State v. McBride

2022 Ohio 2240

• Court: Ohio Court of Appeals
• Decided: June 29, 2022
• Docket: 21-COA-024
• Status: Published

Opinion

[Cite as State v. McBride, 2022-Ohio-2240.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Craig R. Baldwin, J. -vs- : : MICHAEL MCBRIDE, : Case No. 21-COA-024 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 06CRB626

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 29, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

THOMAS R. GILMAN APRIL F. CAMPBELL Kirk & Gilman, LLC Campbell Law, LLC 245 Sandusky St. 46 1/2 Sandusky Street Ashland, Ohio 44805 Delaware, Ohio 43015 Ashland County, Case No. 21-COA-024 2

Baldwin, J.

{¶1} Defendant-appellant Michael McBride appeals from the October 15, 2021

Judgment Entry of the Ashland Municipal Court denying his Application to Seal Records.

Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 22, 2006, appellant, Michael McBride, was charged with obstructing

official business in violation of R.C. 2921.31 and resisting arrest in violation of R.C.

2921.33. Appellant was found guilty of the charges on September 20, 2006, and was

subsequently sentenced to 180 days in jail with 120 days suspended.

{¶3} On July 16, 2012, appellant filed a Motion to Seal Record of Conviction. A

hearing was held on January 11, 2013. At the conclusion of the hearing, the trial court

denied the motion. Appellant then appealed. Pursuant to an Opinion filed on August 7,

2013 in State v. McBride, 5th Dist. Ashland No. 13-COA-004, 2013-Ohio-3491, this Court

affirmed the judgment of the trial court.

{¶4} Thereafter, on August 27, 2021, appellant filed a Motion to Seal Record of

Conviction Pursuant to R.C. 2953.32. A hearing on such motion was held on October 12,

2021. At the hearing, appellee indicated that it was taking no position on appellant’s

motion. Prior to the commencement of appellant’s testimony, the trial court stated that

appellant was an eligible offender and that it could grant appellant’s motion.

{¶5} At the hearing, appellant testified that he was residing in South Carolina and

that he was 39 years old. He testified that he was approximately 24 years old and

attending Ohio State University when he was charged and convicted. Appellant testified

that he had completed his Bachelor’s degree and that he had landed a job at Wells Fargo. Ashland County, Case No. 21-COA-024 3

According to appellant, due to his criminal record, he had trouble getting a job and was

held back at Wells Fargo. Appellant testified that he switched fields to get into IT and that

he currently worked at Oracle. He further testified that since his conviction, he had married

and had a young son. Appellant testified that his record would have an impact on applying

for a new job at Oracle because Oracle had only looked back seven years for his current

job, but would look back further. Appellant testified that he was motivated to have his

record sealed “to make sure that I can maximize my educational and work experience

and be eligible for anything that may present itself in the future,…” Transcript at 12.

Appellant also testified that he had undergone counseling.

{¶6} The following testimony was adduced when appellant was asked to explain

why the same situation would not happen again:

{¶7} A. I absolutely would not deal with it the same way because I have learned

from a great financial impact and from just having to answer to employers about that

record and that went onto many people having to defend my actions, but it’s just much

easier to comply even if I disagree with the police officer’s request.

{¶8} Q. How about respect to police officers who are just doing their job and

asking you to do something and just following their duties, how have you dealt with them

in the meantime and how would you deal with them today as you sit here today?

{¶9} A. It’s easier just to comply with the request even if I just disagree.

{¶10} Q. Do you continue to disagree with what the officer’s did back then and

went to trial, correct?

{¶11} A. Correct, yes. Ashland County, Case No. 21-COA-024 4

{¶12} Q. And again, the Judge wants to know how you would deal with it

differently, if you disagree with the officer and how would your behavior be and why?

Everybody knows the right answer here, help the Judge understand what would be

different here, help the judge understand why, and not just because it’s easier.

{¶13} A. Do it differently just because I learned that – like you were saying, they

are just doing a job and they might not agree with their orders either, so it’s easier just to

do what they say and in the end, it’s everybody just doing a job, so.

Transcript at 20-21.

{¶14} Moreover, when asked if he still felt that he did not do anything wrong and

that the incident was not his fault, appellant testified that he did not want to “rehash”

everything. Trial Transcript at 18.

{¶15} The trial court, pursuant to a Judgment Entry filed on October 15, 2021,

denied appellant’s Application. While the trial court found that resisting arrest was an

offense of violence, the trial court further found that the “State’s need to maintain the

record of Defendant’s convictions out-weighs Defendant’s interest in sealing them,…

Further, the Court if not convinced Defendant had rehabilitated himself to a satisfactory

degree.”

{¶16} Appellant now appeals, raising the following assignment of error on appeal:

{¶17} “I. THE TRIAL COURT’S DECISION NOT TO SEAL MCBRIDE’S RECORD

SHOULD BE REVERSED, BECAUSE ITS FINDINGS WERE ERRONEOUS,

UNSUPPORTED BY THE RECORD, AND BECAUSE THE TRIAL COURT ABUSED ITS

DISCRETION BY NOT SEALING IT.” Ashland County, Case No. 21-COA-024 5

I

{¶18} Appellant, in his sole assignment of error, challenges the trial court’s

decision to deny his Application to Seal Record.

{¶19} We review a trial court's decision to grant or deny a motion to seal records

under an abuse of discretion standard. State v. Poole, 5th Dist. Perry No. 10-CA-21, 2011-

Ohio-2956, ¶ 11, citing State v. Widder, 146 Ohio App.3d 445, 2001-Ohio-1521, 766

N.E.2d 1018, ¶ 6 (9th Dist.). In order to find an abuse of discretion, we must determine

that the trial court's decision was unreasonable, arbitrary, or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

{¶20} Expungement is a privilege and not a right. An applicant must meet the

requirements set forth in R.C. 2953.32 which governs sealing of record. State v. Morris,

5th Dist. Licking No. 09-CA-128, 2010-Ohio-2403, ¶ 8, citing State v. Simon, 87 Ohio

St.3d 531, 533, 2000-Ohio-474, 721 N.E.2d 1041.

{¶21} R.C. 2953.32 states, in relevant part, as follows: “(A)(1) Except as provided

in section 2953.61 of the Revised Code or as otherwise provided in division (A)(1)(d) of

this section, an eligible offender may apply to the sentencing court if convicted in this

state, or to a court of common pleas if convicted in another state or in a federal court, for

the sealing of the record of the case that pertains to the conviction, except for convictions

listed under section 2953.36 of the Revised Code.” R.C. 2953.31 defines an eligible

offender as follows: “

{¶22} (a) Anyone who has been convicted of one or more offenses in this state or

any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth Ashland County, Case No. 21-COA-024 6

degree or misdemeanors and none of those offenses are an offense of violence or a

felony sex offense and all of the offenses in another jurisdiction, if committed in this state,

would be felonies of the fourth or fifth degree or misdemeanors and none of those

offenses would be an offense of violence or a felony sex offense;

{¶23} (b) Anyone 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 two felony convictions, has not more than four misdemeanor convictions, or, if

the person has exactly two felony convictions, has not more than those two felony

convictions and two misdemeanor convictions in this state or any other jurisdiction. The

conviction that is requested to be sealed shall be a conviction that is eligible for sealing

as provided in section 2953.36 of the Revised Code. When two or more convictions result

from or are connected with the same act or result from offenses committed at the same

time, they shall be counted as one conviction. When two or three convictions result from

the same indictment, information, or complaint, from the same plea of guilty, or from the

same official proceeding, and result from related criminal acts that were committed within

a three-month period but do not result from the same act or from offenses committed at

the same time, they shall be counted as one conviction, provided that a court may decide

as provided in division (C)(1)(a) of section 2953.32 of the Revised Code that it is not in

the public interest for the two or three convictions to be counted as one conviction.

{¶24} Subsection (C) requires the trial court to consider the following in pertinent

part:

{¶25} (a) Determine whether the applicant is an eligible offender * * *. Ashland County, Case No. 21-COA-024 7

{¶26} (c) If the applicant is an eligible offender who applies pursuant to division

(A)(1) of this section, determine whether the applicant has been rehabilitated to the

satisfaction of the court;…

{¶27} (e) Weigh the interests of the applicant in having the records pertaining to

the applicant's conviction or bail forfeiture sealed against the legitimate needs, if any, of

the government to maintain those records.

{¶28} Appellant initially argues that the trial court denied his request because it

determined that resisting arrest is an “offense of violence.” The trial court found that

appellant was an eligible offender and, in doing so, found implicitly that appellant had not

been convicted of an offense of violence. The trial court next was required, pursuant to

R.C. 2953.32(C) to determine as follows:

{¶29} (c) If the applicant is an eligible offender who applies pursuant to division

(A)(1) of this section, determine whether the applicant has been rehabilitated to the

{¶30} (d) If the prosecutor has filed an objection in accordance with division (B) of

this section, consider the reasons against granting the application specified by the

prosecutor in the objection;

{¶31} (e) Weigh the interests of the applicant in having the records pertaining to

the applicant's conviction or bail forfeiture sealed against the legitimate needs, if any, of

{¶32} In the case sub judice, no objection was filed by the prosecutor. The trial

court found that the State’s need to maintain the record of appellant’s convictions

outweighed appellant’s interest in sealing the record and that it was not convinced that Ashland County, Case No. 21-COA-024 8

Appellant had rehabilitated himself to a satisfactory degree. The trial court found from

interacting with appellant through his testimony, which is cited in part above, that

appellant still did not accept responsibility for his actions and indicated that he would treat

law enforcement officers “differently now because it is ‘easier’ not because it is the right

thing to do” and that appellant did not accept that he did anything wrong. Finally, the court

found that appellant claimed to have learned something from the judicial process, but that

it did not find such assertion credible.

{¶33} It is well established that the trier of fact is in a far better position to observe

the witness's demeanor and weigh his/her credibility. See State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). After hearing from appellant, the trial court concluded the

State's interest in maintaining the record outweighed appellant's interest in sealing his

conviction. We find the record supports this conclusion.

{¶34} We cannot substitute our judgment for that of the trial court. The record

reflects that, in ruling on appellant’s application, the trial court expressly considered and

carefully weighed appellant’s interest in securing better employment, providing for his

family and bettering himself against the State's interests in keeping the record of his

convictions open and available to the public.

{¶35} Mindful of our standard of review, on the record before us, we cannot say

that the reasons given by the trial court for its action are clearly untenable, legally

incorrect, or amount to a denial of justice, or that the judgment reaches an end or purpose

not justified by reason and the evidence. The trial court was in the best position to assess

appellant’s credibility and did not find credible appellant’s assertions that he had learned Ashland County, Case No. 21-COA-024 9

from his actions. Upon review, we find that the trial court did not abuse its discretion in

denying appellant's motion to seal his record.

{¶36} The sole assignment of error is, therefore, denied.

{¶37} Accordingly, the judgment of the Municipal Court of Ashland County, Ohio

is hereby affirmed.

By: Baldwin, J.

Gwin, P.J. and

Hoffman, J. concur.