[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, 2017ATTORNEYS 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. appeal s the trial court’s denial of his application to seal
his prior conviction without a hearing. The st ate, 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 sa nctions. He violated his community control

sanctions and was subse quently 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 de nying his motion to seal his reco rd 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 convicti on, 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 erro r 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 unle ss 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 co rrect that M.G.’s conviction is not eligible to be sealed because
he does not qualify as an eligib le 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 pr oceedings consistent with R.C. 2953.32.
It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR