[Cite as State v. D.P., 2012-Ohio-3281.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

STATE OF OHIO                                  :
                                               :     Appellate Case No. 2011-CA-54
        Plaintiff-Appellee                     :
                                               :     Trial Court Case No. 05-CRB-700
v.                                             :
                                               :     (Criminal Appeal from Fairborn
D.P.                                           :     (Municipal Court)
                                               :
        Defendant-Appellant                    :
                                               :
                                            ...........

                                            OPINION

                                Rendered on the 20th day of July, 2012.

                                            ...........

BETSY A. DEEDS, Atty. Reg. #0076747, Fairborn Municipal Prosecutor’s Office, 510 West
Main Street, Fairborn, Ohio 45324
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Allen Brenner, LLC, Post Office
Box 341021, Beavercreek, Ohio 45434
      Attorney for Defendant-Appellant

                                           .............

HALL, J.

        {¶ 1}     D.P. appeals from the trial court’s denial of his motion to seal his record of

conviction pursuant to R.C. 2953.32.
[Cite as State v. D.P., 2012-Ohio-3281.]
          {¶ 2}      In his sole assignment of error, D.P. contends the trial court erred in finding

that the State’s interest in keeping the record of conviction unsealed outweighed his interest in

sealing it.

          {¶ 3}      D.P. was convicted in November 2005 on one count of using a weapon while

intoxicated in violation of R.C. 2923.15(A), a first-degree misdemeanor.1 (Doc. #22). The

incident involved police stopping D.P.’s car and finding a loaded handgun in the center

console. Police had made the stop after receiving a report from D.P.’s wife that he was

suicidal. (Doc. #3). D.P. received probation for the offense. His probation later was

administratively terminated. (Doc. #23). D.P. also was charged with felony carrying a

concealed weapon based on the same incident. He received intervention in lieu of conviction

and successfully completed it. (Tr. at 8-10).

          {¶ 4}      In September 2010, D.P. moved to have the misdemeanor conviction sealed.

The trial court held an August 23, 2011 hearing on the motion. The sole witness was D.P., a

retired civilian engineer at Wright-Patterson Air Force Base. D.P.’s testimony established that

he had a prior history of alcohol abuse, depression, and suicide attempts. At the time of the

hearing, D.P. was being treated for depression and attended Alcoholics Anonymous meetings.

(Tr. at 11-14). D.P. testified that he had not consumed any alcohol since October 1, 2009. (Id.

at 12). He also testified that he had not had any contact with police since October 2009. (Id. at

16-17).

          {¶ 5}      D.P. explained that he wanted his misdemeanor conviction sealed because it

interfered with his ability to obtain an adjunct teaching position at Wright State University.

           1
            R.C. 2923.15(A), which is titled “Using Weapons While Intoxicated,” provides: “No person, while under the influence of alcohol
 or any drug of abuse, shall carry or use any firearm or dangerous ordnance.”
                                                                                            3


D.P. testified that he “unofficially” had been offered such a position. He did not pursue the

opportunity, however, “because [he] knew that the minute [the] personnel department ran a

background check on [him], that would not only be the end of that offer but the end of any

possibility of teaching at Wright State.” (Id. at 19-20). D.P. added that he “would be hard

pressed to think of a job [he] could get with a conviction like that.” (Id. at 20).

        {¶ 6}    On cross-examination, D.P. provided more details about what had occurred on

October 1, 2009, which was the last time that he had consumed alcohol. He acknowledged that

police were called to his home on that occasion and that he was hospitalized. (Id. at 21). D.P.

also acknowledged that police had been called to his house “quite a few times” after he

completed his probation in the underlying case. (Id. at 21-22). He did not dispute that police

had been called to his house seven times in 2007 and at least “several times” in 2008. (Id. at

23). The prosecutor then questioned D.P. about an incident on January 29, 2008, when he

allegedly pointed his hand at medics, as if he were holding a gun, and said “boom.” D.P.

testified that he did not recall the incident. (Id. at 23-24).

        {¶ 7}    During closing arguments, the trial court questioned whether sealing D.P.’s

misdemeanor conviction would help him obtain a teaching job. The trial court opined that

“education is one area that’s an exception; they would still have access to this, I believe,

regardless of what I would do.” (Id. at 27-28). Defense counsel disagreed, explaining that the

exception did not apply “in the college setting.” (Id. at 28). In any event, defense counsel

asserted that the conviction would harm D.P.’s job prospects in other fields too. (Id.). For its

part, the State responded that it had a legitimate interest in keeping the conviction public to

protect any law enforcement or medical personnel who might interact with D.P. in the future.
                                                                                           4


The State argued that such people should be “aware that he has a history of weapons and being

under the influence of alcohol.” (Id. at 30).

        {¶ 8}    After hearing the parties’ arguments, the trial court denied D.P.’s motion. It

reasoned:

                        * * * I’ve reviewed the documents provided by [D.P.]

                which demonstrate the history of alcoholism as well as

                depression and suicide attempts, including one with a butter

                knife in January of ‘08.

                        There are not any further incidents since October of

                ‘09—there was actually, subsequent to October 1st, October 9th,

                which may have more to do with the theft, potential theft than

                anything else.

                        Having said that, when I weigh everything and weigh the

                government’s interest in maintaining the records, to [D.P.’s]

                interest in having the record sealed, given the history, I still find

                in favor that the State has an interest that outweighs [D.P’s]

                interest.

(Id. at 31).

        {¶ 9}    When considering a motion to seal a criminal conviction, a trial court must

weigh “the interests of the applicant in having the records pertaining to the applicant’s

conviction sealed against the legitimate needs, if any, of the government to maintain those

records.” R.C. 2953.32(C)(1)(e). A trial court’s weighing of the competing interests is subject
                                                                                             5


to review for an abuse of discretion. State v. Webb, 2d Dist. Montgomery No. 24866,

2012-Ohio-2962, ¶ 14.

       {¶ 10}    “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d

1248 (1985). Most instances of abuse of discretion will result in decisions that are

unreasonable rather unconscionable or arbitrary. State v. Cunningham, 2d Dist. Clark No.

10-CA-57, 2012-Ohio-2794, ¶ 47. A decision is unreasonable if no sound reasoning process

supports it. Id. “‘It is not enough that the reviewing court, were it deciding the issue de novo,

would not have found that reasoning process to be persuasive, perhaps in view of

countervailing reasoning processes that would support a contrary result.’” Id., quoting AAAA

Enterprises, Inc v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,

161, 553 N.E.2d 597 (1990).

       {¶ 11} Having reviewed the record, we find no abuse of discretion in the trial court’s

denial of D.P.’s motion. D.P. has a history of alcohol problems, depression, and some suicidal

tendencies. The record also reflects a history of emergency personnel being called to D.P.’s

home. The last of these incidents occurred on October 1, 2009, which was less than two years

before the hearing on the motion to seal his record. Although he no longer drank at the time of

the hearing and was receiving treatment for depression, D.P.’s problems were recent enough

for the trial court reasonably to conclude, for public-safety reasons, that the State had a

legitimate interest in maintaining a record of his misdemeanor firearm conviction. The trial

court also reasonably could find that this interest outweighed D.P.’s interest in improving his

chances of obtaining an adjunct position or another job. Although D.P. asserted below that his
                                                                                              6


misdemeanor conviction rendered him virtually unemployable, the record contains no

evidence supporting that claim. As set forth above, D.P. is retired. The only job he sought was

the adjunct teaching position, and he failed to follow through with it. In any event, even if his

misdemeanor conviction will prevent D.P. from teaching part time, we cannot say the trial

court abused its discretion in denying his motion.

       {¶ 12} In opposition to the foregoing conclusion, D.P. contends the trial court

mistakenly minimized his interest in sealing his conviction by expressing its belief that

educational institutions have access to sealed criminal records. D.P. claims this is not true with

respect to employment at a university, as opposed to an elementary or secondary school. D.P.

also argues that the trial court erroneously based it decision on a highly speculative possibility

that he might relapse.

       {¶ 13} During closing argument, defense counsel addressed the trial court’s assertion

that educational institutions have access to sealed records. Counsel specifically informed the

trial court that Wright State University would not have access to D.P.’s record if it were

sealed. The trial court did not state or imply otherwise in its decision denying sealing.

Therefore, we do not find that the trial court erroneously minimized D.P.’s interest in sealing

his record. Finally, the trial court’s concern about D.P. relapsing was not so speculative as to

constitute an abuse of discretion. As set forth above, D.P. had been sober and stable for less

than two years at the time of the hearing. Despite his progress, the trial court did not act

unreasonably in expressing concern about the possibility of a relapse.

       {¶ 14} Based on the reasoning set forth above, we overrule D.P.’s assignment of error

and affirm the judgment of the Fairborn Municipal Court.
[Cite as State v. D.P., 2012-Ohio-3281.]
                                           .............

FAIN and DONOVAN, JJ., concur.


Copies mailed to:

Betsy A. Deeds
Robert A. Brenner
Hon. Beth W. Root
