COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 79235 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION BARBARA MILAVEC : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: July 5, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-208162 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: _____________________ APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor DIANE SMILANICK, Assistant 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL A. MANCINO, JR., ESQ. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 COLLEEN CONWAY COONEY, J.: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. -2- Defendant-appellant, Barbara Milavec, appeals the trial court's decision denying her request to have her record expunged pursuant to R.C. 2953.32. For the reasons below, we affirm. In 1986, defendant was indicted on two counts of felonious assault which included gun specifications. The indictment as to both counts was amended by the deletion of the firearm specifications and deletion of reference to a gun in the body of the indictment. Milavec pled guilty to two counts of felonious assault (R.C. 2903.11), both second degree felonies. In April 1987, Milavec was sentenced to a suspended term of three to fifteen years on each count, to run concurrently. The condition of the suspended sentence was that she serve five years probation and receive out-patient mental health counseling for the entire probationary period. In October 1988, Milavec's probation was terminated and in January 2000, she filed a motion for expungement. The trial court denied her motion, finding her ineligible for expungement because of the use of a firearm in the commission of the offenses. Milavec raises the following assignment of error: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED THE MOTION FOR EXPUNGEMENT WITHOUT AN EVIDENTIARY HEARING. Milavec argues that the trial court erred in finding that a firearm was used in the commission of the offense because there was no evidentiary hearing. The State concedes that the trial court erred in failing to hold a hearing on defendant's motion, but maintains that the error was harmless. -3- R.C. 2953.32 requires that upon a defendant's motion for expungement, the court shall set a date for a hearing. Furthermore, in State v. Simon (2000), 87 Ohio St.3d 531, 721 N.E.2d 1041, at syllabus, the Ohio Supreme Court held that: [w]hen considering whether an applicant is ineligible to have a conviction record sealed under R.C. 2953.36 because the applicant may have been "armed with a firearm or dangerous ordnance" (R.C. 2951.02) at the time of the offense, a trial judge must examine the entire record to determine whether the applicant was so armed. In the instant case, the trial court failed to schedule a hearing on Milavec's motion. Additionally, the trial court failed to state that it reviewed the record prior to rendering its decision to deny the motion for expungement. Thus, we find that the trial court erred by failing to state that its ruling was based on a review of the entire record, and in failing to hold a hearing regarding expungement. This court has previously held that a trial court's failure to set a date for hearing on a motion for expungement constitutes reversible error. State v. Rebello (May 4, 2000), Cuyahoga App. No. 77076, unreported. However, in Rebello, the trial court granted an expungement despite the fact that a firearm specificationwas included in the indictment. Further, this court stated in Rebello that if the trial court determines that the defendant was armed at the time of the offense, then the trial court is without jurisdiction to grant expungement. Id., citing, State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041. -4- Here, the trial court did find that Milavec used a firearm in the commission of the offense. As such, the trial court was without jurisdiction to grant the expungement. See Id. Thus, we find that the trial court's errors are harmless because the record clearly reveals that a firearm was used in the commission of the offense, making Milavec ineligible to have her record of conviction sealed. See State v. Simon, 87 Ohio St.3d at 534, 721 N.E.2d at 1044. Milavec maintains that because the trial court did not conduct a hearing, it relied only on the indictment in support of its finding that she used a firearm in the commission of the offense. She compares the original indictment to a civil pleading and argues that the fact that the original indictment stated that a firearm was used in the commission of the crime does not prove that a firearm was actually used. However, because expungement proceedings are not adversarial, the Rules of Evidence do not apply. State v. Simon 87 Ohio St.3d at 533, 721 N.E.2d at 1042. Therefore, the trial court was free to consider the facts presented in the indictment in making its determination. Furthermore, there is nothing to suggest that the trial court did not actually review the complete record prior to making its decision. A full review of the record establishes that not only is the firearm mentioned in the original indictment, the presentence investigationreport includes a witness statement which states that a firearm was used in the commission of the offense. In denying Milavec's motion to seal a conviction record, the fact -5- that the presentence investigation revealed that a firearm was used is sufficient to support the court's finding that she was ineligible for expungement. Cf. State v. Fisher (1985), 26 Ohio App.3d 197, 198, 499 N.E.2d 344, 346 (stating that evidence of use of a firearm in the presentence investigation alone supports finding that defendant is ineligible for probation); see also, State v. Simon, 87 Ohio St.3d at 533, 721 N.E.2d at 1042. The expungement statute is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having the record of their conviction sealed should the court, in its discretion, so decide. State v. Thomas (1979), 64 Ohio App.2d 141, 145, 411 N.E.2d 845. Thus, because expungement is a matter of privilege, not of right, the requirements of the expungement statute must be strictly followed. State v. Heaton (1995), 108 Ohio App.3d 38, 40, 669 N.E.2D 885. Milavec moved for expungement pursuant to R.C. 2953.32. However, she is ineligible for expungement because her offense falls within an exception to this provision as set forth in R.C. 2953.36. R.C. 2953.36 states that R.C. 2953.32 does not apply to convictions when the offender is subject to a mandatory prison term. R.C. 2953.36 (A). On the date of the offense and Milavec's conviction, former R.C. 2951.02 (F)(3) was in effect. It states as follows: (F) An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies: -6- *** (3) The offense involved was not a violation of section 2923.12 of the Revised Code and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code. Thus, because Milavec was not eligible for probation, she is not eligible to have her record sealed pursuant to R.C. 2953.32. The fact that she was actually placed on probation for a non- probationable offense does not overcome the R.C. 2953.36 prohibition against sealing the record for a non-probationable offense. State v. Leers (1992), 84 Ohio App.3d 579, 581, 617 N.E.2d 754, 755. Furthermore, Milavec's contention that the firearm specification should be ignored because it was deleted in the amended indictment has no merit, because a court [is] not bound to turn a blind eye to the firearm use simply because it was dropped in plea bargaining. State v. Mitchell (May 1, 1997), Cuyahoga App. No. 71155, unreported. Based on the foregoing, Milavec's first assignment of error is without merit. In her second assignment of error, Milavec argues that: II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HER APPLICATION FOR EXPUNGEMENT WAS DENIED BASED ON LAWS THAT WERE NOT IN EFFECT AT THE TIME OF THE OFFENSE OR THE CONVICTION. Milavec's contention that the trial court's denial of her application for expungement is based on laws that were not in effect at the time of her offense is without merit. -7- This court addressed this issue in State v. Hartup (1998), 126 Ohio App.3d 768, 711 N.E.2d 315, holding that because R.C. 2953.36 does not impose greater punishment upon an offender, it does not violate the ex post facto clause of the United States Constitution. Accordingly, we affirm the decision of the trial court. -8- 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 Cuyahoga County 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. MICHAEL J. CORRIGAN, J., and KENNETH A. ROCCO, P.J., CONCUR JUDGE COLLEEN CONWAY COONEY 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .