[Cite as State v. K.M., 2020-Ohio-450.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                  JUDGES:
STATE OF OHIO                                     Hon. John W. Wise, P. J.
                                                  Hon. Craig R. Baldwin, J.
        Plaintiff-Appellee                        Hon. Earle E. Wise, Jr., J.

-vs-                                              Case Nos. 2019CA00077,
                                                  2019CA00084, 2019CA00085,
KRISTINA M.                                       and 2019CA00086

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Massillon
                                               Municipal Court, Case Nos. 2005CRB2446,
                                               2000CRB869, 1996CRB494, and
                                               1993CRB1626

JUDGMENT:                                       Reversed and Remanded




DATE OF JUDGMENT ENTRY:                        February 10, 2020




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JUSTIN RICHARD                                 HEATHER R. DUNCAN
CHIEF PROSECUTING ATTORNEY                     COMMNITY LEGAL AID
MASSILLON LAW DEPARTMENT                       SERVICES, INC.
Two James Duncan Plaza                         401 Market Avenue North, Suite 103
Massillon, Ohio 44646                          Canton, Ohio 44702
Stark County, Case Nos. 2019CA00077, 00084, 00085, and 00086                               2


Wise, John, P. J.

       {¶1}   Appellant Kristina M. appeals the decision of the Massillon Municipal Court,

Stark County, which denied appellant’s motion to seal the records of four separate

misdemeanor convictions from that court. Appellee is the State of Ohio. The relevant facts

leading to this consolidated appeal are as follows.

                                        Prior Convictions

       {¶2}   As pertinent to the present appeals, it is undisputed that appellant was

previously convicted of four misdemeanors in four separate cases in the Massillon

Municipal Court, as follows:

       {¶3}   In case number 1996CRB00494, presently appellate case number

2019CA00077, appellant was convicted on one count of passing bad checks.

       {¶4}   In case number 1993CRB01626, presently appellate case number

2019CA00084, appellant was convicted on one count of receiving stolen property.

       {¶5}   In case number 2000CRB00869, presently appellate case number

2019CA00085, appellant was convicted on one count of disorderly conduct.

       {¶6}   In case number 2005CRB02446, presently appellate case number

2019CA00086, appellant was convicted on one count of theft of gasoline.

                                      2019 Motions to Seal

       {¶7}   On April 3, 2019, appellant, with the assistance of counsel, filed a “motion

to seal criminal record” in each of the aforesaid four cases.

       {¶8}   On April 8, 2019, the trial court scheduled a joint hearing for all four cases.

       {¶9}   Prior to the hearing, the prosecutor filed a “motion to oppose sealing" in

response to appellant’s motions to seal her criminal records.
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       {¶10} The matter proceeded to a hearing on April 25, 2019. At that time, the trial

court refused appellant’s request via counsel to testify on her own behalf. See Tr. 3, 8-9.1

Nonetheless, according to appellant’s defense counsel’s statements to the trial court,

appellant, due to her past choices, has struggled to obtain employment and housing for

herself and her sons. See Tr. at 4. Appellant hoped sealing her criminal records would

assist her in obtaining full-time meaningful employment. Tr. at 4, 5. She also planned to

explore the possibility of going back to school. Id.

       {¶11} At the end of the hearing, the trial court orally denied all of the motions to

seal. A written judgment entry to that effect, as to all four cases, was filed on the same

day.

       {¶12} Appellant filed a notice of appeal in each of the aforementioned four cases

on May 24, 2019. She herein raises the following four Assignments of Error:

       {¶13} “I.    THE TRIAL COURT ERRED BY FAILING TO MAKE THE

DETERMINATIONS AS REQUIRED BY R.C. 2953.32.

       {¶14} “II.   THE TRIAL COURT ERRED BY REFUSING TO ALLOW AN

EVIDENTIARY HEARING.

       {¶15} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO BE IMPARTIAL IN

ITS ADJUDICATION OF APPELLANT'S MOTIONS TO SEAL HER CRIMINAL

RECORDS.

       {¶16} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S MOTIONS TO SEAL HER CRIMINAL RECORDS.”



1 The main aspects of the transcript are found on pages 3 through 9 thereof; appellant
herself was permitted to briefly make unsworn statements to the court at page 5.
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                                                  I.

       {¶17} In her First Assignment of Error, appellant contends the trial court erred in

addressing her motions to seal records by failing to make the determinations set forth in

R.C. 2953.32. We agree.

       {¶18} The process of sealing criminal records in Ohio, pursuant to statutory

authority, is often referred to in colloquial terms as “expungement.” State v. Nichols, 10th

Dist. No. 14AP-498, 2015-Ohio-581, ¶ 8, citing State v. Pariag, 137 Ohio St.3d 81, 2013-

Ohio-4010, ¶ 11. Because the process is recognized as an act of grace created by the

State, a court may grant an expungement only when the applicant meets all statutory

requirements for eligibility. See State v. J.L., 10th Dist. Franklin No. 18AP-281, 2019-

Ohio-681, ¶ 7 (additional citations omitted).2

       {¶19} R.C. 2953.32(C)(1) sets forth the following duties on a trial court in

reviewing an application for the sealing of a conviction record:

              (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. If the applicant applies as an eligible offender pursuant to division

       (A)(1) of this section and has two or three convictions that result from the

       same indictment, information, or complaint, from the same plea of guilty, or

       from the same official proceeding, and result from related criminal acts that

       were committed within a three-month period but do not result from the same

       act or from offenses committed at the same time, in making its


2 Notably, in 2011, the General Assembly amended R.C. 2953.31 and 2953.32 to replace
the term “first offender” with “eligible offender.” State v. N.J., 10th Dist. Franklin No. 17AP-
73, 2017-Ohio-7089, 95 N.E.3d 828, f.n. 3.
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      determination under this division, the court initially shall determine whether

      it is not in the public interest for the two or three convictions to be counted

      as one conviction. If the court determines that it is not in the public interest

      for the two or three convictions to be counted as one conviction, the court

      shall determine that the applicant is not an eligible offender; if the court does

      not make that determination, the court shall determine that the offender is

      an eligible offender.

             (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.

      {¶20} As a general rule, a trial court's decision to deny expungement will not be

disturbed on appeal absent a showing of abuse of discretion. State v. Muller, 5th Dist.

Knox No. 99CA18, 2000 WL 1681025. However, a claim that the trial court failed to follow

statutory requirements necessitates interpretation of the pertinent statute, which presents
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a question of law that an appellate court reviews de novo. See Sarchione-Tookey v.

Tookey, 4th Dist. Athens No. 17CA41, 2018-Ohio-2716, ¶ 25.

       {¶21} In the case sub judice, the trial court made the following pertinent

determinations on the record:

              When there's a lot of theft, especially theft, uh, things, the public has

       a right to know before they hire her as their cleaning person, before they

       allow her into their home to do other kinds of work, before they allow her to

       take care of a, uh, guardian or in a guardianship kind of relationship with

       someone else. I think the public has a right to know that. So, uh, no… l think

       this was an oral hearing. I think there was a written motion filed ... So,

       whatever testimony you would put in with this many theft charges, I think

       the public has a right to know that.

       {¶22} Tr. at 8-9.

       {¶23} Also, in its judgment entry of April 25, 2019, the trial court ruled in pertinent

part: “Decision based on past record of theft and dishonesty over 20 yr. [sic] period." Entry

and Order at 1.

       {¶24} We often emphasize that in proceedings before the bench, a trial court

judge is presumed to know the applicable law and apply it accordingly. See, e.g., State v.

Daniel M., 5th Dist. Licking No. 2019 CA 00003, 2019-Ohio-4686, ¶ 32, citing Walczak v.

Walczak, 5th Dist. Stark No. 2003CA00298, 2004-Ohio-3370, ¶ 22. At the same time, a

trial court cannot summarily deny an application for expungement based merely on the

nature of the offense. See State v. Poole, 5th Dist. Perry No. 10-CA-21, 2011-Ohio-2956.
Stark County, Case Nos. 2019CA00077, 00084, 00085, and 00086.                               7


       {¶25} While we decline to herein establish a bright-line rule, but noting in particular

that appellant simultaneously presented four expungement applications concerning four

separate offenses spread out over a twelve-year period, we hold upon review that the trial

court committed reversible error under the circumstances via its lack of more extensive

oral and/or written determinations , especially as to subsection (C)(1)(c), which requires

the trial court to “* * * determine whether the applicant has been rehabilitated to the

satisfaction of the court.” Cf. State v. Grillo, 5th Dist. Richland No. 14CA51, 2015-Ohio-

308, 27 N.E.3d 951, ¶ 41. The State’s responsive citation to this Court’s decision in State

v. Sherfey, 5th Dist. Fairfield No. 18-CA-23, 2019-Ohio-1225 does not compel us to affirm,

because even though we therein stated that a trial court is not required to make “express

findings” in granting or denying an application for sealing, we held that the record “must

reflect that the court complied with R.C. 2953.32's mandates in making its decision.” Id.

at ¶ 15.

       {¶26} Appellant's First Assignment of Error is therefore sustained.

                                                 II.

       {¶27} In her Second Assignment of Error, appellant contends the trial court erred

in denying her the opportunity to put on evidence at the April 25, 2019 hearing. We agree.

       {¶28} In State v. D.K., 8th Dist. Cuyahoga No. 105812, 2017-Ohio-7081, the

appellant, D.K., appealed a lower court decision that had denied a motion to seal the

record of his conviction, without the benefit of an evidentiary hearing. The Eighth District

Court of Appeals first observed that under R.C. 2953.32(B), a trial court is required to hold

a hearing before resolving a motion to seal. Id. at ¶ 1. The Court further explained: “A trial

court must first hold a hearing because, generally, evidence is required in order to make
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the several determinations under R.C. 2953.32(C)(1)(a) through (e).” Id. (internal citations

omitted). The Court ultimately held that D.K. was entitled to a hearing, and it remanded

the matter for further proceedings consistent with R.C. 2953.32. Id. at ¶ 3.

       {¶29} While we again decline to establish a bright-line rule for all expungement

cases, we hold upon review that the trial court committed reversible error under the

circumstances presented by declining to hear evidence concerning appellant’s four

applications to seal.

       {¶30} Appellant's Second Assignment of Error is therefore sustained.

                                              III., IV.

       {¶31} Based on our conclusions above, we find the remaining Assignments of

Error to be moot and/or premature.

       {¶32} For the foregoing reasons, the judgment of the Massillon Municipal Court,

Stark County, Ohio, is hereby reversed and remanded.


By: Wise, John, P. J.

Baldwin, J., and

Wise, Earle, J., concur.


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