appeals is
Costs taxed to Appellee.
MOORE, J.
SCHAFER, J.
CONCUR.
DONNA J. CARR
FOR THE COURT
APPEARANCES:
J. CHRIS SESTAK, Attorney at Law, for Appellant.
AMBER K. ZIBRITOSKY, Attorney at Law, for Appellee.