COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74066 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : MICHAEL J. GLENDING : OPINION : Defendant-Appellee : : PER CURIAM Date of Announcement of Decision: OCTOBER 8, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. CR-285233 Judgment: Judgment reversed and vacated. Date of Journalization: Appearances: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: ROBERT WILLIAMS, ESQ. 21430 Lorain Road Fairview Park, Ohio 44126 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. -2- Plaintiff-appellant Stateof Ohio appeals from an order of the trial court sealing the record of the conviction of defendant- appellee Michael J. Glending for corruption of a minor (R.C. 2907.04). The State has an absolute right to appeal from a granting of a motion to seal records. State v. Netter (1989), 64 Ohio App.3d 322, 323. The State contends the trial court was without discretion to expunge the defendant's conviction and committed an error of law. We agree and vacate the expungement order. On April 25, 1992, defendant Michael J. Glending (age 19) engaged in sexual conduct with Stacey Villanueva (age 15). He was indicted on August 23, 1992 for corruption of a minor in violation of R.C. 2907.04. On November 24, 1992, defendant pled guilty to an amended indictment, which deleted the age of the victim. Defendant was sentenced to 90 days in the county jail (suspended), a $500 fine ($200 suspended), one year probation and restitution. The court also ordered defendant to stay away from the victim until she was 18 years old. All fines were paid as of February 4, 1993. Subsequently, on November 24, 1993, defendant's probation was terminated. On September 4, 1997, defendant filed a motion for expungement. The State opposed the expungement on the grounds the offense could not be sealed under R.C. 2953.36 since it was a sexual offense. On February 13, 1998, without a hearing, the trial court granted the motion for expungement. The State filed this timely appeal. -3- The State's sole assignment of error states as follows: I. THE TRIAL COURT'S GRANTING APPELLEE'S MOTION TO EXPUNGE AND SEAL APPELLEE'S RECORD WAS AN ERROR OF LAW. In the case at bar, defendant pled guilty and was convicted. Accordingly, the State argues that R.C. 2953.31 to 2953.36 are the controlling provisions for expungement of his records. Effective on December 9, 1994, R.C. 2953.36 was amended to exclude sex related offenses, including corruption of a minor, from being considered for the purpose of expungement. This section reads as follows: Sections 2953.31 to 2953.35 of the Revised Code do not apply to convictions when the offender is subject to a mandatory prison term, convictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321, [2907.32.1], 2907.322, [2907.32.2], or 2907.323 [2907.32.3], former section 2907.12, or Chapter 4507., 4511., or 4549. of the Revised Code, or a conviction for a violation of a municipal ordinance that is substantially similar to any section contained in any of those chapters, or bail forfeitures in a traffic case as defined in Traffic Rule 2. (Emphasis added). Defendant was convicted of corruption of a minor in violation of R.C. 2907.04. Therefore, the plain language of this section excludes defendant herein from consideration for expungement of his record. The State correctly points out that R.C. 2953.36 may be applied retroactively. Generally, Section 28, Article II of the Ohio Constitution prohibits the General Assembly from passing retroactive laws. However, in Kneisley v. Lattimer-Stevens Co. (1988), 40 Ohio St.3d 354, 356, the Ohio Supreme Court found that -4- a remedial law is exempt from this constitutional limitation on retroactivity, while a substantive law is not. Furthermore, it is well established in Ohio that the expungement statute set forth in R.C. 2953.31 et seq. is remedial in nature. State v. Bissantz (1987), 30 Ohio St.3d 120, 121; State v. Hartup (March 12, 1998), Cuyahoga App. No. 72379, unreported at 7. In Hartup, supra, at 5- 7, this Court held that the retroactive application of R.C. 2953.36 does not violate the prohibition of ex post facto laws in Article I, Section 10 of the United States Constitution. Based on the foregoing, defendant's sexual offense is excluded from consideration for expungement. The trial court erred in granting defendant's motion to expunge his record. The State's sole assignment of error is sustained. Judgment ordering expungement is reversed and vacated. -5- It is ordered that appellant recover of appellee 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 Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .