COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67312 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK R. WOOLLEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 30, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-223850 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. BRUCE TYLER WICK, ESQ. Cuyahoga County Prosecutor Two King James South, #115 CHRISTOPHER L. FREY, ESQ. 24600 Center Ridge Road Assistant County Prosecutor Westlake, OH 44145-5624 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, C.J. In 1988, defendant Mark Woolley entered a guilty plea to one count of theft in violation of R.C. 2913.02. The trial court placed him on two year's probation and ordered restitution to the victim. In 1989, the court terminated defendant's probation. He subsequently made a timely application to seal his record of conviction pursuant to R.C. 2953.32. The state opposed the appli- cation on grounds that defendant was not a first offender as required by the statute. It stated, "defendant had been convicted as an accessory to purse stealing and was sentenced to 12 days in the Niagara Falls [Ontario] City Jail." Defendant voluntarily dismissed his application and retained a Canadian barrister to inquire into the existence of a criminal record. Defendant refiled his application with documentation from the Royal Canadian Mounted Police (RCMP) showing it had no record of any criminal conviction relating to defendant. The state again opposed the motion, refer- ring to a probation department report purporting to show defendant had been convicted of three counts of theft in the Canadian of- fense. The trial court denied the application. Defendant appeals and assigns as error the trial court's failure to expunge his criminal record. R.C. 2953.32(A)(1) provides that a first offender may apply to the sentencing court and have his record of conviction sealed. A "first offender" means anyone who has been convicted of an offense in this state or any other jurisdiction, and who previously or - 3 - subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction. See R.C. 2953.31- (A). Upon the filing of an application to seal a record of a conviction, "the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application." See R.C. 2953.32(B). The statutory requirement for a hearing is mandatory and each application to seal a record of conviction must be set for hearing. See State v. Saltzer (1984), 14 Ohio App.3d 394; State v. Flynn (Apr. 18, 1991), Cuyahoga App. No. 60484, unreported. The record shows the trial court did not hold an oral hearing on defendant's application to seal the record. Moreover, the court's journal entry denying the application to seal the record of conviction does not indicate whether the factors set forth in R.C 2953.32(C) were considered. Accordingly, we sustain the assignment of error and remand for a hearing on the application to seal the record. Judgement reversed and cause remanded. - 4 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, J. BLACKMON, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .