[Cite as State v. S.J., 2020-Ohio-183.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE OF OHIO,                                  :

                 Plaintiff-Appellee,            :
                                                                No. 108126
                 v.                             :

S.J.,                                           :

                 Defendant-Appellant.           :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: January 23, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-10-539499-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha L. Forchione, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Erika B. Cunliffe, Assistant Public Defender, for
                 appellant.


ANITA LASTER MAYS, P.J.:

                    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.
              Prior to this appeal, in State v. S.E.J., 8th Dist. Cuyahoga No. 105883,

2018-Ohio-2060, 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

              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.

              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.

              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

              “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, ¶ 6.” State v.

R.M., 8th Dist. Cuyahoga No. 104327, 2017-Ohio-7396, ¶ 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

              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.

              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, ¶ 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, ¶ 8.

              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, ¶ 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, ¶ 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.

               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, ¶ 9.

               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.)



1S.J. filed a new expungement application in August 2018. R.C. 2953.31 was subsequently
amended effective October 29, 2018.
      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, ¶ 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, ¶ 10; State v. Haney, 10th Dist. Franklin No. 99AP-
      159, 1999 Ohio App. LEXIS 5524 (Nov. 23, 1999); State v. Young, 2d
      Dist. Montgomery No. 12847, 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, ¶ 13, quoting State v. Grillo, 2015-Ohio-308, 27 N.E.3d
      951, ¶ 20 (5th Dist.); see also State 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. But see
      State v. Schwartz, 1st Dist. Hamilton No. C-040390, 2005-Ohio-3171,
      ¶ 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.).

              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 there has been a change of circumstances. S.J. argues that since
applying for expungement in 2014, her felony conviction had been expunged. Also

S.J., in 2016, obtained a Certificate of Qualification for Employment.        S.J. now

works in a hospital and has started a home healthcare company, where she employs

eight individuals. As a result of her misdemeanor convictions, it is difficult to obtain

contracts with Medicare and Medicaid, thereby making it impossible to expand her

business.

               We find that there has been a change of circumstances, and S.J. is an

eligible offender. Therefore, the trial court erred when it determined that S.J. was

not an eligible offender because she was barred by res judicata.

               S.J. further argues that the trial court abused its discretion when it

denied her motion for expungement because that decision failed to properly weigh

the competing interests involved. The trial court stated at the hearing,

      [s]o — and again, also for the third time, pursuant to the nature of the
      crimes, she — shots were fired at her boyfriend at the time. He
      caused — you know, refused to press charges because she had a child,
      so he was being kind to her and all that. But the Court notes that soon
      after this case, soon after these shots were fired, this defendant also
      had another incident of shooting, of a shots fired. And I don’t know
      who that was after, but that, again, was Judge Clancy’s case. So it kind
      of goes to show that the government — the public does have a great
      interest in knowing the past of this defendant, because even after she
      was found guilty of the misdemeanors in this case, soon after, in July
      of 2011 — no, I’m sorry — yeah, July of 2011 she was driving under
      suspension and carrying a concealed weapon, which she pled guilty to
      and — no, I’m sorry, the Court found her guilty. So she didn’t plead
      guilty to it. And the Court is going to not suspend the sentence. As I
      said, pursuant to the law she’s not an eligible offender. So motion is
      denied. Thank you very much.

(Tr. 6-7.)
              The state argues that even though the carrying concealed weapon

charges against S.J. were amended, the trial court can still consider that she fired a

weapon. However, the record never revealed any evidence that S.J. fired a gun and

in fact after ballistic testing there was no gun powder residue found on S.J.’s hands.

Additionally, the record reveals the prosecutor at the time of the 2010 case noted

that the state did not believe S.J. fired any shots.        The trial court, in the

expungement hearing, relied on incorrect and unfounded facts. The state cited

State v. Himons, 8th Dist. Cuyahoga Nos. 67827 and 67828, 1995 Ohio App. LEXIS

342 (Feb. 2, 1995), in support of its contention. Himons states,

      [w]e find that the trial court acted within its discretion when it denied
      the defendant’s application for expungement. The fact remains that,
      even though the firearm specification was dropped in plea bargaining,
      defendant used a firearm in the commission of a crime. That
      defendant was given probation for what was a nonprobationable
      offense does not alter the thrust of R.C. 2953.36 which prohibits
      sealing of criminal records in such circumstances. State v. Leers, [84
      Ohio App.3d 579, 581, 617 N.E.2d 754 (1992)].                      Under
      R.C. 2953.32(C)(1)(d), the court was obliged to consider the
      prosecutor’s objections pointing out the use of the firearm in the crime
      when weighing the interests of the applicant against the legitimate
      needs of the government to maintain the records. See State v. May,
      72 Ohio App.3d 664, 667, 595 N.E.2d 980 ([8th Dist.]1991) (“in order
      to oppose the application for expungement, the prosecutor need only
      file an objection with the court prior to the day of hearing and specify
      *** the reasons which he believes justify denial of the application”).
      The court was not bound to turn a blind eye to the firearm use simply
      because it was dropped in plea bargaining.

              However, the facts in S.J.’s case can be distinguished from the facts

in Himons. The appellant in Himons fired a gun and wounded the victim. There

was evidence that Himons actually fired a weapon. In S.J.’s case, after lab reports
revealed an absence of gun powder residue on S.J.’s hand, the state determined that

S.J. had not fired her weapon. Also, in State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d

1041 (2000), the appellant argued that because he pled to an offense that was

amended to eliminate the firearm specification, the trial court could not consider

the indictment with the firearm specification in its decision to grant or deny his

expungement request. The Supreme Court in Simon disagreed and determined that

the trial court could consider the firearm specifications in the indictment because

the appellant used a firearm in the commission of the crime. The facts in Simon,

however are distinguishable from the facts in S.J.’s case because as stated previously

there is no evidence that S.J. used or discharged a firearm. S.J. was also not charged

with a firearm specification.    Additionally in 2010, S.J. was a licensed carry

concealed weapon holder.

              The trial court erred by rejecting S.J.’s application solely based upon

the nature of the offense. At the hearing, the trial court stated, “[t]he Court has

reviewed the docket in Case No. 539499 and the Court notes that this defendant filed

a motion for expungement previously and, due to the nature of the crimes, after a

hearing, the application was denied and that was on October 1, 2014.” (Tr. 6.) The

trial court reasoned that because of the nature of the crimes, S.J.’s application was

denied.

      This court and others, however, have rejected this reasoning. See
      M.D., 8th Dist. Cuyahoga No. 92534, 2009-Ohio-5694, at ¶ 22,
      quoting State v. Haas, 6th Dist. Lucas No. L-04-1315, 2005-Ohio-
      4350 (the nature of the offense “‘cannot provide the sole basis to deny
      an application’”); State v. Hilbert, 145 Ohio App.3d 824, 827, 764
      N.E.2d 1064 (8th Dist.2001) (this court reversed where state argued
      application should be denied solely because of the nature of the crime,
      aggravated arson for act of cross-burning); State v. Bates, 5th Dist.
      Ashland No. 03-COA-057, 2004-Ohio-2260 (reversed where
      gambling addiction was the sole basis for denying expungement of
      theft offense).

M.H., 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, at ¶ 16.

              Furthermore, the trial court failed to weigh any of S.J.’s interests in

sealing her convictions against the state’s interest in maintaining the convictions.

              The trial court never considered whether S.J. has been rehabilitated.

Likewise, in M.H., this court determined that the appellant successfully established

his rehabilitation because he had not been convicted of any other crimes since his

conviction, he was very committed to his community, and obtained full custody of

his grandson. Id. at ¶ 17. However, the trial court in M.H. failed to establish and

address the appellant’s rehabilitation, and this court remanded for the limited

purpose of ordering the appellant’s record of conviction be sealed. Id. at ¶ 20.

Similarly, we determine that S.J. has established rehabilitation. At the hearing, her

counsel stated,

      She is eligible. She is an eligible offender. I’m sorry. She has — before
      the Court, I mean, she previously entered a guilty plea to an attempted
      improperly handling of a firearm, a first degree misdemeanor, and
      then a misdemeanor version of carrying concealed weapons, I believe.
      And was ordered to pay fines and court costs, all of which she did. Her
      case originated back in 2010, I believe. So it’s been over [eight] years.
      Since then, Your Honor, she’s been doing everything she can to better
      herself and provide for her family. She’s 32 years old, she has two
      school age children. She previously graduated South High School
      before getting her STNA and phlebotomy licenses. She’s currently —
      well, actually, she maintains two jobs, she works at St. Vincent Charity
      Hospital as a behavioral health technician, she does three 12-hour
      shifts there. And then she also owns and operates her own home
      health care business, it’s called T&L Home of the Heart’s Home Care,
      LLC. And they provide, basically, in-home care for the elderly and
      folks with disabilities. She has eight employees working with her now.
      She’s really doing everything she can to better herself. And
      unfortunately, she fears that this conviction is holding her back from
      expanding her business and getting certain accounts. So she would
      very much like to get this matter sealed. And I think that her interests
      in having that happen outweighs any governmental interest in
      maintaining the records of this conviction.

(Tr. 3-4.)

               After review, we conclude that the trial court abused its discretion by

failing to consider whether S.J. had been rehabilitated. M.H. at ¶ 20. We also

conclude that the trial court erred in finding that S.J. was not an eligible offender.

Consistent with this court’s decision in M.H. at ¶ 22, we find that there is no need to

remand this case to the trial court to state additional findings on the record. We find

that the information provided was sufficient for our determination. Because the trial

court gave no other reason to deny S.J.’s application to seal her record of convictions,

we reverse the decision of the trial court and remand for the limited purpose of

ordering S.J.’s record of conviction be sealed.

               Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

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

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas 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.



____________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

LARRY A. JONES, SR., J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION


MICHELLE J. SHEEHAN, J., CONCURRING IN PART AND DISSENTING IN
PART:

              I concur with the majority opinion that the “nature of the offense”

cannot provide the sole basis to deny an application to seal a record of conviction.

See State v. Jameson, 11th Dist. Ashtabula No. 2018-A-0046, 2019-Ohio-1420, ¶ 20,

citing In re. M.H., 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, ¶ 19. (The trial

court abused its discretion in denying the motion because it simply adopted the

state’s position that the nature of the offense was sufficient unto itself.); State v.

M.D., 8th Dist. Cuyahoga No. 92534, 2009-Ohio-5694 (The state merely objected

to granting application based upon nature of the crime and the trial court made no

findings pursuant to the statute and thus the matter was not reviewable); State v.

Clellan, 10th Dist. Franklin No. 10AP-44, 2010-Ohio-5867 (The trial court abused

its discretion where defendant’s possession of a firearm alone was sole factor in

denying application, especially where possessing a firearm is permitted under the

law.); State v. Rojas, 180 Ohio App.3d 52, 2008-Ohio-6339, 904 N.E.2d 541 (2d
Dist.) (The trial court erred in denying application based on the nature of the

offense,   without    weighing     governmental     interest    against   defendant’s

interest.); State v. Bates, 5th Dist. Ashland No. 03-COA-057, 2004-Ohio-2260,

¶ 26 (The trial court abused its discretion in denying the motion solely on the nature

of the offense and failing to make other statutory findings.); State v. Berry, 135 Ohio

App.3d 250, 733 N.E.2d 651 (2d Dist.1999) (The trial court abused its discretion

where it summarily denied the application without a hearing because it was a sex

offense crime.).

               However, I would remand the matter to the trial court for further

consideration of the statutory factors required by R.C. 2953.32, including whether

“the applicant has been rehabilitated to the satisfaction of the court.”

R.C. 2953.32(C)(1)(c).    See State v. S.E.J., 8th Dist. Cuyahoga No. 105883,

2018-Ohio-2060, ¶ 21 (S. Gallagher, J., concurring), citing State v. Tauch, 10th Dist.

Franklin No. 13AP-327, 2013-Ohio-5796, ¶ 18.

               For these reasons, I respectfully concur in part and dissent in part.
