YOUNGSTOWN — Dominic G. Modarelli, 35, whose 2008 criminal case became a campaign issue for Mahoning County Prosecutor Paul Gains in the 2020 general election, has asked Judge R. Scott Krichbaum to seal the records of his conviction.

Modarelli filed a motion in Mahoning County Common Pleas Court without an attorney Jan. 28, asking for his records to be sealed for a 2018 common pleas court misdemeanor conviction for menacing.

John Zamoida Jr., the Struthers law director, is serving as special county assistant prosecutor on the expungement request. He filed a response recently to the request, saying Modarelli is eligible for sealing of his records because he was 19 when the offense occurred, and the menacing appears to be his only conviction.

“To the best of my knowledge, (Modarelli) has not been involved in any other criminal proceedings for the approximately 15 years since the incident. Consequently, he appears to have been rehabilitated,” Zamoida stated. He asked that the record be expunged.

No hearing is set on the motion.

ELECTION ISSUE

Former assistant Mahoning County prosecutor Martin Desmond raised the issue of Modarelli’s case in October 2020, in the weeks prior to the November 2020 election that Gains won over Desmond.

Desmond, whom Gains fired from the prosecutor’s office in 2017, questioned why Gains allowed assistant prosecutor Michael Rich to handle a 2018 hearing in Modarelli’s case, when Modarelli is second cousin to another assistant county prosecutor, Nicholas Modarelli.

The hearing was before Krichbaum after Dominic Modarelli asked to be allowed to withdraw his guilty plea to felonious assault in 2007 in the same case. Desmond argued that Gains “violated his duty to the community” by allowing an assistant prosecutor in his office to handle the case.

When the Dominic Modarelli case originally came before Krichbaum in 2007, Gains asked the court to assign an independent prosecutor because of a potential conflict of interest involving Nicholas Modarelli.

A Youngstown assistant law director presented the case to a Mahoning County grand jury, which indicted Modarelli on felonious assault, a high-level felony.

Dominic Modarelli pleaded guilty to the lesser felony offense of aggravated assault in 2007 and was convicted before Krichbaum, who placed Dominic Modarelli on probation for 2 1/2 years.

In 2015, Dominic Modarelli asked to have his record expunged. A second independent prosecutor — another assistant Youngstown law director — was appointed. The expungement was denied because the case was not eligible for expungement, according to court records.

PLEA RESCINDED

When Dominic Modarelli filed a motion in 2018 asking to withdraw his guilty plea from 2007, Gains allowed Rich to handle the case. Rich told the judge the prosecutor’s office opposed allowing Modarelli to rescind his guilty plea.

Three weeks later, at another hearing, Krichbaum asked Rich whether he believed Rich had any conflict of interest in being assigned the case. Rich said he did not because he knew nothing about it at the time.

Modarelli’s attorney, Mark Hanni, indicated Modarelli wanted to get the offense reduced because Modarelli had been having trouble finding a good job because of his felony conviction.

Hanni also argued that Modarelli deserved to have his plea rescinded because Modarelli had not been notified by his initial attorney that if he pleaded guilty to aggravated assault, his conviction could not be expunged.

JUDGE RULES

During the hearing, Krichbaum noted that the victim had been seriously injured. Rich said the victim’s father now indicated that the victim “wants it to be done with.”

Krichbaum stated that he “believes that this young man (Modarelli) has earned the chance to get up off the ground, so I’m going to grant the motion to withdraw the plea.”

Rich then explained that he and Hanni had worked out a plea agreement in the event that Krichbaum allowed Modarelli to withdraw his plea. Modarelli would plead guilty to menacing, a low-level misdemeanor, Rich said.

The judge then agreed to the plea agreement on the misdemeanor conviction and put Modarelli on probation for one year. He terminated the probation, however, because Modarelli already had been on probation three years.

In late 2020, when Desmond raised the Modarelli issue with the public, he said Gains ignored a conflict of interest when he allowed Rich to handle the case.

“I never expected Judge Krichbaum to grant the vacation of his plea, but I didn’t think there was necessarily that much of a conflict,” Gains said in late 2020 when Desmond raised the issue.

Gains said he was not required to have a special prosecutor handle the case, but he did so in the beginning.

“When we got the case, we brought in a special prosecutor, not because we had to bring in a special prosecutor but because of the appearance of impropriety because it was Nick Modarelli’s second cousin,” Gains said.

When asked whether he should have tried to avoid the appearance of impropriety, Gains said, “Yes, in hindsight, but it’s not an actual ethical violation because we did everything the special prosecutor would have done. We opposed the motion. But it is within the judge’s discretion to grant it. We spoke to the victim or at least the victim’s father, and the victim indicated he didn’t care one way or another. He put it behind him.”