APPEAL from the Franklin County Court of Common Pleas, No. 12EP-534
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
Tyack, Blackmore, Liston & Nigh Co., L.PA., and Thomas M. Tyack, for appellant.
(¶ 1} This is an appeal by defendant-appellant, William J. Heidrick, from an entry of the Franklin County Court of Common Pleas denying appellant's application for an order to seal the official records of a dismissed criminal case pursuant to R.C. 2953.52.
(¶ 2} On July 11, 2012, appellant filed an application, pursuant to R.C. 2953.52(A), for an order to seal a record of dismissal in common pleas case No. 07CR-8392, in which appellant had been indicted on charges of kidnapping, abduction, and domestic violence. The state filed a response on September 14, 2012, requesting that the application be denied. Attached to the state's response was a copy of an entry, filed April 17, 2008, indicating that the trial court had entered a nolle prosequi in case No. 07CR-8392 "for the reason that victim has relocated out of state and does not wish to cooperate in prosecution; insufficient additional evidence to proceed." On September 28, 2012, appellant filed a reply to the state's response. By entry filed November 14, 2012, the trial court denied the application to seal.
(¶ 3} On appeal, appellant sets forth the following assignment of error for this court's review:
THE TRIAL COURT ERRED PURPORTING TO DENY THE DEFENDANT'S REQUEST SEALING THE RECORD PURSUANT TO §2953.52 OF THE REVISED CODE SINCE THE CHARGES AGAINST HIM HAD BEEN DISMISSED BY PURPORTING TO RELY ON THE PROVISIONS OF §2953.32 OF THE REVISED CODE RELATING TO EXPUNGEMENT OF CONVICTION AND NOT MAKING THE FINDINGS MANDATED BY §2953.52, ET SEQ. OF THE REVISED CODE IN A SITUATION WHERE THE CHARGES HAVE BEEN DISMISSED VIS A VIS A CONVICTION.
(¶ 4} Under his single assignment of error, appellant asserts that the trial court erred in denying the application to seal by purporting to rely on R.C. 2953.32 relating to expungement of convictions. Appellant notes that the state, in its response to the application, cited two cases, State v. Simon, 87 Ohio St.3d 531 (2000), and State v. Hamilton, 75 Ohio St.3d 636 (1996), involving the expungement provisions under R.C. 2953.31 through 2953.36; more specifically, those cases involved applications to seal records of convictions. Appellant filed a reply to the state's response, observing that the application in the instant case was brought under R.C. 2953.52 which governs the sealing of records for individuals who have been charged but not convicted.
(¶ 5} Under Ohio law, "there are currently two statutory methods to expunge and seal criminal records." Schussheim v. Schussheim, 12th Dist. No. CA2011-07-078, 2012-Ohio-2573, ¶ 10. Specifically, "R.C. 2953.32 * * * allows convicted first-time offenders to seek the expungement and sealing of their conviction records, [while] R.C. 2953.52 * * * allows for the expungement and sealing of a defendant's criminal records if the defendant was found not guilty, the case was dismissed, or a grand jury returned a no bill." Id.
(¶ 6} Here, appellant's application was brought pursuant to R.C. 2953.52, which states in part:
(A)(1) Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person's 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 finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.
(B)(1) Upon 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 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 ...