[Cite as State v. Baston,
2021-Ohio-3228.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200204
TRIAL NO. B-9306644
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ROBERT P. BASTON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: September 17, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Robert P. Baston appeals the trial court’s entry
denying his application to have records sealed, arguing in a single assignment of
error that the trial court’s denial of his application was in error. Because the trial
court erred in determining that Baston was ineligible to have his records sealed
because he was serving a prison term for an unrelated offense, we reverse the trial
court’s judgment and remand for further proceedings.
Factual Background
{¶2} Baston filed an application to have his records sealed, seeking to seal a
domestic-violence charge in the case numbered B-9306644 that was ignored by the
grand jury. At the time the application was filed, Baston was (and still is) serving a
40-year prison sentence for child molestation.
{¶3} The state objected to Baston’s application to have records sealed,
arguing that Baston was ineligible to have his records sealed because he had a
pending criminal matter, specifically his incarceration on the child-molestation
offense. The state alternatively argued that, even if Baston was eligible to have his
records sealed, the trial court should exercise its discretion to deny his application.
{¶4} The trial court issued an entry denying Baston’s application to have his
records sealed. The entry stated that “the Court finds the application not well taken
and it is therefore denied. If Ohio law were to change in a manner that would render
the defendant eligible for the sought after relief, then this denial is without prejudice
to refiling.” Baston appealed the trial court’s entry.
{¶5} On appeal, this court issued an entry remanding the case for the trial
court to clarify the basis for its denial of Baston’s application. The trial court issued a
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OHIO FIRST DISTRICT COURT OF APPEALS
subsequent entry which stated that “[a]t the time defendant’s application for record
sealing came before this Court, the defendant was serving a 40-year sentence for
child molestation in Indiana. Due to this pending criminal matter, the Court found
defendant ineligible and denied his application accordingly.”
R.C. 2953.52
{¶6} In his sole assignment of error, Baston argues that the trial court erred
in denying his application to have his records sealed.
{¶7} We typically review a trial court’s decision on an application to seal
records for an abuse of discretion. State v. Floyd, 2018-Ohio-5107,
126 N.E.3d 361, ¶
4 (1st Dist.). But where the dispute as to the sealing of records involves a purely legal
question, as it does in this case, we conduct a de novo review.
Id.
{¶8} R.C. 2953.52 governs the sealing of records for charges that were
ignored by a grand jury. It provides that “[a]ny person, against whom a no bill is
entered by a grand jury, may apply to the court for an order to seal his 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 expiration of two years after the date on
which the foreperson or deputy foreperson of the grand jury reports to the court that
the grand jury has reported a no bill.” R.C. 2953.52(A)(2). After an application for
the sealing of records is filed, the prosecutor is given time to file objections to the
granting of the application. R.C. 2953.52(B)(1).
{¶9} When considering an application to have records sealed, the trial court
must, among other things, determine whether “criminal proceedings are pending”
against the applicant. R.C. 2953.52(B)(2)(b); Floyd at ¶ 5. An applicant is not
eligible to have records sealed if she or he has a pending criminal matter. Here, the
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OHIO FIRST DISTRICT COURT OF APPEALS
trial court denied Baston’s application based on its determination that he had a
pending criminal matter.
{¶10} In Floyd, this court considered what it meant to have a “pending
criminal matter.” Floyd filed an application to seal records while she was serving a
two-year community-control sanction and was subject to a 180-day suspended
sentence on an unrelated misdemeanor case. Floyd, 2018-Ohio-5107,
126 N.E.3d
361, at ¶ 2. The trial court denied Floyd’s application after finding that she had a
pending criminal matter.
Id. This court reversed, holding that “[o]nce a defendant
has been found guilty and been sentenced, in other words convicted, the criminal
proceeding is no longer pending.” Id. at ¶ 8. We further explained:
While the trial court retains jurisdiction in misdemeanor cases after
sentencing, R.C. 2929.25(B) and (C) and 2929.24(H), this does not
mean that the criminal proceeding is still pending. If a court imposes
a jail term for a misdemeanor, the court retains jurisdiction over the
offender and the jail term, and may substitute a community-control
sanction for any remaining portion of the nonmandatory jail term. But
this jurisdiction is invoked only upon motion of the defendant, the
state or the court. R.C. 2929.24(H). Similarly, if a court imposes a
community-control sanction, it may modify community-control
sanctions or conditions of release previously imposed, but only upon
motion of the defendant, the state or the court. R.C. 2929.25(B). And
any alleged violation of a community-control sanction results in the
commencement of a new “proceeding” resulting in a final judgment
subject to appeal. See State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-
2814, 56 N.E.3d 965, ¶ 16 (in contrast to probation violation and
revocation proceedings, community-control-violation hearings are
formal, adversarial proceedings). The possibility of the exercise of this
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OHIO FIRST DISTRICT COURT OF APPEALS
limited jurisdiction following conviction does not render the
proceeding still “pending.”
Id.
{¶11} Based on the reasoning set forth in Floyd, we hold that Baston did not
have a pending criminal matter. Once he was convicted of the child-molestation
offense and sentenced, the proceeding was no longer “pending.”
{¶12} We hold that the trial court erred in denying Baston’s application to
have his records sealed based on its determination that he had a pending criminal
matter, and we sustain Baston’s assignment of error.
Conclusion
{¶13} The judgment of the trial court denying Baston’s application to have
his records sealed is reversed. This matter is remanded for the trial court to
determine pursuant to R.C. 2953.52 whether Baston is otherwise entitled to have his
records sealed.
Judgment reversed and cause remanded.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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