State v. R.S. , 2022 Ohio 1108 ( 2022 )

[Cite as State v. R.S., 2022-Ohio-1108.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-210169
C-210170
Plaintiff-Appellee, : C-210171
C-210172
vs. : C-210173
R.S., : TRIAL NOS. C-03CRB-16738
C-05CRB-27882
Defendant-Appellant. : C-05CRB-40612
C-09CRB-3833
: C-16CRB-18440
O P I N I O N.
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cases Remanded
Date of Judgment Entry on Appeal: April 1, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Gregory A. Cohen, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} In these consolidated appeals, appellant R.S. contends that the trial
court erred when it denied her applications to seal the records of her convictions. We
agree and reverse the trial court’s judgments. We remand the matter to the trial court
with instructions to seal the records of her convictions.
I. Facts and Procedure
{¶2} From 2003 to 2016, R.S. pleaded guilty to five misdemeanor crimes:
1.) 2003: theft in violation of R.C. 2913.02.
2.) 2005: transporting a loaded firearm in violation of R.C. 2123.16.
3.) 2005: possessing marijuana in violation of R.C. 2925.11.
4.) 2009: possessing drug paraphernalia in violation of R.C. 2925.12.
5.) 2016: resisting arrest in violation of R.C. 2921.33.
{¶3} In 2021, R.S. applied to seal the records of those convictions under R.C.
2953.32.
{¶4} At a hearing, she described to the court the social and economic
consequences of her convictions. As a new mother who had achieved five years of
sobriety, R.S. supported her family through the business that she operated and her
artwork. She testified that her criminal record was affecting her business. As she
explained, “I own a public business, people can look at my record.” And her
convictions were limiting her ability to obtain occupational licenses necessary to
expand her business. It was also a matter of dignity. She “just d[id]n’t want to be
judged when [she] is not that person anymore.” Sealing her criminal record meant that
she could “move on with [her] life.” The state did not oppose her applications.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} At the conclusion of the hearing, the court denied her applications. First,
the court found that her 2005 conviction for drug possession was “a companion to a
traffic conviction” and was ineligible for sealing. Over her objection, the court
reasoned that “traffic convictions are not expungable, and this case was a driving
under suspension, this was a conviction for possession of drugs.” Turning to her
remaining convictions, the court found that R.S. failed to demonstrate rehabilitation
and that “the government’s interest in maintaining these outweigh the applicant’s
interest in seeking their expungement.”
{¶6} R.S. appeals.
II. Law and Analysis
{¶7} In her sole assignment of error, R.S. contends that the trial court erred
when it denied her applications to seal the records of her convictions. We review a trial
court’s decision to deny an application to seal a record of conviction for an abuse of
discretion. State v. Sager, 2019-Ohio-135, 131 N.E.3d 335, ¶ 9 (1st Dist.). A trial court
abuses its discretion when it “ ‘exercise[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.’ ” State v. Austin, 1st Dist.
Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v.
Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 35. Abuse of discretion “ ‘implies that
the court’s attitude, in reaching its decision, was unreasonable, arbitrary, or
unconscionable.’ ” Id. at ¶ 34, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶8} A decision is unreasonable when it is “not supported by ‘a sound
reasoning process.’ ” State v. Cannon, 1st Dist. Hamilton No. C-210131, 2021-Ohio-
4198, ¶ 20, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). A decision is arbitrary when it is
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OHIO FIRST DISTRICT COURT OF APPEALS
“made without consideration of or regard for facts [or] circumstances.” State v.
Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12, quoting Black’s Law
Dictionary 96 (5th Ed.1979). In other words, an abuse of discretion occurs when a trial
court’s judgment “ ‘ “does not comport with reason or the record.” ’ ” State v. Hughley,
8th Dist. Cuyahoga No. 108518, 2020-Ohio-1277, ¶ 53, quoting State v. Underwood,
11th Dist. Lake No. 2008-L-113, 2009-Ohio-2089, ¶ 30, citing State v. Ferranto, 112
Ohio St. 667, 676-678, 148 N.E. 362 (1925).
{¶9} First, we note that the trial court inaccurately referred to record sealing
as an expungement. Expungement is an entirely separate process governed by R.C.
2953.37(A)(1), “which results in deletion, making all case records ‘permanently
irretrievable.’ ” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178,
¶ 36, fn. 2. In contrast, sealing records under R.C. 2953.32 “simply provides a shield
from the public’s gaze [and limits] inspection of sealed records of conviction to certain
persons for certain purposes.” Id.{¶10} In Ohio, sealing an individual’s criminal record is an act of grace. State
v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 11, quoting State v.
Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). Record sealing provides “
‘remedial relief to qualified offenders in order to facilitate the prompt transition of
these individuals into meaningful and productive roles.’ ” Sager at ¶ 9, quoting Barker
v. State, 62 Ohio St.2d 35, 41, 402 N.E.2d 550 (1980). R.C. 2953.32(C) governs a trial
court’s decision to grant or deny an application to seal a record of conviction. As a
remedial statute, R.C. 2953.23 is liberally construed. Barker at 41. A court may grant
an application if the requirements identified by R.C. 2953.32(C)(1) are satisfied. Sager
at ¶ 10, citing State v. Hill, 2016-Ohio-1551, 63 N.E.3d 690, ¶ 18 (10th Dist.). R.C.
2953.32(C)(1) requires the court to:
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OHIO FIRST DISTRICT COURT OF APPEALS
(a) Determine whether the applicant is an eligible offender * * *;
(b) Determine whether criminal proceedings are pending against the
applicant;
(c) If the applicant is an eligible offender who applies pursuant to
division (A)(1) of this section, determine whether the applicant has been
rehabilitated to the satisfaction of the court;
(d) If the prosecutor has filed an objection [to the application], consider
the reasons against granting the application specified by the prosecutor
in the objection;
(e) Weigh the interests of the applicant in having the records pertaining
to the applicant’s conviction or bail forfeiture sealed against the
legitimate needs, if any, of the government to maintain those records[.]
{¶11} After weighing the interests of the applicant and government, the court
“shall order all official records of the case” sealed if the “legitimate government needs
to maintain those records” do not outweigh the applicant’s interest in sealing her
records. R.C. 2953.32(C)(2).
A. Eligibility
{¶12} R.S. argues that the trial court erred when it denied her application to
seal the record of her 2005 conviction for drug possession in violation of R.C. 2925.11
in the case numbered C-05CRB-40612. The trial court deemed this conviction
ineligible “as it is a companion to a traffic conviction that is not expungeable.” The trial
court explained, “traffic convictions are not expungeable, and this case was driving
under suspension, this was a conviction for possession of drugs.”
{¶13} The parties agree that the record does not contain a companion traffic
charge. They are correct. But we take judicial notice of R.S.’s conviction for driving
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OHIO FIRST DISTRICT COURT OF APPEALS
under a suspended license in violation of R.C. 4510.26. (Citations omitted.) See State
v. Bevers, 2d Dist. Montgomery No. 27651, 2018-Ohio-4135, ¶ 13.
{¶14} R.S. contends that the trial court erred when it determined that her
conviction for drug possession in 2005 was ineligible for sealing. This raises a question
of law that we review de novo. State v. Evans, 1st Dist. Hamilton No. C-210251, 2022-
Ohio-341, ¶ 3, citing Wray v. Albi Holdings, P.L.L., 1st Dist. Hamilton No. C-200381,
2021-Ohio-3920, ¶ 7; see State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-
Ohio-2509, ¶ 6.
{¶15} In Ohio, there is a narrow class of offenses ineligible for sealing. See R.C.
2953.36. R.S.’s conviction for driving under a suspended license, a violation of R.C.
4510.16, falls into that narrow class of offenses—a person is ineligible to seal the record
of a conviction under R.C. Chapter 4510. R.C. 2953.36(A)(2). The court determined
that R.S.’s conviction for drug possession was ineligible as a “companion” to her
conviction for driving under a suspended license. The court did not identify which
section of the statute rendered her conviction ineligible. But following a review of the
relevant statutory sections, we conclude that the trial court erred when it determined
that her conviction was ineligible.
{¶16} Beginning with R.C. 2953.32(C)(1)(a), a court must determine if an
applicant is an “eligible offender” as defined by R.C. 2953.31(A)(1). The statute
identifies two categories of eligible offenders. R.C. 2953.31(A)(1). First, an applicant is
eligible if the applicant was convicted of “one or more offenses, but not more than five
felonies,” none of which were an offense of violence or a felony sex offense. R.C.
2953.31(A)(1)(a). R.S. is eligible under this first category—she was convicted for
misdemeanor offenses, all of which were nonviolent under R.C. 2901.01(A)(9)(a).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Next, a trial court must determine whether it is in the public interest to
count two convictions “that result from the same indictment, information, or
complaint, from the same plea of guilty, or from the same official proceeding, and
result from related criminal acts that were committed within a three-month period but
do not result from the same act or from offenses committed at the same time” as one
conviction. R.C. 2953.32(C)(1)(a). Here, R.S. was charged in two separate citations
and entered two separate pleas in two separate proceedings. Under the plain language
of R.C. 2953.32(C)(1)(a), her conviction for drug possession and her conviction for
driving under a suspended license could not be counted as one conviction. Therefore,
neither R.C. 2953.32(C)(1)(a) nor 2953.31(A)(1)(a) preclude her from applying to seal
the record of her 2005 conviction for drug possession.
{¶18} Turning to R.C. 2953.61(A), a person “charged with two or more
offenses as a result of or in connection with the same act may not apply” to seal the
record of conviction for any of the charges “when at least one of the charges has a final
disposition that is different from the final disposition of the other charges.” But this
limitation only applies “when a person is charged with multiple offenses that arise ‘as
a result of or in connection with the same act’ and the multiple offenses have differing
dispositions.” City of Strongsville v. J.M.B., 8th Dist. Cuyahoga No. 100680, 2014-
Ohio-3144, ¶ 8. R.S. was convicted for both offenses and, therefore, R.C. 2953.61 does
not render her 2005 conviction for drug possession ineligible.
{¶19} R.S.’s conviction for driving under a suspended license has no
preclusive effect on her application to seal the record of her conviction in the case
numbered C-05CRB-40612. The trial court’s finding of ineligibility was contrary to
law. The state maintains that we should apply the trial court’s rehabilitation analysis
and interest weighing to this application and affirm the trial court’s denial.
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OHIO FIRST DISTRICT COURT OF APPEALS
Accordingly, this court will consider whether the trial court erred in refusing to seal
that conviction under the same analysis as the remaining convictions.
B. Rehabilitation
{¶20} R.S. argues that she demonstrated rehabilitation. The trial court’s
analysis of her rehabilitation consisted of its statement, “I don’t believe she has.”
{¶21} A trial court considering an application to seal an individual’s records
must determine whether “the applicant has been rehabilitated to the satisfaction of
the court.” R.C. 2953.32(C)(1)(c). The burden rests with the applicant to “prove that
[she] was rehabilitated in order to have [her] record of conviction sealed.” State v.
M.D., 8th Dist. Cuyahoga No. 97300, 2012-Ohio-1545, ¶ 10. Rehabilitation can be
demonstrated through “an admission of guilt and a promise to never commit a similar
offense in the future, or good nature or citizenship in the community since the
conviction.” Evans at ¶ 12; see State v. Brooks, 2d Dist. Montgomery No. 25033, 2012-
Ohio-3278, ¶ 21-28 (collecting cases of rehabilitation). An applicant’s testimony can
satisfy this burden. State v. A.V., 9th Dist. Lorain No. 18CA011315, 2019-Ohio-1037, ¶
11.
{¶22} R.S. pleaded guilty and admitted guilt in the cases involving the
convictions she wanted to seal. She informed the court that she “is not that person
anymore.” That statement is supported by the evidence in the record, which
demonstrated to the court that she has achieved five years of sobriety, has a family,
and operates multiple businesses. Combined, she is a productive member of the
community.
{¶23} The state maintains that the number and nature of her convictions,
which occurred over “a large span of time,” supported the court’s conclusion that she
failed to demonstrate rehabilitation. This is unpersuasive. In R.C. 2953.31(A)(1) and
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OHIO FIRST DISTRICT COURT OF APPEALS
2953.36, the Ohio legislature has identified convictions that, by their very nature, may
not be sealed. The legislature chose to permit record sealing for individuals convicted
for theft, drug possession, improper transportation of a firearm, possession of drug
paraphernalia, and resisting arrest. Unlike felonies, R.C. 2953.31(A)(1) has no
numerical restriction for sealing misdemeanor convictions.
{¶24} “Although rehabilitation is not favored in current penal thought, the
unarguable fact is that some people do rehabilitate themselves.” State v. Hilbert, 145
Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001). R.S. demonstrated that she
is among the many rehabilitated individuals. The trial court’s finding that she was not
rehabilitated does not comport with the record. Rather, its finding was unreasonable
and arbitrary. Therefore, the trial court abused its discretion when it determined that
R.S. was not rehabilitated under R.C. 2953.32(C)(1)(c).
C. Interest Weighing
{¶25} Finally, R.S. challenges the trial court’s determination that her interests
were outweighed by the government’s under R.C. 2953.32(C)(1)(e). The court found
that “the government’s interest in maintaining [the records of her convictions]
outweigh the applicant’s interest in seeking expungement.”
{¶26} Under R.C. 2953.32(C)(1)(e), the court must weigh the applicant’s
interest in sealing the applicant’s records against the “legitimate needs, if any, of the
government.” The General Assembly’s use of “ ‘if any’ suggests that ‘in some cases, the
State may have no interest in maintaining an applicant’s records.’ ” State v. J.S., 2017-
Ohio-7613, 97 N.E.3d 790, ¶ 14 (10th Dist.), quoting State v. Wyatt, 9th Dist. No.
25775, 2011-Ohio-6738, ¶ 12. The burden rests with an applicant “to demonstrate that
[her] interests are at least equal to the governmental interests before the trial court
must determine if sealing the record would be appropriate.” State v. Haney, 70 Ohio
9OHIO FIRST DISTRICT COURT OF APPEALS
App.3d 135, 139, 590 N.E.2d 445 (10th Dist.1991). An applicant can satisfy this burden
with evidence such as “testimony that [her] conviction has damaged [her] ability to
earn a living.” State v. Shaffer, 11th Dist. Geauga No. 2009-G-2929, 2010-Ohio-6565,
¶ 30 (collecting cases).
{¶27} While the court concluded that the government’s interest in record
maintenance outweighed R.S.’s interests, every relevant consideration shows that her
interests outweigh the state’s interests. Beginning with R.S.’s interests, she testified
that her criminal record bedeviled her financial prospects. As a business owner and an
artist, sealing her records was a chance to defuse the effect of her past. With her
convictions available to the public, “people can just look at my record.” To be sure,
“anyone may obtain the criminal history of another under Ohio Adm.Code 109:5-1,
private employers, landlords, insurers, educational institutions, and others may
obtain information on misdemeanor convictions and use it in their decision-making
processes.” City of Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953
N.E.2d 278, ¶ 33 (Lundberg Stratton, J., concurring). Moreover, as a parent, the
challenges associated with having a criminal record are intensified.
{¶28} Turning to the state’s interests, the court identified a state interest in
maintaining its records. According to the court, this general interest in record
maintenance outweighed R.S.’s interests. Certainly, the state has an interest in record
maintenance. But sealing her records pursuant to R.C. 2953.32 merely shields her
records from the public gaze. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d
1178, at ¶ 36, fn. 2. Still more, state officials and law enforcement can access sealed
records. R.C. 2953.32(D). We fail to see the impact of sealing her records on the state’s
interest in maintaining records.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} The state argues that the nature of R.S.’s convictions supported the
court’s finding that the state’s interest in maintaining records outweighed her interest.
First, the state failed to raise this interest before the trial court—in fact, the state
offered no objection at all to R.S.’s applications to seal the records of her convictions.
Second, it is well settled that “the nature of the offense cannot provide the sole basis
to deny an application to seal records.” See State v. M.H., 8th Dist. Cuyahoga No.
105589, 2018-Ohio-582, ¶ 16 (collecting cases). Indeed, “[n]either the state nor the
trial court’s decision articulates a legitimate government interest, under the facts and
circumstances here, to support a decision to deny defendant’s application to seal her
records.” See State v. Clellan, 10th Dist. Franklin No. 10AP-44, 2010-Ohio-5867, ¶ 19;
see also State v. N.C., 9th Dist. Summit No. 29775, 2022-Ohio-781, ¶ 16 (“The court
made no mention of any legitimate, governmental interests offered by the State, which
leads us to question what, if anything, the court weighed on the government’s side.”).
{¶30} We sustain R.S.’s assignment of error. The trial court’s finding that the
state’s interests outweighed R.S.’s interests belies the facts and circumstances of the
case. Properly understood, R.C. 2953.32 reflects traditional “concepts of sin,
punishment, atonement, and forgiveness.” Hilbert, 145 Ohio App.3d at 827, 764
N.E.2d 1064. The consequences of “a misdemeanor conviction today are real and
significant.” Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, at ¶ 34
(Lundberg Stratton, J., concurring). R.S. demonstrated that sealing the records of her
convictions outweighed the state’s need to maintain its records. Following our review
of the record, we conclude that the trial court’s findings and denial of R.S.’s
applications were unreasonable and arbitrary and therefore, an abuse of discretion.
III. Conclusion
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} The trial court abused its discretion when it denied R.S.’s applications
to seal the records of her convictions. R.S.’s conviction in the case numbered C-
05CRB-40612 was eligible to be sealed. She demonstrated rehabilitation and
identified a significant interest in sealing her records. As a result, we reverse the trial
court’s judgments and remand these cases with instructions to the trial court to seal
the records of R.S.’s convictions under R.C. 2953.32.
Judgments reversed and cases remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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