[Cite as State v. Brown,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96615

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KEYATTA M. BROWN DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-350757

BEFORE: Celebrezze, P.J., Sweeney, J., and Keough, J.

RELEASED AND JOURNALIZED: November 3, 2011 ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: Diane Smilanick Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., P.J.:

{¶ 1} Defendant-appellant, Keyatta Brown, appeals the judgment of the trial court

denying her application for relief from disability, pursuant to R.C. 2923.14. After careful

review of the record and relevant case law, we affirm the judgment of the trial court.

{¶ 2} On May 21, 1997, appellant was indicted by the Cuyahoga County Grand

Jury in Case No. CR-350757 on one count of kidnapping, in violation of R.C. 2905.01.

On October 15, 1997, appellant pled guilty to an amended count of attempted

kidnapping, in violation of R.C. 2923.02 and 2905.01. Appellant was sentenced on

December 11, 1997 to one year in prison. {¶ 3} On January 23, 1998, appellant was convicted in Case No. CR-357309 of

one count of receiving stolen property, in violation of R.C. 2913.51, and one count of

theft, in violation of R.C. 2913.02. On the same day, appellant was sentenced to a prison

term of six months on both counts, to run concurrently with each other and concurrently

with the sentence in Case No. CR-350757.

{¶ 4} On June 9, 2009, appellant filed an application for relief from weapons

disability. The state filed a brief in opposition on August 12, 2009, and the trial court

denied appellant’s application on October 7, 2009 without a hearing. On November 6,

2009, appellant filed a notice of appeal with this court. In State v. Brown, Cuyahoga

App. No. 94213,

, this court reversed and remanded the case to the trial

court to hold a hearing on appellant’s application. The trial court held a hearing on

appellant’s application on March 2, 2011 and, at the conclusion of the hearing, denied

appellant’s application for relief from weapons disability.

{¶ 5} Appellant appeals the judgement of the trial court, raising one assignment

of error.

Law and Analysis

{¶ 6} In her sole assignment of error, appellant argues that she was denied due

process of law when the trial court abused its discretion by denying her application for

relief from weapons disability. We disagree. {¶ 7} R.C. 2923.14 permits a trial court to relieve an offender from his or her

disability and enable him or her to receive a permit for a weapon, so long as the statutory

requirements are complied with. R.C. 2923.14(D), reads:

{¶ 8} “(D) Upon hearing, the court may grant the applicant relief pursuant to this

section, if all of the following apply:

{¶ 9} “(1) The applicant has been fully discharged from imprisonment,

community control, post-release control, and parole, or, if the applicant is under

indictment, has been released on bail or recognizance.

{¶ 10} “(2) The applicant has led a law-abiding life since discharge or release, and

appears likely to continue to do so.

{¶ 11} “(3) The applicant is not otherwise prohibited by law from acquiring,

having, or using firearms.” (Emphasis added.)

{¶ 12} In this matter, appellant’s counsel argued at the March 2, 2011 hearing that

appellant’s current circumstances warranted relief from weapons disability. Specifically,

appellant’s counsel stated that her original convictions dated back to 1997 and that she

had received an early release from prison by the Cuyahoga County Probation Department.

Additionally, appellant’s counsel indicated that appellant owns her own real estate

business and requires a weapon to protect herself when she works in known high crime

areas.

{¶ 13} In response to the statements made by appellant’s counsel, the prosecutor

stated: {¶ 14} “The State is opposing because there is [sic] two convictions here, and the

one, the attempted kidnapping, is a crime of violence; and upon the facts of this case the

State’s concerned about letting Ms. Brown carry a weapon considering her past criminal

history.”

{¶ 15} At the conclusion of the hearing, appellant addressed the court and stated

that she regretted her prior actions and accepted responsibility for her criminal history.

She noted that her convictions occurred over 14 years ago and that she had not been in

any other trouble with the law since the convictions. Thereafter, she stated that she

wanted to excel in her profession, but often felt unsafe going in and out of abandoned

buildings and needed a weapon for her own protection.

{¶ 16} In denying appellant’s application, the trial court indicated that it

appreciated her rehabilitation, but could not grant the motion. The trial court explained,

“You have two convictions. You’re not the exceptional case that would fit the

circumstances. You are doing well. We do not need another gun on the street by

someone who has been to prison, who has two convictions. Handle yourself. If you are

in danger, then go in groups when you go to the homes. Take cautious plans to protect

your safety. But I rarely see a gun do much in a positive sense.”

{¶ 17} A court of appeals reviews a trial court’s decision either granting or denying

an application for relief from disability under an abuse of discretion standard. See In re

Application for Relief from Disability of Pikaart (1997),

,

. A court abuses its discretion when it acts unreasonably, arbitrarily, or unconscionably. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn.,

,

,

.

{¶ 18} The rule in Ohio regarding the proper construction of the word “may” when

used in a statute was set forth by the Ohio Supreme Court in paragraph one of the syllabus

in Dorrian v. Scioto Conservancy Dist. (1971),

,

:

{¶ 19} “In statutory construction, the word ‘may’ shall be construed as permissive

and the word ‘shall’ shall be construed as mandatory unless there appears a clear and

unequivocal legislative intent that they receive a construction other than their ordinary

usage.”

{¶ 20} It is therefore presumed that the word “may” is a permissive term, and the

General Assembly’s intent in using the term in the statute is to grant trial court’s the

ability to exercise discretion. However, such a presumption may be rebutted by a

showing of a clear and unequivocal legislative intent that the word should be given a

meaning other than that which is ordinarily given. See Ohio Civ. Serv. Emp. Assn. v.

Univ. of Cincinnati (1982),

,

.

{¶ 21} In the present case, appellant has failed to present this court with clear and

unequivocal evidence that the General Assembly’s intent in using the word “may” in R.C.

2923.14(D) was to impose a mandatory duty upon the trial court to grant the requested

relief if the three requirements set forth in the statute have been met. Therefore, R.C.

2923.14 merely permits, but not does require, a trial court to grant an application for relief from disability where a defendant has presented evidence outlined in R.C.

2923.14(D)(1)-(3).

{¶ 22} Upon review of the record, appellant has failed to demonstrate that the trial

court abused its discretion in denying her application. While this court may have granted

her application, we should not substitute our opinion for that of the trial court when such

a decision is left within its sound discretion. Although the trial court acknowledged that

appellant had led a law-abiding life since her conviction in 1997, and it appeared likely

that she would continue to do so, it found that, on the basis of the nature and extent of her

prior criminal activity, she was not a fit subject for relief under R.C. 2923.14. As the

trial court concluded, on the basis of her prior criminal activity, that she was not

statutorily entitled to the relief requested, this court should not reverse that judgment as an

abuse of discretion.

{¶ 23} Accordingly, appellant’s sole assignment of error is overruled.

Judgment 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 D. CELEBREZZE, JR., PRESIDING JUDGE

JAMES J. SWEENEY, J., and KATHLEEN ANN KEOUGH, J., CONCUR