[Cite as In re M.C.H., 2013-Ohio-2649.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: M.C.H. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
:
:
: Case No. 12-CA-131
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Juvenile Division, Case
No. 2010-TR-415
JUDGMENT: Affirmed in part; reversed in part and
remanded
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREG MARX SHERRIE HUSTEAD
BY: LORI THOMSON 1998 Refugee Street N.E.
239 W. Main Street, Ste. 100 Millersport, OH 43046
Lancanster, OH 43130
[Cite as In re M.C.H., 2013-Ohio-2649.]
Gwin, P.J.
{¶1} Appellant M.C.H.1 a minor, appeals the October 26, 2012 judgment of the
Court of Common Pleas, Juvenile Division, Fairfield County, Ohio denying his motion to
Seal/Expunge Juvenile Records.
Facts and Procedural History
{¶2} On June 25, 2010 in Case Number 2010-TR-0415 M.C.H. was cited by
the Millersport Police Department for Failure to Yield at an intersection while riding his
bicycle.2
{¶3} On June 28, 2010, a delinquency complaint was filed in case number
2010-DL-280 charging M.C.H. with one count of Assault, in violation of R.C. 2903.13,
one count of Sexual Imposition, in violation of R.C. 2907.06, one count of Menacing, in
violation of R.C. 2903.22, and one count of Disorderly Conduct, in violation of 2917.11.3
{¶4} By Judgment Entry filed July 30, 2010, the trial court granted the state
leave to nolle prosequi the traffic case because the parties had reached an agreement
and a delinquency case was pending.
{¶5} By Judgment Entry filed November 8, 2010 in the delinquency case, the
trial court granted the state’s motion to dismiss due to “inability to proceed.”
{¶6} On September 27, 2012, M.C.H. filed a “Motion to Seal Juvenile Records,”
pursuant to R.C. 2151.356(B)(1)(d) in both the traffic and the delinquency cases.
{¶7} On October 26, 2012, the trial court filed entries in each case denying the
motions because M.C.H. "has not shown to be rehabilitated to a satisfactory degree."
1
Counsel should adhere to Rule 45(D) of the Rules of Supt. for Courts of Ohio concerning
disclosure of personal identifiers.
2
5th Dist. No. 12-CA-131.
3
5th Dist. No. 12-CA-130.
Fairfield County, Case No. 12-CA-131 3
Assignments of Error
{¶8} M.C.H. raises one assignment of error,
{¶9} “I. THE JUVENILE COURTS ORDER DENYING THE
SEALING/EXPUNGEMENT OF THE JUVENILES DISMISSED DELINQUENCY
OFFENSES AND THE NOLLE. PROSEQUI TRAFFIC OFFENSE IS CONTRARY TO
THE PLAIN WORDING OF O.R.C. 2151.356(B)(1)(d).”4
Analysis
{¶10} No transcript of any court proceedings have been filed in the case at bar.
Because the transcript of the proceeds have not been not filed with the trial court or
made a part of the record for purposes of appeal, it does not constitute part of the
record on appeal. See App.R. 9(A).
“When portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, as to the assigned errors, the court has no
choice but to presume the validity of the lower court's proceedings, and
affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
N.E.2d 384, 385(1980). If a partial record does not conclusively support
the trial court's decision, it is presumed that the omitted portion provides
the necessary support.
Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629 N.E.2d 500, 506(1993); In re
Adoption of Foster, 22 Ohio App.3d 129, 131, 489 N.E.2d 1070, 1072-1073(1985).
{¶11} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d
528(2001), the Supreme Court noted: “a reviewing court cannot add matter to the
4
The assignment of error is identical in Case Nos. 12-CA-130 and 12-CA-131.
Fairfield County, Case No. 12-CA-131 4
record before it that was not a part of the trial court's proceedings, and then decide the
appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377
N.E.2d 500(1978). It is also a longstanding rule "that the record cannot be enlarged by
factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL
350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio
App. 55, 59, 201 N.E.2d 227(1963). In the case In re Lodico, this Court observed,
“A trial court may not take judicial notice of prior proceedings in the
court, but may only take judicial notice of prior proceedings in the
immediate case. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of
Revision (1982), 7 Ohio App.3d 157, 159, 454 N.E.2d 1330. See, also, D
& B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53, 701
N.E.2d 32; In re Knotts (1996), 109 Ohio App.3d 267, 271, 671 N.E.2d
1357; Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, 660
N.E.2d 520; State v. Velez (1991), 72 Ohio App.3d 836, 838, 596 N.E.2d
545; Kiester v. Ehler (1964), 9 Ohio App.2d 52, 56, 222 N.E.2d 782; Burke
v. McKee (1928), 30 Ohio App. 236, 238, 164 N.E. 776. The rationale for
this holding is that, if a trial court takes notice of a prior proceeding, the
appellate court cannot review whether the trial court correctly interpreted
the prior case because the record of the prior case is not before the
appellate court. Dues, supra, at 53, 701 N.E.2d 32. See Deli Table, Inc. v.
Great Lakes Mall (Dec. 31, 1996), Lake App. No. 95-L-012, at 13; Phillips
v. Rayburn (1996), 113 Ohio App.3d 374, 379, 680 N.E.2d 1279.”
Fairfield County, Case No. 12-CA-131 5
5th Dist. No. 2003-CA-00446, 2005-Ohio-172, ¶94, quoting State v. Blaine, 4th Dist No.
03CA9, 2004-Ohio-1241, ¶19.
{¶12} Accordingly, the state’s material and factual assertions contained in its
brief in this Court concerning other juvenile case involving M.C.H. may not be
considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d
386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d
1202, ¶16.
{¶13} Therefore, we have disregarded facts in either party's brief that are outside
of the record.
{¶14} In his sole assignment of error, M.C.H. argues that the trial court erred by
not sealing his juvenile records.
{¶15} It is well settled that “‘[e]xpungement is an act of grace created by the
state,’ and so is a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 2000-
Ohio-474, quoting State v. Hamilton, 75 Ohio St.3d 636, 639(1996). The statutory law in
effect at the time of the filing of an application to seal a record of conviction is
controlling. State v. LaSalle, 96 Ohio St.3d 178, 772 N.E.2d 1172, 2002-Ohio-4009,
paragraph 2 of the syllabus; State v. Moorehart, 5th Dist. No. 2008-CA-0072, 2009-
Ohio-2844, ¶14.
{¶16} R.C. 2156.356 sets forth the procedure to apply for the sealing of records
in juvenile cases. In 2012, the statute provided in relevant part,
(B)(1) The juvenile court shall promptly order the immediate sealing
of records pertaining to a juvenile in any of the following circumstances:
Fairfield County, Case No. 12-CA-131 6
(a) If the court receives a record from a public office or agency
under division (B)(2) of this section;
(b) If a person was brought before or referred to the court for
allegedly committing a delinquent or unruly act and the case was resolved
without the filing of a complaint against the person with respect to that act
pursuant to section 2151.27 of the Revised Code;
(c) If a person was charged with violating division (E)(1) of section
4301.69 of the Revised Code and the person has successfully completed
a diversion program under division (E)(2)(a) of section 4301.69 of the
Revised Code with respect to that charge;
(d) If a complaint was filed against a person alleging that the person
was a delinquent child, an unruly child, or a juvenile traffic offender and
the court dismisses the complaint after a trial on the merits of the case or
finds the person not to be a delinquent child, an unruly child, or a juvenile
traffic offender;
(e) Notwithstanding division (C) of this section and subject to
section 2151.358 of the Revised Code, if a person has been adjudicated
an unruly child, that person has attained eighteen years of age, and the
person is not under the jurisdiction of the court in relation to a complaint
alleging the person to be a delinquent child.
{¶17} M.C.H. has alleged in the trial court as well as in this Court that he is
entitled to have his record sealed pursuant to R.C. 2151.356(B)(1)(d) because the
charges were dismissed or nolled.
Fairfield County, Case No. 12-CA-131 7
{¶18} The primary purpose of the judiciary in the interpretation or construction of
a statue is to give effect to the intention of the legislature, as gathered from the
provisions enacted by application of well-settled rules of construction or interpretation.
Henry v. Central National Bank, 16 Ohio St.2d 16, 20, 242 N.E.2d 342(1968), quoting
State ex rel. Shaker Heights Public Library v. Main, 83 Ohio App. 415, 80 N.E.2d
261(8th Dist.1948). It is a cardinal rule that a court must first look to the language itself
to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304
N.E.2d 378(1973). If that inquiry reveals that the statute conveys a meaning that is
clear, unequivocal and definite, at that point, the interpretive effort is at an end, and the
statute must be applied accordingly. Id. at 105–106, 304 N.E.2d 378. In determining
legislative intent, it is the duty of the court to give effect to the words used, not to delete
words used or to insert words not used. Columbus–Suburban Coach Lines v. Public
Utility Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). See also, In re:
McClanahan, 5th Dist. No. 2004AP010004, 2004–Ohio–4113, 2004 WL 1758408, ¶ 16.
{¶19} R.C. 1.42 states: “1.42 Common and technical usage. Words and phrases
shall be read in context and construed according to the rules of grammar and common
usage. Words and phrases that have acquired a technical or particular meaning,
whether by legislative definition or otherwise, shall be construed accordingly.”
{¶20} R.C. 2151.356(B)(1)(d) clearly states that to be eligible for sealing of the
records, a dismissal must occur “after a trial on the merits of the case.” In the case at
bar no trial took place. See, Juv. R. 28(F)(1). The effect of a dismissal or a nolle has
been explained,
Fairfield County, Case No. 12-CA-131 8
The entry of a nolle prosequi restores an accused to the status of a
person against whom charges have never been filed, Columbus v. Stires
(1967), 9 Ohio App. 2d 315, 317. Sander v. State of Ohio (S.D. Ohio,
1973), 365 F. Supp. 1251, 1253, holds that no jeopardy attaches where a
nolle prosequi is entered before a jury is sworn. Further, the acceptance of
a guilty plea on some counts and the nolle of others, is not functionally
equivalent to a verdict of not guilty on the dismissed charges, Hawk v.
Berkemer (6th Cir. 1979), 610 F. 2d 445, 447.
State v Frost, 8th Dist. No. 45561, 1983 WL 5507(June 23, 1983). Accord, State v.
Cole, 9 Ohio App.3d 315, 317, 224 N.E.2d 369(1967); State v. Eubank, 6th Dist. No. L-
11-1211, 2012-Ohio-3512, ¶7. As jeopardy has not attached and the accused can be
re-prosecuted for the same offense, a dismissal or nolle is not the functional equivalent
of an acquittal.
{¶21} The second provision for sealing of the records in a juvenile case
envisions a trial court specifically finding the person “not to be a delinquent child, an
unruly child, or a juvenile traffic offender.” In the case at bar, the trial court did not make
a finding that M.C.H. was not a delinquent child, an unruly child, or a juvenile traffic
offender. Rather, the trial court denied the motion to seal the records because M.C.H.
“has not shown to be rehabilitated to a satisfactory degree.” It appears, therefore, that
the trial court’s denial of M.C.H.’s application to seal the records was not based upon
R.C. 2151.356(B)(1)(d).
{¶22} R.C. 2151.356 further provides,
Fairfield County, Case No. 12-CA-131 9
(C)(1) The juvenile court shall consider the sealing of records
pertaining to a juvenile upon the court's own motion or upon the
application of a person if the person has been adjudicated a delinquent
child for committing an act other than a violation of section 2903.01,
2903.02, 2907.02, 2907.03, or 2907.05 of the Revised Code, an unruly
child, or a juvenile traffic offender and if, at the time of the motion or
application, the person is not under the jurisdiction of the court in relation
to a complaint alleging the person to be a delinquent child. The motion or
application may be made at any time after two years after the later of the
following:
(a) The termination of any order made by the court in relation to the
adjudication;
(b) The unconditional discharge of the person from the department of
youth services with respect to a dispositional order made in relation to the
adjudication or from an institution or facility to which the person was
committed pursuant to a dispositional order made in relation to the
adjudication.
***
{¶23} If the prosecuting attorney does not object to the sealing of the records,
the court may order the records sealed without conducting a hearing. R.C.
2151.356(C)(2)(d)(ii). However, if the prosecuting attorney objects to the sealing of the
records, the trial court “shall conduct a hearing on the motion” and must give notice of
the date, time and location of the hearing to the prosecutor and the person who is the
Fairfield County, Case No. 12-CA-131 10
subject of the records under consideration. R.C. 2151.356(C)(2)(d)(iii). The statute
further provides,
(e) After conducting a hearing in accordance with division (C)(2)(d)
of this section or after due consideration when a hearing is not conducted,
except as provided in division (B)(1)(c) of this section, the court may order
the records of the person that are the subject of the motion or application
to be sealed if it finds that the person has been rehabilitated to a
satisfactory degree. In determining whether the person has been
rehabilitated to a satisfactory degree, the court may consider all of the
following:
(i) The age of the person;
(ii) The nature of the case;
(iii) The cessation or continuation of delinquent, unruly, or criminal
behavior;
(iv) The education and employment history of the person;
(v) Any other circumstances that may relate to the rehabilitation of the
person who is the subject of the records under consideration.
***
{¶24} In the case at bar, the trial court’s finding that M.C.H. “has not shown to be
rehabilitated to a satisfactory degree” mirrors the language of R.C. 2151.356(C)(2)(e).
{¶25} The record reveals that the state filed its objection to the sealing of
M.C.H.’s records on October 26, 2012. The trial court was, therefore, required to
Fairfield County, Case No. 12-CA-131 11
conduct a hearing before denying the motion as mandated by R.C.
2151.356(C)(2)(d)(iii). The trial court did not conduct a hearing.
{¶26} An additional concern is that the trial court did not state its findings on the
record or in its judgment entry. In the context of the adult expungement statue, we have
held that a trial court must include proper findings in its judgment entry to illustrate
compliance with R.C. 2953.32. State v. Bates, 5th Dist. No. 03-COA-057, 2004-Ohio-
2260, ¶24. Accord, State v. Poole, 5th Dist. No. 10-CA-21, 2011-Ohio-2956, ¶20;
Beachwood v. D.Z., 8th Dist. No. 94024, 2010-Ohio-3320, ¶7; State v. Berry, 135 Ohio
App.3d 250, 253, 733 N.E.2d 651(2nd Dist. 1999).
{¶27} Accordingly, we sustain M.C.H.’s assignment of error only to the extent
that the trial court was required to conduct a hearing and make proper findings to
demonstrate compliance with R.C. 2151.356(C)(2)(e). We sustain the trial court’s
judgment that M.C.H. is not eligible for expungement under R.C. 2151.356(B)(1)(d).
{¶28} Our holding does not imply that the trial court must reach a specific
conclusion after conducting the appropriate hearing and analysis. Rather, the purpose
of our remand is to ensure statutory compliance and proper consideration of the
requisite statutory factors.
Fairfield County, Case No. 12-CA-131 12
{¶29} The judgment of the Fairfield County Court of Common Pleas, Juvenile
Division is affirmed in part and reversed in part and this matter is remanded to that court
with instructions to conduct a hearing, make the necessary findings, and express those
findings in some manner on the record.
By: Gwin,, P.J., and
Farmer, J., concur;
Hoffman, J., concurs in part,
dissents in part
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0521
Fairfield County, Case No. 12-CA-131 13
Hoffman, J., concurring in part and dissenting in part
{¶30} I concur in the majority’s analysis and conclusion Appellant is not entitled
to sealing of his record pursuant to R.C. 2151.356(B)(1)(d). Because that statute is the
sole basis for his argument, I find remand for a hearing unnecessary.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as In re M.C.H., 2013-Ohio-2649.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: M.C.H. :
:
:
:
:
: JUDGMENT ENTRY
:
:
:
: CASE NO. 12-CA-131
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Fairfield County Court of Common Pleas, Juvenile Division is affirmed in part and
reversed in part and this matter is remanded to that court with instructions to conduct a
hearing, make the necessary findings, and express those findings in some manner on
the record. Costs to be shared equally between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
In re M.C.H.
Combined Opinion