Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-01-416390-ZA
APPELLANT D.H., pro se Inmate No. 06463-087 F.C.I. Elkton
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Diane Smilanick Assistant County Prosecutor
Justice Center, 9th Floor
Before: Stewart, J., E.T. Gallagher, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE
Defendant-appellant D.H., appearing pro se, appeals from the
trial court's order denying his motion to seal the record
of conviction in Cuyahoga C.P. No. CR-01-416390-ZA. We affirm
the decision of the trial court.
In the underlying case, D.H. was charged with kidnapping and
rape, and subsequently convicted of sexual battery. In a
reopened appeal, a panel of this court vacated the conviction
because D.H. was not indicted for sexual battery and because
sexual battery is not a lesser included offense of rape.
State v. Hutchins, 8th Dist. Cuyahoga Nos. 81578 and
After the conviction in this case was vacated, D.H. filed a
motion with the trial court to seal the record of that
conviction. He did so in the form of a
"correspondence" to the court while incarcerated in
a federal prison in Indiana. In the motion, D.H. asked the
court to "expunge the conviction from CR-01-416390 from
his criminal background record, " complaining that he
was "plagued by the conviction still being a part of his
record and[/]or criminal background." The court ordered
an expungement report and investigation. The court did not
hold a hearing on the motion, denying it on the basis that
D.H. "ha[d] outstanding warrants and an extensive
criminal record * * *."
In two assignments of error, D.H. argues that the trial court
erred by not holding a hearing on his motion and that the
trial court did not comply with the requirements of R.C.
2953.52(B)(2). We address the assigned errors together.
Initially, we note that D.H. states in his brief that
"[t]he instant appeal is of [the court's] denial of
his motion for expungement, " however, both of his
assignments of error reference a statute inapplicable to this
case: R.C. 2953.52. That statute is relevant in three
scenarios: (1) not guilty verdicts, (2) after dismissal of a
criminal complaint, indictment, or information, and (3) no
bills issued by a grand jury. See R.C.
2953.52(A)(1)-(2); State v. Boykin, 138 Ohio St.3d
97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 16. None of those
scenarios are present here. Generally, this court holds a pro
se litigant to the same standard as all other litigants, and
presumes the pro se litigant to have knowledge of the
relevant law and applicable procedure. State v.
Bolton, 8th Dist. Cuyahoga No. 103628, 2016-Ohio-5706,
Applicable to this case is R.C. 2953.32, Ohio's statute
for sealing the record of a conviction. The statute provides
in relevant part, that "an eligible offender may apply
to the sentencing court * * * for the sealing of the record
of the case that pertains to the conviction." R.C.
This court reviews the denial of a R.C. 2953.32 motion to
seal the record of a conviction for an abuse of discretion.
Bedford v. Bradberry, 8th Dist. Cuyahoga No. 100285,
2014-Ohio-2058, ¶ 5. However, before a court decides
whether to grant an application to seal an offender's
record of conviction, the court must first determine whether
the applicant is eligible under the statute to have his or
her record sealed. State v. J.M., 148 Ohio St.3d
113, 2016-Ohio-2803, 69 N.E.3d 642, ¶ 9.
An "eligible offender" is defined as a person with
"not more than one felony conviction, not more than two
misdemeanor convictions, or not more than one felony
conviction and one misdemeanor conviction." R.C.
2953.31(A); J.M. at ¶ 10. The determination of
whether an applicant is an eligible offender is a question of
law that we review de novo. Bradberry at ¶
The record in this case shows that D.H. has a criminal
history that makes him ineligible to have his record of
conviction sealed. Prior to this case, D.H. had no fewer than
nine misdemeanor convictions and six felony convictions. He
also had two still-active bench warrants issued in 1999.
Further, prior to filing the motion in this case, D.H.
amassed at least two additional felonies and another
misdemeanor. In light of his criminal history, D.H. was
clearly ineligible to have the court consider his motion ...