[Cite as State v. K.C. , 2024

- Ohio

- 1052.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO

, :

Plaintiff

- Appell ant

, : No. 11 3120

v. :

K.C.

, :

Defendant

- Appell ee

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED

RELEASED AND JOURNALIZED: March 21, 2024

C ivi l Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 2 2

- 66 7990

- A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney

, and Alan F. Dowling

, Assistant Prosecuting Attorney s , for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and Robert McCaleb, Assistant Public Defender, for appellee

.

MARY J. BOYLE, J.:

Plaintiff

- a ppellant, the s tate of Ohio (“state”)

, appeals the trial court’s

sealing of records for defendant

- appellee, K.C. (“K.C.”) . For the reasons set forth

below, we vacate the judgement dated August 4, 2023.I. Facts and Procedural History

In May 2022, K.C. was charged in a three

- count indictment. K.C.

entered and successfully completed intervention in lieu of conviction (“ILC”)

. In

July 2023, the court issued an order declaring that K.C. completed treatment and

terminated his supervision. The docket shows no activity until August 4, 2023,

when the trial court ordered that K.C.’s records of the entire case be sealed.

It is from this order that t he state appeals , raising the following

assignments of error for our review :

Assignment of Error I: Did the trial court err when it sealed the record of a case without an application from the defendant, without providing notice to the State, and without holding a hearing?

Assignment of Error II: Did the trial court err by sealing the record of a case containing a statutorily ineligible conviction ?

II. Law and Analysis

In the first assignment of error, t he state challenges th e trial court’s

authority to seal the record of the case

, without application by K.C. , without notice

to the state, and without a hearing. K.C. concedes t his argument.

R.C. 2951.041(E) dictates that u pon the successful completion of

ILC

, the court shall dismiss the proceedings against the offender and may order

the sealing of the record s in accordance with the sealing provisions of th e Revised

Code. The section applicable in this case is R.C. 29 53.33 (B)(1)

, which states that

[u] pon the filing of an application pursuant to division (A) of this 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 court shall hold the hearing not less than forty

- five days and not more than ninety days from the date of the filing of the application. The prosecutor mayobject to the granting of the application by filing a written objection

with the court not later than thirty days 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.

(Emphasis added.)

Nothing in the statute grants the court authority to seal a record on

its own motion

. Further , the statute expressly requires notice to the state and that

a hearing be held to determine whether K.C. is eligible. See State v. W.A.R. , 8th Dist.

Cuyahoga No. 113057, 2024

- Ohio

- 256, ¶ 20 ( f inding that “ R.C. 2953.32 definitively

requires the trial court to set a hearing upon W.A.R. ’ s application of his motion to

seal; to hold a hearing on that motion; and to make the determinations enumerated

in R.C. 2953.32(D)(1) ”)

. 1

Pursuant to R.C. 2953.3 3 , the trial court improperly

, without

application, notice, or a hearing, sealed K.C.’s records

. Accordingly, we sustain the

state’s first assignment of error

.

Because of our disposition of the first assignment of error , we decline

to address the second assignment

. 2 App.R. 12.

Accordingly, the August 4, 2023 journal entry sealing the record is

hereby vacated

.

Costs waived

.

The court finds there were reasonable grounds for this appeal.

1 R.C. 2953.32(D)(1) language tracks the same as R.C. 2953.33(B)(1) regarding notice and hearing requirements.

2 We note that S.B. No. 197 is pending before the legislature, which may affect K.C.’s eligibility.It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas 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.

________________________ MARY J. BOYLE, JUDGE

MICHELLE J. SHEEHAN

, P

. J., and

ANITA LASTER MAYS , J., CONCUR