In re H.S.

[Cite as In re H.S., 2020-Ohio-4530.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: : OPINION
H.S., DELINQUENT CHILD
:
CASE NO. 2020-G-0239
:
Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No.
2015 JD 000167.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, and Natalie E. Harper, Geauga County
Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Appellee, State of Ohio).
Timothy Young, Ohio Public Defender, and Abigail J. Christopher, Assistant Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Appellant,
H.S.).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, H.S., previously adjudicated a delinquent child, appeals from the
December 10, 2019 judgment of the Geauga County Court of Common Pleas, Juvenile
Division, denying her motion to seal her juvenile record. For the reasons set forth herein,
the judgment is affirmed.
{¶2} In May 2015, appellant was charged with seven counts: Complicity to
Commit Aggravated Arson, in violation of R.C. 2909.02(A)(1) and R.C. 2923.03(A)(3), a
felony of the first degree, if committed by an adult; Complicity to Commit Aggravated
Arson, in violation of R.C. 2909.02(A)(2) and R.C. 2923.03(A)(3), a felony of the second
degree, if committed by an adult; Complicity to Commit Vandalism, in violation of R.C.
2909.05(A) and R.C. 2923.03(A)(3), a felony of the third degree, if committed by an adult;
Tampering with Evidence, in violation of R.C. 2921.12(A)(1), a felony of the third degree,
if committed by an adult; Burglary, in violation of R.C. 2911.12(A)(3), a felony of the third
degree, if committed by an adult; Breaking and Entering, in violation of R.C. 2911.12(B),
a felony of the fifth degree, if committed by an adult; and Theft, in violation of R.C.
2913.02(A)(1), a felony of the fifth degree, if committed by an adult. Appellant entered a
plea of “true” to all seven counts.
{¶3} Disposition was held in October 2015, and appellant was committed to the
Department of Youth Services (“DYS”) for a minimum of three years and a total maximum
period ending on her twenty-first birthday and ordered to pay restitution. After serving 15
months, the court granted appellant early release from DYS and ordered the remainder
of appellant’s DYS time suspended. She was placed on probation and subject to several
conditions, including participation in counseling and NA/AA meetings, 40 hours of
community service, and attending college full time or maintaining full employment.
{¶4} In January 2018, the court terminated her probation. In July 2019, appellant
filed a motion to seal her juvenile record. The state opposed the motion and the court
held a hearing on August 21, 2019. Ultimately, the court denied appellant’s motion.
Appellant timely appealed, assigning one error for our review, which states:
{¶5} The lower court abused its discretion by denying H.S.’s motion to
seal her juvenile records based only on the seriousness of the
offense. R.C. 2151.355. (12/10/2019 Entry p.1).
{¶6} An appellate court reviews a lower court’s decision to deny a motion to seal
for abuse of discretion. State v. S.J., 8th Dist. Cuyahoga No. 108126, 2020-Ohio-183,
¶6. “A trial court abuses its discretion when its judgment fails to comport with either
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reason or the record.” In re T.M., 11th Dist. Geauga No. 2016-G-0067, 2017-Ohio-156,
¶14. “An abuse of discretion may be found when the trial court ‘applies the wrong legal
standard, misapplies the correct legal standard, or relies on clearly erroneous findings of
fact.’” Cobb v. Shipman, 11th Dist. Trumbull No. 2013-T-0117, 2015-Ohio-2604 ¶19,
quoting Thomas v. Cleveland, 176 Ohio App. 3d 401, 2008-Ohio-1720 ¶15 (8th Dist.).
“When applying the abuse of discretion standard, a reviewing court is not free to merely
substitute its judgment for that of the trial court.” In re Jane Doe 1, 57 Ohio St. 3d 135,
137-38 (1991). “When, however, it is necessary for an appellate court to interpret and
apply statutory provisions, its standard of review is de novo.” State v. M.J., 11th Dist.
Ashtabula No. 2018-A-0046, 2019-Ohio-1420, ¶5.
{¶7} R.C. 2151.356 governs the sealing of juvenile records. As appellant was
not adjudicated a delinquent child for committing a violation of section 2903.01
(aggravated murder), 2903.02 (murder), or 2907.02 (rape) of the Revised Code, R.C.
2151.356(A) is not applicable. Nor is appellant’s record required to be sealed, pursuant
to R.C. 2151.356(B). Instead, subsection (C) applies to the case sub judice, which
provides, in pertinent part:
{¶8} (2) In making the determination whether to seal records pursuant to
division (C)(1) of this section, all of the following apply:
{¶9} ***
{¶10} (e) After conducting a hearing in accordance with division (C)(2)(d)
of this section or after due consideration when a hearing is not
conducted, except as provided in division (B)(1)(c) of this section, the
court may order the records of the person that are the subject of the
motion or application to be sealed if it finds that the person has been
rehabilitated to a satisfactory degree. In determining whether the
person has been rehabilitated to a satisfactory degree, the court may
consider all of the following:
{¶11} (i) The age of the person;
{¶12} (ii) The nature of the case;
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{¶13} (iii) The cessation or continuation of delinquent, unruly, or criminal
behavior;
{¶14} (iv) The education and employment history of the person;
{¶15} (v) The granting of a new tier classification or declassification from
the juvenile offender registry pursuant to section 2152.85 of the
Revised Code, except for public registry-qualified juvenile offender
registrants;
{¶16} (vi) Any other circumstances that may relate to the rehabilitation of
the person who is the subject of the records under consideration.
{¶17} Appellant asserts the trial court based its decision to deny her motion to seal
based solely on the serious nature of the offenses, and notes that during the hearing the
court stated, “there’s nothing more she needs to do for rehabilitation as far as this court
is concerned.” Accordingly, she argues, the trial court abused its discretion by denying
her motion.
{¶18} However, to argue the court denied her motion to seal based only on the
seriousness of the offense mischaracterizes the court’s rationale. During the hearing, the
court considered all the factors provided in R.C. 2151.356(C)(e): appellant’s age, the
nature of the case, the cessation of or continuation of delinquent, unruly, or criminal
behavior, her education and employment history, and, falling under R.C.
2151.356(C)(2)(e)(iv), the applicability of the arson registry statue, R.C. 2909.14, which
the court ultimately found inapplicable to this case. Thus, any argument that the court did
not consider all the required factors is not supported by the record.
{¶19} Furthermore, appellant argues the court cannot deny a motion to seal when
the only factor weighing against the movant is the seriousness of the offense because,
as the court noted, that factor will never change. Appellant argues this and other courts
have held that the nature of the offense cannot be the sole basis to deny an application
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to seal a record, citing M.J., supra; State v. M.H., 8th Dist. Cuyahoga No. 105589, 2018-
Ohio-582; and State v. Clellan, 10th Dist. Franklin No. 10AP-44, 2010-Ohio-5867.
{¶20} While in each of these cases the appellate court noted that the lower court
may not base its decision to deny a motion to seal based solely on the seriousness of the
offense, those cases applied the adult sealing statute, R.C. 2953.32. Unlike the juvenile
sealing statute applicable here, R.C. 2952.32 requires the sentencing court to, inter alia,
“[w]eigh the interests of the applicant in having the records pertaining to the applicant’s
conviction or bail forfeiture sealed against the legitimate needs, if any, of the government
to maintain those records.” R.C. 2953.32(C)(1). Moreover, the ultimate reason the
appellate courts in M.J., M.H., and Clellan reversed the lower courts’ denials was that the
lower courts failed to weigh, or, as in Clellan, abuse its discretion in weighing, the
legitimate need to keep the record public against the movant’s interests as required by
the adult sealing statute.
{¶21} Furthermore, in M.J., the appellant likewise cited M.H. and Clellan, as well
as several other similar cases from other appellate districts, for the proposition that the
court cannot base its decision solely on the nature of the offense. In interpreting those
cases, this court clarified the rule, stating:
{¶22} The foregoing cases stand for the overarching proposition that a trial
court cannot deny an application without considering, on record,
each of the factors set forth in the statute. As such, a court cannot
deny an application solely on the nature of the offense; if, however,
the trial court adequately considered and placed its findings on the
record, it must consider the nature of the offense as a factor in
denying a motion. After all, the nature of the offense that is the
subject of the application is inherently germane to the trial court’s
ultimate ruling, to wit: it serves to establish whether the applicant is
an eligible offender. M.J., supra, at ¶21.
{¶23} This further demonstrates the distinction between R.C. 2953.32, the adult
sealing statute, and R.C. 2151.356, the juvenile sealing statute. In R.C. 2953.32, the
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court considers the nature of the offense in order to determine whether the offender is
eligible for their record to be sealed. The legislature apparently afforded the court greater
consideration of the nature of the offense in juvenile cases, pursuant to R.C. 2151.356.
Unless the juvenile offender committed an offense that was ineligible for sealing pursuant
to R.C. 2151.356(A), or that is required to be sealed pursuant to R.C. 2151.356(B), the
court otherwise “may consider” the factors listed in R.C. 2151.356(C)(2)(e)(i) through (vi),
including the nature of the offense, and “may [seal the records] if it finds that the person
has been rehabilitated to a satisfactory degree.” (Emphasis added.) R.C.
2151.356(C)(2)(e). Thus, M.J., M.H., and Clellan, applying the adult sealing statute, are
not analogous to the case sub judice. The legislature appears to have afforded courts
considering motions to seal a juvenile’s record broader discretion to consider the nature
of the case than that afforded to adults.
{¶24} However, while the sealing of an adult or juvenile record is a privilege, not
a right, “[t]he expungement provisions are remedial in nature and ‘must be liberally
construed to promote their purposes.’” M.J., supra, at ¶7, quoting State ex rel. Gains v.
Rossi, 86 Ohio St. 3d 620, 622 (1999). “One of the overriding purposes of our juvenile
justice system is the rehabilitation of offenders.” State v. Bloomer, 122 Ohio St. 3d 200,
2009-Ohio-2462, ¶54 (overturned on other grounds), citing R.C. 2151.01 and In re
Caldwell, 76 Ohio St. 3d 156, 157-158 (1996). Further recognizing the legislative intent
of R.C. 2151.356, the Ohio Supreme Court has explained the goals of R.C. 2151.356 as
“rehabilitation and reintegration into society by permitting rehabilitated offenders to apply
to have their records sealed so that they can leave their youthful offenses in the past.”
Bloomer, supra. Nevertheless, except as provided in R.C. 2151.356(A) and (B), the
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legislature afforded courts reviewing a juvenile’s motion to seal discretion in determining
whether an offender has been rehabilitated.
{¶25} The appellant here relies heavily on the court’s statement that “there is
nothing more [H.S.] needs to do for rehabilitation.” This statement, however, does not
necessarily indicate that it found appellant was rehabilitated. Indeed, at the hearing, the
court stated it found it “a little disturbing” that since her release appellant incurred a traffic
ticket and was in a car accident in which she was cited for causing more than $1,000
worth of damage. Additionally, the court did not rule out the possibility of a future motion
being granting, stating “while H.[S.] has made progress, and is encouraged to continue
to do so, the serious nature of the underlying offense in this case requires a cautionary
approach to sealing of the record at this time. H.[S.] is encouraged to continue her
rehabilitative efforts and to refile * * *.”
{¶26} After reviewing all the statutory factors, the court decided, in its discretion,
appellant was not yet satisfactorily rehabilitated to a degree that merited the sealing of
her record. The court did not apply the wrong standard, misapply the correct legal
standard, or rely on clearly erroneous facts. Thus, we cannot agree that the trial court
abused its discretion in denying appellant’s motion. Accordingly, appellant’s assignment
of error is without merit.
{¶27} In light of the foregoing, the judgment of the Geauga County Court of
Common Pleas, Juvenile Division, is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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