State v. A.L.H.

[Cite as State v A.L.H., 

.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 112469
                 v.                               :

A.L.H.,                                           :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 28, 2023


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-18-626978-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Owen Knapp, Assistant Prosecuting
                 Attorney, for appellee.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 Jonathan Sidney, Assistant Public Defender, for
                 appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:

            Appellant A.L.H. (“appellant”) challenges the judgment of the trial

court denying his application to seal his record of conviction. After a thorough

review of the applicable law and facts, we affirm the judgment of the trial court.

                       I. Factual and Procedural History

             Appellant was employed as a corrections officer with the Cuyahoga

County Sheriff’s Office. The facts of this case were not fully set forth at the combined

plea and sentencing hearing; however, we can glean from the record that while

appellant was on duty in December 2017, an inmate was injured by several gang

members. Appellant failed to log the injury of the inmate into the facility logbook.

The court noted at the plea hearing that the allegations against appellant could likely

have yielded a tampering with evidence charge, which would have been a third-

degree felony.

             The court further noted:

      I know it’s a difficult job, but with great power comes great
      responsibility. You had great power. As I understand it — maybe I’m
      wrong — but someone got whooped up on. It’s your job to take care of
      those people, regardless of their lot in life, regardless [of] whether they
      deserved it or not. You know just as well as I do that the folks who wear
      guns and badges and go to work, I’m sure maybe not daily, but maybe
      weekly they come across people who you think in your own personal
      opinion deserve to have the crap beat out of them, and you may not be
      wrong, but your job says you can’t do that.

Plea and sentencing hearing transcript at tr. 15.

             Appellant acknowledged that an inmate was injured but maintained

that he asked the inmate if he wanted medical treatment. The court then reminded
appellant that he covered up the incident and that he had a greater responsibility as

a public servant to not let something like that happen. Tr. 16-17.

             Appellant was charged with dereliction of duty, a misdemeanor of the

second degree, in violation of R.C. 2921.44(C)(5). He pled guilty to the indictment

and was sentenced to six months of community control, along with a three-day jail

sanction, and ordered to pay court costs.

             Appellant’s community control supervision terminated without

incident, and he paid his court costs. After the statutory time period of one year had

elapsed since his final discharge, appellant filed an application for sealing of the

record of conviction pursuant to R.C. 2953.32 and requested a hearing. The state

filed its opposition, and the application was summarily denied by the trial court.

            Appellant filed a second application for sealing of the record of

conviction. The state filed a notice with the trial court in which it indicated that it

had no opposition to the application. The trial court again summarily denied

appellant’s application.

             Appellant appealed the denial of his application to this court in State v.

A.L.H., 8th Dist. Cuyahoga No. 111721, 

. The state conceded that

the trial court had erred by failing to hold a hearing on appellant’s application and

acknowledged that appellant was an eligible offender. Accordingly, we vacated the

trial court’s order denying appellant’s application and remanded the matter to the

trial court with instructions to set a hearing date pursuant to R.C. 2953.32(B).
               On remand, a hearing was scheduled, but was continued after the state

notified the court that it would be opposing appellant’s application. The state filed

its brief in opposition, arguing that public interest compelled the denial of the

sealing of the conviction record.

                The court held a hearing on the application, at which appellant’s

counsel and counsel for the state only presented arguments; no evidence was offered

at the hearing. Following the hearing, the court entered an order denying the

application without explanation.

               Appellant appealed the denial, and prior to the matter being heard by

this court, appellant moved to remand the case to the trial court for the sole purpose

of requiring the trial court to set forth its findings in support of the denial of his

application.

                The trial court then held a hearing, noting the limited remand, and

made the following findings:

      I do find that at that time [A.L.H.] was in a position of public trust and
      that the underlying matter resulted in an abuse of that power of public
      trust which is the basis for his conviction. And so again in utilizing my
      judicial discretion I do find that the legitimate interests of the
      government to maintain those records outweigh the application. So
      once again I will deny the application.

                Appellant then filed the instant appeal, raising two assignments of

error for our review:

      1.   The trial court abused its discretion when it denied
      A.L.H.’s application on the basis that the underlying offense was an
      abuse of power of public trust.
         2. The trial court abused its discretion when it denied appellant’s
         application without first determining whether he had been
         rehabilitated to the satisfaction of the court.

                                 II. Law and Analysis

                For ease of analysis, we will address the assignments of error out of

order.

                Appellant’s second assignment of error argues that the trial court

abused its discretion when it denied appellant’s application without first

determining whether he had been rehabilitated to the satisfaction of the court.

                In reviewing the denial of a petition to seal a record under R.C.

2953.32,1 we apply an abuse-of-discretion standard. Bedford v. Bradberry, 8th

Dist. Cuyahoga No. 100285, 

, citing State v. Hilbert, 

, 

 (8th Dist.2001).

                Only an “eligible offender” may apply to have his or her record of

conviction sealed. R.C. 2953.32(A)(1). Hence, the court to which the application is

made “shall” first “[d]etermine whether the applicant is an eligible offender * * * .”

R.C. 2953.32(C)(1)(a). “If the court finds the applicant is an eligible offender, it must

then employ its discretion in weighing a number of substantive considerations in




         1Although this statute was amended in 2023, appellant filed his application on

April 5, 2022. We therefore apply the prior version of the statute because the statutory
law in effect at the time the application was filed is controlling. State v. Lasalle, 

, 

, 

, paragraph two of the syllabus.
favor or against the sealing of the applicant’s record.” State v. T.D., 8th Dist.

Cuyahoga No. 111307, 

, citing R.C. 2953.32(C).

                There is no dispute in this matter that appellant is an eligible offender.

Thus, under former R.C. 21953.32(C),2 the court was then required to (1) determine

whether criminal proceedings were pending against the applicant; (2) determine

whether the applicant had been rehabilitated to the satisfaction of the court; (3)

consider the reasons presented by the prosecutor against granting the application;

and (4) weigh the interests of the applicant in having the records pertaining to the

applicant’s conviction sealed against the legitimate needs, if any, of the government

to maintain those records.

                The court outlined the above requirements at the hearing on remand

and stated that it did not believe that there were any criminal proceedings pending

against appellant and that the legitimate interests of the government in maintaining

the record of conviction outweighed appellant’s application. The court did not make

any determination as to whether appellant had been rehabilitated to the court’s

satisfaction.

                It is the applicant’s burden to demonstrate legitimate reasons, as

opposed to a general privacy interest, why the records should not remain open to

the public. State v. J.D., 

, 

, ¶ 8 (8th Dist.), citing State

v. Haney, 

, 

 (10th Dist.1991). Appellant’s burden



      2 Renumbered as R.C. 2953.32(D)(1), effective April 4, 2023.
is met by presenting evidence or testimony supporting the application. The trial

court must have evidence or testimony upon which to base its decision to seal the

record. State v. N.C., 9th Dist. Summit No. 29775, 

, citing State

v. A.V., 9th Dist. Lorain No. 18CA011315, 

. “Once this burden

is met and those needs outweigh the legitimate interests of the state in maintaining

the records, the application should be freely granted.” 

 citing State v. Garry, 

, 

, 

 (1st Dist.).

              The Supreme Court of Ohio has held that sealing proceedings are non-

adversarial. State v. Hamilton, 

, 

 (1996). As

such, the Rules of Evidence do not apply. State v. M.R., 8th Dist. Cuyahoga No.

94591, 

, ¶ 14, citing State v. Simon, 

, 

 (2000).

              However, while the Rules of Evidence do not apply, “the trial court

nonetheless must have evidence or testimony upon which to base its sealing

decision.” State v. A.V., 9th Dist. Lorain No. 18CA011315, 

,

citing See In re Thomasson, 10th Dist. Franklin No. 79AP-761, 

, 

, 3 (Jan. 29, 1980).

              While appellant argues in his assignment of error that the trial court

failed to determine whether he was rehabilitated, a review of the record reveals that

appellant did not present any evidence at the hearing upon which the court could

have made such a determination. He did not present an affidavit or any evidence

along with his application nor did he testify at the hearing. Rather, at the hearing
on the application, appellant’s counsel simply outlined his arguments in support of

sealing the record and responded to assertions raised in the state’s opposition brief.

               “Evidence of rehabilitation normally consists of an admission of guilt

and a promise to never commit a similar offense in the future, or good character or

citizenship in the community since the conviction.” State v. Evans, 10th Dist.

Franklin No. 13AP-158, 

, ¶ 11, citing State v. Brooks, 2d Dist.

Montgomery No. 25033, 

; State v. Schuster, 12th Dist.

Clermont No. CA2012-06-042, 

.                 Appellant did not

acknowledge his guilt at the hearing on his application nor did he promise that such

an offense would never happen again. In addition, appellant did not present

evidence of his good character or citizenship in the community.

              Although appellant’s counsel presented compelling reasons for

granting the application, appellant presented no evidence or testimony in the

proceedings before the trial court. It has long been held that statements of counsel

do not constitute evidence. Hersh v. Cuyahoga Cty. Bd. of Revision, 8th Dist.

Cuyahoga No. 109035, 

. See also State v. Shaffer, 11th Dist.

Geauga No. 2009-G-2929, 

 (noting that counsel argued in favor of

the application but that no actual evidence was presented); State v. A.V., 9th Dist.

Lorain No. 18CA011315, 

 (“We recognize that A.V.’s trial

counsel referenced points that would have been relevant to A.V.’s rehabilitation.

However, counsel’s statements are not evidence.”).
               Accordingly, appellant did not satisfy his evidentiary burden to

establish that he was rehabilitated, and the trial court did not abuse its discretion in

denying his application. See State v. Evans, 10th Dist. Franklin No. 13AP-158, 2013-

Ohio-3891 (trial court abused its discretion in granting appellee’s application to seal

the record of her conviction where the record did not include any evidence

concerning appellee’s rehabilitation). Appellant’s second assignment of error is

overruled.

              In his first assignment of error, appellant argues that the trial court

erred in denying his application to seal on the basis that the underlying offense was

an abuse of power in a position of public trust. Appellant asserts that the trial court’s

decision to deny his application was arbitrary and unreasonable because it was

based upon its “unsupported finding” that his conviction constituted an abuse of

power of public trust. He contends that he was convicted of dereliction of duty,

which demonstrates negligence, but not an abuse of power.

               The state opposed appellant’s applications to seal, asserting that the

conduct underlying his conviction was egregious because appellant was in a position

of power and public trust as a corrections officer and used that power to curry favor

to violent gang members. The state argued that there was a substantial public

interest in maintaining the records of appellant’s conviction.          In its brief in

opposition, the state presented the “facts and circumstances” of the offense and

argued that these facts demonstrated that appellant betrayed the trust placed in him

by the community. As such, the state argued that its interest in maintaining the
record was to ensure that appellant would never again be placed in such a position

of public trust.

               The trial court agreed with the state and held that appellant was “in a

position of public trust and that the underlying matter resulted in an abuse of that

power of public trust.” As a result, the trial court determined that the legitimate

interests of the government in maintaining the records of appellant’s convictions

outweighed appellant’s interest in sealing his conviction.

               This court has held that the denial of an application to seal records

cannot be based solely upon the nature of the offense. State v. M.H., 8th Dist.

Cuyahoga No. 105589, 

. “The legislature has already made that

determination in setting forth which offenses are eligible to be sealed and which are

not.” State v. G.H., 1st Dist. Hamilton Nos. C-230013 and C-230014, 2023-Ohio-

3269, ¶ 22, citing M.H. at ¶ 19 (acknowledging that if public interest in knowing who

had committed certain offenses was “paramount” to all other interests, the

legislature would have exempted those offenses from sealing).

              M.H. is similar to the instant matter. In M.H., the defendant was a

part-time police officer at a community college and withheld parking fees that he

collected. He was convicted of theft in office and attempted tampering with records.

M.H. later moved to seal his conviction, which was denied by the trial court. The

denial was based upon the court agreeing with the state’s argument that M.H. was a

police officer who had violated the public trust and the public had a right to know of

his convictions.
              On appeal, this court reversed the trial court’s denial of the application

to seal, finding that the trial court had based its denial solely on the nature of the

offense.

              In State v. T.C.N., 8th Dist. Cuyahoga No. 112428, 

,

the defendant was a police officer who was convicted of three counts of theft from

Walmart. T.C.N. moved to seal her convictions, which the state opposed. The trial

court denied the application. On appeal, T.C.N. argued that the denial of her

application was not supported by the record. The state asserted that it needed to

“‘protect the public from future duplicitous actions from an offender who has borne

the highest level of public trust, enforcing the laws, and violated that trust.’” T.C.N.

at ¶ 13, quoting the state’s brief in T.C.N. at 7. The state maintained that it had a

“legitimate interest in ‘preserving public access to information that will allow the

members of our community to choose for themselves, eyes wide open, about

whether they want to associate with appellant.’” 

 at 

              This court reversed the judgment of the trial court, noting that the

state had made a similar argument regarding public trust that had been overruled

in M.H., and finding that T.C.N.’s interest in having her record sealed outweighed

the state’s interest in maintaining her record of conviction.

               Despite our decisions in M.H. and T.C.N., in the instant matter, the

state has once again made the argument that a defendant who abused a position of

trust should not have his or her record sealed.
               Appellant was convicted of dereliction of duty, a misdemeanor of the

second degree, in violation of R.C. 2921.44(C)(5). The state acknowledges that his

conviction does not fall within any of the exceptions to sealing as set forth in R.C.

2953.36. The indictment states that appellant “unlawfully did while being an officer

having charge of a detention facility negligently fail to observe any lawful and

reasonable regulation for the management of the detention facility.” It is not entirely

clear from the transcript of the plea and sentencing hearing precisely what the facts

underlying the charge were,3 but from statements by the court and defense counsel,

it appears that the conduct for which appellant was indicted, and to which he pled

guilty, was failing to log an inmate’s injury in the facility logbook.

              As stated by the court in M.H., “while we acknowledge that the public

has an interest in knowing when a police officer violates his or her position of trust,

the public’s interest is not paramount to all other interests — otherwise the Ohio

legislature would have exempted [such crimes] from expungement.” M.H. at ¶ 19.

               While M.H. and T.C.N. could have been controlling here, there is one

large difference that requires us to uphold the decision of the trial court. In both

M.H. and T.C.N., this court was able to determine that the defendants had met their

burdens at their respective hearings demonstrating that the applications should

have been granted. Both hearings appeared to involve uncontested testimony

regarding each defendant’s rehabilitation and their interest in sealing the


      3 The facts recited in the state’s opposition to appellant’s application and in its

appellate brief expand far beyond the facts that were presented at the plea and sentencing
proceedings.
application. As outlined in our analysis of the previous assignment of error, we

cannot say the same here.

              Thus, while we find that the trial court should not have based its denial

of the application solely on the nature of the offense, we come to the same conclusion

as with our resolution of the second assignment of error. Based upon the lack of

evidence in the record, there is nothing to support a finding that the trial court

improperly denied the application. See State v. Shaffer, 11th Dist. Geauga No. 2009-

G-2929, 

 (applicant has the burden to present evidence

demonstrating his privacy interest is equal to or outweighs the government’s need

to maintain the record of his conviction). Appellant’s first assignment of error is

overruled.

                                 III. Conclusion

              Appellant failed to submit evidence to support his application to seal

records, and the trial court properly denied it. Both of appellant’s assignments of

error are overruled, and the judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


_________________________________________
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR