State v. T.D.

[Cite as State v. T.D., 2021-Ohio-513.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio/City of Sylvania Court of Appeals No. L-20-1149

Appellee Trial Court No. TRC 1802390A

v.

T.D. DECISION AND JUDGMENT

Appellant Decided: February 19, 2021

*****

Matthew E. Exton and Daniel T. Ellis, for appellant.

*****

MAYLE, J.

{¶ 1} Defendant-appellant, T.D., files this accelerated appeal from the August 6,

2020 judgment of the Sylvania Municipal Court, denying his motion to seal his record of

conviction in Sylvania Municipal Court case No. TRC 1802390. The city of Sylvania did

not oppose the motion and has not filed a brief. For the following reasons, we reverse the

trial court judgment.
 I. Background

{¶ 2} On April 21, 2018, T.D. was charged in Sylvania Municipal Court case No.

TRC 1802390 with operating a vehicle while under the influence of alcohol or drugs

(“OVI”), a violation of R.C. 4511.19(A)(1)(a), and failure to maintain assured clear

distance ahead (“ACDA”), a violation of Sylvania Municipal Code 333.03(a). The case

was dismissed without prejudice on September 27, 2018, because the arresting officer

was unavailable.

{¶ 3} The city refiled the charges against T.D. in Sylvania Municipal Court case

No. TRC 1900656. On March 7, 2019, T.D. entered a plea of no contest to the ACDA

violation. The city dismissed with prejudice the OVI charge because the arresting officer

was training at Quantico for three months and would be unable to testify.

{¶ 4} On April 25, 2019, T.D. moved to seal the records in Sylvania Municipal

Court case Nos. TRC 1802390 and TRC 1900656. The city initially objected to sealing

the record in case No. TRC 1802390 (“the 2018 case”) because the case had been

dismissed without prejudice. When it realized that the case had been refiled as case No.

TRC 1900656 (“the 2019 case”), it withdrew its objection.

{¶ 5} The court held a hearing on the motion. It began by expressing its surprise

at the city’s decision not to oppose the motion and indicated that it was not inclined to

grant it. T.D. then testified. He confirmed that the 2018 case and the 2019 case were the

same case. The 2018 case was dismissed and refiled, and the 2019 case was later

dismissed with prejudice. He stated that even though he had not been convicted, his

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insurance premiums rose dramatically as a result of the charge, and his professional

reputation had been harmed. He argued that there was no legitimate basis for the

prosecution to maintain the records of the charge and dismissal.

{¶ 6} In a written decision filed on July 3, 2019, the trial court denied T.D.’s

motion with respect to the 2018 case. The court noted that it was unaware of any

criminal matters pending against T.D., it observed that the state had not objected to

T.D.’s motion, and it acknowledged T.D.’s testimony concerning his insurance rates and

reputation. Notwithstanding these facts, the court found that maintaining records of

alcohol-related traffic offenses furthers the state’s interest in protecting the public from

future offenses of a similar nature and would assist the state in plea negotiations should

T.D. commit another similar offense in the future. The court concluded that “the State’s

significant interest in maintaining Defendant’s record of a dismissed OVI charge is not

outweighed by Defendant’s interest in having the record sealed.”

{¶ 7} With respect to the records in the 2019 case, however, the trial court granted

the motion. It reasoned that “maintaining the records of two OVI dismissals could be

misleading, considering that the two OVI charges arose from a single incident. * * * To

prevent Defendant’s criminal history from suggesting, upon a cursory glance, that he

committed two OVI offenses, this Court deems it appropriate to seal the record” of the

OVI charge and ACDA conviction in the 2019 case.

3.
 {¶ 8} T.D. appealed to this court. In a decision and judgment dated June 26, 2020,

we reversed. State v. T.D., 6th Dist. Lucas No. L-19-1152, 2020-Ohio-3489. We

concluded that the trial court had applied the wrong legal standard.

{¶ 9} We clarified that under R.C. 2953.53(B)(4), a trial court must order a record

to be sealed if it finds that “the defendant was found not guilty, the complaint was

dismissed, no criminal proceedings against the person are pending, and ‘the interests of

the person in having the records pertaining to the case sealed are not outweighed by any

legitimate governmental needs to maintain such records.’” (Emphasis added.) Id. at ¶ 8,

quoting R.C. 2953.52(B)(4). We observed that instead of determining whether T.D.’s

interests were outweighed by the government’s need to maintain the records, the court

considered whether the government’s needs were outweighed by T.D.’s interests. The

effect of this was that in the event that the parties’ interests were equal, the state’s

interests would prevail. We explained that the statute favors the sealing of records if

specific requirements are met. Thus, under a correct application of the standard, if the

state’s need to maintain the records is equal to the movant’s interests in sealing them, the

trial court must grant the motion to seal—not the other way around. We remanded the

case to the trial court for application of the proper standard.

{¶ 10} On remand, the trial court again denied T.D.’s motion. This time, it

recognized additional interests of the state in maintaining the records: (1) its interest in

protecting the public from future offenses of a similar nature, (2) protection of the safety

interest of any of T.D.’s future passengers, (3) the interests of automobile insurers in

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determining whether to extend coverage and in establishing rates, (4) the state’s position

in plea negotiations should T.D. commit similar offenses in the future, and (5) the

absence of any suggestion that T.D. was wrongfully identified or prosecuted.

{¶ 11} As for T.D.’s interests, the court concluded that T.D. had not presented

specific evidence demonstrating his need to have the records sealed, offered no

substantive testimony or tangible evidence of how the OVI dismissal on his record

increased his insurance rates or damaged his reputation, and presented no testimony as to

how the OVI dismissal on his record compromised or impacted his employment.

{¶ 12} The court concluded that the state’s interest in maintaining the records

outweighs T.D.’s interest in having them sealed. T.D. appealed. He assigns the

following errors for our review:

APPELLANT’S ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

REFUSED TO SEAL THE OFFICIAL RECORDS IN BOTH DOCKETS

DESIGNATIONS OF THE SAME CASE[.]

APPELLANT’S ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED AS A MATTER OF LAW BY

MISAPPLYING THE LEGAL STANDARD TO SEAL THE RECORDS.

APPELLANT’S ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

THE MOTION TO SEAL.

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 II. Law and Analysis

{¶ 13} T.D. argues in his first assignment of error that the trial court erred as a

matter of law when it refused to seal the records in both the 2018 and 2019 cases because

they are both designations of the same case. He argues in his second and third

assignments of error that the trial court misapplied the legal standard and abused its

discretion in refusing to seal the records in the 2018 case.

{¶ 14} Under R.C. 2953.52(A)(1), “[a]ny person * * * who is the defendant named

in a dismissed complaint * * * may apply to the court for an order to seal the person’s

official records in the case.” Upon the filing of an application, the court must set a date

for a hearing and notify the prosecutor. R.C. 2953.52(B)(1). The prosecutor may object

before the hearing date and must specify the reasons justifying a denial of the application.

Id. The court must then determine whether the complaint was dismissed with prejudice;

determine whether criminal proceedings are pending against the person; consider the

prosecutor’s reasons for objection; and weigh the interests of the person in having the

records sealed against the government’s legitimate needs, if any, to maintain those

records. R.C. 2953.52(B)(2)(a)-(d). “If the court determines * * * that the complaint

* * * was dismissed * * *, that no criminal proceedings are pending against the person;

and the interests of the person in having the records pertaining to the case sealed are not

outweighed by any legitimate governmental needs to maintain such records, * * * the

court shall issue an order directing that all official records pertaining to the case be sealed

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and that * * * the proceedings in the case be deemed not to have occurred.” R.C.

2953.52(B)(3).

{¶ 15} The sealing of a criminal record has been characterized as an “act of grace

created by the state.” State v. Hamilton, 75 Ohio St.3d 636, 665 N.E.2d 669 (1996). It is

a privilege, not a right. State v. Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d

69, ¶ 15. The applicant has the burden to “‘demonstrate that his interest in having the

records sealed are equal to or greater than the government’s interest in maintaining those

records.’” State v. Harrison, 2018-Ohio-1724, 111 N.E.3d 845, ¶ 14 (2d Dist.), quoting

State v. Newton, 10th Dist. Franklin Nos. 01AP-1443, 2002-Ohio-5008, ¶ 9.

{¶ 16} Generally, we review a trial court’s decision regarding an application to

seal records under an abuse-of-discretion standard. State v. Floyd, 2018-Ohio-5107, 126

N.E.3d 361, ¶ 4 (1st Dist.). Where, however, “the dispute as to the sealing of records

involves a purely legal question, our standard of review is de novo.” Id., citing State v.

Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

{¶ 17} In his first assignment of error, T.D. argues that when the trial court

granted the motion to seal in the 2019 case, it necessarily required the court to seal the

records in the 2018 case too. This argument is premised on his interpretation of R.C.

2953.52(B)(4), which indicates that when a case is ordered sealed, “all official records

pertaining to the case” must be sealed and “the proceedings in the case be deemed not to

have occurred.” He maintains that the identical “official records” were used in both the

2018 and 2019 cases, therefore, in granting T.D.’s request to seal the records in the 2019

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case, the court was necessarily obligated to seal the records in the 2018 case as well. He

also insists that the records in the 2018 case are official records pertaining to the 2019

case because the proceedings in the 2019 case were a continuation of the proceedings in

the 2018 case.

{¶ 18} R.C. 2953.51(D) defines “official records” as follows:

All records that are possessed by any public office or agency that

relate to a criminal case, including, but not limited to: the notation to the

case in the criminal docket; all subpoenas issued in the case; all papers and

documents filed by the defendant or the prosecutor in the case; all records

of all testimony and evidence presented in all proceedings in the case;

all court files, papers, documents, folders, entries, affidavits, or writs that

pertain to the case; all computer, microfilm, microfiche, or microdot

records, indices, or references to the case; all index references to the case;

all fingerprints and photographs; all DNA specimens, DNA records, and

DNA profiles; all records and investigative reports pertaining to the case

that are possessed by any law enforcement officer or agency, except that

any records or reports that are the specific investigatory work product of a

law enforcement officer or agency are not and shall not be considered to be

official records when they are in the possession of that officer or agency;

and all investigative records and reports other than those possessed by a law

enforcement officer or agency pertaining to the case. (Emphasis added.)

8.
 {¶ 19} In State v. S.R., 63 Ohio St.3d 590, 595, 589 N.E.2d 1319 (1992), the Ohio

Supreme Court considered the meaning of “official records” and the terms used in that

definition. It emphasized that under the plain language of R.C. 2953.51(D), “official

records” are “‘all records that are possessed by any public office or agency that relate to

the criminal case * * *.’” (Emphasis in original.) Id., quoting R.C. 2953.51(D). It

explained that “when used as an adjective, as it is in the statute, ‘all’ is commonly defined

as ‘the whole amount or quantity’ or ‘every member or individual component of.’” Id.,

quoting Webster’s Third New International Dictionary (1986). “The term ‘related’

means more than ‘directly connected to’ or ‘part of.’” Id., quoting State v. Gaddy, 89

Ohio Law Abs. 513, 519, 184 N.E.2d 689 (C.P.1962). “Rather, the use of ‘related’ or

‘pertain,’ or a variation thereof, describes ‘things which in common experience are

closely associated with other specific things or situations.’” Id., quoting Gaddy at 522.

“Thus,” the court concluded, “that portion of R.C. 2953.51 defining ‘official records’

must be read to include each and every record possessed by every public office or agency

that is connected to or has a nexus with the criminal case.” Id.

{¶ 20} Applying the Ohio Supreme Court’s interpretation of the definition of

“official records,” we must conclude that the records of the 2018 case—which arise from

the same incident, utilize the same traffic citation, charge the same infractions, and form

the basis for the refiled charges—are “official records” of the 2019 case. In fact, as

articulated by the Tenth District in Columbus v. Kuhel, 10th Dist. Franklin No.

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17AP-774, 2018-Ohio-4124 and State v. Kuhel, 10th Dist. Franklin No. 17AP-774, 2018-

Ohio-4963, they may fairly be characterized as further proceedings in the same case.

{¶ 21} In Kuhel, 10th Dist. Franklin No. 17AP-774, 2018-Ohio-4124, the

defendant was first charged in municipal court with OVI and a marked lanes violation.

The state dismissed the case and refiled the OVI charge in common pleas court, along

with a felony firearms charge that arose from the same incident. Kuhel pled guilty to the

amended charge of having physical control of a motor vehicle while under the influence

and carrying a weapon while intoxicated. Kuhel later sought to have only the dismissed

municipal court case sealed—the felony case was not eligible to be sealed under R.C.

2953.36. The trial court denied the motion. On appeal, the Tenth District held that

because the felony case could not be sealed, and because “[t]he refiled cases were based

on the same facts and basically are the same charges,” the municipal court case could not

be sealed. Id. at ¶ 10. In denying Kuhel’s motion for reconsideration, the court went

further and characterized the two cases as “the same case at different stages of the

proceedings.” Kuhel, 10th Dist. Franklin No. 17AP-774, 2018-Ohio-4963, at ¶ 8.

{¶ 22} Kuhel is, of course, distinguishable from the present case in that (1) in

Kuhel, the second case resulted in a conviction, and (2) the nature of the conviction in

Kuhel rendered the case ineligible to be sealed. But Kuhel makes clear here that the

records in the 2018 case not only “relate to” the 2019 case—they are, in essence, “the

same case.” Id. Accordingly, when the trial court granted T.D.’s motion to seal the

10.
records in the 2019 case, it should have, by extension, sealed the records in the 2018 case

as well.

{¶ 23} We find T.D.’s first assignment of error well-taken. We deny as moot his

remaining assignments of error.

III. Conclusion

{¶ 24} We find T.D.’s first assignment of error well-taken. The trial court erred in

denying T.D.’s motion to seal the records in the 2018 case. The records in the 2018 case

are “official records” of the 2019 case and may fairly be characterized as the same case at

different stages of the proceedings. We deny as moot T.D.’s remaining assignments of

error. We reverse the August 6, 2020 judgment of the Sylvania Municipal Court and

order the records of the 2018 case sealed. The city is ordered to pay the costs of this

appeal.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

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 Sylvania v. T.D.
C.A. No. L-20-1149

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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