State v. Davenport

• Decision Date: 25 November 1996
• Docket Number: No. CA96-03-020,CA96-03-020
• Citation: 686 N.E.2d 531,116 Ohio App.3d 6
• Parties: The STATE of Ohio, Appellee, v. DAVENPORT, Appellant. *
• Court: Ohio Court of Appeals

Page 6

116 Ohio App.3d 6

686 N.E.2d 531

The STATE of Ohio, Appellee, v. DAVENPORT, Appellant. ^*

No. CA96-03-020.

Court of Appeals of Ohio,

Twelfth District, Warren County.

Decided Nov. 25, 1996.

Timothy A. Oliver, Warren County Prosecuting Attorney, and Kenneth A. Ewing, Assistant Prosecuting Attorney, Lebanon, for appellee.

Allen & Crossley and Mitchell W. Allen, Lebanon, for appellant.

POWELL, Judge.

On March 30, 1992, defendant-appellant, Jefferley A. Davenport, was indicted on four counts of gross sexual imposition in violation of R.C. 2907.05(A)(4). Appellant subsequently accepted a plea bargain under which he agreed to enter guilty pleas to four counts of sexual imposition in violation of R.C. 2907.06(A)(4). The trial court sentenced appellant to two hundred forty days in jail and fined appellant $500. The trial court suspended the jail sentence and placed appellant on probation for a period of two years.

On December 21, 1995, appellant filed a petition to expunge the record of his convictions pursuant to R.C. 2953.32, which provides, in part, as follows:

"(A)(1) Except as provided in section 2953.61 of the Revised Code, a first offender may apply to the sentencing court * * * for the sealing of the record of his conviction, at the expiration of three years after his final discharge if convicted of a felony, or at the expiration of one year after his final discharge if convicted of a misdemeanor.

" * * *

"(B) Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons he believes justify a denial of the application. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant.

"(C)(1) The court shall do each of the following:

"(a) Determine whether the applicant is a first offender * * *;

"(b) Determine whether criminal proceedings are pending against the applicant;

"(c) If the applicant is a first offender who applies pursuant to division (A)(1) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;

"(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;

"(e) Weigh the interests of the applicant in having the records pertaining to his conviction sealed against the legitimate needs, if any, of the government to maintain those records.

" * * *

"(2) If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender * * *, that no criminal proceeding is pending against him, and that the interests of the applicant in having the records pertaining to his conviction * * * sealed are not outweighed by any legitimate governmental needs to maintain such 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 * * * shall order all official records pertaining to the case sealed * * *."

The trial court held that R.C. 2953.36 precluded appellant from obtaining an expungement under R.C. 2953.32. R.C. 2953.36 took effect on December 9, 1994 and provides that "[s]ections 2953.31 to 2953.35 of the Revised Code do not apply to * * * convictions under section * * * 2907.06 [sexual imposition] * * *." The trial court denied appellant's petition for expungement in an order dated February 1, 1996. Appellant now appeals, setting forth the following assignments of error:

"Assignment of Error No. 1:

"The trial court committed plain error in ruling that R.C. 2953.36, as amended in 1994, could be applied to the appellant's petition to seal his record without violating due process under both the federal and the state Constitutions.

"Assignment of Error No. 2:

"The trial court committed plain error in ruling that R.C. 2953.36, as amended in 1994, does not constitute cruel and unusual punishment in violation of both the state and the federal Constitutions.

"Assignment of Error No. 3:

"The trial court committed plain error in ruling that R.C. 2953.36, as amended in 1994, does not violate the Equal Protection Clause of both the state and federal Constitutions as applied to him.

"Assignment of Error No. 4:

"The trial court erred in deciding that the amendment of R.C. 2953.36 was not unconstitutionally retroactive, under Section 28, Article II of the Ohio Constitution, as applied to the appellant's petition to have the record of his conviction [sic] sealed."

In his first assignment of error, appellant contends that R.C. 2953.36 violates his right to due process of law under the Ohio and United States Constitutions because it renders him ineligible for expungement under R.C. 2953.32. Appellant relies on the United States Supreme Court's decision in Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427.

The defendant in Santobello was arrested and charged with several gambling offenses. Id. at 258, 92 S.Ct. at 497, 30 L.Ed.2d at 430- 431. The defendant subsequently agreed to enter a guilty plea to a reduced charge in exchange for a promise by the prosecutor that he would make no sentencing recommendation to the trial judge. Id. The prosecutor later recommended to the trial judge that the defendant receive the maximum penalty and the defendant was sentenced accordingly. Id. at 259, 92 S.Ct. at 497, 30 L.Ed.2d at 431.

On appeal, the Supreme Court vacated the defendant's guilty plea. Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433-434. The court held that due process requires the state to honor any promise or representation it may make to induce a guilty plea by the defendant. Id. at 262, 92 S.Ct. at 499, 30 L.Ed.2d at 432-433. The court reasoned that "the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id.

Appellant urges us to extend the rationale of Santobello to the facts of this case. Appellant argues that he accepted the plea bargain offered by the state in 1992 with the expectation that he would be able to petition for the expungement of his convictions one year after completing his probation and that R.C. 2953.36 violates his right to due process because it renders him ineligible for expungement and thereby deprives him of the "benefit he bargained for" during the plea negotiations. We are not persuaded.

The record indicates that neither the prosecutor nor any other representative of the state ever promised appellant that he would be able to expunge his convictions at some later date if he accepted the plea bargain in this case. The mere fact that appellant chose to accept the state's plea bargain based upon some unilateral hope that he might be able to expunge his convictions in the future does not render expungement a fundamental right protected by due process or in any way restrict the General Assembly's authority to limit the offenders eligible for expungement under R.C. 2953.32. Accordingly, we find that R.C. 2953.36 does not violate appellant's right to due process of law under the Ohio and United States Constitutions. Appellant's first assignment of error is overruled.

In his second assignment of error, appellant contends that R.C. 2953.36 violates the Eighth Amendment prohibition on cruel and unusual punishment. The Eighth Amendment prohibits the states from enacting statutes which impose punishments that are either cruel and unusual by their very nature or grossly disproportionate to the severity of the crime committed. Solem v. Helm (1983), 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637, 645. R.C. 2953.36 does not impose any sentence of imprisonment, fine, or other criminal sanction, but instead merely limits the class of offenders who may seek an expungement after having served their sentence. Therefore, we find that appellant's Eighth Amendment claim is without merit because R.C. 2953.36 does not impose any form of punishment. Appellant's second assignment of error is overruled.

In his third assignment of error, appellant contends that R.C. 2953.36 violates the Equal Protection Clauses of the Ohio and United States Constitutions as the statute is applied to him. Appellant argues that R.C. 2953.36 treats him more harshly than other similarly situated sex offenders because he was trained as a teacher and will be unable to earn his teaching certificate unless he first obtains an expungement.

Equal protection under the law requires that no person or class of persons be denied the protection afforded by the law to other persons or classes in like circumstances. Huntington Natl. Bank v. Limbach (1994), 71 Ohio St.3d 261, 262, 643 N.E.2d 523, 523-524. However, the Equal Protection Clause does not prevent all classifications. Toledo v. Wacenske (1994), 95 Ohio App.3d 282, 287, 642 N.E.2d 407, 410-411. It simply forbids laws which treat persons differently who are alike in all relevant respects. Id.

The first step in our equal protection analysis is to determine the appropriate standard of review. Statutes which discriminate based upon a "suspect classification" or which deprive a certain class of individuals of a fundamental right are subject to...