[Cite as State v. S.D., 2020-Ohio-4597.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO/CITY OF :
OAKWOOD :
: Appellate Case No. 28615
Plaintiff-Appellee :
: Trial Court Case No. CRB1700076
v. :
: (Criminal Appeal from Municipal Court)
S.D. :
:
Defendant-Appellant :
...........
OPINION
Rendered on the 25th day of September, 2020.
...........
ROBERT F. JACQUES, Atty. Reg. No. 0075142, Prosecuting Attorney, City of Oakwood,
30 Park Avenue, Oakwood, Ohio 45419
Attorney for Plaintiff-Appellee
JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 109 North Main Street, 500
Performance Place, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Appellant S.D. appeals form the trial court’s decision overruling, without a
hearing, his application to seal the record of a disorderly conduct conviction. Appellee,
the City of Oakwood, concedes that the trial court’s failure to conduct a hearing was error.
The trial court’s judgment will be reversed, and the case will be remanded so that a
hearing on the application may be conducted.
Facts and Procedural History
{¶ 2} After being charged with domestic violence as a first degree misdemeanor,
S.D. pleaded no contest to an amended charge of disorderly conduct in violation of
Oakwood Codified Ordinance 509.03(a)(2). The trial court and the parties thought S.D.’s
no contest plea was to a fourth-degree misdemeanor. The trial court accepted the plea,
found S.D. guilty, and, consistent with a fourth-degree misdemeanor, sentenced him to
30 days in jail (with 29 days suspended and credit given for one day already served),
imposed a $250 fine and court costs, and placed him on probation for two years.
{¶ 3} S.D., with new counsel, appealed. The appeal asserted that, based upon
the facts the city presented at the plea hearing, S.D. pleaded no contest to and was found
guilty of disorderly conduct as a minor misdemeanor.1 On appeal, the City of Oakwood
conceded error, and we reversed the trial court’s judgment and remanded the case for
resentencing. City of Oakwood v. S.D., 2d Dist. Montgomery No. 28017, 2019-Ohio-
1384.
{¶ 4} On September 5, 2019, which was almost five months after the remand, the
1
Under Oakwood Codified Ordinance 509.03(e), disorderly conduct is a minor
misdemeanor unless one of the enhancing facts set forth in 509.03(e)(3)(A-D) is present.
If an enhancing fact is present, disorderly conduct is a fourth-degree misdemeanor. The
city’s factual recitation did not include any fact that would have increased S.D.’s disorderly
conduct offense to a fourth-degree misdemeanor.
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trial court conducted a new sentencing hearing. On September 13, the trial court filed a
sentencing entry which imposed a fine of $150 and court costs. Based upon what S.D.
had already paid, the entry stated that no balance on the fine or court costs was due, and
that, in fact, S.D. was owed a $100 refund. According to the record, that refund has been
accomplished.2
{¶ 5} On September 23, 2019, S.D. filed an application under R.C. 2953.32
requesting the trial court to issue an order sealing the record of the disorderly conduct
conviction. The trial court, without conducting a hearing, overruled the application,
based upon its conclusion that the application had been filed prematurely. This appeal
followed.
Analysis
{¶ 6} S.D. asserts two assignments of error as follows:
THE OAKWOOD MUNICIPAL COURT ERRED BY FAILING TO
SET AND HOLD A HEARING, AND DENIED [S.D.] DUE PROCESS OF
LAW BY FAILING TO GIVE NOTICE THAT THE COURT INTENDED TO
ACT WITHOUT HOLDING A HEARING, IN VIOLATION OF R.C. §2953.32.
[S.D.] WAS DENIED DUE PROCESS OF LAW BY THE TRIAL
COURT’S DELAY IN RESENTENCING WITHOUT EXPLANATION,
RESULTING IN A HARSHER SENTENCE MOTIVATED BY
VINDICTIVENESS.
{¶ 7} A defendant convicted of a misdemeanor may apply to the sentencing court
2
Since the record reflects that the fine and court costs have been paid, S.D.’s motion to
supplement the record with such proof is overruled.
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to seal the record of the conviction one year after the defendant’s “final discharge” from
the conviction. R.C. 2953.32(A)(1)(c). R.C. 2953.32(B) provides that when an
application to seal the record is filed, the trial court “must conduct a hearing to determine
whether [the] application * * * is appropriately granted or not.” State v. L.L., 2d Dist. Clark
No. 2016-CA-74, 2017-Ohio-5489, ¶ 5. A trial court’s failure to conduct a hearing
requires reversal of the trial court’s judgment. Id., citing State v. D.L., 2d Dist.
Montgomery No. 26394, 2015-Ohio-1664; State v. Hutchen, 191 Ohio App.3d 388, 2010-
Ohio-6103, 946 N.E.2d 270 (2d Dist.).
{¶ 8} Oakwood concedes that the trial court erred by not conducting a hearing on
S.D.’s application, and states that “the proper remedy is [for this court] to reverse and
remand so that a hearing [on the application] can be scheduled [and then conducted].”
Though error is conceded and, given the circumstances, accepted by this court, the trial
court’s decision not to conduct a hearing was understandable based upon the trial court’s
conclusion that S.D.’s application was filed before the final discharge had occurred. But,
based upon the concession, the first assignment of error is sustained, and the case
remanded so that a hearing on S.D.’s application may be conducted.3
3
The trial court’s decision overruling S.D.’s application concluded that the final discharge
occurred when the resentencing entry was filed on September 13, 2019. S.D. argues
the final discharge occurred when he paid the fine, which he suggests occurred “no later
than June 11, 2018.” Thus, by S.D.’s reckoning, the application filed on September 23,
2019 was filed more than one year after his final discharge from the disorderly conduct
conviction. Final discharge occurs when all sentencing sanctions have been completed.
A fine must be paid before final discharge occurs, but unpaid court costs do not prevent
a final discharge. State v. T.M., 8th Dist. Cuyahoga No. 101194, 2014-Ohio-5688, ¶ 15.
Since the trial court at resentencing could only impose a sentence that had already been
completed, S.D.’s argument seems sound. See State v. Wagner, 12th Dist. Clermont
No. CA93-01-003, 1993 WL 192915 (June 7, 1993). But, given Oakwood’s concession,
resolution of the issue is not required. In any event, the passage of time has all but
resolved the issue.
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{¶ 9} S.D.’s second assignment of error asserts that the five-month delay between
the remand and resentencing was evidence that the trial court acted vindictively toward
him. The delay, without more, was not evidence of vindictiveness, and the record does
not otherwise suggest the trial court harbored any ill will toward S.D. Further, S.D. does
not suggest a remedy other than a reversal and remand so that a hearing on the
application may be conducted. S.D.’s second assignment of error is overruled.
Conclusion
{¶ 10} S.D.’s first assignment of error is sustained, but the second assignment of
error is overruled. The judgment of the trial court is reversed, and the case is remanded
for further proceedings consistent with this opinion.
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FROELICH, J. and WELBAUM, J., concur.
Copies sent to:
Robert F. Jacques
John R. Folkerth, Jr.
Hon. Margaret M. Quinn