[Cite as State v. M.D., 2012-Ohio-1545.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97300




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                            M.D.
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-360551

        BEFORE: S. Gallagher, J., Jones, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: April 5, 2012
ATTORNEYS FOR APPELLANT

Larry W. Zukerman
S. Michael Lear
Brian A. Murray
Zukerman, Daiker & Lear Co., LPA
3912 Prospect Avenue, East
Cleveland, OH 44115


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Diane Smilanik
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

       {¶1} Defendant-appellant M.D. appeals the trial court’s decision that denied his

application to seal the records of his 1998 conviction for receiving stolen property,

forgery, uttering, and obstructing justice.   For the following reasons, we reverse the

decision of the trial court and remand for further proceedings.

       {¶2} In 1998, a jury convicted M.D. of receiving stolen computer equipment,

forgery, uttering, obstructing justice, and tampering with evidence. State v. [M.D.], 8th

Dist. Nos. 75339, 75340, and 75341, 2000 WL 235778 (Mar. 2, 2000) (“M.D. I”).

According to the facts gleaned from M.D. I, M.D. owned a pawnshop. One of his

employees took in and created a bill of sale for a laptop stolen from Cleveland Clinic.

The charge of receiving stolen property was for the laptop. The forgery, uttering, and

obstructing justice charges were based on the bill of sale that was created and given to the

prosecutor during discovery.     The bill of sale included information that was only

available from the search warrant. See id. M.D. was sentenced to one year in prison

and fined $3,500.      This court subsequently vacated the tampering with evidence

conviction on M.D.’s direct appeal.   Id. at *9.

       {¶3} In 2009, M.D. filed an application to seal his record of conviction pursuant

to R.C. 2953.32. The state filed an objection to the application, but only claimed that the

nature of the crime, in and of itself, created a legitimate interest in the government’s

maintaining the record of conviction.    The trial court held a hearing on the issue and
summarily denied M.D.’s application in a separate entry. In State v. M.D., 8th Dist. No.

92534, 2009-Ohio-5694 (“M.D. II”), we reversed the trial court’s summary decision and

remanded the matter in order for the trial court to issue findings pursuant to R.C. 2953.32.

       {¶4} Upon remand, the trial court issued a journal entry finding that M.D. did not

qualify as a first offender pursuant to R.C. 2953.32 and denied his application to seal a

record of conviction.    In State v. M.D., 8th Dist. No. 95383, 2011-Ohio-1804 (“M.D.

III”), this court again reversed the trial court’s decision because the trial court used the

incorrect date of offenses in determining that M.D. was not a first offender.    Id. at ¶ 10.

This court determined that M.D. was a first offender and remanded the matter in order for

the trial court to complete the rest of the analysis under R.C. 2953.32.

       {¶5} The trial court, once again, denied the application.     It is from this decision

that M.D. timely appeals, raising three assignments of error, which provide as follows:

       I. The trial court erred in denying appellant [M.D.’s] application to seal his
       records of conviction as it did not liberally apply the factors set forth in
       R.C. 2953.32(C) in appellant’s favor.

       II. The trial court erred in finding that appellant had not been satisfactorily
       rehabilitated as the law of the case doctrine prohibited the trial court from
       re-considering this issue as the court of appeals had already determined that
       there was overwhelming evidence that appellant was rehabilitated.

       III. The trial court erred in finding that the public’s need to maintain the
       records of appellant’s conviction outweighed appellant’s interest in sealing
       them and that said basis could not serve as ground[s] upon which to deny
       appellant’s application to seal the records of his conviction.
We will address M.D.’s assignments of error together because all three present the same

issue of whether the trial court erred in denying his application to seal the record of his

conviction.

       {¶6} As we previously recognized: “[a] trial court shall only grant expungement to

an applicant who meets all the requirements presented in R.C. 2953.32.” M.D. III at ¶ 4,

citing State v. Simon, 87 Ohio St.3d 531, 533, 2000-Ohio-474, 721 N.E.2d 1041.

Pursuant to R.C. 2953.32(C), the court must determine (1) whether the applicant is a first

offender, (2) whether criminal proceedings are pending against him or her, and (3)

whether the applicant has been rehabilitated to the court’s satisfaction.    The court must

also (4) consider any objections of the prosecutor and (5) weigh the interests of the

applicant in having the records pertaining to his or her conviction sealed against the

legitimate needs, if any, of the government to maintain those records.      “If the applicant

fails to meet one of the requirements in R.C. 2953.32(C), the trial court must deny the

motion for expungement.”       M.D. III, citing State v. Krantz, 8th Dist. No. 82439,

2003-Ohio-4568, ¶ 23.

       {¶7} R.C. 2953.32 provides for an emphasis on the individual’s interest in having

the record sealed.    State v. Hilbert, 145 Ohio App.3d 824, 764 N.E.2d 1064 (8th

Dist.2001), citing State v. Bissantz, 40 Ohio St.3d 112, 114, 532 N.E.2d 126 (1988).

The statute also acknowledges that the public’s interest in being able to review the record

is a relevant, legitimate governmental need under the statute. Id. Nonetheless, courts

must liberally construe R.C. 2953.32 in favor of promoting the individual’s interest in
having the records sealed. Id. We review the trial court’s decision under the abuse of

discretion standard.   State v. Smith, 8th Dist. No. 91853, 2009-Ohio-2380, ¶ 5.

       {¶8} In the current case, there is no dispute at the time of his hearing that M.D. is a

first offender and had no criminal proceedings pending against him. Further, this court

has determined that the state’s generic argument in its objection to the application was

contrary to this district’s precedent. M.D. II, 8th Dist. No. 92534, 2009-Ohio-5694.

The state simply argued that the nature of the offense outweighs M.D.’s interest in sealing

the record of conviction; however, the nature of the offense, in and of itself, is not

grounds to deny the application. Id., citing State v. Haas, 6th Dist. No. L-04-1315,

2005-Ohio-4350.        The state has not otherwise objected to M.D.’s application.

Therefore, the only issue before this court is whether the trial court abused its discretion

in determining that M.D. was not rehabilitated and the government’s interest in

maintaining the record of conviction outweighed M.D.’s interest.

       {¶9} The trial court found that the government’s interest in maintaining the record

of conviction outweighed M.D.’s interest based on the “the public’s need to know,” citing

State v. Greene, 61 Ohio St.3d 137, 573 N.E.2d 110 (Moyer, C.J., dissenting in part)

(1991).   The trial court held that because the offense was committed while in the course

of his business, the public had a right to review the record of conviction in order to

determine whether to conduct future business with M.D.        The trial court also noted that

M.D. did not have any interest in sealing the records because he has been able to rebuild

his reputation, maintain a management position at work, and otherwise move on with his
life, demonstrating that the record of conviction has not detrimentally affected M.D.

Based on the full record before us, we must find that the trial court’s rationale is contrary

to law.

          {¶10} M.D. must prove that he was rehabilitated in order to have his record of

conviction sealed.      R.C. 2953.32(C)(1)(c).     To this end, the record shows, and we

previously referenced, that M.D. is not only remorseful, but also that he is a highly

productive member of society, a valued friend, father, son, and husband, and a man of

high moral character. M.D. II, 8th Dist. No. 92534, 2009-Ohio-5694.

          {¶11} We are sensitive to the trial court’s concerns about the public’s possible

“need to know” about a person’s prior conduct in business, but that concern is not

unlimited. We must note that M.D. is now 50 years of age and has led a law abiding life

since these convictions in 1998. Further, it is undisputed that he is no longer is involved

in the “pawn” business that was the subject of these original convictions.             By all

accounts, he has moved on and deserves the benefit that the expungement statute affords.

The fact that he is now successful should not deny him the benefits of the expungement

statute. Because rehabilitation is a factor that must be demonstrated pursuant to R.C.

2953.32(C)(1)(c), it cannot be a factor that also counts against the offender when

weighing the interests of the offender against the government’s interest.

          {¶12} The trial court also found that M.D. had not been rehabilitated to the court’s

satisfaction because M.D. had not demonstrated remorse for his crimes. The trial court

relied on M.D.’s statement in the January 6, 2008 letter attached to his application, that a
trainee at his business made the mistakes underlying the criminal conduct and that M.D.’s

mistake was not finding and remedying the issue. It is understandable how the trial court

could take umbrage with the fact that M.D. expressed that another was responsible for the

actions that led to his conviction. Nevertheless, as we already noted in that January 6,

2008 letter, M.D. otherwise expressed his remorse and regret for his actions. M.D. II,

8th Dist. No. 92534, 2009-Ohio-5694, ¶ 3. M.D. did not plead guilty to the offenses.

This can lead to the view that he is not remorseful, but we must look at the larger picture

of how the crime occurred and the original context of M.D.’s guilt. His explanation

that he made a mistake in not finding and remedying the initial conduct of an employee

does not mean he is not remorseful. At some level, we must accept that when someone

exercises his constitutional right to trial, and is subsequently found guilty, he may express

remorse in different ways.

       {¶13} In State v. Auge, 10th Dist. No. 01AP-1272, 2002-Ohio-3061, ¶ 71, the

court held that, as a matter of law, a defendant who exercises his right to a trial and is

found guilty, can be deemed “rehabilitated” even if that person did not expressly state that

he was guilty of the offense. The defendant in that case exercised his right to trial and

testified as to his innocence at trial. In that context, expecting the defendant to express

remorse for a crime for which he denied guilt amounted to perjury, and the court erred as

a matter of law in imposing a contrary requirement. Id.

       {¶14} The Auge court’s rationale is persuasive. At M.D.’s trial, the testimony

reflected that his employee purchased the computer and drafted the bill of sale that was
the basis for the forgery and uttering offenses. M.D. I, 8th Dist. Nos. 75339, 75340, and

75341, 2000 WL 235778. M.D.’s statement was nothing more than a statement of the

facts as established at trial. The court’s reliance on M.D.’s remorse, or alleged lack

thereof, as being the sole reason to claim that he has not been rehabilitated is contrary to

the intent of R.C. 2953.32 being liberally construed. In this case, it is undisputed that

M.D. has held gainful employment, ascended to a position with managerial

responsibilities, rebuilt his reputation, has not committed any other crime, and has

expressed sufficient remorse for his own actions in the context of this case. The trial

court, therefore, erred by finding that the defendant failed to satisfy the rehabilitation

element of R.C. 2953.32(C), and by using the defendant’s rehabilitation as a factor to

deny an application to seal a record of conviction. M.D.’s assignments of error are

sustained.

       {¶15} There being no other stated reason to deny M.D.’s application to seal his

record of conviction, we reverse the decision of the trial court and remand for the limited

purpose of ordering M.D.’s record of conviction to be sealed.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
