[Cite as State v. Hair, 2020-Ohio-3128.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-73 : v. : Trial Court Case No. TRC1703925 : CHRISTOPHER G. HAIR : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 29th day of May, 2020.
MICHAEL A. MAYER, Atty. Reg. No. 0064079, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
CHRISTOPHER G. HAIR, 914 Norwood Avenue, Toledo, Ohio 43607 Defendant-Appellant, Pro Se
.............
DONOVAN, J. -2-
{¶ 1} Defendant-appellant Christopher G. Hair, pro se, appeals an order of the
Fairborn Municipal Court denying his motion to seal the record of a dismissal of a charge
against him and his motion to terminate his administrative license suspension. Hair filed
a timely notice of appeal on November 26, 2019.
{¶ 2} On April 3, 2017, Hair was arrested and charged with operating a motor
vehicle under the influence of drugs and/or alcohol (“OVI”) in violation of R.C. 4511.19(A),
a misdemeanor of the first degree. In addition to the OVI charge, an administrative
license suspension (“ALS”) was imposed pursuant to R.C. 4511.191(C), since Hair
refused to submit to a breathalyzer exam after he completed the field sobriety tests
administered by the arresting officer. On April 4, 2017, Hair appeared before the
magistrate and pled not guilty to the OVI. On June 7, 2017, Hair filed a motion for driving
privileges in order to drive to and from work and attend job interviews. The magistrate
granted Hair’s motion for driving privileges on the same day.
{¶ 3} On September 12, 2017, the State made an oral motion to dismiss the OVI
and to be allowed to refile the matter with an amended charge of failure to maintain
physical control. In an entry filed the same day, the trial court granted the motion and
dismissed the OVI charge without prejudice.1
{¶ 4} Approximately ten months later on June 14, 2018, Hair filed a pro se motion
to dismiss his ALS. On July 24, 2018, the magistrate issued a decision recommending
that Hair’s motion to dismiss the ALS be overruled as untimely because he failed to appeal
1 In Fairborn M.C. No. CRB1700615, Hair was charged with an open container violation. That case was also dismissed without prejudice on September 12, 2017, at the State’s request. The dismissal entry listed both the instant case, TRC1703925, and CRB1700615. -3-
the ALS within 30 days of the suspension. We note that an ALS goes into effect
immediately upon an offender’s refusal to submit to testing. R.C. 4511.192(D)(1)(a). The
record clearly establishes that Hair’s motion to dismiss the ALS was filed well outside the
30-day statutory time limit. On July 26, 2018, the trial court adopted the decision of the
magistrate in its entirety and overruled Hair’s motion to dismiss as untimely.
{¶ 5} Approximately seven months later on February 22, 2019, Hair filed an
application for an order sealing the record regarding the dismissed OVI and the ALS,
which was then still in effect. In a judgment entry filed on March 22, 2019, the trial court
overruled Hair’s application to seal the record of the dismissed OVI and his ALS.
Specifically, the trial court found that, pursuant to R.C. 2953.36(B), neither a violation of
R.C. 4511.19(A)(1)(a) nor an ALS was a sealable offense. On May 20, 2019, Hair filed
a notice of appeal of the trial court’s decision, which we dismissed as untimely. See State
v. Hair, 2d Dist. Greene No. 2019-CA-27 (August 28, 2019 Decision & Entry).
{¶ 6} On August 30, 2019, Hair filed a second application to seal the record of his
dismissed OVI and still-active ALS. The trial court overruled Hair’s second application
on November 1, 2019, basing its decision on the law of the case doctrine. Hair filed a
timely notice of appeal on November 26, 2019.
{¶ 7} Hair’s first assignment of error is a follows:
FAIRBORN MUNICIPAL COURT ERRED IN ITS CONCLUSION OF LAW
AGAINST THE MANIFEST WEIGHT OF [THE] EVIDENCE WHEN THE
COURT DECIDED TO UPHOLD AN [sic] PREJUDICIAL ERROR OF
INAPPLICABLE STATUTE.
{¶ 8} In his first assignment, Hair contends that the trial court erred when it -4-
overruled his second application to seal the record of the dismissed OVI and the ALS
because it relied upon the wrong statute in its initial entry denying his request.
Specifically, Hair argues that R.C. 2953.36 was not the applicable statute because his
case involved a dismissal of his OVI and not a conviction under R.C. 4511.19.
{¶ 9} Although not raised by the State, we note that res judicata does not bar a
successive application to seal the record where there is a showing of changed or new
circumstances. See State v. Cope, 111 Ohio App.3d 309, 311-312, 676 N.E.2d 141 (1st
Dist.1996), abrogated on other grounds by State v. Boykin, 138 Ohio St.3d 97, 2013-
Ohio-4582, 4 N.E.3d 980. Nevertheless, not having so objected in the trial court
proceeding regarding Hair’s successive application to seal the record, the State has
forfeited its right to argue res judicata on appeal. State v. Rojas, 180 Ohio App.3d 52,
2008-Ohio-6339, 904 N.E.2d 541, ¶ 12 (2d Dist.).
{¶ 10} The purpose of expungement, or sealing a record of conviction, is to
recognize that people may be rehabilitated. State v. Petrou, 13 Ohio App.3d 456, 469
N.E.2d 974 (9th Dist.1984). Sealing of a criminal record is an “act of grace created by
the state.” State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 12,
quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). It should be
granted only when all requirements for eligibility are met, because it is a “privilege, not a
right.” State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.
{¶ 11} Generally, an appellate court reviews a trial court's decision regarding a
motion to seal the record under an abuse of discretion standard. State v. Pierce, 10th
Dist. Franklin No. 06AP-931, 2007-Ohio-1708, ¶ 5. The term abuse of discretion is used
to indicate that the trial court's attitude was unreasonable, arbitrary or unconscionable. -5-
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However,
where the dispute as to the sealing of a record involves purely a legal question, our
standard of review is de novo. Futrall at ¶ 6-7.
{¶ 12} As previously stated, when it overruled Hair’s second application to seal the
record of the dismissed OVI and still-active ALS, the court relied upon the law of the case
doctrine. Notably, the trial court applied the incorrect statute when it overruled Hair’s first
application to seal the record regarding the dismissed OVI; it relied on R.C. 2953.36,
which pertains to convictions. However, the merits of the first application to seal are not
before this Court now. Hair failed to pursue an appeal of that decision, and his argument
regarding the application of an incorrect statute is not properly before us.
{¶ 13} Nevertheless, the trial court should have relied upon R.C. 2953.52 when it
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[Cite as State v. Hair, 2020-Ohio-3128.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-73 : v. : Trial Court Case No. TRC1703925 : CHRISTOPHER G. HAIR : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 29th day of May, 2020.
MICHAEL A. MAYER, Atty. Reg. No. 0064079, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
CHRISTOPHER G. HAIR, 914 Norwood Avenue, Toledo, Ohio 43607 Defendant-Appellant, Pro Se
.............
DONOVAN, J. -2-
{¶ 1} Defendant-appellant Christopher G. Hair, pro se, appeals an order of the
Fairborn Municipal Court denying his motion to seal the record of a dismissal of a charge
against him and his motion to terminate his administrative license suspension. Hair filed
a timely notice of appeal on November 26, 2019.
{¶ 2} On April 3, 2017, Hair was arrested and charged with operating a motor
vehicle under the influence of drugs and/or alcohol (“OVI”) in violation of R.C. 4511.19(A),
a misdemeanor of the first degree. In addition to the OVI charge, an administrative
license suspension (“ALS”) was imposed pursuant to R.C. 4511.191(C), since Hair
refused to submit to a breathalyzer exam after he completed the field sobriety tests
administered by the arresting officer. On April 4, 2017, Hair appeared before the
magistrate and pled not guilty to the OVI. On June 7, 2017, Hair filed a motion for driving
privileges in order to drive to and from work and attend job interviews. The magistrate
granted Hair’s motion for driving privileges on the same day.
{¶ 3} On September 12, 2017, the State made an oral motion to dismiss the OVI
and to be allowed to refile the matter with an amended charge of failure to maintain
physical control. In an entry filed the same day, the trial court granted the motion and
dismissed the OVI charge without prejudice.1
{¶ 4} Approximately ten months later on June 14, 2018, Hair filed a pro se motion
to dismiss his ALS. On July 24, 2018, the magistrate issued a decision recommending
that Hair’s motion to dismiss the ALS be overruled as untimely because he failed to appeal
1 In Fairborn M.C. No. CRB1700615, Hair was charged with an open container violation. That case was also dismissed without prejudice on September 12, 2017, at the State’s request. The dismissal entry listed both the instant case, TRC1703925, and CRB1700615. -3-
the ALS within 30 days of the suspension. We note that an ALS goes into effect
immediately upon an offender’s refusal to submit to testing. R.C. 4511.192(D)(1)(a). The
record clearly establishes that Hair’s motion to dismiss the ALS was filed well outside the
30-day statutory time limit. On July 26, 2018, the trial court adopted the decision of the
magistrate in its entirety and overruled Hair’s motion to dismiss as untimely.
{¶ 5} Approximately seven months later on February 22, 2019, Hair filed an
application for an order sealing the record regarding the dismissed OVI and the ALS,
which was then still in effect. In a judgment entry filed on March 22, 2019, the trial court
overruled Hair’s application to seal the record of the dismissed OVI and his ALS.
Specifically, the trial court found that, pursuant to R.C. 2953.36(B), neither a violation of
R.C. 4511.19(A)(1)(a) nor an ALS was a sealable offense. On May 20, 2019, Hair filed
a notice of appeal of the trial court’s decision, which we dismissed as untimely. See State
v. Hair, 2d Dist. Greene No. 2019-CA-27 (August 28, 2019 Decision & Entry).
{¶ 6} On August 30, 2019, Hair filed a second application to seal the record of his
dismissed OVI and still-active ALS. The trial court overruled Hair’s second application
on November 1, 2019, basing its decision on the law of the case doctrine. Hair filed a
timely notice of appeal on November 26, 2019.
{¶ 7} Hair’s first assignment of error is a follows:
FAIRBORN MUNICIPAL COURT ERRED IN ITS CONCLUSION OF LAW
AGAINST THE MANIFEST WEIGHT OF [THE] EVIDENCE WHEN THE
COURT DECIDED TO UPHOLD AN [sic] PREJUDICIAL ERROR OF
INAPPLICABLE STATUTE.
{¶ 8} In his first assignment, Hair contends that the trial court erred when it -4-
overruled his second application to seal the record of the dismissed OVI and the ALS
because it relied upon the wrong statute in its initial entry denying his request.
Specifically, Hair argues that R.C. 2953.36 was not the applicable statute because his
case involved a dismissal of his OVI and not a conviction under R.C. 4511.19.
{¶ 9} Although not raised by the State, we note that res judicata does not bar a
successive application to seal the record where there is a showing of changed or new
circumstances. See State v. Cope, 111 Ohio App.3d 309, 311-312, 676 N.E.2d 141 (1st
Dist.1996), abrogated on other grounds by State v. Boykin, 138 Ohio St.3d 97, 2013-
Ohio-4582, 4 N.E.3d 980. Nevertheless, not having so objected in the trial court
proceeding regarding Hair’s successive application to seal the record, the State has
forfeited its right to argue res judicata on appeal. State v. Rojas, 180 Ohio App.3d 52,
2008-Ohio-6339, 904 N.E.2d 541, ¶ 12 (2d Dist.).
{¶ 10} The purpose of expungement, or sealing a record of conviction, is to
recognize that people may be rehabilitated. State v. Petrou, 13 Ohio App.3d 456, 469
N.E.2d 974 (9th Dist.1984). Sealing of a criminal record is an “act of grace created by
the state.” State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 12,
quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). It should be
granted only when all requirements for eligibility are met, because it is a “privilege, not a
right.” State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.
{¶ 11} Generally, an appellate court reviews a trial court's decision regarding a
motion to seal the record under an abuse of discretion standard. State v. Pierce, 10th
Dist. Franklin No. 06AP-931, 2007-Ohio-1708, ¶ 5. The term abuse of discretion is used
to indicate that the trial court's attitude was unreasonable, arbitrary or unconscionable. -5-
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However,
where the dispute as to the sealing of a record involves purely a legal question, our
standard of review is de novo. Futrall at ¶ 6-7.
{¶ 12} As previously stated, when it overruled Hair’s second application to seal the
record of the dismissed OVI and still-active ALS, the court relied upon the law of the case
doctrine. Notably, the trial court applied the incorrect statute when it overruled Hair’s first
application to seal the record regarding the dismissed OVI; it relied on R.C. 2953.36,
which pertains to convictions. However, the merits of the first application to seal are not
before this Court now. Hair failed to pursue an appeal of that decision, and his argument
regarding the application of an incorrect statute is not properly before us.
{¶ 13} Nevertheless, the trial court should have relied upon R.C. 2953.52 when it
reviewed Hair’s second application to seal the record regarding the dismissed OVI. R.C.
2953.52 states in part:
(A)(1) Any 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. Except as provided in section 2953.61 of the Revised
Code, the application may be filed at any time after the finding of not guilty
or the dismissal of the complaint, indictment, or information is entered upon
the minutes of the court or the journal, whichever entry occurs first.
***
(B)(1) Upon the filing of an application pursuant to division (A) of this
section, the court shall set a date for a hearing and shall notify the -6-
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. The prosecutor shall specify in
the objection the reasons the prosecutor believes justify a denial of the
application.
(2) The court shall do each of the following, except as provided in division
(B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in the case * * *;
(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.
{¶ 14} Accordingly, in considering a successive application under R.C. 2953.52,
“the trial court is to ‘[w]eigh 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 -7-
maintain the records.’ ” In re Dumas, 10th Dist. Franklin No. 06AP-1162, 2007-Ohio-3621,
¶ 8, quoting R.C. 2953.52(B)(2)(d). If the trial court determines that the defendant's
interest in having the records sealed is “not outweighed by the government's interest in
maintaining the records, then the trial court shall issue an order sealing the records.” R.C.
2953.52(B)(3). The burden is on the defendant to demonstrate that his interest in having
the records sealed is “equal to or greater than the government's interest in maintaining
those records.” State v. Capone, 2d Dist. Montgomery No. 20134, 2004-Ohio-4679, ¶ 5.
As previously stated, res judicata does not bar a successive application to seal the record
where there is a showing of changed or new circumstances. Cope, 111 Ohio St.3d 309,
311-312, 676 N.E.2d 141.
{¶ 15} We find that the trial court erred when it overruled Hair’s second application
to seal the record of his dismissed OVI without permitting Hair to attempt to establish a
change in circumstances. Accordingly, we remand this matter to the trial court for a
review of Hair’s second application to seal the record pursuant to the analysis set forth in
R.C. 2953.52, including an evidentiary hearing as to its merits.
{¶ 16} Hair’s first assignment of error is sustained as it relates to the OVI only.
{¶ 17} Hair’s second assignment of error is as follows:
FAIRBORN MUNICIPAL COURT ABUSED ITS DISCRETION IN
DENYING CHRISTOPHER’S HAIR’S MOTION TO SEAL HIS RECORD
AND HIS MOTION TO TERMINATE ADMINISTRATIVE LICENSE
SUSPENSION WHEN BOTH MOTIONS WERE PERMITTED BY
STATUTE.
{¶ 18} In his second assignment, Hair argues that the trial court erred when it -8-
overruled his motion to terminate his ALS pursuant to R.C. 4511.197(D) after his OVI had
been dismissed. R.C. 4511.197(D), however, does not provide for the termination of an
ALS following dismissal of the underlying offense. R.C. 4511.197(D) states in pertinent
part:
Except as otherwise provided in this section, if a suspension imposed under
section 4511.191 of the Revised Code is upheld on appeal or if the subject
person does not appeal the suspension under division (A) of this section,
the suspension shall continue until the complaint alleging the violation for
which the person was arrested and in relation to which the suspension was
imposed is adjudicated on the merits or terminated pursuant to law. If the
suspension was imposed under division (B)(1) of section 4511.191 of the
Revised Code and it is continued under this section, any subsequent finding
that the person is not guilty of the charge that resulted in the person being
requested to take the chemical test or tests under division (A) of section
4511.191 of the Revised Code does not terminate or otherwise affect the
suspension. If the suspension was imposed under division (C) of section
4511.191 of the Revised Code in relation to an alleged misdemeanor
violation of division (A) or (B) of section 4511.19 of the Revised Code or of
a municipal OVI ordinance and it is continued under this section, the
suspension shall terminate if, for any reason, the person subsequently is
found not guilty of the charge that resulted in the person taking the chemical
test or tests.
(Emphasis added). -9-
{¶ 19} In the instant case, Hair’s ALS was imposed pursuant to R.C. 4511.191(C).
R.C. 4511.197(D) explicitly states that it requires a finding of “not guilty” for the OVI before
the ALS imposed pursuant to R.C. 4511.191(C) may be terminated. Hair’s OVI charge
was dismissed without prejudice, so no finding of not guilty was made. Thus, R.C.
4511.197(D) did not provide a basis to terminate Hair’s ALS. State v. Wellman, 5th Dist.
Licking No. 2006 CA 0091, 2007-Ohio-6107, ¶ 12. Accordingly, the trial court did not err
when it overruled Hair’s motion to terminate his ALS. With respect to the ALS termination,
the law of the case doctrine indeed also barred a successive application to seal.
{¶ 20} Hair’s second assignment of error is overruled.
{¶ 21} Hair’s first assignment of error having been sustained as it relates to the
sealing of the dismissal of the OVI, this portion of the order is reversed and is remanded
to the trial court for proceedings consistent with this opinion. In all other respects, the
judgment of the trial court is affirmed.
TUCKER, P.J. and FROELICH, J., concur.
Copies sent to:
Michael A. Mayer Christopher G. Hair Hon. Beth W. Cappelli