State v. Ofori , 2023 Ohio 1460 ( 2023 )

[Cite as State v. Ofori, 2023-Ohio-1460.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220367
C-220368
Plaintiff-Appellee, : C-220369
C-220370
vs. : TRIAL NOS. C-11CRB-4218
15CRB-34430A
JESSE OFORI, : C-12CRB-20695
C-14CRB-11414
Defendant-Appellant. :
O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: May 3, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Connor E. Wood, Assistant Prosecuting Attorney, for Plaintiff-Appellee City of
Cincinnati,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Jesse Ofori appeals the denial of his applications to seal his
misdemeanor convictions arguing that the trial court abused its discretion when it
found that the government’s interest in maintaining the records as public outweighed
his interest in having the records sealed. For the reasons that follow, we affirm the
judgments of the trial court.
Background
{¶2} In March 2022, Ofori filed applications to seal the records of a 2011
conviction for forgery and two convictions for unauthorized use of property, one in
2012 and one in 2016. A month later, the trial court conducted a hearing where Ofori
appeared without counsel. The trial court denied the applications after finding that
the “government interest outweighs applicant’s interest in sealing record” and
“insufficient evidence of rehabilitation (subsequent arrests/convictions).” Ofori did
not appeal.
{¶3} Two months later, Ofori again filed applications to seal the same records
plus the records of a 2014 criminal-damaging conviction, noting on the applications
that he was now employed. At the hearing in July 2022, both the city and county
prosecutors informed the court that they had no objections to the sealing of the
records. The trial court asked Ofori what had changed since the prior applications.
Counsel responded that Ofori had representation to explain his efforts at
rehabilitation. Ofori, a father of four with a fifth child on the way, had recently
obtained his associate’s degree in business administration. An unidentified speaker
further explained that Ofori had resolved all of his past issues regarding his driver’s
2
OHIO FIRST DISTRICT COURT OF APPEALS
license and would obtain his license on December 4, 2022, to prevent future traffic
offenses related to driving without a license.1
{¶4} The court addressed Ofori who informed the court that as he has grown
older and become a father, he realized that he must provide a better example for his
children, and he must do better. Since his last application, Ofori had secured
employment at Gates where he drives a vehicle, picks auto parts, and selects autos.
Ofori further explained that having completed a program in business administration,
he planned to transfer to Wilmington College to obtain a bachelor’s degree.
{¶5} The court noted a reference in the probation report about immigration
proceedings in 2014 and inquired about his immigration status. Ofori responded that
he is a permanent resident.
{¶6} After addressing Ofori, the court noted the “subsequent contacts with
the criminal justice [system]” and reaffirmed its previous opinion that Ofori presented
insufficient evidence of rehabilitation. The court noted a 2017 dismissed domestic-
violence charge, a 2018 OVI charge that resulted in a conviction for reckless operation,
a second reckless-operation conviction in 2018, and nonpayment of court costs in
2019. Further, the court commented that several of Ofori’s charges were crimes of
dishonesty that were reduced to lesser offenses and concluded that the government
interest in maintaining public access to the records outweighed his interest in having
them sealed. The court denied the applications.
{¶7} After the denial, the unidentified speaker asked the court to articulate
the government interest. The court responded “all of the citizens of this community,
there is a public interest in maintaining public records and public access to what goes
1 Ofori had numerous convictions for driving under suspension.
3
OHIO FIRST DISTRICT COURT OF APPEALS
on in the courtrooms of Hamilton County and throughout the jurisdiction.” Seeking
clarification, the speaker questioned whether it was due to the number of
misdemeanors or the crimes of dishonesty and reminded the court that the legislature
determined that all of the offenses were eligible to be sealed.
{¶8} In response, the court explained that the legislature does not require
courts to grant all applications and instead requires the court to balance the competing
interests, and in this circumstance, the government interest outweighed the
applicant’s interest. The court assured the speaker that the decision was not based on
the crimes of dishonesty.
{¶9} Ofori now appeals, and in one assignment of error, he contends that the
trial court abused its discretion in denying the applications to seal. Specifically, he
argues that the court’s finding that the government’s interest in maintaining the
records outweighed his interest in having the records sealed was not supported by
sound reasoning. Notably, the state and the city do not defend the trial court’s finding
on appeal. Instead, the state and city contend that Ofori’s applications were barred by
the doctrine of res judicata.
Res Judicata
{¶10} Ohio courts have held that the doctrine of res judicata ordinarily
prohibits successive applications to seal a conviction. See State v. Bailey, 2d Dist.
Montgomery No. 26464, 2015-Ohio-3791, ¶ 16-18; State v. Singo, 9th Dist. Summit
No. 27094, 2014-Ohio-5335, ¶ 12; In re Sealing of the Record of Brown, 10th Dist.
Franklin No. 07AP-715, 2008-Ohio-4105, ¶ 10. Res judicata does not bar successive
applications where there is a showing of changed or new circumstances. State v. Cope,
111 Ohio App.3d 309, 311-312, 676 N.E.2d 141 (1st Dist.1996), abrogated on other
4
OHIO FIRST DISTRICT COURT OF APPEALS
grounds, State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980.
{¶11} Here, the state never asserted res judicata in the trial court and cannot
raise it now on appeal. See State v. Rojas, 180 Ohio App.3d 52, 2008-Ohio-6339, 904
N.E.2d 541, ¶ 12 (2d Dist.) (“not having so objected [to the successive application] in
the trial court proceeding, the State has forfeited its right to argue res judicata on
appeal”); State v. Delgado, 8th Dist. Cuyahoga No. CR-05-466377-A, 2015-Ohio-
5256, ¶ 15 (“The state never asserted res judicata in the trial court, however, and
cannot raise it now on appeal.”); State v. Walls, 8th Dist. Cuyahoga No. 79196, 2001
Ohio App. LEXIS 5188, 7 (Nov. 21, 2001) (res judicata is an affirmative defense that is
waived if not timely asserted); State v. Skoglund, 8th Dist. Cuyahoga No. 46988, 1983
Ohio App. LEXIS 15958, 4 (Nov. 3, 1983) (“the failure to raise the defense of res
judicata at the trial level precludes a party from raising it at a later time”). Accordingly,
the state and city have forfeited the right to argue res judicata on appeal.
{¶12} In a related argument, the state and city contend that the transcript
from the hearing on Ofori’s first applications is necessary to resolve this appeal
because the trial court stated that its “opinion on these matters is the same as it was in
April.” The state further insists that the probation report relied upon by the trial court
was not made part of the record on appeal. Without the transcript from the initial
hearing, they urge this court to presume the regularity of the proceedings and affirm
the judgments. Generally, when the appellant has failed in his duty to ensure that this
court has the record necessary to the resolution of assigned errors, this court must
presume the regularity of the lower court’s proceedings and affirm the judgment of the
trial court. See, e.g., Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400
5
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 384 (1980); State v. Patterson, 128 Ohio App.3d 174, 177-178, 714 N.E.2d 409(1st Dist.1998).
{¶13} However, the trial court was aware of the previous applications and
inquired about the change in circumstances that prompted the successive
applications. Satisfied that the circumstances had changed, the trial court proceeded
to conduct an evidentiary hearing on the new applications. The record before us
includes a transcript of the hearing and the probation report. Therefore, the transcript
of the initial hearing is not required to resolve whether the trial court erred in denying
Ofori’s subsequent applications to seal.
Standard of Review
{¶14} Generally, a trial court’s decision to grant or deny an application to seal
records is reviewed for an abuse of discretion. State v. R.S., 1st Dist. Hamilton Nos.
C-210169, C-210170, C-210171, C-210172 and C-210173, 2022-Ohio-1108, ¶ 7. An
abuse of discretion is more than an error of law or judgment; it implies that the
attitude of the trial court was “unreasonable, arbitrary or unconscionable.” Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[A]n abuse of discretion
occurs when a trial court’s judgment does not comport with reason or the record.” R.S.
at ¶ 8.
Law and Analysis
{¶15} “In Ohio, sealing an individual’s criminal record is an act of grace
created by the state.” Id. at ¶ 10. The statutes governing sealing are remedial in nature
and “must be liberally construed to promote their purposes.” State ex rel. Gains v.
Rossi, 86 Ohio St.3d 620, 622, 716 N.E.2d 204 (1999). The purpose of expungement,
or sealing a record of conviction, is to recognize that people may be rehabilitated. State
6
OHIO FIRST DISTRICT COURT OF APPEALS
v. Petrou, 13 Ohio App.3d 456, 456, 469 N.E.2d 974 (9th Dist.1984). As the Eighth
District Court of Appeals explained, in enacting the expungement provisions, the
legislature recognized, that “people 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.), quoting State v.
Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001).
{¶16} In reviewing an application, R.C. 2953.32(C)(1) states that the court
shall do each of the following:
(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 in accordance with division
(B) of this section, 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.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} In this case, the court denied the application after finding that Ofori was
not sufficiently rehabilitated, and that the state’s need to maintain the records
outweighed his interest in sealing the records. On appeal, Ofori challenges the court’s
finding that the state’s interest outweighs his, but does not challenge the insufficient-
rehabilitation finding.
{¶18} This case is similar to R.S., 1st Dist. Hamilton Nos. C-210169, C-210170,
C-210171, C-210172 and C-210173, 2022-Ohio-1108, State v. A.S., 1st Dist. Hamilton
No. C-220259, 2022-Ohio-3833, and State v. McVean, 1st Dist. Hamilton Nos. C-
210459 and C-210460, 2022-Ohio-2753. In all three cases, the same trial court judge
determined sua sponte that the state’s interest in maintaining the records outweighed
the applicants’ interest in having the records sealed, without specifying a legitimate
governmental interest. R.S. at ¶ 28-29; A.S. at ¶ 15; McVean at ¶ 13-14.
{¶19} In all three cases, this court reversed the trial court due to the lack of a
legitimate government interest to support the decisions. R.S. at ¶ 22 (“The trial court’s
finding that the state’s interests outweighed R.S.’s interests belies the facts and
circumstances of the case.); A.S. at ¶ 15 (“On these facts, the trial court invoked no
cognizable legitimate government interest to support its decision to deny A.S.’s
application to seal her record. Indeed, its rationale would mean that virtually no one
would ever qualify for sealing their records, which represents the antithesis of
‘liberally’ construing the statute.”); McVean at ¶ 13 (“The state seemed content with
sealing for Mr. McVean, but the trial court refused to accept that outcome, going out
of its way to divine a justification that even the state didn't seriously advance.”).
{¶20} Even if this court agrees that the trial court abused its discretion in
determining that an unidentified governmental interest outweighed Ofori’s legitimate
8
OHIO FIRST DISTRICT COURT OF APPEALS
interest in having the records sealed, the trial court made a second finding to justify
denying the application. The court found that Ofori was not sufficiently rehabilitated,
and he does not challenge the insufficient-rehabilitation finding on appeal.
{¶21} Thus this court is constrained to affirm the judgments of the trial court
based upon its finding that Ofori had not been rehabilitated to the court’s satisfaction.
Conclusion
{¶22} We overrule the sole assignment of error and affirm the trial court’s
judgments.
Judgments affirmed.
CROUSE, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its own entry this date.
9