State v. Davis

[Cite as State v. Davis, 

.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. W. Scott Gwin, P.J.
         Plaintiff-Appellee                     Hon. William B. Hoffman, J.
                                                Hon. John W. Wise, J.
 -vsCase Nos. 22CA000002 & 22CA000003
 CURTIS DAVIS

          Defendant-Appellant                   OPINION




 CHARACTER OF PROCEEDINGS:                      Appeal from the Guernsey County Court
                                                of Common Pleas, Case Nos. 89-C-02 &
                                                89-C-96


 JUDGMENT:                                      Reversed and Remanded

 DATE OF JUDGMENT ENTRY:                        August 22, 2022


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 LINDSEY ANGLER, ESQ.                           W. JOSEPH EDWARDS, ESQ.
 Prosecuting Attorney                           The Law Office of W. Joseph Edwards
 Guernsey County, Ohio                          511 S. High Street
                                                Columbus, Ohio 43215
 JASON R. FARLEY
 Assistant Prosecuting Attorney
 Guernsey County, Ohio
 627 Wheeling Avenue
 Cambridge, Ohio 43725
Hoffman, J.
       {¶1}   Defendant-appellant Curtis Davis appeals the judgment entered by the

Guernsey County Common Pleas Court denying his motion to seal the records of his

1989 convictions of defrauding creditors (R.C. 2913.45) and forgery (R.C. 2913.31).

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 25, 2019, Appellant filed a pro se motion to seal the records

pertaining to two convictions from Guernsey County: Case No. 89-C-02, a misdemeanor

conviction for defrauding creditors in violation of R.C. 2913.45, and Case No. 89-C-96, a

felony conviction of forgery in violation of R.C. 2913.31. The trial court summarily denied

both motions.

       {¶3}   On October 27, 2021, Appellant, now represented by counsel, filed a motion

for sealing of the records of both cases pursuant to R.C. 2953.32. The State filed a

response, stating it did not oppose the request to seal the records.

       {¶4}   The trial court issued a one-sentence judgment entry, summarily denying

the motions in both cases. Appellant filed an appeal in case number 89-C-96, which was

assigned appellate number 22CA000002, and in case number 89-C-02, which was

assigned appellate number 22CA000003. It is from the December 27, 2021 judgment of

the trial court Appellant prosecutes his appeals, assigning as error:



              THE TRIAL COURT FAILED TO FOLLOW THE MINIMUM

       REQUIREMENTS OF R.C. §2953.32 AND ABUSED ITS DISCRETION IN

       DENYING DEFENDANT-APPELLANT THE REQUESTED RELIEF.
       {¶5}   R.C. 2953.32 sets forth the duties of the trial court upon the filing of an

application to seal a criminal record:



              (B) Upon the filing of an application under this section, the court shall

       set a date for a hearing and shall notify the prosecutor for the case of the

       hearing on the application. 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. The court shall direct its

       regular probation officer, a state probation officer, or the department of

       probation of the county in which the applicant resides to make inquiries and

       written reports as the court requires concerning the applicant. The probation

       officer or county department of probation that the court directs to make

       inquiries concerning the applicant shall determine whether or not the

       applicant was fingerprinted at the time of arrest or under section 109.60 of

       the Revised Code. If the applicant was so fingerprinted, the probation officer

       or county department of probation shall include with the written report a

       record of the applicant's fingerprints. If the applicant was convicted of or

       pleaded guilty to a violation of division (A)(2) or (B) of section 2919.21 of

       the Revised Code, the probation officer or county department of probation

       that the court directed to make inquiries concerning the applicant shall

       contact the child support enforcement agency enforcing the applicant's
obligations under the child support order to inquire about the offender's

compliance with the child support order.

       (C)(1) The court shall 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;

       (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 or bail forfeiture sealed against the

legitimate needs, if any, of the government to maintain those records;

       (f) If the applicant is an eligible offender of the type described in

division (A)(3) of section 2953.36 of the Revised Code, determine whether

the offender has been rehabilitated to a satisfactory degree. In making the

determination, the court may consider all of the following:

       (i) The age of the offender;

       (ii) The facts and circumstances of the offense;

       (iii) The cessation or continuation of criminal behavior;

       (iv) The education and employment of the offender;

       (v) Any other circumstances that may relate to the offender's

rehabilitation.

       (2) 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, 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 division (C)(4), (G), (H), or (I) of this

      section, shall order all official records of the case that pertain to the

      conviction or bail forfeiture sealed and, except as provided in division (F) of

      this section, all index references to the case that pertain to the conviction or

      bail forfeiture deleted and, in the case of bail forfeitures, shall dismiss the

      charges in the case. The proceedings in the case that pertain to the

      conviction or bail forfeiture 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.



      {¶6}   “Depending on the dispute in question, this Court will apply either a de novo

standard of review or an abuse of discretion standard of review in appeals from the denial

of an application to seal a record of conviction.” State v. Calderon, 9th Dist. Medina No.

09CA0088-M, 

, ¶ 6. “If the matter in dispute concerns the court's

discretion, such as its conclusion that the evidence does not weigh in favor of

expungement, then an abuse of discretion standard applies.” 

 When a case turns upon

the interpretation of the sealing statutes, however, this Court employs a de novo standard

of review. Stow v. S.B., 9th Dist. Summit No. 27429, 

.
      {¶7}   Where the record does not demonstrate the trial court followed the

requirements of R.C. 2953.32 before summarily dismissing an application to seal the

record, the proper remedy is to remand the case to the trial court to issue a decision

consistent with the requirements of R.C. 2953.32. See, e.g., State v. Long, 12th Dist.

Butler App. Nos. CA2014–08–176, CA2014–09–188, 

; State v. A.V., 9th

Dist. Lorain No. 19CA011517, 

.

      {¶8}   In the instant case, nothing in the record from the trial court demonstrates

the trial court complied with the requirements of R.C. 2953.32. Further, the trial court’s

judgment states only, “The Court DENIES Defendant’s Application to Seal Criminal

Record under O.R.C. 2953.32.” Judgment, Dec. 27, 2021. The State concedes in its

brief the trial court erred in summarily overruling Appellant’s application, and asks this

Court to remand for further proceedings according to law. Accordingly, we find the trial

court erred in failing to follow the procedure outlined in R.C. 2953.32 before overruling

Appellant’s motion.
      {¶9}   The assignment of error is sustained.       The judgment of the Guernsey

County Common Pleas Court is reversed, and this case is remanded to that court for

further proceedings according to law, consistent with this opinion.




By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur