State v. D.D.G., s. 108291

• Decision Date: 05 December 2019
• Docket Number: Nos. 108291,108342,s. 108291
• Citation: 136 N.E.3d 1271,2019 Ohio 4982
• Parties: STATE of Ohio, Plaintiff-Appellee, v. D.D.G., Defendant-Appellant.
• Court: Ohio Court of Appeals

136 N.E.3d 1271

2019 Ohio 4982

STATE of Ohio, Plaintiff-Appellee,

v.D.D.G., Defendant-Appellant.

Nos. 108291

108342

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

RELEASED AND JOURNALIZED: December 5, 2019

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, J.:

{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. In this consolidated, accelerated appeal, defendant-appellant, D.D.G., a.k.a. D.G., appeals the trial court's judgments denying his applications to seal his criminal record in two separate criminal cases.¹ He raises two assignments of error for our review:

1. Whether the trial court, in [Cuyahoga C.P. No.] CR-13-577059, abused its discretion when it denied the defendant-appellant, D.D.G.'s (aka D.G.'s) Petition for Expungement without holding a hearing?

2. Whether the trial court, in [Cuyahoga C.P. No.] CR-09-524279, abused its discretion when it did not conduct a balancing test to also include the totality of the expungement statute which contains R.C. 2953.36 and R.C. 2901.01 by reference?

{¶ 2} Finding no merit to his assignments of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} In July 2009, D.D.G. pleaded guilty to two counts of drug possession in violation of R.C. 2925.11(A), one a felony of the fifth degree and the other a felony of the fourth degree in CR-09-524279. Both counts carried a forfeiture specification. The trial court sentenced D.D.G. to a one-year term of community control. It also ordered D.D.G. to pay court costs.

{¶ 4} In September 2013, D.D.G. pleaded guilty to drug trafficking in violation of R.C. 2925.03(A)(2), a felony of the fifth degree, with a forfeiture specification in CR-13-577059. The trial court sentenced him to a one-year term of community control and ordered D.D.G. to perform 20 hours of community work service. It also suspended his driver's license for six months and waived his court costs.

{¶ 5} On January 24, 2019, D.D.G. filed separate applications for sealing in CR-09-524279 and CR-13-577059.² In his applications, D.D.G. acknowledged that he had three felony convictions, stemming from CR-09-524279, CR-13-577059, and Sandusky C.P. No. 13CR567.

{¶ 6} D.D.G. moved to consolidate both petitions, but the trial court never ruled on that motion, and the petitions proceeded separately before different trial court judges.³

{¶ 7} In both cases, the trial courts ordered an expungement investigation report, which showed that D.D.G. was convicted of four felonies — two counts of drug possession (CR-09-524279), one count of drug trafficking (CR-13-577059), and one count of failure to comply with order or signal of a police officer (13CR567) — and a misdemeanor, noise in motor vehicles, a fourth-degree misdemeanor, in Cleveland M.C. No. 2010 CRB 026869.⁴

{¶ 8} The state opposed both of D.D.G.'s applications, arguing that under R.C. 2953.31(A), D.D.G. was "statutorily ineligible for [sealing his criminal convictions] because he has more than one felony conviction, and one of [his] convictions was a felony of the third degree." The state pointed out that the expungement investigation report showed that in addition to his felony convictions in CR-09-524279 and CR-13-577059, which were in Cuyahoga County Common Pleas Court, D.D.G. was also convicted of failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), a felony of the third degree, in Sandusky C.P. No. 13CR567.⁵ Attached to both of the state's briefs in opposition was a printed copy of the docket from D.D.G.'s Sandusky case, showing that he pleaded guilty to failure to comply with an order or signal of a police officer in December 2013, and was sentenced to 180 days in jail, a three-year term of community control sanctions, a driver's license suspension, and a fine on January 21, 2014.

{¶ 9} In CR-09-524279, the trial court set a date for a hearing on the petition and held that hearing on March 21, 2019. At the hearing, D.D.G.'s counsel conceded that D.D.G. had a third-degree felony conviction for failure to comply in Sandusky County Common Pleas Court. The trial court denied D.D.G.'s petition in that case, finding that D.D.G. was not an eligible offender under R.C. 2953.31(A) because he was convicted of failure to comply with an order or signal of a police officer, a third-degree felony, and had four felony and two misdemeanor convictions.

{¶ 10} In CR-13-577059, the trial court did not set a date for a hearing on D.D.G.'s petition and denied it without a hearing. The trial court's journal entry stated that it was denying the petition because D.D.G. was not eligible for sealing under R.C. 2953.31(A) because he was convicted of failure to comply with an order or signal of a police officer, a third-degree felony, and had more than one felony conviction.

{¶ 11} It is from these judgments that D.D.G. now appeals.

II. Law and Analysis

A. Denial of D.D.G.'s Application for Sealing in Case No. CR-09-524279

{¶ 12} We will address D.D.G.'s assignments of error out of order for ease of discussion. In his second assignment of error, D.D.G. argues that the trial court abused its discretion by not conducting a balancing test and referencing R.C. 2953.36 and 2901.01.

{¶ 13} We review the trial court's denial of D.D.G.'s application to seal his record of conviction for an abuse of discretion. State v. M.H. , 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, 2018 WL 898922, ¶ 11, citing State v. Smith , 8th Dist. Cuyahoga No. 91853, 2009-Ohio-2380, 2009 WL 1423965. An abuse of discretion occurs where the trial court's decision is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, whether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo. State v. M.E. , 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715, 2018 WL 6131510, ¶ 6, citing State v. M.R. , 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, 2010 WL 5065106. Because the trial courts denied D.D.G.'s applications on the basis that he was an ineligible offender, we review the trial courts' decisions de novo.

{¶ 14} To be "eligible" for sealing, an offender must qualify under either subsection (a) or (b) of R.C. 2953.31(A)(1). Subsection (a) states that an "eligible offender" includes "[a]nyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense[.]" Here, D.D.G. is not an eligible offender under R.C. 2953.31(A)(1)(a) because he has a felony of the third degree for failure to comply with an order or signal of a police officer.

{¶ 15} Subsection (b) states that an "eligible offender" is

[a]nyone who has been convicted of an offense in this state or any other jurisdiction, to whom division (A)(1)(a) of this section does not apply, and who has not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.

{¶ 16} In other words, an offender is eligible for sealing under subsection (b) if the offender only has one felony conviction; one misdemeanor conviction; or one felony conviction and one misdemeanor conviction. Here, D.D.G. has four felony convictions and one misdemeanor conviction. Therefore, he is not an eligible offender under R.C. 2953.31(A)(1)(b).

{¶ 17} Despite the fact that he is clearly ineligible under R.C. 2953.31(A)(1), D.D.G. maintains that the trial court erred in denying his applications and should have granted his applications after conducting the balancing test set forth in the Ohio Supreme Court's decision in Pepper Pike v. Doe , 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981). In that case, however, the court reviewed "whether a defendant charged with but not convicted of a criminal offense has a right to * * * expungement of her criminal record." Id. at 376, 421 N.E.2d 1303. In finding that the defendant was entitled to expungement based on the "unusual and exceptional circumstances" of that case, the court stated:

When exercising these powers, the trial court should use a balancing test, which weighs the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records. Where there is no compelling state interest or reason to retain the judicial and police records, such as where they arise from a domestic quarrel and constitute vindictive use of our courts, the accused is entitled to this remedy.

Id. at 377, 421 N.E.2d 1303.

{¶ 18} Pepper Pike , however, does not apply here because, unlike the defendant in that case who was not convicted, D.D.G. pleaded guilty to and was convicted of four felonies in CR-09-524279, CR-13-577059, and 13CR567 respectively. "[N]either the rule of Pepper Pike nor its rationale has vitality when the offender has been convicted and is not a first-time offender." State v. Radcliff , 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 27 ; see also State v. Hilbert , 145 Ohio App.3d 824, 826-827, 764 N.E.2d 1064 (8th Dist.2001) (noting that the Ohio Supreme Court seemed to treat the General Assembly's amendment of R.C. 2953.31 "as an expression of legislative will that the [ Pepper Pike ] v. Doe standard no longer be the controlling test[.]"); State v. Moore , 31 Ohio App.3d 225, 227, 510 N.E.2d 825 (8th Dist.1986), citing State v. Weber , 19 Ohio App.3d 214, 484 N.E.2d 207 (8th Dist.1984) (where this court recognized that Pepper Pike limited "a trial court's discretion to grant judicial expungement relief to instances where the defendant is acquitted of the criminal offense or to cases where the charges are dismissed prior to trial.").

{¶ 19} Further, when the Ohio Supreme Court decided ...