State ex rel. Gains v. Rossi

Decision Date29 September 1999
Docket NumberNo. 99-597.,99-597.
Citation86 Ohio St.3d 620,716 NE 2d 204
PartiesTHE STATE EX REL. GAINS, PROSECUTING ATTORNEY, APPELLANT, v. ROSSI, APPELLEE.
CourtOhio Supreme Court

Paul J. Gains, Mahoning County Prosecuting Attorney, pro se. James R. Lanzo and James E. Lanzo, for appellee.

Per Curiam.

Gains asserts that the court of appeals erred in denying the writ of quo warranto. In order to be entitled to the requested writ of quo warranto, Gains had to establish that Rossi should be ousted from his office of village councilman because he had usurped, intruded into, or unlawfully held or exercised the office. R.C. 2733.01(A) and 2733.14; State ex rel. Watkins v. Fiorenzo (1994), 71 Ohio St.3d 259, 643 N.E.2d 521.

The version of R.C. 2961.01 in effect when Rossi took office provided:

"A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. When any such person is granted probation, parole, or a conditional probation, he is competent to be an elector during the period of probation or parole or until the conditions of his pardon have been performed or have transpired, and thereafter following his final discharge. The full pardon of a convict restores the rights and privileges so forfeited under this section, but a pardon shall not release a convict from the costs of his conviction in this state, unless so specified." (Emphasis added.) 134 Ohio Laws, Part II, 1866, 2004.1

The court of appeals determined that Rossi's expungement of his federal conviction under the provisions of R.C. 2953.32 and 2953.33 restored the right to hold office that R.C. 2961.01 had taken away from him.

Under R.C. 2953.32(C), in an expungement proceeding:

"If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender or the subject of a bail forfeiture, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant's conviction or bail forfeiture sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is a first offender applying pursuant to division (A)(1) of this section has been attained to the satisfaction of the court, the court, except as provided in division (G) of this section, shall order all official records pertaining to the case sealed and, except as provided in division (F) of this section, all index references to the case deleted and, in the case of bail forfeitures, shall dismiss the charges in the case. The proceedings in the case shall be considered not to have occurred and the conviction or bail forfeiture of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction or bail forfeiture may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31 to 2953.33 of the Revised Code." (Emphasis added.)

The R.C. 2953.32(C)(2) order to seal the record of a person's conviction "restores the person who is the subject of the order to all rights and privileges not otherwise restored by termination of sentence or probation or by final release on parole." (Emphasis added.) R.C. 2953.33(A).

Under the applicable rule of statutory construction, all statutes relating to the same general subject matter must be read in pari materia. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 29, 697 N.E.2d 610, 615. Further, in interpreting related and co-existing statutes, we must harmonize and accord full application to each of these statutes unless they are irreconcilable and in hopeless conflict. State v. Patterson (1998), 81 Ohio St.3d 524, 526, 692 N.E.2d 593, 595. In addition, the remedial expungement provisions of R.C. 2953.32 and 2953.33 must be liberally construed to promote their purposes. R.C. 1.11; Barker v. State (1980), 62 Ohio St.2d 35, 42, 16 O.O.3d 22, 26, 402 N.E.2d 550, 555.

In construing these provisions in accordance with the foregoing guidelines, it is evident that expungement of a felony conviction under R.C. 2953.32 and 2953.33 restores a person's competency to hold an office of honor, trust, or profit.

In other words, R.C. 2961.01 does not expressly provide that the reversal, annulment, or pardon mentioned in that statute are the sole methods for a convicted felon to restore that person's competency to hold an office of honor, trust, or profit. And R.C. 2953.33(A) provides that an expungement order restores "all rights and privileges not otherwise restored by termination of sentence or probation or by final release on parole." Unlike R.C. 2921.02(F), which was at issue in State v. Bissantz (1988), 40 Ohio St.3d 112, 532 N.E.2d 126, and provides that a person convicted of bribery is "forever disqualified from holding any public office, employment, or position of trust in this state," the more general provisions in R.C. 2961.01 contain no similar, specific, and permanent disqualification.

Therefore, in construing R.C. 2961.01, 2953.32, and 2953.33 in pari materia and liberally construing the expungement provisions in R.C. 2953.32 and 2953.33, the statutes are capable of being harmonized so that the expungement provisions of R.C. 2953.32 and 2953.33 provide certain convicted felons with an additional avenue to restore rights and privileges they forfeited under R.C. 2961.01.2 The fact that the phrase "or pardon" is not included in R.C. 2953.33(A) does not alter this conclusion because the plain language of R.C. 2953.33(A) supports its application to convicted felons who have received an order sealing the record of their conviction. A...

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