[Cite as State v. Hooks, 2016-Ohio-3138.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellant,             :
                                                                       No. 15AP-522
v.                                                :                  (C.P.C. No. 15EP-50)

Walter L. Hooks,                                  :               (REGULAR CALENDAR)

                 Defendant-Appellee.              :




                                            D E C I S I O N

                                      Rendered on May 24, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Barbara A. Farnbacher, for appellant. Argued: Barbara A.
                 Farnbacher.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} This is an appeal by plaintiff-appellant, State of Ohio, from a judgment of
the Franklin County Court of Common Pleas granting an application for expungement
filed by defendant-appellee, Walter L. Hooks.
        {¶ 2} On September 19, 2013, appellee was indicted on one count of patient
abuse, in violation of R.C. 2903.34, a felony of the fourth degree. On December 11, 2014,
the matter was tried to the bench and, following the presentation of evidence, the trial
court made a finding of not guilty.
        {¶ 3} On January 22, 2015, appellee filed a pro se application for an order sealing
the record pursuant to R.C. 2953.52(A).               In his memorandum in support, appellee
asserted that he met all the requirements of R.C. 2953.52. On February 27, 2015, the state
filed an objection to the application, asserting that appellee failed to demonstrate that his
interest in sealing the record was equal to or greater than the government's interest in
No. 15AP-522                                                                             2

maintaining it, and further arguing that appellee provided no reason for sealing the
record.
       {¶ 4} The matter came for hearing before the trial court on April 29, 2015. The
transcript of the hearing indicates that appellee did not appear for the hearing.
Specifically, the trial court noted on the record: "Unfortunately, the defendant is not here.
But having these things with a record just by it's [sic] very nature is detrimental to
individuals. I will take my chances with the prosecutor's office and grant it." (Tr. 2.) On
April 30, 2015, the trial court filed an entry sealing appellee's record pursuant to R.C.
2953.52.
       {¶ 5} On appeal, the state sets forth the following single assignment of error for
this court's review:
               THE TRIAL COURT ABUSED ITS DISCRETION IN
               GRANTING AN APPLICATION TO SEAL A RECORD
               WHERE THE DEFENDANT FAILED TO DEMONSTRATE
               THAT HIS INTEREST WAS EQUAL TO OR OUTWEIGHED
               THE GOVERNMENT'S INTEREST IN MAINTAINING THE
               RECORD.

       {¶ 6} Under its single assignment of error, the state asserts the trial court erred in
granting appellee's application to seal a record under R.C. 2953.52. Specifically, the state
argues that appellee submitted a boilerplate application, failed to appear at the hearing,
and did not demonstrate that his interest in sealing the record outweighed the
government's interest in maintaining it.
       {¶ 7} Pursuant to the provisions of R.C. 2953.52(A)(1), "any person who has * * *
been found not guilty of an offense may request that the records of those matters be
sealed." State v. Newton, 10th Dist. No. 01AP-1443, 2002-Ohio-5008, ¶ 7. The sealing of
criminal files and the expungement of criminal records "is a privilege, not a right." State
v. Moore, 5th Dist. No. 2012CA00047, 2012-Ohio-4483, ¶ 16. 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. Widder, 146 Ohio App.3d 445, 447 (9th Dist.2001).
       {¶ 8} R.C. 2953.52 states in part:
               (A)(1) Any person, who is found not guilty of an offense by a
               jury or a court or who is the defendant named in a dismissed
               complaint, indictment, or information, may apply to the court
               for an order to seal the person's official records in the case.
No. 15AP-522                                                                          3

               Except as provided in section 2953.61 of the Revised Code, the
               application may be filed at any time after the finding of not
               guilty or the dismissal of the complaint, indictment, or
               information is entered upon the minutes of the court or the
               journal, whichever entry occurs first.

               ***

               (B)(1) Upon the filing of an application pursuant to division
               (A) of this section, 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.

               (2) The court shall do each of the following, except as
               provided in division (B)(3) of this section:

               (a)(i) Determine whether the person was found not guilty in
               the case * * *;

               (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.

      {¶ 9} Thus, upon the filing of a request for the sealing of records, "R.C.
2953.52(B)(2) requires the trial court to: (1) determine whether the applicant was found
not guilty[;] (2) determine whether criminal proceedings are pending against the
applicant; and (3) determine whether the prosecutor filed an objection in accordance with
No. 15AP-522                                                                             4

R.C. 2953.52(B)(1) and to consider the prosecutor's reasons for the objection." Newton at
¶ 7.
       {¶ 10} Further, in considering an application under R.C. 2953.52, "the trial court is
to '[w]eigh 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 the records.' "
In re Dumas, 10th Dist. No. 06AP-1162, 2007-Ohio-3621, ¶ 8, quoting R.C. 2953.52
(B)(2)(d). If the trial court determines that the defendant's interests in having the records
sealed is "not outweighed by the government's interest in maintaining the records, then
the trial court shall issue an order sealing the records." Newton at ¶ 7, citing R.C.
2953.52(B)(3). The burden is on the defendant to demonstrate that his interest in having
the records sealed is "equal to or greater than the government's interest in maintaining
those records." Newton at ¶ 9. See also State v. Wilson, 10th Dist. No. 13AP-684, 2014-
Ohio-1807, ¶ 15.
       {¶ 11} In the present case, appellee's memorandum in support of the application
stated in part: "No criminal proceedings are pending against applicant. A dismissal of the
former complaint or a finding of not guilty has been journalized by the court in the prior
case[.] All other factors listed in R.C. 2953.52(B)(2) support granting this application."
The trial court's entry sealing the record in this case states in part: "In accordance with
Section 2953.52, Ohio Revised Code, the Court finds that there are no criminal
proceedings pending against the applicant, * * * and that the sealing of the record of the
applicant's finding of not guilty, in Criminal Case number 13CR-4991 is consistent
with the public interest." (Emphasis sic.)
       {¶ 12} This court has previously held that "merely reciting the statutory
requirements is insufficient to satisfy a defendant's burden to establish their interest in
having the records of the case sealed." Wilson at ¶ 17. In Wilson, this court held that
where the defendant "did not appear at the hearing, or otherwise present any evidence to
demonstrate his interest in having the record of the no bill sealed, there is no evidence in
the record to establish defendant's interest." Id. We concluded, therefore, that the
defendant "failed to meet his burden under R.C. 2953.52(B)(2)(d)." Id., citing Newton at
¶ 9 (noting that the defendant failed to meet his burden where his "written request merely
state[d] that he [met] all the requirements of R.C. 2953.52," and, at the hearing on his
No. 15AP-522                                                                              5

application, "counsel for [the defendant] did not set forth any particular need or present
any evidence supporting appellant's interest in sealing the records"). See also In re
Sealing of the Record of Brown, 10th Dist. No. 07AP-715, 2008-Ohio-4105, ¶ 13 (the
defendant failed to meet her burden of demonstrating a need for sealing record where her
written application merely stated that she met all the requirements of R.C. 2953.52, and
she did not provide any testimony or other evidence supporting her interest in sealing her
criminal records).
       {¶ 13} Based on precedent of this court, "[a] trial court abuses its discretion when
it grants an application to seal a criminal record without sufficient information to support
the trial court's findings." State v. Draper, 10th Dist. No. 14AP-791, 2015-Ohio-1781, ¶ 10,
citing Wilson at ¶ 15, State v. Porter, 10th Dist. No. 14AP-158, 2014-Ohio-4068, ¶ 12-14,
and State v. Suel, 10th Dist. No. 02AP-1158, 2003-Ohio-3299, ¶ 14.
       {¶ 14} In the present case, appellee failed to "present testimony or any evidence" to
demonstrate his interest in having his record sealed. Draper at ¶ 12. Rather, appellee
"merely provided an application stating that [he] qualified for a sealing of records under
R.C. 2953.52, and therefore failed to meet [his] burden of proof." Id. Under such
circumstances, "the trial court had insufficient evidence before it to engage in the
weighing process contemplated by R.C. 2953.52(B)(2)(d), much less grant an application
to seal appellee's record." Id.
       {¶ 15} The trial court appears to have recognized appellee did not meet his burden
of providing sufficient information to demonstrate a need for sealing the record, as the
court noted at the hearing that it would "take [its] chances with the prosecutor's office and
grant [the application]." (Tr. 2.) However, because the trial court was "obligated to
balance appellee's interests in having the record sealed against the government's interests
in maintaining the record, and appellee did not put forth any evidence to establish [his]
interests, the trial court abused its discretion" in granting the application. Porter at ¶ 14.
See also Draper at ¶ 13 ("Because appellee failed to meet her burden under R.C. 2953.52
to provide information supporting her interest in sealing her records beyond asserting,
without evidentiary support, that she qualifies for sealing under the statute, and based on
precedent, we find the trial court abused its discretion in granting appellee's application to
seal the records of her dismissed charges."); Wilson at ¶ 18 ("As the trial court was
No. 15AP-522                                                                                6

obligated to balance defendant's interest in having the record sealed against the
government's interest in maintaining those records, and defendant did not put forth any
evidence to establish his interest, the trial court abused its discretion in granting
defendant's application to seal the record of the no bill entered by the grand jury.").
       {¶ 16} Accordingly, the state's assignment of error is sustained.
       {¶ 17} Based on the foregoing, the state's single assignment of error is sustained,
the judgment of the Franklin County Court of Common Pleas is reversed, and this matter
is remanded to the trial court for further proceedings in accordance with law and
consistent with this decision.
                                                   Judgment reversed and cause remanded.

                                  DORRIAN, P.J., concurs.
                                   TYACK, J., dissents.


TYACK, J., dissenting.
       {¶ 18} Walter Hooks was found not guilty of patient abuse following a bench trial
in 2014. The same judge who heard the evidence in 2014 was later asked to seal the record
as authorized by R.C. 2953.52(A).
       {¶ 19} I think the trial court judge could consider the content of the trial conducted
before him and could take judicial notice of the fact that even having been charged with
patient abuse as a felony could have a detrimental effect on Hooks.
       {¶ 20} The State of Ohio alleges that it had an interest in maintaining the record.
Does it really have an interest in demonstrating that it charged an innocent man with a
felony?
       {¶ 21} In its objection to the application for expungement, the state argued first
that the harm to Hooks from his having had to face criminal charges is speculative and
then argued that prospective employers had a right to know the details of the charges
which led to an acquittal. Apparently, the state is maintaining that a charge against a man
who was wrongly accused can be used to deny the man future employment opportunities.
       {¶ 22} As an appellate court, we are supposed to use an abuse of discretion
standard in evaluating the actions of the trial court in cases such as this. I believe the trial
court judge could consider the evidence or lack of evidence presented at the trial. I also
No. 15AP-522                                                                           7

believe that the harm faced by Hooks is far from speculative. I certainly cannot find that
the trial court judge abused his discretion in granting the expungement.
      {¶ 23} I respectfully dissent.
