State v. J.B. ( 2024 )

[Cite as State v. J.B., 2024-Ohio-1879.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230499
C-230500
and : C-230501
C-230502
CITY OF CINCINNATI, : C-230503
C-230504
Plaintiffs-Appellees, : C-230505
TRIAL NOS. 12CRB-21204
: C-12CRB-29845
VS. 14CRB-14457
: C-14CRB-14902
C-14CRB-25518
J.B., : C-15CRB-27045-A and B
C-16CRB-16349
Defendant-Appellant. :
:
O P I N I O N.
:
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 17, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
Emily Smart Woerner, City Solicitor, William T. Horsely, Chief Prosecuting
Attorney, and Julie Myers, Assistant Prosecuting Attorney, for Plaintiff-Appellee City
of Cincinnati,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} From 2012 through 2016, defendant-appellant J.B. entered guilty pleas
to seven misdemeanor charges in Hamilton County. In 2023, she filed pro se
applications to seal the records of these convictions to facilitate professional licensure
and employment opportunities as she completes her Doctor of Social Work (“DSW”)
degree. Although neither the state nor the city objected, the trial court refused to seal
her records, relying on her subsequent misdemeanor convictions in 2018 and 2019
and a state interest that the state never articulated (and that a trial court could utilize
to override an applicant’s need for sealing in virtually every case). J.B. now appeals,
maintaining that the trial court erred when it denied her applications to seal the
records of her misdemeanor convictions. We agree, and we accordingly sustain J.B.’s
sole assignment of error, reverse the trial court’s judgments, and remand the matter
to the trial court with instructions to seal the records of J.B.’s seven misdemeanor
convictions at issue in this case.1
I.
{¶2} In 2012, J.B. was charged with theft and accused of shoplifting
merchandise valued at $267 from Meijer and merchandise valued at $224 from
Target. For each charge, she entered a guilty plea to an amended charge of
unauthorized use of property, a fourth-degree misdemeanor. She received community
control sentences for both charges, but because she violated the terms and conditions
of community control, her probation was terminated unsuccessfully.
{¶3} In 2014, J.B. was twice again charged with theft, was additionally
charged with obstructing official business, and was accused of lying at a crime scene.
1 We note that J.B. also applied for and was denied record sealing regarding one dismissal.
Although J.B. did not raise that issue on appeal, given our conclusions below, a fortiori the
dismissal should have been sealed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Regarding the theft charges, she was accused of shoplifting merchandise valued at
$179 from Meijer and of stealing an envelope containing $700 from an individual at a
gas station. Regarding the Meijer theft, she entered a guilty plea to an amended charge
of unauthorized use of property, a fourth-degree misdemeanor. For the other theft,
she entered a guilty plea to an amended charge of attempted theft, a second-degree
misdemeanor. And regarding the obstruction charge, she entered a guilty plea to an
amended charge of disorderly conduct, a fourth-degree misdemeanor. In all three
cases, she received community control sentences but subsequently violated the terms
and conditions of community control. Thus, her probation was terminated
unsuccessfully, and she was incarcerated.
{¶4} In 2015, J.B. was charged with obstructing official business and
resisting arrest when she resisted the efforts of police officers to place her in handcuffs.
She entered a guilty plea to the resisting arrest charge, a second-degree misdemeanor,
and the obstruction charge was dismissed. The court ordered her to pay a fine and
costs.
{¶5} In 2016, J.B. was charged with obstructing official business, a second-
degree misdemeanor, after she gave police officers a false name during an
investigation to conceal the fact that she had an outstanding warrant for her arrest.
She entered a guilty plea. The court ordered her to pay a fine and costs.
{¶6} Once in 2018 and once in 2019, J.B. was again charged with and
convicted of misdemeanor theft of an amount less than $1,000 in Kettering and
Warren respectively. The details of these convictions (including the amounts of the
thefts) are not contained in the record, nor are those convictions at issue in this appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} In June 2023, seven years after the most recent offense at issue and four
years after her cessation of criminal activity, J.B. filed pro se applications to have the
records of seven misdemeanor cases from 2012 through 2016 (outlined above) and
several traffic matters sealed. In August 2023, the trial court held a hearing on her
applications for sealing. Some of the charges were prosecuted by the city prosecutor’s
office, while the county prosecutor’s office prosecuted others. Both prosecutors
attended the hearing, and neither the state nor the city voiced any objection to J.B.’s
request. Additionally, the prosecuting witnesses in the cases J.B. sought to have sealed
were contacted prior to the hearing and had an opportunity to object, but all declined
to appear.
{¶8} During the hearing, the court asked J.B. why she sought the
applications, what type of work she hoped to pursue, and if she was seeking a
particular job opportunity or “just trying to be proactive.” In response to these
questions, J.B.—who was not represented by counsel—shared that she was seeking
record sealing because she was completing her DSW and would need to complete a
background check for her social work license. Further, she noted that “[i]t’s just not
me anymore,” essentially explaining that she had turned her life around. And she
informed the court that she had already sought and was granted a certificate of
qualification for employment (“CQE”) in 2021. She shared that while she is not
currently seeking new employment, she had previously applied for a job with the
“Justice Center” that required a background check, and she was not hired for the
position, noting her “background really mattered for the position” and stating, “that’s
what kind of sparked me to get this going.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The trial court noted that the traffic matters were not legally eligible for
record sealing. It then indicated that it wished to have additional time to consider the
applications, continuing the matter for entry and decision. Ultimately, the trial court
denied all seven of J.B.’s applications. In pronouncing its decisions, the court first
concluded that she was not rehabilitated. It stated that “[n]o evidence of
rehabilitation was offered aside from the applicant’s general statement, ‘that’s just
not me anymore’ ” and referenced the number of misdemeanor convictions on her
record.
{¶10} Then, the trial court weighed J.B.’s interest in having the records sealed
against the government’s interest:
Although the court appreciates the applicant’s desire to pursue
employment and better her circumstances without disclosing such
records to potential employers, the court cannot find that her interest
outweighs the government interest in protecting the public’s “need to
know.” The facts related to this offense involve dishonesty [or concern
a crime against justice and public administration]. The applicant’s
profession involves a position of trust both in terms of the clients she
serves and the employer. They have a right to know of these proceedings
and address them as they see fit. Ultimately, they are able to choose for
themselves whether or not [J.B.] is worthy of their trust.
{¶11} J.B. now challenges the denial of her seven misdemeanor record sealing
applications.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶12} In her sole assignment of error, J.B. contends that the trial court abused
its discretion when it denied her applications to seal the records of her misdemeanor
convictions. Specifically, she argues that the trial court based its decisions on the
number of and the nature of her convictions.
{¶13} This court reviews a trial court’s decision to deny an application for
criminal record sealing for an abuse of discretion. See State v. A.S., 2022-Ohio-3833,
199 N.E.3d 994, ¶ 5 (1st Dist.), citing State v. McVean, 1st Dist. Hamilton Nos. C-
210459 and C-210460, 2022-Ohio-2753, ¶ 7. An abuse of discretion occurs when “a
court exercis[es] its judgment, in an unwarranted way, in regard to a matter over
which it has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶14} Criminal record sealing “ ‘is an act of grace’ created by the state.” A.S.
at ¶ 5, quoting State v. R.S., 1st Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-
210172 and C-210173, 2022-Ohio-1108, ¶ 10. As part of the General Assembly’s effort
to reduce collateral consequences (for example, limitations on housing options,
educational opportunities, and the ability to obtain gainful employment) and enable
ex-offenders to reintegrate into their communities, “R.C. 2953.32 provides persons
with qualifying offenses who have demonstrated rehabilitation with a second chance,
so that they can avoid these collateral consequences of a criminal record and the
associated obstacles to becoming a thriving and productive member of society.” Id. at
¶ 10, citing R.S. at ¶ 10.
{¶15} R.C. 2953.32 “governs a trial court’s decision to grant or deny an
application to seal a record of conviction[.]” Id. at ¶ 6. The Ohio legislature has
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OHIO FIRST DISTRICT COURT OF APPEALS
continually expanded eligibility for record sealing, and Ohio courts have responded to
the legislature’s expansion of relief from collateral consequences. See id. at ¶ 7,
quoting State v. Young, 5th Dist. Morrow No. 2021 CA 0009, 2022-Ohio-593, ¶ 21
(“R.C. 2953.32 is * * * ‘construed liberally to promote [its] purpose and assist the
parties in obtaining justice.’ ”). The most recent sweeping changes to record sealing
and expungement in Ohio took effect in April 2023. See 2022 Am.Sub.S.B. No. 288.
The amendments included enacting new provisions permitting applications for
expungement (where the criminal record is destroyed from all records), shortening
waiting periods, and requiring the court to hold a hearing between 45 and 90 days
after the filing date of an application. See id. Additionally, trial courts were previously
required to consider the number of convictions to determine if an applicant was
eligible for record sealing. See former R.C. 2953.31(A)(1). But now, the number of
misdemeanor convictions on an applicant’s record does not render them ineligible for
relief. See R.C. 2953.31; R.C. 2953.32(A)(1). J.B. applied to seal her criminal records
in June 2023 (after the most recent changes had taken effect).
{¶16} Under R.C. 2953.32(D)(1), the trial court must perform the following
assessment before granting an application for record sealing or expungement:
(a) Determine whether the applicant is pursuing sealing or expunging
a conviction of an offense that is prohibited * * *;
(b) Determine whether criminal proceedings are pending against the
applicant;
(c) Determine whether the applicant has been rehabilitated to the
satisfaction of the court;
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OHIO FIRST DISTRICT COURT OF APPEALS
(d) If the prosecutor has filed an objection in accordance with division
(C) of this section, consider the reasons against granting the
application specified by the prosecutor in the objection;
(e) If the victim objected, pursuant to the Ohio Constitution, consider
the reasons against granting the application specified by the victim in
the objection;
(f) Weigh the interests of the applicant in having the records
pertaining to the applicant’s conviction or bail forfeiture sealed or
expunged against the legitimate needs, if any, of the government to
maintain those records;
(g) Consider the oral or written statement of any victim, victim’s
representative, and victim’s attorney, if applicable[.]
{¶17} Here, neither the victim nor the prosecutors objected to the
applications, no victim statements were submitted to the court, and the trial court
did not consider any pending criminal proceedings (because none existed). Indeed,
of that entire list, the court found only two factors that pointed away from record
sealing—rehabilitation and whether the government’s interest in maintaining the
records outweighed J.B.’s interest in sealing her records.
{¶18} We first address the trial court’s finding of a lack of rehabilitation. In
its written decisions, the court explained, “No evidence of rehabilitation was offered
aside from the applicant’s general statement, ‘that’s just not me anymore.’ ” It then
referenced her subsequent offenses (with the most recent offense having occurred in
2019) and violations of community control following her offenses in 2012 and 2014.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} J.B.’s statement—“that’s just not me anymore”—demonstrated her
acknowledgement that she has changed since the cessation of her criminal activity.
And contrary to the trial court’s decisions, she offered evidence of rehabilitation aside
from this statement. She shared that she works as a licensed parenting counselor and
is currently pursuing her DSW. J.B. is going into a field with a strong demonstrated
public need. And through her career, she will help people navigate challenging times.
{¶20} She also shared that she previously applied for and was granted a CQE.
These efforts to obtain and maintain employment in a field that benefits the
community are commendable. CQEs are a form of postconviction relief designed to
assist persons with criminal records in obtaining employment by “remov[ing] the
automatic disqualification from employment or occupational licensure in certain
fields.” In re Sanders, 1st Dist. Hamilton No. C-230428, 2024-Ohio-717, ¶ 8, citing
R.C. 2953.25(D)(1). By granting her CQE petition, a court determined that the petition
would assist her in obtaining employment or licensing, that she had a substantial need
for the relief, and that granting the petition would not pose an unreasonable risk to
public safety. See R.C. 2953.25(C)(3). Her criminal activity ceased two years before
she sought her CQE and four years prior to the application for record sealing at issue.
{¶21} The trial court also pointed to the number of her convictions as
evidence of her lack of rehabilitation. In its denial of her application regarding her
earliest offense, the trial court stated: “The probation department reports that since
this 2012 conviction, the applicant was subsequently charged and convicted of
numerous offenses in Hamilton County * * * as well as Theft in at least two other
jurisdictions in Ohio in 2018 and 2019.” And in its denial of each application
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OHIO FIRST DISTRICT COURT OF APPEALS
regarding a subsequent conviction, it continued to reference every conviction that
followed the one at issue.
{¶22} But this court has previously held that “a court cannot deny an
application to seal based solely on the * * * number of offenses, if the records of those
offenses are eligible for sealing under the law.” State v. G.H., 1st Dist. Hamilton Nos.
C-230013 and C-230014, 2023-Ohio-3269, ¶ 22. And the legislature seemingly
indicated its agreement with our conclusion in G.H. Since G.H., the General Assembly
expanded eligibility for record sealing: the number of misdemeanor convictions on an
applicant’s record no longer renders them ineligible for relief. See R.C. 2953.32(A)(1).
J.B. applied to seal her criminal records after the most recent changes had taken effect.
And while the state argues that this court should reconsider our holding in G.H., we
abide by the prior decision of this court and acknowledge the Ohio legislature’s intent
to expand record sealing as an avenue for relief. The Ohio legislature has permitted
qualified applicants to seek record sealing relief for an unlimited number of eligible
misdemeanor offenses, acknowledging that individuals may quickly accumulate
misdemeanors. Thus, the focus of rehabilitation is the applicant’s progress following
the last offense, not simply the number of previous offenses.
{¶23} The city and the state maintain that pursuant to R.C.
2953.32(D)(1)(h)(iii), the court must consider “the cessation or continuation of
criminal behavior.” But that analysis is limited to cases involving offenses under R.C.
2953.36. See R.C. 2953.32(D)(1)(h). As J.B.’s convictions fall outside the scope of R.C.
2953.36, the R.C. 2953.32(D)(1)(h) analysis was inapplicable. Instead, in considering
J.B.’s rehabilitation status, the court had to “[d]etermine whether the applicant ha[d]
been rehabilitated to the satisfaction of the court.” R.C. 2953.32(D)(1)(c). And
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OHIO FIRST DISTRICT COURT OF APPEALS
regardless, according to the record, J.B. ceased criminal behavior four years before
applying for record sealing. Thus, the court’s finding that J.B. was not sufficiently
rehabilitated was unsupported by the record.
{¶24} Turning to the trial court’s second basis for its denials, it concluded that
the government’s interest in maintaining the records of J.B.’s convictions outweighed
J.B.’s interest in sealing the records. Specifically, the trial court weighed J.B.’s interest
in advancing her career in social work against the government’s interest in
“maintain[ing] public records of criminal proceedings and thereby safeguard[ing] the
public’s ‘right to know.’ ”
{¶25} “The applicant has the burden ‘of demonstrating that [her] interests in
having the records in the case[s] sealed are at least equal to the legitimate
governmental need to maintain the record.’ ” A.S., 2022-Ohio-3833, 199 N.E.3d 994,
at ¶ 12, quoting State v. Haney, 70 Ohio App.3d 135, 139, 590 N.E.2d 445 (10th
Dist.1991). During the hearing, J.B. shared that she was previously denied
employment based on her criminal record. When she applied for a job with the
“Justice Center,” she had to complete a background check. She stated that her
“background really mattered for the position” and that she was ultimately not hired
for the job. She even noted the experience is what “sparked [her] to get [the record
sealing process] really going.” She also shared that she is in the process of pursuing
her DSW and will have to complete a background check to obtain her license.
{¶26} Notably, likely in recognition of the legislature’s expansion of record
sealing, neither the state nor the city objected to J.B.’s application for record sealing.
Nor did they advance any state interest in maintaining public access to her records.
While they defend the trial court’s denial on appeal, by not objecting below, the city
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OHIO FIRST DISTRICT COURT OF APPEALS
and state failed to give the adversarial system a chance to function. They did not make
J.B. aware of any basis for an objection, denying her the opportunity to address their
concerns below. Under such circumstances, the trial court typically should not place
great weight on a governmental interest that the government has not bothered to
identify.
{¶27} And the court’s finding improperly relied on the nature of the offenses,
noting that her offenses either involved dishonesty or were “a crime against justice and
public administration.” Because as a social worker, her “profession involves a position
of trust[,]” the court concluded that her clients and employers have a right to know of
the proceedings. This court has “ ‘previously held that the nature of the offense cannot
provide the sole basis to deny an application to seal records’ ” because the legislature
has already decided which offenses are eligible for record sealing. G.H., 1st Dist.
Hamilton Nos. C-230013 and C-230014, 2023-Ohio-3269, at ¶ 22, quoting R.S., 1st
Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172 and C-210173, 2022-
Ohio-1108, at ¶ 29.
{¶28} While we acknowledge that the public has an interest in knowledge of
criminal records, the Ohio legislature would have exempted the offenses at issue from
eligibility for record sealing if that interest was paramount. See, e.g., State v. M.H.,
8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, ¶ 19. Instead, the Ohio legislature
has not exempted any of the misdemeanor offenses at issue from eligibility for record
sealing.
{¶29} Although the court concluded that the government’s interest in
maintaining the records outweighed J.B.’s interest in having the records sealed, the
record points in the other direction. J.B. has a strong interest in sealing the records of
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OHIO FIRST DISTRICT COURT OF APPEALS
her convictions. Since her convictions, she has applied for and been granted a CQE.
She is pursuing her DSW and the applicable state licensure to further her career in
social work, and her license is jeopardized by the required background check. She has
not had any further contact with the criminal justice system since 2019, four years
before she applied for record sealing, and all of her convictions were for
misdemeanors. The state and city both declined to offer any interest in response and
did not oppose the sealing of the records.
{¶30} On this record, the trial court failed to invoke a sufficient government
interest to support its decisions to deny J.B.’s applications to seal her records. And as
explained above, the court’s finding that J.B. was not sufficiently rehabilitated was
unsupported by the record. Therefore, the trial court’s denial of her applications
constituted an abuse of discretion.
* * *
{¶31} In light of the record and the foregoing analysis, we sustain J.B.’s sole
assignment of error, reverse the trial court’s judgments, and remand the matter to
the trial court with instructions to seal the records of J.B.’s seven misdemeanor
convictions at issue in this case.
Judgments reversed and cause remanded.
CROUSE and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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