[Cite as State v. Delgado, 2015-Ohio-5256.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102653




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   ELADIO DELGADO
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-05-466377-A

        BEFORE: Keough, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: December 17, 2015
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Sarah E. Gatti
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Diane Smilanick
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44115
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Eladio Delgado (“Delgado”) appeals from the trial court’s denial of his

application to seal his criminal record.      We reverse the trial court’s judgment, and

remand with instructions for the trial court to hold the hearing and engage in the

balancing test required by R.C. 2953.52(B).

                                      I. Background

       {¶2} In May 2005, Delgado was charged in Case No. CR-05-466377 with

attempted murder in violation of R.C. 2903.02; two counts of felonious assault in

violation of R.C. 2903.11, and having weapons while under disability in violation of R.C.

2923.13. In August 2005, at the request of the state, the trial court dismissed all charges

without prejudice.

       {¶3} In April 2013, Delgado filed a pro se application to seal the record pursuant

to R.C. 2953.52 and requested a hearing on his application. The state filed a brief in

opposition in which it argued that pursuant to R.C. 2953.32, the trial court was required to

determine whether Delgado was an eligible offender and consider the state’s reasons

against granting the application. The state argued that due to Delgado’s extensive record

of arrests and convictions, the state had a “legitimate interest” in maintaining the records

that outweighed Delgado’s interest in having the records sealed. The trial court set the

matter for hearing but denied the application because Delgado did not appear for the

hearing. Delgado did not appeal.
       {¶4} In October 2013, Delgado filed another pro se application to seal the record

pursuant to R.C. 2953.52 and requested a hearing. The state filed a brief opposing

Delgado’s motion in which it argued that under R.C. 2953.52, the trial court was required

to weigh the applicant’s interest in having the records sealed with the government’s needs

to maintain the records. The state asserted that in light of Delgado’s numerous other

state and federal convictions dating back to 1983, including convictions for breaking and

entering, receiving stolen property, grand theft, drug possession, and having weapons

while under a disability, the state’s interest in maintaining the record outweighed

Delgado’s interest in having it sealed.      In November 2013, the trial court denied

Delgado’s application, without a hearing, ruling that he was “statutorily ineligible due to

not being a first offender.” Delgado did not appeal.

       {¶5} In December 2014, Delgado filed his third pro se application to seal the

record pursuant to R.C. 2953.52. In January 2015, the trial court, again without a

hearing, denied Delgado’s application, again finding that he was “statutorily ineligible as

defendant not a first offender.” This appeal followed.

                                        II. Analysis

       {¶6} Delgado raises two assignments of error on appeal: (1) the trial court erred

in denying his application without a hearing; and (2) the trial court erred in denying his

application on the ground that he was not a first-time offender because R.C. 2953.52

contains no eligibility requirements.
       {¶7} Under Ohio law, there are two statutory methods to expunge and seal

criminal records. Schussheim v. Schussheim, 12th Dist. Warren No. CA2011-07-078,

2012-Ohio-2573, ¶ 10. Specifically, “R.C. 2953.32 * * * allows convicted first-time

offenders to seek the expungement and sealing of their conviction records, [while] R.C.

2953.52 * * * allows for the expungement and sealing of a defendant’s criminal records if

the defendant was found not guilty, the case was dismissed, or a grand jury returned a no

bill.” Id. (Emphasis added.)

       {¶8} Delgado brought all three petitions pursuant to R.C. 2953.52, which requires

the trial court to hold a hearing and do each of the following:

       (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).

       {¶9} 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 in
having the records pertaining to the case sealed 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).

       {¶10} It is the defendant’s burden to demonstrate legitimate reasons, as opposed to

a general privacy interest, why the records should not remain open to the public. State v.

J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706, ¶ 8, citing State v. Haney, 70 Ohio

App.3d 135, 139, 590 N.E.2d 445 (10th Dist.1991). Once this burden is met and those

needs outweigh the legitimate interests of the state in maintaining the records, the

application should be freely granted. J.D., citing State v. Garry, 173 Ohio App.3d 168,

2007-Ohio-4878, 877 N.E.2d 755 (1st Dist.).

       {¶11} The trial court 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. Cleveland v.

Hogan, 8th Dist. Cuyahoga No. 85214, 2005-Ohio-3167, ¶ 11-12; see also Avon Lake v.

Chiricosta, 9th Dist. Lorain No. 99CA007532, 2000 Ohio App. LEXIS 3804, *5 (Aug.

23, 2000) (reversing and remanding trial court’s denial of application to seal record under

R.C. 2953.52 where court’s denial “makes no indication that it considered any of the

mandatory factors nor does it note that it made the required findings with respect to the

balancing of interests”).
       {¶12} Generally, we will not reverse a trial court’s decision concerning an

application filed under R.C. 2953.52 absent an abuse of the court’s discretion. State v.

Andrasek, 8th Dist. Cuyahoga No. 81398, 2003-Ohio-32, ¶ 11. However, if a trial

court’s decision is based on “an erroneous interpretation or application of the law,” we

will review the matter de novo. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590,

918 N.E.2d 497, ¶ 6-7.

       {¶13} It is apparent that the trial court’s decision — which denied Delgado’s

application as statutorily ineligible because he was not a first-time offender — is based on

an erroneous application of the law. R.C. 2953.32 allows convicted eligible offenders to

seek the sealing of their convictions, while R.C. 2953.52 allows for the sealing of a

defendant’s criminal record if the defendant was found not guilty, the case was dismissed,

or the grand jury returned a no bill.       State v. Heidrick, 10th Dist. Franklin No.

12AP-1054, 2013-Ohio-3544, ¶ 5. In order for a convicted defendant to have his record

sealed under R.C. 2953.32, the defendant must qualify as an “eligible offender” under

R.C. 2953.31(A). However, R.C. 2953.52 — the statute pursuant to which Delgado

brought his application — contains no eligibility restrictions on a defendant who was not

convicted. A defendant who was not convicted and seeks to have his record sealed under

R.C. 2953.52(A) need not qualify as an “eligible offender” under R.C. 2953.31(A).

Stated another way, a defendant in a case where all charges were dismissed need not be a

first offender in order to have his criminal record in the case sealed. Accordingly, the
trial court erred in finding that Delgado was not eligible to have the record in this case

sealed because he was not a first offender.

       {¶14} Furthermore, the record reflects that the trial court did not hold the hearing

required by R.C. 2953.52(B)(1) to make the necessary findings and weigh the relevant

factors delineated in R.C. 2953.52(B)(2)(a) through (d).

       {¶15} Nevertheless, the state contends that despite the trial court’s failure to hold a

hearing and weigh the applicable statutory factors, Delgado’s application is barred by the

doctrine of res judicata because he failed to appear at the hearing on his first application.

The state never asserted res judicata in the trial court, however, and cannot raise it now on

appeal. State v. Walls, 8th Dist. Cuyahoga No. 79196, 2001 Ohio App. LEXIS 5188, *7

(Nov. 21, 2001) (res judicata is an affirmative defense that is waived if not timely

asserted); State v. Skoglund, 8th Dist. Cuyahoga No. 46988, 1983 Ohio App. LEXIS

15958, *4 (Nov. 3, 1983) (the failure to raise the defense of res judicata at the trial level

precludes a party from raising it at a later time).

       {¶16} Moreover, “[r]es judicata is a rule of fundamental and substantial justice,

that is to be applied in particular situations as fairness and justice require, and that * * * is

not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.”

State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 25. The

record in this case demonstrates that the application of res judicata to Delgado’s petition

would work an injustice. The trial court did not hold the required R.C. 2953.52(B)

hearing on any of Delgado’s applications, and it applied the wrong legal analysis in
denying his second and third applications. Furthermore, there is nothing in the record

demonstrating that the trial court gave Delgado notice that it would dismiss his first

application if he did not appear at the scheduled hearing.       And we question whether

Delgado even received notice that a hearing had been set.       The record reflects that on

May 9, 2013, the trial court set the hearing for May 14, 2013, only five days later.

       {¶17} Accordingly, we sustain the first and second assignments of error, reverse

the trial court’s judgment denying Delgado’s application, and remand for the trial court to

hold the hearing required by R.C. 2953.52(B) and weigh the interests of Delgado and the

state in sealing the record as required by the statute.

       {¶18} Judgment reversed and remanded.

       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 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., and
ANITA LASTER MAYS, J., CONCUR
