[Cite as State v. B.C., 2014-Ohio-4091.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100984 

STATE OF OHIO 

PLAINTIFF-APPELLANT 

vs.

B.C.

 DEFENDANT-APPELLEE

JUDGMENT: 

REVERSED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-01-406540-A 

BEFORE: Jones, J., Boyle, A.J., and E.A. Gallagher, J. 

 

RELEASED AND JOURNALIZED: September 18, 2014 
ATTORNEYS FOR APPELLANT 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Diane Smilanick 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: John T. Martin 

Cuyahoga County Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment 

entry granting defendant-appellee’s, B.C.,1

 motion for expungement. We reverse and 

remand. 

{¶2} In July 2013, defendant-appellee, filed an application under R.C. 

2953.32(A)(1) to have the record of conviction in this case sealed; a hearing was 

requested. 

{¶3} The trial court ordered an expungement report. The matter was never set for 

a hearing. In a judgment entry dated December 9, 2013, the trial court granted 

defendant-appellee’s unopposed motion. A revised judgment entry, also granting the 

motion, was dated December 31, 2013. The state filed this appeal on February 12, 2014. 

 Defendant-appellee moved this court to dismiss this appeal for lack of jurisdiction on the 

ground that the appeal was untimely. This court denied the motion.2

{¶4} In its sole assignment of error, the state contends that the trial court erred in 

granting defendant-appellee’s motion without first holding a hearing. 

Defendant-appellee contends that this appeal should be dismissed because the state failed 

to file a timely appeal. The state responds that it did not receive the judgment granting 

the expungement until January 22, 2014, and, therefore, its appeal was timely. 

{¶5} This court already considered defendant-appellee’s position on the timeliness 

of this appeal, and found it not well-taken. Thus, because this issue has been previously 

 

1

It is this court’s policy to refer to defendants in matters involving expungements by their initials. 

2

See motion no. 473840, denying defendant-appellee’s motion to dismiss. 
resolved by this court, and it is not now presented again via a motion for reconsideration, 

we decline to address it again. That said, we now consider the state’s assigned error. 

{¶6} We generally review a trial court’s decision on an expungement motion for an 

abuse of discretion. State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, ¶ 7. 

 An abuse of discretion occurs when a decision is unreasonable, arbitrary, or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 

{¶7} R.C. 2953.32 governs expungement and provides in relevant part as follows: 

(B) Upon the filing of an application under this section, the court shall set a 

date for a hearing and shall notify the prosecutor for 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 for 

believing a denial of the application is justified. * * * 

(Emphasis added.) R.C. 2953.32(B). 

{¶8} The state contends that defendant-appellee does not meet the requirements for 

an eligible offender under R.C. 2953.31(A).3

 The trial court did not set the matter for 

hearing, nor give notice to the state. We find this to be an abuse of discretion. The 

state’s assignment of error is therefore sustained. 

{¶9} Judgment reversed; case remanded to the trial court with instructions to 

conduct a hearing and make the necessary findings under R.C. 2953.32 on the record. 

It is ordered that appellant recover from appellee costs herein taxed. The 

court finds there were reasonable grounds for this appeal. 

 

3

Defendant-appellee previously filed a motion for expungement in 2009, which the state opposed, and 
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 

MARY J. BOYLE, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR 

 

the trial court denied.