State v. D.D.G.State v. D.D.G.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 5, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-13-577059-A and CR-09-524279-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder and Anthony T. Miranda, Assistant Prosecuting Attorneys, for appellee.
Mary Elaine Hall, for appellant.
MARY
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
- Whether the trial court, in [Cuyahoga C.P. No.] CR-13-577059, abused its discretion when it denied the defendant-appellant, D.D.G.‘s (aka D.G.‘s) Petition for Expungement without holding a hearing?
- Whether the trial court, in [Cuyahoga C.P. No.] CR-09-524279, abused its discretion when it did not conduct a balancing test to also include the totality of the expungement statute which contains
R.C. 2953.36 andR.C. 2901.01 by reference?
{¶ 2} Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
{¶ 3} In July 2009, D.D.G. pleaded guilty to two counts of drug possession in violation of
{¶ 4} In September 2013, D.D.G. pleaded guilty to drug trafficking in violation of
{¶ 5} On January 24, 2019, D.D.G. filed separate applications for sealing in CR-09-524279
{¶ 6} D.D.G. moved to consolidate both petitions, but the trial court never ruled on that motion, and the petitions proceeded separately before different trial court judges.3
{¶ 7} In both cases, the trial courts ordered an expungement investigation report, which showed that D.D.G. was convicted of four felonies — two counts of drug possession (CR-09-524279), one count of drug trafficking (CR-13-577059), and one count of failure to comply with order or signal of a police officer (13CR567) and a misdemeanor, noise in motor vehicles, a fourth-degree misdemeanor, in Cleveland M.C. No. 2010 CRB 026869.4
{¶ 8} The state opposed both of D.D.G.‘s applications, arguing that under
{¶ 9} In CR-09-524279, the trial court set a date for a hearing on the petition and held that hearing on March 21, 2019. At the hearing, D.D.G.‘s counsel conceded that D.D.G. had a third-degree felony conviction for failure to comply in Sandusky County Common Pleas Court. The trial court denied D.D.G.‘s petition in that case, finding that D.D.G. was not an eligible offender under
{¶ 10} In CR-13-577059, the trial court did not set a date for a hearing on D.D.G.‘s petition and denied it without a hearing. The trial court‘s journal entry stated that it was denying the petition because D.D.G. was not eligible for sealing under
{¶ 11} It is from these judgments that D.D.G. now appeals.
II. Law and Analysis
A. Denial of D.D.G.‘s Application for Sealing in Case No. CR-09-524279
{¶ 12} We will address D.D.G.‘s assignments of error out of order for ease of discussion. In his second assignment of error, D.D.G. argues that the trial court abused its discretion by not conducting a balancing test and referencing
{¶ 13} We review the trial court‘s denial of D.D.G.‘s application to seal his record of conviction for an abuse of discretion. State v. M.H., 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, ¶ 11, citing State v. Smith, 8th Dist. Cuyahoga No. 91853, 2009-Ohio-2380. An abuse of discretion occurs where the trial court‘s decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, whether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo. State v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715, ¶ 6, citing State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025. Because the trial courts denied D.D.G.‘s applications on the basis that he was an ineligible offender, we review the trial courts’ decisions de novo.
{¶ 14} To be “eligible” for sealing, an offender must qualify under either subsection (a) or (b) of
{¶ 15} Subsection (b) states that an “eligible offender” is
[a]nyone who has been convicted of an offense in this state or any other jurisdiction, to whom division (A)(1)(a) of this section does not apply, and who has not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony conviction
and one misdemeanor conviction in this state or any other jurisdiction.
{¶ 16} In other words, an offender is eligible for sealing under subsection (b) if the offender only has one felony conviction; one misdemeanor conviction; or one felony conviction and one misdemeanor conviction. Here, D.D.G. has four felony convictions and one misdemeanor conviction. Therefore, he is not an eligible offender under
{¶ 17} Despite the fact that he is clearly ineligible under
When exercising these powers, the trial court should use a balancing test, which weighs the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records. Where there is no compelling state interest or reason to retain the judicial and police records, such as where they arise from a domestic quarrel and constitute vindictive use of our courts, the accused is entitled to this remedy.
{¶ 18} Pepper Pike, however, does not apply here because, unlike the defendant in that case who was not convicted, D.D.G. pleaded guilty to and was convicted of four felonies in CR-09-524279, CR-13-577059, and 13CR567 respectively. “[N]either the rule of Pepper Pike nor its rationale has vitality when the offender has been convicted and is not a first-time offender.” State v. Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 27; see also State v. Hilbert, 145 Ohio App.3d 824, 826-827, 764 N.E.2d 1064 (8th Dist.2001) (noting that the Ohio Supreme Court seemed to treat the General Assembly‘s amendment of
{¶ 19} Further, when the Ohio Supreme Court decided Pepper Pike in 1981, Ohio law did not provide any mechanism for sealing the records of criminal cases resulting in acquittal or dismissal, which is now found in
{¶ 20} Accordingly, D.D.G. was not eligible for sealing of his record of conviction,
B. Failure to Hold a Hearing on D.D.G.‘s Application for Sealing in CR-13-577059
{¶ 21} In his first assignment of error, D.D.G. argues that the trial court erred by not holding a hearing on his application to seal in CR-13-577059, which he argues is mandatory under
{¶ 22} There are a few cases from this court that have held that a trial court is not required to hold a hearing on an offender‘s application for sealing when the trial court is able to determine that the offender is not eligible as a matter of law without a hearing.
{¶ 23} In State v. J.K., 8th Dist. Cuyahoga No. 96574, 2011-Ohio-5675, we recognized that the Eighth District has repeatedly held that an oral hearing on an application for sealing is mandatory. Id. at ¶ 15. However, we found that because the state only raised an issue of law in its opposition brief — i.e., that J.K. was not eligible under
{¶ 24} Subsequent decisions from this court have cited to J.K. for the proposition that a hearing is not necessary when the offender‘s noneligibility is a question of law and can be determined by proof or documentation included in the record. See State v. V.S., 8th Dist. Cuyahoga No. 105264, 2017-Ohio-1565, ¶ 11 (“Appellant‘s OVI conviction is excluded by
{¶ 25} After a review of the relevant case law, we find that a trial court does not need to hold a hearing when an offender is not eligible as a matter of law and that ineligibility can be established by proof or documentation included in the record. A hearing is not required under these circumstances for three reasons: (1)
{¶ 26} First,
{¶ 27} Further, setting a case for a hearing and actually holding a hearing are different, and “we are forbidden to add a nonexistent provision to the plain language of [a statute].” State ex rel. Steffen v. Judges of the Court of Appeals for the First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 26. Therefore, by requiring the trial court to hold a hearing even when an offender is not statutorily eligible for sealing, we would be adding a provision to
{¶ 28} One may wonder why the statute would require a trial court to set a date for a hearing but then not actually require the court to hold that hearing. But we believe the General Assembly did so intentionally. By setting the application for a hearing, the trial court notifies the prosecutor of the application and sets a deadline for which the prosecutor has to file objections. See
{¶ 29} In support of his argument that the trial court was required to hold a hearing under the plain language of
{¶ 30} D.D.G. and the dissent are correct that those cases held that a hearing is mandatory under
{¶ 31} Second, other appellate districts have held that a hearing on an offender‘s application for sealing is not necessary when the trial court is able to determine the offender is not eligible as a matter of law. In State v. Campbell, 9th Dist. Summit No. 24919, 2010-Ohio-128, the court held that because the defendant was convicted of an offense of violence, he was not eligible for sealing under
{¶ 32} In State v. Clark, 4th Dist. Athens No. 11CA8, 2011-Ohio-6354, the Fourth District reached a similar conclusion concerning
Importantly, the events outlined in
R.C. 2953.32(B) transpire before the hearing date, andR.C. 2953.32 does not require that a hearing be held after the prosecutor objects and the trial court makes its investigation. Therefore, in our view,R.C. 2953.32 contemplates that a trial court may, without a hearing, deny an application based on (1) the application itself, (2) the prosecutor‘s objections, and (3) the investigation reports.
(Emphasis sic.) Id.
{¶ 33} In Aurora v. Bulanda, 11th Dist. Portage No. 95-P-0130, 1996 Ohio App. LEXIS 2453 (June 14, 1996), the court recognized that some appellate districts, including the Eighth District in State v. Saltzer, 14 Ohio App.3d 394, 471 N.E.2d 872 (8th Dist.1984), generally hold that a hearing is mandatory because “under normal circumstances, a trial court would be required to hear evidence before rendering its decision on the motion[,]” such as when determining if an offender is rehabilitated. Id. at 11. The court found those types of cases distinguishable, however, given the fact that the defendant was convicted of driving while intoxicated, which could not be expunged under
{¶ 34} The Tenth District has also held that when an offender‘s application is barred by res judicata, which is a matter of law, a trial court need not hold a hearing. See McBride v. Whitehall, 10th Dist. Franklin Nos. 13AP-658 and 13AP-680, 2013-Ohio-5718, ¶ 21 (“[C]ollateral estoppel precludes appellant from relitigating his status as an eligible offender under
{¶ 35} Third, requiring a trial court to hold a hearing when an offender is not eligible for sealing as a matter of law does not serve judicial-economy purposes. The trial court has no discretion at the hearing to grant a motion for an offender who is not statutorily eligible, and thus, such a hearing does nothing but waste judicial resources, taxpayers’ and offenders’ money, and court costs.
{¶ 36} With the above in mind and turning to the instant case, the docket reflects that the trial court did not actually set a date for a hearing in CR-13-577059 as is explicitly required under
{¶ 37} Here, the trial court‘s failure to set a date for a hearing on D.D.G.‘s application for sealing was a harmless error
{¶ 38} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS;
MARY EILEEN KILBANE, A.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
MARY EILEEN KILBANE, A.J., CONCURRING IN PART AND DISSENTING IN PART WITH SEPARATE OPINION:
{¶ 39} Respectfully, I would affirm the trial court‘s judgment in part and reverse in part. I agree with the majority‘s disposition of the second assignment of error affirming the denial of D.D.G.‘s application to seal his record in Case No. CR-09-524279. I respectfully disagree, however, with the majority‘s disposition of the first assignment of error. I would reverse the trial court‘s denial of D.D.G.‘s application to seal his record in Case No. CR-13-577059 because the procedure set forth in
{¶ 40} The majority, relying on J.K., 8th Dist. Cuyahoga No. 96574, 2011-Ohio-5675, finds that the trial court is not required to hold a hearing on an application for expungement when the only issue is the defendant‘s eligibility, which is a question of law. In J.K., the state argued that because J.K. pled guilty to attempted arson, he was not eligible for expungement because arson is an offense of violence under
{¶ 41} A review of Webb, however, reveals that it has only been cited in two other cases — J.K. and R.A., 8th Dist. Cuyahoga Nos. 97550 and 97551, 2012-Ohio-2507, which distinguishes Webb. Moreover, the majority‘s holding in J.K. is a departure from our long line of cases holding that an expungement hearing is mandatory upon an application to seal the record.
{¶ 42} As the dissenting opinion in J.K. stated:
The majority deviates from this court‘s repeated holding that an oral hearing on an expungement motion is mandatory. As ground for the deviation, the majority states that the state‘s opposition to J.K.‘s expungement motion only raised a question of law; that is, whether attempted arson is an expungeable offense. The majority cites [Webb] in support of its holding.
In Webb, the defendant pleaded guilty to arson and was sentenced to community control sanctions. After successfully completing his community control sanctions, the defendant filed a motion to seal the record of his conviction. The
trial court denied his motion without a hearing. The Second Appellate District affirmed the trial court‘s judgment, finding that because arson is a crime of violence, the defendant was statutorily ineligible for expungement. The court held the issue was “purely an issue of law, and no hearing [was] necessary to resolve that question.” Id. at ¶ 6.
{¶ 43} Furthermore, subsequent decisions from our court have distinguished J.K., noting that the:
J.K. decision relied on [Webb] for th[e] proposition [that a hearing is not necessary where the state raises purely an issue of law in opposition to the motion for expungement]. But a reading of Webb demonstrates that the Webb court cited no authority for its conclusion that a hearing is not necessary to resolve issues of law regarding an application for expungement. And no other cases have cited Webb or J.K. for this proposition. Accordingly, we decline to follow Webb or J.K. in this case, and hold that the trial court erred in denying R.A.‘s application for expungement without first holding a hearing.
{¶ 44} And in M.S., 8th Dist. Cuyahoga No. 98892, 2013-Ohio-828, this court stated:
In a recent decision, [J.K.], a panel of this court departed from our long line of cases and held that an expungement hearing is not necessary where the state raises purely an issue of law when opposing the application for expungement. This case is distinguishable from J.K., because in J.K., the applicant was convicted for arson, which was an offense of violence excepted under
R.C. 2953.36 for expungement, and therefore, the application involved only a question of law. Here, we recognize that whether an applicant is considered a first offender is an issue of law. State v. Oravec, 8th Dist. Cuyahoga No. 96654, 2011-Ohio-5831, ¶ 5. However, there is a question of fact regarding what the alleged prior conviction was because the state did not provide any documentation for the allegation.
Id. at fn. 2.
{¶ 45} In following with our long line of cases holding that an expungement hearing is mandatory upon an application to seal the record, we recently stated in B.J., 8th Dist. Cuyahoga No. 105764, 2018-Ohio-177, that:
“[a] trial court commits error by ruling on a motion for expungement filed pursuant to
R.C. 2953.32 without first holding a hearing.R.C. 2953.32(B) ; [State v. Hamilton], 75 Ohio St.3d 636, 1996-Ohio-440, 665 N.E.2d 669 (1996); State v. Saltzer, 14 Ohio App.3d 394, 471 N.E.2d 872 (8th Dist.1984), followed. Accordingly,this court has repeatedly held that ‘an oral hearing on an expungement motion is mandatory, and failure to hold one is cause for reversal and remand.’ State v. J.K., 8th Dist. Cuyahoga No. 96574, 2011-Ohio-5675, ¶ 15, citing State v. Hann, 173 Ohio App.3d 716, 718, 2007-Ohio-6201, 880 N.E.2d 148 (8th Dist.). See also State v. Nowden, 8th Dist. Cuyahoga No. 88605, 2007-Ohio-2914; State v. Poston, 8th Dist. Cuyahoga No. 87216, 2006-Ohio-4125; State v. Powers, 8th Dist. Cuyahoga No. 84416, 2004-Ohio-7021; State v. Davis, 8th Dist. Cuyahoga No. 81940, 2003-Ohio-1363; State v. Rebello, 8th Dist. Cuyahoga No. 77076, 2000 Ohio App. LEXIS 1924 (May 4, 2000). The rationale that a trial court must first hold a hearing is ‘obviously predicated upon the fact that, under normal circumstances, a trial court would be required to hear evidence prior to rendering its decision in order to make several determinations pursuant to [ R.C. 2953.32(C)(1)(a) through (e)].’ J.K. at ¶ 15, citing State v. Haney, 10th Dist. Franklin No. 99AP-159, 1999 Ohio App. LEXIS 5524 (Nov. 23, 1999).”
Id. at ¶ 6, quoting M.R., 2017-Ohio-973, 86 N.E.3d 641, at ¶ 10 (8th Dist.). See also S.E., 8th Dist. Cuyahoga No. 106367, 2018-Ohio-1414.
{¶ 46} In addition to J.K.‘s departure from this court‘s longstanding precedent, I would find that J.K. is factually distinguishable from the instant case. The defendant in J.K., committed attempted arson — an offense of violence, which is specifically excluded from expungement under
{¶ 47} In reaching its decision, the majority also relies on Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, for the proposition that the plain language of the statute does not require the trial court to hold a hearing, but rather requires the trial court to set a date for a hearing. I disagree with the majority‘s interpretation of Lyons. In Lyons, the trial court relied on the wrong statute when sealing the defendant‘s record without a hearing. In comparing
{¶ 48} I recognize, based on the record in Case No. CR-09-524279 and as discussed in the second assignment of error, that D.D.G. is not eligible for expungement. Nonetheless, the procedure set forth in
{¶ 49} As a result, I would reverse the trial court‘s denial in Case No. CR-13-577059, and remand the matter for a hearing. B.J., 8th Dist. Cuyahoga No. 105764, 2018-Ohio-177, at ¶ 7, citing M.R., 2017-Ohio-973, 86 N.E.3d 641.