R.C.2953.32(b)/application to seal the record hearing conceded error. Appellant was entitled to be heard on his application to seal his record of conviction.
Decided 2017-07-06
[Cite as State v. M.G.,
2017-Ohio-5750
.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105192
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
M.G.
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-03-437810-ZA
BEFORE: Jones, J., S. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: July 6, 2017
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
John T. Martin
Assistant County Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant M.G. appeals the trial court’s denial of his application to seal
his prior conviction without a hearing. The state, pursuant to Loc.App.R. 16(B), concedes the
error. We reverse and remand for a hearing on M.G.’s application to seal his prior conviction.
{¶2} In 2005, M.G. pleaded guilty to receiving stolen property and forgery. He was
sentenced to one year of community control sanctions. He violated his community control
sanctions and was subsequently sentenced to six months in prison. In 2015, M.G. filed an
application to seal his record of conviction. The state opposed the motion. The court denied
the motion without a hearing.
{¶3} M.G. appealed and raises one assignment of error for our review in which he argues
that the trial court erred in denying his motion to seal his record of conviction without first
holding a hearing. The state filed a notice of conceded error pursuant to Loc.App.R. 16(B)1
and an appellee brief in which the state agrees that the trial court was mandated to hold a hearing
but argues that M.G. is not eligible to have his record of conviction sealed.
{¶4} Upon the filing of an application to seal a record of conviction, a trial court is
required to set a hearing date and notify the prosecutor. R.C. 2953.32(B). A trial court must
first hold a hearing because evidence is generally required in order to make the several
determinations under R.C. 2953.32(C)(1)(a) through (e). State v. M.L., 8th Dist. Cuyahoga No.
105214,
2017-Ohio-2764
, ¶ 1, citing State v. M.R., 8th Dist. Cuyahoga No. 104712,
1
Loc.App.R. 16(B) provides:
Notice of Conceded Error. When a party concedes an error that is dispositive of the entire appeal, the party
conceding the error shall file a separate notice of conceded error either in lieu of or in addition to their responsive
brief. Once all briefing is completed, the appeal will be randomly assigned to a merit panel for review. The appeal
will be considered submitted on the briefs unless the assigned panel sets an oral argument date.
2017-Ohio-973
, ¶ 10.
{¶5} In this case, the court summarily denied M.G.’s application without holding a
hearing. Even if the state is correct that M.G.’s conviction is not eligible to be sealed because
he does not qualify as an eligible offender as defined by R.C. 2953.31(A), M.G. is still entitled to
a hearing.
{¶6} The sole assignment of error is sustained. We vacate the order denying M.G.’s
application and remand for further proceedings consistent with R.C. 2953.32.
It is ordered that appellant recover of appellee 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 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.
LARRY A. JONES, SR., JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
