[Cite as State v. Erhardt, 2017-Ohio-8456.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 16-CA-31
:
KENNETH J. ERHARDT :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Municipal Court, Case No. CRB
1400543
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 7, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
R. KYLE WITT MARK J. MILLER
PROSECUTING ATTORNEY 555 City Park Avenue
ANDREA GREEN BOYD Columbus, OH 43215
239 W. Main St.
Lancaster, OH 43130
Fairfield County, Case No. 16-CA-31 2
Delaney, P.J.
{¶1} Appellant Kenneth J. Erhardt appeals from the July 14, 2016 Entry of the
Fairfield County Municipal Court overruling his Application for Sealing of Dismissal.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On March 3, 2014, appellant was charged by criminal complaint with two
counts of rape pursuant to R.C. 2907.02(A)(1)(b), both felonies of the first degree.
{¶3} On March 6, 2014, appellee filed a nolle prosequi without prejudice pending
further investigation.
{¶4} On January 25, 2016, appellant filed an application to seal the record of the
dismissal pursuant to R.C. 2953.52(A)(1) and the matter proceeded to hearing on July
11, 2016. The trial court overruled appellant’s application pursuant to an Entry filed July
14, 2016, finding it lacked authority to seal the record pursuant to R.C. 2953.52(B)(3)
because the statute of limitations pertinent to the underlying allegations had not yet
expired. Appellee has not refiled any charges arising from the allegations.
{¶5} Appellant appealed to this Court on August 12, 2016.
{¶6} Appellant concedes this Court had ruled contrary to his position in State v.
Dye, 5th Dist. Fairfield No. 15-CA-65, 2016-Ohio-5065. However, Dye was pending
before the Ohio Supreme Court on a certified conflict with the decision of the Eighth
District in State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135. Accordingly this
Court stayed the appeal sua sponte until the Supreme Court issued an opinion or
otherwise resolved Dye.
Fairfield County, Case No. 16-CA-31 3
{¶7} The Ohio Supreme Court issued a merit opinion on September 27, 2017,
and we have lifted the stay.
{¶8} Appellant raises a single assignment of error:
ASSIGNMENT OF ERROR
{¶9} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
APPELLANT’S APPLICATION TO SEAL ALL OFFICIAL RECORDS AS THIS CASE
DOES NOT INVOLVE THE SEALING OF OFFICIAL RECORDS OF DNA SPECIMENS,
SAMPLES, AND PROFILES.”
ANALYSIS
{¶10} Appellant argues the trial court erred in denying his application to seal. In
light of the decision of the Ohio Supreme Court in State v. Dye, we agree.
{¶11} In State v. Dye, Slip Opinion No. 2017-Ohio-7823, --N.E.3d--, the Ohio
Supreme Court reversed the decision of this Court and held R.C. 2953.52 does not
require the relevant statute of limitations to expire before a trial court can grant an
application to seal the records of a case dismissed without prejudice.
{¶12} Accordingly, appellant’s sole assignment of error is sustained.
Fairfield County, Case No. 16-CA-31 4
CONCLUSION
{¶13} The judgment of the Fairfield County Common Pleas Court is reversed.
This case is remanded to that court for further proceedings according to law.
By: Delaney, P.J.,
Hoffman, J. and
Baldwin, J., concur.