State v. Fasnaugh

[Cite as State v. Fasnaugh, 2023-Ohio-3539.]

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

State of Ohio Court of Appeals Nos. L-23-1005
L-23-1006
Appellee
Trial Court Nos. CR0200802070
CR0200802697

v.

Kurt Fasnaugh DECISION AND JUDGMENT

Appellant Decided: September 29, 2023

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and
Angela M. Zavac, Assistant Prosecuting Attorney, for appellee.

Michael H. Stahl, for appellant.

*****

MAYLE, J.

{¶ 1} In these consolidated appeals, the defendant-appellant, Kurt Fasnaugh,

appeals two judgments by the Lucas County Court of Common Pleas that denied his

requests to seal official records relating to criminal cases filed against him in 2008. For

the reasons discussed below, we reverse and remand these matters to the trial court to
engage in the full analysis required by the relevant record-sealing statutes, R.C. 2953.52

and 2953.32.

I. Background

{¶ 2} On May 8, 2008, appellant was indicted on a single count of gross sexual

imposition, in violation of R.C. 2907.05(A)(1), a felony of the fourth degree (case No.

2008-2070). According to the indictment, appellant was alleged to have had illegal

sexual contact with his then-girlfriend on or about December 29, 2007. At a hearing held

on July 28, 2008, a nolle prosequi was entered at the request of the state.

{¶ 3} On that same day, July 28, 2008, a new case was filed against appellant by

way of information (case No. 2008-2697). In that case, appellant was charged with

disorderly conduct, in violation of R.C. 2917.11(A)(2), a misdemeanor of the fourth

degree. The new charge related to the same alleged incident involving appellant and his

girlfriend. After waiving his right to be prosecuted by way of indictment, appellant pled

guilty to the disorderly conduct offense. The plea agreement makes specific reference to

the state’s nolle prosequi in the other case. The trial court convicted appellant of

disorderly conduct and imposed a suspended jail sentence. It also imposed a

probationary term of six months and ordered appellant to have no contact with the victim.

{¶ 4} Fourteen years later, on September 28, 2022, appellant filed motions to seal

the dismissed indictment and misdemeanor conviction. In each motion, appellant

asserted,

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 Defendant states that he is an eligible offender under the statute and

that the interests of the State in maintaining this record do not outweigh his

interests in having the matter sealed.

Defendant additionally states that having this case on his record

hinders his ability to advance in his employment and/or to seek additional,

better employment.

Defendant further advises that he legally changed his name in the

Lucas County Common Pleas Court to Brady Nicholson because his father

was a registered sex offender and having the same name caused the

Defendant to have all kinds of additional problems.

{¶ 5} The matters were called for a joint hearing on November 22, 2022. At that

time, the state expressed its objection to the sealing of records and added that it had not

been able to reach the victim. The trial court postponed the hearing to allow time for the

parties to reach a “meeting of the minds” and for “further research.”

{¶ 6} The matter was recalled on December 6, 2022, and following arguments by

both sides, the trial court denied the motions. Appellant appealed. Acting sua sponte, we

consolidated the appeals. Appellant raises two assignments of error for our review:

I. The trial court erred when it denied the motion to seal the record

of the dismissed charge on case number CR-2008-2070, which was Nollied

on 7/28/2008, the statute of limitations on the alleged offense has long past,

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 and the State expressed no “legitimate needs, if any, of the government to

maintain those records.” nor [sic] did the court weigh those alleged needs

as required by then R.C. 2953.32(B)(2)(d). [SIC]

II. The trial court erred when it denied the motion to seal the record

of a Misdemeanor of the 4th Degree Disorderly Conduct charge prosecuted

under an information which contained no factual basis for the charge for

which a guilty plea was entered before Judge Ruth Ann Franks on

7/28/2008 in case # CR-2008-2697, where, the State, as above, did not

express any legitimate need to maintain the records, nor was that need

weighed, pursuant to R.C. 2953.32, wherein the suspended sentence of 30

days in jail was concluded over a decade ago [SIC]

II. Law and Analysis

{¶ 7} Ohio law sets forth differing procedures for sealing dismissed charges versus

sealing prior convictions. R.C. 2953.52 (now renumbered as R.C. 2953.33) applies to

criminal charges that have been dismissed, whereas R.C. 2953.32 applies to criminal

convictions. State v. G.K., 169 Ohio St.3d 266, 2022-Ohio-2858, 203 N.E.3d 701, ¶ 5-6

(identifying R.C. 2953.52 as the “nonconviction-sealing statute” and R.C. 2953.32 as the

“conviction-sealing statute”). Because appellant seeks to have records sealed as to his

dismissed indictment and his misdemeanor conviction, both statutes apply.

4.
 {¶ 8} Although these statutes were amended in 2023 (and R.C. 2953.52 was

renumbered as R.C. 2953.33), appellant filed his motions on September 28, 2022. We

therefore apply the prior versions of these statutes because the statutory law in effect at

the time the motions were filed is controlling. State v. Cruz, 12th Dist. Butler Nos.

CA2021-06-066, CA2021-06-067, CA2021-06-068, 2021-06-069, 2021-06-070, 2021-

Ohio-4241, ¶ 25 citing State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d

1172, paragraph two of the syllabus.

A. Appellant’s application to seal case No. 2008-2070

{¶ 9} Former R.C. 2953.52 (“Application to have records sealed; grounds; order”)

applies to sealing records of acquittals and dismissals. Relevant here, R.C. 2953.52

(A)(1) provides that, “[a]ny person * * * who is the defendant named in a dismissed * * *

indictment, * * * may apply to the court for an order to seal the person’s official records

in the case.” Id. Except as provided by R.C. 2953.61, the application may be filed, “at

any time after * * * the dismissal of the * * * indictment is entered upon the minutes of

the court or the journal, whichever entry occurs first.” Id.

{¶ 10} Upon the filing of an application, “the court shall set a date for a hearing

and shall notify the prosecutor.” The prosecutor “may object to the granting of the

application by filing an objection with the court prior to the date set for the hearing.”

R.C. 2953.52(B)(1).

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 {¶ 11} The trial court must then confirm that the applicant is eligible for record-

sealing. Relevant here, the trial court was required to determine (1) whether the

indictment was dismissed, (2) whether the dismissal was with or without prejudice (and,

if without, whether the statute of limitations has expired), and (3) whether any criminal

proceedings were pending against the applicant. R.C. 2953.52(B)(2)(a) and (b).

{¶ 12} Once the court determines that the applicant is “eligible for record sealing,

it must use its discretion to” (1) consider objections, if any, raised by the prosecutor, and

(2) weigh the interests of the applicant to seal the record against the legitimate needs, if

any, of the government to maintain those records. Cruz at ¶ 20, citing R.C.

2953.52(B)(2)(c) and (d). Importantly, the trial court must make the findings required by

R.C. 2953.52(B)(2) on the record. Cruz at ¶ 22.

{¶ 13} If the court determines that the factors set forth in Section (B)(2) are met,

including that “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 and that * * * the proceedings in the case be deemed not to have occurred.”

R.C. 2953.52(B)(4). As this court has recognized, “[t]he statutory language regarding the

weighing of interests reflects the intent to place the burden on the movant to demonstrate

that his interests are at least equal to the governmental interests***. If the interests are

equal, the trial court must grant the motion to seal the record.” State v. T.D., 6th Dist.

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Lucas No. L-19-1152, 2020-Ohio-3489, ¶ 10. That is, the statutory language “reflects the

General Assembly’s intention of favoring the sealing of records if specific requirements

are met.” Id.

{¶ 14} We review a trial court’s determinations under R.C. 2953.52 for an abuse

of discretion. Id.

{¶ 15} Here, as to the gross sexual imposition offense, appellant argued at hearing

that the record should be sealed because there was insufficient evidence to support such a

charge—which is why the indictment was dismissed. He also claimed that sealing the

record would help to separate him from his father, who bears the same name and who

was convicted of sex offenses. The prosecutor countered that, based upon her review of

the file from 2008, there was credible evidence to support the charge and that the plea

would have been “dealt with [in a] vastly different[] way in today’s era.” It urged the

court to deny the motion to seal.

{¶ 16} Before reaching a decision, the trial court asked “if these matters were to be

sealed and expunged respectively [would] access to those files and documentation * * *

be much more difficult for investigators and the State of Ohio.” The state claimed that it

would be more difficult, but—as pointed out by appellant—not impossible. The court

then decided, as to “both * * * Motion[s], [that] the government does indeed have a

legitimate interest in maintaining the records of these proceedings and therefore, * * * the

Defendant’s Motions not well taken and denied.” Id.

7.
 {¶ 17} The trial court, however, did not make all of the findings required by R.C.

2953.52 on the record. Although the record indicates that the trial court reviewed “the

report prepared by the Lucas County Adult Probation Department” (and therefore likely

reviewed appellant’s criminal background since 2008, if any), the record does not contain

any express findings regarding the appellant’s eligibility for record sealing. Likewise,

although the trial court heard arguments in favor of and against sealing, and found that

the government had a legitimate interest in maintaining the record of these proceedings,

the record lacks any indication that it weighed those interests against the appellant’s

interest in having the records sealed. And, there is no finding that appellant’s interest in

sealing the records was outweighed by the legitimate interests of the government, as

required to support its decision to deny appellant’s motion. R.C. 2953.52(B)(2)(d).

{¶ 18} A trial court abuses its discretion in ruling on an application to seal

dismissed charges if it fails to balance the requisite factors on the record. Id. See also

State v. Severino, 11th Dist. Ashtabula No. 2009-A-0045, 2010-Ohio-2674, ¶ 22, 32. For

example, in State v. Cruz, the judgment denying a motion to seal was reversed where the

trial court “did not assess on the record” whether the relevant charges against defendant

had been dismissed or whether defendant had any pending criminal proceedings at that

time, and further failed to hear any testimony regarding the parties’ competing interests

or to weigh those interests as required by R.C. 2953.52(B)(2)(d). Instead, it “summarily

and categorically” denied the applicant’s application, requiring a remand. Id. at ¶ 21; see

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also In re Dumas, 10th Dist. Franklin No. 06AP-1162, 2007-Ohio-3621, ¶ 11 (“R.C.

2953.52(B)(2)(d) contains a balancing test in which the trial court must engage.”).

{¶ 19} Here, the record does not indicate appellant’s eligibility for sealing records,

and fails to indicate that the court weighed the parties’ respective interests as required by

R.C. 2953.52. The trial court therefore erred in denying appellant’s application to seal

the record as to case No. 2008-2070. Accordingly, we find appellant’s first assignment

of error well-taken.

B. Appellant’s application to seal in case No. 2008-2697

{¶ 20} A criminal record containing a conviction may also be sealed under certain

circumstances. Former R.C. 2953.32 (“Sealing of record of eligible offender”) provides,

in relevant part, that “an eligible offender may apply to the sentencing court if convicted

in this state, * * * for the sealing of the record of the case that pertains to the conviction.”

R.C. 2953.32(A)(1). In the case of a misdemeanor conviction, an application “may be

made * * * [a]t the expiration of one year after the offender’s final discharge.” R.C.

2953.32(A)(1)(b).

{¶ 21} Like the nonconviction-sealing statute, when an application to seal is filed

under R.C. 2953.32, the trial court “shall set a date for a hearing and shall notify the

prosecutor * * * [who] may object to the granting of the application by filing an objection

with the court prior to the date set for the hearing.” R.C. 2953.32(B). Additionally, the

trial court “shall direct * * * the department of probation of the county in which the

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applicant resides to make inquiries and written reports as the court requires concerning

the applicant,” including to determine whether the applicant was fingerprinted. Id.

{¶ 22} If the applicant is determined to be eligible under Section (A)(1), then the

court “shall” also:

(a) [Inapplicable] (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) * * * [C]onsider

the reasons against granting the application specified by the prosecutor in

the objection [if any]; (e) Weigh the interests of the applicant in having the

records pertaining to the applicant’s conviction * * * against the legitimate

needs, if any, of the government to maintain those records; (f)

[Inapplicable].

{¶ 23} R.C. 2953.32(C)(1). See also State v. Poole, 5th Dist. Perry No. 10-CA-21,

2011-Ohio 2956, ¶ 12. If the court determines that the factors set forth in Section (C)(1)

are met—including that “the interests of the applicant in having the records pertaining to

the applicant’s conviction or bail forfeiture sealed are not outweighed by any legitimate

governmental needs to maintain those records”—the trial court “shall order all official

records of the case that pertain to the conviction * * * sealed and * * * all index

references to the case that pertain to the conviction * * * deleted.” R.C. 2953.32(C)(2).

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 {¶ 24} R.C. 2953.32 is “analogous” to the nonconviction-sealing statute, and the

“balancing test[s]” that trial courts must apply when weighing the parties’ respective

interests, are “the same.” Id. at ¶ 22, 32. Accordingly, if the interests of the applicant

and the government are equal, and the other requirements of R.C. 2953.32 have been met,

the trial court must grant the motion to seal. See T.D. at ¶ 10. Likewise, “[a] trial court

must include proper findings in its judgment entry to illustrate compliance with R.C.

2953.32.” State v. Bates, 5th Dist. Ashland No. 03-COA-057, 2004-Ohio-2260, ¶ 24

(Where the trial court failed to make any findings with respect to the defendant’s interest

in having records sealed, the government’s need to maintain records, and whether the

defendant has been rehabilitated, the record fails to support the court’s denial of motion

to seal under R.C. 2953.32). Accord Poole at ¶ 40 (Where it is “clear from the written

record” that the trial court denied the motion to seal based on the “nature of the offense”

and failed to make any findings under R.C. 2953.32(C)(1), the matter must be reversed

and remanded.).

{¶ 25} Here, the trial court failed to indicate on the record whether appellant was

eligible to have his conviction sealed under R.C. 2953.32. In addition, there is no

indication that it weighed the parties’ respective interests, and there is no finding that

appellant’s interest in having the record sealed was outweighed by the government’s

interest in maintaining the record, as required by R.C. 2953.32(C)(1)(e). The trial court

also failed to make any finding regarding whether appellant has been rehabilitated to the

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satisfaction of the court, as required by R.C. 2953.32(C)(1)(c). Therefore, we find that

the trial court erred in denying appellant’s motion to seal, and his second assignment of

error is found well-taken.

III. Conclusion

{¶ 26} We find appellant’s assignments of error well-taken. We reverse and

remand these matters for the trial court to conduct the full analysis required by R.C.

2953.52 and 2953.32, and to place its findings on the record. If the trial court concludes

that appellant is eligible to have his records sealed, under either or both provisions, then

the merits of appellant’s applications should be considered under the guidelines set forth

above. Accord State v. Cruz at ¶ 33. We expressly offer no opinion regarding the merits

of appellant’s motions.

{¶ 27} Costs are hereby assessed to the state, pursuant to App.R. 24. Judgment

reversed and remanded.

Judgment reversed,
and remanded.

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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 State of Ohio
v. Kurt Fasnaugh
L-23-1005, L-23-1006

Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Charles E. Sulek, 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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