[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