State v. Porter

[Cite as State v. Porter, 2014-Ohio-4068.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 14AP-158
v. : (C.P.C. No. 13EP-854)
Nancy Porter, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 18, 2014
Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellant.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the
Franklin County Court of Common Pleas sealing the record of two felony convictions
entered against defendant-appellee, Nancy Porter.1 For the reasons that follow, we
reverse the judgment and remand the case to the trial court.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} On October 28, 2013, appellee filed an application, pursuant to R.C.
2953.32, asking that the trial court seal the record of her convictions for two counts of
forgery, felonies of the fifth degree, in criminal case No. 07CR-1534. Appellee was
convicted of the offenses in July 2007. The memorandum in support of the application
noted simply that appellee was an eligible offender as defined in R.C. 2953.31, that more
1 Nancy Porter did not file an appellate brief.
No. 14AP-158 2
than three years had lapsed since her convictions, and that appellee otherwise satisfied
the requirements of R.C. 2953.32 for granting of the application.
{¶ 3} The state filed an objection to the application. The state acknowledged
appellee was an eligible offender; however, the state asserted the government had
legitimate interests in maintaining appellee's record, which outweighed appellee's
interests in having the record sealed. Specifically, the state argued appellee had, during a
two-month time period, forged the name of her employer, an elderly person, to two
checks in order to obtain the proceeds of those checks. The state argued the government
had an interest in maintaining appellee's record given the seriousness of her conduct and
the government's interest in maintaining records on crimes of dishonesty. The state
noted appellee's "boilerplate" application failed to explain her interests in having the
record sealed. (R. 21, 3.)
{¶ 4} The trial court held a hearing on the application on January 24, 2014.
Appellee did not appear for the hearing. Subsequently, the trial court issued an entry
sealing the record of appellee's convictions under R.C. 2953.32.
II. ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN
GRANTING AN APPLICATION TO SEAL A FELONY
CONVICTION WHERE THE DEFENDANT FAILED TO
DEMONSTRATE ANY PARTICULAR NEED.
III. DISCUSSION
{¶ 5} Under its sole assignment of error, the state contends the trial court abused
its discretion in granting the application to seal appellee's record because appellee failed
to demonstrate her interests in having the record sealed was equal to or greater than the
government's interests in maintaining the record.
{¶ 6} "An appellate court generally reviews a trial court's disposition of an
application for an order sealing the record of conviction under an abuse of discretion
standard." State v. Evans, 10th Dist. No. 13AP-939, 2014-Ohio-2081, ¶ 9, citing State v.
Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4. The phrase abuse of discretion
connotes an attitude on the part of the trial court that is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
No. 14AP-158 3
{¶ 7} "The sealing of a criminal record, also known as expungement, * * * is an
'act of grace created by the state.' " State v. Boykin, 138 Ohio St. 3d 97, 2013-Ohio-4582,
¶ 11, quoting State v. Hamilton, 75 Ohio St. 3d 636, 639 (1996), citing State v. Pariag, 137
Ohio St. 3d 81, 2013-Ohio-4010, ¶ 11. "It should be granted only when all requirements for
eligibility are met, because it is a 'privilege, not a right.' " Id., quoting State v. Futrall, 123
Ohio St. 3d 498, 2009-Ohio-5590, ¶ 6.
{¶ 8} R.C. 2953.32(A)(1) permits an eligible offender to apply for the sealing of a
conviction record. If convicted of a felony, the application may be made at the expiration
of three years after the offender's final discharge. R.C. 2953.32(A)(1). Upon the filing of
an application, the trial court must, among other things, set a date for a hearing on the
application and notify the prosecutor for the case of the hearing. R.C. 2953.32(B). "The
prosecutor may object to the granting of the application by filing an objection with the
court prior to the date set for the hearing. The prosecutor shall specify in the objection
the reasons for believing a denial of the application is justified." R.C. 2953.32(B).
{¶ 9} The court must also do each of the following:
(a) Determine whether the applicant is an eligible offender or
whether the forfeiture of bail was agreed to by the applicant
and the prosecutor in the case. If the applicant applies as an
eligible offender pursuant to division (A)(1) of this section and
has two or three convictions that 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, in making its
determination under this division, the court initially shall
determine whether it is not in the public interest for the two
or three convictions to be counted as one conviction. If the
court determines that it is not in the public interest for the two
or three convictions to be counted as one conviction, the court
shall determine that the applicant is not an eligible offender; if
the court does not make that determination, the court shall
determine that the offender is an eligible offender.
(b) Determine whether criminal proceedings are pending
against the applicant;
No. 14AP-158 4
(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;
(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;
(e) Weigh the interests of the applicant in having the records
pertaining to the applicant's conviction sealed against the
legitimate needs, if any, of the government to maintain those
records.
(Emphasis added.) R.C. 2953.32(C)(1).
{¶ 10} In addition, R.C. 2953.32(C)(2) provides:
If the court determines, after complying with division (C)(1) of
this section, that the applicant is an eligible offender or the
subject of a bail forfeiture, that no criminal proceeding is
pending against the applicant, and that the interests of the
applicant in having the records pertaining to the applicant's
conviction or bail forfeiture sealed are not outweighed by
any legitimate governmental needs to maintain those
records, and that the rehabilitation of an applicant who is an
eligible offender applying pursuant to division (A)(1) of this
section has been attained to the satisfaction of the court, the
court, except as provided in divisions (G) and (H) of this
section, shall order all official records pertaining to the case
sealed and, except as provided in division (F) of this section,
all index references to the case deleted and, in the case of bail
forfeitures, shall dismiss the charges in the case. The
proceedings in the case shall be considered not to have
occurred and the conviction or bail forfeiture of the person
who is the subject of the proceedings shall be sealed, except
that upon conviction of a subsequent offense, the sealed
record of prior conviction or bail forfeiture may be considered
by the court in determining the sentence or other appropriate
disposition, including the relief provided for in sections
2953.31 to 2953.33 of the Revised Code.
(Emphasis added.)
{¶ 11} The focus of the state's appeal is on the balancing-of-interests requirement.
The burden is on the applicant to demonstrate her interests in having the record sealed
No. 14AP-158 5
are equal to or greater than the government's interests in maintaining those records.
Evans at ¶ 8, citing Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 13
(indicating applicant has the burden of proof with regard to the balancing test in R.C.
2953.32); State v. Wilson, 10th Dist. No. 13AP-684, 2014-Ohio-1807, ¶ 15 (placing burden
on applicant under R.C. 2953.52, which is analogous to R.C. 2953.32, to demonstrate her
interests in having record sealed are equal to or greater than the government's interests in
maintaining the record)2; State v. Wilson, 10th Dist. No. 06AP-1060, 2007-Ohio-1811,
¶ 8, quoting State v. Reed, 10th Dist. No. 05AP-335, 2005-Ohio-6251, ¶ 13 (stating in
context of R.C. 2953.32 application that " '[t]here is no burden upon the state other than
to object to an application for expungement where appropriate.' ").
{¶ 12} The trial court's entry sealing the record of appellee's convictions states that
the sealing of the record is "consistent with the public interest." (R. 9.) This statement
would seem to indicate the trial court balanced appellee's personal interests against the
government's interests. See Wilson, 2014-Ohio-1807, at ¶ 16 (finding a similar statement
a trial court made in granting an R.C. 2953.52 application suggested the trial court
weighed the interests of the applicant and government).
{¶ 13} However, in the application to seal records, the only statement appellee
made that could arguably implicate R.C. 2953.32(C)(1)(e) was that she "otherwise satisfies
the requirements of R.C. 2953.32 for granting this application." (R. 1.) Merely reciting
the statutory requirements is insufficient to satisfy an applicant's burden to establish her
interests in having her record sealed. See Wilson, 2014-Ohio-1807, at ¶ 17, citing In re
Application for Sealing of Record of Brown, 10th Dist. No. 07AP-715, 2008-Ohio-4105,
¶ 13 (similarly stating with regard to an application under R.C. 2953.52). Because
appellee did not appear at the hearing on her application or otherwise present any
evidence to demonstrate her interests in having the record of her convictions sealed, there
is no evidence to establish appellee's interests. Accordingly, appellee failed to meet her
burden. See Reed at ¶ 14, citing State v. Suel, 10th Dist. No. 02AP-1158, 2003-Ohio-3299,
2 R.C. 2953.52 addresses the sealing of records after a not guilty finding, dismissal of a complaint,
indictment or information, or entry of a no bill by a grand jury. R.C. 2953.52(A). In considering an
application under R.C. 2953.52, similarly to R.C. 2953.32, the trial court must "[w]eigh the interests of the
person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the
government to maintain those records." R.C. 2953.52(B)(2)(d). We have previously stated R.C. 2953.52 and
2953.32 are analogous. State v. Evans, 10th Dist. No. 13AP-158, 2013-Ohio-3891, ¶ 11.
No. 14AP-158 6
¶ 12-14 (stating "[t]here must be sufficient information in the record to support the trial
court's decision to grant an application for expungement"); Wilson, 2014-Ohio-1807, at
¶ 17 (finding applicant failed to meet burden under R.C. 2953.52 where applicant merely
cited the statutory requirements in his application and did not appear at the hearing or
otherwise present evidence regarding his interests in having record of no bill sealed).
{¶ 14} As the trial court was obligated to balance appellee's interests in having the
record sealed against the government's interests in maintaining the record, and appellee
did not put forth any evidence to establish her interests, the trial court abused its
discretion in granting appellee's application to seal her record of convictions. See Wilson,
2014-Ohio-1807, at ¶ 18 (similarly finding with regard to R.C. 2953.52 application).
Accordingly, we sustain the state's sole assignment of error, reverse the trial court's
judgment, and remand this cause to the Franklin County Court of Common Pleas for
proceedings in accordance with law and consistent with this decision.
Judgment reversed and cause remanded.
CONNOR and DORRIAN, JJ., concur.