COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69036 STATE OF OHIO, : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellee : : AND v. : : OPINION MICHAEL SHAMATTA, : : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-033790 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: John W. Monroe Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Thomas Paris PARIS & PARIS 55 Public Square Suite 1575 Cleveland, Ohio 44113 -2- PER CURIAM: In this accelerated appeal, defendant-appellant Michael Shamatta challenges the trial court's denial of his R.C. 2953.32 motion for expungement of his 1978 conviction for gross sexual imposition, R.C. 2907.05. The record reflects appellant was originally indicted on a charge of rape, R.C. 2907.02. The victim was appellant's niece, a child under the age of fourteen at the time of the act which led to the charge. Appellant originally enter a plea of not guilty; however, after a jury had been empaneled for trial, appellant requested a continuance and a few days later entered a guilty plea to the lesser charge of gross sexual imposition. The trial court accepted appellant's plea. After receiving a psychiatric report, in April 1978 the trial court sentenced appellant to a term of incarceration of one half to five years but suspended sentence and placed appellant on one year of probation with the condition that he no longer have any contact with his sister's children. Appellant eventually was released from probation in April 1979. Appellant never filed an appeal from his conviction. In January, 1988 appellant filed an application for 1 expungement of his conviction pursuant to R.C. 2953.32. The record reflects the trial court held a hearing but denied appellant's motion on the ground that in view of [t]he factual 1 Appellant's motion was not included in the record on appeal. -3- scenario underlying this crime . . . it would not be in the 2 interest of the public . . . ." Appellant did not appeal this ruling. In 1991, appellant filed another motion for expungement which 3 the trial court again denied. Once again, appellant did not appeal the ruling. 4 In 1993, appellant filed the instant motion for expungement. 5 The record reflects that although the trial court referred the matter to the probation department "for investigation" and the state filed briefs in opposition to the motion, no further action was taken until April, 1995. At that time, the trial court held an oral hearing; subsequently, appellant's motion was denied by journal entry filed April 5, 1995. On May 5, 1995, appellant filed several "supporting affidavits" which in essence asserted appellant's innocence of the original charge. Apparently as a result of the filings, the trial court reopened the matter and held yet another hearing on appellant's motion. On that same day, the trial court issued a journal entry stating appellant's motion for expungement was denied 2 By this time, a new trial judge was presiding over appellant's case. 3 See footnote 1. 4 See footnote 1. 5 Appellant's case by this time had been transferred to a third trial judge. -4- "due to the nature of this offense and the fact this case (sic) has been denied twice by another court." On May 22, 1995, appellant filed this appeal from the foregoing order, asserting the trial court erred in denying his third motion for expungement. Initially, this court questions whether this appeal is either timely or appropriate in view of the legislature's failure to provide for successive applications for expungement, the trial court's previous rulings on appellant's motions for expungement, including its journal entry of April 5, 1995, and the doctrine of res judicata. App.R. 4(A), (B)(3) and 5(A); R.C. 2953.34; State v. Castro (1979), 67 Ohio App.2d 20; Kertes Ent., Inc. v. Orange Village Planning Zoning Comm. (1990), 68 Ohio App.3d 48; see, also, State v. Harvey (1980), 68 Ohio App.2d 170; State v. Schinkle (1986), 27 Ohio App.3d 54; cf. R.C. 2953.23. Secondly, an application for expungement may not be used as a forum for appellant's attempt to relitigate the issue of his innocence; by entering his plea to the charge of gross sexual imposition, appellant admitted his factual guilt and, moreover, appellant never appealed his conviction. See, e.g., State v. Wilson (1979), 58 Ohio St.2d 52; State v. Ishmail (1967), 67 Ohio St.2d 16. Thirdly, a trial court has broad discretion in ruling on an application filed pursuant to R.C. 2953.32. State v. McGinnis (1993), 90 Ohio App.3d 479; State v. Lesinski (1992), 82 Ohio App.3d 829. Expungement is appropriate only in "exceptional" cases -5- and a defendant is not entitled to such relief. State v. Mastin (1992), 83 Ohio App.3d 814; see, also, Pepper Pike v. Doe (1981), 66 Ohio St.2d 374. In view of the trial court's awareness of the circumstances surrounding the original charge, the legislature's subsequent determination that expungement should not be available to persons convicted of violating R.C. 2907.05, and the fact that appellant's original motion was denied, this court cannot say the trial court abused its discretion in denying appellant's third motion for expungement. State v. Mastin, supra; State v. McGinnis, supra; State v. Leers (1992), 84 Ohio App.3d 579; R.C. 2953.36; State v. Castro, supra. Accordingly, for the foregoing reasons, appellant's assignment of error is overruled. The judgment of the trial court is affirmed. -6- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. JOHN T. PATTON, CHIEF JUSTICE LEO M. SPELLACY, JUDGE JOSEPH J. NAHRA, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .