State v. Powers

Annotate this Case

Download PDF

[Cite as State v. Powers, 2004-Ohio-7021.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 84416 STATE OF OHIO : Plaintiff-Appellant Defendant-Appellee AND : JEFFREY POWERS JOURNAL ENTRY : vs. : OPINION : : DATE OF OF DECISION ANNOUNCEMENT DECEMBER 23, 2004 : : : Civil appeal Common Pleas Case No. CR-215087 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : CHARACTER OF PROCEEDING : from Court 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 2 75474 Birch Road Kimbolton, Ohio 43749 PATRICIA A. BLACKMON, P.J.: {¶1} The State appeals the order of Judge Peggy Foley Jones that sealed 2953.32. conviction records of Jeffrey Powers under R.C. 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. {¶2} On November 23, 2003, Powers filed, pro se, an application to seal records of his 1987 theft conviction.1 The judge for referred the case to the probation department 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 {¶3} The State claims the judge application without holding a hearing. erred by granting the 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. 1 R.C. 2913.02. This language 3 requires the judge to hold a hearing before granting an application to seal records under 2953.32. It is application without holding a hearing.2 error to grant such The first assignment of error is sustained. II. JURISDICTION TO GRANT APPLICATION {¶4} 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. 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 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 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. 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. 5 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).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.