State v. G.F.A.

149 N.E.3d 1071

2019 Ohio 4978

STATE of Ohio, Plaintiff-Appellee,

v.G.F.A., Defendant-Appellant.

No. 108113

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: December 5, 2019

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, A.J.:

{¶ 1} Defendant-appellant, G.F.A., appeals from the trial court's denial of his motion to seal his record. For the reasons set forth below, we reverse and remand.

{¶ 2} In December 2016, G.F.A. was charged with felonious assault and domestic violence. The charges allege that G.F.A. physically assaulted his mother, who was 76 years old at the time. The matter was set for trial on March 27, 2017. Prior to the start of trial, the state dismissed the matter in light of the lack of cooperation of the victim, G.F.A.'s mother. The state also indicated that based on conversations with the mother, the events did not occur as she had reported to the police. The trial court granted the dismissal without prejudice, noting that the "victim [is] not available and has recanted. [G.F.A.] advised to stay away from victim and he agreed. [G.F.A.] is leaving the area for employment elsewhere."

{¶ 3} One year later, in December of 2017, G.F.A. filed a motion to seal his record. The state opposed, and the trial court held a hearing on the matter. At the hearing, defense counsel advised the trial court that the case had been dismissed by the state and G.F.A. hoped to relocate to Florida. The state objected, noting that the case was dismissed because the elderly victim was injured and unable to come to court to testify. The state noted that it would reindict if it received more information. At the conclusion of the hearing, the trial court took the matter under advisement. Thereafter, the court issued a journal entry denying G.F.A.'s motion. The entry stated: "[G.F.A.'s] motion to seal court records denied. Based on the expungement investigation report."

{¶ 4} It is from this order G.F.A. appeals, raising the following two assignments of error for review:

Assignment of Error No. 1

The trial court abused its discretion in denying [G.F.A.'s] motion for expungement as it failed to properly weigh the competing interests in the sealing of [G.F.A.'s] records.

Assignment of Error No. 2

The trial court failed to articulate and create a record for this Court to engage in a meaningful appellate review.

{¶ 5} In the first assignment of error, G.F.A. argues that the trial court failed to properly weigh his interests when it denied his motion to seal his record.

{¶ 6} In State v. C.K. , 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, 2013 WL 6175329, this court explained the standard of review of a ruling on a motion to seal a record of conviction as follows:

In general, a trial court's decision to grant or deny a request to seal records is reviewed under an abuse of discretion standard. In re Fuller , 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673 [2011 WL 6837401], ¶ 7. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. State ex rel. Nese v. State Teachers Retirement Bd. of Ohio , 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 25.

Id. at ¶ 10.

{¶ 7} R.C. 2953.52 sets forth the procedure by which trial courts may seal a defendant's record following a dismissal of the charges. R.C. 2953.53(A)(1) provides that "[a]ny person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person's official records in the case." Once the defendant files the application, "the court shall set a date for a hearing and shall notify the prosecutor in 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 the hearing" and specifying in the objection the reasons the prosecutor believes justify a denial of the application. R.C. 2953.52(B)(1).

{¶ 8} In considering the application, the trial court shall:

(a)(i) Determine whether the person was found not guilty in the case, or the complaint, indictment, or information in the case was dismissed * * *; (ii) If the complaint, indictment, or information in the case was dismissed, determine whether it was dismissed with prejudice or without prejudice and, if it was dismissed without prejudice, determine whether the relevant statute of limitations has expired;

(b) Determine whether criminal proceedings are pending against the person;

(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;

(d) Weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.

R.C. 2953.52(B)(2)(a)-(d).

{¶ 9} If the court determines, after complying with R.C. 2953.52(B)(2), that (1) the complaint, indictment, or information in the case was dismissed; (2) that no criminal proceedings are pending against the person; and (3) that the interest of the person having the records pertaining to the case are not outweighed by any legitimate governmental needs to maintain such records, then "the court shall issue an order directing that all official records pertaining to the case be sealed and that * * * the proceedings in the case be deemed not to have occurred." (Emphasis added.) R.C. 2953.52(B)(4).

{¶ 10} It is the defendant's burden to demonstrate legitimate reasons, as opposed to a general privacy interest, why the records should not remain open to the public. State v. J.D. , 8th Dist. Cuyahoga, 2013-Ohio-4706, 1 N.E.3d 434, ¶ 8, discretionary appeal not allowed , 138 Ohio St.3d 1448, 2014-Ohio-1182, 5 N.E.3d 666 (2014), citing State v. Haney , 70 Ohio App.3d 135, 590 N.E.2d 445 (10th Dist.1991). "Once this burden is met and those needs outweigh the legitimate interests of the state in maintaining the records, the application should be freely granted." Id. , citing State v. Garry , 173 Ohio App.3d 168, 2007-Ohio-4878, 877 N.E.2d 755 (1st Dist.).

{¶ 11} Here, G.F.A. offered the following reasons for sealing his record before the trial court:

[DEFENSE COUNSEL]: This is a matter that had been dismissed. There was a family dispute that resulted in charges of a very serious nature. However, before the case even came to trial, the prosecutor did dismiss it.

There was, in fact, a later indication by the prosecution after that had been taken care of that information would then be presented to ICE authorities as to a 2010 disorderly conduct, an M-4.

So even though the case was dismissed, [G.F.A.] was then contacted by ICE. He did go through interviews with them. They determined that that certainly was no reason to challenge his status here in the United States.

He is seeking a sealing of the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is OPOTA certified for security, believes that he has a line on a job down in that part of the country that would serve not only himself, but this country well in doing security.

And, Judge, so for those reasons, he is an eligible offender and asking for the Court to seal the record of this matter.

(Tr. 6-7).

{¶ 12} The state, on the other hand, contended that:

[e]ven though this was a dismissed case, it was dismissed because the elderly victim was unable to come to court to testify. The elderly victim was injured, and we're objecting.

A dismissal doesn't mean innocence. And the note says that if we get more information, we would reindict.

(Tr. 7-8).

{¶ 13} These reasons are different than the reasons offered by the state before trial. Prior to the start of trial, the state moved to dismiss the case because the victim, G.F.A.'s mother, was uncooperative. The state indicated that based on conversations with the mother, the events did not occur as she had reported to the police. At the hearing to seal G.F.A's record, the state contended that the records should not be sealed because the elderly victim was unable to come to court to testify and made the general argument that a dismissal does not equate to innocence.

{¶ 14} It is G.F.A.'s burden to demonstrate legitimate reasons as to why his record should be sealed, and based on the foregoing, we find that G.F.A. has met his burden. G.F.A.'s application is based on his belief that he will obtain gainful employment in security. Defense counsel stated that G.F.A. "is seeking a sealing of the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is OPOTA certified for security, believes that he has a line on a job down in that part of the country that would serve not only himself, but this country well in doing security." (Tr. 7). The state opposed because the victim did not come to trial and "a dismissal doesn't mean innocence." G.F.A.'s need for employment outweighs the state's general need to maintain the record. R.C. 2953.52(B)(2)(c)-(d). Additionally, it is undisputed that the underlying criminal complaint was dismissed and that no charges were pending against G.F.A. R.C. 2953.52(B)(2)(a)-(b).

{¶ 15} Having met this burden, the trial court should have granted G.F.A.'s application as set forth in R.C. 2953.52(B)(4), which provides that "the court shall issue and order directing that all official records pertaining to the case be sealed" if the complaint was dismissed, no criminal proceedings are pending, and the interest of the person having the records pertaining to the case are not outweighed by any legitimate governmental needs to maintain such records. (Emphasis added.)

{¶ 16} Indeed, R.C. 2953.32 "is to be liberally construed, the relief available is to be liberally granted, and it is an abuse of discretion not to do so." State v. Hilbert , 145 Ohio App.3d 824, 828, 764 N.E.2d 1064 (8th Dist.2001). See State v. Clellan , 10th Dist. Franklin No. 10AP-44, 201...