[Cite as State v. Thompson, 2016-Ohio-2895.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




STATE OF OHIO,                                  :

        Plaintiff-Appellee,                     :     CASE NO. CA2015-09-083

                                                :             OPINION
   - vs -                                                      5/9/2016
                                                :

JAMES S. THOMPSON,                              :

        Defendant-Appellant.                    :



                    CRIMINAL APPEAL FROM WARREN COUNTY COURT
                                Case No. 2007 CRB 432



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

David A. Chicarelli, 614 East Second Street, Franklin, Ohio 45005, for defendant-appellant



        PIPER, P.J.

        {¶ 1} Defendant-appellant, James Thompson, appeals a decision of the Warren

County Court of Common pleas denying, in part, Thompson's motion to expunge and seal his

criminal record.

        {¶ 2} When Thompson was 15 years old, he and his father engaged in a verbal

argument. Thompson's father called police, and Thompson was charged with misdemeanor

domestic violence, prohibition, and menacing. Thompson admitted to the charges, and he
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was adjudicated a delinquent child. Three years later, Thompson and his brother exchanged

hostile text messages, and agreed to fight each other. When Thompson arrived at his

brother's house, the police were called, and Thompson was charged with domestic violence

and telephone harassment. While the telephone harassment charge was later dismissed,

Thompson pled guilty to the domestic violence charge.

       {¶ 3} Since the time of Thompson's conviction, he graduated from high school,

graduated from the Ohio State University, and has been honorably discharged from the

United States Army. Thompson has not engaged in any other criminal behavior since his last

domestic violence conviction. As such, Thompson moved the court to expunge his criminal

record. The trial court held a hearing on the motion, and granted the motion as it pertained to

the telephone harassment charge that was dismissed, but denied the motion in regard to the

domestic violence conviction. Thompson now appeals the trial court's decision, raising the

following assignment of error.

       {¶ 4} THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION

FOR EXPUNGMENT [sic] AND TO SEAL RECORDS CONTRARY TO PUBLIC POLICY.

       {¶ 5} Thompson argues in his sole assignment of error that the trial court erred in

denying his motion to expunge and seal the record regarding his domestic violence

conviction.

       {¶ 6} Convicted eligible offenders may seek sealing of their criminal records pursuant

to R.C. 2953.32. However, expungement is a privilege rather than a right. State v. Futrall,

123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6. "Expungement is accomplished by eliminating the

general public's access to conviction information. Accordingly, expungement should be

granted only when an applicant meets all the requirements for eligibility set forth in R.C.

2953.32." State v. Hamilton, 75 Ohio St.3d 636, 640 (1996).

       {¶ 7} The court shall order the applicant's record sealed if it finds that the applicant is
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an eligible offender, there are no criminal proceedings pending against him, the applicant has

been rehabilitated to the court's satisfaction, and there is not a legitimate governmental need

to maintain the record that outweighs the interest of the applicant in having his record sealed.

R.C. 2953.32(C). Not every applicant, however, is entitled to have his record sealed. State

v. Schuster, 12th Dist. Clermont No. CA2012-06-042, 2013-Ohio-452.

       {¶ 8} A trial court has broad discretion in ruling on an application for expungement.

Id. A trial court's decision to deny such an application will not be disturbed on appeal absent

a showing the trial court abused its discretion. Id. An abuse of discretion is more than an

error of law or judgment and implies that the trial court's decision was unreasonable,

arbitrary, or unconscionable. Id.

       {¶ 9} In an attempt to demonstrate that the trial court abused its discretion in denying

his application for expungement as it related to the domestic violence charge, Thompson

argues that he was unrepresented when he was a juvenile and admitted guilt to his first

domestic violence charge. Thompson further argues that the juvenile court should have

appointed a guardian ad litem ("GAL") to represent his interests at the time he was brought

before the juvenile court.

       {¶ 10} However, these arguments fail to demonstrate that the trial court abused its

discretion in denying Thompson's request to expunge his adult record of domestic violence.

Instead, the proper time for Thompson to have argued that his rights were violated by the

juvenile court's failure to appoint counsel or a GAL was in a direct appeal after he admitted

the domestic violence.

       {¶ 11} Moreover, Thompson now asks this court to consider for the first time his

argument that his rights were violated as a juvenile, which we decline to do. State v. Castle,

12th Dist. Butler No. CA2015-05-094, 2015-Ohio-4449. The record indicates that Thompson

filed his application for expungement and stated that he deserved expungement because he
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had since reconciled with his brother, as well as his having graduated from college and being

honorably discharged from the Army. Thompson stated that he was applying for graduate

school admission, and wanted his charges and conviction expunged so that that his criminal

history would "not impact his ability to be accepted to the school of his choice." However,

there is no indication that Thompson ever raised the circumstances of his juvenile

proceedings in his application to expunge or in arguments before the trial court.

       {¶ 12} While the record indicates that the trial court held a hearing on the matter, we

are unware of what occurred at the hearing or what arguments were raised by Thompson.

Although Thompson may have addressed the earlier juvenile proceedings with the trial court,

the record does not indicate as much because Thompson did not provide this court with a

transcript of the proceedings. Therefore, we cannot rely on Thompson's arguments on

appeal that the trial court abused its discretion by not affording enough weight to the fact that

he was unrepresented by counsel or a GAL when he first admitted guilt to domestic violence

as a 15 year old. See State v. Berrien, 12th Dist. Clinton No. CA2015-02-004, 2015-Ohio-

4450 (because the appellant bears the burden of showing error in the underlying proceeding

by reference to matters in the record, the appellant has a duty to provide a transcript for

appellate review).

       {¶ 13} When applying the abuse of discretion standard, we may not substitute our

judgment for that of the trial court. State v. Haddix, 12th Dist. Warren No. CA2011-07-075,

2012-Ohio-2687, ¶ 10. While we commend Thompson for the strides he has made to

graduate from college, serve his country, reconcile with family, and avoid further criminal

charges, we are confined to affirm the trial court's decision absent an abuse of discretion.

       {¶ 14} Even if the trial court considered that Thompson was unrepresented as a

juvenile, Thompson's juvenile history does not change the fact that the trial court has the

discretion to decide if expungement is warranted. Nor does Thompson being unrepresented
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as a juvenile demonstrate in this case that the trial court abused its discretion by denying his

application for expungement. As such, Thompson's assignment of error is overruled.

       {¶ 15} Judgment affirmed.


       S. POWELL and HENDRICKSON, JJ., concur.




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