[Cite as State v. J.B. , 2024

- Ohio

- 1879.]



### IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

and

CITY OF CINCINNATI,

Plaintiffs

- Appellees,

VS

.

J.B.,

Defendant

- Appellant. :

:

:

:

:

:

:

:

:

: APPEAL NOS. C

- 230499

C

- 230500

C

- 230501

C

- 230502

C

- 230503

C

- 230504

C

- 230505

TRIAL NOS. 12CRB

- 21204

C

- 12CRB

- 29845

14CRB

- 14457

C

- 14CRB

- 14902

C

- 14CRB

- 25518

C

- 15CRB

- 27045

- A and B

C

- 16CRB

- 16349

O P I N I O N.

Criminal Appeal s From: Hamilton County Municipal Court

Judgment s Appealed From Are : Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 17, 2024

Melissa A. Powers , Hamilton County Prosecuting Attorney, and John D. Hill, Jr.

, Assistant Prosecuting Attorney, for Plaintiff

- Appellee State of Ohio,

Emily Smart Woerner , City Solicitor, William T. Horsely , Chief Prosecuting

Attorney, and Julie Myers , Assistant Prosecuting Attorney, for Plaintiff

- Appellee City

of Cincinnati,

Raymond T. Faller , Hamilton County Public Defender, and Sarah E. Nelson

, Assistant Public Defender, for Defendant

- Appellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 B ERGERON

, Presiding Judge.



### {¶1} From 2012 through 2016, defendant

- appellant J.B. entered guilty pleas

to seven misdemeanor charges in Hamilton County . In 2023, she filed pro se

applications to seal the records of these convictions to facilitate professional licensure

and employment opportunities as she completes her Doctor of S ocial W ork (“DSW”)

degree . Although neither the state nor the city objected, the trial court refused to seal

her records, relying on her subsequent misdemeanor convictions in 2018 and 2019

and a state interest that the state never articulated (and that a trial court could utilize

to override an applican t’s need for sealing in virtually every case ). J.B. now appeals,

maintaining that the trial court erred when it denied her applications to seal the

records of her misdemeanor convictions. We agree, and we accordingly sustain J.B.’s

sole assignment of error, reverse the trial court’s judgment s , and remand the matter

to the trial court with instructions to seal the records of J.B.’s seven misdemeanor

convictions at issue in this case

. 1

I.



### {¶2} In 2012, J.B. was charged with theft and accused of shoplifting

merchandise valued at $267 from Meijer and merchandise valued at $224 from

Target

. For each charge, s he entered a guilty plea to an amended charge of

unauthorized use of property, a fourth

- degree misdemeanor. She received community

control sentences for both charges , but because she violated the terms and conditions

of community control, her probation was terminated unsuccessfully.



### {¶3} In 2014, J.B. was twice again charged with theft , was additionally

charged with obstructing official business

, and was accused of lying at a crime scene.

1 We note that J.B. also applied for and was denied r ecord sealing regarding one dismissal

. Although J.B. did not raise that issue on appeal, given our conclusions below, a fortiori the

dismissal should have been sealed

.OHIO FIRST DISTRICT COURT OF APPEALS

3 Regarding the theft charges, she was accused of shoplifting merchandise valued at

$179 from Meijer and of stealing an envelope containing $700 from an individual at a

gas station. Regarding the Meijer theft, she entered a guilty plea to an amended charge

of unauthorized use of property, a fourth

- degree misdemeanor. For the other theft,

she entered a guilty plea to an amended charge of attempted theft, a second

- degree

misdemeanor. And regarding the obstruction charge, she entered a guilty plea to an

amend ed charge of disorderly conduct, a fourth

- degree misdemeanor. In all three

cases, she received community control sentences but subsequently viol ated the terms

and conditions of community control. Thus, her probation was terminated

unsuccessfully, and she was incarcerated.



### {¶4} In 2015, J.B. was charged with obstructing official business and

resisting arrest when she resist ed the efforts of police officers to place her in handcuffs.

She entered a guilty plea to the resisting arrest charge, a second

- degree misdemeanor,

and the obstruction charge was dismissed. The court ordered her to pay a fine and

costs.



### {¶5} In 2016, J.B. was charged with obstructing official business, a second

degree misdemeanor, after she gave police officers a false name during an

investigation to conceal the fact that she had an outstanding warrant for her arrest.

She entered a guilty plea. The court ordered her to pay a fine and costs.



### {¶6} Once in 2018 and once in 2019, J.B. was again charged with and

convicted of misdemeanor theft of an amount less than $1,000 in Kettering and

Warren respectively. The details of these convictions (including the amounts of the

thefts) are not contained in the record

, nor are th ose convictions at issue in this appeal.OHIO FIRST DISTRICT COURT OF APPEALS

4 

### {¶7} In June 2023, seven years after the most recent offense at issue and four

years after her cessation of criminal activity , J.B. filed pro se applications to have the

records of seven misdemeanor cases from 2012 through 2016 (outlined above) and

several traffic matters sealed. In August 2023, the trial court held a hearing on her

applications for sealing. Some of the charge s were prosecuted by the city prosecutor’s

office, while the county prosecutor ’ s office prosecuted others. B oth prosecutors

attended th e hearing

, and neither the state nor the city voiced any object ion to J.B.’s

request. Additionally, the prosecuting witnesses in the cases J.B. sought to have sealed

were contacted prior to the hearing and had an opportunity to object

, but all declined

to appear.



### {¶8} During the hearing, the court asked J.B. why she sought the

applications, what type of work she hoped to pursue , and if she was seeking a

particular job opportunity or “just trying to be proactive.” In response to these

questions, J.B

. — who was not represented by counsel

— shared that she was seeking

record sealing because she was completing her DSW and would need to complete a

background check for her social work license. Further, she noted that “[i]t’s just not

me anymore

, ” essentially explaining that she had turned her life around. And s he

informed the court that she had already sought and was granted a certificate of

qualification for employment (“CQE”) in 2021. She shared that while she is not

currently seeking new employment, she had previously applied for a job with the

“ Justice Center ” that required a background check, and she was not hired for the

position, noting her “background really mattered for the position” and stating, “that’s

what kind of sparked me to get this going.”OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶9} The trial court noted that the traffic matters were not legally eligible for

record sealing. It then indicated that it wished to have additional time to consider the

applications, continuing the matter for entry and decision. Ultimately, the trial court

denied all seven of J.B.’s applications. In pronouncing its decision s , the court first

concluded that she was not rehabilitated

. It stated that “ [n] o evidence of

rehabilitation was offered aside from the applicant’s general statement, ‘ that’s just

not me anymore ’ ” and reference d the number of misdemeanor convictions on her

record

.



### {¶10} Then, the trial court weighed J.B.’s interest in having the records sealed

against the government’s interest:

Although the court appreciates the applicant’s desire to pursue

employment and better her circumstances without disclosing such

records to potential employers, the court cannot find that her interest

outweighs the government interest in protecting the publ ic’s “ need to

know. ” The facts related to this offense involve dishonesty [or concern

a crime against justice and public administration]. The applicant’s

profession involves a position of trust both in terms of the clients she

serves and the employer. The y have a right to know of these proceedings

and address them as they see fit. Ultimately, they are able to choose for

themselves whether or not [J.B.] is worthy of their trust.



### {¶11} J.B. now challenges the denial of her seven misdemeanor record sealing

applications.OHIO FIRST DISTRICT COURT OF APPEALS

6 II.



### {¶12} In her sole assignment of error

, J.B. contends that the trial court abused

its discretion when it denied her applications to seal the records of her misdemeanor

convictions. Specifically, she argues that the trial court based its decision s on the

number of and the nature of her convictions.



### {¶13} This court reviews a trial court’s decision to deny an application for

criminal record sealing for an abuse of discretion. S ee S tate v. A.S.

, 2022

- Ohio

- 3833,

199 N.E.3d 994, ¶ 5 (1st Dist.)

, citing State v. McVean

, 1st Dist. Hamilton Nos. C

210459 and C

- 210460, 2022

- Ohio

- 2753, ¶ 7

. An abuse of discretion occurs when “a

court exercis [es] its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021

-

Ohio

- 3304, 187 N.E.3d 463, ¶ 35

.



### {¶14} Criminal record sealing “ ‘is an act of grace’ created by the state.” A.S.

at ¶ 5, quoting State v. R.S.

, 1st Dist. Hamilton Nos. C

- 210169, C

- 210170, C

- 210171, C

210172 and C

- 210173, 2022

- Ohio

- 1108, ¶ 10. As part of the General Assembly’s effort

to reduce collateral consequences (for example, limitations on housing options,

educational opportunities, and the ability to obtain gainful employment) and enable

ex

- offenders to reintegrate into their communities, “R.C. 2953 .32 provides persons

with qualifying o ffenses who have demonstrated rehabilitation with a second chance,

so that they can avoid these collateral consequences of a criminal record and the

associated obstacles to becoming a thriving and productive member of society.” Id. at

¶ 10, citing R.S. at ¶ 10

.



### {¶15} R.C. 2953.32 “governs a trial court ’ s decision to grant or deny an

application to seal a record of conviction [

. ] ” Id. at ¶ 6. T he Ohio legislature hasOHIO FIRST DISTRICT COURT OF APPEALS

7 continually expanded eligibility for record sealing

, and Ohio courts have responded to

the legislature’s expansion of relief from collateral consequences. See id. at ¶ 7,

quoting State v. Young

, 5th Dist. Morrow No. 2021 CA 0009, 2022

- Ohio

- 593, ¶ 21

(“R.C. 2953.32 is * * * ‘construed liberally to promote [its] purpose and assist the

parties in obtaining justice.’ ”). The most recent sweeping changes to record sealing

and expungement in Ohio took effect in April 2023. See 2022 Am.Sub.S.B. No. 288.

The amendments included enacting new provisions permitting applications for

expungement (where the criminal record is destroyed from all records), shortening

waiting periods, and requiring the court to hold a hearing between 45 and 90 days

after the filing date of an application. See id. A dditionally, trial courts were previously

required to consider the number of convictions to determine if an applicant was

eligible for record sealing. See former R.C. 2953.31(A)(1). But now

, the number of

misdemeanor convictions on an applicant’s record does not render them ineligible for

relief. See R.C. 2953.31; R.C. 2953.32(A)(1)

. J.B. applied to seal her criminal records

in June 2023 ( after the most recent changes had taken effect).



### {¶16} Under R.C. 2953.32(D)(1), the trial court must perform the following

assessment before granting an application for record sealing or expungement :

(a) Determine whether the applicant is pursuing sealing or expunging

a conviction of an offense that is prohibited * * *;

(b) Determine whether criminal proceedings are pending against the

applicant;

(c) Determine whether the applicant has been rehabilitated to the

satisfaction of the court;OHIO FIRST DISTRICT COURT OF APPEALS

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

(C) of this section, consider the reasons against granting the

application specified by the prosecutor in the objection;

(e) If the victim objected, pursuant to the Ohio Constitution, consider

the reasons against granting the application specified by the victim in

the objection;

(f) Weigh the interests of the applicant in having the records

pertaining to the applicant’s conviction or bail forfeiture sealed or

expunged against the legitimate needs, if any, of the government to

maintain those records;

(g) Consider the oral or written statement of any victim, victim’s

representative, and victim’s attorney, if applicable[.]



### {¶17} Here, neither the victim nor the prosecutors objected to the

application s , no victim statements were submitted to the court, and the trial court

did not consider any pending criminal proceedings (because none existed)

. Indeed,

of that entire list, the court found only two factors that pointed away from record

sealing

— rehabilitation and whether the government’s interest in maintaining the

records outweighed J.B.’s interest in sealing her records.



### {¶18} We first address the trial court’s finding of a lack of rehabilitation

. In

its written decision s

, the court explained

, “No evidence of rehabilitation was offered

aside from the applicant’s general statement, ‘that’s just not me anymore.’ ” It then

referenced her subsequent offenses (with the most recent offense having occurred in

2019) and violations of community control following her offenses in 2012 and 2014.OHIO FIRST DISTRICT COURT OF APPEALS

9 

### {¶19} J.B.’s statement

— “that’s just not me anymore”

— demonstrate d her

acknowledge ment that she has changed since the cessation of her criminal activity

.

And contrary to the trial court’s decision s

, she offered evidence of rehabilitation aside

from this statement. S he share d that she works as a licensed parenting counselor and

is currently pursuing her DSW

. J.B. is going into a field with a strong demonstrated

public need

. And through her career, she will help people navigate challenging times.



### {¶20} S he also shared that she previously applied for and was granted a CQE

.

These efforts to obtain and maintain employment in a field that benefits the

community are commendable. CQEs are a form of postconviction relief designed to

assist persons with criminal records in obtain ing employment by “remov [ ing ] the

automatic disqualification from employment or occupational licensure in certain

fields.” In re Sanders

, 1st Dist. Hamilton No. C

- 230428, 2024

- Ohio

- 717, ¶ 8, citing

R.C. 2953.25(D)(1)

. By granting her CQE petition

, a court determined that the petition

would assist her in obtaining employment or licensing, that she had a substantial need

for the relief, and that granting the petition would not pose an unreasonable risk to

public safety. See R.C. 2953.25(C)(3). Her criminal activity ceased two years b efore

she sought her CQE and four years prior to the application for record sealing at issue.



### {¶21} The trial court also pointed to the number of her convictions as

evidence of her lack of rehabilitation. In its denial of her application regarding her

earliest offense, the trial court stated: “The probation department reports that since

this 2012 conviction, the applicant was subsequently charged and convicted of

numerous offenses in Hamilton County * * * as well as Theft in at least two other

jurisdictions in Ohio in 2018 and 2019. ” And in its denial of each applicationOHIO FIRST DISTRICT COURT OF APPEALS

10 regarding a subsequent conviction , it continued to reference every conviction that

followed the one at issue.



### {¶22} But t his court has previously held that “a court cannot deny an

application to seal based solely on the * * * number of offenses, if the records of those

offenses are eligible for sealing under the law.” State v. G.H.

, 1st Dist. Hamilton Nos.

C

- 230013 and C

- 230014, 2023

- Ohio

- 3269, ¶ 22. And the legislature seemingly

indicated its agree ment with our conclusion in G.H. Since G.H.

, the General Assembly

expanded eligibility for record sealing : the number of misdemeanor convictions on an

applicant’s record no longer render s them ineligible for relief. See R.C. 2953.32(A)(1).

J.B. applied to seal her criminal records after the most recent changes had taken effect.

And while the state argues that this court should reconsider our holding in G.H.

, we

abide by the prior decision of this court and acknowledge the Ohio legislature’s intent

to expand record sealing as an avenue for relief. The Ohio legislature has permitted

qualified applicant s to seek record sealing relief for an unlimited number of eligible

misdemeanor offenses, acknowledging that individuals may quickly accumulate

misdemeanors. Thus, the focus of rehabilitation is the applicant’s progress following

the last offense , not simply the number of previous offenses.



### {¶23} The city and the state maintain that pursuant to R.C.

2953.32(D)(1)(h)(iii), the court must consider “the cessation or continuation of

criminal behavior.” But that analysis is limited to cases involving offenses under R.C.

2953.36. See R.C. 2953.32(D)(1)(h). As J.B.’s convictions fall outside the scope of R.C.

2953.36, the R.C. 2953.32(D)(1)(h) analysis was inapplicable. Instead, in considering

J.B.’s rehabilitation status, the court had to “[d]etermine whether the applicant ha [ d ]

been rehabilitated to the satisfaction of the court.” R.C. 2953.32(D)(1)(c). AndOHIO FIRST DISTRICT COURT OF APPEALS

11 regardless, according to the record, J.B. ceased criminal behavior four years before

applying for record sealing. Thus, the court’s finding that J.B. was not sufficiently

rehabilitated was unsupported by the record

.



### {¶24} Turning to the trial court’s second basis for its denial s

, it concluded that

the government’s interest in maintaining the records of J.B.’s convictions outweigh ed

J.B.’s interest in sealing the records. Specifically, the trial court weighed J.B.’s interest

in advancing her career in social work against the government’s interest in

“maintain[ing] public records of criminal proceedings and thereby safeguard[ing] the

public’s ‘right to know.’ ”



### {¶25} “The applicant has the burden ‘of demonstrating that [her] interests in

having the records in the case[s] sealed are at least equal to the legitimate

governmental need to maintain the record.’ ” A.S.

, 2022

- Ohio

- 3833, 199 N.E.3d 994

,

at ¶ 12, quoting State v. Haney

, 70 Ohio App.3d 135, 139, 590 N.E.2d 445 (10th

Dist.1991). During the hearing, J.B. shared that she was previously denied

employment based on her criminal record. When she applied for a job with the

“ Justice Center, ” s he had to complete a backg round check

. She stated that her

“background really matter ed for the position” and that she was ultimately not hired

for the job. She even noted th e experience is what “sparked [her] to get [the record

sealing process] really going.” She also shared that she is in the process of pursuing

her DSW and will have to complete a background check to obtain her license.



### {¶26} Notably, likely in recognition of the legislature’s expansion of record

sealing, neither the state nor the city objected to J.B.’s application for record sealing.

Nor did they advance any state interest in maintaining public access to her records

.

While they defend the trial court’s denial on appeal, by not objecting below, the cityOHIO FIRST DISTRICT COURT OF APPEALS

12 and state failed to give the adversar ial system a chance to function. They did not make

J.B. aware of any basis for an objection, denying her the opportunity to address their

concerns below. Under such circumstances, the trial court typically should not place

great weight on a governmental interest that the government has not bothered to

identify.



### {¶27} And the court’s finding improperly relied on the nature of the offenses,

noting that her offenses either involved dishonesty or were “a crime against justice and

public administration .” B ecause as a social worker, her “profession involves a position

of trust[,]” the court concluded that her clients and employers have a right to know of

the proceedings. This court has “ ‘previously held that the nature of the offense cannot

provide the sole basis to deny an application to seal records’ ” because the legislature

has alread y decided which offenses are eligible for record sealing. G.H.

, 1st Dist.

Hamilton Nos. C

- 230013 and C

- 230014, 2023

- Ohio

- 3269

, at ¶ 22, quoting R.S.

, 1st

Dist. Hamilton Nos. C

- 210169, C

- 210170, C

- 210171, C

- 210172 and C

- 210173, 2022

-

Ohio

- 1108, at ¶ 29

.



### {¶28} While we acknowledge that the public has an interest in knowledge of

criminal records, the Ohio legislature would have exempted the offense s at issue from

eligibility for record sealing if that interest was paramount. See, e.g.

, State v. M.H.

,

8th Dist. Cuyahoga No. 105589, 2018

- Ohio

- 582, ¶ 19. Instead, the Ohio legislature

has not exempted any of the misdemeanor offenses at issue from eligibility for record

sealing

.



### {¶29} Although the court concluded that the government’s interest in

maintaining the records outweighed J.B.’s interest in having the records sealed, the

record points in the other direction. J.B. has a strong interest in sealing the records ofOHIO FIRST DISTRICT COURT OF APPEALS

13 her convictions. Since her convictions, she has applied for and been granted a CQE.

She is pursuing her DSW and the applicable state licensure to further her career in

social work, and her license is jeopardized by the required background check. She has

not had any further contact with the criminal justice system since 2019, four years

before she applied for record sealing, and all of her convictions were for

misdemeanors. The state and city both declined to offer any interest in response and

did not op pose the sealing of the record s

.



### {¶30} On this record, the trial court failed to invoke a sufficient government

interest to support its decision s to deny J.B.’s applications to seal her records. And as

explained above, the court’s finding that J.B. was not sufficiently rehabilitated was

unsupported by the record

. Therefore, the trial court’s denial of her applications

constituted an abuse of discretion.

* * *



### {¶31} In light of the record and the foregoing analysis, we sustain J.B.’s sole

assignment of error, reverse the trial court’s judgment s , and remand the matter to

the trial court with instructions to seal the records of J.B.’s seven misdemeanor

convictions at issue in this case.

Judgment s reversed and cause remanded

.

C ROUSE and K

INSLEY

, J J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.