In re , 105459

• Decision Date: 31 August 2017
• Docket Number: No. 105459,105459
• Citation: 2017 Ohio 7408,96 N.E.3d 1083
• Parties: IN RE: Appellant Richard T. CHROSNIAK's Petition for Relief from Disability
• Court: Ohio Court of Appeals

96 N.E.3d 1083

2017 Ohio 7408

IN RE: Appellant Richard T. CHROSNIAK's Petition for Relief from Disability

No. 105459

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: August 31, 2017

Michael C. Asseff, 1991 Crocker Road, Suite 600, Westlake, Ohio 44145, ATTORNEY FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Mary McGrath, Assistant Prosecuting Attorney, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEES

BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

{¶ 1} This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Petitioner-appellant, Richard T. Chrosniak, appeals from the trial court's judgment denying his application for relief from weapons disability. He raises the following assignment of error for our review:

1. The trial court erred and abused its discretion in denying appellant's application for relief from weapons disability under R.C. 2923.14.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} In September 1990, Chrosniak was convicted of sexual battery in violation of R.C. 2923.14, a felony of the third degree, in Summit C.P. No. CR–1990–05–0897. The trial court imposed a suspended one-year term of imprisonment and placed Chrosniak on a one-year period of community control. Relevant to Chrosniak's eligibility for relief from his weapons disability, Chrosniak was not required to register as a sex offender.

{¶ 4} In May 2016, Chrosniak filed an application for relief from weapons disability. The state opposed the application, and a hearing was held in November 2016. At the hearing, Chrosniak provided testimony concerning the particulars of his 1990 felony conviction. Chrosniak testified that in 1985, he was intoxicated, naked, and watching pornography before he "passed out on the couch." When Chrosniak woke up, he discovered his five-year old son in the room "without clothes and looking at the pornography." Chrosniak testified that he grabbed his son and "spanked his butt until it was black and blue." In 1989, Chrosniak began attending Alcoholics Anonymous programs. At some point, Chrosniak discussed the incident involving his son with a counselor. Based on the recommendation of his counselor, Chrosniak notified children's services about the incident. Following an investigation by children's services and the Twinsburg Police Department, Chrosniak was indicted by the Summit County Grand Jury for rape of a child under the age of 13. Ultimately, Chrosniak pleaded guilty to the reduced charge of sexual battery in violation of R.C. 2907.03.

{¶ 5} In addition, Chrosniak provided testimony regarding the extent of his law-abiding life following his discharge in December 1991. He stated that he has not been charged or convicted with any offense since the time of his discharge and is gainfully employed as a purchasing and procurement specialist for a Cleveland-area trucking company. Chrosniak has been actively involved in his church, has facilitated an addiction recovery group, and currently provides pastoral counseling for members of his church. Chrosniak further stated that he has earned a masters degree in pastoral counseling and care from Ashland Theological Seminary and has been sober since 1989.

{¶ 6} Chrosniak testified that he sought relief from his weapons disability, in part, so that he could participate in recreational and hunting activities with his friends and family. He stated that he enjoyed target shooting and hunting prior to his felony conviction and that such activities were "part of [his] family heritage."

{¶ 7} During his cross-examination, the state questioned Chrosniak about the specifics of the incident involving his son. Chrosniak testified that he did not know why he "got charged the way [he] did," but admitted that his indictment originated because he told children's services that he and his sons genitals touched during the spanking because they were both naked. At the conclusion of the hearing, the state maintained its opposition to Chrosniak's application, stating "it is the state's position that one convicted of a sexual offense under these circumstances simply ha[s] not established a reason why the disability should be lifted."

{¶ 8} In January 2017, the trial court issued a journal entry, denying Chrosniak's application for relief from weapons disability. The journal entry provided, in pertinent part:

While petitioner testified that family and friends * * * request that he accompany them to go hunting—such testimony being hearsay—no such family or friend witness appeared at the hearing to [testify] that they have requested petitioner to accompany them on such hunting activities. Further, petitioner testified to his 20 years of employment and marriage; however, no other evidence or witness were produced to corroborate this testimony. Finally, this court found that petitioner's testimony lacked credibility to such an extent that he failed to convince this court of his testimonial assertions at the hearing.

{¶ 9} Chrosniak now appeals from the trial court's judgment denying his application.

II. Law and Analysis

{¶ 10} In his sole assignment of error, Chrosniak argues the trial court erred and abused its discretion in denying his application for relief from weapons disability under R.C. 2923.14. Chrosniak contends that "nothing in the record supports the trial court's determination that [his] testimony was anything other than truthful, and entirely consistent with the elements of R.C. 2923.14."

{¶ 11} "The right to keep and bear arms is a fundamental right enshrined in federal and state constitutional law." State v. Robinson , 2015-Ohio-4649, 48 N.E.3d 1030, ¶ 11. The Second Amendment to the United States Constitution confers an individual right to keep and bear arms. Dist. of Columbia v. Heller , 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right to keep and bear arms and applies it to the states. McDonald v. Chicago , 561 U.S. 742, 794, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). This right is not unlimited, but is subject to several longstanding prohibitions, including the possession of firearms by felons. Heller at 626–627, 128 S.Ct. 2783.

{¶ 12} Similarly, the right to keep and bear arms is part of Ohio's heritage and is a fundamental state constitutional right. Klein v. Leis , 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633, ¶ 5, 7 ; Ohio Constitution, Article I, Section 4. Like the federal constitutional right to keep and bear arms, the state constitutional right is also subject to limitations. Klein at ¶ 8.

{¶ 13} R.C. 2923.14 provides the mechanism in Ohio to restore civil rights to felons prohibited from keeping and bearing firearms, by specifying that "[a]ny person who is prohibited from acquiring, having, carrying, or using firearms may apply to the court of common pleas in the county in which the person resides for relief from such prohibition." R.C. 2923.14(A). R.C. 2923.14(D) authorizes a trial court to grant an application for relief from disability if certain requirements are satisfied. The statute provides:

Upon hearing, the court may grant the applicant relief pursuant to this section, if all of the following apply:

(1) One of the following applies:

(a) If the disability is based upon an indictment, a conviction, or an adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole, or, if the applicant is under indictment, has been released on bail or recognizance.

(b) If the disability is based upon a factor other than an indictment, a conviction, or an adjudication, that factor no longer is applicable to the applicant.

(2) The applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so.

(3) The applicant is not otherwise prohibited by law from acquiring, having, or using firearms.

(Emphasis added.)

{¶ 14} By using the word "may," the General Assembly has drafted a permissive statute. In re I.A. , 140 Ohio St.3d 203, 2014-Ohio-3155, 16 N.E.3d 653, ¶ 13. Because the determination of whether to grant an application for relief from disability under R.C. 2923.14(D) is vested within a trial court's broad discretion, "[a] court of appeals reviews a trial court's decision either granting or denying an application for relief from disability under an abuse of discretion standard." State v. Brown , 8th Dist. Cuyahoga No. 96615, 2011-Ohio-5676, 2011 WL 5299304, ¶ 17. A court abuses its discretion when it acts unreasonably, arbitrarily, or unconscionably. Id. , citing State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. , 72 Ohio St.3d 106, 647 N.E.2d 799 (1995).

{¶ 15} On appeal, Chrosniak argues that because the record establishes that he satisfied all of the R.C. 2923.14(D) requirements, the trial court should have granted his application for relief from disability. Chrosniak cites this court's decisions in State v. Dozanti , 8th Dist. Cuyahoga No. 102158, 2015-Ohio-2276, 2015 WL 3647466, and In re Childress , 8th Dist. Cuyahoga No. 103043, 2016-Ohio-814, 2016 WL 860333, in support of his position that the trial court's decision in this case was arbitrary.

{¶ 16} In Dozanti, the applicant was convicted in 1995 for the offense of drug trafficking, a third-degree felony. He was sentenced to 18 months in prison with credit for time served. Dozanti at ¶ 2. In 2014, a hearing was held on Dozanti's application for relief from weapons disability. Dozanti was married with a wife, three children, and seven grandchildren. He had not violated the law for more than 20 years and petitioned the court under R.C. 2923.14 so that he could go hunting with his grandchildren. Id. at ¶ 4. Defense counsel stated...