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State v. H. M.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 26, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
H.M. DEFENDANT-APPELLEE

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-580051-A

          ATTORNEYS FOR APPELLANT, Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Diane Smilanick, Assistant Prosecuting Attorney

          ATTORNEYS FOR APPELLEE, Roger M. Synenberg, Clare Moran, Synenberg & Associates

          BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.

          JUDGMENT:

          FRANK D. CELEBREZZE, JR., J.:

         {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Plaintiff-appellant, the state of Ohio, seeks to overturn the trial court's decision to grant defendant-appellee, H.M.'s (hereinafter "appellee") application for the sealing of his conviction record. The state argues that the trial court abused its discretion when it granted appellee's application because that decision failed to properly weigh the competing interests involved. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} Appellee, an attorney, was indicted on one count of attempted bribery, a fourth-degree felony, in violation of R.C. 2921.02 and 2923.02. The charge stems from appellee's involvement with the communication of bribes by a criminal defendant's attorney to a female rape victim. Appellee represented the female victim in obtaining a civil protection order against the defendant. After the defendant pled guilty in the criminal matter, his attorney communicated to appellee, who had terminated his representation with the female victim, bribe offers to the victim if she would write a favorable letter to the trial court judge at the defendant's sentencing.

         {¶3} On November 13, 2013, as part of a plea agreement, [1] appellee pled no contest to obstructing official business, a second-degree misdemeanor, in violation of R.C. 2921.31(A). On November 22, 2013, appellee was sentenced as follows: 10-day jail sentence, that was suspended, 3 months community control sanctions, 25 hours community service, and a fine of $750.[2]

         {¶4} On November 20, 2015, appellee filed an application to seal all official records of his conviction in this matter. The state filed a response brief in opposition to appellee's application. Appellee had previously completed all of his sentencing orders, including payment of his fine and court costs as of November 25, 2013. Appellee also completed his community service orders prior to the termination of his three-month community control period. Appellee was also terminated from community control on January 31, 2014.

         {¶5} Having filed his application to seal on November 20, 2015, the trial court held a hearing on appellee's motion on November 1, 2017. At the hearing, the trial court heard arguments by appellee in support of his motion and arguments in opposition by the state. The court ultimately granted the application and sealed appellee's record of the conviction. The state then filed the instant appeal raising two assignments of error for review:

I. The trial court abused its discretion when it granted H.M.'s application to seal all official records because that decision failed to properly weigh the competing interests involved and is not supported in the record.
II. The trial court failed to articulate and create a record for this court to engage in a meaningful appellate review.

         II. Law and Analysis

         {¶6} In the state's first assignment of error, the state argues that the trial court abused its discretion when it granted appellee's application. In particular, the state argues that the trial court failed to properly weigh the competing interests involved and thus the trial court's decision to grant appellee's application is not supported by the record. In its second assignment of error, the state argues that the trial court failed to articulate and create a record for this court to conduct a meaningful appellate review.

         A. Weighing Competing Interests

         {¶7} In State v. A.S., 8th Dist. Cuyahoga No. 100358, 2014-Ohio-2187, this court explained the standard of review of a ruling on an application to seal a conviction as follows:

Generally, a trial court's decision to grant or deny a motion to seal records filed pursuant to R.C. 2953.52 is reviewed for an abuse of discretion. State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, ¶ 10, citing In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. * * * However, the applicability of R.C. 2953.36 to an applicant's conviction is a question of law that this court reviews de novo. State v. M.R., 8th Dist. Cuyahoga No. ...

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