[Cite as State v. Gearhardt,
2019-Ohio-391.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28088
:
v. : Trial Court Case No. 2015-CR-2465
:
MICHAEL S. GEARHARDT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of February, 2019.
...........
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
BRYAN K. PENICK, Atty. Reg. No. 0071489 and JOSHUA R. SCHIERLOH, Atty. Reg.
No. 0078325, 1900 Kettering Tower, 40 N. Main Street, Dayton, Ohio 45423
Attorneys for Defendant-Appellant
.............
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DONOVAN, J.
{¶ 1} This matter is before the Court on the August 13, 2018 Notice of Appeal of
Michael S. Gearhardt. Gearhardt appeals from the trial court’s July 13, 2017 entry
denying his motion to seal the record of his case. The State filed a notice of conceded
error pursuant to Loc.R. 2.24 of the Second District Court of Appeals. We hereby reverse
the judgment of the trial court and remand the matter for proceedings consistent with this
opinion.
{¶ 2} Gearhardt was indicted on October 26, 2015, on two counts of possession of
drugs (cocaine and heroin) (Counts 1 and 2); one count of illegal use or possession of
drug paraphernalia (Count 3); four counts of driving while under the influence of alcohol
and/or drugs (Counts 4 through 8); and one count of possession of hashish (Count 9).
{¶ 3} Gearhardt pled not guilty on November 10, 2015. On November 11, 2015,
he filed a “Motion for Intervention in Lieu of Conviction.” After a continuance, Gearhardt
pled guilty on December 31, 2015, to Count 5, driving while under the influence of alcohol,
a drug of abuse, or a combination of them, in violation of R.C. 4511.19(A)(1)(b), a
misdemeanor of the first degree.
{¶ 4} On January 5, 2016, the trial court issued a “Decision and Order of
Intervention in Lieu of Conviction,” effective December 31, 2015, which provided:
On DECEMBER 31, 2015, pursuant to the defendant’s Application for
Intervention in Lieu of Conviction (ILC) filed in accordance with Section
2951.04 of the Ohio Revised Code, and the defendant having tendered a
plea of guilty to the offense(s) of POSSESSION OF COCAINE (less than 5
grams)(F5); POSSESSION OF HEROIN (F5); DRUG PARAPHERNALIA
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OFFENSE (M4); POSSESSION OF HASHISH (MM), under Ohio Revised
Code Section 2925.11(A), 2925.14(C)(1), the Court concludes that the
defendant is eligible for Intervention in Lieu of Conviction (ILC), withholds
an adjudication of guilt and orders that all criminal proceedings be stayed.
(Emphasis omitted.)
{¶ 5} Also on January 5, 2016, the court issued a Judgment Entry of Conviction
on the offense of operating a vehicle while under the influence of drugs, alcohol or
combination of both (Count 5). The court sentenced Gearhardt to community control
sanctions for a period not to exceed five years and imposed a requirement that he “abide
by all terms and conditions imposed for Counts 1, 2, 3 and 9 (Possession of Cocaine (less
than 5 grams)(F)(5); Possession of Heroin (F)(5); Drug Paraphernalia Offense (M4);
Possession of Hashish (MM)(Granted ILC).” (Emphasis omitted.) The remaining charges
were dismissed (Counts 4, 6, 7, and 8).
{¶ 6} On January 6, 2017, the trial court terminated Gearhardt’s community
control, finding that he had “abided by all the sanctions of community control previously
imposed, and [was] rehabilitated to the extent that the community control period should
be terminated.” On January 26, 2017, the Court issued a “Termination Entry” which
stated that Gearhardt had “successfully completed Intervention in Lieu of Conviction” and
dismissed the case.
{¶ 7} On June 22, 2018, Gearhardt filed a motion to seal the record of his
conviction and arrest pursuant to R.C. 2953.52(A)(1) and a supporting affidavit. The
court set a hearing on the motion for July 19, 2018, but on July 9, 2018, the hearing was
continued to August 2, 2018, due to a scheduling conflict of defense counsel.
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{¶ 8} Inexplicably, on July 13, 2018, the court issued an entry denying the motion
to seal the record. The court determined that Gearhardt “does not meet the criteria
according to R.C. 2953.52(B)(2).” The court found that there “appear[ed] to be a
governmental need to maintain the record of dismissal.” The court noted:
Mr. Gearhardt was granted ILC on Counts 1, 2, 3, and 9 of the
indictment on December 31, 2015, and successfully completed it on
January 26, 2017, and [these counts] of the indictment [were] dismissed.
He was granted community control sanctions on Count 5 on December 31,
2015, and was granted a complete termination of probation on January 26,
2017. Counts 4, 6, 7, and 8 were dismissed on December 31, 2015. As
the OVI conviction is by statute not a sealable offense, the record of
Dismissal as to counts 1, 2, 3, and 9 of this case should be maintained as
the result of or in connection with the same act that supports a conviction,
when the records of conviction are not sealable.
{¶ 9} Gearhardt asserts two assignments of error on appeal, which we will consider
together. They are as follows:
THE TRIAL COURT ERRED WHEN IT DETERMINED
GEARHARDT WAS NOT ELIGIBLE TO SEAL DISMISSED CHARGES.
THE TRIAL COURT COULD NOT DETERMINE WHETHER
GEARHARDT’S DISMISSED CHARGES WERE PRECLUDED FROM
BEING SEALED BY R.C. § 2953.61 WITHOUT FIRST HOLDING AN
EVIDENTIARY HEARING.
{¶ 10} Gearhardt “acknowledges his OVI conviction cannot be sealed” pursuant
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to R.C. 2953.36(A)(2). However, he asserts that R.C. 2953.52 authorized the trial court
to seal criminal records related to Gearhardt’s dismissed charges, regardless of his OVI
conviction, subject to the provisions found in R.C. 2953.61. Gearhardt further asserts
that the “trial court could not overrule [his] application to seal records without holding an
evidentiary hearing.” He acknowledges that “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 charg[e] cannot be sealed. However, to make that determination, a trial court
is required to make specific factual findings that can only be made following a hearing.”
Gearhardt seeks a remand for a hearing.
{¶ 11} The State concedes that Gearhardt was entitled to a hearing on his motion
to seal records and that this case should be remanded to allow the trial court to hold a
hearing and make the necessary findings.
{¶ 12} R.C. 2953.52 provides:
(A)(1) Any person, who is found not guilty of an offense by a jury or
a court or who is the defendant named in a dismissed complaint, indictment,
or information, may apply to the court for an order to seal the person's
official records in the case. Except as provided in section 2953.61 of the
Revised Code, the application may be filed at any time after the finding of
not guilty or the dismissal of the complaint, indictment, or information is
entered upon the minutes of the court or the journal, whichever entry occurs
first.
…
(B)(1) Upon the filing of an application pursuant to division (A) of this
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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 specify in the
objection the reasons the prosecutor believes justify a denial of the
application.
(2) The court shall do each of the following, except as provided in
division (B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in the case,
or the complaint, indictment, or information in the case was dismissed, or a
no bill was returned in the case and a period of two years or a longer period
as required by section 2953.61 of the Revised Code has expired from the
date of the report to the court of that no bill by the foreperson or deputy
foreperson of the grand jury;
(ii) If the complaint, indictment, or information in the case was
dismissed, determine whether it was dismissed with prejudice or without
prejudice and, if it was dismissed without prejudice, determine whether the
relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the
person;
(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;
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(d) Weigh the 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.
(Emphasis added.)
{¶ 13} R.C. 2953.61 provides:
(A) Except as provided in division (B)(1) of this section, a person
charged with two or more offenses as a result of or in connection with the
same act may not apply to the court pursuant to section 2953.32 or 2953.52
of the Revised Code for the sealing of the person's record in relation to any
of the charges when at least one of the charges has a final disposition that
is different from the final disposition of the other charges until such time as
the person would be able to apply to the court and have all of the records
pertaining to all of those charges sealed pursuant to section 2953.32 or
2953.52 of the Revised Code.
(B)(1) When a person is charged with two or more offenses as a
result of or in connection with the same act and the final disposition of one,
and only one, of the charges is a conviction under any section of Chapter
4507., 4510., 4511., or 4549., other than section 4511.19 or 4511.194 of
the Revised Code, or under a municipal ordinance that is substantially
similar to any section other than section 4511.19 or 4511.194 of the Revised
Code contained in any of those chapters, and if the records pertaining to all
the other charges would be eligible for sealing under section 2953.52 of the
Revised Code in the absence of that conviction, the court may order that
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the records pertaining to all the charges be sealed. In such a case, the court
shall not order that only a portion of the records be sealed.
{¶ 14} The State further directs our attention to State v. Davis, 175 Ohio App.3d
318,
2008-Ohio-753,
886 N.E.2d 916, ¶ 18 (2d Dist.) (“This court has held that the
requirement of a hearing, as set forth in R.C. 2953.52(B) is mandatory ….”). The State
asserts that it “very well may be the case that all of Gearhardt’s offenses arise ‘as a result
of or in connection with’ the OVI, and are, therefore, unsealable. But the court made no
such findings of fact. In other words, the record, as it stands, does not support any
decision on [the merits of] Gearhardt’s motion. The solution is to remand for a hearing.”
{¶ 15} Based upon the foregoing, Gearhardt’s assigned errors are sustained. The
judgment of the trial court is reversed, and the matter is remanded for further proceedings
consistent with this opinion.
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HALL, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Bryan K. Penick
Joshua R. Schierloh
Hon. Mary L. Wiseman
