[Cite as State v. C.H., 2019-Ohio-3786.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 18AP-495
v.                                               :            (C.P.C. No. 10CR-3067)

[C.L.H.],                                        :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                   Rendered on September 19, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee. Argued: Michael P. Walton.

                 On brief: Timothy Young, Ohio Public Defender, and
                 Victoria Bader, for appellant. Argued: Victoria Bader.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Defendant-appellant, C.L.H., appeals the May 18, 2018 judgment of the
Franklin County Court of Common Pleas denying an application for an order to seal the
record. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On May 21, 2010, a Franklin County Grand Jury filed an indictment charging
appellant with one count of failure to provide notice of a change of address in violation of
R.C. 2950.05, a felony of the fourth degree. The indictment provided that appellant's duty
to register a change of address arose from his prior judgment of conviction for importuning
in violation of R.C. 2907.07, a felony of the fourth degree, which was entered on July 8,
2009 in the Juvenile Division of the Court of Common Pleas of Vinton County, Ohio. On
July 13, 2010, an entry of guilty plea was filed in the trial court. On September 9, 2010, the
trial court filed a judgment entry finding appellant guilty of the charged offense and
No. 18AP-495                                                                                2


sentencing appellant to community control, under intensive supervision, sex offender
caseload, for a period of five years. On July 1, 2011, the trial court filed a judgment entry
finding appellant violated the terms of community control and sentencing appellant to a
17-month period of incarceration.
       {¶ 3} On November 22, 2013, appellant filed a motion to vacate his conviction, or
in the alternative for relief from judgment, because his sex offender classification arising
from his conviction for importuning was void under the authority of State v. Williams, 129
Ohio St.3d 344, 2011-Ohio-3374 and In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961. On
December 6, 2013, plaintiff-appellee, State of Ohio, filed a memorandum contra appellant's
November 22, 2013 motion. On December 12, 2013, the trial court filed an entry vacating
appellant's conviction and terminating appellant's community control and all fees, fines,
and court costs associated with the matter. On appeal, we reversed the judgment of the
trial court and remanded for the trial court to expressly determine whether appellant's
underlying sex offender classification was void.
       {¶ 4} On February 12, 2015, the trial court issued a decision and entry granting
appellant's November 22, 2013 motion to vacate his sex offender classification. The state
appealed.
       {¶ 5} While the appeal was pending, on May 21, 2015, appellant filed his first
application to seal the record of the case pursuant to R.C. 2953.52(A)(1). On June 4, 2015,
the state filed a memorandum contra appellant's first application. On June 30, 2015, the
trial court filed a decision and entry denying appellant's first application. In the decision,
the trial court stated that appellant's "record cannot be sealed pursuant to ORC
2953.52(A)(1) since the indictment has not been dismissed." Appellant did not appeal the
trial court's June 30, 2015 decision.
       {¶ 6} On May 6, 2016, we issued a decision affirming the trial court's February 12,
2015 judgment granting appellant's motion to vacate his sex offender classification. In our
decision, we found as relevant to the instant matter that the trial court did not err by
concluding: (1) appellant's sex offender classification was void, and (2) appellant's failure
to notify conviction was void.
       {¶ 7} On April 17, 2017, appellant filed his second application for order sealing
record of dismissal, finding of not guilty, or no bill pursuant to R.C. 2953.52(A). On May 15,
2017, the state filed an objection to appellant's second application to seal the record. On
No. 18AP-495                                                                                                  3


July 6, 2017, the trial court filed a judgment entry withdrawing appellant's second
application for an order sealing the record. In the entry, the trial court noted the application
was withdrawn at appellant's request.
        {¶ 8} On January 26, 2018, appellant filed a third application for order sealing
record of dismissal, finding of not guilty, or no bill pursuant to R.C. 2953.52(A). On
March 12, 2018, the state filed an objection to appellant's third application. In its objection,
the state provided four grounds in support of its argument that the application should be
denied: (1) appellant cited no authority to order official records to be expunged, as opposed
to sealed, (2) appellant's application was barred by res judicata, (3) appellant's application
was barred because of pending criminal proceedings, and (4) the public's interest in
maintaining the record exceeded any particularized need demonstrated by appellant.
        {¶ 9} On April 4, 2018, the trial court held a hearing on appellant's third
application. On May 18, 2018, the trial court filed a judgment entry denying the application.
In its judgment entry, the trial court stated the following: "This cause came to be heard
upon the application, pursuant to Section 2953.32, Ohio Revised Code, for an order sealing
the record in [this case]. Said application is hereby Denied. The court concurs with the
State of Ohio's arguments."
II. Assignment of Error
        {¶ 10} Appellant appeals and assigns the following error for our review:
                The Franklin County Common Pleas Court abused its
                discretion when it summarily and categorically denied
                [C.H.'s] application to seal the record * * * in violation of R.C.
                2953.52.

III. Analysis
        {¶ 11} In his sole assignment of error, appellant asserts the trial court erred by
denying his third application to seal the record pursuant to R.C. 2953.52.
A. Applicable Law and Standard of Review
        {¶ 12} Sealing records in Ohio is a two-step process.1 First, a court must make a
legal determination as to whether the applicant is an "eligible offender" under the relevant
statute. Compare R.C. 2953.32 with 2953.52. Here, appellant sought to seal records

1We note that "[i]n Ohio, 'expungement' remains a common colloquialism used to describe the process of
sealing criminal records pursuant to statutory authority." State v. Nichols, 10th Dist. No. 14AP-498, 2015-
Ohio-581, ¶ 8, citing State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11.
No. 18AP-495                                                                                 4


pursuant to R.C. 2953.52. Under R.C. 2953.52(A)(1), "[a]ny 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." In determining whether an applicant is an eligible offender under R.C.
2953.52, the court must determine: (1) whether the applicant was found not guilty or
whether the complaint, indictment, or information was dismissed, and (2) whether
criminal proceedings are pending against the applicant. R.C. 2953.52(B)(2)(a) and (b). See
also R.C. 2953.61 (providing for sealing of records in cases of multiple charges). "Whether
an applicant is an 'eligible offender' for purposes of an application to seal the record of a
conviction is an issue that we review de novo." State v. A.L.M., 10th Dist. No. 16AP-722,
2017-Ohio-2772, ¶ 9, citing State v. Tauch, 10th Dist. No. 13AP-327, 2013-Ohio-5796, ¶ 7.
See also State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 9.
       {¶ 13} Second, if the court finds the applicant to be an eligible offender, it must use
its discretion to: (1) consider objections, if any, raised by the prosecutor, and (2) weigh the
interests of the applicant to seal the record against the legitimate needs, if any, of the
government to maintain those records. R.C. 2953.52(B)(2)(c) and (d). We apply an abuse
of discretion standard when reviewing a trial court's resolution of these issues. C.A. at ¶ 10;
In re Application for the Sealing of the Records of A.R.H., 10th Dist. No. 18AP-554, 2019-
Ohio-1325, ¶ 9.
       {¶ 14} If the trial court finds the applicant to be an eligible offender and, using its
discretion, finds the other factors support sealing the records of conviction, the trial court
"shall issue an order directing that all official records pertaining to the case be sealed."
(Emphasis added.) R.C. 2953.52(B)(4). Statutes providing for the sealing of records "are
remedial and are, therefore, to be construed liberally to promote their purpose and assist
the parties in obtaining justice." C.A. at ¶ 11, citing State ex rel. Gains v. Rossi, 86 Ohio
St.3d 620, 622 (1999), citing R.C. 1.11. See also Barker v. State, 62 Ohio St.2d 35, 42 (1980).
B. Analysis
       {¶ 15} We begin by addressing the state's argument that appellant's third
application to seal the record is barred by res judicata. In Ohio, "[t]he doctrine of res
judicata encompasses the two related concepts of claim preclusion, also known as res
judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel."
O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, ¶ 6, citing Grava v.
No. 18AP-495                                                                                 5


Parkman Twp., 73 Ohio St.3d 379, 381 (1995). "With regard to claim preclusion, a final
judgment or decree rendered on the merits by a court of competent jurisdiction is a
complete bar to any subsequent action on the same claim between the same parties or those
in privity with them." Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, ¶ 7.
Additionally, "an existing final judgment or decree between the parties is conclusive as to
all claims that were or might have been litigated in a first lawsuit." Id. Collateral estoppel,
on the other hand, " 'precludes the relitigation, in a second action, of an issue that has been
actually and necessarily litigated and determined in a prior action.' " Warrensville Hts.
City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision, 152 Ohio St.3d 277, 2017-
Ohio-8845, ¶ 9, quoting Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112 (1969).
       {¶ 16} We have held the doctrine of res judicata applies to applications for sealing
of records. In re Sealing of the Record of Brown, 10th Dist. No. 07AP-715, 2008-Ohio-
4105, ¶ 10. "[A]bsent demonstration by the applicant that there has been a change in
circumstances from the time of the filing of the previous application, res judicata bars
successive attempts to relitigate the same issues in subsequent [record sealing]
applications." Id. Demonstrating a " 'change in circumstances requires more than the mere
passage of time.' " Id., quoting State v. Haney, 10th Dist. No. 99AP-159 (Nov. 23, 1999).
See State v. Matthews, 6th Dist. No. WD-14-059, 2015-Ohio-3517, ¶ 13, quoting State v.
Grillo, 5th Dist. No. 14CA51, 2015-Ohio-308, ¶ 20 ("[T]he broadening of the class of
persons eligible for expungement 'constitutes a change in circumstances between the prior
requests for expungement and the [successive] application so as to allow a court to consider
a subsequent petition and res judicata would not bar its review.' ").
       {¶ 17} Here, appellant filed three applications to seal the record. In its decision
denying the first application, the trial court stated appellant's "record cannot be sealed
pursuant to [R.C.] 2953.52(A)(1) since the indictment has not been dismissed." Appellant
did not appeal the trial court's June 30, 2015 decision.
       {¶ 18} Appellant contends that successive applications to seal records are not
"indiscriminately barred by res judicata." (Appellant's Reply Brief at 1.) In support of his
argument, appellant argues he has demonstrated a change of circumstances sufficient to
permit consideration of his third application. In his first application, appellant asserted
that "each time he applies for a job or tries to enroll in community college, a background
check generates a record of his vacated conviction, making his juvenile sex offense history
No. 18AP-495                                                                                  6


public." (May 21, 2015 App. at 4.) Appellant points to his counsel's statements at the hearing
on his third application in which counsel asserted that: (1) appellant's record continues to
appear on background checks, (2) appellant has been questioned about his vacated failure
to register charge when applying for housing, employment, and community college,
(3) appellant routinely requests counsel write letters to and speak with potential landlords
and employers regarding his vacated conviction, and (4) appellant continues to struggle to
find stable housing and employment.
          {¶ 19} First, appellant's counsel did not argue at the hearing that the listed factors
constituted a change in circumstances. Second, although the factors listed by appellant's
counsel may arguably constitute a change in circumstances with regard to demonstrating
appellant's interests in sealing the record under R.C. 2953.52(B)(2)(d), appellant's
arguments do not pertain to the trial court's determination that he was not an eligible
offender under R.C. 2953.52(A)(1) because the indictment had not been dismissed. Indeed,
appellant admits his indictment has not been dismissed. Furthermore, appellant did not
indicate that he has sought or is seeking dismissal of the indictment.2
          {¶ 20} Appellant had the opportunity to challenge the trial court's decision on his
first application by filing an appeal, allowing for any errors committed in the denial of the
first application to be corrected at that time. State v. Singo, 9th Dist. No. 27094, 2014-
Ohio-5335, ¶ 13; State v. Bailey, 2d Dist. No. 26464, 2015-Ohio-3791, ¶ 18. However,
because he did not appeal, appellant cannot now circumvent the trial court's eligibility
determination or attempt to relitigate the same by asserting facts immaterial to a change in
his eligibility. See State v. D.M., 4th Dist. No. 17CA3822, 2018-Ohio-3327, ¶ 29 (finding
res judicata barred successive application to seal record because applicant "did not
elaborate how his health changed in a material way during the time that elapsed since he
first requested the court to seal the record of his conviction" and because applicant "fail[ed]
to raise any arguments that he could not have raised in his first application"); Brown at ¶
10. Therefore, under the facts and circumstances of this case, we find appellant has failed
to establish a material change in circumstances sufficient to prevent the operation of res
judicata.




2   See Crim.R. 48(B).
No. 18AP-495                                                                                7


       {¶ 21} Next, appellant contends a vacated conviction is the functional equivalent of
a dismissal for purposes of sealing a record under R.C. 2953.52. Appellant raised this
argument in his first application to seal the record. Because he did not appeal the trial
court's decision denying his first application, res judicata bars him from attempting to
relitigate this issue now. In re A.R., 10th Dist. No. 16AP-482, 2017-Ohio-1575, ¶ 10; State
v. Breeze, 10th Dist. No. 15AP-1027, 2016-Ohio-1457, ¶ 13; State v. Jackson, 10th Dist. No.
15AP-581, 2015-Ohio-5282, ¶ 5. As a result, we decline to consider appellant's argument
and specifically make no determination regarding this issue.
       {¶ 22} Finally, having found res judicata barred appellant's third application to seal
his records, we need not consider appellant's remaining arguments that the trial court
erroneously considered the wrong statutory section and the trial court's decision was
insufficiently detailed, as any error related to such arguments was harmless. Therefore,
under the facts and circumstances of this case, we find the trial court did not err by denying
appellant's third application to seal the record. Accordingly, appellant's assignment of error
is overruled.
IV. Conclusion
       {¶ 23} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                            BROWN and McGRATH, JJ., concur.

                McGRATH, J., retired, formerly of the Tenth Appellate District,
                assigned to active duty under authority of the Ohio
                Constitution, Article IV, Section 6(C).
