State v. McVean

[Cite as State v. McVean, 2022-Ohio-2753.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-210459
C-210460
Plaintiff-Appellee, : TRIAL NOS. C20-TRC-5572A
C20-TRC-5572B
:
VS.
: O P I N I O N.
JASON MCVEAN, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 10, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Suhre & Associates, LLC, and Joseph B. Suhre, IV, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After acquittal for an OVI offense but conviction on the accompanying
speeding violation, defendant-appellant Jason McVean applied to the trial court for
the sealing of both records. The trial court acknowledged that Ohio law allows sealing
in this unique set of circumstances, but denied his application nonetheless, even in the
absence of any objection from the state. Mr. McVean now appeals, claiming in his sole
assignment of error that the trial court abused its discretion by finding that a
governmental interest outweighed his 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 records.
I.
{¶2} In 2020, the state charged Mr. McVean with violating R.C.
4511.19(A)(1)(a) by operating a vehicle while under the influence of alcohol or a drug
of abuse (“OVI”), and speeding in violation of R.C. 4511.21(D). After trial, the trial
court acquitted Mr. McVean of the OVI offense but found him guilty of speeding. The
next year, Mr. McVean applied to seal the records of both the acquittal and the
conviction.
{¶3} At the hearing on his motion to seal the records, the trial court noted
that speeding convictions are generally not eligible for sealing. Mr. McVean’s counsel
pointed out that one subsection of the Ohio Revised Code allows for the sealing of
speeding convictions when they are charged in connection with an offense for which a
defendant is found not guilty. See State v. Christen, 1st Dist. Hamilton Nos. C-200158
and C-200159, 2021-Ohio-1647, ¶ 15-16 (“Applying the plain language of the statute,
if the sole conviction is under [R.C. Chapter 4511] or a substantially similar municipal
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OHIO FIRST DISTRICT COURT OF APPEALS
ordinance,” the record of a dismissed OVI charge is also eligible for sealing.). Ohio law
carves out this narrow exception, according to Mr. McVean’s counsel, because of the
logistical impossibility of sealing only the OVI acquittal when the OVI and the
speeding offense stem from the same ticket.
{¶4} The state agreed, telling the trial court that Mr. McVean’s case “fits
pretty closely with the plain language” of the statutory exception, a paradigmatic type
of case the subsection was intended to cover. The trial court, in response, wondered
why Mr. McVean “is going to come out ahead of the person who gets a speeding ticket
and not an OVI.” Was the state actually “saying that a speeding ticket is eligible for
expungement so long as you get charged with an OVI and ultimately found not guilty?”
Turns out, it was: “That’s the way the statute is written, Your Honor,” the prosecutor
assured the judge.
{¶5} The state followed up by broadly suggesting that it had an interest in
acquittals being on the record to help analyze potential future cases, but that it had no
objection to Mr. McVean’s eligibility under the statute. The trial court continued the
hearing so that it could consider the relevant authorities cited by Mr. McVean. It also
invited the assistant prosecutor to file an objection on behalf of the state in the
meantime, telling him it was not mandatory but would be appreciated. But the state
declined the invitation to file any objection, with only Mr. McVean submitting a
supplemental brief in the interim.
{¶6} At the resumed hearing, the state reiterated that it agreed with Mr.
McVean’s eligibility for sealing in light of the newest case law and echoed its lack of
objections. See Christen, 1st Dist. Hamilton Nos. C-200158 and C-200159, 2021-
Ohio-1647, at ¶ 16 (“Because the sole conviction is substantially similar to a conviction
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OHIO FIRST DISTRICT COURT OF APPEALS
under R.C. Chapter 4511, the trial court had the discretion to seal all of the records.”).
Despite that, the trial court determined that the state’s interest in maintaining the
records of the OVI acquittal outweighed Mr. McVean’s “certainly legitimate” interest
in having both the acquittal and the conviction sealed. This appeal followed.
II.
{¶7} Generally, courts cannot seal records of convictions for speeding that
are charged under Chapter 4511 or substantially similar municipal ordinances. See
R.C. 2953.36(A)(2). An exception exists in scenarios such as Mr. McVean’s, where the
state charged Mr. McVean with the OVI and the speeding violation on the same ticket
and the charges related to the same act. Under R.C. 2953.61(B)(1), a person charged
with two offenses connected to the same act but convicted of only one may apply for
the sealing of both his records, even when one of the offenses is an otherwise ineligible
speeding violation. R.C. 2953.61(B)(1) further directs that the court shall not order
that only a portion of the records be sealed. Christen at ¶ 14 (The statute “mandate[s]
that ‘the court shall not order that only a portion of the records be sealed[.]’ ”), quoting
R.C. 2953.61(B)(1). We review a trial court’s decision to deny an application to seal
records for an abuse of discretion. State v. Sager, 2019-Ohio-135, 131 N.E.3d 335, ¶ 9
(1st Dist.).
{¶8} The trial court seemed to resist the outcome of sealing as being unfair
to similarly-situated speeders lacking an OVI charge. The statute governing the
sealing of records provides that the court shall order all official records in a case sealed
if, among other things, the interests of the applicant are not outweighed by any
legitimate governmental needs to maintain those records. See R.C. 2953.32(C)(2). We
see no provision directing the trial court to weigh Mr. McVean’s interests against other
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OHIO FIRST DISTRICT COURT OF APPEALS
hypothetical defendants, and the Ohio Supreme Court has found that the General
Assembly intended to place “greater emphasis on the individual’s interest in having
the records sealed.” State v. Bissantz, 40 Ohio St.3d 112, 114, 532 N.E.2d 126 (1988).
{¶9} It is apparent from this record that no one other than the trial court
objected to the sealing of Mr. McVean’s records, and it blanched at sealing them
because the statute provided a “very curious exception.” But “[i]t is not the role of the
courts to establish legislative policy or to second-guess policy choices the General
Assembly makes.” Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-
Ohio-1027, 927 N.E.2d 1066, ¶ 61. It makes sense that the legislature might create an
exception to prevent defendants found not guilty of an OVI from being saddled with
the record only because they drove too fast. The fact that the trial court “ha[s]
questions for the legislature” and weighs the fairness of other speeding drivers who
lack the option to seal their tickets is, in our mind, an example of a court “exercising
its judgment, in an unwarranted way, in regard to a matter over which it has
discretionary authority.” See Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-
3304, 187 N.E.3d 463, ¶ 35. Or in other words, this strikes us as an abuse of discretion.
{¶10} This is especially true where the state expressed no objection to sealing.
The state first announced that it had filed no objection because the statute as written
allows the sealing. Only after being prodded by the court twice did the state profess
some vague interest in having acquittals remain on a defendant’s record for purposes
of “analyzing potential future cases.” At the second hearing, when given one last
chance by the trial court to lodge an objection, the state’s attorney reiterated the point
from the earlier colloquy: “According to the newest caselaw, he would be eligible; we
would not object.” Under the maintenance-of-records standard used here by the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court, no one would ever qualify for sealing of his records. A possibility always exists
that someone, at some point down the road, might want to peek at these records.
{¶11} On appeal, for the first time, the state argues that it had an interest in
knowing the number of times a person has been charged with (not just convicted of)
an OVI offense to determine whether a plea bargain is appropriate in any given case.
Because the state never raised this theory below, we will not consider it on appeal. See
U.S. Bank Natl. Assn. v. Broadnax, 1st Dist. Hamilton No. C-180650, 2019-Ohio-5212,
¶ 13 (“ ‘A party who fails to raise an argument in the court below waives his or her right
to raise it on appeal.’ ”), quoting State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d
276, 278, 611 N.E.2d 830 (1993). The trial court gave the state plenty of time to conjure
up a reason for objecting below (and urged it to do so), but the state demurred.
{¶12} The state further conceded that the reason the legislature generally
disallows sealing of traffic tickets is because of the interest of the Bureau of Motor
Vehicles (“BMV”). But the state acknowledged that it does not represent the BMV in
this proceeding and thus it has no interest in, or objection to, the sealing of Mr.
McVean’s records. The statute requires the court to weigh Mr. McVean’s interest
“against the legitimate needs, if any, of the government to maintain those records[.]”
(Emphasis added.) R.C. 2953.32(C)(1)(e). “The General Assembly, therefore, has
recognized that, in some cases, the State may have no interest in maintaining an
applicant’s records.” State v. Wyatt, 9th Dist. Summit No. 25775, 2011-Ohio-6738,
¶ 12. This is precisely such a case.
{¶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. And even after the trial court declared that it
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OHIO FIRST DISTRICT COURT OF APPEALS
found the governmental interest to outweigh Mr. McVean’s, the state clarified the
incorrectness of that finding. In response to the objection from Mr. McVean’s counsel
that the state had no interest in “keeping a man that is innocent of a charge saddled
with the record of the actual incident itself,” the state replied “Your Honor, if I may
clarify, that is correct.”
{¶14} The trial court acquitted Mr. McVean of the OVI charge. Sealing in such
circumstances should be freely granted, and no governmental interest here outweighs
Mr. McVean’s “interest in clearing his record of a charge that he was acquitted of.”
(Emphasis sic.) See State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877
N.E.2d 755, ¶ 6 (1st Dist.). There was no showing of any governmental interest here—
much to the contrary, the state voiced no serious objection to the relief sought. 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.” Id. at ¶ 7.
* * *
{¶15} In light of the foregoing analysis, we sustain Mr. McVean’s sole
assignment of error. We remand this matter to the trial court with instructions to seal
the records of Mr. McVean’s OVI acquittal and his speeding conviction.
Judgments reversed and cause remanded.
ZAYAS, P. J., concurs.
WINKLER, J., dissents.
WINKLER, J., dissenting.
{¶16} I respectfully dissent. I cannot say the trial judge who presided over
McVean’s bench trial that resulted in the OVI acquittal and speeding conviction
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OHIO FIRST DISTRICT COURT OF APPEALS
abused his discretion he when denied McVean’s application to seal the records related
to those charges.
{¶17} There is no question that McVean was eligible to have the specified
records sealed and that the trial court found him eligible. However, McVean, as the
applicant to have records sealed, still bore the burden of providing the trial court with
information sufficient to demonstrate that his interest in having records sealed was at
least equal to any legitimate government interest in maintaining those records. See
State v. Harrison, 2018-Ohio-1724, 111 N.E.3d 845, ¶ 14 (2d Dist.); State v. R.S., 1st
Dist. Hamilton Nos. C-210169, C-210170, C-210171, C-210172 and C-210173, 2022-
Ohio-1108, ¶ 26; State v. Draper, 10th Dist. Franklin No. 14AP-791, 2015-Ohio-1781,
¶ 10.
{¶18} The trial court is not required to grant the application of those acquitted
of a charged offense, notwithstanding the privacy rights of one charged but not
convicted of an offense. See, e.g., Harrison at ¶ 14; State v. Grove, 29 Ohio App.3d
318, 320, 505 N.E.2d 297 (1st Dist.1986). Where the trial court has correctly applied
the law, this court will not reverse a decision to deny an application to seal absent a
demonstration that the trial court abused its discretion. See Grove at 320; R.S. at ¶
7; State v. Myers, 2d Dist. Clark No. 2015-CA-88, 2016-Ohio-4893, ¶ 13; State v.
Spicer, 1st Dist. Hamilton Nos. C-040637 and C-040638, 2005-Ohio-4302, ¶ 7. An
abuse of discretion connotes an attitude that is arbitrary, unreasonable or
unconscionable. See, e.g., R.S. at ¶ 7-8; Spicer at ¶ 10.
No Abuse of Discretion Demonstrated
{¶19} McVean has asserted no more than a general privacy interest in sealing
the records. The trial court indicated it weighed that interest against the government’s
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OHIO FIRST DISTRICT COURT OF APPEALS
legitimate need to maintain those records in this case that involved a speeding
conviction and an OVI acquittal. We know what government interest the trial court
found outweighed McVean’s interest, because at the August 13, 2021 hearing, the
assistant prosecutor relayed the state’s need to access the OVI records when analyzing
potential future OVI cases against McVean. At the second hearing, the assistant
prosecutor confirmed that the state did not have an eligibility-based objection in
accordance with “the newest case law,” but she did not back away from the earlier
noted position concerning the state’s interest. The majority opinion causes confusion
because it presents the assistant prosecutor’s statements at the second hearing out of
context.
{¶20} As recognized by McVean, Ohio places “extreme limitations” on the use
of records of sealed cases involving dismissals or not-guilty dispositions, and those
limitations would prevent the state from accessing the OVI records for case
consideration if McVean was again charged with OVI. See R.C. 2953.52(A)(4) and
2953.53(D).
{¶21} Considering this limitation, the state asserted a legitimate government
need, as contemplated by R.C. 2953.52(B)(2)(d), that can weigh against sealing the
official records in the OVI matter. And in this case, the trial judge who denied
McVean’s application to seal also presided over McVean’s bench trial that resulted in
an acquittal on the OVI charge and the speeding conviction. If a transcript of the trial
exists, it is not in this record. The trial judge was in the best position to evaluate the
state’s need to maintain the records and to weigh that need against McVean’s general
privacy interest in having the records sealed at that time, which was less than six
months after McVean’s trial. See Grove, 29 Ohio App.3d at 320, 505 N.E.2d 297.
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{¶22} Applying, and mindful of, the appropriate standard of review, I am
unable to second guess the trial court’s wisdom in denying the application to seal
because there has been no demonstration that the trial court’s decision was arbitrary,
unreasonable, or unconscionable. Accordingly, I would affirm.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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