State v. B.K.H.

2021 Ohio 3611

• Court: Ohio Court of Appeals
• Decided: October 8, 2021
• Docket: 29102
• Status: Published

Opinion

[Cite as State v. B.K.H., 2021-Ohio-3611.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellant : Appellate Case No. 29102 : v. : Trial Court Case No. 2014-CR-1839 : B.K.H. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellee : :

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OPINION

Rendered on the 8th day of October, 2021.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellant

B.K.H., Dayton, Ohio 45403 Defendant-Appellee, Pro Se

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TUCKER, P.J. -2-

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment of the

Montgomery County Court of Common Pleas granting an application to seal records filed

by defendant-appellee B.K.H. For the reasons that follow, the judgment of the trial court

is reversed, and this matter is remanded for further proceedings.

I. Facts and Procedural Background

{¶ 2} B.K.H. was originally charged in Dayton Municipal Court with one felony

count of domestic violence. In July 2014, a report of a no true bill was filed with the

Common Pleas Court in Montgomery C.P. No. 2014-CR-1839.

{¶ 3} On March 26, 2021, B.K.H., acting pro se, filed a form “application for sealing

of record, after not guilty finding, dismiss [sic] of proceedings or no true bill O.R.C.

2953.52(A).” On April 9, 2021, the trial court granted the application.

{¶ 4} The State filed a motion seeking leave to appeal in accord with R.C.

2945.67(A) and App.R. 5(C). B.K.H. did not file a response or objection thereto. This

court granted the motion, and on April 23, 2021, the State filed a timely notice of appeal.

II. Analysis

{¶ 5} The State presents the following as its sole assignment of error:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FAILED TO COMPLY WITH R.C. 2953.52(B)(1) AND GRANTED B.K.H.’S

APPLICATION TO SEAL HIS RECORDS WITHOUT SETTING OR

HOLDING A HEARING.

{¶ 6} The State asserts that the trial court erred in granting the application to seal -3-

a record under R.C. 2953.52 because it failed to comply with the statutory mandate for

notice and a hearing on the matter.

{¶ 7} R.C. 2953.52(A)(2) permits “[a]ny person, against whom a no bill is entered

by a grand jury, [to] apply to the court for an order to seal his official records in the case

* * * at any time after the expiration of two years after the date on which the foreperson

or deputy foreperson of the grand jury reports to the court that the grand jury has reported

a no bill.” “Upon the filing of an application pursuant to division (A) of this section, the

court shall set a date for a hearing and shall notify the prosecutor in 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 the prosecutor believes justify a denial of the

application.” R.C. 2953.52(B)(1).

{¶ 8} There is no indication in the trial court's docket that the trial court scheduled

or conducted a hearing on B.K.H.’s application, and there is nothing in the record to show

that the prosecutor received notice of a hearing.

{¶ 9} The Ohio Supreme Court has “repeatedly recognized that use of the term

‘shall’ in a statute or rule connotes a mandatory obligation unless other language

evidences a clear and unequivocal intent to the contrary.” (Citations omitted.) State ex

rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28.

Thus, “[t]he requirement of a hearing, as set forth in R.C. 2953.52(B), is mandatory.”

State v. S.D.A., 2d Dist. Montgomery No. 27447, 2017-Ohio-8415, ¶ 11, citing State v.

Davis, 175 Ohio App.3d 318, 2008-Ohio-753, 886 N.E.2d 916, ¶ 18 (2d Dist.); State v.

Rybarczyk, 6th Dist. Wood Nos. WD-15-020, WD-15-021, 2015-Ohio-4211. “In addition, -4-

the statute expressly requires the trial court to notify the prosecutor of the hearing, thus

providing the prosecutor with an opportunity to file objections prior to the hearing. R.C.

2953.52(B)(1).” S.D.A. at ¶ 11.

{¶ 10} In general, an appellate court reviews a trial court's disposition of an

application to seal a record of conviction under an abuse of discretion standard. State

v. Norfolk, 10th Dist. Franklin No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v. Hilbert,

145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001). However, with issues

involving a question of law, an appellate court reviews the trial court's determination de

novo. Id., citing State v. Derugen, 110 Ohio App.3d 408, 410, 674 N.E.2d 719 (3d

Dist.1996).

{¶ 11} Because the court failed to give notice to the prosecutor and to hold a

hearing as required by statute, the State was prevented from objecting or presenting

evidence in opposition to B.K.H.’s application. This constituted error as a matter of law.

{¶ 12} The State’s sole assignment of error is sustained.

III. Conclusion

{¶ 13} The judgment of the trial court is reversed, and this matter is remanded for

further proceedings.

DONOVAN, J. and EPLEY, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter B.K.H. Hon. Mary Lynn Wiseman -5-