[Cite as State v. Miller, 2018-Ohio-3452.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                                :
-vs-                                            :
                                                :       Case No. 18-COA-05
MARQUITTA MILLER                                :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Ashland Municipal
                                                    Court, Case No. 15CRB1059



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             August 27, 2018

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANDREW BUSH                                         KENNETH MIRKIN
Assistant Law Director                              DAWN SPIGGS
1213 E. Main Street                                 Community Legal Aid Services, Inc.
Ashland, OH 44805                                   50 S. Main Street, 8th Floor
                                                    Akron, OH 44308
[Cite as State v. Miller, 2018-Ohio-3452.]


Gwin, P.J.

        {¶1}     Appellant M.M. appeals from the January 10, 2017 Judgment Entry of the

Ashland Municipal Court overruling her application to seal her record of conviction.

                                             Facts and Procedural History

        {¶2}     On October 27, 2015, M.M. appeared in Ashland Municipal Court and pled

guilty to speeding and possession of marijuana, both minor misdemeanors.

        {¶3}     On or about May 5, 2017, M.M. applied to the trial court to seal the record of

her possession of marijuana conviction pursuant to R.C. 2953.31. On August 28, 2017,

the trial court conducted a hearing upon M.M.’s application. M.M. appeared with counsel.

At the conclusion of the hearing, the trial court took the case under advisement. On January

10, 2018, the trial court issued an order denying M. M.’s application to seal her criminal

record. The court held that although M. M. was eligible to have her record sealed, the

state had an interest in maintaining the conviction.

                                                 Assignment of Error

        {¶4}     M.M. raises one assignment of error,

        {¶5}     “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MS.

MILLER'S APPLICATION TO SEAL HER MINOR MISDEMEANOR CONVICTION.”1

                                                  Law and Analysis

        {¶6}     In her assignment of error, M.M. contends that the trial court abused its

discretion in denying her application to seal her record because the trial court failed to

make any findings with respect to M.M.'s interest in having the records sealed.


         1 We note Appellant attempts to raise a second assignment of error in her Notice of Filing of Citation

of Additional Authorities under Ohio App.R. 21(I), filed Aug. 2, 2018. This she may not do. See, State ex
rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶61; Am. Fiber Sys., Inc. v.
Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, ¶21.
Ashland County, Case No. 18-COA-05                                                          3


       STANDARD OF APPELLATE REVIEW.

       {¶7}   Because expungement is a privilege and not a right, a trial court shall only

grant expungement to an applicant who meets all the requirements presented in R.C.

2953.32. State v. Morris, 5th Dist. Licking No. 09–CA–128, 2010–Ohio–2403, ¶ 8, citing

State v. Simon, 87 Ohio St.3d 531, 533, 2000–Ohio–474, 721 N.E.2d 1041. An appellate

court reviews a trial court’s decision to grant or deny a motion to seal records pursuant to

R.C. 2953.52 for an abuse of discretion. State v. Poole, 5th Dist. Perry No. 10–CA–21,

2011–Ohio–2956, ¶ 11, citing State v. Widder, 146 Ohio App.3d 445, 766 N.E.2d 1018,

2001–Ohio–1521, ¶ 6 (9th Dist.).

       {¶8}   An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.

       ISSUE FOR APPEAL.

       Whether the trial court abused its discretion by denying M.M.’s application for

expungement without “weighing” the factors of R.C. 2953.32(C)(1)(e.)

       {¶9}   In considering an application to seal a record of conviction, a trial court must

comply with R.C. 2953.32. R.C. 2953.32(C)(1) requires the trial court to do the following:

              (a) Determine whether the applicant is an eligible offender * * *;

              (b) Determine whether criminal proceedings are pending against the

       applicant;
Ashland County, Case No. 18-COA-05                                                       4


              (c) * * * [D]etermine whether the applicant has been rehabilitated to

      the satisfaction of the court;

              (d) If the prosecutor has filed an objection * * *, consider the reasons

      against granting the application specified by the prosecutor in the objection;

      [and]

              (e) 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.

      {¶10} In the case at bar, the parties agree that the trial court found M.M. to be an

“eligible offender” as defined by R.C. 2953.31(A), the court did not find any pending

criminal proceedings, and the prosecutor did not file an objection. M.M. argues the trial

court did not weigh the interest of M.M. in having her record sealed. However, during

the hearing, the Court noted,

              And that does not end the Court's inquiry, Ms. Miller, what that

      means essentially that it appears to me that you are eligible for this

      release that you seek. There are two other stages to the process, the

      first one is that I am required to balance your interest in having this record

      sealed against any interest that the State would have in maintaining the

      record, and in order to do that, I am going to have to have some testimony

      from you as to how this has affected your life, and why you feel the need

      to have it sealed.

Motion to Seal Records, filed Mar 19, 2018 at 4. The Court then heard testimony that

M.M. is a single mother solely responsible for the welfare of her two minor children.
Ashland County, Case No. 18-COA-05                                                         5


The court also heard M.M.’s testimony concerning the negative effects this conviction

had and continues to have on her ability to obtain and maintain employment, further

her education, and find safe and stable housing for her family.

       {¶11} In the Judgment Entry denying the application, the trial court found,

              However,     Defendant has not rehabilitated herself            to the

       satisfaction of the Court. She shows no genuine remorse for her actions.

       Her attitude towards her own criminal conduct could best be described,

       as unrepentant, defiant and dismissive.        Further, the State’s need to

       maintain the record of Defendant's conviction out-weighs Defendant's

       interest in sealing it, in the Court's view.

Judgment Entry, filed Jan. 10, 2018 at 2. It is well established that the trier of fact is in

a far better position to observe the witnesses’ demeanor and weigh their credibility.

See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). The Court specifically

noted the concerns in the present case,

              Well, let me tell you what concerns me about this, Ms. Miller,

       obviously, it's a Minor Misdemeanor, and this Court is pretty free in

       sealing those because of the fact it's a Minor Misdemeanor, and you did

       take care of your obligations to the Court, paid your fine long ago. The

       issue that I have with this one, there is really two -- three actually, one,

       any time that we have someone that works in the healthcare field and it's

       a drug conviction, it's a type of ease very often on a Minor Misdemeanor

       usually we are asked to seal disorderly or minor marijuana cases like this.

       Very often I look at that and I think that the State doesn't have any interest
Ashland County, Case No. 18-COA-05                                                  6


     in maintaining these records, so it's a very low burden in terms of

     outweighing that, but whenever you have a health worker, I don't think

     that is true, I think when you have someone that works in the health field,

     the State does have a significant interest in maintaining records of drug

     convictions, because society has an interest in not having people do

     drugs that work in the health profession because they have access to

     drugs.

              And that is true with nurses and nurses aids, which apparently you

     are working on, which you are asking me to do if I seal this record, is put

     it beyond the reach of perspective employers, so someone that hires

     home health aides or works in a nursing home would not be able to know

     that you had the drug conviction back in 2015, and that is a serious thing

     for me to do. If that employer looks at that and thinks that is a lady that

     changed her life and doesn't do drugs anymore, and I am going to hire

     her, then God bless them.        But if I seal that, they never have that

     opportunity to do that, and that is something that I think that the Court --

     there is an interest here in the State. This is a type of case where the

     State has a significant interest because of the type of offense, and

     because what you are planning on doing for a living, so that is my first

     concern.

              The other two, and I am not saying that I am not going to do this,

     but I want you to know what my thinking is. The other concern that I have

     is when people apply to seal records, they are required to fill out an
Ashland County, Case No. 18-COA-05                                                        7


     affidavit, and in the affidavit, they are asked to list every arrest, whether

     it resulted in a conviction or not, and you filled out that affidavit, and the

     only thing that you listed was two speeding citations. And one out of this

     Court, and one out of Chagrin Falls. But when we did a background check

     on you, we found an arrest for aggravated assault in the State of Illinois

     which you did not report on your affidavit.

            Now what concerns me is that you did not report it, and it also

     concerns me that it happened. Now, it was out of the City of Evington

     and we did not have a whole lot of success getting information from them,

     but it's evident to me what we did receive, so this apparently did not result

     in a conviction. I don't know if there was some sort of pretrial diversion or

     what they did with it but the Court in Illinois is listing it as it was an assault

     with bodily harm, originally charged as aggravated assault, and they

     marked it as disposition not mandated to be reported, which is not clear

     to me what that means.

            But I know it's not a conviction because if it was a conviction, they

     would be mandated to report it. We very often see that in cases where

     there is some sort of pretrial diversion. So I guess those are my concerns,

     the fact that – and this goes back to the date of -- the alleged assault was,

     let's see -- their records are just so different than ours, March 10th, 2006,

     which in looking at your date of birth, I don't think that you would have

     been a juvenile, so those are the concerns that the Court has.
Ashland County, Case No. 18-COA-05                                                       8

Motion to Seal Records, filed Mar 19, 2018 at 8 – 11. The Court heard testimony from

M.M. concerning her reason for not reporting the aggravated assault. The Court finally

noted it understood “that you have a significant interest in having this sealed and it has

had an impact on your life.” Id. at 15.

      {¶12} We cannot substitute our judgment for that of the trial court. The record

reflects that, in ruling on M.M.’s application, the trial court expressly considered and

carefully weighed M.M.’s interest in securing better employment, providing for her

children and bettering herself against the state’s interests in keeping the record of his

convictions open and available to the public.

      {¶13} Mindful of our standard of review, on the record before us, we cannot say

that the reasons given by the trial court for its action are clearly untenable, legally

incorrect, or amount to a denial of justice, or that the judgment reaches an end or purpose

not justified by reason and the evidence.

      {¶14} M.M.’s sole assignment of error is overruled.
Ashland County, Case No. 18-COA-05                                            9


      {¶15} The judgment of the Ashland County Municipal Court is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
