State v. Boykin

• Decision Date: 22 October 2013
• Docket Number: Nos. 2012–0808,2012–1216.,s. 2012–0808
• Citation: 4 N.E.3d 980,138 Ohio St.3d 97
• Parties: The STATE of Ohio, Appellee, v. BOYKIN, Appellant. The City of Akron, Appellee, v. Boykin, Appellant.
• Court: Ohio Supreme Court

138 Ohio St.3d 97

4 N.E.3d 980

The STATE of Ohio, Appellee,

v.BOYKIN, Appellant.

The City of Akron, Appellee,

v.Boykin, Appellant.

Nos. 2012–0808, 2012–1216.

Supreme Court of Ohio.

Submitted April 10, 2013.

Decided Oct. 22, 2013.

Syllabus of the Court

A gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee state of Ohio.

Cheri B. Cunningham, Akron Director of Law, Michael J. Defibaugh, Assistant Director of Law, and Gertrude Wilms, City of Akron Chief Prosecuting Attorney, for appellee city of Akron.

Joann Sahl, for appellant.

Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecuting Attorney Ron O'Brien.

Jane P. Perry, urging reversal for amici curiae Advocates for Basic Legal Equality, Coalition on Homelessness and Housing in Ohio, Community Legal Aid Services, Disability Rights Ohio, Legal Aid Society of Southwest Ohio, Legal Aid of Western Ohio, Inc., Legal Aid Society of Cleveland, Legal Aid Society of Columbus, Office of the Ohio Public Defender, Ohio Justice and Policy Center, Ohio Poverty Law Center, and Southeast Ohio Legal Services.

LANZINGER, J.

{¶ 1} The issue in this appeal is whether a gubernatorial pardon automatically entitles the recipient to have the record of the pardoned conviction sealed. We hold that the sealing of a record is not an entitlement that flows from a pardon.

I. Case Background

{¶ 2} Appellant, Montoya Boykin, was convicted six times between 1987 and 2007 for different offenses. In January 2007, she filed an application for executive clemency with the Ohio Adult Parole Authority, requesting a pardon for four of those convictions. Former Ohio Governor Ted Strickland granted the pardon. At issue in this case is Boykin's attempt to seal the records of three of the pardoned convictions. A chronology of events follows.

{¶ 3} In 1987, Boykin pled guilty to first-degree-misdemeanor theft in Akron Municipal Court. Boykin was convicted of another theft offense in 1991 in Akron Municipal Court. She pled guilty in 1991 to a theft offense in Cuyahoga County Common Pleas Court. In 1992, Boykin pled guilty in Summit County Common Pleas Court to receiving stolen property (“RSP”), a felony of the fourth degree. Boykin was convicted of a fourth theft offense near the end of 1996 in Akron Municipal Court following a plea of no contest.

{¶ 4} In 1996, Boykin filed her first motion to seal the record of her RSP conviction. The Summit County Common Pleas Court determined that she was not eligible to have the record of that offense sealed and denied the motion. She filed a second request to seal the record of that conviction in August 2000, which was also denied. In its ruling, the trial court specified that the denial was because she was not a first-time offender.

{¶ 5} In January 2007, Boykin filed an application for executive clemency, requesting a pardon for the 1991 theft conviction in Cuyahoga County, the 1991 and 1996 theft convictions in Akron Municipal Court, and the 1992 RSP conviction in Summit County. Prior to the parole board's hearing on her application, she purportedly informed the board that she had been convicted in March 2007 of disorderly conduct. The record is unclear regarding the details of that conviction. The parole board voted unanimously to recommend clemency. Former Governor Strickland issued a warrant of pardon for Boykin on the three counts of theft and one count of RSP in November 2009.

{¶ 6} In June 2010, Boykin filed a third motion to seal her criminal record of the RSP conviction in Summit County Common Pleas Court. She filed similar applications in Akron Municipal Court for the three theft convictions that had been entered in that court. In each of the motions, she argued that she is entitled to have her records sealed due to the governor's pardon.

{¶ 7} In December 2010, the Summit County Common Pleas Court denied Boykin's motion, stating:

The Defendant's prior criminal history is lengthy. However, for reasons unknown to this Court, convictions dating * * * through 1996 were pardoned by Governor Strickland. Therefore, the Defendant is technically eligible for sealing. However, in light of the Defendant's prior propensity for theft, the Court finds that the interests of the State in maintaining this conviction outweigh the interest of the Defendant in having her case sealed.

{¶ 8} The Akron Municipal Court also denied Boykin's applications to seal her records of conviction in that court. After noting that Boykin had withdrawn her request to have the record of the 1987 conviction sealed because that case was not included in the pardon, the municipal court found that “absent statutory clarification, a pardon does not automatically entitle a petitioner to a sealing of the conviction because the pardon does not have the effect of erasing the conviction itself.” The municipal court then employed the balancing test set forth in Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981), and determined that “the equities do not weigh in favor of the Defendant.”

{¶ 9} Boykin appealed the decisions to the Ninth District Court of Appeals. In affirming the lower courts' judgments after consolidating the appeals, the court of appeals concluded:

A pardon under Article III, Section 11, of the Ohio Constitution does not automatically entitle the recipient of the pardon to have the record of conviction sealed. A trial court may exercise its authority to order judicial expungement but, as the Ohio Supreme Court concluded in Pepper Pike, this authority should not be exercised as a matter of course, but “where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter[.]” Pepper Pike, 66 Ohio St.2d 374, 421 N.E.2d 1303 at paragraph two of the syllabus. In this case, Boykin's motions to seal her record relied exclusively on her position that she was entitled to relief by virtue of the pardon, and the record on appeal does not contain evidence beyond that argument.

State v. Boykin, 9th Dist. Summit Nos. 25752 and 25845, 2012-Ohio-1381, 2012 WL 1072305, ¶ 15.

{¶ 10} The Ninth District granted Boykin's motion to certify a conflict, holding that its judgment conflicted with the judgment of the First District in State v. Cope, 111 Ohio App.3d 309, 676 N.E.2d 141 (1st Dist.1996). We recognized that a conflict exists and also accepted Boykin's discretionary appeal. 132 Ohio St.3d 1512, 2012-Ohio-4021, 974 N.E.2d 111. The sole issue before this court is whether a pardon automatically entitles the recipient to have his or her record of conviction of the pardoned offense sealed.

II. Legal Analysis

A. Sealing of Records

{¶ 11} The sealing of a criminal record, also known as expungement, see State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 11, is an “act of grace created by the state.” State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). It should be granted only when all requirements for eligibility are met, because it is a “privilege, not a right.” State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

{¶ 12} The procedure for obtaining an expungement of a record of a criminal conviction was first enacted by the General Assembly in 1973. Am.Sub.S.B. No. 5, 135 Ohio Laws, Part I, 70. The current version of that legislation, which is substantially similar to the original enactment, provides that an eligible offender can have a record of conviction sealed if a trial court determines that there is no criminal proceeding against the applicant, the expungement of the record of conviction is consistent with the public interest, and the applicant's rehabilitation has been attained to the satisfaction of the court. R.C. 2953.32(C)(2); see alsoR.C. 2953.32(C)(1). An eligible offender is defined as

anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.

R.C. 2953.31(A).

{¶ 13} We have previously addressed whether a defendant charged with but not convicted of a criminal offense could have that criminal record sealed. Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303. The appellant in Pepper Pike had been charged with assault. The criminal complaint against her was dismissed with prejudice before trial, and given the facts of the case, it was clear that the appellant's former husband and his current wife were using the courts to harass the appellant. Id. at 377, 421 N.E.2d 1303. The appellant then filed a motion for expungement of her arrest record. But because she was not a first-time offender under R.C. 2953.32 in that she had never been convicted of a crime, id. at 376, 421 N.E.2d 1303, fn. 4, the municipal court denied the motion, concluding that it had no jurisdiction over the expungement request, id. at 375, 421 N.E.2d 1303.

{¶ 14} We reversed, holding that “trial courts in Ohio have jurisdiction to order expungement and sealing of records in a criminal case where the charges are dismissed with prejudice prior to trial by the party initiating the proceedings.” Id. at paragraph one of the syllabus. We stated that the basis for this expungement is found in the constitutional right to privacy, but noted that there is not an absolute right to expungement as a matter of course even for those individuals who were not convicted. Id. at 376–377, 421 N.E.2d 1303. Instead, trial courts must balance the interest of the applicant “in his good name and right to be free from unwarranted punishment against the legitimate need of...