Ohio Supreme Court...
Becoming unconvicted after being convicted 

When Defendant Completes Intervention Program, Court May Seal Record Immediately Or Impose Waiting Period - Supreme Court Holds That Law Gives Judges Discretion In Granting Motions to Seal 

(June 21, 2012) The Supreme Court of Ohio held today that when a criminal defendant who has successfully completed a program of intervention in lieu of conviction (ILC) moves for an order sealing his or her record under R.C. 2951.041(E), the trial court has discretion either to grant the motion immediately under R.C. 2953.52(A)(1), or to impose a waiting period before the record is sealed pursuant to R.C. 2953.32(A)(1). 

The court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, reversed a decision of the Twelfth District Court of Appeals. 

In April 2009, a Warren County grand jury indicted Regina Niesen-Pennycuff on multiple counts of deception to obtain a dangerous drug. Each count was a fifth-degree felony. Niesen-Pennycuff initially entered not guilty pleas on all counts, but later petitioned the court to refer her case to an ILC program through which she would participate in a drug abuse intervention program in lieu of going to trial on the pending criminal charges. Under the terms of the ILC, if Niesen-Pennycuff successfully completed the intervention program and a period of court-monitored abstinence from drug use, the charges against her would be dismissed without a finding of guilt, and she would be free to petition the court for an expungement of her record. 

In August 2010, the court filed an entry in which it recognized Niesen-Pennycuff’s successful completion of the ILC program, and dismissed all of the charges pending against her.  In September 2010, Niesen-Pennycuff filed an application asking the court to seal her record. The state opposed that application, arguing that she would not be  eligible to have her record sealed until three years after the date of the dismissal order, which would be August 2013.  The trial court agreed and denied the application, advising Niesen-Pennycuff that she would be eligible to reapply in 2013. 

On review, the Twelfth District Court of Appeals affirmed the trial court’s ruling, but certified that its decision was in conflict with State v. Fortado, a 1996 decision in which the Ninth District Court of Appeals held that a defendant whose charges had been dismissed following completion of an ILC program was immediately eligible to apply for sealing of his record.  The Supreme Court agreed to review the case to resolve the conflict between appellate districts. 

Writing for the court in today’s decision, Justice Stratton said the case hinged on the proper interpretation of language in the ILC statute, R.C. 2951.041(E), indicating that after charges against a defendant have been dismissed, “the court may order the sealing of records related to the offense in question in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.” 

She disagreed with the holdings of the trial court and Twelfth District that the statute’s reference to R.C. 2953.31 to 2953.36 means that the sealing of records in ILC cases is governed by R.C. 2953.32(A)(1), which requires a three-year waiting period before a felony defendant may move for an order sealing the record.  “R.C. 2953.31 to 2953.36 govern the sealing of an individual’s record following the conviction of a crime,” wrote Justice Stratton “... But in an ILC case, an offender who has successfully completed ILC has no conviction.” 

“R.C. 2951.041 was designed to eliminate punishment by offering first-time offenders an opportunity to receive help for their dependence without the ramifications of a felony conviction. ... It is unreasonable, therefore, to view R.C. 2951.041(E)’s reference to R.C. 2953.31 to 2953.36 as imposing a requirement that ILC defendants must carry a criminal record for three years after the charges have been dismissed due to successful completion of the ILC program.” 

“We conclude that R.C. 2951.041(E)’s use of the phrase ‘in the manner provided in’ signifies that  R.C. 2951.041(E) was not intended to impose on ILC defendants all the requirements and limitations of R.C. 2953.31 to 2953.36.  The phrase ‘in the manner provided in’ is less prescriptive and more in the nature of guidance than a command. It connotes only the ‘mode or method,’ i.e., the general procedure provided in those statutes.  Thus, R.C. 2951.041(E)’s reference to R.C. 2953.31 to 2953.36 is meant to incorporate the general procedures for filing an application to seal. It is not meant to impose on all ILC defendants the requirements and limitations imposed by those statutes on convicted persons. For example, a court in an ILC case may be guided by the procedures set out in R.C. 2953.32, such as the procedures for setting a hearing, notifying the prosecutor, making the findings described in subdivision (C)(1), determining forfeiture of bail, determining whether criminal proceedings are pending against the applicant, etc.” 

“In sum, trial courts may refer to R.C. 2953.31 to 2953.36 for guidance in matters of procedure but are not bound to follow those  provisions.  Thus, a trial court may be guided by R.C. 2953.32(A)(1) and, in its discretion, impose a waiting period before granting a motion to seal under R.C. 2951.041(E). This reading further comports with the use of the permissive word ‘may’ in R.C. 2951.041(E): ‘the court may order the sealing of records related to the offense in question in the manner provided in sections 2953.31to 2953.36 of the Revised Code.’  Had the legislature intended to impose the requirements and limitations of those statutes on every ILC defendant, it would have used the word ‘shall.’  Finally, this reading is in line with the remedial purpose of ILC without rendering the phrase ‘in the manner provided in’ superfluous or meaningless.” 

“Treating all ILC defendants as though they have been convicted of a crime when their charges have been dismissed pursuant to a program designed to avoid the very ramifications of a conviction would run counter to the purpose of ILC.  Accordingly, we hold that when a defendant who has successfully completed a program of intervention in lieu of conviction moves for an order sealing his or her record under R.C. 2951.041(E), the trial court has discretion either to grant the motion immediately under R.C. 2953.52(A)(1) or to impose the waiting period set forth in  R.C. 2953.32(A)(1).” 

“Therefore, we reverse the judgment of the court of appeals and remand the cause to the trial court for proceedings consistent with this opinion.” 

Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer,  Robert R. Cupp and Yvette McGee Brown. Justice Judith Ann Lanzinger concurred in judgment only. 

Justice Terrence O’Donnell concurred in the majority judgment, but wrote separately to emphasize that the mandatory waiting periods before a defendant’s record may be sealed set forth in R.C. 2953.32 apply only to defendants who have been convicted, and do not apply to those who have avoided conviction by successfully completing an ILC program. 

He wrote: “By its express terms, R.C. 2953.32 applies only to those individuals who have been convicted of a criminal offense. ... The reference in R.C. 2951.041(E) to R.C. 2953.31 through 2953.36 indicates that the General Assembly intended for courts to have discretion in sealing the records of an individual who successfully completes an intervention plan: a court may do so according to the manner provided in either R.C. 2953.32, by imposing a waiting period before a defendant may move for an order to seal, or R.C. 2953.52, by allowing a defendant to apply for an order to seal at any time after dismissal. But the court is not required to impose R.C. 2953.32’s waiting period, because there has been no conviction.” 

Contacts 

J. Michael Greer, 513.695.1325, for the state and Warren County prosecutors’ office.

Nicholas D. Graman, 513.932.2115, for Regina Niesen-Pennycuff.