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When One of Offender’s Convictions May Not Be Sealed, Law Does Not Allow Sealing Record of Other Offenses

2008-2391.  State v. Futrall, Slip Opinion No. 2009-Ohio-5590.
Lorain App. No. 08CA009388, 2008-Ohio-5654.  Judgment affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., concurs separately.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-5590.pdf

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(Oct. 29, 2009) The Supreme Court of Ohio ruled unanimously today that when an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to R.C. 2953.32, and one of those convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions. 

The Court’s lead opinion, authored by Justice Evelyn Lundberg Stratton, affirmed a ruling by the 9th District Court of Appeals.

Based on a single incident in 2001 in which he engaged in an altercation with his estranged wife, Douglas Futrall of Lorain was charged with and entered guilty pleas to five misdemeanor offenses. He was sentenced to a term of community control from which he obtained an early release after meeting all of the conditions imposed by the court, and committed no further offenses during the ensuing five-year period. In 2007, Futrall filed a petition under Ohio’s expungement statute, R.C. 2953.32, asking the trial court to seal the record of four of his convictions. In that petition, Futrall acknowledged that the remaining conviction, for aggravated menacing, is classified as a violent offense and therefore is not eligible to be sealed under R.C. 2953.36.

The trial court determined that Futrall met the statutory criteria for sealing the record of his four eligible convictions. The judge ruled, however, that because the record of his aggravated menacing indictment and conviction could not be sealed, as a matter of law his other convictions could not be sealed either. Futrall appealed that ruling. On review, the 9th District Court of Appeals affirmed the decision of the trial court. In its opinion, the court of appeals held that because Futrall’s four eligible offenses were recorded in the same arrest reports, charged in the same indictment and decided in the same judgment and sentencing entries as his ineligible conviction for aggravated menacing, “it would be impossible” for the trial court to comply with the requirements of the expungement statute by completely eliminating all records of the four eligible counts while at the same time retaining all the records documenting his aggravated menacing charge and conviction.

Futrall sought and was granted Supreme Court review of the 9th District’s decision.

Writing for the Court in today’s decision, Justice Stratton affirmed the conclusion and legal reasoning of the court of appeals.

She wrote: “Three statutes support our conclusion that the eligible convictions may not be separated from the ineligible convictions for purposes of expungement. First, although this case does not directly call upon us to determine whether the defendant is a first offender, we find support for our holding in the definition of first offender in R.C. 2953.31:  ‘When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction.’ (Emphasis added).”

“Second, although R.C. 2953.61 is not directly applicable to this case, it, too, is instructive on the issue of how sealing of multicount convictions should be handled.  R.C. 2953.61, entitled ‘Sealing of records in cases of multiple charges,’ provides: ‘When a person is charged with two or more offenses as a result of or in connection with the same act and at least one of the charges has a final disposition that is different than the final disposition of the other charges, the person may not apply to the court for the sealing of his record in any of the cases until such time as he would be able to apply to the court and have all of the records in all of the cases pertaining to those charges sealed  ...’  (Emphasis added.)”

“Finally, the process and duties imposed for sealing records outlined in R.C. 2953.32 guide us in answering the question before us. R.C. 2953.32(C)(2) states that upon determining that the applicant’s record qualifies for sealing under R.C. 2953.32(C)(1), the court ‘shall order all official records pertaining to the case sealed and all index references to the case deleted ...’  (Emphasis added.)  R.C. 2953.32(C)(2). Meeting the requirements of Futrall’s position – parsing out those convictions that can be sealed from those that cannot – would be impossible: a trial court is unable to order all index references to the case deleted while at the same time ordering that index references to one conviction in that case be maintained because the case cannot be lawfully sealed.

“In enacting these provisions, the General Assembly appears to have recognized the inherent difficulty of sealing only some convictions in one case. Partial sealing would have to be attempted for everything from arrest records to written statements to transcripts to journal entries. How this task would be accomplished and who would have the authority to attempt it are questions that underscore the impractical reality of an attempt to seal certain convictions in one case while revealing others. If the General Assembly had intended only partial sealing, it would have chosen phrases other than ‘all official records’ or ‘all index cards’ in order to give guidance on how to seal a partial expungement.  We therefore conclude that R.C. 2953.31 (definitions), 2953.61 (sealing of records in cases of multiple charges), and 2953.32(C)(2) (sealing of record of conviction) illustrate the General Assembly’s intent to authorize the sealing of cases, not the sealing of individual convictions within cases.”

Justice Stratton’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Thomas J. Moyer entered a separate opinion in which he concurred with the majority’s judgment, but noted that the absence of clear statutory language addressing the specific issue raised in this case had forced the Court  “to fashion interstitial law, covering the gap between the existing law and the issue in this case by tugging at the edges of several closely related statutes.” The Chief Justice wrote that, in his view, an opinion of the Supreme Court “is not the preferred method of lawmaking. At issue is the ability of a person to expunge the record of his past offenses. Such an issue is better resolved in the General Assembly. Therefore, I write separately to urge the General Assembly to address the issues posed in this case.”

Justices O’Connor, O’Donnell and Lanzinger joined Chief Justice Moyer’s opinion.

D. Chris Cook, 440.246.2665, for Douglas Futrall.

Mary R. Slanczka, 440.329.5396, for the state and Lorain County prosecutor’s office.

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