Supreme Court Orders Reopening of Sealed Records in Rape-Flier Case
The Ohio Supreme Court today directed a Butler County judge to set aside his order sealing records related to a charge against a student who posted a flier advocating the rape of women at an Ohio university.
In a 5-2 decision, the court ruled that the judge in the case did not adhere to the requirements of Ohio law when sealing the criminal case. The Cincinnati Enquirer had requested that the records be reopened.
Justice Judith Ann Lanzinger, who wrote the court’s opinion, denied the Enquirer’s requests for two other writs in a related case.
“John Doe” was prosecuted in 2012 in connection with a flier titled “Top Ten Ways to Get Away with Rape,” which had been distributed on the Miami University campus in Oxford, Ohio. In November 2012, Doe pled guilty to disorderly conduct, a minor misdemeanor, with the understanding that the case records would be removed from public view. He completed a court form to seal the records and immediately submitted it. The form incorrectly referenced a section of Ohio law that governs sealing records in cases in which there is no conviction. The court approved the application and sealed the record.
The Enquirer filed a case with the Ohio Supreme Court asking for a writ of mandamus to compel Butler County Judge Robert Lyons to vacate his order sealing the record. In response, Lyons admitted that he had relied on the wrong section of Ohio law to seal the record but still opposed the writ. He then unsealed Doe’s court record in the case, set aside the conviction, and allowed Doe to withdraw his guilty plea. The state dismissed the disorderly conduct charge, and the court immediately resealed the record.
Meanwhile, the Enquirer discovered that the judge had sealed many other records of minor-misdemeanor convictions using a form citing R.C. 2953.52, which deals with sealing records of non-convictions, rather than R.C. 2953.32, which governs expungement following convictions. The newspaper filed a second case asking Lyons to provide records of other convictions that were incorrectly sealed under R.C. 2953.52 during the previous five years.
Sealing records of convictions
R.C. 2953.32 provides that “an eligible offender may apply to the sentencing court … for the sealing of the conviction record. Application may be made … at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.” Once an application is filed, the law states that the court “shall set a date for a hearing,” and the prosecutor may file any objections “prior to the date set for the hearing.”
According to the statute, if the court determines “that the applicant is an eligible offender …, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records … sealed are not outweighed by any legitimate governmental needs to maintain those records,” and the applicant has been rehabilitated, the court shall seal the official records of the case.
Justice Lanzinger noted that “eligible offender” is defined as “anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. … For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor … is not a conviction.”
This means, Justice Lanzinger explained, that minor misdemeanors are not counted as a prior conviction when a court decides whether an offender is eligible to have a record of conviction sealed.
In addition, the applicant must be rehabilitated to the court’s satisfaction, she wrote.
“This means some time must pass before the application is made,” she reasoned. “If sealing could occur immediately upon conviction, rehabilitation would be irrelevant. R.C. 2953.32(A)(1) requires a one-year waiting period for misdemeanor convictions, and it does not exclude minor misdemeanor convictions from the waiting period.”
While Lyons acknowledged that the court’s first entry cited the wrong section of law, Justice Lanzinger concluded that the entry also did not show the proper findings to support sealing the record of Doe’s conviction.
“Nowhere is it found that the applicant is an ‘eligible offender’ or that the applicant has attained rehabilitation to the satisfaction of the court,” she wrote. “These required findings were not made, and so the entry sealing John Doe’s conviction was not valid.”
Sealing records of dismissals and not-guilty verdicts (i.e., non-convictions)
R.C. 2953.52 details the procedures for sealing records in cases in which charges are dismissed or a person is found not guilty. After the dismissal or not-guilty verdict, a person may file an application to seal the record at any time, but the statute still requires the court to set a date for a hearing to consider the application, Justice Lanzinger explained.
“… R.C. 2953.52 does not provide for immediate sealing,” Justice Lanzinger wrote. “If Lyons had ‘set a date for a hearing,’ as the statute mandates at a reasonable time in the future then the Enquirer could have had notice and been present to exercise its rights.”
“Because Lyons did not follow the proper statutory procedure, the case document here remains a court record subject to public access,” she concluded.
Request for other case records of convictions sealed referencing the incorrect statute
The Supreme Court held, however, that the Enquirer is not entitled to the other records that may have cited the wrong Revised Code section.
“Without evidence to the contrary, an application may have in fact been made, a hearing date set, and a hearing properly held,” Justice Lanzinger wrote. “While it is also possible that a minor-misdemeanor conviction was sealed immediately rather than after the one-year waiting period, we cannot ascertain this without unsealing the order. Nor is it clear when a hearing may have been held. Without evidence of improper sealing then, as was provided in the Doe case, a sealed record is presumed to be ‘a document or information in a document exempt from disclosure under state, federal, or the common law.’”
Joining the court’s majority were Chief Justice Maureen O’Connor and Justices Judith L. French and William M. O’Neill. Tenth District Court of Appeals Judge Lisa L. Sadler, who heard the case on behalf of Justice Sharon L. Kennedy, concurred in only the judgment of the court in these cases.
Justice Terrence O’Donnell concurred in judgment in part and dissented in part in an opinion joined by Justice Paul E. Pfeifer.
Justice O’Donnell dissented from the majority’s decision ordering Doe’s records to be unsealed, explaining that R.C. 2953.32 vested Lyons with authority to seal the record of conviction for a minor misdemeanor, because “[t]he statute does not limit eligibility to those who have committed a felony offense or a misdemeanor offense, but rather applies to anyone who has been convicted of an offense, and a minor misdemeanor is an offense in Ohio.” He also maintained that a court may seal the record of conviction for a minor misdemeanant immediately upon disposition of the charge, pointing out that unlike convictions for felonies and misdemeanors, “[t]he General Assembly did not prescribe a waiting period to seal a conviction for a minor misdemeanor.” He rejected the view that the waiting period provided for sealing misdemeanor convictions also applies to minor misdemeanors, writing that “pursuant to R.C. 2901.02, misdemeanors and minor misdemeanors are separate classifications of offenses … . The General Assembly could have made both misdemeanors and minor misdemeanors subject to the one-year waiting period, but it chose not to do so, and ‘a court may not add words to an unambiguous statute, but must apply the statute as written.’”
Nor did Justice O’Donnell agree that the statutory requirement for an applicant to demonstrate rehabilitation to the satisfaction of the court required the conclusion that a waiting period applies, because “the convictions at issue here are for minor misdemeanors, the lowest offense classification designated by the legislature.”
“In fact,” he continued, “the General Assembly distinguished them from felonies and other misdemeanors, which it subjected to a waiting period, because of the diminished culpability and harm caused by committing a minor misdemeanor. It is therefore reasonable that no waiting period is needed to evaluate the rehabilitation of a minor misdemeanant. Thus, contrary to the majority’s assertion, the lack of a waiting period for minor misdemeanants does not make the trial court’s duty to find that the offender has attained satisfactory rehabilitation irrelevant. Rather, an offender who is unable to demonstrate satisfactory rehabilitation may not have the record sealed, regardless of whether a waiting period applies.”
Justice O’Donnell determined that Lyons’s inadvertent reference to the wrong code section in the sealing orders did not invalidate them, explaining that R.C. 2953.32 had authorized the court to seal the conviction records of John Doe and of other similarly situated individuals convicted of minor misdemeanors in the first instance, and “although the court sealed records with an entry that inadvertently referenced R.C. 2953.52, not R.C. 2953.32, such a clerical mistake is apparent on the record and does not affect the validity of the judgment. … The failure to cite the correct statute as authority for judicial action is such a nonsubstantive error that does not affect the validity of the order.”
Similarly, Justice O’Donnell concluded, “[t]he court’s decision to conduct the hearing required by R.C. 2953.32(B) and 2953.52(B) immediately upon disposition does not invalidate the order to seal. There is no waiting period for a minor misdemeanant to apply to seal a record, and Judge Lyons had scheduled the hearing on the application for the same day. There is no statutory language requiring the court to set a hearing date ‘at a reasonable time in the future’ … or to provide notice of the hearing to the public. Rather, the statutes direct the court only to notify the prosecutor of the hearing, and the prosecutor alone is granted the right to object to sealing.
Justice O’Donnell concurred with the judgment of the court denying writs ordering the court to unseal the records of minor misdemeanants for a five-year period, writing that “Lyons had authority to seal the records of minor misdemeanants upon disposition of the charges, and the errant reference to the wrong code section in the entries and the failure to schedule a future hearing on them does not invalidate the court’s orders in those cases.”
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