[Cite as State v. Gaines, 2021-Ohio-1439.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
HURON COUNTY
State of Ohio Court of Appeals No. H-20-009
Appellee Trial Court No. CRI 2011 0712
v.
Joseph P. Gaines DECISION AND JUDGMENT
Appellant Decided: April 23, 2021
*****
James Joel Sitterly, Huron County Prosecuting Attorney,
for appellee.
Loretta Riddle, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Before the court is defendant-appellant, Joseph Gaines’ appeal of the
March 20, 2020 judgment of the Huron County Court of Common Pleas, which denied
his motion to seal the record of his criminal conviction. For the reasons that follow, we
affirm.
{¶ 2} On September 16, 2011, appellant was indicted on one count of aggravated
burglary, a first-degree felony. The facts surrounding the charge were that on August 13,
2011, appellant forced his way into his ex-wife’s home and physically attacked her
boyfriend. After he returned to his vehicle and was leaving the residence, appellant
pointed a handgun at the boyfriend.
{¶ 3} Appellant entered a guilty plea to one count of burglary, a fourth-degree
felony and was sentenced to three years of community control. Appellant’s community
control was successfully terminated on August 6, 2014.
{¶ 4} On January 11, 2019, appellant filed a motion to seal his criminal
conviction. Appellant stated that he qualified to have his conviction record sealed under
R.C. 2953.32, the matter was his only felony conviction, and that he had led a law-
abiding life since the incident. In the state’s response, it agreed that appellant was an
eligible offender, had not had any subsequent criminal convictions, and stated that it did
not oppose the motion.
{¶ 5} Following a “non-oral hearing,” on February 12, 2019, the trial court denied
the motion stating:
The Defendant was convicted of Burglary where a weapon was
involved and a threat of harm was made.
Based upon these facts, the Court finds that it is not currently in the
public interest to grant the Defendant’s request.
2.
{¶ 6} Reversing on appeal, on December 6, 2019, this court found that the trial
court erred when it failed to hold a hearing on appellant’s motion and failed to articulate
the findings required under R.C. 2953.32. See State v. Gaines, 6th Dist. Huron No.
H-19-004, 2019-Ohio-5003 (Gaines I). The matter was remanded to the trial court.
{¶ 7} The hearing on remand was held on March 19, 2020. Appellant, pro se at
the hearing, expressed regret regarding the incident and requested a second chance.
Appellant stated that his felony record has made it difficult to obtain “good” jobs.
Appellant further stated that he desired the ability to have a weapon to hunt and for
personal and family protection.
{¶ 8} The state then indicated:
In reference to what Mr. Gaines had told the Court, the events of that
August of 2011 incident, I guess where it became concerning to the State
and certainly heightened, it’s not necessarily the [p]ugilism that happened
within the residence, I don’t think it’s unexpected that given the time line of
both the divorce and the dynamics between Mr. Gaines and Mr. R[.] * * *.
Where it does become concerning is when threats are intimated with
a firearm. I think that would be the paramount concern when the Court
makes its determination under – yeah, the factors under 2953.31. I don’t
know if the State has anything more other than it stands by what it filed
January 29th of last year, and in its response brief in the appeal.
3.
{¶ 9} The court then stated:
[T]here was an incident where you broke into the home, that you
assaulted the victim in the case, because that was the current boyfriend to
your ex-spouse, that that altercation ended once he had forced you out of
the home, that you then went to your car. The incident indicated it was
escalated at that point by your retrieving a gun at that point, and pointing it
at the victim. The victim indicated that you pointed it at his chest.
The Court would indicate here, it would not be unusual for me to
take a look at sealing a record. I’m not doing it based on the offense itself,
here a felony four burglary. It’s not the most serious offense that comes
before the Court; however, the fact pattern here certainly fits a felony of the
second degree burglary, which you wouldn’t be eligible for expungement
for. I understand because of your lack of prior record and the incident not
resulting in harm that it may have been reasonable at the time to reduce that
charge to a felony of the fourth degree, but the fact pattern is one in which
the Court believes that here, obviously, your temper or emotions got the
best of you. It resulted in a physical altercation, then you escalated that by
use of a weapon at the tail end of it.
* * * I have no reason to believe that you haven’t been a good
citizen since then. I think that you have rehabilitated yourself as well, and
certainly, hope that to be the case. You would otherwise be eligible under
4.
the statute. The prosecutor has indicated an objection to it, and I think I’m
in line with that objection as well, more for the public’s interests as
opposed to anything that’s directed directly at you.
Certainly, I think that there is an interest for folks that might be
either neighbors or future spouses or ex-spouses that they should, if they
investigate, be able to know that this kind of incident occurred, * * *.
I also think that it’s probably in the public’s best interest that you not
be someone that possesses a weapon given those past tendencies. One of
my jobs is to help protect the public interest, and I believe that that interest
outweighs any personal gain that would be resolved by the sealing of the
record.
So at this point, the Court’s going to deny the motion, which I
understand why you filed it. I’m not saying you haven’t done the things
that would otherwise typically result in an F-4 burglary being expunged.
Unfortunately, I don’t see this as a typical F-4 burglary, because of the
actual nature of the offense.
{¶ 10} The judgment entry denying the motion was filed on March 20, 2020. The
court first noted that “[t]he Prosecutor opposed the request and focused his argument on
the physical violence and the firearm involved in the offense.” Mirroring its
pronouncement at the hearing, the court then stated that the government and public
interest outweighed appellant’s interest in having the conviction sealed. It reasoned:
5.
While the Defendant’s conviction was an F-4 Burglary, the
underlying actions in accordance with the victim’s statement and police
report reveal the incident was very serious. The Defendant broke into the
home where he confronted his ex-wife’s boyfriend and physically assaulted
him while he was in bed. The victim managed to fight off the Defendant
and forced him out of the home at which time the Defendant went to his car
and got a gun ou[t] and pointed it at the victim’s chest. Viewing this in
connection with the Defendant’s prior drug conviction, the Court finds that
the request should be denied.
{¶ 11} This appeal followed with appellant raising the following assignments of
error:
I. The trial court erred and abused its discretion in denying
appellant’s motion to seal his criminal conviction.
II. The state committed misconduct and prejudiced Mr. Gaines’
right to a fair hearing.
{¶ 12} Appellant’s first assignment of error presents four arguments. Appellant
argues that the court erred when it allowed the state to object to his motion at the hearing
contrary to the state’s written response. Appellant argues that the court further erred in
relying on the improper objection in denying appellant’s motion. Next, appellant
contends that the court erroneously relied on the “nature of the offense” in denying the
6.
motion. Finally, appellant argues that the court improperly considered his offense a
second-degree felony because a weapon was involved.
{¶ 13} As set forth in Gaines I:
“Expungement of a criminal record is an ‘act of grace created by the
state.’” State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d
401, ¶ 12, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d
669 (1996). “It should be granted only when all requirements for eligibility
are met, because it is a ‘privilege, not a right.’” Id., quoting State v.
Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. We
review the trial court’s denial of a motion to seal a conviction under R.C.
2953.52 for an abuse of discretion. State v. H.M., 8th Dist. Cuyahoga No.
106513, 2018-Ohio-2946, ¶ 14, citing State v. C.K., 8th Dist. Cuyahoga No.
99886, 2013-Ohio-5135, ¶ 10. An abuse of discretion implies that the trial
court ruling was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Gaines, 6th Dist. Huron No. H-19-004, 2019-Ohio-5003, at ¶ 10.
{¶ 14} Appellant’s first argument is that the court erred by allowing the state to
present an objection to the motion at the hearing when its written response indicated that
it did not object to the sealing of the conviction. R.C. 2953.32(B) provides in relevant
part that “the prosecutor may object to the granting of the application by filing an
7.
objection with the court prior to the date set for the hearing. The prosecutor shall specify
in the objection the reasons for believing a denial of the application is justified.”
{¶ 15} Within this argument, appellant distinguishes the scenario where the state
fails to provide a written objection then orally objects at the hearing. Hamilton, 75 Ohio
St.3d 636. In Hamilton, the defendant applied to have the record of his conviction sealed.
Id. at 636. Without filing an objection to the application prior to the hearing, the
prosecutor appeared in court, cross-examined the defendant, and then urged the court to
deny the application. Id. at 636-637. The Ohio Supreme Court held that the purpose of
the “written objection” language in R.C. 2953.32(B) was not to give a defendant
advanced notice of an argument of the state and that “the process due an applicant for
expungement does not include advanced notice of the specific issues and facts underlying
a prosecutor’s objection or even notice that the state opposes the sealing of the record.”
Id. at 639-640. The court further noted that “a prosecutor’s participation in a hearing on
an application to seal the record of a conviction is not limited to issues specified by the
prosecutor in a written objection filed pursuant to R.C. 2953.32(B).” Id. at 641. See also
State v. Stephens, 195 Ohio App.3d 724, 2011-Ohio-5562, 961 N.E.2d 734, ¶ 24 (2d
Dist.).
{¶ 16} We agree that the facts in Hamilton differ from the precise issue herein;
however, we find the reasoning instructive. The Hamilton court noted that expungement
hearings are premised on information gathering, not an adversary model which would
trigger due process protections. Id. at 640. Specifically, the court noted that “the process
8.
due an applicant for expungement does not include advanced notice of the specific issues
and facts underlying a prosecutor’s objection or even notice that the state opposes the
sealing of the record.” Id.
{¶ 17} Reviewing the record, while the state initially expressed that it had no
objection to the application, in its appellate response brief filed in Gaines I, it clearly
aligned with the court’s concerns regarding the weapon displayed by appellant during the
course of the events. Further, as stated in Hamilton, expungement proceedings are an
information gathering process; prior notice of the objection was not required.
{¶ 18} Appellant further contends that the court erroneously relied on the state’s
improper objection in denying the application to seal. We reject this argument as the
state was permitted to raise an objection at the hearing.
{¶ 19} Appellant next argues that the trial court erred when it denied his motion
based solely on the nature of the offense. At a hearing held pursuant to R.C. 2953.32(B):
(C)(1) The court shall do each of the following:
(a) Determine whether the applicant is an eligible offender or
whether the forfeiture of bail was agreed to by the applicant and the
prosecutor in the case. * * *.
(b) Determine whether criminal proceedings are pending against the
applicant;
9.
(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.
{¶ 20} The parties do not dispute appellant’s status as an eligible offender and
agree that no criminal proceedings were pending against appellant. The court further
found that appellant had been sufficiently rehabilitated.
{¶ 21} As to appellant’s argument, Ohio courts have recognized that “a court
cannot deny an application solely on the nature of the offense.” State v. M.J., 11th Dist.
Ashtabula No. 2018-A-0046, 2019-Ohio-1420, ¶ 21. There must exist a legitimate
interest in maintaining the applicant’s criminal record “other than the circumstances and
nature of the crime * * *.” Id. at ¶ 23. See State v. S.C., 6th Dist. Lucas No. L-20-1104,
2021-Ohio-366, ¶ 13. While the nature of the offense cannot be the sole basis to deny a
motion to seal a criminal record, consideration of the circumstances surrounding an
offense may support substantial police and public interest in maintaining the records.
State v. Reiner, 8th Dist. Cuyahoga No. 103775, 2016-Ohio-5520, ¶ 15-16.
10.
{¶ 22} As set forth above, under R.C. 2953.32(B), the court is required to consider
whether the defendant has been rehabilitated, and the reasons for the request to seal the
record. State v. S.E.J., 8th Dist. Cuyahoga No. 105883, 2018-Ohio-2060. In S.E.J., the
defendant was convicted of two misdemeanors involving the improper handling of a
weapon. The next year, she was convicted of a fifth-degree felony for carrying a
concealed weapon, her registered weapon, in her purse. She requested that the conviction
be sealed because she was unable to, after obtaining the education needed to work in the
nursing field, obtain full-time employment at a licensed nursing facility. Id. at ¶ 3. The
court denied the application finding, in part, that having a firearm, especially with
children, is dangerous. Id. at ¶ 11.
{¶ 23} Reversing the trial court and ordering that the record be sealed, the
appellate court noted that the defendant established her rehabilitation. As to the state’s
interest, it noted that the court’s statements about shootings in the community was
inapposite because the offense did not involve a shooting. Further, the statement about
owning guns with children was irrelevant because the defendant’s stated purpose for her
request was to obtain employment, not own a gun. Id. at ¶ 13.
{¶ 24} Unlike S.E.J., in the present matter the court specifically found that
appellant had been rehabilitated. Further, appellant recited only vague employment
reasons supporting his desire that the record be sealed and his desire to be permitted to
have weapons for hunting and personal protection. The court then noted the interest a
future romantic partner or neighbor may have in knowing the circumstances of the
11.
offense. The court then concluded that it was in the public’s best interest that appellant
not possess a weapon. Finally, the court referenced a prior drug conviction. Reviewing
the proceedings, we conclude that the court did not erroneously deny the motion based
solely on the nature of the offense.
{¶ 25} Appellant’s final argument is that the court erroneously viewed his felony
as a second-degree, rather than a fourth-degree felony. As discussed above, it is
permissible for the court to consider the nature of the offense in its determination of
whether to seal a defendant’s conviction. Further, many of these cases involve plea
agreements where the facts surrounding a defendant’s criminal charge would support a
higher-degree felony conviction.
{¶ 26} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying appellant’s motion to seal his criminal conviction. Appellant’s first
assignment of error is not well-taken.
{¶ 27} Appellant’s second assignment of error argues that the state committed
prosecutorial misconduct by initially not objecting to the motion to seal and then
objecting to it at the hearing. In order to prove prosecutorial misconduct, the relevant
questions are (1) whether the prosecutor’s remarks actually were improper, and (2) if they
were, whether any of the defendant’s substantial rights were adversely affected. State v.
Coleman, 2016-Ohio-7335, 72 N.E.3d 1086, ¶ 36 (6th Dist.), citing State v. Lott, 51 Ohio
St.3d 160, 165, 555 N.E.2d 293 (1990).
12.
{¶ 28} In our discussion above, we concluded that the prosecutor was permitted to
raise any concerns during the hearing. Further, because the court’s sealing of a criminal
record is considered an “act of grace,” and a “privilege not a right,” Gaines, 6th Dist.
Huron No. H-19-004, 2019-Ohio-5003, at ¶ 10, any improper comments would not have
affected a “substantial right” or denied appellant a fair trial. Appellant’s second
assignment of error is not well-taken.
{¶ 29} On consideration whereof, we find that substantial justice was done the
party complaining and the judgment of the Huron County Court of Common Pleas is
affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Myron C. Duhart, 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/.
13.
State v. Gaines
Combined Opinion