[Cite as State v. Miller, 2018-Ohio-3452.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMARQUITTA MILLER 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 18-COA-05 

: 

: 

: OPINION 

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal 

Court, Case No. 15CRB1059 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 27, 2018 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

ANDREW BUSH KENNETH MIRKIN 

Assistant Law Director DAWN SPIGGS 

1213 E. Main Street Community Legal Aid Services, Inc. 

Ashland, OH 44805 50 S. Main Street, 8th Floor 

 Akron, OH 44308 
[Cite as State v. Miller, 2018-Ohio-3452.]

Gwin, P.J. 

{¶1} Appellant M.M. appeals from the January 10, 2017 Judgment Entry of the 

Ashland Municipal Court overruling her application to seal her record of conviction. 

Facts and Procedural History 

{¶2} On October 27, 2015, M.M. appeared in Ashland Municipal Court and pled 

guilty to speeding and possession of marijuana, both minor misdemeanors. 

{¶3} On or about May 5, 2017, M.M. applied to the trial court to seal the record of 

her possession of marijuana conviction pursuant to R.C. 2953.31. On August 28, 2017, 

the trial court conducted a hearing upon M.M.’s application. M.M. appeared with counsel. 

At the conclusion of the hearing, the trial court took the case under advisement. On January 

10, 2018, the trial court issued an order denying M. M.’s application to seal her criminal 

record. The court held that although M. M. was eligible to have her record sealed, the 

state had an interest in maintaining the conviction. 

Assignment of Error 

{¶4} M.M. raises one assignment of error, 

{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING MS. 

MILLER'S APPLICATION TO SEAL HER MINOR MISDEMEANOR CONVICTION.”1

Law and Analysis 

{¶6} In her assignment of error, M.M. contends that the trial court abused its 

discretion in denying her application to seal her record because the trial court failed to 

make any findings with respect to M.M.'s interest in having the records sealed. 

 1 We note Appellant attempts to raise a second assignment of error in her Notice of Filing of Citation 

of Additional Authorities under Ohio App.R. 21(I), filed Aug. 2, 2018. This she may not do. See, State ex 

rel. Colvin v. Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶61; Am. Fiber Sys., Inc. v. 

Levin, 125 Ohio St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, ¶21. 
Ashland County, Case No. 18-COA-05 3 

STANDARD OF APPELLATE REVIEW. 

{¶7} Because expungement is a privilege and not a right, a trial court shall only 

grant expungement to an applicant who meets all the requirements presented in R.C. 

2953.32. State v. Morris, 5th Dist. Licking No. 09–CA–128, 2010–Ohio–2403, ¶ 8, citing 

State v. Simon, 87 Ohio St.3d 531, 533, 2000–Ohio–474, 721 N.E.2d 1041. An appellate 

court reviews a trial court’s decision to grant or deny a motion to seal records pursuant to 

R.C. 2953.52 for an abuse of discretion. State v. Poole, 5th Dist. Perry No. 10–CA–21, 

2011–Ohio–2956, ¶ 11, citing State v. Widder, 146 Ohio App.3d 445, 766 N.E.2d 1018, 

2001–Ohio–1521, ¶ 6 (9th Dist.). 

{¶8} An abuse of discretion exists where the reasons given by the court for its 

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where 

the judgment reaches an end or purpose not justified by reason and the evidence. 

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship 

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54. 

ISSUE FOR APPEAL. 

Whether the trial court abused its discretion by denying M.M.’s application for 

expungement without “weighing” the factors of R.C. 2953.32(C)(1)(e.)

{¶9} In considering an application to seal a record of conviction, a trial court must 

comply with R.C. 2953.32. R.C. 2953.32(C)(1) requires the trial court to do the following: 

 (a) Determine whether the applicant is an eligible offender * * *; 

 (b) Determine whether criminal proceedings are pending against the 

applicant; 
Ashland County, Case No. 18-COA-05 4 

 (c) * * * [D]etermine whether the applicant has been rehabilitated to 

the satisfaction of the court; 

 (d) If the prosecutor has filed an objection * * *, consider the reasons 

against granting the application specified by the prosecutor in the objection; 

[and] 

 (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. 

{¶10} In the case at bar, the parties agree that the trial court found M.M. to be an 

“eligible offender” as defined by R.C. 2953.31(A), the court did not find any pending 

criminal proceedings, and the prosecutor did not file an objection. M.M. argues the trial 

court did not weigh the interest of M.M. in having her record sealed. However, during 

the hearing, the Court noted, 

 And that does not end the Court's inquiry, Ms. Miller, what that 

means essentially that it appears to me that you are eligible for this 

release that you seek. There are two other stages to the process, the 

first one is that I am required to balance your interest in having this record 

sealed against any interest that the State would have in maintaining the 

record, and in order to do that, I am going to have to have some testimony 

from you as to how this has affected your life, and why you feel the need 

to have it sealed. 

Motion to Seal Records, filed Mar 19, 2018 at 4. The Court then heard testimony that 

M.M. is a single mother solely responsible for the welfare of her two minor children. 
Ashland County, Case No. 18-COA-05 5 

The court also heard M.M.’s testimony concerning the negative effects this conviction 

had and continues to have on her ability to obtain and maintain employment, further 

her education, and find safe and stable housing for her family. 

{¶11} In the Judgment Entry denying the application, the trial court found, 

 However, Defendant has not rehabilitated herself to the 

satisfaction of the Court. She shows no genuine remorse for her actions. 

Her attitude towards her own criminal conduct could best be described, 

as unrepentant, defiant and dismissive. Further, the State’s need to 

maintain the record of Defendant's conviction out-weighs Defendant's 

interest in sealing it, in the Court's view. 

Judgment Entry, filed Jan. 10, 2018 at 2. It is well established that the trier of fact is in 

a far better position to observe the witnesses’ demeanor and weigh their credibility. 

See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). The Court specifically 

noted the concerns in the present case, 

 Well, let me tell you what concerns me about this, Ms. Miller, 

obviously, it's a Minor Misdemeanor, and this Court is pretty free in 

sealing those because of the fact it's a Minor Misdemeanor, and you did 

take care of your obligations to the Court, paid your fine long ago. The 

issue that I have with this one, there is really two -- three actually, one, 

any time that we have someone that works in the healthcare field and it's 

a drug conviction, it's a type of ease very often on a Minor Misdemeanor 

usually we are asked to seal disorderly or minor marijuana cases like this. 

Very often I look at that and I think that the State doesn't have any interest 
Ashland County, Case No. 18-COA-05 6 

in maintaining these records, so it's a very low burden in terms of 

outweighing that, but whenever you have a health worker, I don't think 

that is true, I think when you have someone that works in the health field, 

the State does have a significant interest in maintaining records of drug 

convictions, because society has an interest in not having people do 

drugs that work in the health profession because they have access to 

drugs. 

 And that is true with nurses and nurses aids, which apparently you 

are working on, which you are asking me to do if I seal this record, is put 

it beyond the reach of perspective employers, so someone that hires 

home health aides or works in a nursing home would not be able to know 

that you had the drug conviction back in 2015, and that is a serious thing 

for me to do. If that employer looks at that and thinks that is a lady that 

changed her life and doesn't do drugs anymore, and I am going to hire 

her, then God bless them. But if I seal that, they never have that 

opportunity to do that, and that is something that I think that the Court --

there is an interest here in the State. This is a type of case where the 

State has a significant interest because of the type of offense, and 

because what you are planning on doing for a living, so that is my first 

concern. 

 The other two, and I am not saying that I am not going to do this, 

but I want you to know what my thinking is. The other concern that I have 

is when people apply to seal records, they are required to fill out an 
Ashland County, Case No. 18-COA-05 7 

affidavit, and in the affidavit, they are asked to list every arrest, whether 

it resulted in a conviction or not, and you filled out that affidavit, and the 

only thing that you listed was two speeding citations. And one out of this 

Court, and one out of Chagrin Falls. But when we did a background check 

on you, we found an arrest for aggravated assault in the State of Illinois 

which you did not report on your affidavit. 

 Now what concerns me is that you did not report it, and it also 

concerns me that it happened. Now, it was out of the City of Evington 

and we did not have a whole lot of success getting information from them, 

but it's evident to me what we did receive, so this apparently did not result 

in a conviction. I don't know if there was some sort of pretrial diversion or 

what they did with it but the Court in Illinois is listing it as it was an assault 

with bodily harm, originally charged as aggravated assault, and they 

marked it as disposition not mandated to be reported, which is not clear 

to me what that means. 

 But I know it's not a conviction because if it was a conviction, they 

would be mandated to report it. We very often see that in cases where 

there is some sort of pretrial diversion. So I guess those are my concerns, 

the fact that – and this goes back to the date of -- the alleged assault was, 

let's see -- their records are just so different than ours, March 10th, 2006, 

which in looking at your date of birth, I don't think that you would have 

been a juvenile, so those are the concerns that the Court has. 
Ashland County, Case No. 18-COA-05 8 

Motion to Seal Records, filed Mar 19, 2018 at 8 – 11. The Court heard testimony from 

M.M. concerning her reason for not reporting the aggravated assault. The Court finally 

noted it understood “that you have a significant interest in having this sealed and it has 

had an impact on your life.” Id. at 15. 

{¶12} We cannot substitute our judgment for that of the trial court. The record 

reflects that, in ruling on M.M.’s application, the trial court expressly considered and 

carefully weighed M.M.’s interest in securing better employment, providing for her 

children and bettering herself against the state’s interests in keeping the record of his 

convictions open and available to the public. 

{¶13} Mindful of our standard of review, on the record before us, we cannot say 

that the reasons given by the trial court for its action are clearly untenable, legally 

incorrect, or amount to a denial of justice, or that the judgment reaches an end or purpose 

not justified by reason and the evidence. 

{¶14} M.M.’s sole assignment of error is overruled. 
Ashland County, Case No. 18-COA-05 9 

{¶15} The judgment of the Ashland County Municipal Court is affirmed. 

By Gwin, P.J., 

Hoffman, J., and 

Delaney, J., concur