Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CR-13-577059-A and CR-09-524279-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder and Anthony T.
Miranda, Assistant Prosecuting Attorneys, for appellee.
Elaine Hall, for appellant.
JOURNAL ENTRY AND OPINION
J. BOYLE, JUDGE
1} This cause came to be heard upon the accelerated
calendar pursuant to App.R. 11.1 and Loc.R. 11.1. In this
consolidated, accelerated appeal, defendant-appellant,
D.D.G., a.k.a. D.G., appeals the trial court's judgments
denying his applications to seal his criminal record in two
separate criminal cases. He raises two assignments of error for
1. Whether the trial court, in [Cuyahoga C.P. No.]
CR-13-577059, abused its discretion when it denied the
defendant-appellant, D.D.G.'s (aka D.G.'s) Petition
for Expungement without holding a hearing?
2. Whether the trial court, in [Cuyahoga C.P. No.]
CR-09-524279, abused its discretion when it did not conduct a
balancing test to also include the totality of the
expungement statute which contains R.C. 2953.36 and R.C.
2901.01 by reference?
2} Finding no merit to his assignments of error, we
Procedural History and Factual Background
3} In July 2009, D.D.G. pleaded guilty to two counts
of drug possession in violation of R.C. 2925.11(A), one a
felony of the fifth degree and the other a felony of the
fourth degree in CR-09-524279. Both counts carried a
forfeiture specification. The trial court sentenced D.D.G. to
a one-year term of community control. It also ordered D.D.G.
to pay court costs.
In September 2013, D.D.G. pleaded guilty to drug trafficking
in violation of R.C. 2925.03(A)(2), a felony of the fifth
degree, with a forfeiture specification in CR-13-577059. The
trial court sentenced him to a one-year term of community
control and ordered D.D.G. to perform 20 hours of community
work service. It also suspended his driver's license for
six months and waived his court costs.
5} On January 24, 2019, D.D.G. filed separate
applications for sealing in CR-09-524279 and
CR-13-577059. In his applications, D.D.G. acknowledged
that he had three felony convictions, stemming from
CR-09-524279, CR-13-577059, and Sandusky C.P. No. 13CR567.
6} D.D.G. moved to consolidate both petitions, but
the trial court never ruled on that motion, and the petitions
proceeded separately before different trial court judges.
7} In both cases, the trial courts ordered an
expungement investigation report, which showed that D.D.G.
was convicted of four felonies - two counts of drug
possession (CR-09-524279), one count of drug trafficking
(CR-13-577059), and one count of failure to comply with order
or signal of a police officer (13CR567)- and a misdemeanor,
noise in motor vehicles, a fourth-degree misdemeanor, in
Cleveland M.C. No. 2010 CRB 026869.
8} The state opposed both of D.D.G.'s
applications, arguing that under R.C. 2953.31(A), D.D.G. was
"statutorily ineligible for [sealing his criminal
convictions] because he has more than one felony conviction,
and one of [his] convictions was a felony of the third
degree." The state pointed out that the expungement
investigation report showed that in addition to his felony
convictions in CR-09-524279 and CR-13-577059, which were in
Cuyahoga County Common Pleas Court, D.D.G. was also convicted
of failure to comply with an order or signal of a police
officer in violation of R.C. 2921.331(B), a felony of the
third degree, in Sandusky C.P. No. 13CR567. Attached to both
of the state's briefs in opposition was a printed copy of
the docket from D.D.G.'s Sandusky case, showing that he
pleaded guilty to failure to comply with an order or signal
of a police officer in December 2013, and was sentenced to
180 days in jail, a three-year term of community control
sanctions, a driver's license suspension, and a fine on
January 21, 2014.
9} In CR-09-524279, the trial court set a date for a
hearing on the petition and held that hearing on March 21,
2019. At the hearing, D.D.G.'s counsel conceded that
D.D.G. had a third-degree felony conviction for failure to
comply in Sandusky County Common Pleas Court. The trial court
denied D.D.G.'s petition in that case, finding that
D.D.G. was not an eligible offender under R.C. 2953.31(A)
because he was convicted of failure to comply with an order
or signal of a police officer, a third-degree felony, and had
four felony and two misdemeanor convictions.
10} In CR-13-577059, the trial court did not set a
date for a hearing on D.D.G.'s petition and denied it
without a hearing. The trial court's journal entry stated
that it was denying the petition because D.D.G. was not
eligible for sealing under R.C. 2953.31(A) because he was
convicted of failure to comply with an order or signal of a
police officer, a third-degree felony, and had more than one
11} It is from these judgments that D.D.G. now
Law and Analysis
Denial of D.D.G.'s Application for Sealing in Case No.
12} We will address D.D.G.'s assignments of
error out of order for ease of discussion. In his second
assignment of error, D.D.G. argues that the trial court
abused its discretion by not conducting a balancing test and
referencing RC. 2953.36 and 2901.01.
13} We review the trial court's denial of
D.D.G.'s application to seal his record of conviction for
an abuse of discretion. State v. M.H., 8th Dist.
Cuyahoga No. 105589, 2018-Ohio-582, ¶ 11, citing
State v. Smith, 8th Dist. Cuyahoga No. 91853,
2009-Ohio-2380. An abuse of discretion occurs where the trial
court's decision is arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). However, whether an
applicant is considered an eligible offender is an issue of
law for a reviewing court to decide de novo. State v.
M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715,
¶ 6, citing State v. M.R., 8th Dist. Cuyahoga
No. 94591, 2010-Ohio-6025. Because the trial courts denied
D.D.G.'s applications on the basis that he was an
ineligible offender, we review the trial courts'
decisions de novo.
14} To be "eligible" for sealing, an
offender must qualify under either subsection (a) or (b) of
R.C. 2953.31(A)(1). Subsection (a) states that an
"eligible offender" includes "[a]nyone who has
been convicted of one or more offenses, but not more than
five felonies, in this state or any other jurisdiction, if
all of the offenses in this state are felonies of the fourth
or fifth degree or misdemeanors and none of those offenses
are an offense of violence or a felony sex offense[.]"
Here, D.D.G. is not an eligible offender under R.C.
2953.31(A)(1)(a) because he has a felony of the third degree
for failure to comply with an order or signal of a police
15} Subsection (b) states that an "eligible
[a]nyone who has been convicted of an offense in this state
or any other jurisdiction, to whom division (A)(1)(a) of this
section does not apply, and who has not more than one felony
conviction, not more than two misdemeanor convictions, or not
more than one felony conviction and one misdemeanor
conviction in this state or any other jurisdiction.
16} In other words, an offender is eligible for
sealing under subsection (b) if the offender only has one
felony conviction; one misdemeanor conviction; or one felony
conviction and one misdemeanor conviction. Here, D.D.G. has
four felony convictions and one misdemeanor conviction.
Therefore, he is not an eligible offender under R.C.
17} Despite the fact that he is clearly ineligible
under R.C. 2953.31(A)(1), D.D.G. maintains that the trial
court erred in denying his applications and should have
granted his applications after conducting the balancing test
set forth in the Ohio Supreme Court's decision in
Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303
(1981). In that case, however, the court reviewed
"whether a defendant charged with but not convicted of a
criminal offense has a right to * * * expungement of her
criminal record." Id. at 376. In finding that
the defendant was entitled to expungement based on the
"unusual and exceptional circumstances" of that
case, the court stated:
When exercising these powers, the trial court should use a
balancing test, which weighs the interest of the accused in
his good name and right to be free from unwarranted
punishment against the legitimate need of government to
maintain records. Where there is no compelling state interest
or reason to retain the judicial and police records, such as
where they arise from a domestic ...