Barker v. State, 79-436

CourtUnited States State Supreme Court of Ohio
Citation402 N.E.2d 550,62 Ohio St.2d 35,16 O.O.3d 22
Docket NumberNo. 79-436,79-436
Parties, 16 O.O.3d 22 BARKER, Appellee, v. The STATE of Ohio et al., Appellants.
Decision Date02 April 1980

Page 35

62 Ohio St.2d 35
402 N.E.2d 550, 16 O.O.3d 22
BARKER, Appellee,
The STATE of Ohio et al., Appellants.
No. 79-436.
Supreme Court of Ohio.
April 2, 1980.
[402 N.E.2d 551]
Syllabus by the Court

The provisions of R.C. 2953.31 et seq., which refer to the expungement of a record of conviction occurring in "another jurisdiction," require the expungement of only such records as are located within the territorial boundaries of this state.

This cause arises from the dismissal of a complaint for expungement filed on June 19, 1978, by appellee, Albert Darrell Barker, in the Court of Common Pleas of Portage County.

In his complaint, appellee averred that he was convicted on January 20 and April 10, 1956, for armed robbery in two counties in West Virginia. The complaint indicated that the offenses for which he was convicted occurred at the same general location and time span.

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It stated further that on July 20, 1960, appellee was discharged from parole by the West Virginia authorities, whereafter he apparently began his residence in Ohio. 1

Appellee's expungement complaint, filed under the provisions of R.C. 2953.31 et seq., requested " * * * all official

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records pertaining to * * * (his) conviction * * * (be) expunged and sealed and all index references thereto be deleted." On June 23, 1978, appellants herein, the state of Ohio and the Portage County prosecutor, filed a motion to dismiss appellee's complaint, arguing, inter alia, that the Courts of Common Pleas in Ohio were without jurisdiction over the subject matter of the cause, in that such courts do not have "the power to expunge convictions in West Virginia." At a hearing held on appellants' motion, appellee contended that the pertinent statutory provisions empowered the Court of Common Pleas of Portage County to assume jurisdiction, as appellee was a resident of that county. Appellee argued further that such court possessed a "greater interest" in this cause than in any other, and also had "the right to seal the records as they relate to Ohio." The trial court, upon determining that the statutory provisions of R.C. 2953.31 et seq. relating to convictions in another [402 N.E.2d 552] jurisdiction conferred no jurisdiction upon it to order officials in West Virginia to expunge appellee's record of conviction, sustained appellants' motion to dismiss.

Upon appeal, the judgment of the Court of Common Pleas was reversed. The majority in the Court of Appeals reasoned that the provisions of R.C. 2953.31 et seq. authorized the expungement of a record of conviction occurring in a jurisdiction other than in Ohio. Therefore, notwithstanding the inability of Ohio courts to order extraterritorial authorities to physically expunge such records of conviction located without this state, Ohio sentencing courts have jurisdiction to "expunge convictions from other states as they apply to their use in Ohio."

This cause is before the court pursuant to the allowance of a motion to certify the record.

Gray, Luria & Belkin, Alvin L. Gray and Keith E. Belkin, Cleveland, for appellee.

William D. Lentz, Asst. Pros. Atty., for appellants.

HERBERT, Justice.

A threshold question presented by this cause is whether the provisions of R.C. 2953.31 et seq., 2 which

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empower sentencing courts of this state to expunge the record of conviction of first offenders occurring in "another jurisdiction," unconstitutionally deny judicial proceedings of other states full faith and credit within the meaning of the Constitution of the United States.

Section 1 of Article IV of the Constitution of the United States, in relevant part, states that "Full faith and credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." Congress, pursuant to the enabling cause of Section 1 of Article IV, 3 by Act of May 26, 1790, c. 11 (1 Stat. 122, Section 687, Title 28, U.S.Code, revised by Section 1738, Title 28, U.S.Code (1948)), set forth the manner by which this constitutional mandate is to be implemented, providing that judgments " * * * shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken." However, the United States Supreme Court has held that this constitutionally inspired

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command is not an all-embracing one, in that a rigid and inflexible implementation may fail to accommodate important and fundamental interests of sovereign states which are paramount to the unifying principle[402 N.E.2d 553] upon which the Full Faith and Credit Clause was predicated. See Huntington v. Attrill (1892), 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123; Alaska Packers Assn. v. Industrial Accident Comm. (1935), 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044; Milwaukee County v. M. E. White Co. (1935), 296 U.S. 268, 274, 56 S.Ct. 229, 232, 80 L.Ed. 220; Williams v. North Carolina (1942), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Magnolia Petroleum Co. v. Hunt (1943), 320 U.S. 430, 63 S.Ct. 1031, 88 L.Ed. 149; May v. Anderson (1953), 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221; Nevada v. Hall (1979), 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416.

Although relaxation of the strictness of full faith and credit has been rare, an early exception was made respecting sister state judgments which were penal in the "international sense," such as those resulting from state criminal convictions applying the lex loci delictus. See The Antelope (1825), 23 U.S. 66 (10 Wheat.), 122, 123, 6 L.Ed. 268; Wisconsin v. Pelican Ins. Co. (1888), 127 U.S. 265, 8 S.Ct. 1370, 32 L.Ed. 239; Huntington v. Attrill, supra ; Converse v. Hamilton (1912), 224 U.S. 243, 260, 32 S.Ct. 415, 419, 56 L.Ed. 749; Bradford Electric Co. v. Clapper (1932), 286 U.S. 145, 160, 52 S.Ct. 571, 576, 76 L.Ed. 1026; Nelson v. George (1970), 399 U.S. 224, 229, 90 S.Ct. 1963, 1966, 26 L.Ed.2d 578.

In the vintage case of Wisconsin v. Pelican Ins. Co., supra, the court addressed as a corollary matter the breadth of the Full Faith and Credit Clause with respect to the enforcement of the penal judgments of one state by another. Quoting Chief Justice Marshall in The Antelope, supra, the Wisconsin court, 127 U.S. at page 290, 8 S.Ct. at page 1374, reasoned that it is an "incontrovertible maxim" that " * * * (t)he courts of no country execute the penal laws of another." The court, in expounding upon this axiom in relation to the provisions of the Full Faith and Credit Clause, held at pages 290-291, 8 S.Ct. at pages 1374-1375:

"The rule that the courts of no country execute the penal laws of another applies, not only to prosecutions and sentences for crimes and misdemeanors, but to all suits in favor of the State for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue, or other municipal laws, and to all judgments for such penalties. If this were not so, all that would be necessary to give ubiquitous effect to a penal law would be to put the claim for a penalty into the shape of a judgment. Wharton's Conflict of Laws, § 833; Westlake's

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International Law (1st ed.), § 388; Piggott on Foreign Judgments, 209, 210.

" * * * 'The proper place for punishment is where the crime is committed, and no society takes concern in any crime but what is hurtful to itself * * * because no court reckons itself bound to punish, or to concur in punishing, any delict committed extra territorium.' 2 Kames on...

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