State v. Radcliff

142 Ohio St.3d 78

28 N.E.3d 69

2015 Ohio 235

The STATE of Ohio, Appellee,

v.James RADCLIFF, Appellant.

Nos. 2012–1985

2013–0004.

Supreme Court of Ohio.

Submitted June 24, 2014.

Decided Jan. 28, 2015.

Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert and Michael P. Walton, Assistant Prosecuting Attorneys, for appellee.

Yeura R. Venters, Franklin County Public Defender, and Timothy E. Pierce and John W. Keeling, Assistant Public Defenders, for appellant.

O'CONNOR, C.J.

{¶ 1} In this appeal, we answer questions that were not addressed in our recent decision in State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, which held that "[a] gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed." Id. at syllabus.

{¶ 2} We are presented with a certified conflict between the decision of the Tenth District Court of Appeals in this case and a prior decision of the First District Court of Appeals, State v. Cope, 111 Ohio App.3d 309, 676 N.E.2d 141 (1st Dist.1996). The conflict question asks, "May a trial court exercise jurisdiction to seal the record of a pardoned conviction where the petitioner has other offenses on his record?"

{¶ 3} And in a discretionary appeal that we consolidated with the certified conflict, we are presented with a proposition of law that states, "A trial court has the inherent authority to seal the records of a conviction, which has been erased by a pardon from the governor, in order to give effect to an important constitutional provision." 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 367.

{¶ 4} We answer the certified question in the negative, reject the holding in Cope, and overrule the proposition of law. We therefore affirm the judgment of the Tenth District Court of Appeals.

RELEVANT BACKGROUND

{¶ 5} On January 7, 2011, Governor Ted Strickland, acting under the authority conferred on him by Article III, Section 11 of the Ohio Constitution, granted a "full and unconditional pardon" to appellant, James Radcliff. That pardon extended to five convictions that occurred in several counties approximately 30 years ago, including a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver.

{¶ 6} On February 28, 2011, Radcliff applied to the Franklin County Common Pleas Court for an order sealing his conviction in that forum. Appellee, the state of Ohio, opposed his application, arguing that Radcliff was ineligible to have his record sealed under the statutory framework of R.C. 2953.32 because he had at least seven convictions and therefore was not a "first offender" within the meaning of the statute. The state also argued that the court lacked the inherent authority to seal the record under Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981).

{¶ 7} After conducting a hearing, the trial court granted Radcliff's application to seal. In its resulting order, the trial court stated that it was acting "[i]n accordance with" R.C. 2953.32 and that the sealing of Radcliff's record was "consistent with the public interest."

{¶ 8} The state appealed to the Tenth District Court of Appeals. The appellate court reversed.

{¶ 9} The appellate court recognized that although the trial court had cited R.C. 2953.32 in its order granting the motion to seal, no statute authorized the sealing of Radcliff's record based on a gubernatorial pardon. And the appellate court specifically noted that Radcliff had acknowledged that the statutory scheme did not entitle him to have his record sealed and instead had asked the court to seal the Franklin County record solely because the governor had issued a pardon for those crimes. 2012-Ohio-4732, 978 N.E.2d 1275, at ¶ 9 and 10.

{¶ 10} The appellate court turned to our decision in Pepper Pike, which held that a court may seal criminal records after applying a balancing test that "weighs the privacy interest of the defendant against the government's legitimate need to maintain records of criminal proceedings" and "where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction." Pepper Pike at paragraph two of the syllabus. But as the appellate court recognized, at the time we decided Pepper Pike, the General Assembly had not yet enacted R.C. 2953.52. Radcliff at ¶ 12.

{¶ 11} The appellate court held that the vitality of Pepper Pike had been limited by subsequent case law that applied Pepper Pike only in cases in which the defendant had not been convicted of a crime. Id . at ¶ 51. After an extensive review of this court's precedent on gubernatorial pardons, the United States Supreme Court's decisions on presidential pardons, and the decisions of its sister appellate courts, the appellate court ultimately concluded that "a pardon neither erases the conviction nor renders the pardon recipient innocent as if the crime were never committed." Id . It concluded that Radcliff was not eligible for judicial "expungement"¹ or other statutory relief, and it therefore vacated the trial court's decision and remanded the cause with instructions to deny Radcliff's application to seal. In so doing, however, the appellate court characterized its decision as "a particularly difficult one to reach, knowing today's technologically based society makes the harm perpetrated through a public criminal record accessible to virtually everyone." Id . at ¶ 53. It further noted that Radcliff had made an "impressive turn-around" and was "deserving of a fresh start." Id . at ¶ 54.

{¶ 12} Subsequently, the Tenth District certified its decision as in conflict with Cope, 111 Ohio App.3d 309, 676 N.E.2d 141. In Cope, the First District held that "a trial court may exercise its jurisdiction to seal the record of a conviction which has been erased by a pardon, regardless of whether the petitioner has other offenses on his record." Id. at 312, 676 N.E.2d 141.

{¶ 13} We recognized the conflict, accepted Radcliff's discretionary appeal, and consolidated the causes. 134 Ohio St.3d 1466, 2013-Ohio-553, 983 N.E.2d 367. For the reasons that follow, we resolve the interdistrict conflict by rejecting Cope, and we reject the proposition of law presented in Radcliff's discretionary appeal. We therefore affirm the decision of the Tenth District Court of Appeals.

ANALYSIS

{¶ 14} The appellate court found that the record in this case suggests that Radcliff deserves redemption. But if he is to have that redemption, it must come from the General Assembly.

The Sealing of a Record Is a Privilege That Flows Primarily from the Legislature

{¶ 15} Our analysis is driven initially by what we have held previously:

"the sealing of a criminal record is a ‘ "privilege, not a right." ’ " State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 15, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 11, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. Accord State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000) ; State v. Hamilton, 75 Ohio St.3d 636, 639–640, 665 N.E.2d 669 (1996). Sealing a criminal record at the request of the offender is an " ‘act of grace created by the state.’ " Boykin at ¶ 11, quoting Hamilton at 639, 665 N.E.2d 669. Accordingly, a court may seal an offender's conviction record "only when all requirements for eligibility are met." Id., citing Futrall at ¶ 6.

{¶ 16} The authority to seal or expunge a criminal record comes from two sources.

{¶ 17} In the usual course, the legislature determines the eligibility for sealing a record. The General Assembly has done so through R.C. 2953.32 and 2953.52, which reflect Ohio's public policy on sealing records. As the Tenth District recognized, Ohio's statutes do not provide Radcliff with authority to secure the sealing of his record, notwithstanding Governor Strickland's pardon:

R.C. 2953.52(A) permits any person who has been found not guilty by a jury, who is the defendant named in a dismissed indictment, or against whom the Grand Jury enters a no bill, to apply to the court for an order sealing the official records of the case. R.C. 2953.32(A)(1) permits a first offender to apply to the sentencing court for an order sealing the record of conviction. A first offender is "anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction." R.C. 2953.31(A).

Under either section, the court must determine if the prosecutor filed an objection to the application and, if so, consider the prosecutor's reasons for the objection. R.C. 2953.32(B) ; R.C. 2953.52(B) ; Koehler [v. State, 10th Dist. Franklin No. 07AP–913, 2008-Ohio-3472] at ¶ 13. The court also must weigh the applicant's interests in having the records sealed against the legitimate needs, if any, of the government to maintain the records. R.C. 2953.32(C)(1) ; R.C. 2953.52(B)(2)(d). If the applicant fails to satisfy any one of the statutory requirements, the court must deny the application. Id . at ¶ 13, citing State v. Krantz, 8th Dist. No. 82439, 2003-Ohio-4568, ¶ 23. None of the applicable statutes permits a defendant to seek expungement after obtaining a gubernatorial pardon, and defendant acknowledges he is not entitled to expungement under either statutory provision.

Radcliff, 2012-Ohio-4732, 978 N.E.2d 1275, at ¶ 8–9. See also Boykin at ¶ 17 ("Neither R.C. 2953.32 nor R.C. 2953.52 currently provides that a gubernatorial pardon automatically entitles the recipient to have the records of the conviction sealed. In fact, the word ‘pardon’ does not appear in either of those statutes").

{¶ 18} Instead of the statutory authority to seal his record, Radcliff relies on what he asserts is the judiciary's inherent authority to seal records. We recognized the judiciary's authority to seal certain criminal...