2023 Ohio 2902
Ohio Ct. App.2023Background
- In 2013 Barry P. Deran, a physician, was convicted in Ohio of multiple fourth- and fifth-degree felonies for trafficking and attempted trafficking in drugs based on improper prescription practices; he also had related federal convictions for firearms offenses.
- Deran completed all state supervision and sanctions in 2016 and sought a Certificate of Qualification for Employment (CQE) in July 2022 to aid obtaining a medical license out-of-state.
- The pretrial/presentence office recommended granting the CQE, finding no subsequent criminal activity and noting a revoked medical license (record unclear whether Ohio or Michigan).
- The state opposed, arguing awarding a CQE would pose an unreasonable risk to public safety given Deran’s misuse of his medical license.
- The trial court denied the petition under R.C. 2953.25(C)(3), focusing on the three preponderance-factor prongs (material assistance, substantial need, public safety risk) without applying the statutory rebuttable presumption in R.C. 2953.25(C)(5)/(6).
- The Sixth District reversed, holding the trial court erred by failing to apply the presumption that applied to Deran and remanded for proper R.C. 2953.25 analysis; the state’s alternative collateral-sanction argument was not considered because it was not raised below.
Issues
| Issue | Deran's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court had to apply the R.C. 2953.25(C)(5) rebuttable presumption before denying a CQE | Deran: He satisfied the waiting period and final release requirements, so the presumption applied and the court could deny only if clear and convincing evidence showed he was not rehabilitated | State: Court could deny under R.C. 2953.25(C)(3) based on public-safety and need factors | Court: Reversed — trial court erred by skipping the (C)(5)/(6) presumption analysis and applying (C)(3) directly |
| Whether the record contains clear and convincing evidence of non-rehabilitation | Deran: No — evidence (early termination of supervision, no reoffending) shows rehabilitation | State: Argued petition should be denied because crimes are sufficiently serious to rebut rehabilitation (raised below) | Court: Not addressed on merits; trial court did not make a (C)(6) finding; remand required for proper consideration |
| Whether Deran is subject to a collateral sanction (threshold eligibility) | Deran: He is subject to collateral sanction (revoked medical license) and pleaded generally in petition as statute requires | State (raised first on appeal): License revocation was administrative, not a statutory "by operation of law" collateral sanction | Court: Declined to consider new argument on appeal because it was not presented to trial court; remand required for trial court to evaluate collateral-sanction existence |
| Whether the trial court abused discretion by deciding before the state’s response clarified issues | Deran: Court ruled prematurely; deprived proper standard application | State: Had opposed and court had discretion to rule on available filings | Court: Assignment of error rendered moot by reversal on statutory-presumption error; remand for full process |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion standard explained)
- AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157 (1990) (most abuses of discretion are simply unreasonable decisions)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (appellate courts will not decide issues not raised in the trial court)
- In re Bailey, 28 N.E.3d 578 (Ohio App. 2015) (explains CQE purpose and effect under Ohio law)
- State v. Miller, 141 N.E.3d 604 (2019) (discusses abuse-of-discretion review principles)