[Cite as State v. Dickerson, 2020-Ohio-3489.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                       Court of Appeals No. L-19-1152

        Appellee                                    Trial Court No. TRC 1802390A

v.

Thomas A. Dickerson                                 DECISION AND JUDGMENT

        Appellant                                   Decided: June 26, 2020

                                                *****

        Matthew E. Exton and Daniel T. Ellis, for appellant.

                                                *****

        SINGER, J.

        {¶ 1} Appellant, Thomas A. Dickerson, appeals from the July 3, 2019 judgment of

the Sylvania Municipal Court denying appellant’s motion to seal the record of Sylvania

Municipal Court case No. TRC 1802390A (hereinafter “the 2018 case”), which was

dismissed without prejudice, and granting his motion to seal the record of Sylvania

Municipal Court case No. TRC 1900656A (hereinafter “the 2019 case”), which was

dismissed with prejudice. For the reasons which follow, we reverse.
      {¶ 2} On appeal, appellant assert the following assignments of error:

             ASSIGNMENT OF ERROR NO. 1

             THE TRIAL COURT ERRED AS A MATTER OF LAW BY

      APPLYING AN INCORRECT LEGAL STANDARD WHETHER

      TO SEAL THE RECORDS OF THOMAS A. DICKERSON.

             ASSIGNMENT OF ERROR NO. 2

             THE TRIAL COURT ABUSED ITS DISCRETION IN

      DENYING THE MOTION TO SEAL.

                                       2018 Case

      {¶ 3} In 2018, appellant was charged with two violations following a collision on

April 21, 2018: operating a motor vehicle under the influence, R.C. 4511.19(A)(1),

(hereinafter “OVI”) and without an assured-clear-distance-ahead, Sylvania Codified

Ordinance 333.03(A), (hereinafter “ACDA”). The case was later dismissed without

prejudice.

                                       2019 Case

      {¶ 4} In 2019, appellee refiled the case, charging the same OVI offense and

changing the ACDA charge to a violation of R.C. 4511.21(A). Pursuant to a plea

agreement, appellant entered a no contest plea to the ACDA offense and the OVI offense

was dismissed with prejudice because the officer involved no longer worked for the

Sylvania police department and was unavailable to testify.




2.
                        Motion to Seal the 2018 and 2019 Cases

       {¶ 5} Appellant moved to seal the records in both cases. At the hearing on the

motion, appellant produced evidence and sworn testimony that the records were

damaging his reputation in the community and his employment and causing him financial

hardship because his insurance rates had increased. Initially, the state objected to sealing

the record in the 2018 case anticipating the OVI charge would be refiled. However, at

the hearing, the state withdrew its objection. The trial court granted the motion as to the

2019 case but denied it as to the 2018 case. Appellant appeals.

                                First Assignment of Error

       {¶ 6} On appeal, appellant argues in this first assignment of error that the trial

court erred as a matter of law by applying an incorrect legal standard in denying his

motion to seal the 2018 case.

       {¶ 7} R.C. 2953.52(A)(1) provides that a criminal defendant who was found not

guilty or who was named in a dismissed criminal complaint has a statutory privilege to

request that their criminal record be sealed. State v. Radcliff, 142 Ohio St.3d 78, 2015-

Ohio-235, 28 N.E.3d 69, ¶ 15. The statute gives the trial court the discretion to determine

whether to seal the record. State v. S.R., 63 Ohio St.3d 590, 596, 589 N.E.2d 1319

(1992), superseded by statute on other grounds as stated in In re Application to Seal

Record of No Bill, 131 Ohio App.3d 399, 402, 722 N.E.2d 602 (3d Dist.1999); State v.

Lesinski, 82 Ohio App.3d 829, 830, 613 N.E.2d 691 (6th Dist.1992). Whether or not the

trial court complied with the statute, however, is a question of law, which is reviewed




3.
under a de novo standard of review. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-

5590, 918 N.E.2d 497, ¶ 6.

       {¶ 8} Upon the filing of an application to seal a criminal record of the type of case

presented here, the trial court must hold a hearing to determine the following facts:

1) whether the movant was found not guilty or the criminal action was dismissed;

2) whether a dismissed action was dismissed with prejudice or, if not, whether the

relevant statute of limitations has expired; 3) whether any other criminal actions are

pending against the person; 4) whether the state has filed an objection to the motion; and

5) the weight of the interests of the movant in having the official records sealed and the

legitimate needs of the government to maintain those records. R.C. 2953.52(B)(2)(a)-(d).

After making these findings, the trial court must order the record to be sealed if the trial

court finds the defendant was found not guilty, the complaint was dismissed, no criminal

proceedings against the person are pending, and “the interests of the person in having the

records pertaining to the case sealed are not outweighed by any legitimate governmental

needs to maintain such records.” R.C. 2953.52(B)(4).

       {¶ 9} In his first assignment of error, appellant contends the trial court applied the

wrong standard when weighing the relative interests of the parties regarding the 2018

case. The trial court found that the record should not be sealed in the 2018 case because

“the State’s significant interest in maintaining Defendant’s record of a dismissed OVI

charge is not outweighed by Defendant’s interest in having the record sealed.” Appellant

asserts the trial court should have determined whether appellant’s interests were




4.
outweighed by the government’s legitimate needs, not whether the government’s

legitimate needs were outweighed by appellant’s interests.

       {¶ 10} We agree with appellant that the trial court did not state its findings in

compliance with the statute. The statutory language regarding the weighing of interests

reflects the intent to place the burden on the movant to demonstrate that his interests are

at least equal to the governmental interests before the trial court must determine if sealing

the record would be appropriate. State v. Haney, 70 Ohio App.3d 135, 139, 590 N.E.2d

445 (10th Dist.1991). Furthermore this language also reflects the General Assembly’s

intention of favoring the sealing of records if specific requirements are met. Radcliff, 142

Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, at ¶ 17. Therefore, the court must

determine if the government’s interest outweighs the movant’s interests. If the interests

are equal, the trial court must grant the motion to seal the record. R.C. 2953.52(B)(4).

       {¶ 11} Because the trial court applied the wrong standard, we find appellant’s first

assignment of error well-taken.

                               Second Assignment of Error

       {¶ 12} In his second assignment of error, appellant argues the trial court abused its

discretion when weighing the interests regarding appellant’s motion to seal his 2018

criminal record. Because the trial court applied the wrong standard and must reconsider

the weighing of the interests of the parties, we find appellant’s second assignment of

error moot.




5.
       {¶ 13} Having found that the trial court did commit error prejudicial to appellant

and that substantial justice has not been done, the judgment of the Sylvania Municipal

Court is reversed. Appellant’s motion to substitute brief and motion to amend case

caption are denied. This case is remanded to the trial court for further proceedings

consistent with this decision. Appellee is ordered to pay the court costs pursuant to

App.R. 24.

                                                                        Judgment reversed
                                                                           and remanded.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




6.
