State v. A.S.

[Cite as State v. A.S., 2022-Ohio-3833.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220259
TRIAL NO. 18CRB-19780
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
A.S., :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 28, 2022
Emily Smart Woerner, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Rebecca Barnett, Assistant Prosecuting Attorney, for Plaintiff-
Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} In 2018, defendant-appellant A.S. entered a guilty plea to one count of
misdemeanor theft. A few years later, in 2021, A.S. sought to seal the record of her
conviction in order to facilitate educational and professional opportunities. Although
the state did not object, the trial court refused to seal the record, relying on arguments
the state never advanced and that run afoul of the record at hand. A.S. now appeals,
asserting in her sole assignment of error that the trial court erred in finding that a
governmental interest outweighed her interest in having the record sealed. We agree,
reverse the judgment of the trial court, and remand this cause with instructions for the
trial court to seal the record.
I.
{¶2} In July 2018, A.S. was charged by criminal complaint with one count of
petty theft in violation of R.C. 2913.02, a first-degree misdemeanor. Her only offense
was switching the price tags on a comforter set at Target, designed to save herself a
little money. In October 2018, after having found A.S. eligible for diversion, the trial
court ordered her to participate for six months in the Hamilton County Diversion
Program established in accordance with R.C. 2935.36. In conjunction with this order,
A.S. entered a guilty plea to the theft offense as charged.
{¶3} In February 2019, on motion by the state, the trial court issued an entry
reinstating A.S.’s case to the court’s active docket following her failure to complete the
diversion program. According to the court’s entry, A.S. had failed to fulfill the
following conditions of the program: attend an N.C.T.I. Critical Thinking Class by
January 2019; pay an administrative fee of $133; complete 60 community-service
hours; and attend monthly meetings. In August 2019, the trial court sentenced A.S. to
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OHIO FIRST DISTRICT COURT OF APPEALS
a suspended 180-day jail term and six months of community control. Six months later,
in February 2019, the trial court terminated A.S.’s community control.
{¶4} Three years after her offense, in July 2021, A.S. filed her first application
to seal the record of her theft conviction. The trial court denied the request, but
indicated that it might be open to further requests down the road. A.S. accordingly
filed a second application to seal the record of her conviction in March 2022. This
application, too, was denied by the trial court after a hearing. Although the state did
not object to sealing the record, the trial court concluded that the government’s
interest in maintaining the record as public outweighed A.S.’s interest in sealing the
record. This appeal followed.
II.
{¶5} In her sole assignment of error, A.S. maintains that the trial court erred
in denying her application to seal the record of her misdemeanor theft conviction. “In
Ohio, sealing an individual’s criminal record is an act of grace” created by the state.
State v. R.S., 1st Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172, and C-
210173, 2022-Ohio-1108, ¶ 10. “We review a trial court’s decision to deny an
application to seal records for an abuse of discretion.” State v. McVean, 1st Dist.
Hamilton Nos. C-210459 and C-210460, 2022-Ohio-2753, ¶ 7, citing State v. Sager,
2019-Ohio-135, 131 N.E.3d 335, ¶ 9 (1st Dist.). We will thus not reverse the trial court’s
judgment unless the court has exercised its discretionary judgment over the matter in
an unwarranted way or committed legal error. See Johnson v. Abdullah, 166 Ohio
St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.
{¶6} Under R.C. 2953.32, which governs a trial court’s decision to grant or
deny an application to seal a record of conviction, an “eligible offender” may apply to
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OHIO FIRST DISTRICT COURT OF APPEALS
the sentencing court for the sealing of a criminal record. “A court may grant an
application if the requirements identified by R.C. 2953.32(C)(1) are satisfied.” R.S. at
¶ 10, citing Sager at ¶ 10. After determining whether the applicant is an eligible
offender, R.C. 2953.32(C)(1) requires the trial court to make determinations, including
whether criminal proceedings are pending against the applicant, whether the
applicant has been rehabilitated, and whether the interests of the applicant in having
his or her record sealed outweigh the legitimate needs, if any, of the government.
“After weighing the interests of the applicant and government, the court ‘shall order
all official records of the case’ sealed if the ‘legitimate government needs to maintain
those records’ do not outweigh the applicant’s interest in sealing her records.” R.S. at
¶ 11, quoting R.C. 2932(C)(2).
{¶7} R.C. 2953.32 is a “remedial statute,” R.S. at ¶ 10, that is “construed
liberally to promote [its] purpose and assist the parties in obtaining justice.” State v.
Young, 5th Dist. Morrow No. 2021 CA 0009, 2022-Ohio-593, ¶ 21. The purpose of
sealing a record of conviction is to recognize that people may be rehabilitated. State
v. Petrou, 13 Ohio App.3d 456, 456, 469 N.E.2d 974 (9th Dist.1984). As the Eighth
District aptly explained in State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d
1064 (8th Dist.2001) in reviewing the record-sealing statute,
[P]eople make mistakes, but * * * afterwards they regret their conduct
and are older, wiser and sadder. The enactment and amendment of R.C.
2953.31 and 2953.32 is, in a way, a manifestation of the traditional
Western civilization concepts of sin, punishment, atonement, and
forgiveness. Although rehabilitation is not favored in current penal
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OHIO FIRST DISTRICT COURT OF APPEALS
thought, the unarguable fact is that some people do rehabilitate
themselves.
{¶8} Moreover, considering the real-world effects of prior convictions can
help contextualize applicants’ interests in having their records sealed. “The
consequences of ‘a misdemeanor conviction today are real and significant.’ ” R.S., 1st
Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172, and C-210173, 2022-
Ohio-1108, at ¶ 30, quoting City of Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-
Ohio-2673, 953 N.E.2d 278, ¶ 34 (Lundberg Stratton, J., concurring). “A convicted
criminal suffers not only from public penalties but from stigma, the reluctance of
others to interact with him economically and socially.” Commonwealth v. Pon, 469
Mass. 296, 316, 14 N.E.3d 182 (2014), quoting Rasmusen, Stigma and Self-Fulfilling
Expectations of Criminality, 39 J.L. & Econ. 519, Abstract (1996). In addition to the
collateral impacts of a conviction on employment opportunities, individuals with
criminal records face obstacles to accessing housing, higher education, loans, and
credit (which is precisely part of the reason why the legislature provided a sealing
mechanism).
{¶9} Beyond the interests of the applicant herself, the government has an
interest in promoting the positive consequences that can flow from record sealing. For
instance, the government has compelling interests in “reducing recidivism, facilitating
reintegration, and ensuring self-sufficiency by promoting employment and housing
opportunities for former criminal defendants,” all of which are furthered, in
appropriate cases, by record sealing. Pon at 315. “Where there is persuasive evidence
that employers and housing authorities consider criminal history in making decisions,
there is now a fully articulated governmental interest in shielding criminal history
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OHIO FIRST DISTRICT COURT OF APPEALS
information from these decision makers where so doing would not cause adverse
consequences to the community at large.” Id.{¶10} 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. See R.S. at ¶ 10, quoting Sager, 2019-
Ohio-135, 131 N.E.3d 335, at ¶ 9 (“Record sealing provides ‘remedial relief to qualified
offenders in order to facilitate the prompt transition of these individuals into
meaningful and productive roles.’ ”).
{¶11} Turning now to the case at hand, A.S. asserts that the trial court’s
determination that the government’s interest in maintaining her record as public
outweighed her interest in having the record sealed constitutes an abuse of discretion.
On appeal, the state agrees, declining to defend the judgment below.
{¶12} “Under R.C. 2953.32(C)(1)(e), the court must weigh the applicant’s
interest in sealing the applicant’s record against the ‘legitimate needs, if any, of the
government.’ ” (Emphasis added) R.S. at ¶ 26, quoting R.C. 2953.32(C)(1)(e). The
applicant has the burden “of demonstrating that [her] interests in having the records
in the case sealed are at least equal to the legitimate governmental need to maintain
the record.” State v. Haney, 70 Ohio App.3d 135, 139, 590 N.E.2d 445 (10th
Dist.1991). Among other evidence, an applicant can satisfy this burden with
“testimony that [her] conviction has damaged [her] ability to earn a living.” State v.
Shaffer, 11th Dist. Geauga No. 2009-G-2929, 2010-Ohio-6565, ¶ 30.
{¶13} While the trial court concluded that the government’s interest in record
maintenance outweighed A.S.’s interest in having the record sealed, every relevant
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OHIO FIRST DISTRICT COURT OF APPEALS
consideration in the record points in the other direction. A.S. has a strong interest in
sealing the record of her conviction. Over the past few years, she has gone from
working in a factory to obtaining employment as a state tested nurse aide. Her new
job has been jeopardized by increasing employer reliance on background checks.
Furthermore, A.S. seeks to obtain further education to become a registered nurse.
However, the Ohio Medical Career College viewed her theft conviction as a potential
barrier to her certification as a nurse, and suggested that it would deny her admission
unless her conviction was sealed. A.S. also has two young daughters to provide for. At
her hearing, A.S. presented a clear showing of economic, career, and family-oriented
interests in having her record sealed.
{¶14} A.S. has had no further contact with the criminal justice system since
her conviction, her conviction was for a misdemeanor, and the stigma of her conviction
may well prevent her from furthering her education or job opportunities. Her case, in
other words, is the quintessential one where we want the individual to be able to
pursue her dreams and benefit the community in the process. Recognizing this, the
state declined to offer any interests whatsoever in response and did not oppose the
sealing of the record. And in fact, the state concedes that “the record reflects that [A.S.]
is seeking that her record be sealed in order to pursue further education and
employment, and thus has a greater interest in sealing the conviction.”
{¶15} The trial determined sua sponte that “there’s a government interest in
maintaining public access, full public open access to court records such as this. In this
case, I think there’s an interest in * * * employers having access to records such as
this.” According to the trial court, the government’s interest is that a petty theft
conviction could be relevant to any line of work involving trust, including A.S.’s pursuit
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OHIO FIRST DISTRICT COURT OF APPEALS
of a career in the healthcare field. But the nature of the offense “cannot provide the
sole basis to deny an application.” R.S., 1st Dist. Hamilton Nos. C-210169, C-210170,
C-210171, C-210172, and C-210173, 2022-Ohio-1108, at ¶ 29; State v. M.D., 8th Dist.
Cuyahoga No. 92534, 2009-Ohio-5694, ¶ 22. On these facts, the trial court invoked
no cognizable legitimate government interest to support its decision to deny A.S.’s
application to seal her record. Indeed, its rationale would mean that virtually no one
would ever qualify for sealing their records, which represents the antithesis of
“liberally,” R.S. at ¶ 10, construing the statute. See McVean, 1st Dist. Hamilton Nos.
C-210459 and C-210460, 2022-Ohio-2753, at ¶ 13 (“The state seemed content with
sealing for Mr. McVean, but the trial court refused to accept that outcome, going out
of its way to divine a justification that even the state didn’t seriously advance.”). On
this record, “[t]o deny the sealing of the record in this case, where the government has
not expressed or demonstrated any need to maintain it, is unreasonable and thus an
abuse of discretion.” See State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877
N.E.2d 755, ¶ 7 (1st Dist.); McVean at ¶ 14.
* * *
{¶16} In light of the foregoing analysis, we sustain A.S.’s sole assignment of
error. We reverse the judgment of the trial court and remand this matter to the trial
court with instructions to seal the record of A.S.’s misdemeanor petty theft conviction.
Judgment reversed and cause remanded.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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