Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting Attorney,
Stanton, Cuyahoga County Public Defender, and David M. King,
Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE
1} Defendant-appellant, G.FA., appeals from the
trial court's denial of his motion to seal his record.
For the reasons set forth below, we reverse and remand.
2} In December 2016, G.F.A. was charged with
felonious assault and domestic violence. The charges allege
that G.F.A. physically assaulted his mother, who was 76 years
old at the time. The matter was set for trial on March 27,
2017. Prior to the start of trial, the state dismissed the
matter in light of the lack of cooperation of the victim,
G.F.A.'s mother. The state also indicated that based on
conversations with the mother, the events did not occur as
she had reported to the police. The trial court granted the
dismissal without prejudice, noting that the "victim
[is] not available and has recanted. [G.F.A.] advised to stay
away from victim and he agreed. [G.F.A] is leaving the area
for employment elsewhere."
3} One year later, in December of 2017, G.F.A. filed
a motion to seal his record. The state opposed, and the trial
court held a hearing on the matter. At the hearing, defense
counsel advised the trial court that the case had been
dismissed by the state and G.FA. hoped to relocate to
Florida. The state objected, noting that the case was
dismissed because the elderly victim was injured and unable
to come to court to testify. The state noted that it would
reindict if it received more information. At the conclusion
of the hearing, the trial court took the matter under
advisement. Thereafter, the court issued a journal entry
denying G.FA.'s motion. The entry stated:
"[G.FA.'s] motion to seal court records denied.
Based on the expungement investigation report."
It is from this order G.FA. appeals, raising the following
two assignments of error for review:
Assignment of Error No. 1
The trial court abused its discretion in denying
[G.F.A.'s] motion for expungement as it failed to
properly weigh the competing interests in the sealing of
Assignment of Error No. 2
The trial court failed to articulate and create a record for
this Court to engage in a meaningful appellate review.
In the first assignment of error, G.F.A. argues that the
trial court failed to properly weigh his interests when it
denied his motion to seal his record.
6} In State v. C.K., 8th Dist. Cuyahoga No.
99886, 2013-Ohio-5135, this court explained the standard of
review of a ruling on a motion to seal a record of conviction
In general, a trial court's decision to grant or deny a
request to seal records is reviewed under an abuse of
discretion standard. In re Fuller, 10th Dist.
Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. An abuse of
discretion occurs when a decision is unreasonable, arbitrary,
or unconscionable. State ex rel. Nese v. State Teachers
Retirement Bd. of Ohio, 136 Ohio St.3d 103,
2013-Ohio-1777, 991 N.E.2d 218, ¶ 25.
Id. at ¶ 10.
7} R.C. 2953.52 sets forth the procedure by which
trial courts may seal a defendant's record following a
dismissal of the charges. R.C. 2953.53(A)(1) provides that
"[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." Once the defendant files the
application, "the court shall set a date for a hearing
and shall notify the prosecutor in the case of the hearing on
the application. The prosecutor may object to the granting of
the application by filing an objection with the court prior
to the date set for the hearing" and specifying in the
objection the reasons the prosecutor believes justify a
denial of the application. R.C. 2953.52(B)(1).
8} In considering the application, the trial court
(a)(i) Determine whether the person was found not guilty in
the case, or the complaint, indictment, or information in the
case was dismissed * * *; (ii) If the complaint, indictment,
or information in the case was dismissed, determine whether
it was dismissed with prejudice or without prejudice and, if
it was dismissed without prejudice, determine whether the
relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending
against the person;
(c)If the prosecutor has filed an objection in accordance
with division (B)(1) of this section, consider the reasons
against granting the application specified ...