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State v. G. F. A.

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
G. F. A., Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611801-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and David M. King, Assistant Public Defender, for appellant

          JOURNAL ENTRY AND OPINION

          MARY 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."

         {¶4} 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 [G.F.A.'s] records.
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.

         {¶5} 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 as follows:

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 shall:

(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 ...

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