Harris v. Certificate of Qualification of Emp. Petition , 2019 Ohio 3658 ( 2019 )

[Cite as Harris v. Certificate of Qualification of Emp. Petition, 2019-Ohio-3658.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
LASONYA J. HARRIS, :
Plaintiff-Appellant, :
No. 107828
v. :
CERTIFICATE OF QUALIFICATION :
OF EMPLOYMENT PETITION,
:
Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 12, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-901369
Appearances:
The Legal Aid Society of Cleveland, Arcola A. Whatley, and
Julie C. Cortes, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin, Assistant Prosecuting
Attorney, for appellee.
MARY J. BOYLE, J.:
Plaintiff-appellant, Lasonya J. Harris, appeals from the trial court’s
decision denying her petition for a certificate of qualification for employment
(“CQE”). She raises one assignment of error for our review:
It was an abuse of discretion for the trial court to deny appellant’s
petition for a certificate of qualification for employment in the absence
of any analysis pursuant to R.C. 2953.25(C)(3).
Finding merit to her assignment of error, we reverse and remand.
I. Procedural History and Factual Background
On July 27, 2018, Harris filed a petition for a CQE. In the petition,
Harris stated the following as to why she was requesting the CQE:
In order to return to work, my employer stated I needed to show
something that my criminal records had been sealed. Unfortunately,
I’m not eligible to seal my record. I have been working as a home health
aide for 8 years and I would like to return to this profession in which I
have training, certification and experience, but my criminal record is
creating a barrier.
In her appellate brief, Harris explains that she was not eligible to seal
her criminal record based on the version of R.C. 2953.31 effective at the time of her
petition. Under that version, “eligible offender” was defined as an individual who
was convicted of “not more than two misdemeanor convictions, or not more than
one felony conviction and one misdemeanor conviction in this state or any other
jurisdiction.” Harris said that she did not qualify as an “eligible offender” because
she had three misdemeanor convictions, leaving the CQE as her “only redress to
return to work under her employer’s conditions.”
Harris said that she was put on leave by her employer after working
for a full year due to her criminal record, but that her employer informed her that
she could return to work once she “had taken care of” her criminal record. She stated
that her criminal record was “hinder[ing] [her] from using [her] experience and
certification to take care of [her] children and family[,]” prohibiting her from
pursuing her dream of becoming a state-tested nursing assistant, and putting “a
substantial financial strain on [her] ability to provide” for her children and
household. She stated that she was not a danger to the public or other individuals.
She indicated that she planned to use the CQE to obtain an occupational license from
the Ohio Board of Nursing to work as a state-tested nursing assistant.
Harris’s petition reflected that she was convicted of two counts of
child endangering (first-degree misdemeanor) in 2007, making false alarms (first-
degree misdemeanor) in 2010, and menacing by stalking (fourth-degree
misdemeanor) in 2016.
In July 2018, the trial court ordered the probation department to
complete a CQE investigation. The investigation showed that Harris was also
convicted of disorderly conduct (minor misdemeanor) in 2003, making false alarms
(first-degree misdemeanor) in 2004, menacing (fourth-degree misdemeanor) in
2012, disorderly conduct (minor misdemeanor) in 2014, and telecommunications
harassment (first-degree misdemeanor) in 2016. Additionally, the investigation
showed that Harris reported that she worked for various home-care companies from
2009 to 2018.
The report also stated that Harris owed $262.70 for her convictions
for menacing and telecommunications harassment in Cuyahoga County (Cuyahoga
C.P. No. CR-16-611225), although the trial court’s docket states that Harris currently
owes only $187.10.1
In September 2018, the trial court issued a judgment entry stating,
“[c]ertification of qualification of employment for the petitioner is denied.” The trial
court also waived costs for the application fee based on Harris’s poverty affidavit.
It is from this judgment that Harris now appeals.
II. Law and Analysis
In her sole assignment of error, Harris argues that the trial court
abused its discretion when it denied her petition for a CQE because it failed to
provide any analysis pursuant to R.C. 2953.25(C)(3).
“Concerned with the rising number of people with criminal histories
who would be barred from holding state-licensed employment,” the General
Assembly passed R.C. 2953.25 in 2012 under Am.Sub.S.B. 337, which created the
CQE meant to “address the impact that collateral [sanctions] had on the ability of
persons with criminal records to obtain employment.” In re Bailey, 8th Dist.
Cuyahoga No. 101108, 2015-Ohio-413, ¶ 6. A CQE “immunizes an employer in any
proceeding on a claim against the employer for negligent hiring ‘as to the claim if
the employer knew of the certificate at the time of the alleged negligence.’” Id. at
1At oral argument, Harris and the state said that neither party was given an
opportunity to review the report.
¶ 15, citing R.C. 2953.25(G)(2). However, “R.C. 2953.25 does not guarantee
licensure, much less a job — it simply removes the disqualification from applying.
Assuming that a court issues a CQE, the decision to hire or issue an occupational
license to someone with a conviction is left to the applicable licensing and/or hiring
authority.” Bailey at ¶ 41 (Stewart, J., dissenting).
R.C. 2953.25 defines “collateral sanction” as
a penalty, disability, or disadvantage that is related to employment or
occupational licensing, however denominated, as a result of the
individual’s conviction of or plea of guilty to an offense and that
applies by operation of law in this state whether or not the penalty,
disability, or disadvantage is included in the sentence or judgment
imposed.
R.C. 2953.25(A)(1).
Under R.C. 2953.25(B), two classes of individuals may petition a
court of common pleas for a CQE. To file a petition, an individual must be subject
to one or more collateral sanctions as a result of being convicted of or pleading
guilty to an offense and
(1) either has served a term in a state correctional institution for
any offense or has spent time in a department-funded program
for any offense; or
(2) is not in a category described in division (B)(1) of this section.
Individuals who seek a petition under (B)(1) must file a petition with
the “designee of the deputy director of the division of parole and community
services[,]” whereas individuals seeking a petition under (B)(2) may file a petition
within Ohio by filing it with the court of common pleas in the county in which the
individual resides. R.C. 2953.25(B)(2)(a).
An individual may file a petition under (B)(1) or (2) for a felony
offense at any time after one year has passed from release of incarceration and any
period of postrelease control or one year after the individual’s final release from all
community control sanctions or for a misdemeanor offense at any time after six
months have passed from release of incarceration and any period of postrelease
control or six months after the individual’s final release from all community
control sanctions. R.C. 2953.25(A)(4).
Upon receiving an individual’s petition for a CQE under (B)(2), the
court of common pleas must “notify the prosecuting attorney of the county in
which the individual resides that the individual has filed the petition” and must
also “notify all other courts in [the] state that it determines under this division were
courts in which the individual was convicted of or pleaded guilty to an offense other
than the offense from which the individual is seeking relief that the individual has
filed the petition[.]” R.C. 2953.25(B)(5)(b).2
The court must then “review the individual’s petition, the individual’s
criminal history, [and] all filings submitted by the prosecutor or by the victim in
accordance with rules adopted by the division of parole and community services,
* * * and all other relevant evidence.” R.C. 2953.25(C)(1). The court may also
2During oral argument, the state said that it was not notified that Harris filed a
CQE petition until after Harris filed a notice of appeal.
“order any report, investigation, or disclosure by the individual that the court
believes is necessary for the court to reach a decision on whether to approve the
individual’s petition for a [CQE].” Id. “[T]he court has the discretion to decide when
it has enough information to rule on the petition, and it may decide that it needs no
additional information beyond that contained in the petition and filings submitted
by the prosecuting attorney and the victim, if any.” Bailey, 8th Dist. Cuyahoga No.
101108, 2015-Ohio-413, at ¶ 18. A trial court may, but is not required to, hold a
hearing. Id. at ¶ 18-19.
Under R.C. 2953.25(C)(3), the issuance of a CQE is at the court’s
discretion as long as the court “finds that the individual has established all of the
following by a preponderance of the evidence:
(a) Granting the petition will materially assist the individual in
obtaining employment or occupational licensing.
(b) The individual has a substantial need for the relief requested in
order to live a law-abiding life.
(c) Granting the petition would not pose an unreasonable risk to
the safety of the public or any individual.”
“[A] petitioner’s criminal history is more often than not going to be at the heart of
a trial court’s decision to grant or deny a petition. The type of conviction, the
amount of time served[, if any,] and the length of time since the petitioner’s last
conviction are all factors that a trial court may consider when reviewing the
probation department’s investigation.” Bailey at ¶ 29.
The court may not deny an individual’s petition based on the
submission of an incomplete petition. R.C. 2953.25(C)(4).
If the court of common pleas denies an individual’s petition under
R.C. 2953.25(B)(2), the individual may appeal the decision to the court of appeals
“only if the individual alleges that the denial was an abuse of discretion[.]” R.C.
2953.25(C)(6).
Harris filed a petition on July 27, 2018. The petition shows that she
was convicted of three misdemeanors. The investigative report, however, showed
that Harris was also convicted of two minor misdemeanors, one fourth-degree
misdemeanor, and two first-degree misdemeanors. This meant that Harris could
file the petition six months after the expiration of a period of incarceration and
postrelease control or after the expiration of her community control sanctions. She
filed her petition pursuant to R.C. 2953.25(B)(2), and therefore is limited to
appealing the trial court’s denial of her petition on the basis that the court abused
its discretion. Harris argues that the trial court abused its discretion by failing to
provide any reasoning in denying her petition under R.C. 2953.25(C)(3).
An abuse of discretion occurs when a trial court fails to “‘exercise
sound, reasonable, and legal decision-making.’” Bailey, 8th Dist. Cuyahoga No.
101108, 2015-Ohio-413, at ¶ 24, quoting State v. Beechler, 2d Dist. Clark No. 09-
CA-54, 2010-Ohio-1900. An abuse of discretion means that the trial court’s
decision was “unreasonable, arbitrary, or unconscionable[.]” State ex rel. Doe v.
Smith, 123 Ohio St. 3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 15.
Harris acknowledges that R.C. 2953.25 “does not specifically state
that the trial court is required ‘to make delineated findings of fact or conclusions
of law[.]’” As the state points out, the statute requires the trial court to make
certain findings before granting a petition for a CQE, but does not require the same
in denying one.
The Tenth District has looked at this exact issue before in In re
Betsacon, 10th Dist. Franklin No. 18AP-515, 2018-Ohio-5367. In that case, the
appellant challenged the trial court’s entry denying his petition, arguing that the
entry was a “bare bone response” and that it failed to “provide subsequent
reviewers any idea as to how or why the decision was made, making it difficult to
review for appeal.” Id. at ¶ 6. The Tenth District disagreed, stating:
Appellant points us to no authority, statutory or otherwise, that
supports his argument that the trial court was required to explain its
reasons for denying the petition for CQE or provide a more detailed
analysis of its determination to deny the petition. The text of R.C.
2953.25 does not include such a requirement.
Id. at ¶ 8. The court also noted that the appellant failed to request a hearing,
leaving the court without a transcript that may “have provided some additional
insight into the trial court’s analysis.” Id. at ¶ 9. The court further stated that the
trial court’s entry outlined the elements for granting a petition, and found that the
appellant did not “suffer a collateral sanction as required by the statute[,]” and
considered the “additional elements, one by one, finding [the appellant] did not
establish the elements by a preponderance of the evidence.” Id.
While the Tenth District is correct that R.C. 2953.25 does not
explicitly require a trial court to explain its reasons for denying a petition for a
CQE, we find that a trial court must include its reasoning to allow for the necessary
review on appeal.
Harris’s petition is similar to a petition for expungement under R.C.
2953.32. We have previously held that a trial court must place its findings on the
record when denying or granting an application for expungement to allow
appellate review of the court’s discretion even though R.C. 2953.32, the
expungement statute, like R.C. 2953.25 in this case, does not explicitly require a
trial court to explain its reasons.
For example, in State v. M.D., 8th Dist. Cuyahoga No. 92534, 2009-
Ohio-5694, we reviewed the trial court’s judgment summarily denying the
appellant’s application to seal his record of conviction under R.C. 2953.32. We
noted that our court, “as well as other appellate courts, have reversed a trial court’s
decision to deny an application pursuant to R.C. 2953.32 when it fails to place its
findings on the record for review.” Id. at ¶ 19. We stated:
We further find guidance in the Ohio Supreme Court’s reasoning
requiring trial courts to issue findings on the record when granting or
denying a motion for a new trial for the express purpose of appellate
review: “[W]ithout some articulated basis for granting a new trial, the
trial court’s decision is virtually insulated from meaningful appellate
review. As previously stated, an appellate tribunal will not reverse the
trial court’s ruling absent an abuse of discretion. However, when the
trial court offers no reasons for its decision, the court of appeals
practically must defer to the trial court’s conclusion that the verdict
was against the weight of the evidence.” Antal v. Olde Worlde
Products, Inc. (1984), 9 Ohio St. 3d 144, 146, 9 Ohio B. 392, 459 N.E.2d
223.
Id. at ¶ 20. Based on that, we found that because the trial court
offered no reasons for its denial of [the appellant’s] application, we
cannot simply defer to the trial court’s discretion in this matter —
especially in light of the overwhelming information presented in
M.D.’s application and at the hearing, establishing that he is not only
remorseful, but also that he is a highly productive member of society,
a valued friend, father, son, and husband, and a man of high moral
character.
Id. at ¶ 21.
We reached the same conclusion in State v. B.H., 8th Dist. Cuyahoga
No. 106380, 2018-Ohio-2649, in which the trial court summarily denied the
appellant’s application for expungement under R.C. 2953.32. In reversing the trial
court’s decision, we stated,
[T]he trial court summarily denied B.H.’s application; it did not state
its findings on the record, either at the hearing or in its journal entry.
Accordingly, we cannot discern from the record what discretion the
trial court exercised. Did it determine that B.H. was not an eligible
offender in light of her prior sealed convictions? Or did the trial court
exercise its discretion to not consider the prior sealed convictions and
conclude she was an eligible offender, but did not qualify for
expungement under the other factors listed in R.C 2953.32(C)(1)?
Without any findings or conclusions, it is impossible to tell. We
cannot, however, simply defer to the trial court’s discretion.
Id. at ¶ 15.
While M.D. and B.H. concerned applications for expungement
under R.C. 2953.32, we find their analyses apply in the instant case. Like those
cases involving applications for expungement, we review a trial court’s decision
denying a petition for a CQE under an abuse 0f discretion standard. While the
state is correct that R.C. 2953.25 does not require the trial court to set forth its
reasoning in denying a petition, the expungement statute also does not explicitly
require such findings. Yet, we have found that those findings are essential for us
to review for an abuse of discretion even in the absence of a statutory requirement.
Without those findings, we are unable to uphold our appellate duty
(reviewing for an abuse of discretion). We find that we are unable to discern what
discretion the trial court exercised without having its reasoning in the record,
including whether the trial court denied the petition because it was incomplete.
Such a basis, however, would be an abuse of discretion because R.C. 2953.25
clearly prohibits a denial on such a basis. R.C. 2953.25(C)(4). Alternatively, the
trial court could have denied Harris’s petition because it found that she did not
suffer a “collateral sanction.” R.C. 2953.25(B)(2). Or it could have denied the
petition because it concluded that the petition would not materially assist Harris
in obtaining employment; or that Harris does not have a substantial need for the
relief requested in order to live a law-abiding life; or because granting the petition
posed an unreasonable risk of safety to the public or another individual. R.C.
2953.25(C)(3). Put simply, we are left to speculate why the trial court exercised its
discretion in the way it did and are unable to review whether such an exercise was
an abuse of that discretion.
Therefore, we hold that a trial court must set forth its findings when
denying a petition for a CQE, and we reverse and remand. To be clear, we are
reversing and remanding this case based on the lack of findings set forth by the
trial court. The trial court is still free to grant or deny Harris’s petition within the
confines of R.C. 2953.25.
Judgment reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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 J. BOYLE, JUDGE
EILEEN T. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR