State v. T.J.D.
| Decision Date | 17 July 2020 |
| Docket Number | No. 28592,28592 |
| Citation | 2020 Ohio 3745,156 N.E.3d 322 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. T.J.D., Defendant-Appellant |
| Court | Ohio Court of Appeals |
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
W. RANDALL ROCK, Atty. Reg. No. 0023231, 10817 Yankee Street, Dayton, Ohio 45458, Attorney for Defendant-Appellant.
{¶ 1} Defendant-appellant, T.J.D., appeals from his conviction in the Montgomery County Court of Common Pleas after he pled no contest to one count of having weapons while under disability. In support of his appeal, T.J.D. contends that the trial court erred in overruling his motion to dismiss the indictment, because he was not under a weapons disability at the time law enforcement discovered several firearms in his residence. T.J.D. claims that the weapons disability at issue was relieved in 1994, when he had the conviction from which the disability arose sealed pursuant to R.C. 2953.32. Upon review, we agree with T.J.D.'s claim. Therefore, for the reasons outlined below, the judgment of the trial court will be reversed, and the matter will be remanded for further proceedings consistent with this opinion.
{¶ 2} Over 30 years ago, on September 20, 1989, T.J.D. was convicted of felony drug abuse in violation of R.C. 2925.11. T.J.D. later moved the trial court to seal the record of his conviction pursuant to R.C. 2953.32(A)(1). The trial court granted T.J.D.'s motion and issued an order sealing the record of his conviction on October 14, 1994.
{¶ 3} On November 20, 2018, 24 years after T.J.D.'s felony drug conviction had been sealed, T.J.D. was indicted on one count of having weapons while under disability in violation of R.C. 2923.13(A)(3). The charge arose after police discovered several firearms in T.J.D.'s residence while investigating a domestic violence complaint. The indictment alleged that the weapons disability at issue stemmed from the 1989 felony drug conviction that had been sealed.
{¶ 4} Prior to the indictment, the trial court permitted the State to inspect T.J.D.'s sealed record of conviction as permitted by R.C. 2953.32(D)(1). Following the State's inspection of the sealed record, the State determined that T.J.D.'s prior felony drug conviction placed him under a weapons disability that prohibited him from knowingly acquiring, having, carrying, or using any firearm. See R.C. 2923.13(A)(3). Given that the police discovered firearms inside T.J.D.'s residence while investigating a domestic violence complaint, the State brought the charge for having weapons while under disability in violation of R.C. 2923.13(A)(3).
{¶ 5} After being indicted, T.J.D. filed a motion to dismiss the indictment on the ground that he was not under a weapons disability at the time the firearms were discovered in his residence. In support of this claim, T.J.D. argued that the underlying weapons disability was relieved once he had the record of his felony drug conviction sealed in 1994. T.J.D. argued that without an underlying weapons disability, the charge for having weapons while under disability must be dismissed.
{¶ 6} The trial court took the matter under advisement and issued a decision overruling T.J.D.'s motion to dismiss. In reaching that decision, the trial court found that the proper procedure for relieving a weapons disability was the procedure set forth in R.C. 2923.14. Because T.J.D. did not avail himself of the procedure in R.C. 2923.14, but rather had the record of his felony conviction sealed, the trial court determined that T.J.D. had "failed to go through the proper procedure to be relieved of a disability imposed pursuant to R.C. 2923.13."
{¶ 7} Following the trial court's decision overruling his motion to dismiss, T.J.D. entered a plea of no contest to having weapons while under disability in violation of R.C. 2923.13(A)(3). The trial court accepted T.J.D.'s no contest plea and found him guilty as charged. The trial court then sentenced T.J.D. to community control sanctions not to exceed five years.
{¶ 8} T.J.D. now appeals from his conviction, raising a single assignment of error for review.
{¶ 9} T.J.D. contends that the trial court erred in overruling his motion to dismiss the indictment charging him with having weapons while under disability. As noted above, T.J.D. claims that the indictment should have been dismissed because he was not under a weapons disability at the time police discovered the firearms in his residence. Although T.J.D. admits that he was under a weapons disability for a period of time due to his 1989 felony drug conviction, T.J.D. asserts that the disability was relieved in 1994, when he had the record of his felony drug conviction sealed pursuant to R.C. 2953.32.
{¶ 10} Although neither party discusses the effect of T.J.D.'s no contest plea, we note that the no contest plea permitted T.J.D. to appeal the trial court's ruling on his pretrial motion to dismiss the indictment because the motion raised a legal issue that was capable of determination without a trial, i.e., whether sealing a record of conviction relieves a weapons disability. State v. Pointer , 193 Ohio App.3d 674, 2011-Ohio-1419, 953 N.E.2d 853, ¶ 16-18 (2d Dist.) ; Crim.R. 12(C) and (I).
{¶ 11} That said, this court uses a de novo standard of review when reviewing a trial court's decision on a motion to dismiss an indictment. (Citation omitted.) State v. Cassel , 2016-Ohio-3479, 66 N.E.3d 318, ¶ 15 (2d Dist.). "De novo review requires an ‘independent review of the trial court's decision without any deference to the trial court's determination.’ " State v. Clay , 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, 2016 WL 525902, ¶ 5, quoting Jackson v. Internatl. Fiber , 169 Ohio App.3d 395, 2006 -Ohio- 5799, 863 N.E.2d 189, ¶ 17 (2d Dist.).
{¶ 12} Pursuant to R.C. 2923.13(A)(3) :
Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse[.]
{¶ 13} There is no dispute that T.J.D. was convicted of a felony drug offense that placed him under a weapons disability pursuant to R.C. 2923.13(A)(3). The question raised in this appeal is whether that weapons disability was relieved when T.J.D. had the record of his felony drug conviction sealed in 1994. Therefore, we shall begin our analysis with the relevant statutes that govern the process of sealing a record of conviction, R.C. 2953.32 and R.C. 2953.33.
{¶ 14} Pursuant to R.C. 2953.32(C)(2), when a court seals a record of conviction, "[t]he proceedings in the case that pertain to the conviction * * * shall be considered not to have occurred[.]" However, this does not mean that the record of conviction is obliterated. In re Niehaus , 62 Ohio App.3d 89, 96, 574 N.E.2d 1104 (10th Dist.1989), citing Pepper Pike v. Doe , 66 Ohio St.2d 374, 378, 421 N.E.2d 1303 (1981). Rather, sealing a record of conviction "sets up a legal fiction * * * that a convicted felon will be able to treat the conviction as though it had never happened even though the actual records still exist, albeit under a qualified seal." State ex rel. Gains v. Rossi , 7th Dist. Mahoning No. 98-CA-51, 1999 WL 148364, *4 (Mar. 9, 1999), aff'd sub nom, State ex rel. Gains v. Rossi , 86 Ohio St.3d 620, 716 N.E.2d 204 (1999). Unlike expungement, which "results in deletion, making all case records ‘permanently irretrievable,’ R.C. 2953.37(A)(1)," sealing a record of conviction "simply provides a shield from the public's gaze." State v. Aguirre , 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, fn. 2, citing R.C. 2953.32(D).
{¶ 15} Although shielded from the public, "[a] sealed conviction is not permanently irretrievable[.]" Gyugo v. Franklin Cty. Bd. of Dev. Disabilities , 151 Ohio St.3d 1, 2017-Ohio-6953, 84 N.E.3d 1021, ¶ 15. Pursuant to R.C. 2953.32(D), certain individuals and agencies may inspect sealed records for specific purposes listed under the statute. For example, inspection of sealed records may be made "[b]y a law enforcement officer or prosecutor, or the assistants of either, to determine whether the nature and character of the offense with which a person is to be charged would be affected by virtue of the person's previously having been convicted of a crime[.]" R.C. 2953.32(D)(1). The statute further provides that "[w]hen the nature and character of the offense with which a person is to be charged would be affected by the information, it may be used for the purpose of charging the person with an offense." R.C. 2952.32(D). Therefore, in accordance with R.C. 2953.32(D), the information concerning T.J.D.'s prior felony drug conviction was properly accessible to the State for purposes of determining whether T.J.D. could be charged with any offense.
{¶ 16} As to the general effect of sealing a record of conviction, R.C. 2953.33(A) provides that it "restores the person who is the subject of the order to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control." Whether the language in R.C. 2953.33(A) applies to relieve a weapons disability was touched upon in Bernad v. Lakewood , 140 Ohio App.3d 350, 747 N.E.2d 838 (8th Dist.2000).
{¶ 17} In Bernad , a convicted felon filed a replevin complaint seeking the return of an antique firearm collection that he had voluntarily relinquished after being placed under a weapons disability that arose from his felony conviction. Id. at 351, 747 N.E.2d...
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