State v. C.W.D.

2020 Ohio 4463, 158 N.E.3d 951

• Court: Ohio Court of Appeals
• Decided: September 17, 2020
• Docket: 108800
• Status: Published

Opinion

[Cite as State v. C.W.D., 2020-Ohio-4463.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108800 v. :

C.W.D., JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 17, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-94-313126-A, CR-96-340894-A, CR-96-346105-B, and CR-97-349021-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha L. Forchione, Assistant Prosecuting Attorney, for appellee.

Kenneth A. Nelson, for appellant.

MARY EILEEN KILBANE, J.:

Defendant-appellant, C.W.D., Jr., appeals the decision of the trial

court denying his application to seal criminal records. For the following reasons, we

affirm the decision of the trial court. Background

On July 11, 1994, C.W.D., Jr. was charged with Count 1, receiving

stolen property (motor vehicle), a third-degree felony in violation of R.C. 2913.52,

and Count 2, possessing criminal tools, a fifth-degree felony in violation of R.C.

2923.24.

On September 30, 1994, the state of Ohio (“the state”) amended

Count 1 for receiving stolen property to a fourth-degree felony. C.W.D., Jr.

subsequently pled guilty to the amended receiving stolen property charge and Count

2, possessing criminal tools, was dismissed. The court ordered C.W.D., Jr. to

complete one year of probation.

On March 4, 2019, C.W.D., Jr. filed a motion to seal his record in the

above case, case no. CR-94-313126, pursuant to R.C. 2953.32. In addition, C.W.D.,

Jr. filed motions to seal the record for three other felony convictions:

Case no. CR-96-340894: C.W.D., Jr. pled guilty to attempted theft of a motor vehicle, a fourth-degree felony in violation of R.C. 2923.02.

Case no. CR-96-346105: C.W.D., Jr. pled guilty to trafficking in drugs, a fourth-degree felony in violation of R.C. 2925.03.

Case no. CR-97-349021: C.W.D., Jr. pled guilty to attempted grand theft of a motor vehicle, a fifth-degree felony in violation of R.C. 2923.02.

In addition to the four convictions C.W.D., Jr. requested sealed,

C.W.D., Jr. has four additional convictions:

Case no. 1994CRB033723: On December 12, 1994, C.W.D., Jr. pled guilty to compounding a crime, a fourth-degree misdemeanor in violation of R.C. 2921.21. Lee County, Florida case no. 02-MM-012575: On December 11, 2002, C.W.D., Jr. pled guilty to failure to register as a felony offender, a second-degree misdemeanor.

Case no. 2002CRB006073: On November 22, 2004, C.W.D., Jr. pled guilty to domestic violence, a first-degree misdemeanor in violation of R.C. 2919.25.

Case no. 2009CRB016857: On June 5, 2009, C.W.D., Jr. pled guilty to noise in motor vehicles, a fourth-degree misdemeanor in violation of Cleveland City ordinance 683.02.

All told, C.W.D., Jr. has eight convictions.

On April 23, 2019, the state filed a brief in opposition to C.W.D., Jr.’s

motions. The state argued that C.W.D., Jr. was ineligible under R.C.

2953.31(A)(1)(a) and 2953.31(A)(1)(b).

On June 17, 2019, the trial court held a hearing and denied C.W.D.,

Jr.’s motions to seal his records, finding that he was not an eligible offender. C.W.D.,

Jr. appeals, presenting a single assignment of error.

Assignment of Error

Whether the [t]rial [c]ourt erred by denying [a]ppellant’s [a]pplication for [e]xpungement contrary to law and violated his right to due process[?]

Expungement eligibility

We review the trial court’s denial of C.W.D., Jr.’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

court denied C.W.D., Jr.’s applications on the basis that he was an ineligible

offender, we review the trial courts’ decisions de novo.

To be “eligible” for sealing, an offender must qualify under either

subsection (a) or (b) of R.C. 2953.31(A)(1).

Subsection (a) states that an “eligible offender” is:

anyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense.

C.W.D., Jr. argues that he is eligible under subsection (a) because he

is only applying to have his four felonies sealed, all of which are “felonies of the

fourth or fifth degree” and none of which “are an offense of violence or a felony sex

offense.” He acknowledges that he has a misdemeanor conviction for an offense of

violence, but suggests that conviction does not disqualify him because he is not

asking for that record to be sealed. Essentially, C.W.D., Jr. is arguing that subsection

(a) is used only to determine whether an offense is eligible to be sealed, and not

whether the person themselves is eligible. Unfortunately, his argument is not in line

with the statute; “eligible offender” does not mean “eligible offense.” Subsection (a) determines whether a person is an “eligible offender”

based on the number and type of convictions that person has; the number or type of

convictions that a person would like sealed is immaterial to the eligibility question.

As sympathetic as we are to C.W.D., Jr.’s request to seal decades old felony

convictions, a person is not eligible under subsection (a) if they have an offense of

violence conviction on their record.

We have not addressed this particular argument before, but we find a

prior decision instructive. In State v. D.D.G., 2019-Ohio-4982, 136 N.E.3d 1271 (8th

Dist.). D.D.G. only applied to have one fourth- degree felony and two fourth-degree

felonies expunged. However, he also had a third-degree felony on his record. Even

though he was not asking the court to seal his conviction record for the third-degree

felony, the language of subsection (a) clearly indicated that a person with a third-

degree felony is not an eligible offender. Likewise, C.W.D., Jr., even though he only

wants to seal his felony convictions is categorically barred by subsection (a) because

of his misdemeanor conviction for an offense of violence.

He is also not an eligible offender under subsection (b).

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. C.W.D., Jr. has four felony convictions and four misdemeanor

convictions meaning that he does not qualify under any of the provisions of

subsection (b).

We note that C.W.D., Jr. also alleged a due process violation in his

assignment of error. However he has not offered any argument as to how his due

process rights were violated, and only discussed the court’s potential abuse of

discretion as to the record sealing. This does not satisfy appellant’s obligation under

App.R. 16(A)(7).

An appellate court is not obliged to construct or develop arguments

to support a defendant’s assignment of error and “will not ‘guess at undeveloped

claims on appeal.’” See, e.g., State v. Piatt, 9th Dist. Wayne No. 19AP0023, 2020-

Ohio-1177, ¶ 39, quoting McPherson v. Goodyear Tire & Rubber Co., 9th Dist.

Summit No. 21499, 2003-Ohio-7190, ¶ 31; see also State v. Collins, 8th Dist.

Cuyahoga No. 89668, 2008-Ohio-2363, ¶ 91 (“‘[I]t is not the duty of this Court to

develop an argument in support of an assignment of error if none exists.’”), quoting

State v. Franklin, 9th Dist. Summit No. 22771, 2006-Ohio-4569, ¶ 19; App.R.

12(A)(2).

Finding that C.W.D., Jr. is not an eligible offender, we affirm the

decision of the trial court.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to said 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 EILEEN KILBANE, JUDGE

RAYMOND C. HEADEN, J., CONCURS; PATRICIA ANN BLACKMON, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

PATRICIA ANN BLACKMON, P.J., CONCURRING IN JUDGMENT ONLY:

I respectfully concur in judgment only. I recognize that expungement

is determined as a matter of law and in accordance with the provisions of R.C.

2953.31 et seq., and that this court is constrained to apply the terms of the law as

written. Yet, I am troubled by the application of the law here where the granting of

a fresh start appears to be warranted.

Plainly, “[a] criminal record can make finding employment, obtaining

housing, enrolling in and funding your education, and securing other opportunities

very difficult.” See Fresh Start Expungement Clinic - Hamilton County Public

Defender, available at http;// www.hamiltoncountypd.org › page=fresh-start-2

(accessed Aug. 20, 2020).

Senate Bill 66, effective October 29, 2018, was amended to expand

eligibility and presently permits expungement where the applicant has committed unlimited misdemeanors and up to five fourth- or fifth-degree felonies, so long as

the offenses are not sex offenses or offenses of violence.

In enacting the expungement provisions, the legislature recognized

that “‘[p]eople make mistakes, but that 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.’” State v. M.D., 8th Dist. Cuyahoga

No. 92534, 2009-Ohio-5694, ¶ 8, quoting State v. Boddie, 170 Ohio App.3d 590,

2007-Ohio-626, 868 N.E.2d 699, ¶ 8 (8th Dist.). The provisions of R.C. 2953.31 et

seq. are remedial in nature. State v. Bissantz, 30 Ohio St.3d 120, 121, 507 N.E.2d

1117 (1987); State v. Hartup, 126 Ohio App.3d 768, 773, 711 N.E.2d 315 (8th

Dist.1998). They must be liberally construed to promote their purposes. State ex

rel. Gains v. Rossi, 86 Ohio St.3d 620, 1999-Ohio-213, 716 N.E.2d 204.

Thus, the purpose is broad, yet the eligibility definitions are, on their

face, are somewhat limited and inflexible. In my view, this creates an anomaly

within the statute itself that the General Assembly should address. Moreover, I

believe that this case highlights the need to vest trial courts with a measure of

discretion in order to balance the interest of the applicant, the appropriateness of a

fresh start, and the legitimate need of the government to maintain records. We as a

society have vested too much time in criminalization and way too little time on

rehabilitation. History will define what the correct course of action should have

been.