State v. R.S.

[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.
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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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{¶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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“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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(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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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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{¶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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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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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
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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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{¶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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{¶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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