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State v. B.J.

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
B.J. DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-439646-ZA

          ATTORNEY FOR APPELLANT Michael P. Harvey

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor

          BEFORE: Kilbane, J., E.A. Gallagher, A.J., and Keough, P.J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, JUDGE.

         {¶1} Defendant-appellant, B.J., appeals from the trial court's denial of his motion for expungement. For the reasons set forth below, we reverse and remand.

         {¶2} In 2008, B.J. was convicted of one count of assault on a peace officer and one count of resisting arrest. The trial court sentenced him to a 90-day suspended jail sentence, one year of community control, 400 hours of community service, anger management and a mental health assessment, and fines and court costs.

         {¶3} In March 2017, B.J. filed a motion for expungement. The state filed its opposition on April 11, 2017. On April 21, 2017, the trial court denied B.J.'s motion without first holding a hearing.

         {¶4} B.J. now appeals from the trial court's denial of his expungement motion, raising the following single assignment of error for review.

         Assignment of Error

         The trial court committed reversible error by finding [B.J.] ineligible for the expungement and/or sealing of his felony conviction arising out of a misunderstanding with an off-duty police officer working security at a Sam's Club.

         {¶5} As an initial matter, we note and the state of Ohio concedes that the trial court denied B.J.'s expungement motion without holding a hearing as required by R.C. 2953.32(B), which provides that

[u]pon the filing of the application, the court shall set a date for a hearing and shall notify the prosecutor for 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 hearing.

         {¶6} As we recently stated in State v. M.R, 8th Dist. ...


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