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State v. S.D.A.

Court of Appeals of Ohio, Second District, Montgomery

November 3, 2017

STATE OF OHIO Plaintiff-Appellee
v.
S.D.A. Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 14-CR-4315

          ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 345 N. Attorney for Defendant-Appellant..

          OPINION

          FROELICH, J.

         {¶ 1} S.D.A. appeals from a judgment of the Montgomery County Court of Common Pleas, which denied her application to seal the record of the proceedings against her. For the following reasons, the trial court's judgment will be reversed, and the matter will be remanded for further proceedings.

         I. Facts and Procedural History

         {¶ 2} On December 29, 2014, S.D.A. allegedly mailed a letter to an individual in violation of a civil protection order. In January 2015, she was indicted on two counts of violating the terms of a protection order, in violation of R.C. 2919.27(A)(2), based on the December 29, 2014 letter and another incident that allegedly occurred between December 31, 2014 and January 3, 2015. Because S.D.A. had previously been convicted of violating a protection order, the offenses were felonies of the fifth degree. R.C. 2919.27(B)(3).

         {¶ 3} S.D.A. requested, and the trial court granted, intervention in lieu of conviction (ILC), pursuant to R.C. 2951.041. On November 22, 2016, the trial court found that S.D.A. had successfully completed ILC, that she had received the maximum benefit from the drug treatment facility or program, and that the treatment had served its intended purpose; the court ordered that S.D.A.'s case be dismissed.

         {¶ 4} On December 1, 2016, S.D.A., pro se, filed an "application for sealing of record after not guilty finding, dismissal of proceedings or no true bill, " pursuant to R.C. 2953.52(A).[1] The State did not file an objection to the application.

         {¶ 5} There is no indication in the trial court's docket that the trial court scheduled a hearing on the application, and there is nothing in the record to show that S.D.A. (or the prosecutor) received notice of a hearing. However, the State has supplemented the record with a transcript of a January 10, 2017 hearing. The entire transcript of that hearing reads:

(TUESDAY, JANUARY 10, 2017, 11:19 A.M.)
THE COURT: On page 11, 14CR4315 and 15CR641, State of Ohio versus [S.D.A.]. The matter is set for hearing on the defendant's motion to seal the record. [S.D.A.].
THE BAILIFF: Your Honor, there was no response from the hallway.
THE COURT: All right. After reviewing the record, the Court finds that there is a governmental need to maintain the record of the dismissal of these two cases. The defendant has prior convictions for violation of protection orders which are the offenses in this case. Given the serious nature of the offenses and all of the circumstances, I will find that there is a ...

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