State v. H.M.State v. H.M.
BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: July 26, 2018
Michael C. O’Malley Cuyahoga County Prosecutor BY: Diane Smilanick Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Roger M. Synenberg Clare Moran Synenberg & Associates 55 Public Square, Suite 1200 Cleveland, Ohio 44113
{¶1} This cause came to be heard uрon the accelerated calendar pursuant to
I. Factual and Procedural History
{¶2} Appellee, an attorney, was indicted on one count of attempted bribery, a fourth-degree felony, in violation of
{¶3} On November 13, 2013, as part of a plea agreement,1 appellee pled no contest to obstructing official business, a second-degree misdemeanor, in violation of
{¶4} On November 20, 2015, appellee filed an application to seal all official recоrds of his conviction in this matter. The state filed a response brief in opposition to appellee’s application. Appellee had previously completed all of his sentencing orders, including payment of his fine and court costs as of November 25, 2013. Appellee also completed his community serviсe orders prior to the termination of his three-month community control period. Appellee was also terminated from community control on January 31, 2014.
{¶5} Having filed his application to seal on November 20, 2015, the trial court held a hearing on appellee’s motion on November 1, 2017. At the hearing, the trial court heard arguments by appellee in support of his motion and arguments in opposition by the state. The court ultimately granted the application and sealed appellee’s record of the conviction. The state then filed the instant appeal raising two assignments of error for review:
I. The trial court abused its discretiоn when it granted H.M.’s application to seal all official records because that decision failed to properly weigh the competing interests involved and is not supported in the record.
II. The trial court failed to articulate and create a record for this court to engage in a meaningful appellate review.
II. Law and Analysis
{¶6} In the state’s first assignment of error, the state argues that the trial court abused its discretion when it granted appellee’s application. In particular, the state argues that the trial court failed to properly weigh the competing interests involved and thus the trial court’s decision
A. Weighing Competing Interests
{¶7} In State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, this court explained the standard of review of a ruling on an application to seal a conviction as follows:
Generally, a trial court’s decision to grant or deny a motion to seal records filed pursuant to
R.C. 2953.52 is reviewed for an abuse of discretion. State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. * * * However, the applicability ofR.C. 2953.36 to an applicant’s conviction is a question of law that this court reviews de novo. State v. M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 15, citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.
Id. at ¶ 7. Thus, as the state contests the trial court’s decision to grant appellee’s application, we review the trial court’s decision for an abuse of discretion.
{¶8} Under
{¶9} The Ohio Supreme Court has held thаt an “‘[e]xpungement is an act of grace created by the state,’ and so [it] is a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). “Moreover, the government possesses a substantial interest in ensuring that expungement is granted only to those who are eligible.” Hamilton at 640.
{¶10} To protect that substantial interest, the statute authorizing expungement mandates that there first be a hearing with notice to the state.
[u]pon the filing of the application, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for hearing.
{¶11} A trial court commits error by ruling on a motion for expungement filed pursuant to
{¶12} Pursuant to
{¶13} As this court has previously noted, the expungement “hearing is not adversarial and the objective of the expungement hearing is to gather information.” State v. T.S., 8th Dist. Cuyahoga No. 102648, 2017-Ohio-7395, ¶ 15, citing Simon, 87 Ohio St.3d at 533, 721 N.E.2d 1041.
{¶14} As noted above, we review a trial court’s decision to grant or deny an expungement motion pursuant to
{¶15} In the instant case, the state argues that the needs of the government to maintain appellee’s record outweighed his interest in having his record sealed. The state further argues that the trial court did not articulate its reasons for granting appellee’s application to seal. We note that in making its determination whether to grant or deny the application, the trial court shall “[i]f the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection.” (Emphasis added.)
{¶16} First, the state assumes that the trial court is mandated to articulate its specific reasons for granting the expungement either on the record or within the journal entry. In our review of the relevant statutes and appliсable case law, we note that if the prosecutor has filed an objection, the trial court is required to consider the reasons against granting the application. See
[a]nd the [c]ourt does take seriously this offense. That’s why I didn’t grant [appellee’s application] in the first place. And it’s been held here and continued in abeyance. But I think — I think the time has come * * * it’s been almost three years that it’s been on the board.
(Tr. 5.)
{¶17} We further note that the trial court held the expungement application in abeyance, for nearly two years, thus demonstrating that it diligently and thoroughly considered the reasons against granting the application. Appellee’s expungement application was filed on November 20, 2015. The Cuyahoga County Probation Department drafted an expungement investigation report on December 17, 2015. The state then filed its opposition on January 8, 2016. The trial court then held the expungement application in abeyance and held a hearing on November 1, 2017. Undeniably, holding the application in abeyance for such a lengthy amount of time allowed the trial court to further collect information and consider the state’s objections against granting the application. T.S., 8th Dist. Cuyahoga No. 102648, 2017-Ohio-7395, at ¶ 15. We find that this is not the case where the trial court failed to offer any reason in support of its ruling. See State v. M.D., 8th Dist. Cuyahoga No. 92534, 2009-Ohio-5694, ¶ 21 (where this сourt noted that since the trial court offered no reasons for its denial we found that the trial court abused its discretion and reversed the trial court’s denial of the expungement motion).
{¶18} Accordingly, the trial court did not abuse its discretion in granting appellee’s application to seal his conviction. The state’s first assignment of error is overruled.
B. Creating a Record for Appellate Review
{¶20} We first notе that to the extent the state argues the trial court was required to make specific findings pursuant to
- The court shall do each of the following:
- Determine whether the applicant is an eligible offender * * *;
- Determine whether criminal proceedings are pending against the applicant;
- If the applicant is an eligible offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;
- If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
- Weigh the interests of the applicant in having the records pertaining to the applicant’s conviction or bail forfeiture sealed against the legitimate needs, if any, of the government to maintain those records.
{¶21} In our review of appellee’s application hearing transcript, and giving due consideration that trial courts are “to promote the legislative purpose of allowing expungements,” we find that the trial court gave the requisite consideration to the above statutory factors. See State v. M.H., 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, ¶ 22 (where we reversed a trial court’s denial of аn expungement motion because the trial court only gave consideration to the “nature of the offense” and did not consider the other statutory factors within
{¶22} Accordingly, the state’s second assignment of error is overruled.
III. Conclusion
{¶23} In our review of the reсord in its entirety, we find that the trial court did not abuse its discretion in granting appellee’s application to seal. Appellee is an eligible offender, and the trial court did not abuse its discretion in granting his application to seal the records of his criminal conviction.
{¶24} Judgment affirmed.
It is ordered that appellee recovеr of said 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 tо Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., CONCURS; KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION
{¶25} I write separately to express that if the state does not offer the trial court any legitimate reasons to deny the application, the trial court cannot make any findings when weighing the interests of the applicant and the state.
{¶27} In this case, the state has failed to set forth any legitimate government need to maintain these records. The state objected to the applicant’s request because (1) the nature and circumstances of the case, (2) sealing of the records will not aid the applicant because his conduct is still discoverable by other means, (3) a disсiplinary case was still pending, and (4) a permanent record of his “disgraceful conduct” must be maintained.
{¶28} By the time the evidentiary hearing was conducted, the applicant’s disciplinary case was resolved. Moreover, the nature of the case cannot provide the sole basis to deny an applicatiоn to seal the record of conviction. State v. Reiner, 8th Dist. Cuyahoga No. 103775, 2016-Ohio-5520, ¶ 15. Finally, whether or not the sealing of the record of conviction will aid the applicant in the future is not of the state’s concern. As pointed out by the state and recognized by the trial court, whether or not appellee’s record is sealed, copious records with the Ohio Supreme Court and other unsealed and discoverable records exist revealing appellee’s conduct. Accordingly, a permanent record exists regardless if the trial court granted the motion to seal the record of conviction.
{¶29} Contrary to the state’s assertion, the record provides meaningful appellate review. The state did not set forth any legitimate government need or reasons to deny the application and maintain the records, other than the nature of the case. Accordingly, the trial court cannot be required to make any findings when the state offers no legitimate reasons for the trial court to