State v. Miller , 2018 Ohio 3452 ( 2018 )

[Cite as State v. Miller, 2018-Ohio-3452.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 18-COA-05
MARQUITTA MILLER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal
Court, Case No. 15CRB1059
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 27, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW BUSH KENNETH MIRKIN
Assistant Law Director DAWN SPIGGS
1213 E. Main Street Community Legal Aid Services, Inc.
Ashland, OH 44805 50 S. Main Street, 8th Floor
Akron, OH 44308
[Cite as State v. Miller, 2018-Ohio-3452.]
Gwin, P.J.
{¶1} Appellant M.M. appeals from the January 10, 2017 Judgment Entry of the
Ashland Municipal Court overruling her application to seal her record of conviction.
Facts and Procedural History
{¶2} On October 27, 2015, M.M. appeared in Ashland Municipal Court and pled
guilty to speeding and possession of marijuana, both minor misdemeanors.
{¶3} On or about May 5, 2017, M.M. applied to the trial court to seal the record of
her possession of marijuana conviction pursuant to R.C. 2953.31. On August 28, 2017,
the trial court conducted a hearing upon M.M.’s application. M.M. appeared with counsel.
At the conclusion of the hearing, the trial court took the case under advisement. On January
10, 2018, the trial court issued an order denying M. M.’s application to seal her criminal
record. The court held that although M. M. was eligible to have her record sealed, the
state had an interest in maintaining the conviction.
Assignment of Error
{¶4} M.M. raises one assignment of error,
{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MS.
MILLER'S APPLICATION TO SEAL HER MINOR MISDEMEANOR CONVICTION.”1
Law and Analysis
{¶6} In her assignment of error, M.M. contends that the trial court abused its
discretion in denying her application to seal her record because the trial court failed to
make any findings with respect to M.M.'s interest in having the records sealed.
1 We note Appellant attempts to raise a second assignment of error in her Notice of Filing of Citation
of Additional Authorities under Ohio App.R. 21(I), filed Aug. 2, 2018. This she may not do. See, State ex
rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶61; Am. Fiber Sys., Inc. v.
Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, ¶21.
Ashland County, Case No. 18-COA-05 3
STANDARD OF APPELLATE REVIEW.
{¶7} Because expungement is a privilege and not a right, a trial court shall only
grant expungement to an applicant who meets all the requirements presented in R.C.
2953.32. State v. Morris, 5th Dist. Licking No. 09–CA–128, 2010–Ohio–2403, ¶ 8, citing
State v. Simon, 87 Ohio St.3d 531, 533, 2000–Ohio–474, 721 N.E.2d 1041. An appellate
court reviews a trial court’s decision to grant or deny a motion to seal records pursuant to
R.C. 2953.52 for an abuse of discretion. State v. Poole, 5th Dist. Perry No. 10–CA–21,
2011–Ohio–2956, ¶ 11, citing State v. Widder, 146 Ohio App.3d 445, 766 N.E.2d 1018,
2001–Ohio–1521, ¶ 6 (9th Dist.).
{¶8} An abuse of discretion exists where the reasons given by the court for its
action are clearly untenable, legally incorrect, or amount to a denial of justice, or where
the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship
of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,
5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.
ISSUE FOR APPEAL.
Whether the trial court abused its discretion by denying M.M.’s application for
expungement without “weighing” the factors of R.C. 2953.32(C)(1)(e.)
{¶9} 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;
Ashland County, Case No. 18-COA-05 4
(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.
{¶10} In the case at bar, the parties agree that the trial court found M.M. to be an
“eligible offender” as defined by R.C. 2953.31(A), the court did not find any pending
criminal proceedings, and the prosecutor did not file an objection. M.M. argues the trial
court did not weigh the interest of M.M. in having her record sealed. However, during
the hearing, the Court noted,
And that does not end the Court's inquiry, Ms. Miller, what that
means essentially that it appears to me that you are eligible for this
release that you seek. There are two other stages to the process, the
first one is that I am required to balance your interest in having this record
sealed against any interest that the State would have in maintaining the
record, and in order to do that, I am going to have to have some testimony
from you as to how this has affected your life, and why you feel the need
to have it sealed.
Motion to Seal Records, filed Mar 19, 2018 at 4. The Court then heard testimony that
M.M. is a single mother solely responsible for the welfare of her two minor children.
Ashland County, Case No. 18-COA-05 5
The court also heard M.M.’s testimony concerning the negative effects this conviction
had and continues to have on her ability to obtain and maintain employment, further
her education, and find safe and stable housing for her family.
{¶11} In the Judgment Entry denying the application, the trial court found,
However, Defendant has not rehabilitated herself to the
satisfaction of the Court. She shows no genuine remorse for her actions.
Her attitude towards her own criminal conduct could best be described,
as unrepentant, defiant and dismissive. Further, the State’s need to
maintain the record of Defendant's conviction out-weighs Defendant's
interest in sealing it, in the Court's view.
Judgment Entry, filed Jan. 10, 2018 at 2. It is well established that the trier of fact is in
a far better position to observe the witnesses’ demeanor and weigh their credibility.
See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). The Court specifically
noted the concerns in the present case,
Well, let me tell you what concerns me about this, Ms. Miller,
obviously, it's a Minor Misdemeanor, and this Court is pretty free in
sealing those because of the fact it's a Minor Misdemeanor, and you did
take care of your obligations to the Court, paid your fine long ago. The
issue that I have with this one, there is really two -- three actually, one,
any time that we have someone that works in the healthcare field and it's
a drug conviction, it's a type of ease very often on a Minor Misdemeanor
usually we are asked to seal disorderly or minor marijuana cases like this.
Very often I look at that and I think that the State doesn't have any interest
Ashland County, Case No. 18-COA-05 6
in maintaining these records, so it's a very low burden in terms of
outweighing that, but whenever you have a health worker, I don't think
that is true, I think when you have someone that works in the health field,
the State does have a significant interest in maintaining records of drug
convictions, because society has an interest in not having people do
drugs that work in the health profession because they have access to
drugs.
And that is true with nurses and nurses aids, which apparently you
are working on, which you are asking me to do if I seal this record, is put
it beyond the reach of perspective employers, so someone that hires
home health aides or works in a nursing home would not be able to know
that you had the drug conviction back in 2015, and that is a serious thing
for me to do. If that employer looks at that and thinks that is a lady that
changed her life and doesn't do drugs anymore, and I am going to hire
her, then God bless them. But if I seal that, they never have that
opportunity to do that, and that is something that I think that the Court --
there is an interest here in the State. This is a type of case where the
State has a significant interest because of the type of offense, and
because what you are planning on doing for a living, so that is my first
concern.
The other two, and I am not saying that I am not going to do this,
but I want you to know what my thinking is. The other concern that I have
is when people apply to seal records, they are required to fill out an
Ashland County, Case No. 18-COA-05 7
affidavit, and in the affidavit, they are asked to list every arrest, whether
it resulted in a conviction or not, and you filled out that affidavit, and the
only thing that you listed was two speeding citations. And one out of this
Court, and one out of Chagrin Falls. But when we did a background check
on you, we found an arrest for aggravated assault in the State of Illinois
which you did not report on your affidavit.
Now what concerns me is that you did not report it, and it also
concerns me that it happened. Now, it was out of the City of Evington
and we did not have a whole lot of success getting information from them,
but it's evident to me what we did receive, so this apparently did not result
in a conviction. I don't know if there was some sort of pretrial diversion or
what they did with it but the Court in Illinois is listing it as it was an assault
with bodily harm, originally charged as aggravated assault, and they
marked it as disposition not mandated to be reported, which is not clear
to me what that means.
But I know it's not a conviction because if it was a conviction, they
would be mandated to report it. We very often see that in cases where
there is some sort of pretrial diversion. So I guess those are my concerns,
the fact that – and this goes back to the date of -- the alleged assault was,
let's see -- their records are just so different than ours, March 10th, 2006,
which in looking at your date of birth, I don't think that you would have
been a juvenile, so those are the concerns that the Court has.
Ashland County, Case No. 18-COA-05 8
Motion to Seal Records, filed Mar 19, 2018 at 8 – 11. The Court heard testimony from
M.M. concerning her reason for not reporting the aggravated assault. The Court finally
noted it understood “that you have a significant interest in having this sealed and it has
had an impact on your life.” Id. at 15.
{¶12} We cannot substitute our judgment for that of the trial court. The record
reflects that, in ruling on M.M.’s application, the trial court expressly considered and
carefully weighed M.M.’s interest in securing better employment, providing for her
children and bettering herself against the state’s interests in keeping the record of his
convictions open and available to the public.
{¶13} Mindful of our standard of review, on the record before us, we cannot say
that the reasons given by the trial court for its action are clearly untenable, legally
incorrect, or amount to a denial of justice, or that the judgment reaches an end or purpose
not justified by reason and the evidence.
{¶14} M.M.’s sole assignment of error is overruled.
Ashland County, Case No. 18-COA-05 9
{¶15} The judgment of the Ashland County Municipal Court is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur