COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                           No. 84416
 
 
 
STATE OF OHIO                  :
 
    Plaintiff-Appellant        :           JOURNAL ENTRY
 
          vs.                  :                AND
 
JEFFREY POWERS                 :              OPINION
 
    Defendant-Appellee         :
 
                               :
 
DATE OF ANNOUNCEMENT                DECEMBER 23, 2004
OF DECISION                    :
 
                               :
 
CHARACTER OF PROCEEDING        :    Civil appeal from
                                    Common Pleas Court
                               :    Case No. CR-215087
 
JUDGMENT                       :    REVERSED AND REMANDED
 
DATE OF JOURNALIZATION         :
 
 
 
APPEARANCES:
 
    For Plaintiff-Appellant:         WILLIAM D. MASON
                                     Cuyahoga County Prosecutor
                                     DIANE SMILANICK
                                     Assistant County Prosecutor
                                     Justice Center - 8th Floor
                                     1200 Ontario Street
                                     Cleveland, Ohio 44113
 
    For Defendant-Appellee:          JEFFREY POWERS
                                     75474 Birch Road
                                     Kimbolton, Ohio 43749
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -2-
 
PATRICIA A. BLACKMON, P.J.:
 
     The State appeals the order of Judge Peggy Foley Jones that
 
sealed conviction records of Jeffrey Powers under R.C. 2953.32.
 
The State claims it was error to grant the motion to seal records
 
without holding a hearing, and that Powers was not eligible for
 
expungement because he was not a first offender. The State's two
 
assignments of error are set forth in the appendix to this opinion.
 
We reverse and remand.
 
     On November 23, 2003, Powers filed, pro se, an application to
 
seal records of his 1987 theft conviction.1 The judge referred the
 
case to the probation department for investigation, and on February
 
23, 2004, the State filed objections to the application. On March
 
2, 2004, the judge granted the application.
 
I.   FAILURE TO HOLD A HEARING
 
     The State claims the judge erred by granting the application
 
without holding a hearing. R.C. 2953.32(B) provides in part:"Upon
 
the filing of an application under this section, the court shall
 
set a date for hearing and shall notify the prosecutor for the case
 
of the hearing on the application." This language requires the
 
judge to hold a hearing before granting an application to seal
 
records under 2953.32. It is error to grant such application
 
 
 
 
     1
     R.C. 2913.02.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -3-
 
without holding a hearing.2 The first assignment of error is
 
sustained.
 
II. JURISDICTION TO GRANT APPLICATION
 
     The State claims the trial court lacked jurisdiction to grant
 
Powers's application to seal his conviction records because he was
 
convicted of a misdemeanor in 2000. Unless the record shows a lack
 
of jurisdiction, the failure to hold a hearing requires remand for
 
further proceedings.3 The record here does not show a lack of
 
jurisdiction, and remand is therefore appropriate. The second
 
assignment of error is overruled.
 
     Judgment reversed and remanded.
 
 
 
 
     2
     State v. Dean, Cuyahoga App. No. 80396, 2002-Ohio-4088, at
¶6; State v. Saltzer (1984), 14 Ohio App.3d 394, 471 N.E.2d 872,
syllabus.
 
     3
     State v. Dean at ¶9.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                          -4-
 
            APPENDIX - ASSIGNMENTS OF ERROR
 
 
"I. A TRIAL COURT ERRS IN RULING ON A MOTION FOR
EXPUNGEMENT FILED PURSUANT TO R.C. 2953.32 WITHOUT FIRST
HOLDING A HEARING (2953.32(B)); STATE V. HAMILTON (1996),
75 OHIO ST.3D 363, STATE V. SALTZER (1984), 14 OHIO
APP.3D 394, FOLLOWED.
 
 
II. A TRIAL COURT ERRS IN GRANTING A MOTION TO SEAL THE
RECORD OF CONVICTION WHEN IT IS WITHOUT JURISDICTION TO
GRANT SAID MOTION TO AN APPLICANT WHO IS NOT A FIRST
OFFENDER DUE TO HIS SUBSEQUENT CONVICTION FOR EXPLOSIVES
PROHIBITIONS."
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -5-
 
     It is ordered that the appellant recover from appellee costs
 
herein taxed.
 
     It is ordered that a special mandate issue out of this court
 
directing the Cuyahoga County 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.
 
KENNETH A. ROCCO, J.,                         And
 
ANNE L. KILBANE, J.,*                       CONCUR
 
 
 
                                         PATRICIA A. BLACKMON
                                            PRESIDING JUDGE
 
 
*Judge Anne L. Kilbane concurred in this Journal Entry and Opinion
prior to her death on November 23, 2004.
 
(The Ohio Constitution requires the concurrence of at least two
judges when rendering a decision of a court of appeals. Therefore,
this announcement of decision is in compliance with constitutional
requirements. See State v. Pembaur (1982), 69 Ohio St.2d 110.)
 
 
 
 
     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).
 
.