Court of Appeals of Ohio, Third District, Crawford
from Crawford County Common Pleas Court Trial Court No.
Michael S. Probst for Appellant
M. Hoovler for Appellee
Although originally placed on our accelerated calendar, we
have elected pursuant to Loc.R. 12(5) to issue a full opinion
in lieu of a summary judgment entry. This appeal is brought
by petitioner-appellant Eric McMahon ("McMahon")
from the judgment of the Court of Common Pleas of Crawford
County denying his petition to have his record sealed without
first holding a hearing. For the reasons set forth below, the
judgment is reversed and the matter is remanded for further
Between July 15, 2011, and August 4, 2011, McMahon engaged in
an online chat with a law enforcement officer posing as a
15-year-old girl. On October 12, 2011, the Crawford County
Grand Jury indicted McMahon on two counts of disseminating
matter harmful to juveniles in violation of R.C. 2907.31,
both felonies of the fifth degree. Doc. 1. This statute
specifically allows a defendant to be charged for
disseminating obscene material to a law enforcement officer
posing as a juvenile and does not require that any juvenile
actually be involved. R.C. 2907.31. On July 10, 2012, McMahon
entered a plea agreement amending the charges to two counts
of telecommunications harassment in violation of R.C.
2917.21(B), both felonies of the fifth degree. Doc. 24. The
statute prohibits one from using a telecommunication device
to harass another. R.C. 2917.21(B). The trial court accepted
the guilty pleas to the amended charges and sentenced McMahon
to one year of community control. Doc. 25. On July 10, 2013,
the trial court entered judgment terminating McMahon's
community control finding that all of the requirements had
been fulfilled. Doc. 26.
On August 21, 2017, McMahon filed an application to have the
record of his conviction sealed pursuant to R.C. 2953.31 and
R.C. 2953.32. Doc. 27. No response was filed by the State and
no hearing was set. On September 13, 2017, the trial court
denied the application finding that McMahon was not eligible
because the victim of the offense was under the age of 16
years. Doc. 28. McMahon filed a timely notice of appeal. Doc.
29. On appeal McMahon raises the following assignment of
The trial court erred in overruling Appellant's
application to seal his criminal record when it failed to (i)
hold a statutorily-mandated hearing and (ii) make any finding
that the State's need to maintain a record of the
conviction outweighed Appellant's interest in having the
State filed its response conceding the argument of McMahon.
For the reason set forth below, we agree.
The procedure for the sealing of records is controlled by
R.C. 2953.32, which states in pertinent part as follows.
(B) Upon 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. * * * The court shall direct its regular
probation officer, a state probation officer, or the
department of probation of the county in which the applicant
resides to make inquiries and written reports as the court
requires concerning the applicant.
R.C. 2953.32(B) (emphasis added). The Supreme Court of Ohio
has held that R.C. 2953.32 mandates that a trial court must
conduct a hearing before ruling on an application because the
statute requires it by the use of the term "shall".
State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio
St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989. The failure to
conduct the mandatory hearing requires reversal of the trial
court's decision. State v. L.L., 2d Dist. Clark
No. 2016-CA-74, 2017-Ohio-5489.
Likewise, this court has previously addressed this issue in
State v. Wright, 191 Ohio App.3d 647,
2010-Ohio-6259, 947 N.E.2d 246 (3d Dist). In Wright,
the applicant moved to have her perjury conviction sealed.
The presentence investigation indicated that she was not a
first offender and was thus not eligible to have her record
sealed. The trial court then denied her application without
holding a hearing. This court held that the statute mandates
that the trial court conduct a hearing prior to deciding an
application to seal a record even if there is some dispute as
to whether the applicant is eligible. Id. This court
noted that while a hearing may not be required if the
conviction is for one of the offenses named as ineligible, in
cases involving other issues with the application, the
hearing is required. Id. at ¶ 11-12.
Here, there is no dispute that the convictions sought to be
sealed are not amongst the offenses listed as ineligible
pursuant to R.C. 2953.36. The sole reason given by the trial
court for denying the application was that the victim of the
offense was less than 16 years of age. However, a review of
the record reveals that there was no actual victim under the
age of 16 years of age. The "victim" was an officer
posing as a 15-year-old girl. Additionally, the charge upon
which McMahon was convicted does not provide any age
requirement as existed in the original charge. McMahon has
argued that the legislature did not preclude the sealing of a
record for offenses where a law enforcement officer is posing
as a victim under the age of 16 as it has in other statutes.
Thus, this issue is ...