[Cite as State v A.L.H., 2023-Ohio-4789.]

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 thirddegree 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, 2022-Ohio-4016. 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, 2014-Ohio-2058, ¶ 5, citing State v. Hilbert, 145 Ohio 

App.3d 824, 827, 764 N.E.2d 1064 (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, 96 Ohio 

St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph two of the syllabus.
favor or against the sealing of the applicant’s record.” State v. T.D., 8th Dist. 

Cuyahoga No. 111307, 2022-Ohio-3741, ¶ 7, 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., 2013-Ohio-4706, 1 N.E.3d 434, ¶ 8 (8th Dist.), citing State 

v. Haney, 70 Ohio App.3d 135, 590 N.E.2d 445 (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, 2022-Ohio-781, ¶ 11, citing State 

v. A.V., 9th Dist. Lorain No. 18CA011315, 2019-Ohio-1037, at ¶ 9. “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.” Id., citing State v. Garry, 173 

Ohio App.3d 168, 2007-Ohio-4878, 877 N.E.2d 755 (1st Dist.).

The Supreme Court of Ohio has held that sealing proceedings are nonadversarial. State v. Hamilton, 75 Ohio St.3d 636, 640, 665 N.E.2d 669 (1996). As 

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

94591, 2010-Ohio-6025, ¶ 14, citing State v. Simon, 87 Ohio St.3d 531, 533, 721 

N.E.2d 1041 (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, 2019-Ohio-1037, ¶ 9, 

citing See In re Thomasson, 10th Dist. Franklin No. 79AP-761, 1980 Ohio App. 

LEXIS 12289, 1980 WL 353245, 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, 2013-Ohio-3891, ¶ 11, citing State v. Brooks, 2d Dist. 

Montgomery No. 25033, 2012-Ohio-3278, ¶ 21; State v. Schuster, 12th Dist. 

Clermont No. CA2012-06-042, 2013-Ohio-452, ¶ 22. 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, 2020-Ohio-3596, ¶ 15. See also State v. Shaffer, 11th Dist. 

Geauga No. 2009-G-2929, 2010-Ohio-6565 (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, 2019-Ohio-1037, ¶ 11 (“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, 2018-Ohio-582, ¶ 16. “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-Ohio3269, ¶ 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, 2023-Ohio-3156, 

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.’” Id. at id. 

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, 2010-Ohio-6565 (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