In re
{¶ 1} This cause came to be heard on the accelerated calendar pursuant to
1. The trial court erred and abused its discretion in denying appellant's application for relief from weapons disability underR.C. 2923.14.
{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.
I. Procedural and Factual History
{¶ 3} In September 1990, Chrosniak was convicted of sexual battery in violation of
{¶ 4} In May 2016, Chrosniak filed an application for relief from weapons disability. The state opposed the application, and a hearing was held in November 2016. At the hearing, Chrosniak provided testimony concerning the particulars of his 1990 felony conviction. Chrosniak testified that in 1985, he was intoxicated, naked, and watching pornography before he "passed out on the couch." When Chrosniak woke up, he discovered his five-year old son in thе room "without clothes and looking at the pornography." Chrosniak testified that he grabbed his son and "spanked his butt until it was black and blue." In 1989, Chrosniak began attending Alcoholics Anonymous programs. At some point, Chrosniak discussed the incident involving his son with a counselor. Based on the reсommendation of his counselor, Chrosniak notified children's services about the incident. Following an investigation by children's services and the Twinsburg Police Department, Chrosniak was indicted by the Summit County Grand Jury for rape of a child under the age of 13. Ultimately, Chrosniak pleaded guilty to the reduced charge of sexual battery in violation of
{¶ 5} In addition, Chrosniak provided testimony regarding the extent of his law-abiding life following his discharge in December 1991. He stated that he has not been charged or convicted with any offense since the time of his discharge and is gainfully employed as a purchasing and procurement specialist for a Cleveland-area trucking company. Chrosniak has been actively involved in his church, has facilitated an addiction recovery group, and currently provides pastoral counseling for members of his church. Chrosniak further stated that he has earned a masters degree in pastoral counseling and care from Ashland Theological Seminary and has been sober since 1989.
{¶ 6} Chrosniak testified that he sought relief from his weapons disability, in part, so that he could participate in recreational and hunting activities with his friends and family. He stated that he enjoyed target shooting and hunting prior to his felony conviction and that such activities were "part of [his] family heritage."
{¶ 7} During his cross-examination, the state questioned Chrosniak about the sрecifics of the incident involving his son. Chrosniak testified that he did not know why he "got charged the way [he] did," but admitted that his indictment originated because he told children's services that he and his sons genitals touched during the spanking because they were both naked. At the conclusion of the hearing, the state maintained its opposition to Chrosniak's application, stating "it is the state's position that one convicted of a sexual offense under these circumstances simply ha[s] not established a reason why the disability should be lifted."
{¶ 8} In January 2017, the trial court issued a journal entry, denying Chrosniak's application for relief from weapons disability. The journal entry provided, in pertinent part:
While petitioner testified that family and friends * * * request that he accompany them to go hunting-such testimony being hearsay-no such family or friend witness aрpeared at the hearing to [testify] that they have requested petitioner to accompany them on such hunting activities. Further, petitioner testified to his 20 years of employment and marriage; however, no other evidence or witness were produced to сorroborate this testimony. Finally, this court foundthat petitioner's testimony lacked credibility to such an extent that he failed to convince this court of his testimonial assertions at the hearing.
{¶ 9} Chrosniak now appeals from the trial court's judgment denying his application.
II. Law and Analysis
{¶ 10} In his solе assignment of error, Chrosniak argues the trial court erred and abused its discretion in denying his application for relief from weapons disability under
{¶ 11} "The right to keep and bear arms is a fundamental right enshrined in federal and state constitutional law." State v. Robinson ,
{¶ 12} Similarly, the right to keep and bear arms is part of Ohio's heritage and is a fundamеntal state constitutional right. Klein v. Leis ,
{¶ 13}
Upon hearing, the court may grant the applicant relief pursuant to this section, if all of the following apply:
(1) One of the following applies:
(a) If the disability is based upon an indictment, a conviction, or an adjudication, the applicant has been fully discharged from imprisоnment, community control, post-release control, and parole, or, if the applicant is under indictment, has been released on bail or recognizance.
(b) If the disability is based upon a factor other than an indictment, a conviction, or an adjudicatiоn, that factor no longer is applicable to the applicant.
(2) The applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so.
(3) The applicant is not otherwise prohibited by law from aсquiring, having, or using firearms.
(Emphasis added.)
{¶ 14} By using the word "may," the General Assembly has drafted a permissive statute. In re I.A. ,
{¶ 15} On appeal, Chrosniak arguеs that because the record establishes that he satisfied all of the
{¶ 16} In Dozanti, thе applicant was convicted in 1995 for the offense of drug trafficking, a third-degree felony. He was sentenced to 18 months in prison with credit for time served. Dozanti at ¶ 2. In 2014, a hearing was held on Dozanti's application for relief from weapons disability. Dozanti was married with a wife, threе children, and seven grandchildren. He had not violated the law for more than 20 years and petitioned the court under
{¶ 17} On appeal, this court reversed the trial court's judgment, finding that "because there is nothing in the record from which the trial court could determine that [Dozanti]'s request for disability should be denied, we find the trial court abused its discretion by denying [Dozanti]'s motion." Id. at ¶ 13. We explained:
The record reflects that [Dozanti] satisfied the requirements ofR.C. 2923.14 for relief from weapons disability. Although the trial court retains discretion to grant such relief, its decision must be supported by the record. Here, [Dozanti] demonstrated that he met the statutory requirements. He has led a law-abiding life for over 20 years, and he provided a legitimate basis for his request. There is nothing in the record, other than the obvious history that appellant was involved with trafficking in drugs roughly 25 years earlier and still owned the business where those events occurred, that would support the denial of the motion.
We are conscious that this is a seasoned and thoughtful jurist, and we do not take lightly our decision to find an abuse of discretion. Although findings and reasons are not required by the statute, the record must in some form support the trial court's dеnial. Where there is nothing since 1995 reflected in the record to support the trial court's decision to deny the request for which it gave no reason, we can only conclude the trial court acted arbitrarily in denying the motion.
Dozanti at ¶ 9-10.
{¶ 18} Similar to the facts of Dozanti , the applicant in In re Childress was convicted of a single count of drug trafficking in 1987. In 2014, Childress filed an application for relief from disability so that he would be eligible for a position with his employer that required him to carry a firearm. The state opposed the application, arguing "that the purpose of
{¶ 19} At the petition hearing, Childress testified that he had not committed a criminal offense since the time of his 1987 conviction. In addition, Childress testified that he had successfully completed an early childhood education program, obtained an associate's degree, and attended several peace officer training seminars. Following the hearing, the trial court denied Chrosniak's application, stating, in pertinent part:
"R.C. 2923.14 merely permits, but not does rеquire, a trial court to grant an application for relief from disability where a defendant has presented evidence outlined inR.C. 2923.14(D)(1) -(3)."
{¶ 20} On appeal, this court reversed the trial court's judgment. Applying the Dozanti decision, we found that "other than the 'bad risk' comment by the prosecutor, who also failed to explain the nature of the risk, the record is void of any evidence that Childress poses a risk." Id. at ¶ 20. Accordingly, we adopted the position that "because there is nothing in the record on which the trial court could determine that appеllant's request for disability should be denied, the trial court abused its discretion in refusing to grant appellant relief." Id. at ¶ 21, citing Dozanti , 8th Dist. Cuyahoga No. 102158,
{¶ 21} After careful consideration, we find Dozanti and In re Childress to be factually distinguishable. In each case, the applicants presented testimony that satisfied the elements of
{¶ 22} For these reasons, we find the circumstances presented in this case are more similar to those addressed in this court's decision in Brown , 8th Dist. Cuyahoga No. 96615,
{¶ 23} Without addressing the trial court's concerns for Chrosniak's credibility, we agree with Chrosniak's contention that, as in Dozanti and In re Childress , the evidence presented in this case reasonably established that he has led a law-abiding life since the time of his dischargе in 1991 and appears likely to continue to do so. However, in addition to the evidence supporting Chrosniak's rehabilitation, the "trial court was free to consider the nature and extent of [Chrosniak's] prior criminal activity in determining that [he] is not a fit subject for relief under
{¶ 24} While a prior conviction for an offense of violence does not preclude a trial court from granting an application for relief from weapons disability, it is a relevant circumstance the trial court may weigh in exercising its permissive discretion under
{¶ 25} Judgment affirmed.
TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR