State v. Mirkin, 20CA7

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtKRISTY S. WILKIN, JUDGE
Citation2022 Ohio 2229
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. ADAM MIRKIN, Defendant-Appellant.
Docket Number20CA7
Decision Date23 June 2022


STATE OF OHIO, Plaintiff-Appellee,

ADAM MIRKIN, Defendant-Appellant.

No. 20CA7

Court of Appeals of Ohio, Fourth District, Jackson

June 23, 2022

Rhys B. Cartwright-Jones, Youngstown, Ohio for Appellant.

Justin Lovett, Jackson County Prosecuting Attorney, and Rachael E. Daehler, Assistant Jackson County Prosecutor, Jackson, Ohio for Appellee.



{¶1} This is an appeal from a Jackson County Court of Common Pleas judgment that denied appellant, Adam Mirkin's ("Mirkin"), application to seal his criminal record under R.C. 2953.32. Mirkin asserts a single assignment of error: the trial court erred in denying his record sealing under R.C. 2953.32. After reviewing the parties' arguments, the applicable law, and the record, we affirm the trial court's judgment denying Mirkin's application.


{¶2} In 2005, the state charged Mirkin with importuning under R.C. 2907.07 for using a phone to solicit sex from an individual he thought was a 14-year-old female, but who was in fact a law enforcement officer. On April 30, 2008, Mirkin ultimately pleaded guilty to unauthorized use of a computer in


violation of R.C. 2913.04, a fifth-degree felony. The court sentenced him to nine months in prison, and three years of post-release control. Thereafter, Mirkin was convicted in Athens County for unauthorized use of a computer in 2008 and drug possession in 2011, both felonies of the fourth and fifth degree.

{¶3} On October 28, 2019, Mirkin filed an application to seal his first unauthorized use of computer conviction under R.C. 2953.32, as a "first time offender."[1] In the application, Mirkin admitted that he had a "misdemeanor record," but had not engaged in any criminal activity since 2014. Following his last criminal encounter, Mirkin claims to have abstained completely from using drugs or alcohol, and continues to manage his recovery "through a 12-step program." Attached to Mirkin's application were letters of support indicating that he did complete the 12-step program, and has subsequently served as a sponsor for others with sobriety problems.

{¶4} On January 15, 2020, the trial court held a hearing on Mirkin's application. Mirkin's attorney admitted that subsequent to the 2008 Jackson County unauthorized use of a computer conviction, Mirkin continued to engage in criminal activity. However, counsel argued that Mirkin has been "clean from drugs" since 2014, and he is "helping others recover from their drug addiction."


{¶5} The state opposed Mirkin's application to seal his record. The state first argued the mere fact Mirkin pleaded guilty to the lesser charge of unauthorized use of a computer makes no difference because the underlying facts involved his attempt to have sex with a minor, which should prevent him from sealing his record.

{¶6} The state next argued that under R.C. 2953.32(C)(1)(e), the interest of the government in maintaining Mirkin's criminal record outweighs his interest in sealing the record "due to the nature of the allegations." The state relied upon a sexual-offense specific evaluation conducted upon Mirkin in 2007, which noted that "he lacks in sight to his behaviors, he minimizes and justifies his behaviors, however, as with Mr. Mirkin, it is not unusual for sexual offenders to use these defense mechanisms to avoid taking responsibility for their deviant sexual behaviors."

{¶7} On September 24, 2020, the trial court issued a decision and order denying Mirkin's application to seal his record summarily stating that he had two additional felony convictions in 2008 and 2011. It is this judgment that Mirkin appeals, asserting a single assignment of error.



{¶8} Mirkin argues that he was eligible to apply to seal his record because none of his convictions were the ones that prohibited sealing as set out in R.C. 2953.36, and he had no criminal charges pending. Further, Mirkin specifically claims that neither of his subsequent 2008 and 2011 felony convictions


disqualified him from having his criminal record sealed because both were fourth-or fifth-degree felonies that were nonviolent and nonsexual.

{¶9} Being eligible, Mirkin argues that the trial court was required to determine whether he had been rehabilitated to its satisfaction. The court was further obligated to weigh Mirkin's interest in having his criminal record sealed against the legitimate needs, if any, of the government to maintain those records. The court failed to make any such determination at the hearing or in the record. Therefore, Mirkin asserts that the trial court's decision denying his application to seal was erroneous and should be overturned.

{¶10} In response, the state agrees that a trial court must consider the factors in R.C. 2953.32 (C)(1)(a)-(e) in deciding whether to seal an applicant's criminal record. The state claims that "[t]he record of the hearing and the trial court's written decision are both devoid of any mention of the court considering the statutory factors." In particular, the state concedes that Mirkin's two subsequent convictions were fourth or fifth-degree felonies which would not disqualify him from being eligible to apply to seal his record. The state did, however, argue on the record that appellant's 2008 conviction is precluded from being sealed under 2953.36(A)(6) and that maintaining Mirkin's record outweighed his interest in sealing it, but the trial court never addressed either argument. Therefore, the state requests that the matter be remanded to the trial court for consideration of these issues.

A. Law


{¶11} "R.C. Chapter 2953 * * * allows the sealing of certain criminal matters." (Emphasis sic.) Cap. One Bank, USA, N.A. v. Essex, 2nd Dist. Montgomery No. 25827, 2014-Ohio-4247, ¶ 10, citing State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 11-12. Unlike expunging a criminal record, which destroys it, making it permanently irretrievable, sealing one's criminal record makes it" 'accessible only to the * * * court.'" Id. at ¶ 11, quoting R.C. 2151.355(B).

1. A Trial Court's Undertaking

{¶12} R.C. 2953.32(C)(1) in pertinent part provides that 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. * * *
(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 * * *

In pertinent part, R.C. 2953.31 (A)(1)(a) defines an eligible offender as

Anyone who has been convicted of one or more offenses 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 * * *.

{¶13} " 'Use of the term "shall" in a statute connotes a mandatory obligation unless other language evidences a clear and unequivocal intent to the contrary.'" State v. Noling, 153 Ohio St.3d 108, 2018-Ohio-795, 101 N.E.3d 435, ¶ 64, quoting State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28, quoting Wilson v. Lawrence, 150 Ohio...

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