[Cite as State v. G.D., 2016-Ohio-8148.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 104317 and 104328




                                       STATE OF OHIO
                                                   PLAINTIFF-APPELLANT

                                             vs.

                                           G.D.
                                                   DEFENDANT-APPELLEE




                             JUDGMENT:
                 AFFIRMED; REMANDED FOR CORRECTION


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CR-15-599959-A and CR-15-601926


        BEFORE: E.A. Gallagher, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                  December 15, 2016
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diana Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Jerome Emoff
Dworken & Bernstein Co., L.P.A.
1468 West 9th Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} In this consolidated appeal, plaintiff-appellant the state of Ohio appeals from

the trial court’s order granting defendant-appellee G.D.’s application pursuant to R.C.

2953.52 to seal the official records in Case Nos. CR-15-599959-A and CR-15-601926

and a related dismissal order. The state contends that the trial court erred in vacating its

prior order dismissing the indictment in Case No. CR-15-601926 without prejudice and

entering a new order dismissing the indictment with prejudice in conjunction with its

granting of G.D.’s application to seal records. For the reasons that follow, we affirm the

trial court’s judgment.

Factual and Procedural Background

       {¶2} On October 13, 2015, G.D. was indicted by a Cuyahoga County Grand Jury

for two counts of unauthorized use of property in Case No. CR-15-599959-A (the “first

indictment”). On December 15, 2015, G.D. was indicted for 24 counts of unauthorized

use of property in Case No. CR-15-601926 (the “second indictment”). The charges in

both cases arose out of G.D.’s alleged misuse of the Ohio Law Enforcement Gateway

(“OHLEG”) computer system to access online law enforcement-related educational

courses through the electronic Ohio Peace Officer Training Academy (“eOPOTA”)

application. On January 6, 2016, the state moved to dismiss the first indictment in Case

No. CR-15-599959-A because it was redundant of the second indictment in Case No.

CR-15-601926. The trial court granted the motion, indicating in a January 8, 2016

journal entry that the “case is dismissed.”
       {¶3} Following the second indictment, the state’s attorney and defense counsel

received a letter from the Director of Admission for the Ohio Peace Officer Training

Commission on behalf of the Ohio Attorney General1 purportedly indicating that OHLEG

users were permitted “unlimited and unrestricted access to the eOPOTA application” so

long as they complied with OHLEG rules and regulations (the “OPOTC letter”).

       {¶4} Based on the OPOTC letter, the state filed a motion to dismiss the indictment

in Case No. CR-15-601926 without prejudice. In its motion, the state indicated that its

criminal case against G.D. had been “undermined” and “damaged” by the letter because

the indictment had been brought “on the premise that there is not unfettered access to the

eOPOTA application.” The state further indicated that although it believed G.D. had

violated the law, “in these matters, all law enforcement agencies should be united with the

same interpretation of law” such that “the interests of justice would not be served by

continued prosecution of the indictment.” The motion was unopposed and, on February

3, 2016, the trial court granted the motion and dismissed the case “without prejudice.”

       {¶5} On February 3, 2016, G.D. filed an application to seal the official records in

Case Nos. CR-15-599959-A and CR-15-601926 on the grounds that the indictments in

both cases had been dismissed, that there were no criminal proceedings pending against

him, that based on the position set forth in the OPOTC letter, G.D. “did not commit any

crime” in utilizing his OHLEG access to take online eOPOTA law enforcement



         The letter was prepared in response to a subpoena served by defense counsel but was not
       1


submitted with the motion and is not in the record.
educational courses and that his interests in having the records sealed outweighed any

governmental need to maintain those records.          The state filed a response to the

application, stating that “it is not opposing the Motion for Expungement * * * and waives

the Hearing in this matter.”

       {¶6} The trial court ordered an expungement investigation report and thereafter

held a hearing on G.D.’s application to seal the records.     On March 15, 2016, the trial

court vacated the February 3, 2016 dismissal of Case No. CR-15-601926 without

prejudice and granted G.D.’s oral motion to dismiss the case with prejudice.      On March

21, 2016, the trial court granted G.D.’s application and ordered the “record of conviction”

in each case sealed.    The trial court found that each indictment was dismissed with

prejudice, that there were no criminal proceedings pending against G.D. and that G.D.’s

interests in having the records sealed were not outweighed by any legitimate

governmental needs to maintain the information.

      {¶7} The state appealed the order, raising the following assignment of error for
review:

       The trial court erred when it dismissed an indictment with prejudice upon
       an oral motion by defendant in an expungement hearing.

Law and Analysis

       {¶8} R.C. 2953.52 sets forth the procedure by which trial courts may seal a

defendant’s record following a dismissal of the charges.       Once the defendant files an

application to seal the record,

       the court shall set a date for a hearing and shall notify the prosecutor in the
       case of the hearing on the application. The prosecutor may object to the
         granting of the application by filing an objection with the court prior to the
         date set for the hearing. The prosecutor shall specify in the objection the
         reasons the prosecutor believes justify a denial of the application.

R.C. 2953.52(B)(1).

         {¶9} In considering the application pursuant to R.C. 2953.52(B)(2), the trial court

shall:

         (a)(i) Determine whether the person was found not guilty in the case, or the
         complaint, indictment, or information in the case was dismissed * * *; (ii) If
         the complaint, indictment, or information in the case was dismissed,
         determine whether it was dismissed with prejudice or without prejudice
         and, if it was dismissed without prejudice, determine whether the relevant
         statute of limitations has expired;

         (b) Determine whether criminal proceedings are pending against the person;

         (c) If the prosecutor has filed an objection in accordance with division
         (B)(1) of this section, consider the reasons against granting the application
         specified by the prosecutor in the objection;

         (d) 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.

R.C. 2953.52(B)(2)(a)-(d).

         {¶10} If the court determines, after complying with division (B)(2), that (1) “the

complaint, indictment, or information in the case was dismissed,” (2) that no criminal

proceedings are pending against the person and (3) that the interest of the person having

the records pertaining to the case are not outweighed by any legitimate governmental

needs to maintain such records, then the court “shall issue an order directing that all

official records pertaining to the case be sealed and that * * * the proceedings in the case

be deemed not to have occurred.”      R.C. 2953.52(B)(4).
         {¶11} The state does not challenge the trial court’s decision to order the sealing of

the records in of itself. Indeed, it concedes that G.D. was “statutorily eligible” for the

sealing of the records in Case Nos. CR-15-599959-A and CR-15-601926 and that the

decision whether or not to seal the records was a matter within the discretion of the trial

court.    Rather, the state argues that the trial court erred when it granted G.D.’s oral

motion at the hearing on his application to seal records and (1) vacated its prior order

dismissing the indictment in Case No. CR-15-601926 without prejudice and (2) entered a

new order dismissing the indictment in Case No. CR-15-601926 with prejudice.

         {¶12} We review a trial court’s decision to grant or deny a request to seal records

under an abuse of discretion standard. See, e.g., State v. C.K., 8th Dist. Cuyahoga No.

99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579,

2011-Ohio-6673, ¶ 7. Likewise, a trial court’s dismissal of an indictment is reviewed for

an abuse of discretion.      See, e.g., State v. Walton, 8th Dist. Cuyahoga No. 87347,

2006-Ohio-4771, ¶ 4.       An abuse of discretion occurs where the trial court’s decision is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

         {¶13} Crim.R. 48 governs the dismissal of a criminal case by either the state or the

trial court.   Crim.R. 48(B) provides that “[i]f the court over the objection of the state

dismisses an indictment, information, or complaint, it shall state on the record its findings

of fact and reasons for the dismissal.”       A trial court may dismiss an indictment with

prejudice “‘only where it is apparent that the defendant has been denied a constitutional
or statutory right, the violation of which would, in itself, bar prosecution.’” State v.

Peters, 8th Dist. Cuyahoga No. 92791, 2009-Ohio-5836, ¶ 12, quoting Fairview Park v.

Fleming, 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000 Ohio App. LEXIS 5714 (Dec.

7, 2000); Walton at ¶ 5; State v. Dixon, 14 Ohio App.3d 396, 396, 471 N.E.2d 864 (8th

Dist.1984).

       {¶14} In this case, the trial court was under the mistaken impression that, because

the statute of limitations had not yet expired on the offenses at issue, it could not order the

sealing of the records under R.C. 2953.52 unless the dismissals in both Case Nos.

CR-15-599959-A and CR-15-601926 were with prejudice:

       Here’s the difficulty then.        Under Ohio Revised Code Section
       2953.52(B)(2)(a)([i]), my duty, when you filed this application is to — I’m
       sorry, it’s (B)(1)(2)(a)([ii]) — is to determine, among other things,
       whether this case was dismissed with prejudice or without prejudice, and if
       without prejudice, whether the statute of limitations has expired.

       It was without prejudice; there is no question of that and I, based upon the
       recency of the crime, I have little doubt that the statute of limitations has not
       expired. So I can make that determination.

       Then under 2953.52(B)(3), I’m omitting some words here so I don’t have to
       read every word of this section but, if the Court determines several things,
       including that the case was dismissed without prejudice — I’m sorry, that
       the case was dismissed with prejudice, or without prejudice and the statute
       of limitations has expired, then the Court shall issue an order basically
       sealing the record.

       I cannot make either one of those findings. First of all, it wasn’t dismissed
       without prejudice — pardon me, it wasn’t dismissed with prejudice. So
       I make that finding. Nor can I find that it was dismissed without prejudice
       but that the relevant statute of limitations has expired.

       So when I grant a motion to seal the record and the prosecution appeals
       because it was dismissed without prejudice or the statute of limitations is
       passed is a statutory element necessary to granting the motion. * * *

       How do you read that? The statute says that if the Court determines
       several things, but one of them being that the dismissal was with prejudice,
       which I can’t, I can’t find that, that’s not the case; or it was dismissed
       without prejudice, which it was, and that the statute of limitations has
       expired, which it hasn’t * * *.

       {¶15} In response to the trial court’s statement, the state indicated that it was “not

going to appeal anything” and that the decision whether to grant G.D.’s application was

within the discretion of the trial court.   However, the state refused to agree to a dismissal

of the indictments in Case Nos. CR-15-599959-A and CR-15-601926 with prejudice,

indicating that, as a matter of “policy,” “we just don’t do that.”

       {¶16} In an attempt to circumvent this perceived hurdle to relief under R.C.

2953.52 based upon the nonprejudicial dismissals of the indictments,2 the trial court

found that Case No. CR-15-599959-A was “de facto dismissed with prejudice by virtue of

it being essentially reindicted” as Case No. CR-15-601926. Defense counsel then orally

moved to vacate the dismissal without prejudice that was previously entered in Case No.

CR-15-601926 and requested that the trial court instead dismiss that case with prejudice.

Over the state’s objection, the trial court granted the motion, reasoning, based on the

state’s February 1, 2016 motion to dismiss in Case No. CR-15-601926 and the OPOTC

letter referenced therein, that (1) “the State has admitted, in essence, even assuming

[G.D.] engaged in the conduct alleged in the indictment, that conduct is not illegal” and



         Defense counsel compounded the error, stating that the trial court had correctly read R.C.
       2


2953.52 as applying only to dismissals with prejudice.
(2) “the evidence could never support a finding, especially beyond a reasonable doubt,

that [G.D.] committed a crime.”

       {¶17} This court has previously held that the sealing of records under R.C.

2953.52 is not limited to dismissals with prejudice. C.K., 2013-Ohio-5135, at ¶ 13-16.

While a trial court must determine, pursuant to R.C. 2953.52(B)(2)(a)(ii), whether the

complaint, indictment or information in the case was dismissed with prejudice or without

prejudice and, if it was dismissed without prejudice, whether the relevant statute of

limitations has expired, such a determination only becomes relevant if R.C. 2953.52(B)(3)

applies. In this case, there is no claim that R.C. 2953.52(B)(3) — which involves the

sealing of official records of DNA specimens, samples, and profiles — is at issue.

Accordingly, the trial court was not precluded from sealing the records in Case Nos.

CR-15-599959-A and CR-15-601926 even if the dismissals of those cases were without

prejudice. See R.C. 2953.52(B)(4) (noting that the determinations described in (B)(4)

are separate from the determinations described in division (B)(3) of the section); C.K.,

2013-Ohio-5135, at ¶ 13-16 (because R.C. 2953.52(B)(3) was not at issue, “the statute of

limitations period on the dismissed murder charge was not a relevant factor to be

considered by the trial court during its R.C. 2953.52(B)(4) analysis.”); but see State v.

Dye, 5th Dist. Fairfield No. 15-CA-65, 2016-Ohio-5065, ¶ 11 (defendant was not eligible

for sealing of records under R.C. 2953.52(B)(4) where case was dismissed without

prejudice but the two-year statute of limitations had not yet expired).

       {¶18} Although the state concedes that the trial court could have properly sealed
the records of these cases regardless of whether they were dismissed with or without

prejudice, the state nevertheless maintains that it should prevail in this appeal because

G.D. did not appeal the dismissal of Case No. CR-15-601926 without prejudice and the

trial court could not convert its prior dismissal without prejudice into a dismissal with

prejudice without making a finding that G.D. was denied a constitutional or statutory

right.

         {¶19} G.D., however, could not have appealed the dismissal without prejudice

because a dismissal of an indictment without prejudice is not a final, appealable order.

See, e.g., Fairview Park v. Fleming, 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000

Ohio App. LEXIS 5714, *7-8 (Dec. 7, 2000) (“A dismissal without prejudice does not

affect a ‘substantial right’ within the meaning of R.C. 2505.02 because the state can bring

the action again. * * * A dismissal is not a final determination of the parties’ rights if the

complaint can be refiled. * * * Therefore, a dismissal without prejudice is not a final

order under R.C. 2505.02(B)(1) and (2).”); State v. Brown, 8th Dist. Cuyahoga No.

84229, 2004-Ohio-5587, ¶ 6-12. Further, in this case, although the trial court did not

state verbatim that G.D. was “denied a constitutional or statutory right, the violation of

which would, in itself, bar prosecution,” it is clear from the record, based on the trial

court’s reasoning in vacating the February 3, 2016 dismissal without prejudice and

entering a dismissal with prejudice, that the trial court found that G.D.’s constitutional

right to due process had been violated and that he could not be properly reprosecuted for

these offenses:
THE COURT: What is the harm to the public, to the people of the State of
Ohio, if 601926 is dismissed with prejudice in the face of your own office’s
admission that whatever [G.D.] did here was not illegal?

[THE STATE]: Well, I’m not saying that; a dismissal doesn’t mean a not
guilty or a complete vacation of —

THE COURT: But your motion, as [defense counsel] just pointed out, your
motion does essentially say what he did was legal and it was buttressed by
the summary of the likely testimony of the administrator of the OHLEG
system.

[THE STATE]: Well, at this point, your Honor, I have to reiterate, I’m
opposed to it. I’m not prepared even to say, okay, let’s do that. I’d have to
speak with supervisors, and I’m not prepared and I’m objecting to any
chance of it being vacated because once it’s vacated, then, to me, what that
really means is it’s going back to the indictment stage and we could bring
the case again. It’s almost like vacating a not guilty. * * *

THE COURT: * * * Here’s what I’m going to do. * * *

In 601926, the defendant’s oral motion to vacate the February 3rd, 2016,
dismissal to the effect that dismissal was without prejudice is granted and,
based upon the evidence, based upon the state of the record, in other words,
the original motion to dismiss is granted but it is granted with prejudice.
The reason for that is there — the State has admitted, in essence, even
assuming [G.D.] engaged in the conduct alleged in the indictment, that
conduct is not illegal.

The evidence for that is, first of all, the February 1st motion to dismiss and
second the letter that you have * * * from [the Director of Administration,
Ohio Peace Officer Training Commission, dated January 29, 2016]. * * *

[The state’s attorney] describes, doesn’t necessarily quote from but
describes the letter in his motion to dismiss. It is worth noting in that
motion, [the state’s attorney] said the prosecution does believe the Revised
Code Section has been violated but it seems to me the evidence could never
support a finding, especially beyond a reasonable doubt, that [G.D.]
committed a crime, even if his conduct is shown — even if the conduct
alleged is shown to have been engaged in or committed, I should say.
So the motion to dismiss 601926 dismissed with prejudice. * * * [Y]ou
want to preserve the ability to prosecute [G.D.] for something that you have
       essentially admitted is not a crime. That, I think, is a little bit absurd * * *.

       {¶20} There is no requirement that a trial court use any talismanic language to

make a finding that a defendant’s constitutional right has been violated to support the

dismissal of an indictment with prejudice. Here, the Director of Admission for the Ohio

Peace Officer Training Commission, on behalf of the Ohio Attorney General, prepared a

letter stating that the conduct for which G.D. had been indicted was not criminal. That

letter was obtained after defense counsel issued a subpoena to the Ohio Peace Officer

Training Commission in connection with the preparation of G.D.’s defense.                  Had the

state properly investigated this matter, it could have obtained this information from the

Ohio Peace Officer Training Commission or the Ohio Attorney General long before it

originally indicted G.D. in Case No. CR-15-599959-A3 or, at the very least, before it

reindicted G.D. two months later in Case No. CR-15-601926. There can be little doubt

that criminal prosecution of an individual for conduct that is not illegal violates an

individual’s constitutional right to due process.

       {¶21} Furthermore, it is undisputed that the underlying criminal indictments were

dismissed and that no charges were pending against G.D. at the time he filed his

application to seal the records in Case Nos. CR-15-599959-A and CR-15-601926. The

record reflects that the trial court adequately weighed the competing interests of the

parties before determining that G.D.’s interest in having the records sealed was



         As alleged in the first indictment, the conduct at issue occurred on October 8, 2014. As
       3


alleged in the second indictment, the conduct at issue occurred from May 6, 2013 to January 26, 2015.
outweighed by any legitimate needs of the government to maintain the records.        Because

the trial court considered the relevant factors delineated in R.C. 2953.52(B)(2) and (B)(4),

the trial court did not abuse its discretion in ordering the records sealed.

       {¶22} Accordingly, the trial court did not abuse its discretion in dismissing Case

No. CR-15-601926 with prejudice or in granting G.D.’s application to seal the official

records in Case Nos. CR-15-599959-A and CR-15-601926. The state’s assignment of

error is overruled.

       {¶23} We note, however, that the trial court’s March 21, 2016 journal entries

incorrectly refer to the sealing of the record of G.D.’s “conviction” notwithstanding that

G.D. was not convicted in either case.      We therefore remand these matters to the trial

court, pursuant to App.R. 9(E), with instructions to correct the journal entries to delete the

references to “conviction.”

       {¶24}    Further, pursuant to Loc.R. 23(A) and App.R. 23, we find, sua sponte, that

the state’s appeal in this case was frivolous. Loc.R. 23(A) provides:

       If the Eighth District Court of Appeals, sua sponte or on motion by a party,

       determines that an appeal, original action, or motion is frivolous or is

       prosecuted for delay, harassment, or any other improper purpose, it may

       impose on the person who signed the appeal, original action, or motion, a

       represented party, or both, appropriate sanctions.         The sanctions may

       include an award to the opposing party of reasonable expenses, reasonable

       attorney fees, costs or double costs, or any other sanction the Eighth District
       Court of Appeals considers just. An appeal or original action shall be

       considered frivolous if it is not reasonably well-grounded in fact, or

       warranted by existing law, or by a good faith argument for the extension,

       modification, or reversal of existing law.

       {¶25}   App.R. 23 similarly provides: “If a court of appeals shall determine that an

appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee

including attorney fees and costs.” Under App.R. 23, a frivolous appeal is one that

presents “no reasonable question for review.” Smith-Evans v. Lavelle, 10th Dist. Franklin

No. 09AP-787, 2010-Ohio-1074, ¶ 15, citing Talbott v. Fountas, 16 Ohio App.3d 226,

475 N.E.2d 187 (10th Dist. 1984); see also W. Res. Logistics v. Hunt Mach. & Mfg., 9th

Dist. Summit No. 23124, 2006-Ohio-5070, ¶ 14.

       {¶26} The state conceded that, for purposes of sealing the records in Case Nos.

CR-15-599959-A and CR-15-601926, it did not matter whether the cases were dismissed

with or without prejudice. It likewise admitted, based on the OPOTC letter, that the

conduct at issue, i.e., G.D.’s use of his OHLEG access to take online law enforcement

educational courses, was not criminal.       Nevertheless, the state appealed the order

granting the sealing of the records, arguing that the trial court erred in dismissing Case

No. CR-15-601926 with prejudice and that the state’s right to reindict G.D. for his

admittedly non-criminal conduct should be preserved.

       {¶27} When asked to explain why it had filed an appeal in this case — given that it

did not oppose the sealing of the records at issue — the state indicated that it was simply
a matter of “office policy,” i.e., that the state did not dismiss cases with prejudice and did

not believe that the trial court should be permitted to dismiss a case with prejudice over

the state’s objection.   G.D. has been through enough.          G.D. should not have been

required to defend an appeal simply so that the state could challenge — as a matter of

“office policy” — the trial court’s authority to dismiss a case with prejudice, over the

state’s objection, that the state should have never prosecuted in the first place.

       {¶28} The state’s appeal presents no reasonable question for review.           It is not

reasonably well-grounded in fact or warranted by existing law or by a good faith

argument for the extension, modification or reversal of existing law.          As such, it is

frivolous.

       {¶29} G.D. has failed to submit, pursuant to this court’s order of October 27, 2016,

an affidavit indicating that amount which he incurred in expenses, attorney fees and costs

in connection with this frivolous appeal.     Therefore, we decline to make an award.

       {¶30} Judgment affirmed; remanded for correction of journal entries.          The clerk

of the court of appeals is instructed to reseal the trial court record and to seal the court of

appeals record in these cases.

       The court finds that there were no reasonable grounds for this appeal.

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

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

County Court of Common Pleas 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.


______________________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
