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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Last updated 3/3/2015
-- Sealing of record of conviction or bail forfeiture
-- Sealing of official records after not guilty finding, dismissal of proceedings or no bill
-- Sealing, expungement of records
State v. Aguirre
, ____ Ohio St.3d,
, ___ N.E.3d ___-- An offender does not attain a final discharge, and is thus ineligible to have his or her felony conviction records sealed under
, until she has paid all court-ordered restitution.
Appellant's Merit Brief
Appellee's Merit Brief
State v. Clark
, 173 Ohio App. 3d 719,
– A hearing on an application for expungement is mandatory. Recitation in entry that a hearing was conducted is not controlling where there is nothing in the record indicating one was held or that notice of a hearing was provided to the parties. Also see
State v. Davis
, 175 Ohio App. 3d 18,
State v. Hutchen
, 191 Ohio App. 3d 388,
– A hearing on an application for expungement is mandatory. It is not enough for the court’s entry to state the record was reviewed. Appeal was not untimely, though filed more than thirty days after the date of judgment because the court did failed to endorse the entry directing service on the parties.
State v. Rojas
, 180 Ohio App. 3d 52,
– Court denied Expungement finding there was a governmental need to maintain a record of his conviction. Reversed, as the court did not further weigh this need against the defendant‘s interests in having the record sealed. This weighing is required regardless of whether the application for Expungement is granted or denied.
State v. Bates
, Ashland App. No. 03-COA-057 – Gambling addiction underlay defendant’s thefts from past employer. At hearing the defendant testified concerning her impressive efforts at rehabilitation, but the court denied the motion citing the nature of the offense. Reversed. Court did not weigh conflicting interests or assess rehabilitation.
State v. LaSalle
, 96 Ohio St. 3d 178,
-- Syllabus: "(1) Absent a clear pronouncement by the General Assembly that a statute is to be applied retrospectively, a statute may be applied prospectively only. (
, applied.) (2) The statutory law in effect at the time of the filing of an
application to seal a record of conviction is controlling." Application to expunge a domestic violence conviction was filed before law was changed to bar expungement, but expungement was granted after the new version of the statute went into effect.
State v. Shirley M.
(2000), 136 Ohio App. 3d 753 -- Subject convicted in federal court sought expungement under the Ohio statute. While the court could order expungement of some state records, it could not order expungement of federal records or state records maintained by state agencies pursuant to federal law.
Akron v. Frazier
(2001), 142 Ohio App. 3d 718 -- Pursuant to
unsealing of the record is mandatory at the request of the defendant or complaining witness in relation to a subsequent malicious prosecution action.
State v. Widder
, 146 Ohio App. 3d 445,
-- Pursuant to
, a court considering whether to seal the record of a no bill after two year have passed must weigh the interests of the applicant against the interests of the state. Reversed as before allowing either side to speak the judge overruled the application citing the applicant's prior misdemeanor record.
State v. Krutowski
, Cuyahoga App. No. 81545, 2003-Ohio-1731, ¶14 -- "There is no requirement that the court set forth its reasoning when granting or denying an expungement."
In re Forster
, 161 Ohio App. 3d 627,
-- A 25-year old expunged felony conviction may be used by a sheriff to deny issuance of a concealed carry permit.
In re T.F.K
, 136 Ohio Misc. 2d 9,
-- Expungement orders extend to records held by the State Dental Board.
State v. Bissantz
(1987), 30 Ohio St. 3d 120 -- (1) The state may directly appeal rulings on expungement orders, without first seeking leave to appeal. Also see
State v. Netter
(1989), 64 Ohio App. 3d 322. (2) While a conviction for bribery in office may be expunged, the disqualification from holding public office continues even following expungement.
State v. Harris
(1982), 7 Ohio App. 3d 258 distinguished and impliedly overruled.
State v. Keene
(1986), 33 Ohio App. 3d 116 -- Private citizen may not appeal judicial expungement in a cause he is not a party to.
State v. Greene
(1991), 61 Ohio St. 3d 137 -- Error for municipal court to refuse to expunge law student's record on basis doing so might prevent Supreme Court from being fully apprised of his fitness to be admitted to practice - sealed records are checked anyway.
State v. Mastin
(1992), 83 Ohio App. 3d 814 -- While expungement may not be denied on the basis of the best interests of society, where this was not the sole basis, and the statutory criteria were properly considered, denial was not an abuse of discretion.
State v. Saltzer
(1984), 14 Ohio App. 3d 394 -- Court may not deny an application for expungement without conducting a hearing.
State v. Wainwright
(1991), 75 Ohio App. 3d 793 -- Defendant was not eligible for expungement where he had not completed his sentence by paying restitution.
State v. Summers
(1990), 71 Ohio App. 3d 1 -- Since court costs are neither a fine nor a part of the sentence, a defendant is eligible for expungement even though court costs have not been paid.
Barker v. State
(1980), 62 Ohio St. 2d 35 -- While the Ohio expungement statutes may be used to expunge convictions from other states, application is limited to such records only as they are located within the boundaries of Ohio.
In re Application of Pacifico for Sealing of Records
(1998), 129 Ohio App. 3d 152 -- While the Ohio expungement statute purports to apply to federal convictions, the court may grant relief only to the extent records reflecting the federal conviction are maintained or used by state agencies of officials. The defendant must identify the agencies or officials to whom any order of the court is to be addressed.
Schwab v. Gallas
(N.D. Ohio 1989), 724 F. Supp. 509 -- Ohio expungement statutes may not be used in federal court to expunge federal convictions. (But
expressly states person may apply to state court for expungement of federal court conviction.)
Expungement Following Conviction, First Offense
State v. Wright
, 191 Ohio App. 3d 647,
– Court dismissed a petition for expungement based on the prosecutor’s representation that the presentence investigation revealed prior convictions. While the record on appeal was supplements by a copy of the PSI, and it does list priors, reversed. The defendant represented herself to be a first offender. Unlike other bases for ineligibility which might be apparent on the record, a hearing was required.
State v. Bundy
, Hamilton App. No. C-020411,
-- Whether or not one is a first offender is a question of law that may be reviewed de novo on appeal.
State v. Black
, Franklin App. No. 02AP-862,
-- Prior conviction for driving under an FRA suspension is not a prior conviction barring expungement. Case is decided according to the law in effect at the time of the prior offense. For present situation see
excluding minor misdemeanors and many traffic offenses.
State v. Bates
, Ashland App. No. 04COA041,
-- Finding in the entry that the defendant had not been rehabilitated was at odds with the judge's pronouncement from the bench that she had. Reversed.
Dayton v. Sheibebberger
(1996), 115 Ohio App. 3d 529 -- Violations of municipal housing ordinances which were greater than minor misdemeanors disqualified applicant for expungement.
State v. McGinnis
(1993), 90 Ohio App. 3d 479 -- When the defendant learned his wife was having an affair he went on a drunken spree, during which he threw a brick through the boyfriend's window, ending when he was stopped for drunk driving twelve hours later in a different county. Vandalism and OMVI charges were sufficiently related that the trial court could properly treat him as a first offender.
State v. Patterson
(1998), 128 Ohio App. 3d 174 -- Petitioner pleaded guilty to counts of falsification and election falsification which carried different dates, but arose from the same conduct. Expungement was proper as she qualified as a first offender.
State v. Saltzer
(1985), 20 Ohio App. 3d 277 -- Defendant was not a first offender when pleas were entered to eight separate indictments at the same hearing. Compare
State v. Penn
(1977), 52 Ohio App. 2d 315 where defendant was found to be a first offender where two robberies were committed fifteen minutes apart.
State v. Hagstrom
(1990), 67 Ohio App. 3d 388 -- Defendant not a first offender where convictions were for aggravated assault and resisting arrest forty-five minutes afterwards.
State v. Aggarwal
(1986), 31 Ohio App. 3d 32 -- Defendant not a first offender when charges arose from three separate sales of unregistered securities.
Bowling Green v. Logan
(1987), 40 Ohio Misc. 2d 15 -- OMVI and assault offenses committed a few days apart do not constitute one act for purposes of determining status as first offender.
State v. Derugen
(1996), 110 Ohio App. 3d 408 -- Though six offenses were disposed of in a single proceeding, they were committed independently. Dates varied, and those committed on the same date were not logically connected. Defendant was ineligible for expungement. Also see
State v. Bradford
(1998), 129 Ohio App. 3d 128.
State v. Cresie
(1993), 93 Ohio App. 3d 67 -- When convictions have arisen from offenses committed on consecutive days, the defendant is not a first offender, and is not eligible for expungement.
State v. Yackley
(1989), 43 Ohio St. 3d 181 -- OMVI is a criminal offense for purposes of the expungement statutes. Also see
State v. May
(1991), 72 Ohio App. 3d 664. Note: As amended, minor misdemeanor convictions are no longer considered in determining whether one is a first offender, negating contrary rulings in
Chillicothe v. Herron
(1982), 3 Ohio App. 3d 468 and
State v. Petrou
(1984), 13 Ohio App. 3d 456.
State v. Coleman
(1997), 117 Ohio App. 3d 726 -- Convictions between ages 18 and 21 prevented applicant from being considered a first offender as they were not juvenile court adjudications.
Dayton v. Salmon
(1996), 108 Ohio App. 3d 671 -- Judicial expungement of a prior charge dismissed on speedy trial grounds did not make defendant ineligible for statutory expungement of a later charge. First offender status relates to conviction, not merely being charged.
State v. Thomas
(1979), 64 Ohio App. 2d 141 -- Because first offender status is jurisdictional, an expungement order must be vacated when it is learned a defendant did not qualify as a first offender.
State v. Brausch
(1997), 118 Ohio App. 3d 659 -- Following expungement, A.G. notified court subject had a prior expungement. Within the prescribed one year period, prosecutor moved to have expungement set aside. Reluctantly affirmed. Despite subject's exemplary accomplishments and the circumstances of the two charges, he was not a first offender for purposes of statutory expungement, and the court does not believe judicial expungement is available unless charges were dismissed.
Expungement Following Conviction, Excluded Offenses
State v. Ricks
, 194 Ohio App. 3d 511,
– Defendant sought to expunge a 1971 conviction for pointing a firearm in violation of former R.C. 3773.04. This was an unclassified misdemeanor carrying a maximum sentence of one year. It was repealed when the new criminal code went into effect in 1974. The same conduct would now be encompassed by the aggravated menacing statute. The trial court found expungement was not available as the former offense is the equivalent of a current offense for which expungement is not available. The court of appeals finds the offense was never a first degree misdemeanor. Misdemeanors were first classified with the 1974 criminal code, which also recognized unclassified misdemeanors carrying penalties up to one year. Pointing a firearm with its one year penalty is the equivalent of an unclassified misdemeanor. Though the penalty is greater than for a M1, unclassified misdemeanors are not excluded by the expungement statute.
State v. Futrall
, 123 Ohio St. 3d 498,
– Syllabus: "When an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to
and one of those convictions is exempt from sealing pursuant to
, the trial court may not seal the remaining convictions."
State v. Ritchie
, 174 Ohio App. 3d 582,
– School bus driver was convicted of illegally conveyance or possession of a deadly weapon on school premises. Apparently the "premises" was a school bus full of children. Because they were "victims" he is ineligible for Expungement. The definition of "victim" in
applies only within the victims‘ rights chapter.
Euclid v. El-Zant
(2001), 143 Ohio App. 3d 545 -- First offense misdemeanor assault may be expunged. Though it is swept up in the general ban on expungement for first degree misdemeanor offenses of violence, it is one of four offenses exempted later in
. Also see
Dayton v. P.D.
, 149 Ohio App. 3d 684,
, which further holds a hearing is required when expungement is requested.
State v. King
, Franklin App. No. 03AP-1000,
-- It was error to order the record sealed without a hearing. Also see
State v. Withrow
, Franklin App. No. 03AP-999,
State v. Boddie
, 170 Ohio App. 3d 590,
-- The trial court erred in ordering expungement without a hearing. In response to the state's claim the defendant has subsequent convictions, the court finds nothing in the record to that effect, notes expungement provisions are remedial and to be liberally construed, then suggests on remand the prosecutor, in her discretion, might want to forgo raising the claim the defendant is not a first offender.
State v. Prosser
, Hamilton App. No. C-030187,
-- Since aggravated vehicular homicide under a former version of the statute was non-probationable if alcohol was involved, the sentence was mandatory and expungement is unavailable.
Cleveland v. Hang
(2000), 110 Ohio Misc. 2d 47 -- Though expungement is no longer permitted for assault, court expunges record where plea was to attempted assault and the sparse record from the plea hearing does not compel the conclusion she committed a disqualifying offense of violence.
State v. Westendorf
, Hamilton App. No. C-020114,
-- A misdemeanor non support conviction may not be expunged as the victim is a minor.
State v. Muqdady
(2000), 110 Ohio Misc. 2d 51 -- No ex post facto violation found in the application of 1999 statute baring expungement of offenses of violence to a 1995 domestic violence conviction. Also see <
State v. Gaebler
11th Dist. App. No. 2002-G-2362,
State v. Simon
(2000), 87 Ohio St. 3d 531 -- Syllabus: "(1) Under the plain language of
, a defendant who is ineligible for probation pursuant to
is ineligible to have his or her record sealed. (2) When considering whether an applicant is ineligible to have his or her record sealed pursuant to
because he applicant may have been 'armed with a firearm or dangerous ordinance" (
) at the time of the offense, a trial judge must examine the entire record to determine whether the applicant was so armed."
State v. Leers
(1992), 84 Ohio App. 3d 579 -- A conviction for a non-probationable offense may not be expunged. This includes any sentence where a term of actual incarceration is required.
State v. Sandlin
(1999), 86 Ohio St. 3d 165, 168 -- "...(A) conviction of DUI always bars expungement of the record of conviction for another criminal offense."
State v. Nagle
(1995), 105 Ohio App. 3d 80 -- A hit skip conviction may not be expunged.
of the Revised Code do not apply to convictions...under Chapter
. of the Revised Code."
Fairborn v. DeDomenico
(1996), 114 Ohio App. 3d 590 -- Because of the way the expungement statues are phrased, it is possible to expunge traffic ordinance violations though comparable offenses under state law may not be expunged.
State v. Heaton
(1995), 108 Ohio App. 3d 38 -- Court finds application of amended statute now barring expungement of gross sexual imposition convictions not to be an impermissible retroactive law, characterizing expungement as remedial rather than substantive law, and noting expungement is discretionary. Also see
State v. Davenport
(1996), 116 Ohio App. 3d 6 (equal protection, due process and 8th Amendment claims rejected);
State v. Hartup
(1998), 126 Ohio App. 3d 768 (change in the law did not make initial guilty plea invalid).
Expungement Following Conviction, Other Issues
Last updated 3/1/2016
State v. Julian
, 12th Dist. Butler No. CA2015-05-088,
Applicant was an eligible offender for expungement purposes where applicant's two felony convictions were connected with the same act and committed at the same time.
State v. Hilbert
(2001), 145 Ohio App. 3d 824, 828 -- "
are to be liberally construed, the relief available is to be liberally granted, and it is an abuse of discretion not to do so."
State v. Pettis
(1999), 133 Ohio App. 3d 618 -- Theft and trafficking in food stamps defendant was not entitled to expungement until restitution was completely paid. A cognovit note for the amount due does not discharge this obligation.
State v. Hamilton
(1996), 75 Ohio St. 3d 636 -- Syllabus: "A prosecutor's participation in a hearing on an application to seal the record of a conviction is not limited to the issues specified by the prosecutor in a written objection filed pursuant to
." Prosecutor may simply appear at the hearing and oppose expungement.
Expungement Following Acquittal or Dismissal
State v. Esson
, Franklin App. No. 11AP-28,
– Defendant was found not guilty at trial where he argued self-defense. Trial judge summarily denied judicial release. Defendant was not provided an opportunity to speak. Reversed.
State v. Crews
, 179 Ohio App. 3d 521,
– Defendant, now living in Florida, applied for expungement of charges he was acquitted of ten years ago. (1) Notice mailed on October 12th for a hearing in Dayton on the 17th was not sufficient. (2) The failure of the state to object does not require expungement as a matter of default.
still requires the court to weigh the interests of the applicant against the legitimate need, if any, of government to maintain records.
State v. Garry
, 173 Ohio App. 3d 168,
– Defendant was found not guilty of hitting a police horse. Trial court twice refused to order his arrest record expunged. ¶7: "When people are found not guilty, they have not lost the presumption of innocence. The government must make a strong showing to defeat the sealing of a 'not guilty' finding. Reversed as an abuse of discretion."
State v. Lynch
, 145 Ohio Misc. 2d 84,
– Trial court judge refuses to expunge records where the defendant refused a test and was subsequently acquitted at trial. In his view, he may not excluded DMV records from the expungement order, as would have been acceptable to the defendant. The judge wants those records to include the refusal here to be counted when determining the length of the suspension in the event of a future refusal. Then the opinion turns into a rant against reckless pleas in OMVI cases.
State ex rel. Cincinnati Enquirer v. Winkler
, 149 Ohio App. 3d 350,
-- Newspaper sought access to sealed court records of a police officer who had been acquitted in a notorious case. Court agrees to determine constitutionality of expungement statute adjunct to a mandamus action, without requiring paper to seek declaratory judgment. To save the statute from being found unconstitutional, it is interpreted to require consideration of the public's right of access in cases of social, historic or political significance. Also see
State ex rel. Cincinnati Enquirer v. Winkler
, 150 Ohio App. 3d 10,
, holding that the trial judge properly ordered officer's record sealed. See dissent.
State v. Berry
(1999), 135 Ohio App. 3d 250 -- Following a no bill, a court may not dismiss an application to seal the record without conducting the mandated hearing. Nor may the court categorically deny such applications on the basis the matters investigated were sex offenses.
Pepper Pike v. Doe
(1981), 66 Ohio St. 2d 374 -- Syllabus: "(1) 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 proceedings. (2) 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."
State v. S.R.
(1992), 63 Ohio St. 3d 590 -- Defendant was found not guilty of contributing to the delinquency of a minor and sought to have records made during investigation by children services agency sealed. Syllabus: "Records of a county children services board investigation made pursuant to
are 'official records' within the meaning of
. The trial court should weigh the privacy interests of the person seeking to seal the official records against the legitimate needs of the agency in maintaining those records."
In re Application to Seal Record of No Bill
(1999), 131 Ohio App. 3d 399 -- Although child service agency records may no longer be subject to statutory expungement, courts retain the constitutional remedy of judicial expungement with regard to such records.
Pepper Pike v. Doe
(1981), 66 Ohio St. 2d 374 applied.
State v. Grove
(1986), 29 Ohio App. 3d 318 -- The court is not required to grant every request for expungement made by defendants who have been acquitted. The court may weigh the legitimate governmental need to maintain records against the interests of the applicant. Also see
State v. Haney
(1991), 70 Ohio App. 3d 135 -- Court did not abuse its discretion by denying expungement to defendant found not guilty by reason of insanity of murder.
State v. Netter
(1989), 64 Ohio App. 3d 322 -- Judicial expungement is not available to repeat offenders who were convicted of the offense and are ineligible for statutory expungement. Also see
State v. Weber
(1984), 19 Ohio App. 3d 214.
State v. Fortado
(1996), 108 Ohio App. 3d 697 -- Defendant who had successfully completed treatment in lieu of conviction, and had charges dismissed pursuant to
, had not been convicted and was immediately eligible for expungement pursuant to
. There was no need to wait the three years prescribed under
if there has been a conviction.
State v. Cope
(1996), 111 Ohio App. 3d 310 -- Person granted a pardon is entitled to judicial expungement, even though he was not a first offender. Prior denial of statutory expungement was not res judicata.
Dayton v. Sheibebberger
(1996), 115 Ohio App. 3d 529, 535-536 -- Under
, the applicant and the government stand on equal footing in balancing the applicant's interest in expungement against the state's interest in maintaining records. Enactment of the statute is viewed as superseding
Pepper Pike v. Doe
(1981), 66 Ohio St. 2d 374.
State ex rel. Lewis v. Lawrence County
(1994), 95 Ohio App. 3d 565 -- For a record to be sealed pursuant to
, the defendant must be found not guilty or the indictment or complaint must be dismissed. A nolle is not a dismissal. Court also indicates a guilty verdict on one count may prevent sealing the record as to the remaining counts.
Bound v. Biscotti
(1995), 76 Ohio Misc. 2d 6 -- Though the expungement statutes do not reach situations where there has been arrest but no charges were filed, judicial expungement is available in such circumstances.
In re Anspach
(2000), 136 Ohio App. 3d 535 -- Juvenile court did not abuse its discretion in refusing to seal the record where the offender continued to deny responsibility for his actions and while staying out of trouble as an adult had accomplished little.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.