Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
EILEEN KILBANE, JUDGE.
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.
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.
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.
B.J. now appeals from the trial court's denial of his
expungement motion, raising the following single assignment
of error for review.
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.
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.
As we recently stated in State v. M.R, 8th Dist.