State v. Radcliff, 11AP–652.

CourtUnited States Court of Appeals (Ohio)
Citation978 N.E.2d 1275
Docket NumberNo. 11AP–652.,11AP–652.
PartiesSTATE of Ohio, Plaintiff–Appellant, v. James A. RADCLIFF, Defendant–Appellee.
Decision Date11 October 2012

OPINION TEXT STARTS HERE

Ron O'Brien, Prosecuting Attorney, and Seth Gilbert, for appellant.

Yeura R. Venters, Public Defender, and John W. Keeling, Columbus, for amicus curiae, Franklin County Public Defender.

BRYANT, J.

{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas granting the application of defendant-appellee, James A. Radcliff, to seal the record of his prior convictions. Because defendant does not satisfy the criteria for either judicial or statutory expungement, we reverse.

I. Facts and Procedural History

{¶ 2} On September 13, 2011, defendant filed an application requesting the trial court seal the record of his convictions for breaking and entering and passing bad checks in case No. 81CR–4506. The record indicates that between 1973 and 1981, in addition to the convictions in 81CR–4506, defendant was convicted of several crimes throughout Ohio, including felonious assault, aiding escape, disorderly conduct, and complicity to commit theft.

{¶ 3} According to the letters from friends, co-workers, and family members submitted to support defendant's application to seal his record, defendant significantly reversed his behavior and became a productive, law-abiding member of society in the 30 years since defendant's youthful legal troubles. Defendant applied for a custodial position with Dublin City Schools, indicating on the application that he had a criminal background that he was willing to discuss with his prospective employer. Defendant successfully obtained the position and eventually became the lead custodian at Dublin Jerome High School. Defendant married and supported his disabled wife, their child, and his wife's four children from a previous marriage and also became an active member in his church. After 21 years of what appeared to be exemplary service with Dublin City Schools, defendant was fired from his job when a local newspaper published an article noting the criminal records of some school employees.

{¶ 4} On January 7, 2011, Governor Ted Strickland granted defendant “a full and absolute pardon” for defendant's various convictions, indicating defendant had “been rehabilitated and ha[d] assumed the responsibilities of citizenship.” (R. 1–2.) Defendant then filed his application, indicating he was not seeking the order for any of the reasons listed in R.C. 2953.52 but rather because he possessed a pardon. The state objected to the application, noting defendant was ineligible to have his record sealed under either R.C. 2953.52 or 2953.31.

{¶ 5} The trial court held a hearing on defendant's application on July 7, 2011. The court found the circumstances of the case “a little bit * * * unusual” but concluded the pardon entitled defendant to “a full release.” (Tr. 3, 5.) The court issued a judgment entry on July 20, 2011 sealing the record of defendant's conviction pursuant to R.C.2953.32, noting defendant had no criminal actions pending against him, and concluding that sealing his record was consistent with the public interest.

II. Assignments of Error

{¶ 6} The state appeals, assigning two errors:

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT FAILED TO DETERMINE WHETHER APPLICANT WAS A “FIRST OFFENDER” AS REQUIRED BY R.C. 2953.32.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN EXERCISING ITS JURISDICTION WHEN IT GRANTED APPLICANT'S APPLICATION FOR EXPUNGEMENT AS APPLICANT WAS NOT A “FIRST OFFENDER” AS DEFINED BY R.C. 2953.31.

The state's assignments of error are interrelated and will be addressed together.

III. Expungement: Statutory v. Judicial

{¶ 7} ‘Expungement is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having record of their first conviction sealed.’ Koehler v. State, 10th Dist. No. 07AP–913, 2008-Ohio-3472, 2008 WL 2698680, ¶ 12, quoting State v. Smith, 3d Dist. No. 9–04–05, 2004-Ohio-6668, 2004 WL 2849057, ¶ 9. Neither the United States nor Ohio Constitutions endows one convicted of a crime with a substantive right to have the record of a conviction expunged. Koehler at ¶ 14, quoting State v. Gerber, 8th Dist. No. 87351, 2006-Ohio-5328, 2006 WL 2916038, ¶ 9. “Rather, [e]xpungement is an act of grace created by the state and so is a privilege, not a right.’ Koehler, quoting State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996).

{¶ 8} R.C. 2953.52(A) permits any person who has been found not guilty by a jury, who is the defendant named in a dismissed indictment, or against whom the Grand Jury enters a no bill, to apply to the court for an order sealing the official records of the case. R.C. 2953.32(A)(1) permits a first offender to apply to the sentencing court for an order sealing the record of conviction. A first offender is “anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction.” R.C. 2953.31(A).

{¶ 9} Under either section, the court must determine if the prosecutor filed an objection to the application and, if so, consider the prosecutor's reasons for the objection. R.C. 2953.32(B); R.C. 2953.52(B); Koehler at ¶ 13. The court also must weigh the applicant's interests in having the records sealed against the legitimate needs, if any, of the government to maintain the records. R.C. 2953.32(C)(1); R.C. 2953.52(B)(2)(d). If the applicant fails to satisfy any one of the statutory requirements, the court must deny the application. Id. at ¶ 13, citing State v. Krantz, 8th Dist. No. 82439, 2003-Ohio-4568, 2003 WL 22019766, ¶ 23. None of the applicable statutes permits a defendant to seek expungement after obtaining a gubernatorial pardon, and defendant acknowledges he is not entitled to expungement under either statutory provision.

{¶ 10} Indeed, defendant sought to seal his records comprising case No. 81CR4506 based on the pardon he received for those convictions, not the statutory provisions, and the trial court concluded the pardon defendant received, not the statutes, provided the court with authority to seal the record. Similarly, amicus curiae admits the trial court “had no authority to order the record of conviction sealed pursuant to the[ ] statutory provisions” but instead relied on the proposition that trial court ha[d] the inherent power to order its records sealed in the interests of justice.” (Amicus' brief, 3.)

{¶ 11} The seminal case defendant cites to support the trial court's decision is Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981), stating a court may order a record of conviction sealed “where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter.” Id. at paragraph two of the syllabus. “When exercising this power, the court should use a balancing test which weighs the privacy interest of the defendant against the government's legitimate need to maintain records of criminal proceedings.” Id.;see also State v. Davidson, 10th Dist. No. 02AP–665, 2003-Ohio-1448, 2003 WL 1509931, ¶ 15 (stating the enactment of R.C. 2953.31 et seq. did not abrogate the judicial remedy of expungement).

{¶ 12} In Pepper Pike, the charges against the defendant arose out of a domestic quarrel where the complaining witness used the court as “a vindictive tool to harass [the defendant].” Id. at 377, 421 N.E.2d 1303. After the city dismissed the charges, the defendant filed a motion seeking to expunge the record of arrest. Id. at 375, 421 N.E.2d 1303. At the time, the General Assembly had not enacted R.C. 2953.52, and the defendant had no statutory basis under which to seek expungement.

{¶ 13} Finding the circumstances of the case “unusual and exceptional,” the court determined the defendant was entitled to expungement based on her “constitutional right to privacy.” Id. at 377, 421 N.E.2d 1303, citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The court warned, however, that the case before it was “the exceptional case, and should not be construed to be a carte blanche for every defendant acquitted of criminal charges in Ohio courts.” Pepper Pike at 377, 421 N.E.2d 1303 (observing that when courts exercise the judicial remedy of expungement they should “follow the guidelines set out in Ohio's criminal expungement statute).

{¶ 14} The “extra-statutory” authority to grant the expungement described in Pepper Pike derived “out of a concern for the preservation of the privacy interest,” and courts have contrasted the facts and holding of Pepper Pike “with the case of adjudicated offenders, whose relief is prescribed by statute.” (Emphasis sic.) State v. Weber, 19 Ohio App.3d 214, 216, 484 N.E.2d 207 (1st Dist.1983). Although Pepper Pike determined trial courts have jurisdiction to expunge the records of a criminal case “where the charges are dismissed with prejudice prior to trial by the party initiating the proceedings,” it also observed that [i]n Ohio, convicted first offenders may seek expungement and sealing of their criminal records under the authority of R.C. 2953.32.” Id. at paragraph one of the syllabus; 376, 421 N.E.2d 1303.

{¶ 15} Thus, “where a defendant has been convicted of an offense, expungement may be granted only as allowed by statute, and the court may not use the judicial (i.e., extra-statutory) expungement remedy used in Pepper Pike.” State v. Bailey, 10th Dist. No. 02AP–406, 2002-Ohio-6740, 2002 WL 31750242, ¶ 11. As a result, [t]he only remedy for a convicted defendant is expungement...

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1 cases
  • State v. Radcliff, s. 2012–1985
    • United States
    • United States State Supreme Court of Ohio
    • January 28, 2015
    ...had asked the court to seal the Franklin County record solely because the governor had issued a pardon for those crimes. 2012-Ohio-4732, 978 N.E.2d 1275, at ¶ 9 and 10.{¶ 10} The appellate court turned to our decision in Pepper Pike, which held that a 28 N.E.3d 72 court may seal criminal re......

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