COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74248 STATE OF OHIO ACCELERATED DOCKET Plaintiff-appellant JOURNAL ENTRY vs. AND BRIAN L. SIMON OPINION Defendant-appellee PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court, Case No. CR-287341 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: STEPHANIE TUBBS JONES JOHN J. RICOTTA Cuyahoga County Prosecutor 425 Lakeside Avenue, Suite 100 Cleveland, Ohio 44113 ARTHUR A. ELKINS RONALD JAMES Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: The State of Ohio appeals from the judgment of the trial court which granted defendant's application to seal his record of conviction. On appeal, the state argues that the trial court erred because defendant was armed when he committed this offense and therefore was ineligible for expungement. We find merit to the state's argument and reverse the judgment of the trial court. The relevant facts follow. In 1992, defendant, a police officer at the time, was indicted with one count of felonious assault and one count of kidnapping. Count one of the indictment reads as follows: ***Defendant(s)***unlawfully did knowingly cause or attempt to cause physical harm to Timothy Carson by means of a deadly weapon or dangerous ordnance to-wit: a firearm, as defined in Section 2923.11 of the Revised Code. SPECIFICATION ONE: (Firearm) The Grand Jurors further find and specify that the offender had a firearm on or about his person or under his control while committing the offense charged in this count of the indictment. Count two reads as follows: ***Defendant(s)***unlawfully and by force, threat or deception removed Timothy Carson from the place where he was found or restrained him of his liberty for the purpose of terrorizing or inflicting serious physical harm on Timothy Carson. SPECIFICATION ONE: (Firearm) The Grand Jurors further find and specify that the offender had a firearm on or about his person or under his control while committing the offense charged in this count of the indictment. After plea negotiations, defendant pled guilty to the amended charge of assault. The firearm specifications and the kidnapping charge were dropped. The trial court sentenced defendant to a -3- suspended term of six months in jail and three years probation. On December 14, 1993, defendant's probation was ended. In 1997, defendant applied to seal his record of conviction. The trial court granted this motion. The state filed a motion to vacate, which the court overruled after holding a hearing. The state appealed and raised the following two assignments of error. I. THE TRIAL COURT LACKED JURISDICTION PURSUANT TO R.C. 2953.36 TO SEAL APPELLEE'S RECORD OF CONVICTION BECAUSE APPELLEE USED A FIREARM DURING THE COMMISSION OF THE OFFENSE CHARGED. II. THE TRIAL COURT ABUSED IT'S [SIC] DISCRETION IN DENYING ADMISSION OF APPELLANT'S EXHIBITS WHEN THE EXHIBITS WERE CENTRAL TO THE ISSUE OF APPELLEE'S USE OF A FIREARM AND INELIGIBILITY FOR EXPUNGEMENT. In these two assignments, the state argues that defendant was ineligible for expungement because, under R.C. 2953.36, a court cannot seal the record for a non-probationable offense. Under R.C. 2951.02(F), a defendant is ineligible for probation if the offense was committed while defendant was armed with a firearm or dangerous ordnance. Thus the state points to the firearm specifications included in the original indictment in support of the contention that this was a non-probationable offense. Defendant responds by arguing that the state agreed to amend the indictment so as to make the offense probationable. Defendant concludes that he cannot be denied expungement by virtue of committing a non-probationable offense, when the state specifically agreed to make the offense probationable. -4- Because of the special nature of expungement proceedings, which are strictly controlled by statute, defendant's argument fails. As this court said previously, Expungement of a criminal record is an act of grace created by the State. State v. Hamilton (1996), 75 Ohio St. 3d 636, 639, 665 N.E. 2d 669. Because expungement is a matter of privilege, not of right, the requirements of the expungement must be strictly followed. State v. Heaton(1995), 108 Ohio App. 3d 38, 40, 669 N.E. 2d 885; State v. Harris (March 4, 1982), Cuyahoga App. No. 43689, unreported. State v. Mitchell (1997), Cuyahoga App. No. 71155, unreported at 4. In Mitchell (May 1, 1997), this court held that the trial court erred by sealing the record of a defendant under quite similar circumstances. In Mitchell a defendant was charged with, inter alia, felonious assault with a firearm specification. The firearm specification made this a non-probationable offense. After plea negotiations, Mitchell pled guilty to criminal damaging and the firearm specifications were dropped. Citing State v. Ellis (1992), 78 Ohio App.3d 221, 225, this court held that the probation restriction remains in effect even if the gun specification has been deleted pursuant to a plea bargain. The Mitchell court relied upon State v. Bistarkey (1996), 75 Ohio St.3d 7. In Bistarkey the Supreme Court of Ohio held that a defendant was ineligible for probation even though the firearm specification was deleted in plea negotiations. Defendant asks this court to reverse or clarify Mitchell. Mitchelldoes not need clarification. Mitchell does not hold that a defendant is eligible for probation (and expungement) merely because the defendant was indicted with a non-probationable -5- offense. Rather, Mitchell clearly states that dropping a firearm specification does not make the defendant eligible for probation and expungement. Nor can we reverse a case that follows so closely a decision of the Supreme Court of Ohio. In both Mitchell and Bistarkey, the court looked to the record, not the conviction, to determine whether a firearm was used in the offense and thus whether the offense was non-probationable. In Bistarkey, without explanation, the Court stated, [t]here is no dispute that Bistarkeycommitted his crime with a firearm. Notwithstanding the deletion of the firearm specification, the court was satisfied that the offense was committed with a firearm. In Mitchell, the court pointed to the police report which described defendant's use of the gun. Even without a transcript, the Mitchell court found sufficient evidence that defendant used a gun. Similar to Bistarkey, in determining whether defendant was eligible for probation and expungement, the Mitchell court found it irrelevant that the gun specification had been deleted. Thus the court is required to look to the record to determine whether defendant is eligible for probation. Regarding the record, the state argues that the trial court erred by not allowing the introduction of state's exhibits 1 and 2. These two exhibits, from the Professional Conduct/Internal Review Unit of the Cleveland Police Department, contain the statements of defendant's partner and the victim. These exhibits provide the following information: while on duty, defendant found the victim, a teenager, having sex with defendant's girl friend. Apparently -6- believing she was being sexually assaulted, the officer pistol- whipped the teenager. Evid.R. 101(C)(7) provides that the rules of evidence do not apply to special non-adversary statutory proceedings. An expungement hearing pursuant to R.C. 2953.32 is a special non- adversary proceeding. The Supreme Court of Ohio described this proceeding as follows: It is apparent from a study of R.C. 2953.32 that the essential purpose of an expungement hearing is to provide a reviewing court with all relevant information bearing on an applicant's eligibility for expungement. Advocacy is subordinated to information gathering. As stated, expungement hearings are not structured on the adversary model. As such, an expungement applicant is not entitled to the same type of notice that is afforded one who is accused of a crime, let alone a greater degree of notice as Hamilton now suggests. State v. Hamilton (1996), 75 Ohio St.3d 636, 640 (emphasis added). Because the primary purpose of the expungement hearing is to gather information and because the rules of evidence do not apply, the trial court, therefore, erred by not allowing the state to introduce its proffered exhibits. The statements from both the victim and defendant's partner demonstrated that defendant was armed during the commission of the crime. Therefore, the exhibits were relevant and admissible for that purpose. Defendant's purpose for carrying the gun, however, is not relevant to R.C. 2951.02(F). For purposes of expungement, the only question is whether he was armed when the offense was committed In weighing evidence, however, the court may consider its reliability as a result of there being no chance to cross-examine its author. In the case at bar, the disputed exhibits were -7- reliable as evidence on the central question--whether defendant was armed. Defendant never denied using a firearm in the commission of this offense. In his explanation that as a policeman he had a right to carry a gun, defendant implicitly admitted he had a gun. Arguing for the expungement, defense counsel stated, I would also urge - - this circumstance was an unusual one, and in fact Mr. Simon was a police officer who had the right to carry a firearm at the time of the offense. (Tr. 11.) By virtue of his admission and the report, therefore, defendant is not eligible for expungement. Accordingly, the trial court erred by sealing the records of defendant's conviction. Judgment reversed and remanded. -8- This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee its costs herein taxed. 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. 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 .