State v. A.S.

2022 Ohio 3833, 199 N.E.3d 994

• Court: Ohio Court of Appeals
• Decided: October 28, 2022
• Docket: C-220259
• Status: Published

Opinion

[Cite as State v. A.S., 2022-Ohio-3833.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220259 TRIAL NO. 18CRB-19780 Plaintiff-Appellee, :

: VS. O P I N I O N. :

A.S., :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 28, 2022

Emily Smart Woerner, Interim City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Rebecca Barnett, Assistant Prosecuting Attorney, for Plaintiff- Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} In 2018, defendant-appellant A.S. entered a guilty plea to one count of

misdemeanor theft. A few years later, in 2021, A.S. sought to seal the record of her

conviction in order to facilitate educational and professional opportunities. Although

the state did not object, the trial court refused to seal the record, relying on arguments

the state never advanced and that run afoul of the record at hand. A.S. now appeals,

asserting in her sole assignment of error that the trial court erred in finding that a

governmental interest outweighed her interest in having the record sealed. We agree,

reverse the judgment of the trial court, and remand this cause with instructions for the

trial court to seal the record.

I.

{¶2} In July 2018, A.S. was charged by criminal complaint with one count of

petty theft in violation of R.C. 2913.02, a first-degree misdemeanor. Her only offense

was switching the price tags on a comforter set at Target, designed to save herself a

little money. In October 2018, after having found A.S. eligible for diversion, the trial

court ordered her to participate for six months in the Hamilton County Diversion

Program established in accordance with R.C. 2935.36. In conjunction with this order,

A.S. entered a guilty plea to the theft offense as charged.

{¶3} In February 2019, on motion by the state, the trial court issued an entry

reinstating A.S.’s case to the court’s active docket following her failure to complete the

diversion program. According to the court’s entry, A.S. had failed to fulfill the

following conditions of the program: attend an N.C.T.I. Critical Thinking Class by

January 2019; pay an administrative fee of $133; complete 60 community-service

hours; and attend monthly meetings. In August 2019, the trial court sentenced A.S. to

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a suspended 180-day jail term and six months of community control. Six months later,

in February 2019, the trial court terminated A.S.’s community control.

{¶4} Three years after her offense, in July 2021, A.S. filed her first application

to seal the record of her theft conviction. The trial court denied the request, but

indicated that it might be open to further requests down the road. A.S. accordingly

filed a second application to seal the record of her conviction in March 2022. This

application, too, was denied by the trial court after a hearing. Although the state did

not object to sealing the record, the trial court concluded that the government’s

interest in maintaining the record as public outweighed A.S.’s interest in sealing the

record. This appeal followed.

II.

{¶5} In her sole assignment of error, A.S. maintains that the trial court erred

in denying her application to seal the record of her misdemeanor theft conviction. “In

Ohio, sealing an individual’s criminal record is an act of grace” created by the state.

State v. R.S., 1st Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172, and C-

210173, 2022-Ohio-1108, ¶ 10. “We review a trial court’s decision to deny an

application to seal records for an abuse of discretion.” State v. McVean, 1st Dist.

Hamilton Nos. C-210459 and C-210460, 2022-Ohio-2753, ¶ 7, citing State v. Sager,

2019-Ohio-135, 131 N.E.3d 335, ¶ 9 (1st Dist.). We will thus not reverse the trial court’s

judgment unless the court has exercised its discretionary judgment over the matter in

an unwarranted way or committed legal error. See Johnson v. Abdullah, 166 Ohio

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶6} Under R.C. 2953.32, which governs a trial court’s decision to grant or

deny an application to seal a record of conviction, an “eligible offender” may apply to

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the sentencing court for the sealing of a criminal record. “A court may grant an

application if the requirements identified by R.C. 2953.32(C)(1) are satisfied.” R.S. at

¶ 10, citing Sager at ¶ 10. After determining whether the applicant is an eligible

offender, R.C. 2953.32(C)(1) requires the trial court to make determinations, including

whether criminal proceedings are pending against the applicant, whether the

applicant has been rehabilitated, and whether the interests of the applicant in having

his or her record sealed outweigh the legitimate needs, if any, of the government.

“After weighing the interests of the applicant and government, the court ‘shall order

all official records of the case’ sealed if the ‘legitimate government needs to maintain

those records’ do not outweigh the applicant’s interest in sealing her records.” R.S. at

¶ 11, quoting R.C. 2932(C)(2).

{¶7} R.C. 2953.32 is a “remedial statute,” R.S. at ¶ 10, that is “construed

liberally to promote [its] purpose and assist the parties in obtaining justice.” State v.

Young, 5th Dist. Morrow No. 2021 CA 0009, 2022-Ohio-593, ¶ 21. The purpose of

sealing a record of conviction is to recognize that people may be rehabilitated. State

v. Petrou, 13 Ohio App.3d 456, 456, 469 N.E.2d 974 (9th Dist.1984). As the Eighth

District aptly explained in State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d

1064 (8th Dist.2001) in reviewing the record-sealing statute,

[P]eople make mistakes, but * * * afterwards they regret their conduct

and are older, wiser and sadder. The enactment and amendment of R.C.

2953.31 and 2953.32 is, in a way, a manifestation of the traditional

Western civilization concepts of sin, punishment, atonement, and

forgiveness. Although rehabilitation is not favored in current penal

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thought, the unarguable fact is that some people do rehabilitate

themselves.

{¶8} Moreover, considering the real-world effects of prior convictions can

help contextualize applicants’ interests in having their records sealed. “The

consequences of ‘a misdemeanor conviction today are real and significant.’ ” R.S., 1st

Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172, and C-210173, 2022-

Ohio-1108, at ¶ 30, quoting City of Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-

Ohio-2673, 953 N.E.2d 278, ¶ 34 (Lundberg Stratton, J., concurring). “A convicted

criminal suffers not only from public penalties but from stigma, the reluctance of

others to interact with him economically and socially.” Commonwealth v. Pon, 469

Mass. 296, 316, 14 N.E.3d 182 (2014), quoting Rasmusen, Stigma and Self-Fulfilling

Expectations of Criminality, 39 J.L. & Econ. 519, Abstract (1996). In addition to the

collateral impacts of a conviction on employment opportunities, individuals with

criminal records face obstacles to accessing housing, higher education, loans, and

credit (which is precisely part of the reason why the legislature provided a sealing

mechanism).

{¶9} Beyond the interests of the applicant herself, the government has an

interest in promoting the positive consequences that can flow from record sealing. For

instance, the government has compelling interests in “reducing recidivism, facilitating

reintegration, and ensuring self-sufficiency by promoting employment and housing

opportunities for former criminal defendants,” all of which are furthered, in

appropriate cases, by record sealing. Pon at 315. “Where there is persuasive evidence

that employers and housing authorities consider criminal history in making decisions,

there is now a fully articulated governmental interest in shielding criminal history

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information from these decision makers where so doing would not cause adverse

consequences to the community at large.” Id.

{¶10} R.C. 2953.32 provides persons with qualifying offenses who have

demonstrated rehabilitation with a second chance, so that they can avoid these

collateral consequences of a criminal record and the associated obstacles to becoming

a thriving and productive member of society. See R.S. at ¶ 10, quoting Sager, 2019-

Ohio-135, 131 N.E.3d 335, at ¶ 9 (“Record sealing provides ‘remedial relief to qualified

offenders in order to facilitate the prompt transition of these individuals into

meaningful and productive roles.’ ”).

{¶11} Turning now to the case at hand, A.S. asserts that the trial court’s

determination that the government’s interest in maintaining her record as public

outweighed her interest in having the record sealed constitutes an abuse of discretion.

On appeal, the state agrees, declining to defend the judgment below.

{¶12} “Under R.C. 2953.32(C)(1)(e), the court must weigh the applicant’s

interest in sealing the applicant’s record against the ‘legitimate needs, if any, of the

government.’ ” (Emphasis added) R.S. at ¶ 26, quoting R.C. 2953.32(C)(1)(e). The

applicant has the burden “of demonstrating that [her] interests in having the records

in the case sealed are at least equal to the legitimate governmental need to maintain

the record.” State v. Haney, 70 Ohio App.3d 135, 139, 590 N.E.2d 445 (10th

Dist.1991). Among other evidence, an applicant can satisfy this burden with

“testimony that [her] conviction has damaged [her] ability to earn a living.” State v.

Shaffer, 11th Dist. Geauga No. 2009-G-2929, 2010-Ohio-6565, ¶ 30.

{¶13} While the trial court concluded that the government’s interest in record

maintenance outweighed A.S.’s interest in having the record sealed, every relevant

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consideration in the record points in the other direction. A.S. has a strong interest in

sealing the record of her conviction. Over the past few years, she has gone from

working in a factory to obtaining employment as a state tested nurse aide. Her new

job has been jeopardized by increasing employer reliance on background checks.

Furthermore, A.S. seeks to obtain further education to become a registered nurse.

However, the Ohio Medical Career College viewed her theft conviction as a potential

barrier to her certification as a nurse, and suggested that it would deny her admission

unless her conviction was sealed. A.S. also has two young daughters to provide for. At

her hearing, A.S. presented a clear showing of economic, career, and family-oriented

interests in having her record sealed.

{¶14} A.S. has had no further contact with the criminal justice system since

her conviction, her conviction was for a misdemeanor, and the stigma of her conviction

may well prevent her from furthering her education or job opportunities. Her case, in

other words, is the quintessential one where we want the individual to be able to

pursue her dreams and benefit the community in the process. Recognizing this, the

state declined to offer any interests whatsoever in response and did not oppose the

sealing of the record. And in fact, the state concedes that “the record reflects that [A.S.]

is seeking that her record be sealed in order to pursue further education and

employment, and thus has a greater interest in sealing the conviction.”

{¶15} The trial determined sua sponte that “there’s a government interest in

maintaining public access, full public open access to court records such as this. In this

case, I think there’s an interest in * * * employers having access to records such as

this.” According to the trial court, the government’s interest is that a petty theft

conviction could be relevant to any line of work involving trust, including A.S.’s pursuit

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of a career in the healthcare field. But the nature of the offense “cannot provide the

sole basis to deny an application.” R.S., 1st Dist. Hamilton Nos. C-210169, C-210170,

C-210171, C-210172, and C-210173, 2022-Ohio-1108, at ¶ 29; State v. M.D., 8th Dist.

Cuyahoga No. 92534, 2009-Ohio-5694, ¶ 22. On these facts, the trial court invoked

no cognizable legitimate government interest to support its decision to deny A.S.’s

application to seal her record. Indeed, its rationale would mean that virtually no one

would ever qualify for sealing their records, which represents the antithesis of

“liberally,” R.S. at ¶ 10, construing the statute. See McVean, 1st Dist. Hamilton Nos.

C-210459 and C-210460, 2022-Ohio-2753, at ¶ 13 (“The state seemed content with

sealing for Mr. McVean, but the trial court refused to accept that outcome, going out

of its way to divine a justification that even the state didn’t seriously advance.”). On

this record, “[t]o deny the sealing of the record in this case, where the government has

not expressed or demonstrated any need to maintain it, is unreasonable and thus an

abuse of discretion.” See State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877

N.E.2d 755, ¶ 7 (1st Dist.); McVean at ¶ 14.

* * *

{¶16} In light of the foregoing analysis, we sustain A.S.’s sole assignment of

error. We reverse the judgment of the trial court and remand this matter to the trial

court with instructions to seal the record of A.S.’s misdemeanor petty theft conviction.

Judgment reversed and cause remanded.

CROUSE and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.