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State v. D.K.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
D.K. DEFENDANT-APPELLANT

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-525123-B

          ATTORNEY FOR APPELLANT Lawrence J. Rich Zashin & Rich Co., L.P.A.

          Michael C. O'Malley Cuyahoga County Prosecutor BY: Gregory J. Ochocki Assistant Prosecuting Attorney The Justice Center, ATTORNEYS FOR APPELLEE

          BEFORE: E.A. Gallagher, A.J., Boyle, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

         {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant D.K. appeals from the trial court's order denying his application to seal the record of his convictions pursuant to R.C. 2953.32. For the reasons that follow, we affirm the trial court's decision.

         Factual and Procedural Background

         {¶2} In November 2010, D.K. pled guilty to two counts of theft, two counts of tampering with records and two counts of attempted falsification arising out of his fraudulent billing practices as a licensed daycare provider through which he defrauded the Ohio Department of Jobs and Family Services of approximately $80, 000. In December 2010, D.K. was sentenced to a two-year prison term - 18 months on each of the thefts counts, two years on each of the tampering with records counts and 12 months on each of the attempted falsification counts, all to be served concurrently - and up to three years of postrelease control. D.K. agreed to forfeit his license as a daycare provider, and not to seek a new license, agreed to close his remaining daycare and pay $80, 000 in restitution. He was also ordered to pay a $10, 000 fine and the costs of the investigation against him.

         {¶3} In October 2011, the trial court granted D.K.'s request for judicial release and placed him on community control sanctions for a three-year period. In September 2013, the trial court terminated community control, finding that D.K. had complied with all conditions of community control and had paid all restitution, costs, fines and fees.

         {¶4} On October 28, 2016, D.K. filed an application to seal the record of his convictions pursuant to R.C. 2953.32(A)(1). D.K. asserted that he was an "eligible offender" as defined in R.C. 2953.31(A), that he was involved in no other criminal proceedings and that he had conducted himself "in an exemplary manner since [his] conviction[s] and desire[d] to have his record expunged." He requested that the trial court set a date for a hearing on his application. The state opposed D.K.'s application. The state argued that if the record of D.K.'s convictions was sealed, there would be "nothing to stop the defendant from attempting to obtain licensure for another daycare and/or any other business that would accept government vouchers" and that the state's interests in maintaining the record of his convictions, therefore, outweighed D.K.'s interests in having them sealed.

         {¶5} The trial court ordered an expungement investigation and report related to D.K.'s application. On April 25, 2017, the trial court denied D.K.'s application without a hearing. The court stated: "Due to the nature of the offense and the reasons stated by the state in its brief in opposition, the court finds that the interests of the state in maintaining the record outweighed the defendant's interests in having the record sealed." D.K. appealed. This court vacated the trial court's judgment and held that, pursuant to R.C. 2953.32(B), the trial court was required to hold an evidentiary hearing before ruling on D.K.'s application. The matter was remanded for further proceedings. State v. D.K., 8th Dist. Cuyahoga No. 105812, 2017-Ohio-7081, ¶ 1, 3.

         {¶6} On remand, the trial court held a hearing on D.K.'s application. The hearing consisted solely of argument by counsel for both sides. Without presentation of any testimony or other evidence at the hearing, D.K.'s counsel asserted that D.K. wanted the record of his convictions sealed in order "to improve his employment." He explained that D.K. currently works at a print shop but that "there's no future." He indicated that D.K. had sought employment at "American Greetings and other larger companies" but that once potential employers learn he has a prior felony conviction, they "don't want to talk to him." He further indicated that D.K. had "no interest whatsoever" in working at any child care facility and was willing to sign and send a letter to the Ohio Department of Jobs and Family Services "telling them not to approve any application * * * ever for that type of employment."[1]

         {¶7} The state argued that any such letter would not be sufficient to protect its interests. The state indicated that it had an interest in ensuring that D.K. "live[d] up [to] the words" of the plea agreement, that it would have no way of tracking the letter once it was sent and that without the record of his convictions, there would be nothing to preclude D.K. from obtaining another daycare license or from going into any other business that accepted government vouchers or other state funding.

         {¶8} After the hearing, the trial court once again denied D.K.'s application to seal the record of his convictions, concluding that "the state's reasons for maintaining the record of conviction[s] outweigh the applicant's interests in having the records sealed." As the trial court explained:

[T]his is one of those where it is certainly up to the Court to decide. I think based - the Court feels the opinion [sic] and also the statute itself, the defendant is an eligible offender ...

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