Runions v. Burchett

117 N.E.3d 66

2018 Ohio 2754

William R. RUNIONS, Plaintiff-Appellant

v.Sheriff Deborah K. BURCHETT, in her capacity as Sheriff of Clark County, Defendant-Appellee

No. 2017-CA-62

Court of Appeals of Ohio, Second District, Clark County.

Rendered on July 13, 2018

STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 865 S. Dixie Drive, Vandalia, Ohio 45377, Attorney for Plaintiff-Appellant

ANDREW PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502, Attorney for Defendant-Appellee

OPINION

DONOVAN, J.

{¶ 1} Appellant William R. Runions appeals a judgment of the Clark County Court of Common Pleas that upheld a decision of appellee Clark County Sheriff's Office (the "Sheriff") denying Runions's application for a concealed carry license (CCL). Runions filed a timely notice of appeal with this Court on June 29, 2017.

{¶ 2} In the early 1980s, Runions was convicted of three felonies, to wit: breaking and entering (1981); receiving stolen property (1981); and uttering a forged check (1984). After completing his sentences for these convictions, Runions has maintained a law-abiding lifestyle and committed no further crimes. Over 30 years later, on August 9, 2016, Governor of Ohio John R. Kasich granted Runions a full and unconditional pardon for all three felonies.

{¶ 3} Shortly thereafter on September 6, 2016, Runions applied for a CCL with the Sheriff. Runions attached a copy of his pardon to the CCL application. Basing his decision on Runions's three felony convictions, the Sheriff denied his application for a CCL.

{¶ 4} On October 21, 2016, Runions, through counsel, filed an administrative appeal of the Sheriff's decision in the Clark County Court of Common Pleas. On February 21, 2017, Runions filed a brief in support of his administrative appeal. The Sheriff filed her brief in opposition to Runions's administrative appeal on March 10, 2017, and Runions filed a reply brief on March 20, 2017. Thereafter on March 30, 2017, the trial court filed a brief entry overruling Runions's administrative appeal, finding that his three felony convictions render him ineligible for a CCL.

{¶ 5} It is from this decision that Runions now appeals.

Standard of Review

{¶ 6} Pursuant to R.C. 2923.125(D)(2)(b), a decision of a county sheriff to deny an application for a concealed carry license is appealable under R.C. 119.12 to the common pleas court. R.C. 119.12 provides the standard of review for the common pleas court:

The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of this finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.

{¶ 7} As discussed by the Supreme Court of Ohio in Bartchy v. State Bd. of Edn. , 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d 1096, ¶ 37, a review by the common pleas court of an administrative agency's decision requires a factual inquiry and a legal inquiry. Both the common pleas court and the appellate court must give deference to the agency's resolution of any evidentiary conflicts, and factual findings are presumed to be correct, absent an abuse of discretion. Id. However, questions of law must be reviewed de novo to determine whether the administrative order is in accordance with law. Anguiano v. Ohio Dept. of Edn. , 2d Dist. Darke No. 2014-CA-2, 2014-Ohio-2810, 2014 WL 2943067, ¶ 6, citing Bartchy at ¶ 43. The case before us requires a determination whether the trial court properly interpreted and applied the statutory qualifications for obtaining a concealed carry license. "The interpretation of a statute involves a purely legal question. Thus, we conduct a de novo review of a trial court's judgment interpreting a statute and afford no deference to the trial court's interpretation of a statute." Salgado v. Montgomery Cty. Sheriff , 2d Dist. Montgomery Nos. 26502, 2015-Ohio-3387, 2015 WL 5000131, ¶ 9, citing Washington Cty. Home v. Ohio Dept. of Health , 178 Ohio App.3d 78, 2008-Ohio-4342, 896 N.E.2d 1011, ¶ 27 (4th Dist.).

{¶ 8} Runions's sole assignment of error is as follows:

THE LOWER COURT ERRED BY UPHOLDING THE SHERIFF'S DENIAL OF MR. RUNIONS' C[C]L BECAUSE HIS CONVICTIONS WERE PARDONED BY THE GOVERNOR OF THE STATE OF OHIO.

{¶ 9} In his sole assignment, Runions contends that the trial court erred when it upheld the Sherriff's decision denying his application for a CCL because he had received a pardon for his felony convictions. Specifically, Runions argues that an unconditional pardon relieves a CCL applicant from a disability by operation of law pursuant to R.C. 2923.125(D)(4). Therefore, Runions argues that since he was relieved from the disability when he was pardoned, the Sheriff could not use his felony convictions as a basis upon which to deny his CCL application.

Effect of a Full Pardon

{¶ 10} In State v. Boykin , 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, the Ohio Supreme Court stated the following:

The term "pardon" is not defined or further explained in the Constitution.

Sterling v. Drake , 29 Ohio St. 457, 460 (1876). We have stated that "[a] full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction." State ex rel. Atty. Gen. v. Peters , 43 Ohio St. 629, 650, 4 N.E. 81 (1885). Similarly, the General Assembly defines "pardon" as "the remission of penalty by the governor in accordance with the power vested in the governor by the constitution." R.C. 2967.01(B). R.C. 2967.04(B) further provides that "[a]n unconditional pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted."

Id. at ¶ 20.

{¶ 11} Nevertheless, the Ohio Supreme Court has also held that "a pardon provides only forgiveness, not forgetfulness; [t]he pardon does not wipe the slate clean . (Emphasis added; citations omitted.) State v. Radcliff , 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 36.

{¶ 12} Along the same vein as the Radcliff court, the U.S. Supreme Court has discussed the effect of a pardon. See Angle v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. , 151 U.S. 1, 19, 14 S.Ct. 240, 38 L.Ed. 55 (1894) (although an executive pardon relieves the wrongdoer from public punishment, it does not relieve the wrongdoer from civil liability); Burdick v. United States , 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915) (a pardon "carries an imputation of guilt; acceptance a confession of it"); Carlesi v. New York , 233 U.S. 51, 59, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (in sentencing a defendant as a habitual offender, a court may consider "past offenses committed by the accused as a circumstance of aggravation, even although for such past offenses there had been a pardon granted"); Nixon v. United States , 506 U.S. 224, 232, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is [a]n executive action that mitigates or sets aside punishment for a crime).

The Statutory Scheme for Obtaining a CCL

{¶ 13} The process of obtaining a concealed carry license is outlined in R.C. 2923.125. Residents of Ohio can submit a completed application form to the sheriff of the county in which the applicant resides or an adjacent county. R.C. 2923.125(B). The sheriff must provide the application form and a pamphlet created by the Ohio Attorney General. R.C. 2923.125(A). The applicant must attach a color photo, competency certifications, and an application fee. R.C. 2923.125(B). Upon receipt of a completed form, the sheriff is directed to complete a criminal background check, and if all requirements are met, the sheriff must issue a license within forty-five days. R.C. 2923.125(D). The applicant must be at least 21 years old, must not be a fugitive from justice, must not be under indictment or charged with any felony or certain other offenses, must not have been adjudicated as mentally incompetent, must not be the subject of a civil protection order, must not be an unlawful user of any controlled substances, must not have been dishonorably discharged from the armed services, must not have renounced U.S. citizenship, and must not have been adjudicated a delinquent child for committing specified offenses. Id.

{¶ 14} R.C. 2923.125(D)(1)(e) states that a sheriff shall issue an individual a CCL if "the applicant has not been convicted of or pleaded guilty to a felony * * *." (Emphasis added.) Therefore, if an applicant has been convicted of a felony, he or she is generally ineligible for a CCL, and the sheriff must deny the application. However, pursuant to R.C. 2923.125(D)(4), there are two exceptions for when an applicant has been convicted of a felony, to wit:

(4) If an applicant has been convicted of or pleaded guilty to an offense identified in division (D)(1)(e), (f), or (h) of this section or has been adjudicated a delinquent child for committing an act or violation identified in any of those divisions, and if a court has ordered the sealing or expungement of the records of that conviction, guilty plea, or adjudication pursuant to sections 2151.355 to 2151.358, sections 2953.31 to 2953.36, or section 2953.37 of the Revised Code or the applicant has been relieved under operation of law or legal process from the disability imposed pursuant to section 2923.13 of the Revised Code relative to that conviction, guilty plea, or adjudication, the sheriff with whom the application was submitted shall not consider the conviction, guilty plea, or adjudication in making a determination under division (D)(1) or (F) of this section * * *.

Id. The first instance where a sheriff "shall not consider" an...