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State v. S.E.J.

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
S.E.J., DEFENDANT-APPELLANT

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-552626-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender By: Erika B. Cunliffe Assistant Public Defender.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor.

          BEFORE: Laster Mays, J., Kilbane, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} Defendant-appellant S.E.J. appeals the trial court's decision to deny her application to expunge and seal her criminal record. After a thorough review, we reverse and remand.

         {¶2} In 2010, S.E.J. pleaded guilty to improperly handling firearms in a motor vehicle, a first-degree misdemeanor, in violation of R.C. 2923.16(E)(1)(a); and carrying concealed weapons, a minor misdemeanor, in violation of R.C. 2923.12(A)(2). She was sentenced to pay $850 in fines and court costs. In 2011, S.E.J. was found guilty of carrying concealed weapons with forfeiture specifications, a fifth-degree felony, in violation of R.C. 2923.12(A)(2). S.E.J. was sentenced to one-year of community control sanctions.

          {¶3} In 2016, S.E.J. filed an application for sealing the record of conviction pursuant to R.C. 2953.32(A)(1). She requested the expungement of her felony conviction because, after obtaining the education needed to work in the nursing field, she could not obtain full-time employment at a licensed nursing facility. It is important to note that S.E.J. cannot continue her education, obtain full-time employment as a nurse, or increase her salary because of this conviction. At the trial court expungement hearing, S.E.J. described the circumstances surrounding the 2011 incident. She stated,

That was when I just had moved on 149th and Kinsman. At that time I was working. I got a third shift job working and I was getting off real late. And I guess the police said it was a call from a surrounding area, I guess, that someone was shooting in the neighborhood and they were just - you know, as people were walking they was just checking suspects to make sure that everything was all right. And I happened to be walking down my street so they pulled - they had stopped me and asked me my name and identification. And I let them know that I had a CCLW and then I gave them my driver's license. And that's when they said, well, you know, they have to search my person and whatever and that's when they found the gun in my bag. And instead of charging me for the surrounding gun they just said, "Well, we have to take you down for an improper use of a handgun. The gun has to be on your person because somebody could come run along and take your purse and they can - you know, you can get mugged while your gun is in your purse."

(Tr. 13-14.)

         {¶4} The state objected to the expungement request. The trial court held its decision in abeyance. Several months later the trial court issued an order stating,

The court finds that the legitimate needs of the government to maintain [this record] outweighs the defendant's interest in sealing her record. Therefore, after weighing the interest of sealing the defendant's records against the legitimate need of the government to maintain those records, the defendant's application for sealing of the record of conviction is hereby denied.

{¶5} S.E.J. filed this appeal asserting two assignment of errors for our review. However, we will only address the first assignment of error. Pursuant to App.R. 12(A)(1)(c), the second assignment of error is moot.

I. The trial court abused its discretion when it denied S.EJ.'s motion for expungement because that decision failed to properly weigh the competing interests involved and is not supported by the record; and
II. The trial court failed to articulate and create a record so that this Court could ...

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