[Cite as State v. Moulder, 2013-Ohio-1036.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98661

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

KEVIN MOULDER

DEFENDANT-APPELLANT 

JUDGMENT:

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-518387 

BEFORE: Celebrezze, P.J., Jones, J., and Keough, J. 

RELEASED AND JOURNALIZED: March 21, 2013 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Adrienne Cavender 

Cullen Sweeney 

Assistant Public Defenders 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Diane Smilanick 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Appellant, Kevin Moulder, seeks review of the denial of his motion to 

expunge his 2009 attempted assault conviction. Appellant argues that the trial court 

failed to liberally apply the expungement statute in his favor and that the court erred in 

failing to hold a hearing on his motion. Finding merit to his second assignment of error, 

we reverse and remand for a hearing. 

I. Factual and Procedural History 

{¶2} Appellant was indicted by a grand jury on December 2, 2008, on charges of 

assault in violation of R.C. 2903.13, and kidnapping in violation of R.C. 2905.01(A)(4). 

On April 13, 2009, appellant pled guilty to second-degree-misdemeanor attempted assault 

in violation of R.C. 2903.13(B). He was sentenced to a suspended 90-day jail term, a 

$750 fine, and six months of probation. 

{¶3} On October 18, 2010, after completing his probation without incident, he 

applied to have the records of his conviction sealed pursuant to R.C. 2953.32(A). The 

state filed a brief in opposition to his application, and the trial court denied it without 

holding a hearing. 

{¶4} On October 7, 2011, appellant filed another application. Again, the state 

filed a brief opposing expungement. The trial court denied this application on June 8, 

2012, without holding a hearing. Appellant then filed an appeal from that denial raising 

two assignments of error: 
I. The trial court abused its discretion when it denied [appellant’s] 

application for expungement. 

II. The trial court erred and denied [appellant] due process of law when it 

failed to set a hearing pursuant to R.C. 2953.52(B) 

II. Law and Analysis 

{¶5} Because appellant’s second assignment of error is determinative, it will be 

addressed first. Appellant claims that the trial court erred when it did not hold a hearing 

before denying his application to seal the records of his conviction. The expungement 

statutes, R.C. 2953.31 et seq.,1

 are to be liberally construed in favor of the applicant to 

promote the legislative purpose of allowing expungements. State v. Boddie, 170 Ohio 

App.3d 590, 2007-Ohio-626, 868 N.E.2d 699 (8th Dist.). The trial court must weigh the 

interests of the applicant in having the records sealed against the interests the state 

possesses in maintaining those records open to the public. Cleveland v. Cooper-Hill, 8th 

Dist. No. 84164, 2004-Ohio-6920. Alleged errors that a trial court makes in regard to 

expungement are reviewed for an abuse of discretion. Id. An abuse of discretion implies 

that a trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶6} According to recent developments in case law in this jurisdiction, where the 

state raises a determinative question of law2

 in its brief in opposition to expungement that 

 1 Former R.C. 2953.31 and 2953.32 apply to this case. The legislature 

amended these statutes effective September 28, 2012. 

2 Such issues would include whether the offense was one prohibited by 

statute from being expunged or whether the applicant was a first offender where 
can be decided without a hearing, a trial court could, in its discretion, deny the motion 

without a hearing. State v. J.K., 8th Dist. No. 96574, 2011-Ohio-5675, ¶ 16. But see

State v. Hann, 173 Ohio App.3d 716, 2007-Ohio-6201, 880 N.E.2d 148, ¶ 9 (8th Dist.) 

(holding a hearing is mandatory). 

{¶7} However, when, as here, the state raises only issues regarding its interest in 

maintaining records of conviction based on the nature of the offense, a trial court abuses 

its discretion when it fails to hold a hearing on an application made pursuant to R.C. 

2953.31. State v. Houston, 8th Dist. No. 80015, 2002-Ohio-329; State v. Salim, 8th Dist. 

No. 82204, 2003-Ohio-2024. This is because former R.C. 2953.32(B) requires a hearing 

on such a motion, stating, “[u]pon 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.” This language indicates a hearing is mandatory. The state concedes 

this error.3

{¶8} Therefore, the denial of appellant’s application for expungement without 

holding a hearing constitutes an abuse of the trial court’s discretion. Appellant’s second 

assignment of error is sustained. This holding renders appellant’s first assignment of 

error moot. 

III. Conclusion 

 

the state had submitted proof of convictions precluding expungement. 

3 Additionally, appellant’s successive application does not mean 

expungement is barred by res judicata because no hearing was held on the first 

application either. State v. Minch, 8th Dist. No. 87820, 2007-Ohio-158. 
{¶9} The denial of appellant’s application for expungement without a necessary 

hearing constitutes an abuse of the trial court’s discretion. A hearing is mandatory. 

{¶10} This cause is reversed and remanded to the lower court for further 

proceedings consistent with this opinion. 

It is ordered that appellant recover of said appellee costs herein taxed. 

The court finds there were reasonable 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 Appellate Procedure. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

LARRY A. JONES, SR., J., and 

KATHLEEN ANN KEOUGH, J., CONCUR