[Cite as State v. D.P., 2012-Ohio-3281.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellate Case No. 2011-CA-54 Plaintiff-Appellee : : Trial Court Case No. 05-CRB-700 v. : : (Criminal Appeal from Fairborn D.P. : (Municipal Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 20th day of July, 2012.
...........
BETSY A. DEEDS, Atty. Reg. #0076747, Fairborn Municipal Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Allen Brenner, LLC, Post Office Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} D.P. appeals from the trial court’s denial of his motion to seal his record of
conviction pursuant to R.C. 2953.32. [Cite as State v. D.P., 2012-Ohio-3281.] {¶ 2} In his sole assignment of error, D.P. contends the trial court erred in finding
that the State’s interest in keeping the record of conviction unsealed outweighed his interest in
sealing it.
{¶ 3} D.P. was convicted in November 2005 on one count of using a weapon while
intoxicated in violation of R.C. 2923.15(A), a first-degree misdemeanor.1 (Doc. #22). The
incident involved police stopping D.P.’s car and finding a loaded handgun in the center
console. Police had made the stop after receiving a report from D.P.’s wife that he was
suicidal. (Doc. #3). D.P. received probation for the offense. His probation later was
administratively terminated. (Doc. #23). D.P. also was charged with felony carrying a
concealed weapon based on the same incident. He received intervention in lieu of conviction
and successfully completed it. (Tr. at 8-10).
{¶ 4} In September 2010, D.P. moved to have the misdemeanor conviction sealed.
The trial court held an August 23, 2011 hearing on the motion. The sole witness was D.P., a
retired civilian engineer at Wright-Patterson Air Force Base. D.P.’s testimony established that
he had a prior history of alcohol abuse, depression, and suicide attempts. At the time of the
hearing, D.P. was being treated for depression and attended Alcoholics Anonymous meetings.
(Tr. at 11-14). D.P. testified that he had not consumed any alcohol since October 1, 2009. (Id.
at 12). He also testified that he had not had any contact with police since October 2009. (Id. at
16-17).
{¶ 5} D.P. explained that he wanted his misdemeanor conviction sealed because it
interfered with his ability to obtain an adjunct teaching position at Wright State University.
1 R.C. 2923.15(A), which is titled “Using Weapons While Intoxicated,” provides: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.” 3
D.P. testified that he “unofficially” had been offered such a position. He did not pursue the
opportunity, however, “because [he] knew that the minute [the] personnel department ran a
background check on [him], that would not only be the end of that offer but the end of any
possibility of teaching at Wright State.” (Id. at 19-20). D.P. added that he “would be hard
pressed to think of a job [he] could get with a conviction like that.” (Id. at 20).
{¶ 6} On cross-examination, D.P. provided more details about what had occurred on
October 1, 2009, which was the last time that he had consumed alcohol. He acknowledged that
police were called to his home on that occasion and that he was hospitalized. (Id. at 21). D.P.
also acknowledged that police had been called to his house “quite a few times” after he
completed his probation in the underlying case. (Id. at 21-22). He did not dispute that police
had been called to his house seven times in 2007 and at least “several times” in 2008. (Id. at
23). The prosecutor then questioned D.P. about an incident on January 29, 2008, when he
allegedly pointed his hand at medics, as if he were holding a gun, and said “boom.” D.P.
testified that he did not recall the incident. (Id. at 23-24).
{¶ 7} During closing arguments, the trial court questioned whether sealing D.P.’s
misdemeanor conviction would help him obtain a teaching job. The trial court opined that
“education is one area that’s an exception; they would still have access to this, I believe,
regardless of what I would do.” (Id. at 27-28). Defense counsel disagreed, explaining that the
exception did not apply “in the college setting.” (Id. at 28). In any event, defense counsel
asserted that the conviction would harm D.P.’s job prospects in other fields too. (Id.). For its
part, the State responded that it had a legitimate interest in keeping the conviction public to
protect any law enforcement or medical personnel who might interact with D.P. in the future. 4
The State argued that such people should be “aware that he has a history of weapons and being
under the influence of alcohol.” (Id. at 30).
{¶ 8} After hearing the parties’ arguments, the trial court denied D.P.’s motion. It
reasoned:
* * * I’ve reviewed the documents provided by [D.P.]
which demonstrate the history of alcoholism as well as
depression and suicide attempts, including one with a butter
knife in January of ‘08.
There are not any further incidents since October of
‘09—there was actually, subsequent to October 1st, October 9th,
which may have more to do with the theft, potential theft than
anything else.
Having said that, when I weigh everything and weigh the
government’s interest in maintaining the records, to [D.P.’s]
interest in having the record sealed, given the history, I still find
in favor that the State has an interest that outweighs [D.P’s]
interest.
(Id. at 31).
{¶ 9} When considering a motion to seal a criminal conviction, a trial court must
weigh “the interests of the applicant in having the records pertaining to the applicant’s
conviction sealed against the legitimate needs, if any, of the government to maintain those
records.” R.C. 2953.32(C)(1)(e). A trial court’s weighing of the competing interests is subject 5
to review for an abuse of discretion. State v. Webb, 2d Dist. Montgomery No. 24866,
2012-Ohio-2962, ¶ 14.
{¶ 10} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248 (1985). Most instances of abuse of discretion will result in decisions that are
unreasonable rather unconscionable or arbitrary. State v. Cunningham, 2d Dist. Clark No.
10-CA-57, 2012-Ohio-2794, ¶ 47. A decision is unreasonable if no sound reasoning process
supports it. Id. “‘It is not enough that the reviewing court, were it deciding the issue de novo,
would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result.’” Id., quoting AAAA
Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990).
{¶ 11} Having reviewed the record, we find no abuse of discretion in the trial court’s
denial of D.P.’s motion. D.P. has a history of alcohol problems, depression, and some suicidal
tendencies. The record also reflects a history of emergency personnel being called to D.P.’s
home.
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[Cite as State v. D.P., 2012-Ohio-3281.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellate Case No. 2011-CA-54 Plaintiff-Appellee : : Trial Court Case No. 05-CRB-700 v. : : (Criminal Appeal from Fairborn D.P. : (Municipal Court) : Defendant-Appellant : : ...........
OPINION
Rendered on the 20th day of July, 2012.
...........
BETSY A. DEEDS, Atty. Reg. #0076747, Fairborn Municipal Prosecutor’s Office, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Allen Brenner, LLC, Post Office Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} D.P. appeals from the trial court’s denial of his motion to seal his record of
conviction pursuant to R.C. 2953.32. [Cite as State v. D.P., 2012-Ohio-3281.] {¶ 2} In his sole assignment of error, D.P. contends the trial court erred in finding
that the State’s interest in keeping the record of conviction unsealed outweighed his interest in
sealing it.
{¶ 3} D.P. was convicted in November 2005 on one count of using a weapon while
intoxicated in violation of R.C. 2923.15(A), a first-degree misdemeanor.1 (Doc. #22). The
incident involved police stopping D.P.’s car and finding a loaded handgun in the center
console. Police had made the stop after receiving a report from D.P.’s wife that he was
suicidal. (Doc. #3). D.P. received probation for the offense. His probation later was
administratively terminated. (Doc. #23). D.P. also was charged with felony carrying a
concealed weapon based on the same incident. He received intervention in lieu of conviction
and successfully completed it. (Tr. at 8-10).
{¶ 4} In September 2010, D.P. moved to have the misdemeanor conviction sealed.
The trial court held an August 23, 2011 hearing on the motion. The sole witness was D.P., a
retired civilian engineer at Wright-Patterson Air Force Base. D.P.’s testimony established that
he had a prior history of alcohol abuse, depression, and suicide attempts. At the time of the
hearing, D.P. was being treated for depression and attended Alcoholics Anonymous meetings.
(Tr. at 11-14). D.P. testified that he had not consumed any alcohol since October 1, 2009. (Id.
at 12). He also testified that he had not had any contact with police since October 2009. (Id. at
16-17).
{¶ 5} D.P. explained that he wanted his misdemeanor conviction sealed because it
interfered with his ability to obtain an adjunct teaching position at Wright State University.
1 R.C. 2923.15(A), which is titled “Using Weapons While Intoxicated,” provides: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.” 3
D.P. testified that he “unofficially” had been offered such a position. He did not pursue the
opportunity, however, “because [he] knew that the minute [the] personnel department ran a
background check on [him], that would not only be the end of that offer but the end of any
possibility of teaching at Wright State.” (Id. at 19-20). D.P. added that he “would be hard
pressed to think of a job [he] could get with a conviction like that.” (Id. at 20).
{¶ 6} On cross-examination, D.P. provided more details about what had occurred on
October 1, 2009, which was the last time that he had consumed alcohol. He acknowledged that
police were called to his home on that occasion and that he was hospitalized. (Id. at 21). D.P.
also acknowledged that police had been called to his house “quite a few times” after he
completed his probation in the underlying case. (Id. at 21-22). He did not dispute that police
had been called to his house seven times in 2007 and at least “several times” in 2008. (Id. at
23). The prosecutor then questioned D.P. about an incident on January 29, 2008, when he
allegedly pointed his hand at medics, as if he were holding a gun, and said “boom.” D.P.
testified that he did not recall the incident. (Id. at 23-24).
{¶ 7} During closing arguments, the trial court questioned whether sealing D.P.’s
misdemeanor conviction would help him obtain a teaching job. The trial court opined that
“education is one area that’s an exception; they would still have access to this, I believe,
regardless of what I would do.” (Id. at 27-28). Defense counsel disagreed, explaining that the
exception did not apply “in the college setting.” (Id. at 28). In any event, defense counsel
asserted that the conviction would harm D.P.’s job prospects in other fields too. (Id.). For its
part, the State responded that it had a legitimate interest in keeping the conviction public to
protect any law enforcement or medical personnel who might interact with D.P. in the future. 4
The State argued that such people should be “aware that he has a history of weapons and being
under the influence of alcohol.” (Id. at 30).
{¶ 8} After hearing the parties’ arguments, the trial court denied D.P.’s motion. It
reasoned:
* * * I’ve reviewed the documents provided by [D.P.]
which demonstrate the history of alcoholism as well as
depression and suicide attempts, including one with a butter
knife in January of ‘08.
There are not any further incidents since October of
‘09—there was actually, subsequent to October 1st, October 9th,
which may have more to do with the theft, potential theft than
anything else.
Having said that, when I weigh everything and weigh the
government’s interest in maintaining the records, to [D.P.’s]
interest in having the record sealed, given the history, I still find
in favor that the State has an interest that outweighs [D.P’s]
interest.
(Id. at 31).
{¶ 9} When considering a motion to seal a criminal conviction, a trial court must
weigh “the interests of the applicant in having the records pertaining to the applicant’s
conviction sealed against the legitimate needs, if any, of the government to maintain those
records.” R.C. 2953.32(C)(1)(e). A trial court’s weighing of the competing interests is subject 5
to review for an abuse of discretion. State v. Webb, 2d Dist. Montgomery No. 24866,
2012-Ohio-2962, ¶ 14.
{¶ 10} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248 (1985). Most instances of abuse of discretion will result in decisions that are
unreasonable rather unconscionable or arbitrary. State v. Cunningham, 2d Dist. Clark No.
10-CA-57, 2012-Ohio-2794, ¶ 47. A decision is unreasonable if no sound reasoning process
supports it. Id. “‘It is not enough that the reviewing court, were it deciding the issue de novo,
would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result.’” Id., quoting AAAA
Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,
161, 553 N.E.2d 597 (1990).
{¶ 11} Having reviewed the record, we find no abuse of discretion in the trial court’s
denial of D.P.’s motion. D.P. has a history of alcohol problems, depression, and some suicidal
tendencies. The record also reflects a history of emergency personnel being called to D.P.’s
home. The last of these incidents occurred on October 1, 2009, which was less than two years
before the hearing on the motion to seal his record. Although he no longer drank at the time of
the hearing and was receiving treatment for depression, D.P.’s problems were recent enough
for the trial court reasonably to conclude, for public-safety reasons, that the State had a
legitimate interest in maintaining a record of his misdemeanor firearm conviction. The trial
court also reasonably could find that this interest outweighed D.P.’s interest in improving his
chances of obtaining an adjunct position or another job. Although D.P. asserted below that his 6
misdemeanor conviction rendered him virtually unemployable, the record contains no
evidence supporting that claim. As set forth above, D.P. is retired. The only job he sought was
the adjunct teaching position, and he failed to follow through with it. In any event, even if his
misdemeanor conviction will prevent D.P. from teaching part time, we cannot say the trial
court abused its discretion in denying his motion.
{¶ 12} In opposition to the foregoing conclusion, D.P. contends the trial court
mistakenly minimized his interest in sealing his conviction by expressing its belief that
educational institutions have access to sealed criminal records. D.P. claims this is not true with
respect to employment at a university, as opposed to an elementary or secondary school. D.P.
also argues that the trial court erroneously based it decision on a highly speculative possibility
that he might relapse.
{¶ 13} During closing argument, defense counsel addressed the trial court’s assertion
that educational institutions have access to sealed records. Counsel specifically informed the
trial court that Wright State University would not have access to D.P.’s record if it were
sealed. The trial court did not state or imply otherwise in its decision denying sealing.
Therefore, we do not find that the trial court erroneously minimized D.P.’s interest in sealing
his record. Finally, the trial court’s concern about D.P. relapsing was not so speculative as to
constitute an abuse of discretion. As set forth above, D.P. had been sober and stable for less
than two years at the time of the hearing. Despite his progress, the trial court did not act
unreasonably in expressing concern about the possibility of a relapse.
{¶ 14} Based on the reasoning set forth above, we overrule D.P.’s assignment of error
and affirm the judgment of the Fairborn Municipal Court. [Cite as State v. D.P., 2012-Ohio-3281.] .............
FAIN and DONOVAN, JJ., concur.
Copies mailed to:
Betsy A. Deeds Robert A. Brenner Hon. Beth W. Root