[Cite as State v. Jameson, 2019-Ohio-1420.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2018-A-0046
        - vs -                                 :

MICHAEL C. JAMESON,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court, Western District, Case No. 2014
CRB 00593 W.

Judgment: Reversed and remanded.


Nicholas A. Iarocci, Ashtabula County Prosecutor; Harold Specht and Shelley M. Pratt,
Assistant Prosecutors, Ashtabula County Courthouse, 25 West Jefferson Street,
Jefferson, OH 44047 (For Plaintiff-Appellee).

Mark Roy Devan and William Christopher Livingston, Berkman, Gordon, Murray &
Devan, 55 Public Square, Suite 2200, Cleveland, OH 44113 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Michael C. Jameson, appeals from the judgment of the

Ashtabula County Court, Western Division, denying his motion to seal the record of his

conviction for negligent assault, a misdemeanor of the third degree. We reverse the

trial court’s judgment and remand the matter for further proceedings.
         {¶2}   In the summer of 2013, a group of 11 youths visited appellant’s property in

a van.     They were there to retrieve their radio which was stored, with appellant’s

permission, on appellant’s property. The radio was in an outbuilding. Appellant and his

father observed the van through the trees and saw people enter the outbuilding.

Appellant’s father shot at the van, injuring two of the passengers. Appellant fired his

shotgun in the direction of the van, but did not directly hit the vehicle.           Instead,

according to appellant’s crime-scene reconstruction expert, the blast ricocheted off the

ground causing some of the shot to strike the van.

         {¶3}   Appellant was ultimately charged with one count of negligent assault, to

which he pleaded no contest. He received a suspended sentence and was released

from probation early after he completed the conditions of his community control.

Appellant subsequently moved the trial court to seal the record of this conviction. After

a hearing, the trial court denied the motion. This appeal follows. Appellant assigns the

following as error:

         {¶4}   “The trial court erred in denying appellant’s motion to seal the record of his

conviction.”

         {¶5}     “Generally, we review a trial court’s decision to deny an application to

seal a record of conviction for an abuse of discretion.” State v. Talameh, 11th Dist.

Portage No. 2011-P-0074, 2012-Ohio-4205, ¶20. When, however, it is necessary for an

appellate court to interpret and apply statutory provisions, its standard of review

is de novo. Id.

         {¶6}     R.C. 2953.32(A) allows “an eligible offender” to “apply to the sentencing

court * * * for the sealing of the conviction record * * * at the expiration of one year after




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the offender’s final discharge if convicted of a misdemeanor.” The expungement or

sealing of the record is “an act of grace created by the state,” and is “a privilege, not a

right.” State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75

Ohio St.3d 636, 639, (1996). While R.C. 2953.32 “provides for an emphasis on the

individual’s interest in having the record sealed,” it “acknowledges that the public’s

interest in being able to review the record is a relevant, legitimate governmental need

under the statute.” Talameh, supra, at ¶19.

       {¶7}   The expungement provisions are remedial in nature and “must be liberally

construed to promote their purposes.” State ex rel. Gains v. Rossi, 86 Ohio St.3d 620,

622 (1999). As one appellate court framed the policy considerations underlying

expungement:

       {¶8}    [P]eople make mistakes [and] afterwards they regret their conduct
              and are older, wiser and sadder. The enactment and amendment
              of R.C. 2953.31 and 32 is, in a way, a manifestation of the
              traditional Western civilization concepts of sin, punishment,
              atonement, and forgiveness. Although rehabilitation is not favored
              in current penal thought, the unarguable fact is that some people do
              rehabilitate themselves.” State v. Hilbert, 145 Ohio App.3d 824, 827
              (8th Dist.2001).

       {¶9}   R.C.   2953.32    governs    sealing   records   of   conviction,   and   R.C.

2953.32(C)(1) states that “[t]he court shall do each of the following:

       {¶10} (a) Determine whether the applicant is an eligible offender * * *.

       {¶11} (b) Determine whether criminal proceedings are pending against
             the applicant;

       {¶12} (c) If the applicant is an eligible offender who applies pursuant to
             division (A)(1) of this section, determine whether the applicant has
             been rehabilitated to the satisfaction of the court;




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       {¶13} (d) If the prosecutor has filed an objection in accordance with
             division (B) of this section, consider the reasons against granting
             the application specified by the prosecutor in the objection;

       {¶14} (e) Weigh 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. (Emphasis added).

       {¶15} Appellant asserts the trial court properly found the first three factors were

met. Appellant further notes the court considered the reasons against granting the

application advanced by the state. Appellant argues, however, the trial court failed to

weigh appellant’s interest in having the records sealed against the purportedly

legitimate needs of the state in maintaining them public. He accordingly contends the

trial court’s ultimate rationale for denying the motion was legally insufficient and was

additionally problematic because it relied upon irrelevant considerations.

       {¶16} At the hearing, appellant, through counsel, asserted he is a welder by

trade and is required to travel to various industrial facilities to perform his job. Because

many of these work sites have increased security restrictions, he claimed his conviction

prevents him from entering these locations thereby compromising his ability to earn a

living. A letter, written by his employer, was filed, which provided in relevant part:

       {¶17} [appellant’s] employment has the potential to be negatively
             impacted due to limiting the locations with which he can work due
             to the extensive background checks many of [his employer’s]
             customers require. In addition to potentially limiting locations he
             can work, in the event [appellant] would want to seek employment
             elsewhere to branch out into different concentrations within this
             industry he will likely not be considered due to this blemish on his
             record.

       {¶18} In its judgment, the court determined appellant’s needs or interests in

having the record sealed are outweighed by the legitimate needs of the government to




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maintain the record. The court, however, did not make any specific findings related to

appellant’s interests in its judgment. Moreover, the court acknowledge that the state’s

objection was premised, in part, on appellant’s conduct which led to the ultimate charge.

In denying the motion, the court stated:

      {¶19} The co-defendant, father of the defendant, was convicted of a much
            more serious offense and sentenced to a state prison. For this
            court to grant a sealing of the record of conviction would depreciate
            the severity of the defendant’s conduct in discharging a firearm in
            the direction of 11 people without verifying his target and the need
            for deadly force. The most important decision a firearm owner can
            make is the decision to discharge a firearm [in] the direction of
            another person or persons. For this court to hold otherwise would
            be to minimize the importance of that decision.

      {¶20} Appellant contends the trial court relied solely on the nature and

circumstances of his offense in denying his application.      Appellant cites numerous

cases from other districts which, he argues, stands for the proposition that the nature of

the offense cannot provide the sole basis to deny an application to seal. See In re.

M.H., 8th Dist. Cuyahoga No. 105589, 2018-Ohio-582, ¶19 (The trial court abused its

discretion in denying the motion because it simply adopted the state’s position that the

nature or the offense was sufficient unto itself.); State v. M.D., 8th Dist. Cuyahoga No.

92534, 2009-Ohio-5694 (The state merely objected to granting application based upon

nature of the crime and the trial court made no findings pursuant to the statute and thus

the matter was not reviewable); State v. Clellan, 10th Dist. Franklin No. 10AP-44, 2010-

Ohio-5867 (The trial court abused its discretion where defendant’s possession of a

firearm alone was sole factor in denying application, especially where possessing a

firearm is permitted under the law.); State v. Rojas, 180 Ohio App.3d 52, 2008-Ohio-

6339 (2d Dist.) (The trial court erred in denying application based on the nature of the




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offense, without weighing governmental interest against defendant’s interest.); State v.

Haas, 6th Dist. Lucas No. L-04-1315, 2005-Ohio-4350 (Trial court failed to conduct a

meaningful hearing and placed no findings on record; the court stated in dicta that a

denial cannot be premised solely on the nature of offense.); State v. Bates, 5th Dist.

Ashland No. 03-COA-057, 2004-Ohio-2260, ¶26 (The trial court abused its discretion in

denying the motion solely on the nature of the offense and failing to make other

statutory findings.); Hilbert, supra (The court denied the motion without offering any

findings or reasons and simply adopted the state’s objection which was based solely on

the nature of the offense.); State v. Berry, 135 Ohio App.3d 250 (2d Dist.1999) (The

trial court abused its discretion where it summarily denied the application without a

hearing because it was a “sex offense” crime.)

       {¶21} Although appellant’s statement of the law is correct, it requires some

context. The foregoing cases stand for the overarching proposition that a trial court

cannot deny an application without considering, on record, each of the factors set forth

in the statute. As such, a court cannot deny an application solely on the nature of the

offense; if, however, the trial court adequately considered and placed its findings on the

record, it must consider the nature of the offense as a factor in denying a motion. After

all, the nature of the offense that is the subject of the application is inherently germane

to the trial court’s ultimate ruling, to wit: it serves to establish whether the applicant is an

eligible offender.

       {¶22} With this in mind, in its judgment entry, the trial court stated that the

appellant’s interests are outweighed by the state’s legitimate needs in keeping the

record public. In its motion, and at the hearing, the state’s objections to sealing the




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record was premised solely upon the facts and circumstances of the case and

appellant’s use of a deadly weapon. The state recounted the facts that led to the

charge and contended that, based upon these points, the application should be denied.

       {¶23} The foregoing fails to highlight a legitimate need to keep the record

public. By arguing the severity of the circumstances of the crime justifies denying the

motion, the state is essentially arguing that, based upon the charge, appellant should be

ineligible. Because appellant was appropriately deemed an eligible offender, the state,

rather than articulating a legitimate need to keep the record public, is implicitly

attempting to negate appellant’s eligibility. In other words, to establish a need, the state

is required to set forth a legitimate basis other than the circumstances and nature of the

crime to provide the court with the necessary evidence to conduct the weighing process.

The state failed to do so and, as such, the trial court had insufficient evidence to

conduct the weighing exercise required by R.C. 2953.32(C)(1)(e).        Because the state

did not set forth a legitimate need independent of the offense itself (which does not

establish such a need), the trial court abused its discretion in denying appellant’s

application.

       {¶24} Furthermore, we additionally conclude the trial court’s consideration of the

seriousness of the offense of appellant’s co-defendant father is irrelevant to whether his

application should be denied. In this respect, the trial court abused its discretion when it

considered the severity of the conduct of appellant’s father over defense counsel’s

objection. See e.g. State v. Dunlap, 73 Ohio St.3d 308, 316 (1995) (Courts have broad

discretion in the admission or exclusion of evidence.)




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       {¶25} The judgment of the trial court is reversed and remanded to the trial court

with the direction to grant appellant’s application to seal records. See App.R. 12(B)

(When the court of appeals determines that the trial court committed error prejudicial to

the appellant and that the appellant is entitled to have judgment or final order rendered

in his favor as a matter of law, the court of appeals shall reverse the judgment or final

order of the trial court and render the judgment or final order that the trial court should

have rendered, or remand the cause to the court with instructions to render such

judgment or final order.)

       {¶26} Appellant’s assignment of error is well taken.

       {¶27} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court, Western Division is reversed and remanded for further proceedings.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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