State v. Weber, s. C-830768

Citation484 N.E.2d 207,19 Ohio App.3d 214,19 OBR 359
Decision Date01 August 1984
Docket NumberNos. C-830768,C-830861 and C-830871,s. C-830768
Parties, 19 O.B.R. 359 The STATE of Ohio, Appellant, v. WEBER, Appellee. The STATE of Ohio, Appellant, v. VON KORFF, Appellee. The STATE of Ohio, Appellant, v. COLLINS, Appellee.
CourtUnited States Court of Appeals (Ohio)

Syllabus by the Court

1. For purposes of R.C. 2953.31, the applicant cannot be held to be a "first offender," qualified for relief under R.C. 2953.32, if he has been twice convicted of an offense in this state or any other jurisdiction, whatever the sequence of such convictions may have been, unless such convictions result from or are connected with the same act, or result from offenses committed at the same time.

2. A trial court does not have discretion to grant judicial (i.e., extra-statutory) expungement relief to those convicted of an offense. (Pepper Pike v. Doe [1981], 66 Ohio St.2d 374, 421 N.E.2d 1303 , explained.)

3. A minor misdemeanor conviction of R.C. 2925.11(C)(3) is a conviction for purposes of R.C. 2953.31 et seq., regardless of what R.C. 2925.11(D) may permit when an offender responds to an inquiry about his criminal record.

Arthur M. Ney, Jr., Pros. Atty., William E. Breyer, Richard A. Castellini, Paul J. Gorman and Frank H. Prouty, Jr., Cincinnati, for appellant.

Thomas R. Smith, Cincinnati, for appellee Weber.

Michael McCaulay, Cincinnati, for appellee Von Korff.

Edward J. McTigue, Cincinnati, for appellee Collins.

PALMER, Judge.

These three appeals all involve questions arising from varying interpretations different judges of the Hamilton County Municipal Court have given R.C. 2953.31 et seq. These statutes permit, under certain limited circumstances, the sealing of criminal records, and are sometimes referred to as the "expungement" statutes. Because of the similarity of subject matter, these appeals are herein consolidated for decision.

Michael P. Weber, No. C-830768

On December 8, 1981, the defendant-appellee, Weber, was convicted of a misdemeanor theft and sentenced as appears of record. Over a year later, on July 28, 1983, Weber applied for relief under R.C. 2953.32 "for expungement of his criminal record." At a hearing on this motion held on September 8, 1983, it was conceded by Weber and his counsel that Weber had suffered a conviction in the Mayor's Court of the city of Greenhills for disorderly conduct on April 26, 1983, a date subsequent to the December 8, 1981 theft conviction sought to be sealed. The disorderly conduct conviction would appear to have been "paid out" by defendant's entering a written plea on the citation form, and paying a fine of $85 into the mayor's court. No court appearances were apparently required.

The trial court, citing Weber's scholastic achievements, job prospects, and the relatively minor nature of the subsequent disorderly conduct conviction, granted the application to seal the records of the theft conviction, relying on the presumed discretionary authority afforded by Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 421 N.E.2d 1303 . The state brings this appeal, asserting in a single assignment of error that the trial court erred as a matter of law in granting the motion to "expunge" pursuant to R.C. 2953.32. We agree.

In State v. Hall (Aug. 5, 1981), Hamilton App. No. C-800638, unreported, we affirmed the refusal of the trial court to seal the records of a felony conviction entered in 1976 where the defendant had suffered a conviction twenty years earlier for a violation of an ordinance of the city of Norwood involving public intoxication, a misdemeanor. We said in Hall, at 2-3:

"Under Ohio law, the expungement process is made available only to a first offender, who is defined in broad terms as 'anyone who has once been convicted of an offense in this state or any other jurisdiction.' R.C. 2953.31. In his argument on appeal, the appellant adopts the position that the offense of public intoxication, as it existed in Norwood in 1956, is the equivalent of a minor misdemeanor under state law and should not be construed as a conviction when determining whether a person seeking expungement of his record is a first offender because it carried such an inconsequential maximum penalty.

"We cannot accept the appellant's argument because to do so would fly in the face of the plain and unambiguous meaning of R.C. 2953.31. If there is to be an exception of the kind urged by the appellant to the statute, it must be left to the legislature to create that exception. For us to undertake such a task would constitute an unwarranted exercise of the powers committed to a separate and coequal branch of the government."

The instant case is distinguishable from Hall only in the fact that the second conviction occurred after rather than before the offense sought to be sealed. The distinction is without consequence. For purposes of R.C. 2953.31, the applicant cannot be held to be a "first offender," qualified for relief under R.C. 2953.32, if he has been twice convicted of an offense in this state or any other jurisdiction, whatever the sequence of such convictions may have been, unless such convictions result from or are connected with the same act, or result from offenses committed at the same time. So much seems to us to be clear from the wording and intent of the statute.

It remains only to examine the thrust of Pepper Pike, supra, which the trial court here (as in the Collins case, infra ) read to grant a court discretion "to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter." In Pepper Pike, the criminal record sought to be sealed was an assault charge growing out of a domestic dispute, prosecuted by the current wife of the applicant's former husband, who, said the Supreme Court, along with her husband, "used the courts as a vindictive tool to harass appellant." Id. at 377, 421 N.E.2d 1303. The criminal charge was dismissed with prejudice. The applicant sought to expunge the arrest record, since there had been no conviction.

The rule of the Pepper Pike case is expressed most clearly in the first paragraph of the syllabus, which states:

"The 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." (Emphasis added.)

The authority to so proceed, said the court, is extra-statutory, and derives out of a concern for the preservation of the privacy interest. It is to be contrasted with the case of adjudicated offenders, whose relief is prescribed by statute. This can be the only meaning attributable to a decision which begins with the words: "This case raises the question of whether a defendant charged with but not convicted of a criminal offense has a right to a judicial remedy which orders expungement of her criminal record" (emphasis added), and continues, a sentence later: "In Ohio, convicted first offenders may seek expungement and sealing of their criminal records under the authority of R.C. 2953.32." (Emphasis added.) Id. at 376, 421 N.E.2d 1303.

Throughout the short opinion, the author is careful to delineate the abortive character of the criminal proceedings under review, and their intimate involvement with a constitutional right of privacy. Even so, it is still the exceptional case to which this extra-statutory or common-law remedy will be applied: "Again, this is the exceptional case, and should not be construed to be a carte blanche for any defendant acquitted of criminal charges in Ohio courts." Id. at 377, 421 N.E.2d 1303.

To guide trial courts in using this "judicial" remedy of expungement in the appropriate case, the second paragraph of the syllabus of the Pepper Pike case was worded as follows:

"The trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter. 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."

This second paragraph of the syllabus, which appears to have occasioned the confusion manifested by several of the trial courts in this consolidated appeal, cannot, however, be read in isolation from the first paragraph of the syllabus and the body of the opinion, which clearly and obviously direct themselves to instances of defendants acquitted of criminal charges. It cannot, without doing violence to the opinion and to the clear meaning of the statute, be read to allow trial courts discretion to grant judicial (i.e., extra-statutory) expungement relief to those convicted of an offense. In such cases, the statute must be held to provide the exclusive means of remedy. Any other reading of Pepper Pike, it seems to us, ignores the obvious thrust of the opinion, and would inevitably result in a frustration of the statute, which sets out the conditions under which relief may be granted with great specificity, substantial detail, and without the relatively broad discretionary authority approved under the facts of Pepper Pike and attempted by the trial court here.

This being so, it is apparent that we are not here concerned with a Pepper Pike situation; we deal here with convictions, not acquittals or dismissals. We look, therefore, to the statute, which limits its relief to "first offenders." Since, as we have seen, the appellee is not a first offender, it follows that the trial court erred in granting the application. The assignment of error is well-taken.

Christopher Lee Von Korff, No. C-830861

On September 14, 1982, the appellee, Von Korff, was convicted of violating R.C. 2925.11(C)(3), possession of less than one hundred grams of marijuana, a minor misdemeanor. Over one year later, the appellee applied for an order sealing the...

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