State v. D.K. , 2018 Ohio 2522 ( 2018 )


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  • [Cite as State v. D.K., 
    2018-Ohio-2522
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 106539
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    D.K.
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-09-525123-B
    BEFORE: E.A. Gallagher, A.J., Boyle, J., and Laster Mays, J.
    RELEASED AND JOURNALIZED: June 28, 2018
    ATTORNEY FOR APPELLANT
    Lawrence J. Rich
    Zashin & Rich Co., L.P.A.
    950 Main Avenue, 4th Floor
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    BY: Gregory J. Ochocki
    Assistant Prosecuting Attorney
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    EILEEN A. GALLAGHER, A.J.:
    {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1
    and Loc.R. 11.1. Defendant-appellant D.K. appeals from the trial court’s order denying his
    application to seal the record of his convictions pursuant to R.C. 2953.32. For the reasons that
    follow, we affirm the trial court’s decision.
    Factual and Procedural Background
    {¶2} In November 2010, D.K. pled guilty to two counts of theft, two counts of tampering
    with records and two counts of attempted falsification arising out of his fraudulent billing
    practices as a licensed daycare provider through which he defrauded the Ohio Department of
    Jobs and Family Services of approximately $80,000. In December 2010, D.K. was sentenced to
    a two-year prison term — 18 months on each of the thefts counts, two years on each of the
    tampering with records counts and 12 months on each of the attempted falsification counts, all to
    be served concurrently — and up to three years of postrelease control. D.K. agreed to forfeit his
    license as a daycare provider, and not to seek a new license, agreed to close his remaining
    daycare and pay $80,000 in restitution. He was also ordered to pay a $10,000 fine and the costs
    of the investigation against him.
    {¶3} In October 2011, the trial court granted D.K.’s request for judicial release and placed
    him on community control sanctions for a three-year period. In September 2013, the trial court
    terminated community control, finding that D.K. had complied with all conditions of community
    control and had paid all restitution, costs, fines and fees.
    {¶4} On October 28, 2016, D.K. filed an application to seal the record of his convictions
    pursuant to R.C. 2953.32(A)(1). D.K. asserted that he was an “eligible offender” as defined in
    R.C. 2953.31(A), that he was involved in no other criminal proceedings and that he had
    conducted himself “in an exemplary manner since [his] conviction[s] and desire[d] to have his
    record expunged.” He requested that the trial court set a date for a hearing on his application.
    The state opposed D.K.’s application.      The state argued that if the record of D.K.’s convictions
    was sealed, there would be “nothing to stop the defendant from attempting to obtain licensure for
    another daycare and/or any other business that would accept government vouchers” and that the
    state’s interests in maintaining the record of his convictions, therefore, outweighed D.K.’s
    interests in having them sealed.
    {¶5} The trial court ordered an expungement investigation and report related to D.K.’s
    application. On April 25, 2017, the trial court denied D.K.’s application without a hearing.
    The court stated: “Due to the nature of the offense and the reasons stated by the state in its brief
    in opposition, the court finds that the interests of the state in maintaining the record outweighed
    the defendant’s interests in having the record sealed.”        D.K. appealed. This court vacated the
    trial court’s judgment and held that, pursuant to R.C. 2953.32(B), the trial court was required to
    hold an evidentiary hearing before ruling on D.K.’s application. The matter was remanded for
    further proceedings. State v. D.K., 8th Dist. Cuyahoga No. 105812, 
    2017-Ohio-7081
    , ¶ 1, 3.
    {¶6} On remand, the trial court held a hearing on D.K.’s application. The hearing
    consisted solely of argument by counsel for both sides. Without presentation of any testimony or
    other evidence at the hearing, D.K.’s counsel asserted that D.K. wanted the record of his
    convictions sealed in order “to improve his employment.” He explained that D.K. currently
    works at a print shop but that “there’s no future.”                      He indicated that D.K. had sought
    employment at “American Greetings and other larger companies” but that once potential
    employers learn he has a prior felony conviction, they “don’t want to talk to him.” He further
    indicated that D.K. had “no interest whatsoever” in working at any child care facility and was
    willing to sign and send a letter to the Ohio Department of Jobs and Family Services “telling
    them not to approve any application * * * ever for that type of employment.”1
    {¶7} The state argued that any such letter would not be sufficient to protect its interests.
    The state indicated that it had an interest in ensuring that D.K. “live[d] up [to] the words” of the
    plea agreement, that it would have no way of tracking the letter once it was sent and that without
    the record of his convictions, there would be nothing to preclude D.K. from obtaining another
    daycare license or from going into any other business that accepted government vouchers or other
    state funding.
    {¶8} After the hearing, the trial court once again denied D.K.’s application to seal the
    record of his convictions, concluding that “the state’s reasons for maintaining the record of
    conviction[s] outweigh the applicant’s interests in having the records sealed.” As the trial court
    explained:
    [T]his is one of those where it is certainly up to the Court to decide. I think based
    — the Court feels the opinion [sic] and also the statute itself, the defendant is an
    eligible offender for purposes of the Court hearing his application.
    Again, whether or not the Court grants the application is a matter of weighing
    those interests; the defendant to obtain employment, and also the State’s need to
    keep this record open basically for general protection of the public and making
    sure that the interests of justice are served.
    1
    Although the state asserts that D.K.’s counsel “submitted” the unsigned letter at the hearing, it is not in the
    record.
    I have concerns about this case also only because of the subject matter that it does
    involve; that it does involve, basically, defrauding a public agency.
    I know [D.K.] has paid his dues, has paid his debt to society in other words. But
    our criminal records are for a reason and that is also in order to give the public
    some kind of indication if there are — that would affect decision-making in the
    future. And that is a necessary fact that people should know.
    I’m influenced somewhat by the fact that our rules of evidence even allow
    impeachment evidence of prior convictions even beyond the normal timeframes if
    they do involve the crime [sic] involving dishonesty or false statement.
    And I think that that is a valid reason that the State would have in order to keep
    this matter open and available to the public. So because of that overriding public
    interest, I am going to deny the application.
    {¶9} D.K. appealed the trial court’s ruling, raising the following assignment of error for
    review:
    The trial court abused its discretion by denying appellant’s motion to seal records
    under R.C. 2953.32.
    Law and Analysis
    {¶10} We review a trial court’s denial of an application to seal a record of conviction for
    abuse of discretion. State v. M.H., 8th Dist. Cuyahoga No. 105589, 
    2018-Ohio-582
    , ¶ 11, citing
    State v. Smith, 8th Dist. Cuyahoga No. 91853, 
    2009-Ohio-2380
    , ¶ 5; see also State v. Pace, 11th
    Dist. Ashtabula No. 2015-A-0041, 
    2016-Ohio-1158
    , ¶ 6 (“A court of appeals should not second
    guess a trial court’s decision denying an R.C. 2953.32 expungement application absent an abuse
    of discretion or a misapplication of the governing statute.”). An abuse of discretion occurs
    where the trial court’s decision is arbitrary, unreasonable or unconscionable. Blakemore v.
    Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983). “‘A decision is unreasonable if
    there is no sound reasoning process that would support that decision.’” Ockunzzi v. Smith, 8th
    Dist. Cuyahoga No. 102347, 
    2015-Ohio-2708
    , ¶ 9, quoting AAAA Ents. Inc. v. River Place
    Community Urban Redevelopment Corp., 
    50 Ohio St.3d 157
    , 161, 
    553 N.E.2d 597
     (1990).
    {¶11} In considering an application to seal a record of conviction, a trial court must
    comply with R.C. 2953.32. R.C. 2953.32(C)(1) requires the trial court to do the following:
    (a) Determine whether the applicant is an eligible offender * * *;
    (b) Determine whether criminal proceedings are pending against the applicant;
    (c) * * * [D]etermine whether the applicant has been rehabilitated to the
    satisfaction of the court;
    (d) If the prosecutor has filed an objection * * *, consider the reasons against
    granting the application specified by the prosecutor in the objection; [and]
    (e) Weigh the interests of the applicant in having the records pertaining to the
    applicant’s conviction * * * sealed against the legitimate needs, if any, of the
    government to maintain those records.
    {¶12} Pursuant to R.C. 2953.32(C)(2), the court shall order the applicant’s record sealed
    if it finds that the applicant is an eligible offender, there are no criminal proceedings pending
    against him, the applicant has been rehabilitated to the court’s satisfaction and there is no
    legitimate governmental need to maintain the record that outweighs the interest of the applicant
    in having his record sealed.      State v. Thompson, 12th Dist. Warren No. CA2015-09-083,
    
    2016-Ohio-2895
    , ¶ 7.
    {¶13} The sealing of a record of a criminal conviction is a privilege, not a right. M.H.,
    
    2018-Ohio-582
    , at ¶ 11, citing State v. Simon, 
    87 Ohio St.3d 531
    , 533, 
    721 N.E.2d 1041
     (2000);
    see also State v. V.S., 8th Dist. Cuyahoga No. 105264, 
    2017-Ohio-1565
    , ¶ 9 (“[A]s an ‘act of
    grace created by the state,’ the sealing of a criminal record is a ‘privilege, not a right.’”), quoting
    State v. Boykin, 
    138 Ohio St.3d 97
    , 
    2013-Ohio-4582
    , 
    4 N.E.3d 980
    , ¶ 11. Nevertheless, these
    provisions are “remedial in nature and ‘must be liberally construed to promote their purposes.’”
    State v. M.D., 8th Dist. Cuyahoga No. 92534, 
    2009-Ohio-5694
    , ¶ 9, quoting State ex rel. Gains v.
    Rossi, 
    86 Ohio St.3d 620
    , 622, 
    716 N.E.2d 204
     (1999). As this court previously explained in
    M.H.:
    The purpose of expungement, or sealing a record of conviction, is to recognize
    that people may be rehabilitated. State v. Petrou, 
    13 Ohio App.3d 456
    , 456, 
    469 N.E.2d 974
     (9th Dist.1984). In enacting the expungement provisions, the
    legislature recognized that “‘[p]eople make mistakes, but that afterwards they
    regret their conduct and are older, wiser, and sadder. The enactment and
    amendment of R.C. 2953.31 and 2953.32 is, in a way, a manifestation of the
    traditional Western civilization concepts of sin, punishment, atonement, and
    forgiveness.’” State v. M.D., 8th Dist. Cuyahoga No. 92534, 
    2009-Ohio-5694
    , ¶
    8, quoting State v. Boddie, 
    170 Ohio App.3d 590
    , 
    2007-Ohio-626
    , 
    868 N.E.2d 699
    , ¶ 8 (8th Dist.).
    M.H., 8th Dist. Cuyahoga No. 105589, 
    2018-Ohio-582
    , at ¶ 10; see also State v. Hilbert, 
    145 Ohio App.3d 824
    , 827, 
    764 N.E.2d 1064
     (8th Dist.2001) (“The legislature which is closer to the
    people recognized that people make mistakes, but that afterwards they regret their conduct and
    are older, wiser and sadder. * * * [T]he unarguable fact is that some people do rehabilitate
    themselves.”).
    {¶14} There is no dispute in this case that the requirements under R.C.
    2953.32(C)(1)(a)-(c) have been met, i.e., that D.K. is an eligible offender, that no criminal
    proceedings are pending against him and that he has been rehabilitated to the trial court’s
    satisfaction. Rather, this case turns on the balancing-of-the-interests requirement and the trial
    court’s finding that “the state’s reasons for maintaining the record of conviction[s] outweigh the
    applicant’s interests in having the records sealed.”
    {¶15} The hearing on an application to seal a record of conviction is not an adversarial
    proceeding; the “primary purpose” of the hearing is “to gather information.” M.D. at ¶ 9. At
    the hearing on D.K.’s application, D.K.’s counsel argued that D.K.’s interest in having the record
    of his convictions sealed in order “to improve his employment” outweighed the state’s interests
    in maintaining a public record of his convictions because the state’s interests could be met by
    D.K. sending a letter to Ohio Department of Jobs and Family Services indicating that he would
    not apply for a license for a childcare facility or to be a childcare provider and that, if he were to
    do so, requesting that they “not accept” his application.         D.K.’s counsel provided limited
    information regarding D.K.’s current employment and his difficulties in attempting to secure
    better employment.
    {¶16} In his appellate brief, D.K. makes somewhat different arguments. He argues that
    the trial court abused its discretion in denying his application because the state’s interest in
    enforcing the plea agreement and ensuring that he be prevented from obtaining another daycare
    license is met by the fact that a mandatory criminal records search, which includes the inspection
    of sealed records, is required before a daycare license is issued pursuant to R.C. 5104.013 and
    109.572(A)(5) and Adm.Code 5101:2-12-09(F)(1)(a). With respect to the state’s interest in
    precluding D.K. from going into any other business that accepts government vouchers or state
    funding, D.K. argues that the state’s interest should not override his interest in securing better
    employment because (1) even if the record of his convictions was sealed, he would still be
    subject to questioning regarding his convictions if he were to apply for a position where a
    criminal record would have a “direct and substantial relationship to his job duties” under R.C.
    2953.33, (2) mandatory record checks of sealed criminal records are required in “over 30
    instances” under R.C. 109.572 and (3) certain law enforcement personnel are entitled to inspect
    sealed criminal records under certain circumstances pursuant to R.C. 2953.32(E). The state
    urges us to reject these arguments because they were not raised below.
    {¶17} As a general matter, a party cannot present new arguments for the first time on
    appeal that were not raised below, and a trial court cannot be said to have abused its discretion by
    failing to consider arguments that were never presented to it. See, e.g., State v. Pratts, 8th Dist.
    Cuyahoga No. 104235, 
    2016-Ohio-8053
    , ¶ 43; see also Wells Fargo Bank, N.A. v. Bluhm, 6th
    Dist. Erie No. E-13-052, 
    2015-Ohio-921
    , ¶ 17 (“Appellate courts will not find that a trial court
    abused its discretion in denying * * * relief based upon arguments that were never presented to
    it.”). However, even if we were to consider D.K.’s “new” or expanded arguments, it would not
    change the result here.
    {¶18} We cannot substitute our judgment for that of the trial court. The record reflects
    that, in ruling on D.K.’s application, the trial court expressly considered and carefully weighed
    D.K.’s interest in securing better employment against the state’s interests in keeping the record of
    his convictions open and available to the public.
    {¶19} Mindful of our standard of review, on the record before us, we cannot say that the
    trial court acted arbitrarily, unreasonably or unconscionably in concluding that the state’s
    interests in maintaining the record of D.K.’s convictions outweigh D.K.’s interests in having the
    record sealed and denying D.K.’s application on that basis. See, e.g., Smith, 8th Dist. Cuyahoga
    No. 91853, 
    2009-Ohio-2380
    , at ¶ 11-13 (trial court did not abuse its discretion in denying
    application for expungement of record of conviction for aggravated theft for removal of fish from
    Lake Erie where trial court found that there was a “compelling public interest,” particularly given
    the large amounts of restitution that were paid, that the public be aware of the persons involved
    in the theft to avoid dealing with them in the future); State v. Krutowsky, 8th Dist. Cuyahoga No.
    81545, 
    2003-Ohio-1731
    , ¶ 18-19 (trial court did not abuse its discretion in denying motion for
    expungement of record of convictions related to appellant’s forgery of cognovit notes and
    defrauding investors where, although appellant made full restitution to victims, one of victims
    suffered “collateral consequences” as a result of appellant’s criminal acts and appellant continued
    to conduct business transactions with the public, “which poses a potential risk to the public”).
    Accordingly, the trial court did not abuse its discretion in denying D.K.’s application.
    {¶20} D.K.’s assignment of error is overruled.
    {¶21} Judgment affirmed.
    It is ordered that appellee recover from appellant the 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.
    ____________________________________________________
    EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
    MARY J. BOYLE, J., and
    ANITA LASTER MAYS, J., CONCUR