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State v. Reed11/22/2005
ACCELERATED CALENDAR
DECISION
{ } This is an appeal by appellant, the State of Ohio, from an order of the Franklin County Court of Common Pleas that granted an application to seal a record of conviction. No brief opposing the appeal has been filed.
{ } On November 22, 2000, the Franklin County Grand Jury returned a three-count indictment against appellee, Joseph A. Reed, in case No. 00CR-6710. The indictment included one count of felonious assault, a felony of the second degree, and two counts of endangering children, respectively, felonies of the second and third degree. The endangering children counts alleged that the victim was eight years of age and, therefore, under the age of 18 at the time of the crimes.
{ } It appears that appellee was represented by counsel and, at some point in the proceedings, entered a plea of guilty to the third count, endangering children, as a felony of the third degree.
{ } What little record is available to us indicates that, on October 25, 2004, counsel who represented appellee during the original prosecution filed an application on appellee's behalf for expungement of the record of the conviction for endangering children. Counsel alleged that appellee was a first offender as defined in R.C. 2953.31 and met all other qualifications for expungement as provided in R.C. 2953.32.
{ } On January 24, 2005, the state filed a written objection to the application. The state alleged that appellee was not a first offender as required by R.C. 2953.31(A) because he had been convicted in 1996 of driving while intoxicated. The state also objected to expungement because, at the time of the offense, the victim was under the age of 18 and expungement was barred by R.C. 2953.36(D). Finally, the state challenged the application on the ground that it was filed prematurely; that the required three-year period after final discharge from probation was not set to expire until July 5, 2005. Attached to the objection were copies of what the prosecution represented were appellee's record of criminal convictions, maintained by the Ohio Bureau of Criminal Investigation and a traffic violation record reported by the Ohio Department of Motor Vehicles. The state requested a hearing on the objection.
{ } On March 9, 2005, the trial court conducted a hearing on the application to seal the record of appellee's conviction for child endangering. Both counsel for the applicant and counsel for the state were present. Neither counsel addressed the state's objections. Following the hearing, the trial court granted the application. The state filed a timely notice of appeal from that judgment. The appeal presents a single assignment of error that reads as follows:
THE TRIAL COURT ERRED WHEN IT GRANTED THE APPLICATION FOR EXPUNGEMENT WHEN THE THAT DEFENDANT IS NOT A "FIRST OFFENDER" AND WHEN THE EXPUNGEMENT IS BARRED BY R.C. 2953.36(D).
{ } Expungement is a privilege, not a right. State v. Hamilton (1996), 75 Ohio St.3d 636, at 640. Expungement of the record of a criminal conviction is governed by R.C. 2953.31 et seq. Expungement proceedings are not adversarial because the primary purpose of an expungement hearing is to gather information. State v. Simon (2000), 87 Ohio St.3d 531, 533. The rules of evidence do not apply in an expungement hearing. Id. Expungement may be granted pursuant to statute only when all of the requirements for eligibility are met.
{ } To invoke the jurisdiction of the trial court in proceedings brought under R.C. 2953.31 et seq., the applicant must be eligible for expungement and the offense must be one that is subject to expungement. To be eligible, an applicant
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