State v. Hill

• Decision Date: 12 April 2016
• Docket Number: No. 15AP–485.,15AP–485.
• Parties: STATE of Ohio, Plaintiff–Appellant, v. Tamara M. HILL, Defendant–Appellee.
• Court: Ohio Court of Appeals

63 N.E.3d 690

STATE of Ohio, Plaintiff–Appellant,

v.Tamara M. HILL, Defendant–Appellee.

No. 15AP–485.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 12, 2016.

Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher (argued), for appellant.

Sydow Leis LLC, and Anastasia L. Sydow (argued), for appellee.

HORTON, J.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas granting the application of defendant-appellee, Tamara M. Hill, to seal the record of her prior conviction. The state assigns the following sole assignment of error for our review:

THE TRIAL COURT ERRED WHEN IT SEALED A FELONY CONVICTION, IN CONTRAVENTION OF R.C. 2953.36(F).

{¶ 2} Because the trial court did not abuse its discretion in identifying the victim of defendant's conviction, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 3} On December 11, 2014, defendant filed an application seeking to seal the record of her attempted burglary conviction from case No. 05CR–1419. The state filed an objection to the defendant's application on January 29, 2015. The state asserted that its “investigation revealed that after the defendant entered the victim's home, the defendant assaulted the 13–year old victim.” (State's Objection to Sealing, 1.) The state attached the complaint, the indictment, and the judgment entry of conviction to its objection to support its description of the incident.

{¶ 4} The trial court held a hearing on the application on April 15, 2015. The state did not present any information at the hearing, opting to “stand on its motion.” (Tr. 2.) Defendant addressed the court, and explained that she “wasn't robbing the house. It was a whole different situation.” (Tr. 3.) Defendant also stated that, due to “the fact of a felony,” she has not “been able to get the kind of job that [she had] been hoping for.” (Tr. 3.)

{¶ 5} The trial court granted defendant's application. The trial court concluded that defendant had established that her interest in having the record of her conviction sealed outweighed the state's interest in having the conviction remain open. The trial court filed the entry sealing the record of defendant's attempted burglary conviction on April 17, 2015.

II. NO ABUSE OF DISCRETION

{¶ 6} An appellate court generally reviews a trial court's disposition of an application to seal a record of conviction under an abuse of discretion standard. State v. Black, 10th Dist. No. 14AP–338, 2014-Ohio-4827, 2014 WL 5494015, ¶ 6. However, whether an applicant is considered an eligible offender is an issue of law for a reviewing court to decide de novo. See State v. Hoyles, 10th Dist. No. 08AP–946, 2009-Ohio-4483, 2009 WL 2759737, ¶ 4.

{¶ 7} “ ‘Expungement is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having record of their * * * conviction sealed.’ ” Koehler v. State, 10th Dist. No. 07AP–913, 2008-Ohio-3472, 2008 WL 2698680, ¶ 12, quoting State v. Smith, 3d Dist. No. 9–04–05, 2004-Ohio-6668, 2004 WL 2849057, ¶ 9. Expungement “ ‘ “is an act of grace created by the state” and so is a privilege, not a right.’ ” Koehler, quoting State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). In Ohio, “expungement” remains a common colloquialism used to describe the process of sealing criminal records pursuant to statutory authority. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 11.

{¶ 8} Defendant moved to have the record of her conviction sealed under R.C. 2953.32. R.C. 2953.32(A)(1) provides that “an eligible offender may apply to the sentencing court * * * for the sealing of the record of the case that pertains to the conviction.” For a felony conviction, a defendant may apply for sealing “at the expiration of three years after the offender's final discharge.” R.C. 2953.31(A)(1). A court may grant expungement only when all statutory requirements for eligibility are met. State v. Brewer, 10th Dist. No. 06AP–464, 2006-Ohio-6991, 2006 WL 3825265, ¶ 5, citing In re White, 10th Dist. No. 05AP–529, 2006-Ohio-1346, 2006 WL 727801, ¶ 4–5. “There is no burden upon the state other than to object to an application for expungement where appropriate.” State v. Reed, 10th Dist. No. 05AP–335, 2005-Ohio-6251, 2005 WL 3150170, ¶ 13.

{¶ 9} R.C. 2953.36 enumerates various convictions which “are ineligible for expungement.” State v. Menzie, 10th Dist. No. 06AP–384, 2006-Ohio-6990, 2006 WL 3825248, ¶ 7. R.C. 2953.36(F) provides that “[c]onvictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony” may not be sealed. The state relies on R.C. 2953.36(F) to contend that, because the victim of defendant's attempted burglary conviction was 13–years–old, defendant's conviction cannot be sealed.

{¶ 10} Whether a defendant is “ineligible because the offense was in circumstances in which there was a minor victim,” is a question we review “de novo, as it is a question of law.” State v. Williamson, 10th Dist. No. 12AP–340, 2012-Ohio-5384, 2012 WL 5868893, ¶ 11. “However, that question first requires a court to make factual determinations regarding the identity and age of the victim, and we review questions of fact under an abuse of discretion standard.” State v. D.G., 10th Dist. No. 14AP–476, 2015-Ohio-846, 2015 WL 1019536, ¶ 16. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 11} Whether an “applicant for the privilege of expungement meets all of the requisite criteria for eligibility is determined not only by examining the plea ultimately entered, but rather by also reviewing the events that resulted in the original charges.” State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000). “[W]hen considering whether an applicant is ineligible to have a conviction sealed under R.C. 2953.36 * * * a trial judge must examine the entire record.” Id. at 532, 721 N.E.2d 1041. Thus, the age of a victim “may be considered in making a determination under [R.C. 2953.36(F) ], even if the age of the victim has been dismissed pursuant to a plea agreement.” State v. Norfolk, 10th Dist. No. 04AP–614, 2005-Ohio-336, 2005 WL 225306, ¶ 10. See also State v. Ninness, 6th Dist. No. OT–11–024, 2013-Ohio-974, 2013 WL 1093008, ¶ 13 (noting that “it is sufficient under R.C. 2953.36(F) if the court receives information that the core act on which the conviction is based involved as a putative victim a person under 18–years–old”).

{¶ 12} In ruling on the application, the court had the documents the state attached to its objection, and defendant's statement at the hearing that she “wasn't robbing the house,” to demonstrate the facts of the incident. (Tr. 3.) The complaint alleged that, on February 18, 2005, defendant “by force trespass[ed] in an occupied structure, to wit: did attempt to kick in rear door and then did forcibly push her way into the front door of the one story multi family dwelling.” (Complaint, 1.) The complaint alleged that defendant entered the dwelling “with the purpose to inflict physical harm on another, to wit: [words redacted] f/b 13 Y.O.A.” (Complaint, 1.) Thus, the complaint indicates that defendant entered the house by kicking in the rear door, and that her purpose upon entering the residence was to cause harm to a 13–year–old. There is no indication that defendant succeeded in that purpose, and there is no indication that the 13–year–old was actually present in the dwelling defendant entered.

{¶ 13} The indictment charged defendant with aggravated burglary in violation of R.C. 2911.11, a felony of the first degree. The indictment alleged that defendant, by force, stealth, or deception, trespassed in an occupied structure, “the property of another to wit: [words redacted] when a person other than [defendant] * * * was present,” and that defendant had the “purpose to commit in the structure * * * a criminal offense, the said [defendant] having inflicted or attempted or threatened to inflict physical harm to [words redacted] contrary to the statute.” (Indictment, 1–2.) Thus, the indictment appears to identify two potential victims: the property owner or resident, and the individual against whom defendant inflicted or attempted to inflict physical harm when she entered the structure. The indictment does not identify the age of either individual.

{¶ 14} The March 28, 2006 judgment entry notes that defendant entered a guilty plea to the “stipulated lesser included offense of Count One of the Indictment, to wit: Attempted Burglary,” in violation of R.C. 2923.02 and 2911.12, a felony of the fifth degree. R.C. 2923.02 provides that “[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.” R.C. 2923.02(A). An attempt to commit an offense “is an offense of the next lesser degree than the offense attempted.” R.C. 2923.02(E)(1). The lowest degree of burglary is a felony of the fourth degree. An individual commits a fourth-degree felony burglary if, “by force, stealth, or deception,” they “trespass in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present or likely to be present.” R.C. 2911.12(B).¹ Thus, the version of burglary that defendant ultimately pled guilty to contained no element requiring that defendant entered the structure with the purpose to commit a criminal offense therein.

{¶ 15} The court sentenced defendant to two years of community control supervision, and ordered that defendant “stay away from Althea Berry aka Alther Berry.” (Judgment...