[Cite as State v. Kirkland, 2021-Ohio-870.]

 

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MIAMI COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

MATTHEW KIRKLAND 

Defendant-Appellant 

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Appellate Case No. 2020-CA-9 

Trial Court Case No. 2005-CR-469 

(Appeal from Common Pleas Court) 

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O P I N I O N 

Rendered on the 19th day of March, 2021. 

. . . . . . . . . . . 

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami 

County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 

 Attorney for Plaintiff-Appellee 

 

ANDREW R. PRATT, Atty. Reg. No. 0063764 & KEVIN M. DARNELL, Atty. Reg. No. 

0095952, 18 East Water Street, Troy, Ohio 45373 

 Attorneys for Defendant-Appellant 

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EPLEY, J. 
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{¶ 1} Defendant-Appellant Matthew Kirkland was convicted in 2006 of attempted 

corrupting another with drugs, and he was sentenced to one year in prison. More than a 

decade later, Kirkland filed a motion to seal the record of his conviction, stating that he 

had been rehabilitated and that his interest in having it sealed outweighed the State’s 

interest in maintaining it. After a hearing on the matter, the trial court denied the 

application to seal, prompting Kirkland’s appeal. For the reasons that follow, the trial 

court’s judgment will be affirmed. 

I. Facts and Procedural History 

{¶ 2} In September 2005, Kirkland was indicted on one count of corrupting another 

with drugs, in violation of R.C. 2925.02(A)(3), a felony of the second degree. The charges 

stemmed from an Ecstasy overdose death, in which Kirkland was the supplier. After 

reaching a plea agreement with the State, Kirkland pled no contest to attempted 

corrupting another with drugs, was found guilty, and served his one-year sentence. 

{¶ 3} In February 2019, Kirkland filed an application to seal his record. A hearing 

was held on the request in April 2019, but the trial court ultimately denied the application. 

Represented by new counsel, Kirkland filed a second motion to seal the record in May 

2020. The State did not file a written objection at the time. 

{¶ 4} The matter was set for a hearing on June 22, 2020. At the hearing, the court 

heard testimony from Kirkland, who testified that since his conviction and subsequent 

release from prison, he had led a law-abiding life. Kirkland stated that he had gotten 

married, was raising a family, had completed his undergraduate degree, was gainfully 
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employed, and was only a few credits away from earning his MBA. He further testified 

that he intended to start a non-profit if his record was sealed. 

{¶ 5} The State was also heard at the hearing. The prosecutor conveyed that while 

she appreciated the steps Kirkland had taken to turn his life around, the State opposed 

the motion because the crime and its results were so serious that the government had a 

strong interest in maintaining the record. 

{¶ 6} A few weeks later, the court issued a written decision denying the application 

to seal. Kirkland now raises a single assignment of error. 

II. Application to Seal the Record 

{¶ 7} In Kirkland’s assignment of error, he argues that the trial court abused its 

discretion when it denied his motion to seal the record. 

{¶ 8} R.C. 2953.32 sets forth the requirements for sealing a conviction. The court 

must first determine whether the applicant is eligible and that there are no criminal 

proceedings pending. R.C. 2953.32(C)(1)(a)-(b). Then, the court must determine whether 

the applicant has been satisfactorily rehabilitated. R.C. 2953.32(C)(1)(c). If the prosecutor 

has filed an objection, the court then must consider the reasons against granting the 

application given by the State. R.C. 2953.32(C)(1)(d). Finally, the court weighs the 

interest of the applicant in having the record sealed against the government’s interest in 

maintaining the record. R.C. 2953.32(C)(1)(e). The burden is on the applicant to 

demonstrate that his interest in having the record sealed was “equal to or greater than 

the government’s interest in maintaining those records.” State v. Capone, 2d Dist. 

Montgomery No. 20134, 2004-Ohio-4679, ¶ 5. 
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{¶ 9} If the court finds that sealing the applicant’s record is appropriate, “[t]he 

proceedings in the case that pertain to the conviction * * * shall be considered not to have 

occurred and the conviction * * * shall be sealed.” R.C. 2953.32(C)(2). 

{¶ 10} “The purpose of expungement, or sealing a record of conviction, is to 

recognize that people may be rehabilitated.” State v. Inscho, 2019-Ohio-809, 132 N.E.3d 

1265, ¶ 11 (2d Dist.). It is, however, an “act of grace” created by the State – a privilege 

not a right – and it should only be granted when all eligibility requirements are met. Id. 

{¶ 11} An appellate court reviews a lower court’s decision with respect to 

expunging and sealing the record under an abuse of discretion standard. Id. at ¶ 12. The 

term abuse of discretion means that the trial court’s attitude was unreasonable, arbitrary, 

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). When applying the abuse of discretion standard, an appellate court may not 

substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio 

St.3d 619, 621, 614 N.E.2d 748 (1993). Rather, a reviewing court “must be guided by a 

presumption that the findings of the trial court are correct.” Focke v. Focke, 83 Ohio 

App.3d 552, 555, 615 N.E.2d 327 (2d Dist.1992). 

{¶ 12} In this case, Kirkland makes several specific arguments under the broader 

abuse of discretion umbrella. His first contention is that the trial court should not have 

considered the State’s objections at the hearing because it did not first raise them in 

writing ahead of time. He is mistaken. 

{¶ 13} R.C. 2953.32(B) states that “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.” 

Kirkland reads the statute to mean that if the State does not object ahead of time, it is 
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prohibited from raising an objection at the hearing. The Ohio Supreme Court has held 

otherwise. 

{¶ 14} In State v. Hamilton, 75 Ohio St.3d 636, 665 N.E.2d 669 (1996), David 

Hamilton was convicted of theft, and after waiting the requisite amount of time according 

to the statute, he applied to have the record of his conviction sealed. Id. at 636. Without 

filing an objection to the application prior to the hearing, the prosecutor appeared in court, 

cross-examined Hamilton, and then urged the court to deny the application. Id. The Ohio 

Supreme Court concluded that the purpose of the “written objection” language in R.C. 

2953.32(B) was not to give a defendant advanced notice of a forthcoming argument of 

the State and that “the process due an applicant for expungement does not include 

advanced notice of the specific issues and facts underlying a prosecutor’s objection or 

even notice that the state opposes the sealing of the record.” Id. at 639-640. “[A] 

prosecutor’s participation in a hearing on an application to seal the record of a conviction 

is not limited to issues specified by the prosecutor in a written objection filed pursuant to 

R.C. 2953.32(B).” Id. at 641. See also State v. Stephens, 195 Ohio App.3d 724, 2011-

Ohio-5562, 961 N.E.2d 734, ¶ 24, (2d Dist.) (“written objections by the prosecutor are not 

required”). 

{¶ 15} Here, the prosecutor, at the hearing, stated that she did not receive 

advanced notice of Kirkland’s letter, but based on the crime itself and the death it caused, 

she believed that there was a significant government interest in maintaining the record. 

We deem the State’s oral statement at the hearing to be sufficient. No written notice was 

necessary. 

{¶ 16} Kirkland also claims that the trial court abused its discretion when it weighed 
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several factors against him that he believes should have been weighed in his favor – the 

major one being that the court found the government’s interest in maintaining the record 

outweighed his interest in having it sealed. At the hearing, Kirkland’s attorney argued that 

Kirkland’s marriage and family life were going well, that his professional life was thriving 

(he had just received a promotion), and that he was only two semesters away from 

completing his MBA. But, he claimed that, once Kirkland received his MBA, it would be 

much more difficult to obtain employment in his chosen field or to further his career with 

a felony record. It was also mentioned that Kirkland wanted to start a non-profit but would 

be unable to do so with a felony conviction. 

{¶ 17} The court, though, found that Kirkland’s family, educational, and career 

success demonstrated that he had not been hampered by his criminal record. Further, 

the court noted that the drug and opioid epidemic remained a major problem in Ohio, and 

the focus from the legal system was on the people providing the drugs, like Kirkland. 

Finally, the trial court cited Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 

(1981) for the proposition that “the public interest in retaining records of criminal 

proceedings, and making them available for legitimate purposes, outweighs any privacy 

interest the defendant may assert.” Id. at 377. 

{¶ 18} The burden was on Kirkland to demonstrate that his record should be 

sealed. The trial court did not believe he met that threshold, and there is nothing in the 

record before us that indicates the court abused its discretion. The trial court fashioned a 

reasoned, written decision denying Kirkland’s request, and we will not disturb it. 

{¶ 19} The assignment of error is overruled. 

{¶ 20} The trial court’s judgment will be affirmed. 
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TUCKER, P. J. and HALL, J., concur. 

Copies sent to: 

Janna L. Parker 

Andrew R. Pratt 

Kevin M. Darnell 

Hon. Stacy M. Wall