State v. McVean

2022 Ohio 2753

• Court: Ohio Court of Appeals
• Decided: August 10, 2022
• Docket: C-210459 & C-210460
• Status: Published

Opinion

[Cite as State v. McVean, 2022-Ohio-2753.]

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

STATE OF OHIO, : APPEAL NOS. C-210459 C-210460 Plaintiff-Appellee, : TRIAL NOS. C20-TRC-5572A C20-TRC-5572B : VS. : O P I N I O N.

JASON MCVEAN, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 10, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Suhre & Associates, LLC, and Joseph B. Suhre, IV, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} After acquittal for an OVI offense but conviction on the accompanying

speeding violation, defendant-appellant Jason McVean applied to the trial court for

the sealing of both records. The trial court acknowledged that Ohio law allows sealing

in this unique set of circumstances, but denied his application nonetheless, even in the

absence of any objection from the state. Mr. McVean now appeals, claiming in his sole

assignment of error that the trial court abused its discretion by finding that a

governmental interest outweighed his 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 records.

I.

{¶2} In 2020, the state charged Mr. McVean with violating R.C.

4511.19(A)(1)(a) by operating a vehicle while under the influence of alcohol or a drug

of abuse (“OVI”), and speeding in violation of R.C. 4511.21(D). After trial, the trial

court acquitted Mr. McVean of the OVI offense but found him guilty of speeding. The

next year, Mr. McVean applied to seal the records of both the acquittal and the

conviction.

{¶3} At the hearing on his motion to seal the records, the trial court noted

that speeding convictions are generally not eligible for sealing. Mr. McVean’s counsel

pointed out that one subsection of the Ohio Revised Code allows for the sealing of

speeding convictions when they are charged in connection with an offense for which a

defendant is found not guilty. See State v. Christen, 1st Dist. Hamilton Nos. C-200158

and C-200159, 2021-Ohio-1647, ¶ 15-16 (“Applying the plain language of the statute,

if the sole conviction is under [R.C. Chapter 4511] or a substantially similar municipal

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ordinance,” the record of a dismissed OVI charge is also eligible for sealing.). Ohio law

carves out this narrow exception, according to Mr. McVean’s counsel, because of the

logistical impossibility of sealing only the OVI acquittal when the OVI and the

speeding offense stem from the same ticket.

{¶4} The state agreed, telling the trial court that Mr. McVean’s case “fits

pretty closely with the plain language” of the statutory exception, a paradigmatic type

of case the subsection was intended to cover. The trial court, in response, wondered

why Mr. McVean “is going to come out ahead of the person who gets a speeding ticket

and not an OVI.” Was the state actually “saying that a speeding ticket is eligible for

expungement so long as you get charged with an OVI and ultimately found not guilty?”

Turns out, it was: “That’s the way the statute is written, Your Honor,” the prosecutor

assured the judge.

{¶5} The state followed up by broadly suggesting that it had an interest in

acquittals being on the record to help analyze potential future cases, but that it had no

objection to Mr. McVean’s eligibility under the statute. The trial court continued the

hearing so that it could consider the relevant authorities cited by Mr. McVean. It also

invited the assistant prosecutor to file an objection on behalf of the state in the

meantime, telling him it was not mandatory but would be appreciated. But the state

declined the invitation to file any objection, with only Mr. McVean submitting a

supplemental brief in the interim.

{¶6} At the resumed hearing, the state reiterated that it agreed with Mr.

McVean’s eligibility for sealing in light of the newest case law and echoed its lack of

objections. See Christen, 1st Dist. Hamilton Nos. C-200158 and C-200159, 2021-

Ohio-1647, at ¶ 16 (“Because the sole conviction is substantially similar to a conviction

3 OHIO FIRST DISTRICT COURT OF APPEALS

under R.C. Chapter 4511, the trial court had the discretion to seal all of the records.”).

Despite that, the trial court determined that the state’s interest in maintaining the

records of the OVI acquittal outweighed Mr. McVean’s “certainly legitimate” interest

in having both the acquittal and the conviction sealed. This appeal followed.

II.

{¶7} Generally, courts cannot seal records of convictions for speeding that

are charged under Chapter 4511 or substantially similar municipal ordinances. See

R.C. 2953.36(A)(2). An exception exists in scenarios such as Mr. McVean’s, where the

state charged Mr. McVean with the OVI and the speeding violation on the same ticket

and the charges related to the same act. Under R.C. 2953.61(B)(1), a person charged

with two offenses connected to the same act but convicted of only one may apply for

the sealing of both his records, even when one of the offenses is an otherwise ineligible

speeding violation. R.C. 2953.61(B)(1) further directs that the court shall not order

that only a portion of the records be sealed. Christen at ¶ 14 (The statute “mandate[s]

that ‘the court shall not order that only a portion of the records be sealed[.]’ ”), quoting

R.C. 2953.61(B)(1). We review a trial court’s decision to deny an application to seal

records for an abuse of discretion. State v. Sager, 2019-Ohio-135, 131 N.E.3d 335, ¶ 9

(1st Dist.).

{¶8} The trial court seemed to resist the outcome of sealing as being unfair

to similarly-situated speeders lacking an OVI charge. The statute governing the

sealing of records provides that the court shall order all official records in a case sealed

if, among other things, the interests of the applicant are not outweighed by any

legitimate governmental needs to maintain those records. See R.C. 2953.32(C)(2). We

see no provision directing the trial court to weigh Mr. McVean’s interests against other

4 OHIO FIRST DISTRICT COURT OF APPEALS

hypothetical defendants, and the Ohio Supreme Court has found that the General

Assembly intended to place “greater emphasis on the individual’s interest in having

the records sealed.” State v. Bissantz, 40 Ohio St.3d 112, 114, 532 N.E.2d 126 (1988).

{¶9} It is apparent from this record that no one other than the trial court

objected to the sealing of Mr. McVean’s records, and it blanched at sealing them

because the statute provided a “very curious exception.” But “[i]t is not the role of the

courts to establish legislative policy or to second-guess policy choices the General

Assembly makes.” Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-

Ohio-1027, 927 N.E.2d 1066, ¶ 61. It makes sense that the legislature might create an

exception to prevent defendants found not guilty of an OVI from being saddled with

the record only because they drove too fast. The fact that the trial court “ha[s]

questions for the legislature” and weighs the fairness of other speeding drivers who

lack the option to seal their tickets is, in our mind, an example of a court “exercising

its judgment, in an unwarranted way, in regard to a matter over which it has

discretionary authority.” See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-

3304, 187 N.E.3d 463, ¶ 35. Or in other words, this strikes us as an abuse of discretion.

{¶10} This is especially true where the state expressed no objection to sealing.

The state first announced that it had filed no objection because the statute as written

allows the sealing. Only after being prodded by the court twice did the state profess

some vague interest in having acquittals remain on a defendant’s record for purposes

of “analyzing potential future cases.” At the second hearing, when given one last

chance by the trial court to lodge an objection, the state’s attorney reiterated the point

from the earlier colloquy: “According to the newest caselaw, he would be eligible; we

would not object.” Under the maintenance-of-records standard used here by the trial

5 OHIO FIRST DISTRICT COURT OF APPEALS

court, no one would ever qualify for sealing of his records. A possibility always exists

that someone, at some point down the road, might want to peek at these records.

{¶11} On appeal, for the first time, the state argues that it had an interest in

knowing the number of times a person has been charged with (not just convicted of)

an OVI offense to determine whether a plea bargain is appropriate in any given case.

Because the state never raised this theory below, we will not consider it on appeal. See

U.S. Bank Natl. Assn. v. Broadnax, 1st Dist. Hamilton No. C-180650, 2019-Ohio-5212,

¶ 13 (“ ‘A party who fails to raise an argument in the court below waives his or her right

to raise it on appeal.’ ”), quoting State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d

276, 278, 611 N.E.2d 830 (1993). The trial court gave the state plenty of time to conjure

up a reason for objecting below (and urged it to do so), but the state demurred.

{¶12} The state further conceded that the reason the legislature generally

disallows sealing of traffic tickets is because of the interest of the Bureau of Motor

Vehicles (“BMV”). But the state acknowledged that it does not represent the BMV in

this proceeding and thus it has no interest in, or objection to, the sealing of Mr.

McVean’s records. The statute requires the court to weigh Mr. McVean’s interest

“against the legitimate needs, if any, of the government to maintain those records[.]”

(Emphasis added.) R.C. 2953.32(C)(1)(e). “The General Assembly, therefore, has

recognized that, in some cases, the State may have no interest in maintaining an

applicant’s records.” State v. Wyatt, 9th Dist. Summit No. 25775, 2011-Ohio-6738,

¶ 12. This is precisely such a case.

{¶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. And even after the trial court declared that it

6 OHIO FIRST DISTRICT COURT OF APPEALS

found the governmental interest to outweigh Mr. McVean’s, the state clarified the

incorrectness of that finding. In response to the objection from Mr. McVean’s counsel

that the state had no interest in “keeping a man that is innocent of a charge saddled

with the record of the actual incident itself,” the state replied “Your Honor, if I may

clarify, that is correct.”

{¶14} The trial court acquitted Mr. McVean of the OVI charge. Sealing in such

circumstances should be freely granted, and no governmental interest here outweighs

Mr. McVean’s “interest in clearing his record of a charge that he was acquitted of.”

(Emphasis sic.) See State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877

N.E.2d 755, ¶ 6 (1st Dist.). There was no showing of any governmental interest here—

much to the contrary, the state voiced no serious objection to the relief sought. 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.” Id. at ¶ 7.

* * *

{¶15} In light of the foregoing analysis, we sustain Mr. McVean’s sole

assignment of error. We remand this matter to the trial court with instructions to seal

the records of Mr. McVean’s OVI acquittal and his speeding conviction.

Judgments reversed and cause remanded.

ZAYAS, P. J., concurs. WINKLER, J., dissents.

WINKLER, J., dissenting.

{¶16} I respectfully dissent. I cannot say the trial judge who presided over

McVean’s bench trial that resulted in the OVI acquittal and speeding conviction

7 OHIO FIRST DISTRICT COURT OF APPEALS

abused his discretion he when denied McVean’s application to seal the records related

to those charges.

{¶17} There is no question that McVean was eligible to have the specified

records sealed and that the trial court found him eligible. However, McVean, as the

applicant to have records sealed, still bore the burden of providing the trial court with

information sufficient to demonstrate that his interest in having records sealed was at

least equal to any legitimate government interest in maintaining those records. See

State v. Harrison, 2018-Ohio-1724, 111 N.E.3d 845, ¶ 14 (2d Dist.); State v. R.S., 1st

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

Ohio-1108, ¶ 26; State v. Draper, 10th Dist. Franklin No. 14AP-791, 2015-Ohio-1781,

¶ 10.

{¶18} The trial court is not required to grant the application of those acquitted

of a charged offense, notwithstanding the privacy rights of one charged but not

convicted of an offense. See, e.g., Harrison at ¶ 14; State v. Grove, 29 Ohio App.3d

318, 320, 505 N.E.2d 297 (1st Dist.1986). Where the trial court has correctly applied

the law, this court will not reverse a decision to deny an application to seal absent a

demonstration that the trial court abused its discretion. See Grove at 320; R.S. at ¶

7; State v. Myers, 2d Dist. Clark No. 2015-CA-88, 2016-Ohio-4893, ¶ 13; State v.

Spicer, 1st Dist. Hamilton Nos. C-040637 and C-040638, 2005-Ohio-4302, ¶ 7. An

abuse of discretion connotes an attitude that is arbitrary, unreasonable or

unconscionable. See, e.g., R.S. at ¶ 7-8; Spicer at ¶ 10.

No Abuse of Discretion Demonstrated

{¶19} McVean has asserted no more than a general privacy interest in sealing

the records. The trial court indicated it weighed that interest against the government’s 8 OHIO FIRST DISTRICT COURT OF APPEALS

legitimate need to maintain those records in this case that involved a speeding

conviction and an OVI acquittal. We know what government interest the trial court

found outweighed McVean’s interest, because at the August 13, 2021 hearing, the

assistant prosecutor relayed the state’s need to access the OVI records when analyzing

potential future OVI cases against McVean. At the second hearing, the assistant

prosecutor confirmed that the state did not have an eligibility-based objection in

accordance with “the newest case law,” but she did not back away from the earlier

noted position concerning the state’s interest. The majority opinion causes confusion

because it presents the assistant prosecutor’s statements at the second hearing out of

context.

{¶20} As recognized by McVean, Ohio places “extreme limitations” on the use

of records of sealed cases involving dismissals or not-guilty dispositions, and those

limitations would prevent the state from accessing the OVI records for case

consideration if McVean was again charged with OVI. See R.C. 2953.52(A)(4) and

2953.53(D).

{¶21} Considering this limitation, the state asserted a legitimate government

need, as contemplated by R.C. 2953.52(B)(2)(d), that can weigh against sealing the

official records in the OVI matter. And in this case, the trial judge who denied

McVean’s application to seal also presided over McVean’s bench trial that resulted in

an acquittal on the OVI charge and the speeding conviction. If a transcript of the trial

exists, it is not in this record. The trial judge was in the best position to evaluate the

state’s need to maintain the records and to weigh that need against McVean’s general

privacy interest in having the records sealed at that time, which was less than six

months after McVean’s trial. See Grove, 29 Ohio App.3d at 320, 505 N.E.2d 297.

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶22} Applying, and mindful of, the appropriate standard of review, I am

unable to second guess the trial court’s wisdom in denying the application to seal

because there has been no demonstration that the trial court’s decision was arbitrary,

unreasonable, or unconscionable. Accordingly, I would affirm.

Please note:

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