[Cite as State v. W.C., 2018-Ohio-1182.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105353




                                      STATE OF OHIO
                                                    PLAINTIFF -APPELLEE

                                              vs.

                                            W.C.
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-594927-A

        BEFORE: Keough, P.J., Blackmon, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEYS FOR APPELLANTS

Mark Stanton
Cuyahoga County Public Defender
By: Noelle A. Powell
       Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
Justice Center
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, W.C., appeals from the trial court’s decision denying

his motion to seal his arrest record. Finding merit to the appeal, we reverse the trial

court’s decision and remand for further proceedings.

       {¶2} In 2015, W.C. was named in a ten-count indictment charging him with rape,

kidnapping, and gross sexual imposition; sexual motivation specifications were attendant

to the kidnapping charges. A jury subsequently found W.C. not guilty on all counts.

       {¶3} In February 2016, W.C. filed a motion pursuant to R.C. 2953.52 to seal court

records following a not guilty verdict. The state opposed the motion contending that

W.C.’s motion should be denied because of the nature of the offenses and his prior

criminal history.

       {¶4} In July 2016, the trial court conducted a hearing on W.C.’s motion. W.C.

requested that his arrest record be sealed because he has been unable to secure

employment following his arrest on the charges, despite being honorably discharged from

the military. W.C. explained that employers have denied him jobs, for which he is

otherwise qualified and in areas he has previously worked, solely due to the instant case

where he was acquitted of all charges. He further explained that without meaningful

employment, he is unable to support himself and his family. The state again reiterated

that it objected to sealing W.C.’s arrest record in this case because of the “nature of the

charges” and his “extensive record of arrest and convictions.”
       {¶5} The trial court reviewed W.C.’s arrest and conviction history, which

consisted exclusively of nonviolent misdemeanors.         The most serious misdemeanor

conviction occurred in 2010 where he was convicted of having a drug of abuse, a

misdemeanor of the first degree. The court also reviewed W.C.’s employment history

prior to his arrest and his subsequent attempts to find employment.

       {¶6} In December 2016, the trial court issued a journal entry denying W.C.’s

motion. The court stated:

       After hearing arguments from the state and defense, hearing from the
       defendant and in consideration of the briefs filed in the instant matter and a
       review of the defendant’s past criminal history, the legitimate needs of the
       government to maintain those records outweigh the defendant’s interest in
       sealing his record.

       {¶7} W.C. now appeals, raising two assignments of error. Finding merit to his

second assignment of error, it will be addressed first.

       {¶8} In his second assignment of error, W.C. contends that the trial court failed to

articulate and create a record for this court to engage in a meaningful appellate review.

We agree.

       {¶9} R.C. 2953.52 allows for the records of a case to be sealed when a defendant is

found not guilty, the case was dismissed, or a grand jury returned a no bill. Subsection

(B)(2)(d) provides that after eligibility under the statute has been determined, the trial

court must “weigh the interests of the person in having the official records pertaining to

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

records.”
       {¶10} “It is the defendant’s burden to set forth his legitimate reasons, as opposed

to a general privacy interest, why the record should not remain open to the public.” State

v. Delgado, 8th Dist. Cuyahoga No. 102653, 2015-Ohio-5256, ¶ 10, citing In re J.D.,

2013-Ohio-4706, 1 N.E.3d 434, ¶ 8 (8th Dist.). If the state opposes the motion, it must

show that its legitimate governmental interests outweigh the defendant’s interests. R.C.

2953.52(B)(1). The trial court then must engage in the balancing test required by R.C.

2953.52(B)(2) and set forth in the record its findings indicating that it weighed the

requisite interests of the defendant and the state as required by the statute.

       {¶11} Moreover, the sealing statutes are considered remedial and are, therefore, to

be liberally construed to promote their purpose and assist the parties in obtaining justice.

State v. C.A., 10th Dist. Franklin Nos. 14AP-738 and 14AP-746, 2015-Ohio-3437, ¶ 11,

citing State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622, 716 N.E.2d 204 (1999); see

also R.C. 1.11; Barker v. State, 62 Ohio St.2d 35, 42, 402 N.E.2d 550 (1980).

Reviewing courts generally will not reverse a trial court’s decision concerning an

application filed under R.C. 2953.52 absent an abuse of discretion. State v. Andrasek,

8th Dist. Cuyahoga No. 81398, 2003-Ohio-32, ¶ 13.

       {¶12} In this case, this court cannot discern from the record what discretion the

trial court used. Accordingly, we are unable to engage in meaningful appellate review of

the trial court’s decision because the trial court did not set forth any findings indicating

the requisite interests of the defendant and the state.
       {¶13} This court has previously considered and reversed trial court decisions that

deny applications pursuant to R.C. 2953.52 when the court fails to place its findings on

the record for appellate review or the record is insufficient for a reviewing court to

engage in meaningful review of the trial court’s decision. See, e.g., Cleveland v. Hogan,

8th Dist. Cuyahoga No. 85214, 2005-Ohio-3167, ¶ 11-12 (finding that although court

may have considered facts relative to the R.C. 2953.52(B) findings, the findings were not

placed on the record); Cleveland v. Cooper-Hill, 8th Dist. Cuyahoga No. 84164,

2004-Ohio-6920.       See also State v. Haas, 6th Dist. Lucas No. L-04-1315,

2005-Ohio-4350 (trial court did not demonstrate its exercise of discretion on the record in

order to facilitate meaningful appellate review); State v. Widder, 146 Ohio App.3d 445,

449, 766 N.E.2d 1018 (9th Dist.2001) (court must make the necessary findings under

R.C. 2953.52(B)(2) and weigh the interests of the parties); State v. Tyler, 10th Dist.

Franklin No. 00AP-1331, 2001 Ohio App. LEXIS 2869 (June 28, 2001) (R.C.

2953.52(B)(2) requires the trial court to weigh the parties’ interests from an equal basis).

       {¶14} In this case, the trial court did not make any findings on the record during

the hearing or in its journal entry prior to denying W.C.’s motion to seal court records

following a not guilty verdict. According to its journal entry, the trial court denied

W.C.’s application after considering the arguments presented at the hearing and those

raised in the briefs, and reviewing “the defendant’s past criminal history.” However,

even if this court considers the same arguments and criminal history, we are unable to

determine what discretion the court used.          The state maintained that its interest
outweighed W.C.’s interest because of his criminal history and the nature of the offenses.

 The nature of the offense, however, “cannot provide the sole basis to deny an

application.” State v. Reiner, 8th Dist. Cuyahoga No. 103775, 2016-Ohio-5520, ¶ 15.

Moreover, a few nonviolent, low-level misdemeanor convictions is hardly extensive or a

basis to deny an application to seal an arrest record resulting in a ten-count indictment

containing serious first-degree felony offenses from which a jury found him not guilty on

all counts.

       {¶15} Nevertheless, without the trial court setting forth in the record its findings

indicating the requisite interests of the defendant and the state, and weighing those

interests against each other, this court cannot engage in meaningful appellate review of

the trial court’s decision denying W.C.’s motion to seal his arrest record. Accordingly,

W.C.’s second assignment of error is sustained. Having sustained this assignment of

error, his first assignment of error challenging the trial court’s decision denying his

motion to seal his arrest record, is rendered moot.

       {¶16} Judgment reversed and case remand to the trial court to issue findings in

accordance with R.C. 2953.32, weighing the interests of W.C. against the state’s interest.

       It is ordered that appellant recover of appellee costs herein taxed.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS


FRANK D. CELEBREZZE, JR., J., DISSENTING:

       {¶17}     I must respectfully dissent from the majority’s conclusion that this court

cannot engage in meaningful appellate review of the trial court’s decision denying W.C.’s

application to seal the criminal court records.

       {¶18} The majority asserts that the trial court did not set forth any findings

indicating the requisite interests of W.C. and the state. R.C. 2953.52 does not, however,

require the trial court to delineate findings of fact or conclusions of law. See State v.

Long, 12th Dist. Butler Nos. CA2014-08-176 and CA2014-09-188, 2015-Ohio-821, ¶ 9.

       {¶19} The trial court’s journal entry denying W.C.’s application provides, in

relevant part,

       [a]fter hearing arguments from the state and defense, hearing from
       [appellant] and in consideration of the briefs filed in the instant matter and a
       review of [appellant’s] past criminal history, the legitimate needs of the
       government to maintain those records outweigh [appellant’s] interest in
       sealing his record. Therefore, after weighing the interest of sealing
       [appellant’s] records against the legitimate need of the government to
       maintain those records, [appellant’s] motion to seal court records following
       not guilty verdict is hereby denied.

       {¶20} In my view, although the trial court did not specifically set forth W.C.’s and

the state’s interests on the record, nor specify these interests in its journal entry, the trial

court created an adequate record upon which this court can engage in meaningful
appellate review of the trial court’s judgment by referencing the interests that the parties

set forth in their briefs and presented during the hearing on W.C.’s application.

          {¶21} In the state’s brief in opposition to W.C.’s application to seal, the state

indicated that it opposed the application “because of the nature of the case and because of

[W.C.’s] extensive record of arrests and convictions.    The State of Ohio has a legitimate

interest in maintaining these records of [W.C.’s arrest] that outweighs [W.C.’s] interest in

having it sealed.” In his reply brief in support of the application to seal, W.C. stated that

the records could have a “damaging effect” on the professional opportunities available to

him, have a “day-to-day impact” on his psyche and self-image, and will continue to

hamper his efforts to move forward with his life.

          {¶22} The parties also presented their interests at the trial court’s hearing on

W.C.’s application. W.C.’s counsel asserted that W.C. was not able to find a permanent

job as a result of the criminal records.       W.C. explained that he had been denied

employment at Best Buy, Uber, and Advanced Auto Parts due to the public accessibility

of his arrest record.    He asserted that he wanted to move on with his life.       The trial

court thoroughly questioned W.C. regarding his employment history before he was

arrested in 2015, the positions he applied for after his arrest, how he supported his family

after his arrest, and whether he would be able to find employment if the records were not

sealed.

          {¶23} In opposing W.C.’s application, the state argued it had a legitimate

governmental interest in maintaining records of the arrest based on the nature of the
charges involved and W.C.’s extensive record of arrests and convictions.       The trial court

confirmed that the state objected to the application “based on [W.C.’s] arrests and record

that goes back to 2000[.]”    (Tr. 12.)

       {¶24} The majority correctly recognizes that the nature of the offense cannot

provide the sole basis to deny an application.     Reiner, 8th Dist. Cuyahoga No. 103775,

2016-Ohio-5520, at ¶ 15. However, in this case, the state did not merely object to

W.C.’s application based on the inherent nature of the rape, gross sexual imposition, and

kidnapping charges.     In addition to the nature of the charges, the state argued that it had

a legitimate need to maintain the arrest record because W.C. has an “extensive record of

arrests and convictions.”     (Tr. 11.)   The trial court reviewed W.C.’s record of arrests

and convictions during the hearing on the application to seal.

       {¶25} It is undisputed that appellant was not convicted of the rape, gross sexual

imposition, and kidnapping offenses charged in the indictment. Given the nature of the

charges, however, I cannot conclude that it was unreasonable for the trial court to “‘put

transparency and the government’s awareness of the charges’” before W.C.’s personal

interests. Reiner at ¶ 16, quoting State v. Myers, 2d Dist. Clark No. 2015-CA-88,

2016-Ohio-4893, ¶ 16.        Although W.C. was acquitted, there was probable cause to

believe he committed the offenses charged in the indictment, and thus, there is still a

reasonable concern that W.C. could engage in similar conduct in the future. See Myers

at ¶ 16.   Under these circumstances, I believe that it was entirely reasonable for the trial

court to conclude that the state’s awareness of the offenses charged in the indictment,
which promotes the government’s interests in protecting the public and preserving public

safety, outweighed W.C.’s ability to obtain employment and move forward with his life.

See Reiner at ¶ 16; Myers at ¶ 16.

       {¶26} Although the trial court did not specifically identify the parties’ interests on

the record or in its journal entry, the record reflects that the trial court considered and

balanced the competing interests set forth in the parties’ briefs and during the hearing on

W.C.’s application in determining that W.C.’s interest in having the record sealed was

outweighed by the state’s legitimate governmental need to maintain the record.        In my

view, the trial court, in considering and weighing the interests it referenced in its journal

entry, created an adequate record based upon which this court can engage in meaningful

appellate review of the trial court’s decision denying W.C.’s application.      Therefore, I

would overrule W.C.’s second assignment of error.

       {¶27} Furthermore, regarding W.C.’s first assignment of error, I would find that

the record, including the trial court’s December 1, 2016 journal entry denying W.C.’s

application, reflects that the trial court complied with R.C. 2953.52. As noted above, the

trial court considered all of the evidence and adequately balanced the competing interests

set forth in the parties’ briefs and during the hearing on W.C.’s application before

determining that W.C.’s interest in having the record sealed was outweighed by the state’s

legitimate governmental need to maintain the record. Accordingly, I find no basis to

conclude that the trial court abused its discretion in finding that the state’s legitimate
government need in maintaining the records outweighed W.C.’s interest in having the

record sealed.

       {¶28} For all of the foregoing reasons, I must respectfully dissent. I would affirm

the trial court’s judgment in its entirety.
