The Mandatory Nature of an Expungement Hearing
In a recent case, the Trial Court got frustrated with an applicant because he forgot to list that he had lived in New York on his application for expungement (there was a person in New York of the same name who might have been the same guy who had previously been convicted of a crime there). Under Ohio law, you must be "first offender" in order to get a statutory expungement.
R.C. 2953.32(A)(1) provides, in part, that "a first offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record."
R.C. 2953.32(B) provides that:
"[u]pon 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 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 specify in the objection the reasons for believing a denial of the application is justified. 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."
Ohio's Ninth District Court of Appeals has construed this section to mean that "[t]he court may not dispose of the application without holding a hearing because the language of the statute is mandatory, not permissive." State v. Mallardi (Apr. 26, 2000), 9th Dist. No. 19842, 2000 Ohio App. LEXIS 1791 at *1, citing State v. Cuttiford (Feb. 11, 1998), 9th Dist. No. 97CA006724, 1998 Ohio App. LEXIS 695, at *3.
Therefore, under R.C. 2953.32(B), the trial court was required to hold a hearing and taking into account any objections from the State and the report from the probation department, determine, among other things, whether Smith was a first offender. The Court of Appeals noted that the State did not file objections and the assistant prosecutor was not present on the scheduled hearing date. It is only after a hearing that the court could make a determination that Smith was not a first offender.
A first offender is defined in R.C. 2953.31(A) as "anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction." Smith bears the burden to establish that he was a first offender under the meaning of the statute. State v. Vaught (Sept. 18, 1998), 9th Dist. No. 96CA006324, 1996 Ohio App. LEXIS 3985, at *2.
Under the specific facts of this case, Ohio's Ninth District Court of Appeals found that the expungement applicant was not afforded a hearing. The underlying rationale of the mandated hearing in R.C. 2953.32 is "obviously predicated upon the fact that, under normal circumstances, a trial court would be required to hear evidence prior to rendering its decision in order to make several determinations pursuant to R.C. 2953.52(B)(2)(a) through (d)." State v. Haney (Nov. 23, 1999), 10th Dist. No. 99AP-159, 1999 Ohio App. LEXIS 5524, at *4.
Therefore, Ohio's Ninth District Court of Appeals that implicit in the requirement to hold a hearing is the requirement to afford Smith the opportunity to be heard. The Court's decision in this case is limited to the specific facts before them. The Court did not wish to set forth requirements regarding the exact extent of the hearing on an expungement application. Rather, the Court found that a hearing must be had and at that hearing the trial court must allow the applicant the opportunity to satisfy his burden to establish that he was a first offender. At his scheduled "hearing," the trial court did not allow Smith an opportunity to explain or deny any allegations that he was not a first offender.
In fact, at the beginning of the transcript, the trial court stated that Smith lied on his application and because of that the court would not hear from him. Specifically, the trial court commanded Smith to "[c]ome on forward, because if you irritate me this much more, I'm going to have you charged criminally. Do you understand that? So, it might be a good time just to shut up and listen."
The ensuing conversation centered on the fact that the trial court believed Smith had lied on his application by omitting that he had lived in New York. There was no discussion about whether Smith was a first offender, no objections or appearance from the prosecutor and no discussion regarding the probation report. In fact, after Smith stated to the court, "I did not lie on my application[,]" the trial court found him in contempt and had him jailed. As such, the Court of Appeals could not find that Smith was afforded a hearing as mandated by R.C. 2953.32.
Accordingly, Ohio's Ninth District Court of Appeals remanded the case on this basis so that the trial court can hold a hearing in compliance with the statutory provisions of R.C. 2953.32(B). Dayton v. P.D., 2d Dist. No. 19280, 149 Ohio App. 3d 684, 2002 Ohio 5589, P8, 778 N.E.2d 648. However, the Court held on appeal that even if they were to find that the trial court held the required hearing, the Court would find that its decision to deny Smith's application was not based on legally sufficient evidence.
The Court of Appeals did recognize that "there is no requirement that the court set forth its reasoning when granting or denying an expungement." State v. Krutowsky, 8th Dist. No. 81545, 2003 Ohio 1731, at P14.
"While R.C. 2953.32 provides that the court shall make determinations under R.C. 2953.32(C)(1)(a)-(e), the legislature could have easily specified that the phrase 'shall determine' shall mean that the court shall set forth its reasoning on the record and/or in writing. However, the legislature specifically worded this particular statute differently from other statutes intended to dictate that result." Id.
The Court of Appeals noted that, while not required to in the instant case, the trial court stated in its journal entry that it was denying the application because the community control department determined that Smith had been previously convicted of a crime or was untruthful in his statements on his application. By stating that Smith had been previously convicted of a crime, the trial court implicitly determined that he was not a first offender.
The Court of Appeals review of the record reveals that the trial court's determination that Smith was previously convicted of a crime was not supported by legally sufficient evidence. The Court of Appeals did not condone Smith's apparent omission in his application to expunge. Clearly, the trial court's frustration is understandable. However, the omission alone was not a factor under R.C. 2953.32 that would necessitate a denial of the application.
On the record, the trial judge stated:
"Let's leave it at this, that he admits when he files the application he leaves out that he has ever lived in the State of New York. When we find out that he has, and at his interview, he says, oh, yeah, I did. It turns out that he's lived in four or five cities of New York that he leaves off. There is a conviction of a sexual nature in New York City that matches him, and he says I don't know anything about that, and the probation officer said in [**10] my contact with New York City, I cannot confirm it's him because they did not retain a Social Security number even though the other information matches. So, my probation officer said I don't want to treat that as a disqualifier until further research has been done. I told the investigator we're not going one step further when a guy files his application and leaves out that he ever lived in the state." (Emphasis added.)
As the community control department did not complete its investigation into whether Smith committed a crime in New York City, the trial court could not make the mandated finding as to whether he was a first offender. R.C. 2953.32(C)(1)(a). Accordingly, The Ninth District Court of Appeals found that the trial court's determination that Smith was not a first offender was not based on legally sufficient evidence.
Continue on to our complete guide to Ohio expungement law
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