State v. Singo

[Cite as State v. Singo, 2014-Ohio-5335.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27094
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TIMOTHY SINGO COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 04 0963
DECISION AND JOURNAL ENTRY
Dated: December 3, 2014
MOORE, Judge.
{¶1} Defendant-Appellant, Timothy Singo, appeals from the judgment of the Summit
County Court of Common Pleas, denying his second motion to seal his record of conviction.
This Court affirms.
I.
{¶2} As a result of an incident that occurred on April 12, 2011, a grand jury indicted
Mr. Singo on two counts: (1) improperly handling a firearm in a motor vehicle, a fifth-degree
felony in violation of R.C. 2923.16(E)(2); and (2) aggravated menacing, a first-degree
misdemeanor in violation of R.C. 2903.21. Mr. Singo ultimately agreed to plead guilty to
reduced charges. In exchange for his guilty plea, the State agreed to dismiss the charge of
aggravated menacing and reduce the charge of improperly handling a firearm to a first-degree
misdemeanor. The trial court accepted the plea, found Mr. Singo guilty of the amended charge
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of improperly handling a firearm in a motor vehicle, and sentenced him to one year of probation.
Mr. Singo completed his term of probation without incident.
{¶3} On October 19, 2012, Mr. Singo filed a motion to seal his record of conviction.
The State did not file any objection to Mr. Singo’s motion. At the hearing the court conducted
on the motion, however, the prosecutor noted his objection to the sealing. The trial judge then
denied Mr. Singo’s motion, citing her “great concern” regarding the allegations underlying Mr.
Singo’s case. Mr. Singo did not appeal from the court’s denial of his first motion.
{¶4} On August 5, 2013, Mr. Singo filed a second motion to seal his record of
conviction. The State did not file a response to the motion, and the court did not hold a hearing
on it. Instead, the court denied the motion, writing that “for good cause shown, IT IS
ORDERED that the Court’s [prior] Journal Entry * * * stands, and further, [Mr. Singo’s] Motion
for Expungement of Record of Conviction filed on August 5, 2013 is denied.”
{¶5} Mr. Singo now appeals from the trial court’s denial of his second motion and
raises three assignments of error for our review. For ease of analysis, we consolidate Mr.
Singo’s assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH ITS
STATUTORY OBLIGATIONS.
ASSIGNMENT OF ERROR II
THE TRIAL COURT VIOLATED [MR. SINGO’S] SIXTH AMENDMENT
RIGHTS BY CONSIDERING FACTS PERSONALLY KNOWN TO IT IN
RENDERING ITS DECISION.
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ASSIGNMENT OF ERROR III
THE TRIAL COURT VIOLATED [MR. SINGO’S] RIGHT TO DUE PROCESS
BY FAILING TO REQUIRE OBJECTION BE FILED PRIOR AND FAILING
TO AFFORD AN OPPORTUNITY TO RESPOND TO THE UNCHALLENGED
ALLEGATIONS AND IMPROPER OBJECTION OF THE STATE.
{¶6} In his assignments of error, Mr. Singo argues that the trial court erred when it
denied his motion to seal. Specifically, he argues that the court: (1) failed to comply with the
mandates of R.C. 2953.37; (2) erred by relying on facts that did not form the basis of his
conviction; and (3) violated his due process rights by not affording him a meaningful opportunity
to respond to the State’s oral objection to his motion. Because we must conclude that Mr.
Singo’s appeal is barred by res judicata, we do not address his assignments of error on the merits.
{¶7} On September 30, 2011, the General Assembly enacted Senate Bill 17; a bill
aimed at restructuring the law that governs concealed carry licensees. The bill amended R.C.
2923.16 (improperly handling a firearm in a motor vehicle) such that certain acts would no
longer be considered violations of that statute. Additionally, the bill created a new expungement
statute, targeted at expunging convictions that had arisen under the broader language found in
former R.C. 2923.16. Under the new expungement statute,
[a]ny person who was convicted of * * * a violation of division (B), (C), or (E) of
section 2923.16 of the Revised Code as the division existed prior to September
30, 2011, and who is authorized by [R.C. 2923.16(H)(2)(a)] to file an application
under this section for the expungement of the conviction record may apply to the
sentencing court for the expungement of the record of conviction.
R.C. 2953.37(B). Relevant to this appeal, R.C. 2923.16(H)(2)(a) permits an offender to apply
for an expungement under the foregoing division if the offender: (1) was convicted of a violation
of R.C. 2923.16(E) as it existed prior to September 30, 2011; and (2) “if the conduct that was the
basis of the violation no longer would be a violation of [R.C. 2923.16(E)] on or after September
30, 2011.”
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{¶8} After an offender files an expungement application under R.C. 2953.37, the
prosecutor may file an objection to the application, and the court must conduct a hearing. R.C.
2953.37(C). At the hearing,
the trial court must (1) determine whether the conduct that was the basis of the
violation for which the applicant was convicted would no longer be a violation of
R.C. 2923.16(E), (2) consider the prosecutor’s reasons against expungement as
specified in the objections, and (3) weigh the applicant’s interests in expungement
against the government’s legitimate needs, if any, to maintain the records
pertaining to the applicant’s conviction.
State v. McCreery, 9th Dist. Summit No. 26417, 2012-Ohio-5656, ¶ 8, citing R.C.
2953.37(D)(1)(a), (c), (d).
{¶9} Mr. Singo filed his first motion for sealing on October 19, 2012. In his motion,
Mr. Singo did not cite R.C. 2953.37. Instead, he cited R.C. 2953.52, a statute that allows “the
official record of a criminal case to be sealed if the defendant was acquitted, the case was
dismissed, or a grand jury returned a no bill.” State v. Boykin, 9th Dist. Summit Nos. 25752 &
25845, 2012-Ohio-1381, ¶ 5. That statute was clearly inapplicable to Mr. Singo, as he was
convicted as a result of pleading guilty. Nevertheless, when Mr. Singo appeared at his
expungement hearing with his attorney, his attorney specifically noted that Mr. Singo was
“qualified [for expungement] based on the modifications made by the statute and the legislative
action back in September of 2011.” Moreover, in considering Mr. Singo’s motion, the trial court
stated:
The Court recognizes the recent changes in the statute that would allow for
sealing of this matter. The Court also knows that in terms of the change, part of
the analysis is whether the conduct that was the basis of the violation no longer
would be a violation of that division on or after the effective date. I believe the
code section was under E to which he pled.
The court ultimately denied Mr. Singo’s motion because it determined that the State’s interest in
maintaining his conviction outweighed his interest in having his record expunged.
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{¶10} Mr. Singo filed his second motion for sealing on August 5, 2013. In his motion,
Mr. Singo specifically sought sealing under R.C. 2953.37. Yet, he did not allege that any
circumstances had changed since the filing of his first motion. He merely asked the court to
expunge his conviction under R.C. 2953.37. The trial court denied his second motion for sealing
without a hearing.
{¶11} Mr. Singo has appealed pro se from the trial court’s denial of his second motion
for sealing. With respect to pro se litigants, this Court has observed that
pro se litigants should be granted reasonable leeway such that their motions and
pleadings should be liberally construed so as to decide the issues on the merits, as
opposed to technicalities. However, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that he remains subject to
the same rules and procedures to which represented litigants are bound. He is not
given greater rights than represented parties, and must bear the consequences of
his mistakes. This Court, therefore, must hold [pro se appellants] to the same
standard as any represented party.
(Internal citations omitted.) Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶
3; Countrywide Home Loans Servicing, L.P. v. Murphy-Kesling, 9th Dist. Summit No. 25297,
2010-Ohio-6000, ¶ 4.
{¶12} “It is well established that res judicata prohibits the consideration of issues that
could have been raised on direct appeal.” State v. Knuckles, 9th Dist. Summit No. 26801, 2013-
Ohio-4173, ¶ 9. Res judicata applies to successive motions for sealing when there has been no
change of circumstances since the filing of the offender’s prior motion. See State v. Haney, 10th
Dist. Franklin No. 99AP-159, 1999 WL 1054840 (Nov. 23, 1999). Were it otherwise, there
would be no disincentive to offenders who might file repeated motions for sealing in the hopes of
obtaining a different outcome, based on the same set of circumstances.
{¶13} Throughout his brief, Mr. Singo cites to the transcript of the hearing that the trial
court held on his first motion for sealing. He argues that the court failed to consider certain
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statutory factors at the hearing, allowed the State to enter an improper objection, denied him the
opportunity to respond to the improper objection, and considered factually incorrect allegations
in denying his motion. Mr. Singo, however, did not appeal from the judgment entry that the
court issued as a result of that hearing. Any errors that the court may have committed in the
context of denying his first motion for sealing were errors that Mr. Singo could have raised on
direct appeal. Because he did not appeal from the court’s denial of his first motion for sealing,
res judicata now prohibits this Court’s consideration of those issues. See Knuckles at ¶ 9.
{¶14} Mr. Singo argues that res judicata does not bar his current appeal because his two
motions for sealing arose under different statutes. According to Mr. Singo, his first motion for
sealing only cited to R.C. 2953.52, so the court only denied his motion under that statute.
Because his second motion for sealing relied upon R.C. 2953.37, Mr. Singo argues that he should
now be permitted to appeal from the court’s denial of his motion under that specific statute.
Assuming that res judicata would not prohibit an offender from pursuing successive motions for
sealing on different statutory grounds in the absence of any other change in circumstances, the
record does not support Mr. Singo’s argument that the court did not employ R.C. 2953.37 in
denying his first motion for sealing.
{¶15} As previously noted, R.C. 2953.52 governs applications for sealing in cases where
the defendant “was acquitted, the case was dismissed, or a grand jury returned a no bill.”
Boykin, 2012-Ohio-1381, at ¶ 5. On its face, that statute did not apply to Mr. Singo. Further, the
record reflects that both Mr. Singo’s counsel and the trial court discussed R.C. 2953.37 at the
hearing on Mr. Singo’s first motion for sealing. The court specifically discussed the recent
changes to the statutory scheme and noted that it had to analyze whether Mr. Singo’s “conduct
that was the basis of the violation no longer would be a violation of that division on or after the
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effective date” of the statutory revisions. Accordingly, the court referenced R.C. 2953.37 and
quoted directly from R.C. 2923.16(H)(2)(a) in considering Mr. Singo’s first motion. The record
does not support Mr. Singo’s argument that the court did not decide his first motion for sealing
under R.C. 2953.37. Although the court did not cite R.C. 2953.37 in its entry denying Mr.
Singo’s first motion, Mr. Singo failed to appeal from that judgment entry.
{¶16} With regard to his second motion for sealing, Mr. Singo argues that the court
erred by failing to hold a hearing. Mr. Singo’s motion, however, did not present the court with
any new circumstances that had occurred since the filing of his prior motion. The trial court
could, therefore, properly deny Mr. Singo’s motion without a hearing on the basis of res judicata.
Compare State v. Schwartz, 1st Dist. Hamilton No. C-040390, 2005-Ohio-3171, ¶ 9-10 (res
judicata did not bar subsequent motion for sealing where there was a showing of a change of
circumstances). Although the trial court did not specify that it was denying Mr. Singo’s motion
for that reason, “this Court may affirm its ultimate decision on other legally correct grounds.”
State v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 42. Upon our review of the
record, we cannot conclude that the trial court erred by denying Mr. Singo’s second motion for
sealing. Consequently, Mr. Singo’s assignments of error are overruled.
III.
{¶17} Mr. Singo’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, J.
CONCURS.
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶18} I concur in the majority’s judgment to affirm the trial court’s denial of Mr.
Singo’s motions for expungement; however, I would decline to apply res judicata to this case.
{¶19} Mr. Singo has appealed from both of the judgment entries of the trial court. In
entering both of its rulings on Mr. Singo’s motions, the trial court did not include a Civ.R. 58(B)
directive to the clerk. Nor does the docket reflect that Mr. Singo was ever served with either
ruling. Because Mr. Singo was not served with either ruling in compliance with Civ.R. 58(B),
the 30-day time period for any appeal from those rulings never commenced. See App.R. 4(A);
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see also State v. Hutchen, 191 Ohio App.3d 388, 2010-Ohio-6103, ¶ 6 (2d Dist.) (noting the civil
nature of expungement proceedings and applying Civ.R. 58(B) and App.R. 4(A) to the facts of
the case). Accordingly, Mr. Singo has timely appealed from both rulings. See Blair v. Wallace,
9th Dist. Summit No. 24819, 2010-Ohio-2734, ¶ 12-13. Because I would consider Mr. Singo’s
appeal from both rulings to be timely, res judicata would be inapplicable to this matter.
{¶20} Nonetheless, based on Mr. Singo’s arguments on appeal and the record before us,
I cannot conclude the trial court committed reversible error in denying his motions.
Accordingly, I concur in the majority’s judgment.
APPEARANCES:
TIMOTHY P. SINGO, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.