[Cite as State v. J.S., 2017-Ohio-7613.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :

v.                                               :                       No. 16AP-624
                                                                     (M.C. No. 2016 CRX 51430)
[J.S.],                                          :
                                                                 (REGULAR CALENDAR)
                 Defendant-Appellant.            :


                                           D E C I S I O N

                                    Rendered on September 14, 2017


                 On brief: Richard C. Pfeiffer, Jr., City Attorney, and
                 Melanie R. Tobias, for appellee. Argued: Melanie R. Tobias.

                 On brief: Stefania Denbow-Hubbard, for appellant. Argued:
                 Barton A. Hubbard.

                       APPEAL from the Franklin County Municipal Court

HORTON, J.
          {¶ 1} Defendant-appellant, J.S., appeals from the decision of the Franklin County
Municipal Court denying her application under R.C. 2953.32(A)(1) to seal a record of her
conviction for attempted assault. For the following reasons, we reverse and remand.
I. FACTUAL AND PROCEDURAL HISTORY
          {¶ 2} On November 17, 2008, a complaint was filed in the trial court alleging that
J.S. had sprayed her stepmother in the face with mace. J.S. was charged with one count of
domestic violence under R.C. 2919.25(A) and one count of assault under R.C. 2303.13.
(Nov. 17, 2008 Compl.) On May 18, 2009, she entered a plea of guilty to one charge of
attempted assault under R.C. 2923.02, a second degree misdemeanor, and the domestic
violence charge was dismissed. The trial court imposed a suspended sentence of 90 days
No. 16AP-624                                                                                2

of incarceration and 2 years of community control. (May 18, 2009 Jgmt. & Sentence
Entry.)
        {¶ 3} On May 12, 2016, J.S. filed an application under R.C. 2953.33, seeking an
order from the trial court sealing the record of her May 18, 2009 conviction for attempted
assault. (May 12, 2016 Application.) In support of her application, J.S. attached an
affidavit from her supervisor at the bagel shop where she worked. Her supervisor stated
that J.S. had worked at the bagel shop for two months and was "a reliable, hard-working
employee" who was "very personable with customers" and "well-liked" by the staff. The
supervisor also stated that she had been J.S.'s "close personal friend [] for over twelve
years," and that J.S. was "a peaceful, friendly person, who does not engage in physical
altercations or threaten physical violence." (Application at Ex. B.)
        {¶ 4} The state filed an objection to the application on July 21, 2016. The state
argued that its interests in maintaining a public record of J.S.'s conviction outweighed her
interest in having the record sealed because the record would assist both police officers
investigating a domestic violence incident in determining the primary physical aggressor
and any judge having to set bond for such an offense in an arraignment. (July 21, 2016
Obj.)
        {¶ 5} The trial court held a hearing on the application on July 29, 2016. Counsel
for J.S. and the state argued their respective positions, but no additional testimony or
evidence was introduced beyond the affidavit from J.S.'s supervisor. At the conclusion of
the hearing, the trial court described the state's argument regarding the need to access the
conviction record as "persuasive," and then stated that it was denying the application
because J.S.'s supervisor had not attested to any circumstances that prevented J.S. from
"moving forward," and there was no evidence that J.S. was "actually being affected" by her
conviction. (July 29, 2016 Tr. at 12.) Accordingly, the trial court filed an entry denying the
application on the grounds that "the applicant's interests to have the records sealed are
outweighed by a legitimate governmental need to maintain the records." (July 29, 2016
Entry.)
        {¶ 6} J.S. filed a timely notice of appeal and asserts the following three
assignments of error:
              [I.] The Trial Court Erred in Denying the Appellant's
              Application to Seal Her Record Without First Engaging in
No. 16AP-624                                                                              3

              the Proper Weighing and Reasoning as Required by Statute
              and by Further Failing to Set Forth in the Record or in the
              Entry any Evidence To Demonstrate that the Court Properly
              Weighed the Required Factors Before Denying the
              Appellant's Application.

              [II.] The Trial Court Erred in Denying the Appellant's
              Application to Seal Her Record by Disregarding and Failing
              to Consider and Make Findings Concerning Her
              Rehabilitation as an Eligible Offender, in Violation of R.C.
              2953.52(C)(1)(c).

              [III.] The Trial Court Erred in Denying the Appellant's
              Application to Seal Her Record Where the Information
              Provided to the Court Manifestly Established her
              Rehabilitation and Need for that Relief as Weighed Against
              the Unsupported Law Enforcement Reason Alleged by the
              Prosecutor.

II. STANDARD OF REVIEW
       {¶ 7} An abuse of discretion standard applies to appellate review of an application
to seal a record of conviction under R.C. 2953.32. State v. D.G., 10th Dist. No. 14AP-476,
2015-Ohio-846, ¶ 6, citing State v. Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4.
And, more specifically, "the determination as to whether the legitimate governmental
need to maintain the records outweighs the applicant's interest in having the records
sealed is a matter lying within the sound discretion of the trial court." State v. Haney, 70
Ohio App.3d 135, 138 (10th Dist.1991).
III. ANALYSIS
       {¶ 8} We resolve this appeal by consideration of the third assignment of error.
After reviewing the transcript of the hearing, we conclude that the trial court's ruling was
unreasonable because no sound reasoning supported it. Dach v. Homewood, 10th Dist.
No. 14AP-502, 2015-Ohio-4191, ¶ 11 (observing that "[a] decision that is unreasonable is
one that has no sound reasoning process to support it"). At the hearing, the trial court
described the state's argument regarding the need to access the conviction record as
"persuasive," and then stated:
              So at this time I am denying your request, because I have in
              front of me an affidavit from your supervisor where she is not
              indicating anything in here where she would stop you from
              moving forward. Now should something change and you
No. 16AP-624                                                                              4

              provided me with an affidavit where you were actually being
              affected by this, that would be a change in circumstances for
              the Court.

(Emphasis added.) (July 29, 2016 Tr. at 12.)
       {¶ 9} Nowhere in R.C. 2953.32 is there a requirement to affirmatively
demonstrate that the record of conviction has adversely affected the applicant before a
record of conviction may be sealed. The statute states that the court must determine
whether the applicant qualifies as an "eligible offender" under the criteria of
R.C. 2953.32(C)(1)(a), and if any "criminal proceedings are pending against the
applicant," as required by R.C. 2953.32(C)(1)(b). Then, the court must "determine
whether the applicant has been rehabilitated to the satisfaction of the court" under R.C.
2953.32(C)(1)(c). Finally, if the state has objected to the application, the court must
"[w]eigh the interests of the applicant in having the records pertaining to the applicant's
conviction or bail forfeiture sealed against the legitimate needs, if any, of the government
to maintain those records." R.C. 2953.32(C)(1)(e). There is no support in the procedure
set out in the statute for the trial court to impose a requirement that an applicant
demonstrate some actual effect, presumably negative, of having a record of a criminal
conviction before an application to seal may be granted.
       {¶ 10} Even if this were a requirement, the evidence that J.S. presented did
demonstrate that her conviction causes her hardship. The affidavit of indigency filed with
her application shows that J.S. is a single mother of four with a monthly income of $1,100.
She receives government assistance for rent, child care, and food.          (May 12, 2016
Financial Disclosure.) According to the affidavit of her supervisor, she works part-time at
the bagel shop. In her application, she cites a desire to obtain "advancement in her
current employment position" and the "potential to obtain other more financially
remunerative employment in the future" as reasons for seeking an order sealing the
record of conviction. (Application at 3.) She is clearly underemployed and struggling
financially. An order sealing her record of conviction would have an actual effect on J.S.'s
ability to improve her situation.
       {¶ 11} In contrast, the state's proffered reason for objecting to the application is
purely hypothetical. Citing no evidence, the state argues that the conviction should not be
sealed because if J.S. is ever charged with domestic violence in the future, the arresting
No. 16AP-624                                                                                              5

officer would not be aware of the previous charge and arraignment judge might not have
access to all the relevant facts under R.C. 2919.251 when setting bond. (Appellee's Brief at
9.) For two reasons, it was unreasonable for the trial court to give any weight to this
entirely speculative argument.
        {¶ 12} First, the state's argument assumes that J.S. is more likely to commit
domestic violence than a random person on the street. However, as the state concedes,
J.S. has been rehabilitated. (Appellee's Brief at 11-13.) Once a person who committed a
criminal act has been rehabilitated, "he or she can function in society without committing
other crimes." Black's Law Dictionary, 1476 (10th Ed.2014) Thus, the determination
under R.C. 2953.32(C)(1)(c) that J.S. had "been rehabilitated to the satisfaction of the
court" should have led the trial court to give little weight, if any, to some hypothetical
future arrest for domestic violence.1
        {¶ 13} Second, even if the possibility of J.S. committing such an offense were
warranted, the sealing statute expressly provides a prosecutor access to a sealed
conviction "to determine whether the nature and character of the offense with which a
person is to be charged would be affected by virtue of the person's previously having been
convicted of a crime." R.C. 2953.32(D)(1). The wording of this exception clearly indicates
that the prosecutor has access to the records before a person is charged with a crime.
Thus, any failure to have the fact of a prior conviction brought to the attention of a judge
at an arraignment would result from a prosecutor's oversight or negligence. Furthermore,
the state provided no evidence that a sealed conviction had ever resulted in the scenario it
described.
        {¶ 14} The final prong of the sealing statute requires the trial court to "[w]eigh the
interests of the applicant in having the records pertaining to the applicant's conviction or
bail forfeiture sealed against the legitimate needs, if any, of the government to maintain

1 The trial court did not expressly make a determination regarding J.S.'s rehabilitation on the record.

Typically, remand is required when (1) a trial court makes no determination whether an applicant has
been rehabilitated in accordance with R.C. 2953.32(C)(1)(c) and (2) there is " 'insufficient information in
the record to support the determination' " of rehabilitation. State v. Tauch, 10th Dist. No. 13AP-327,
2013-Ohio-5796, ¶ 18, quoting State v. Evans, 10th Dist. No. 13AP-158, 2013-Ohio-3891, ¶ 11-12.
However, remand for such a determination by the trial court is not required where there is ample
evidence of rehabilitation in the record, based on J.S.'s stability in employment and years of law-abiding
behavior. Furthermore, the state apparently concedes the fact of rehabilitation, as it argues against J.S.'s
second assignment of error and takes the position that her claims of rehabilitation were not in dispute in
the trial court. (Appellee's Brief at 11-13.)
No. 16AP-624                                                                               6

those records." R.C. 2953.32(C)(1)(e). The use of the phrase "if any" suggests that "in
some cases, the State may have no interest in maintaining an applicant's records." State v.
Wyatt, 9th Dist. No. 25775, 2011-Ohio-6605, ¶ 12. This is such a case. The state failed to
introduce any evidence with which the court might weigh its purported interest, i.e., there
was no testimonial evidence, no affidavit nor exhibits offered on the state's behalf, only
conjecture by the assistant prosecutor, which clearly is insufficient. To credit the state's
hypothetical need to maintain a record of the conviction against the evidence that J.S.
presented in support of her application was a violation of the remedial purpose of the
statute, as well as the Supreme Court of Ohio's mandate that its "remedial provisions are
to be liberally construed to promote their purposes." Barker v. State, 62 Ohio St.2d 35, 42
(1980). For the foregoing reasons, the third assignment of error is sustained.
       {¶ 15} Having sustained the third assignment of error, reversal is required.
Accordingly, the first and second assignments of error are rendered moot. The judgment
of the Franklin County Municipal Court is reversed and this cause is remanded with
instructions to order the conviction of J.S. sealed under R.C. 2953.32.
                                                                 Judgment reversed; cause
                                                               remanded with instructions.

                                  BRUNNER, J., concurs.
                                   TYACK, P.J., dissents.

TYACK, P.J., dissenting.
       {¶ 16} I respectfully dissent.
       {¶ 17} I believe the trial court judge would have been acting within her discretion
either way she resolved this case. Having acted within her discretion, I believe her
decision should be affirmed on appeal.
       {¶ 18} The judge was aware that police officers benefit from a full range of
information when investigating a case and when making an arrest. The fact that a person
who is being investigated or arrested has a past offense of violence can be significant.
       {¶ 19} A judge who is setting bond in arraignment court can be affected by the fact
an accused has a prior offense of violence in his or her history. This information is not
always immediately available at arraignment if the records have been sealed, either for
issue of law or for reasons related to bureaucratic inertia.
No. 16AP-624                                                                            7

      {¶ 20} I can appreciate the reasoning of the majority of this panel, but I think the
evaluation and weighing of evidence in the trial court should be respected in this case. I
also note that the Franklin County Municipal Court handles an incredible number of
cases. We, as an appellate court, with a much more limited docket should be careful in
reaching our decision not to burden our municipal court judges with hearings and
procedures which make a difficult docket impossible to manage.
      {¶ 21} Again, I respectfully dissent.
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