State v. S.J.

• Citation: 151 N.E.3d 1021,2020 Ohio 183
• Decision Date: 23 January 2020
• Docket Number: No. 108126,108126
• Parties: STATE of Ohio, Plaintiff-Appellee, v. S.J., Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

151 N.E.3d 1021

2020 Ohio 183

STATE of Ohio, Plaintiff-Appellee,

v.S.J., Defendant-Appellant.

No. 108126

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

RELEASED AND JOURNALIZED: January 23, 2020

JOURNAL ENTRY AND OPINION

ANITA LASTER MAYS, P.J.:

{¶ 1} Defendant-appellant S.J. appeals the trial court's decision to deny her application to expunge her criminal record. After a thorough review, we reverse and remand.

{¶ 2} Prior to this appeal, in State v. S.E.J. , 8th Dist. Cuyahoga No. 105883, 2018-Ohio-2060, 2018 WL 2411562, this court ordered the trial court to seal S.J.'s record of a felony conviction. As a result, S.J.'s felony conviction was sealed in 2018, but her misdemeanor convictions were not. She now appeals to have her misdemeanor convictions sealed.

I. Facts and Procedural History

{¶ 3} In 2010, S.J. pleaded guilty to improperly handling firearms in a motor vehicle, a first-degree misdemeanor, in violation of R.C. 2923.16(E)(1)(a), and carrying concealed weapons, a minor misdemeanor, in violation of R.C. 2923.12(A)(2). She was sentenced to pay $850 in fines and court costs.

{¶ 4} In 2014, S.J. submitted an application to have her record expunged. The state opposed the expungement, and the trial court denied the application based on the nature of the offense. In 2015, after filing a second expungement application, the trial court again denied expunging S.J.'s record. In 2018, the trial court denied S.J.'s third application for expungement. The state argued that while S.J. is an eligible offender, because the crime involved a firearm and S.J. fired shots, the government's interest outweighed S.J.'s desire to seal her record. The trial court disagreed with the state that S.J. was an eligible offender, and determined that S.J., in fact, was not an eligible offender because her application for expungement was previously denied twice and S.J. was barred by res judicata.

{¶ 5} S.J. appealed the trial court's decision and assigns two errors for our review:

I. The trial court abused its discretion when it denied S.J.'s motion for expungement because that decision failed to properly weigh the competing interests involved and is not supported by the record, and

II. The trial court erred when it concluded that S.J. was not an eligible offender for expungement under R.C. 2953.31.

II. Expungement

A. Standard of Review

{¶ 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. Franklin No. 14AP-338, 2014-Ohio-4827, 2014 WL 5494015, ¶ 6." State v. R.M. , 8th Dist. Cuyahoga No. 104327, 2017-Ohio-7396, 2017 WL 3822410, ¶ 5. "The term ‘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).

B. Whether the Trial Court Abused its Discretion when it Denied S.J.'S Motion for Expungement without Weighing the Competing Interests Involved and Erred when it Determined that S.J. was not an Eligible Offender because of Res Judicata

{¶ 7} For ease of discussion, appellant's assignments of error will be addressed out of order. S.J.'s eligibility status for expungement is pertinent to our decision on whether the trial court abused its discretion when denying S.J.'s motion.

{¶ 8} In S.J.'s assignments of error, she argues that the trial court abused its discretion when it denied her motion for expungement and that the trial court erred when it determined that she was not an eligible offender.

R.C. 2953.31 et seq. set forth the procedures for sealing a record of conviction. The statutory law in effect at the time of the filing of an R.C. 2953.32 application to seal a record of conviction is controlling. State v. A.S. , 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187 [2014 WL 2168493], ¶ 10, citing State v. LaSalle , 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph two of the syllabus. Under R.C. 2953.32, the trial court must determine: whether the applicant is an "eligible offender"; whether criminal proceedings are pending against the applicant; and whether the applicant has been rehabilitated to the satisfaction of the court. The court must then "consider the reasons against granting the application specified by the prosecutor" and weigh the applicant's interests in having the records sealed versus the government's needs, if any, for maintaining those records. R.C. 2953.32(C). The applicant must meet all of the statutory criteria for eligibility in order to invoke the jurisdiction of the court to grant an expungement. A.S. at ¶ 9.

State v. T.S. , 8th Dist. Cuyahoga No. 102648, 2017-Ohio-7395, 2017 WL 3822400, ¶ 8.

{¶ 9} Accordingly,

[t]he purpose of expungement, or sealing a record of conviction, is to recognize that people may be rehabilitated. State v. Petrou , 13 Ohio App.3d 456, 456, 469 N.E.2d 974 (9th Dist.1984). In enacting the expungement provisions, the legislature recognized that " ‘[p]eople make mistakes, but that afterwards they regret their conduct and are older, wiser, and sadder. The enactment and amendment of R.C. 2953.31 and 2953.32 is, in a way, a manifestation of the traditional Western civilization concepts of sin, punishment, atonement, and forgiveness.’ " State v. M.D. , 8th Dist. Cuyahoga No. 92534, 2009-Ohio-5694 [2009 WL 3478517], ¶ 8, quoting State v. Boddie , 170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, ¶ 8 (8th Dist.).

State v. M.H. , 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, 2018 WL 898922, ¶ 10.

{¶ 10} Also,

" ‘[e]xpungement is an act of grace created by the state,’ and so is a privilege, not a right." State v. Simon , 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2001), quoting State v. Hamilton , 75 Ohio St.3d 636, 665 N.E.2d 669 (1996). Nonetheless, the Ohio Supreme Court has made clear that "[t]he expungement provisions are remedial in nature and ‘must be liberally construed to promote their purposes.’ " M.D. at ¶ 9, quoting State ex rel. Gains v. Rossi , 86 Ohio St.3d 620, 716 N.E.2d 204 (1999).

Id. at ¶ 11.

{¶ 11} First, we must determine if S.J. is an eligible offender, under the law in effect at the time of her expungement application.¹ As mentioned, the state conceded that S.J. is an eligible offender.

Under R.C. 2953.31(A), an "eligible offender" is defined to include those convicted of "not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction." * * * A conviction for a minor misdemeanor is not considered a conviction. R.C. 2953.31(A).

State v. J.S. , 8th Dist. Cuyahoga No. 101329, 2015-Ohio-177, 2015 WL 268812, ¶ 9.

{¶ 12} At the time of filing her motion to seal, S.J. had only misdemeanor convictions. Therefore, a plain reading of the statute would render S.J. eligible. However, since S.J. had filed a previous application requesting a sealing of her record, the trial court determined that she was not eligible under the theory of res judicata. We find that the trial court erred when it determine that S.J. was not an eligible offender because of res judicata. The trial court stated, "[a]nd pursuant to the statutes relating to expungement, she is not an eligible offender because she is res judicata in that this is denied twice and she's no longer eligible for expungement." (Tr. 6.)

Based upon the foregoing well-established principles, Ohio courts have held that the doctrine of res judicata ordinarily prohibits successive applications to seal a conviction. State v. Bailey , 2d Dist. Montgomery No. 26464, 2015-Ohio-3791 [2015 WL 5517236], ¶ 16-18 ; State v. Singo , 9th Dist. Summit No. 27094, 2014-Ohio-5335 ; In re Application for the Sealing of the Record of Brown , 10th Dist. Franklin No. 07AP-715, 2008-Ohio-4105 [2008 WL 3522448], ¶ 10 ; State v. Haney , 10th Dist. Franklin No. 99AP-159 [1999 WL 1054840], 1999 Ohio App. LEXIS 5524 (Nov. 23, 1999) ; State v. Young , 2d Dist. Montgomery No. 12847 [1992 WL 4465], 1992 Ohio App. LEXIS 123 (Jan. 14, 1992). A successive application may succeed, however, if the defendant establishes "a change in circumstances from the time of the filing of the previous application." Brown at ¶ 10. In the absence of a change in circumstances, "res judicata bars successive attempts to relitigate the same issues in subsequent expungement applications." Id.

"[T]he broadening of the class of persons eligible for expungement ‘constitutes a change in circumstances between the prior requests for expungement and the [successive] application so as to allow a court to consider a subsequent petition and res judicata would not bar its review.’ " State v. Matthews , 6th Dist. Wood No. WD-14-059, 2015-Ohio-3517 [2015 WL 5086408], ¶ 13, quoting State v. Grillo , 2015-Ohio-308, 27 N.E.3d 951, ¶ 20 (5th Dist.) ; see alsoState v. Rojas , 180 Ohio App. 3d 52, 2008-Ohio-6339, 904 N.E.2d 541, ¶ 12 (2d Dist.) ("Res judicata does not bar an R.C. 2953.32 application where there is a showing of changed or new circumstances."). The mere passage of time, however, does not constitute a change in circumstances. Haney at 4 [*2]. But seeState v. Schwartz , 1st Dist. Hamilton No. C-040390, 2005-Ohio-3171 [2005 WL 1490100], ¶ 10 (determining that passage of time between defendant's offense and second application to seal, along with defendant's continued difficulty finding employment, constituted change in circumstances).

State v. D.M. , 2018-Ohio-3327, 118 N.E.3d 288, ¶ 24-25 (4th Dist.).

{¶ 13} It has been determined that "absent demonstration by the applicant that there has been a change in circumstances from the time of the filing of the previous application, res judicata bars successive attempts to relitigate the same issues in subsequent expungement applications." Brown at ¶ 10. However, S.J. contends that...