State of Ohio, Plaintiff-Appellant, v. Shareda A. Evans, Defendant-Appellee.
No. 13AP-939
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 15, 2014
[Cite as State v. Evans, 2014-Ohio-2081.]
(C.P.C. No. 12EP-849) (REGULAR CALENDAR)
Rendered on May 15, 2014
Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{1} Plaintiff-appellant, State of Ohio, appeals from an entry of the Franklin County Court of Common Pleas granting the application of defendant-appellee, Shareda A. Evans, to seal the record of her prior conviction. Because the trial court did not make a finding on the record that appellee had been rehabilitated to the trial court‘s satisfaction, we reverse.
I. Facts and Procedural History
{2} On November 5, 2012, appellee filed an application requesting the trial court seal the record of her conviction for attempted patient abuse in violation of
{4} The trial court scheduled a remand hearing for October 15, 2013. Prior to the remand hearing, the state filed supplemental objections to appellee‘s application arguing appellee had been convicted of an “offense of violence” and, as such, she was not an “eligible offender” within the meaning of
II. Assignments of Error
{5} The state assigns the following two assignments of error for our review:
- The trial court erred in sealing the record of 11CR-2515, where [appellee] was convicted of an offense of violence.
- The trial court erred in granting the application to seal the record of conviction where it failed to find that [appellee] had been rehabilitated.
III. Applicable Law and Standard of Review
{6} ” ‘Expungement is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having record of their first conviction sealed.’ ” Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12, quoting State v. Smith, 3d Dist. No. 9-04-05, 2004-Ohio-6668, ¶ 9.
{7}
{8} Before issuing its ruling on the application, the trial court must ascertain whether the applicant is a first offender, whether criminal proceedings are pending against the applicant, and, if the court finds the applicant is a first offender, whether the applicant has been rehabilitated to the satisfaction of the court. Koehler at ¶ 13. Further, the court must determine if the prosecutor filed an objection pursuant to
{9} An appellate court generally reviews a trial court‘s disposition of an application for an order sealing the record of conviction under an abuse of discretion standard. State v. Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v. Hilbert, 145 Ohio App.3d 824, 827 (8th Dist.2001). An abuse of discretion connotes more than an error of law or judgment; it implies that the attitude of the trial court was “unreasonable, arbitrary or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, where questions of law are in dispute, an appellate court reviews the trial court‘s determination de novo. Id., citing State v. Derugen, 110 Ohio App.3d 408, 410 (3d Dist.1996).
IV. First Assignment of Error - Offense of Violence
{10} In its first assignment of error, the state argues the trial court erred as a matter of law when it granted appellee‘s application to seal the record of her conviction. More specifically, the state asserts attempted patient abuse is an “offense of violence” and, as such, appellee is not an “eligible offender” under
{11} When appellee initially filed her application to have the record of her conviction sealed and during the pendency of the first appeal, the state did not raise the issue of whether attempted patient abuse qualifies as an offense of violence. The state objected on this basis during the remand proceedings, but the trial court impliedly
{12} The court of common pleas has original subject matter jurisdiction over all justiciable matters, including all offenses and crimes committed by an adult and the post-conviction expungement applications stemming therefrom. State v. Smith, 10th Dist. No. 06AP-1059, 2007-Ohio-2873, ¶ 11, citing
{13}
{14} As an initial matter, we note the November 5, 2013 judgment entry granting appellee‘s application to seal the record of her conviction indicates appellee was convicted of one count of first-degree misdemeanor assault. The state asserts this is a clerical error and an important one as first-degree misdemeanor assault is one of the stated exceptions in
{15} Pursuant to
{16} As we have stated, appellee‘s guilty plea form and our decision in the first appeal from this case both indicate appellee entered a guilty plea to attempted patient abuse. Under
{17} This court has never considered the question of whether attempted patient abuse under
{19} The inconsistencies in the trial court record only confuse the matter. Though we are able to discern the appropriate offense to which appellee entered a guilty plea, there is nothing in the record that makes clear whether appellee committed the offense knowingly or recklessly. Because we cannot say with certainty that attempted patient abuse, under this factual record, occurred knowingly rather than recklessly, we cannot conclude here that appellee‘s conviction for attempted patient abuse constitutes an offense of violence. This is not to say that patient abuse or attempted patient abuse would never meet the statutory definition of an offense of violence; rather, we limit our holding to the specific facts of this case where it is not clear from the indictment, the guilty plea form, or the judgment entry of conviction and sentencing whether appellee committed this offense knowingly or whether appellee committed this offense recklessly.
{20} Thus, we do not agree with the state that, under the specific facts of this case, appellee‘s conviction of attempted patient abuse is an offense of violence under
V. Second Assignment of Error - Finding of Rehabilitation
{21} In its second assignment of error, the state argues the trial court erred in granting appellee‘s application to seal the record of her conviction because the trial court failed to make a finding that appellee has been rehabilitated to the court‘s satisfaction.
{22}
{23} In our prior decision in the state‘s first appeal in this case, we determined reversal was appropriate because the trial court neither made a finding on appellee‘s rehabilitation, nor did the record include any evidence concerning appellee‘s rehabilitation. Evans at ¶ 13. As we stated in the first appeal, “[e]vidence of rehabilitation normally consists of an admission of guilt and a promise to never commit a similar offense in the future, or good character or citizenship in the community since the conviction.” Id. at ¶ 11, citing State v. Brooks, 2d Dist. No. 25033, 2012-Ohio-3278, ¶ 21; State v. Schuster, 12th Dist. No. CA2012-06-042, 2013-Ohio-452, ¶ 22; State v. Auge, 10th Dist. No. 01AP-1272, 2002-Ohio-3061, ¶ 25-26. At the remand hearing, appellee apologized and stated she does not believe she poses a risk of harm to anyone. She stated she helps mentor teenagers affected by domestic violence, and she has since been able to secure employment. She also stated she is still permitted to go to the care facility and visit residents with whom she used to work, and she believes she has been rehabilitated.
{24} Additionally, appellee submitted a letter she wrote detailing why she believed she had been rehabilitated which the trial court read aloud for the record. Appelleee again apologized “for any inconvenience to the resident and his family, the community, and the courts.” (Oct. 31, 2013 Tr. 10.) She stated she has been in counseling and has learned coping methods for how to handle a similar situation should she ever face one again. She further stated she loves helping people and performs community service at a local homeless shelter. Appellee also submitted a letter from her pastor indicating appellee has “repeatedly advised [her pastor] that she is remorseful for her actions and meant no harm to the other party in question.” (Oct. 31, 2013 Tr. 11.)
{25} In indicating at the remand hearing that it would grant appellee‘s application to seal the record of her conviction, the trial court did not make an explicit finding of rehabilitation, nor did the trial court make such a finding in its entry journalizing its decision to seal the record of conviction. Although appellee presented evidence at the remand hearing that might aide the trial court in finding she has been rehabilitated, it is still the responsibility of the trial court to determine whether that evidence sufficiently demonstrates that appellee has been rehabilitated to the court‘s satisfaction.
{27} Accordingly, we sustain the state‘s second assignment of error.
VI. Disposition
{28} Based on the foregoing reasons, the trial court erred in granting appellee‘s application to seal the record of her conviction without making a finding on the record that appellee has been rehabilitated to the satisfaction of the trial court. Having overruled the state‘s first assignment of error and sustained the state‘s second assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to that court with instructions to make the necessary statutory findings on the record.
Judgment reversed and cause remanded with instructions.
KLATT and CONNOR, JJ., concur.