[Cite as State v. Porter, 2014-Ohio-4068.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant, : 

 No. 14AP-158 

v. : (C.P.C. No. 13EP-854) 

Nancy Porter, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on September 18, 2014 

 

Ron O'Brien, Prosecuting Attorney, and Barbara A. 

Farnbacher, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

O'GRADY, J. 

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from the judgment of the 

Franklin County Court of Common Pleas sealing the record of two felony convictions 

entered against defendant-appellee, Nancy Porter.1 For the reasons that follow, we 

reverse the judgment and remand the case to the trial court. 

I. FACTS AND PROCEDURAL BACKGROUND 

{¶ 2} On October 28, 2013, appellee filed an application, pursuant to R.C. 

2953.32, asking that the trial court seal the record of her convictions for two counts of 

forgery, felonies of the fifth degree, in criminal case No. 07CR-1534. Appellee was 

convicted of the offenses in July 2007. The memorandum in support of the application 

noted simply that appellee was an eligible offender as defined in R.C. 2953.31, that more 

 

1 Nancy Porter did not file an appellate brief. 
No. 14AP-158 2 

than three years had lapsed since her convictions, and that appellee otherwise satisfied 

the requirements of R.C. 2953.32 for granting of the application. 

{¶ 3} The state filed an objection to the application. The state acknowledged 

appellee was an eligible offender; however, the state asserted the government had 

legitimate interests in maintaining appellee's record, which outweighed appellee's 

interests in having the record sealed. Specifically, the state argued appellee had, during a 

two-month time period, forged the name of her employer, an elderly person, to two 

checks in order to obtain the proceeds of those checks. The state argued the government 

had an interest in maintaining appellee's record given the seriousness of her conduct and 

the government's interest in maintaining records on crimes of dishonesty. The state 

noted appellee's "boilerplate" application failed to explain her interests in having the 

record sealed. (R. 21, 3.) 

{¶ 4} The trial court held a hearing on the application on January 24, 2014. 

Appellee did not appear for the hearing. Subsequently, the trial court issued an entry 

sealing the record of appellee's convictions under R.C. 2953.32. 

II. ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION IN 

GRANTING AN APPLICATION TO SEAL A FELONY 

CONVICTION WHERE THE DEFENDANT FAILED TO 

DEMONSTRATE ANY PARTICULAR NEED. 

III. DISCUSSION 

{¶ 5} Under its sole assignment of error, the state contends the trial court abused 

its discretion in granting the application to seal appellee's record because appellee failed 

to demonstrate her interests in having the record sealed was equal to or greater than the 

government's interests in maintaining the record. 

{¶ 6} "An appellate court generally reviews a trial court's disposition of an 

application for an order sealing the record of conviction under an abuse of discretion 

standard." State v. Evans, 10th Dist. No. 13AP-939, 2014-Ohio-2081, ¶ 9, citing State v. 

Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4. The phrase abuse of discretion 

connotes an attitude on the part of the trial court that is unreasonable, arbitrary or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 
No. 14AP-158 3 

{¶ 7} "The sealing of a criminal record, also known as expungement, * * * is an 

'act of grace created by the state.' " State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 

¶ 11, quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996), citing State v. Pariag, 137 

Ohio St.3d 81, 2013-Ohio-4010, ¶ 11. "It should be granted only when all requirements for 

eligibility are met, because it is a 'privilege, not a right.' " Id., quoting State v. Futrall, 123 

Ohio St.3d 498, 2009-Ohio-5590, ¶ 6. 

{¶ 8} R.C. 2953.32(A)(1) permits an eligible offender to apply for the sealing of a 

conviction record. If convicted of a felony, the application may be made at the expiration 

of three years after the offender's final discharge. R.C. 2953.32(A)(1). Upon the filing of 

an application, the trial court must, among other things, set a date for a hearing on the 

application and notify the prosecutor for the case of the hearing. R.C. 2953.32(B). "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. The prosecutor shall specify in the objection 

the reasons for believing a denial of the application is justified." R.C. 2953.32(B). 

{¶ 9} The court must also do each of the following: 

(a) Determine whether the applicant is an eligible offender or 

whether the forfeiture of bail was agreed to by the applicant 

and the prosecutor in the case. If the applicant applies as an 

eligible offender pursuant to division (A)(1) of this section and 

has two or three convictions that result from the same 

indictment, information, or complaint, from the same plea of 

guilty, or from the same official proceeding, and result from 

related criminal acts that were committed within a threemonth period but do not result from the same act or from 

offenses committed at the same time, in making its 

determination under this division, the court initially shall 

determine whether it is not in the public interest for the two 

or three convictions to be counted as one conviction. If the 

court determines that it is not in the public interest for the two 

or three convictions to be counted as one conviction, the court 

shall determine that the applicant is not an eligible offender; if 

the court does not make that determination, the court shall 

determine that the offender is an eligible offender. 

(b) Determine whether criminal proceedings are pending 

against the applicant; 
No. 14AP-158 4 

(c) If the applicant is an eligible offender who applies 

pursuant to division (A)(1) of this section, determine whether 

the applicant has been rehabilitated to the satisfaction of the 

court; 

(d) If the prosecutor has filed an objection in accordance with 

division (B) of this section, consider the reasons against 

granting the application specified by the prosecutor in the 

objection; 

(e) 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. 

(Emphasis added.) R.C. 2953.32(C)(1). 

{¶ 10} In addition, R.C. 2953.32(C)(2) provides: 

If the court determines, after complying with division (C)(1) of 

this section, that the applicant is an eligible offender or the 

subject of a bail forfeiture, that no criminal proceeding is 

pending against the applicant, and that the interests of the 

applicant in having the records pertaining to the applicant's 

conviction or bail forfeiture sealed are not outweighed by 

any legitimate governmental needs to maintain those 

records, and that the rehabilitation of an applicant who is an 

eligible offender applying pursuant to division (A)(1) of this 

section has been attained to the satisfaction of the court, the 

court, except as provided in divisions (G) and (H) of this 

section, shall order all official records pertaining to the case 

sealed and, except as provided in division (F) of this section, 

all index references to the case deleted and, in the case of bail 

forfeitures, shall dismiss the charges in the case. The 

proceedings in the case shall be considered not to have 

occurred and the conviction or bail forfeiture of the person 

who is the subject of the proceedings shall be sealed, except 

that upon conviction of a subsequent offense, the sealed 

record of prior conviction or bail forfeiture may be considered 

by the court in determining the sentence or other appropriate 

disposition, including the relief provided for in sections 

2953.31 to 2953.33 of the Revised Code. 

(Emphasis added.) 

{¶ 11} The focus of the state's appeal is on the balancing-of-interests requirement. 

The burden is on the applicant to demonstrate her interests in having the record sealed 
No. 14AP-158 5 

are equal to or greater than the government's interests in maintaining those records. 

Evans at ¶ 8, citing Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 13 

(indicating applicant has the burden of proof with regard to the balancing test in R.C. 

2953.32); State v. Wilson, 10th Dist. No. 13AP-684, 2014-Ohio-1807, ¶ 15 (placing burden 

on applicant under R.C. 2953.52, which is analogous to R.C. 2953.32, to demonstrate her 

interests in having record sealed are equal to or greater than the government's interests in 

maintaining the record)2; State v. Wilson, 10th Dist. No. 06AP-1060, 2007-Ohio-1811, 

¶ 8, quoting State v. Reed, 10th Dist. No. 05AP-335, 2005-Ohio-6251, ¶ 13 (stating in 

context of R.C. 2953.32 application that " '[t]here is no burden upon the state other than 

to object to an application for expungement where appropriate.' "). 

{¶ 12} The trial court's entry sealing the record of appellee's convictions states that 

the sealing of the record is "consistent with the public interest." (R. 9.) This statement 

would seem to indicate the trial court balanced appellee's personal interests against the 

government's interests. See Wilson, 2014-Ohio-1807, at ¶ 16 (finding a similar statement 

a trial court made in granting an R.C. 2953.52 application suggested the trial court 

weighed the interests of the applicant and government). 

{¶ 13} However, in the application to seal records, the only statement appellee 

made that could arguably implicate R.C. 2953.32(C)(1)(e) was that she "otherwise satisfies 

the requirements of R.C. 2953.32 for granting this application." (R. 1.) Merely reciting 

the statutory requirements is insufficient to satisfy an applicant's burden to establish her 

interests in having her record sealed. See Wilson, 2014-Ohio-1807, at ¶ 17, citing In re 

Application for Sealing of Record of Brown, 10th Dist. No. 07AP-715, 2008-Ohio-4105, 

¶ 13 (similarly stating with regard to an application under R.C. 2953.52). Because 

appellee did not appear at the hearing on her application or otherwise present any 

evidence to demonstrate her interests in having the record of her convictions sealed, there 

is no evidence to establish appellee's interests. Accordingly, appellee failed to meet her 

burden. See Reed at ¶ 14, citing State v. Suel, 10th Dist. No. 02AP-1158, 2003-Ohio-3299, 

 

2 R.C. 2953.52 addresses the sealing of records after a not guilty finding, dismissal of a complaint, 

indictment or information, or entry of a no bill by a grand jury. R.C. 2953.52(A). In considering an 

application under R.C. 2953.52, similarly to R.C. 2953.32, the trial court must "[w]eigh the interests of the 

person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the 

government to maintain those records." R.C. 2953.52(B)(2)(d). We have previously stated R.C. 2953.52 and 

2953.32 are analogous. State v. Evans, 10th Dist. No. 13AP-158, 2013-Ohio-3891, ¶ 11. 
No. 14AP-158 6 

¶ 12-14 (stating "[t]here must be sufficient information in the record to support the trial 

court's decision to grant an application for expungement"); Wilson, 2014-Ohio-1807, at 

¶ 17 (finding applicant failed to meet burden under R.C. 2953.52 where applicant merely 

cited the statutory requirements in his application and did not appear at the hearing or 

otherwise present evidence regarding his interests in having record of no bill sealed). 

{¶ 14} As the trial court was obligated to balance appellee's interests in having the 

record sealed against the government's interests in maintaining the record, and appellee 

did not put forth any evidence to establish her interests, the trial court abused its 

discretion in granting appellee's application to seal her record of convictions. See Wilson, 

2014-Ohio-1807, at ¶ 18 (similarly finding with regard to R.C. 2953.52 application). 

Accordingly, we sustain the state's sole assignment of error, reverse the trial court's 

judgment, and remand this cause to the Franklin County Court of Common Pleas for 

proceedings in accordance with law and consistent with this decision. 

Judgment reversed and cause remanded. 

CONNOR and DORRIAN, JJ., concur.