Harris v. Certificate of Qualification of Emp. Petition

[Cite as Harris v. Certificate of Qualification of Emp. Petition, 2019-Ohio-3658.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

LASONYA J. HARRIS, :

Plaintiff-Appellant, :

No. 107828

v. :

CERTIFICATE OF QUALIFICATION :

OF EMPLOYMENT PETITION,

:

Defendant-Appellee.

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: September 12, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-18-901369

Appearances:

The Legal Aid Society of Cleveland, Arcola A. Whatley, and

Julie C. Cortes, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Katherine E. Mullin, Assistant Prosecuting

Attorney, for appellee.

MARY J. BOYLE, J.:

Plaintiff-appellant, Lasonya J. Harris, appeals from the trial court’s

decision denying her petition for a certificate of qualification for employment

(“CQE”). She raises one assignment of error for our review:

It was an abuse of discretion for the trial court to deny appellant’s

petition for a certificate of qualification for employment in the absence

of any analysis pursuant to R.C. 2953.25(C)(3).

Finding merit to her assignment of error, we reverse and remand.

I. Procedural History and Factual Background

On July 27, 2018, Harris filed a petition for a CQE. In the petition,

Harris stated the following as to why she was requesting the CQE:

In order to return to work, my employer stated I needed to show

something that my criminal records had been sealed. Unfortunately,

I’m not eligible to seal my record. I have been working as a home health

aide for 8 years and I would like to return to this profession in which I

have training, certification and experience, but my criminal record is

creating a barrier.

In her appellate brief, Harris explains that she was not eligible to seal

her criminal record based on the version of R.C. 2953.31 effective at the time of her

petition. Under that version, “eligible offender” was defined as an individual who

was convicted of “not more than two misdemeanor convictions, or not more than

one felony conviction and one misdemeanor conviction in this state or any other

jurisdiction.” Harris said that she did not qualify as an “eligible offender” because

she had three misdemeanor convictions, leaving the CQE as her “only redress to

return to work under her employer’s conditions.”

Harris said that she was put on leave by her employer after working

for a full year due to her criminal record, but that her employer informed her that

she could return to work once she “had taken care of” her criminal record. She stated

that her criminal record was “hinder[ing] [her] from using [her] experience and

certification to take care of [her] children and family[,]” prohibiting her from

pursuing her dream of becoming a state-tested nursing assistant, and putting “a

substantial financial strain on [her] ability to provide” for her children and

household. She stated that she was not a danger to the public or other individuals.

She indicated that she planned to use the CQE to obtain an occupational license from

the Ohio Board of Nursing to work as a state-tested nursing assistant.

Harris’s petition reflected that she was convicted of two counts of

child endangering (first-degree misdemeanor) in 2007, making false alarms (first-

degree misdemeanor) in 2010, and menacing by stalking (fourth-degree

misdemeanor) in 2016.

In July 2018, the trial court ordered the probation department to

complete a CQE investigation. The investigation showed that Harris was also

convicted of disorderly conduct (minor misdemeanor) in 2003, making false alarms

(first-degree misdemeanor) in 2004, menacing (fourth-degree misdemeanor) in

2012, disorderly conduct (minor misdemeanor) in 2014, and telecommunications

harassment (first-degree misdemeanor) in 2016. Additionally, the investigation

showed that Harris reported that she worked for various home-care companies from

2009 to 2018.

The report also stated that Harris owed $262.70 for her convictions

for menacing and telecommunications harassment in Cuyahoga County (Cuyahoga

C.P. No. CR-16-611225), although the trial court’s docket states that Harris currently

owes only $187.10.1

In September 2018, the trial court issued a judgment entry stating,

“[c]ertification of qualification of employment for the petitioner is denied.” The trial

court also waived costs for the application fee based on Harris’s poverty affidavit.

It is from this judgment that Harris now appeals.

II. Law and Analysis

In her sole assignment of error, Harris argues that the trial court

abused its discretion when it denied her petition for a CQE because it failed to

provide any analysis pursuant to R.C. 2953.25(C)(3).

“Concerned with the rising number of people with criminal histories

who would be barred from holding state-licensed employment,” the General

Assembly passed R.C. 2953.25 in 2012 under Am.Sub.S.B. 337, which created the

CQE meant to “address the impact that collateral [sanctions] had on the ability of

persons with criminal records to obtain employment.” In re Bailey, 8th Dist.

Cuyahoga No. 101108, 2015-Ohio-413, ¶ 6. A CQE “immunizes an employer in any

proceeding on a claim against the employer for negligent hiring ‘as to the claim if

the employer knew of the certificate at the time of the alleged negligence.’” Id. at

1At oral argument, Harris and the state said that neither party was given an

opportunity to review the report.

¶ 15, citing R.C. 2953.25(G)(2). However, “R.C. 2953.25 does not guarantee

licensure, much less a job — it simply removes the disqualification from applying.

Assuming that a court issues a CQE, the decision to hire or issue an occupational

license to someone with a conviction is left to the applicable licensing and/or hiring

authority.” Bailey at ¶ 41 (Stewart, J., dissenting).

R.C. 2953.25 defines “collateral sanction” as

a penalty, disability, or disadvantage that is related to employment or

occupational licensing, however denominated, as a result of the

individual’s conviction of or plea of guilty to an offense and that

applies by operation of law in this state whether or not the penalty,

disability, or disadvantage is included in the sentence or judgment

imposed.

R.C. 2953.25(A)(1).

Under R.C. 2953.25(B), two classes of individuals may petition a

court of common pleas for a CQE. To file a petition, an individual must be subject

to one or more collateral sanctions as a result of being convicted of or pleading

guilty to an offense and

(1) either has served a term in a state correctional institution for

any offense or has spent time in a department-funded program

for any offense; or

(2) is not in a category described in division (B)(1) of this section.

Individuals who seek a petition under (B)(1) must file a petition with

the “designee of the deputy director of the division of parole and community

services[,]” whereas individuals seeking a petition under (B)(2) may file a petition

within Ohio by filing it with the court of common pleas in the county in which the

individual resides. R.C. 2953.25(B)(2)(a).

An individual may file a petition under (B)(1) or (2) for a felony

offense at any time after one year has passed from release of incarceration and any

period of postrelease control or one year after the individual’s final release from all

community control sanctions or for a misdemeanor offense at any time after six

months have passed from release of incarceration and any period of postrelease

control or six months after the individual’s final release from all community

control sanctions. R.C. 2953.25(A)(4).

Upon receiving an individual’s petition for a CQE under (B)(2), the

court of common pleas must “notify the prosecuting attorney of the county in

which the individual resides that the individual has filed the petition” and must

also “notify all other courts in [the] state that it determines under this division were

courts in which the individual was convicted of or pleaded guilty to an offense other

than the offense from which the individual is seeking relief that the individual has

filed the petition[.]” R.C. 2953.25(B)(5)(b).2

The court must then “review the individual’s petition, the individual’s

criminal history, [and] all filings submitted by the prosecutor or by the victim in

accordance with rules adopted by the division of parole and community services,

* * * and all other relevant evidence.” R.C. 2953.25(C)(1). The court may also

2During oral argument, the state said that it was not notified that Harris filed a

CQE petition until after Harris filed a notice of appeal.

“order any report, investigation, or disclosure by the individual that the court

believes is necessary for the court to reach a decision on whether to approve the

individual’s petition for a [CQE].” Id. “[T]he court has the discretion to decide when

it has enough information to rule on the petition, and it may decide that it needs no

additional information beyond that contained in the petition and filings submitted

by the prosecuting attorney and the victim, if any.” Bailey, 8th Dist. Cuyahoga No.

101108, 2015-Ohio-413, at ¶ 18. A trial court may, but is not required to, hold a

hearing. Id. at ¶ 18-19.

Under R.C. 2953.25(C)(3), the issuance of a CQE is at the court’s

discretion as long as the court “finds that the individual has established all of the

following by a preponderance of the evidence:

(a) Granting the petition will materially assist the individual in

obtaining employment or occupational licensing.

(b) The individual has a substantial need for the relief requested in

order to live a law-abiding life.

(c) Granting the petition would not pose an unreasonable risk to

the safety of the public or any individual.”

“[A] petitioner’s criminal history is more often than not going to be at the heart of

a trial court’s decision to grant or deny a petition. The type of conviction, the

amount of time served[, if any,] and the length of time since the petitioner’s last

conviction are all factors that a trial court may consider when reviewing the

probation department’s investigation.” Bailey at ¶ 29.

The court may not deny an individual’s petition based on the

submission of an incomplete petition. R.C. 2953.25(C)(4).

If the court of common pleas denies an individual’s petition under

R.C. 2953.25(B)(2), the individual may appeal the decision to the court of appeals

“only if the individual alleges that the denial was an abuse of discretion[.]” R.C.

2953.25(C)(6).

Harris filed a petition on July 27, 2018. The petition shows that she

was convicted of three misdemeanors. The investigative report, however, showed

that Harris was also convicted of two minor misdemeanors, one fourth-degree

misdemeanor, and two first-degree misdemeanors. This meant that Harris could

file the petition six months after the expiration of a period of incarceration and

postrelease control or after the expiration of her community control sanctions. She

filed her petition pursuant to R.C. 2953.25(B)(2), and therefore is limited to

appealing the trial court’s denial of her petition on the basis that the court abused

its discretion. Harris argues that the trial court abused its discretion by failing to

provide any reasoning in denying her petition under R.C. 2953.25(C)(3).

An abuse of discretion occurs when a trial court fails to “‘exercise

sound, reasonable, and legal decision-making.’” Bailey, 8th Dist. Cuyahoga No.

101108, 2015-Ohio-413, at ¶ 24, quoting State v. Beechler, 2d Dist. Clark No. 09-

CA-54, 2010-Ohio-1900. An abuse of discretion means that the trial court’s

decision was “unreasonable, arbitrary, or unconscionable[.]” State ex rel. Doe v.

Smith, 123 Ohio St.3d 44, 2009-Ohio-4149, 914 N.E.2d 159, ¶ 15.

Harris acknowledges that R.C. 2953.25 “does not specifically state

that the trial court is required ‘to make delineated findings of fact or conclusions

of law[.]’” As the state points out, the statute requires the trial court to make

certain findings before granting a petition for a CQE, but does not require the same

in denying one.

The Tenth District has looked at this exact issue before in In re

Betsacon, 10th Dist. Franklin No. 18AP-515, 2018-Ohio-5367. In that case, the

appellant challenged the trial court’s entry denying his petition, arguing that the

entry was a “bare bone response” and that it failed to “provide subsequent

reviewers any idea as to how or why the decision was made, making it difficult to

review for appeal.” Id. at ¶ 6. The Tenth District disagreed, stating:

Appellant points us to no authority, statutory or otherwise, that

supports his argument that the trial court was required to explain its

reasons for denying the petition for CQE or provide a more detailed

analysis of its determination to deny the petition. The text of R.C.

2953.25 does not include such a requirement.

Id. at ¶ 8. The court also noted that the appellant failed to request a hearing,

leaving the court without a transcript that may “have provided some additional

insight into the trial court’s analysis.” Id. at ¶ 9. The court further stated that the

trial court’s entry outlined the elements for granting a petition, and found that the

appellant did not “suffer a collateral sanction as required by the statute[,]” and

considered the “additional elements, one by one, finding [the appellant] did not

establish the elements by a preponderance of the evidence.” Id.

While the Tenth District is correct that R.C. 2953.25 does not

explicitly require a trial court to explain its reasons for denying a petition for a

CQE, we find that a trial court must include its reasoning to allow for the necessary

review on appeal.

Harris’s petition is similar to a petition for expungement under R.C.

2953.32. We have previously held that a trial court must place its findings on the

record when denying or granting an application for expungement to allow

appellate review of the court’s discretion even though R.C. 2953.32, the

expungement statute, like R.C. 2953.25 in this case, does not explicitly require a

trial court to explain its reasons.

For example, in State v. M.D., 8th Dist. Cuyahoga No. 92534, 2009-

Ohio-5694, we reviewed the trial court’s judgment summarily denying the

appellant’s application to seal his record of conviction under R.C. 2953.32. We

noted that our court, “as well as other appellate courts, have reversed a trial court’s

decision to deny an application pursuant to R.C. 2953.32 when it fails to place its

findings on the record for review.” Id. at ¶ 19. We stated:

We further find guidance in the Ohio Supreme Court’s reasoning

requiring trial courts to issue findings on the record when granting or

denying a motion for a new trial for the express purpose of appellate

review: “[W]ithout some articulated basis for granting a new trial, the

trial court’s decision is virtually insulated from meaningful appellate

review. As previously stated, an appellate tribunal will not reverse the

trial court’s ruling absent an abuse of discretion. However, when the

trial court offers no reasons for its decision, the court of appeals

practically must defer to the trial court’s conclusion that the verdict

was against the weight of the evidence.” Antal v. Olde Worlde

Products, Inc. (1984), 9 Ohio St.3d 144, 146, 9 Ohio B. 392, 459 N.E.2d

223.

Id. at ¶ 20. Based on that, we found that because the trial court

offered no reasons for its denial of [the appellant’s] application, we

cannot simply defer to the trial court’s discretion in this matter —

especially in light of the overwhelming information presented in

M.D.’s application and at the hearing, establishing that he is not only

remorseful, but also that he is a highly productive member of society,

a valued friend, father, son, and husband, and a man of high moral

character.

Id. at ¶ 21.

We reached the same conclusion in State v. B.H., 8th Dist. Cuyahoga

No. 106380, 2018-Ohio-2649, in which the trial court summarily denied the

appellant’s application for expungement under R.C. 2953.32. In reversing the trial

court’s decision, we stated,

[T]he trial court summarily denied B.H.’s application; it did not state

its findings on the record, either at the hearing or in its journal entry.

Accordingly, we cannot discern from the record what discretion the

trial court exercised. Did it determine that B.H. was not an eligible

offender in light of her prior sealed convictions? Or did the trial court

exercise its discretion to not consider the prior sealed convictions and

conclude she was an eligible offender, but did not qualify for

expungement under the other factors listed in R.C 2953.32(C)(1)?

Without any findings or conclusions, it is impossible to tell. We

cannot, however, simply defer to the trial court’s discretion.

Id. at ¶ 15.

While M.D. and B.H. concerned applications for expungement

under R.C. 2953.32, we find their analyses apply in the instant case. Like those

cases involving applications for expungement, we review a trial court’s decision

denying a petition for a CQE under an abuse 0f discretion standard. While the

state is correct that R.C. 2953.25 does not require the trial court to set forth its

reasoning in denying a petition, the expungement statute also does not explicitly

require such findings. Yet, we have found that those findings are essential for us

to review for an abuse of discretion even in the absence of a statutory requirement.

Without those findings, we are unable to uphold our appellate duty

(reviewing for an abuse of discretion). We find that we are unable to discern what

discretion the trial court exercised without having its reasoning in the record,

including whether the trial court denied the petition because it was incomplete.

Such a basis, however, would be an abuse of discretion because R.C. 2953.25

clearly prohibits a denial on such a basis. R.C. 2953.25(C)(4). Alternatively, the

trial court could have denied Harris’s petition because it found that she did not

suffer a “collateral sanction.” R.C. 2953.25(B)(2). Or it could have denied the

petition because it concluded that the petition would not materially assist Harris

in obtaining employment; or that Harris does not have a substantial need for the

relief requested in order to live a law-abiding life; or because granting the petition

posed an unreasonable risk of safety to the public or another individual. R.C.

2953.25(C)(3). Put simply, we are left to speculate why the trial court exercised its

discretion in the way it did and are unable to review whether such an exercise was

an abuse of that discretion.

Therefore, we hold that a trial court must set forth its findings when

denying a petition for a CQE, and we reverse and remand. To be clear, we are

reversing and remanding this case based on the lack of findings set forth by the

trial court. The trial court is still free to grant or deny Harris’s petition within the

confines of R.C. 2953.25.

Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said 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.

MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR