State v. Vanzandt (Slip Opinion) , 142 Ohio St. 3d 223 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Vanzandt, Slip Opinion No. 2015-Ohio-236.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-236
THE STATE OF OHIO, APPELLEE, v. VANZANDT, F.K.A. ASBERRY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Vanzandt, Slip Opinion No. 2015-Ohio-236.]
Official records that have been sealed pursuant to R.C. 2953.52 cannot be made
accessible for purposes other than those provided in R.C. 2953.53(D).
(No. 2013-1010—Submitted May 27, 2014—Decided January 28, 2015.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-130079, 2013-Ohio-2290.
______________________
SYLLABUS OF THE COURT
1. When a statutory provision imposing a mandatory obligation has specifically
enumerated exceptions, a court does not have discretion to create
additional exceptions.
2. Official records that have been sealed pursuant to R.C. 2953.52 cannot be made
accessible for purposes other than those provided in R.C. 2953.53(D).
_____________________
SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} In this appeal, we address whether a court has discretion to unseal
records of criminal proceedings for purposes other than those provided in R.C.
2953.53(D). We hold that the court does not have discretion to create additional
exceptions to permit access to sealed records, and we therefore reverse the
judgment of the First District Court of Appeals.
Relevant History
{¶ 2} Appellant, Terrell Vanzandt, formerly known as Terrell Asberry,
was charged with four criminal offenses related to drug trafficking and was
subsequently acquitted by a jury. Vanzandt then moved to seal the records in that
case pursuant to R.C. 2953.52. The motion was granted by the trial court on
October 4, 2012, with no objection from appellee, the state of Ohio. But three
days after the trial court entered judgment sealing Vanzandt’s record, the state
charged Vanzandt with another crime, alleging that Vanzandt had retaliated
against the state’s informant in the drug-trafficking case. More than three months
later, on January 15, 2013, the state moved to unseal the record of Vanzandt’s
drug-trafficking case so that it could be used as evidence in the retaliation case.
The trial court granted the state’s motion over Vanzandt’s objection, holding that
evidence of the case was crucial to the state’s pending retaliation case against
Vanzandt.
{¶ 3} The First District Court of Appeals affirmed the trial court’s
judgment, holding that a court’s authority with respect to sealing a criminal record
does not originate solely from the statutory scheme. The court cited Pepper Pike
v. Doe, 66 Ohio St. 2d 374, 421 N.E.2d 1303 (1981), in support of its holding.
The appellate court noted that R.C. 2953.53(D) provides that the sealed records of
criminal cases ending in acquittal or dismissal “shall not be available to any
person” other than the specific exceptions enumerated in the statute. However,
the appellate court held that nothing in the statute addresses the question whether
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January Term, 2015
a trial court retains the authority to unseal records for reasons other than those
enumerated.
{¶ 4} The First District determined that Pepper Pike’s holding regarding
a court’s extrastatutory authority to seal records leads naturally to the conclusion
that courts also have extrastatutory authority to unseal records. 2013-Ohio-2290,
990 N.E.2d 692, ¶ 8-13 (1st Dist.). The First District reasoned that a trial court’s
determination whether to exercise its discretion to unseal records should be
guided by the same standards provided in Pepper Pike, which allowed the court to
exercise its extrastatutory discretion to seal records only in unusual and
exceptional cases, after weighing the applicant’s interests in sealing the records
against the government’s interest in maintaining the records. Id. at ¶ 15-16. The
First District concluded that Vanzandt’s case was one of those unusual and
exceptional cases that allowed discretionary unsealing and that the state’s interest
in prosecuting Vanzandt for retaliation far outweighed any interest that Vanzandt
had in keeping the records sealed. Id. at ¶ 17-20.
{¶ 5} We accepted Vanzandt’s discretionary appeal in order to address
the issue whether a court has the authority to unseal official records for a purpose
different from those explicitly authorized under R.C. 2953.53. 136 Ohio St. 3d
1491, 2013-Ohio-4140, 994 N.E.2d 462.1
Analysis
{¶ 6} The decision in this case turns on the interpretation of R.C.
2953.53(D). The interpretation of a statute is a question of law, and accordingly,
we review the matter de novo. State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-
4010, 998 N.E.2d 401, ¶ 9.
{¶ 7} When analyzing statutory provisions, our paramount concern is to
ascertain and give effect to the intention of the General Assembly. Henry v. Cent.
1
Vanzandt acknowledged during oral argument that the circumstances of his sealed case are now
in the public domain.
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SUPREME COURT OF OHIO
Natl. Bank, 16 Ohio St. 2d 16, 242 N.E.2d 342 (1968), paragraph two of the
syllabus. We primarily seek to determine legislative intent from the plain
language of a statute. Summerville v. Forest Park, 128 Ohio St. 3d 221, 2010-
Ohio-6280, 943 N.E.2d 522, ¶ 18. “If the meaning of the statute is unambiguous
and definite, it must be applied as written and no further interpretation is
necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74
Ohio St. 3d 543, 545, 660 N.E.2d 463 (1996). An unambiguous statute must be
applied by giving effect to all of its language, without adding or deleting any
words chosen by the General Assembly. Armstrong v. John R. Jurgensen Co.,
136 Ohio St. 3d 58, 2013-Ohio-2237, 990 N.E.2d 568, ¶ 12.
{¶ 8} Vanzandt’s application to seal his records was governed by R.C.
2953.52, which applies to “[a]ny person, who is found not guilty of an offense by
a jury or a court or who is the defendant named in a dismissed complaint,
indictment, or information.” R.C. 2953.52(A)(1). The statute allows a court to
seal an applicant’s records only after determining (1) the disposition of the
applicant’s case, (2) whether any other criminal proceedings are currently pending
against the applicant, and (3) whether the applicant’s interests in sealing the
records are outweighed by any legitimate governmental needs to maintain the
records. R.C. 2953.52(B)(4).
{¶ 9} After a court enters judgment sealing an applicant’s records
pursuant to R.C. 2953.52, access to those records is governed by R.C.
2953.53(D), which generally provides that the sealed records “shall not be
available to any person.” The statute includes four exceptions that allow access to
the records for limited purposes: (1) use of the records by the person who is the
subject of the records for any purpose, (2) use by a law-enforcement officer to
defend against a civil action arising from the officer’s involvement in the sealed
criminal case, (3) use by a prosecuting attorney to determine a defendant’s
eligibility to enter a pretrial diversion program for offenders unlikely to reoffend,
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January Term, 2015
and (4) use by a prosecuting attorney to determine the eligibility of a person
charged with alcohol-related offenses to enter a diversion program. Id.
{¶ 10} “We have repeatedly recognized that use of the term ‘shall’ in a
statute or rule connotes the imposition of a mandatory obligation unless other
language is included that evidences a clear and unequivocal intent to the
contrary.” State v. Golphin, 81 Ohio St. 3d 543, 545-546, 692 N.E.2d 608 (1998).
Inversely, use of the words “shall not” indicates that a statutory prohibition is
mandatory. See Cantwell v. State, 18 Ohio St. 477 (1869), paragraph two of the
syllabus. Accordingly, the provision of R.C. 2953.53(D) stating that sealed
records “shall not be available to any person” constitutes a mandatory prohibition,
except for the four enumerated purposes. The statutory language at issue here is
unambiguous and need only be applied as written. Official records that have been
sealed pursuant to R.C. 2953.52 cannot be made accessible for purposes other
than those provided in R.C. 2953.53(D). Because the state in this case is not
seeking access to Vanzandt’s sealed records for one of the purposes set forth in
the four exceptions, the state’s motion to unseal the records should have been
denied.
{¶ 11} Although the First District concluded, and the state argues, that an
application of Pepper Pike demands a different result, Pepper Pike is inapplicable
to the instant case. One of the major distinctions is that Pepper Pike involved a
request to seal records, not a request to unseal records that had already been
sealed pursuant to a final order. Further, at the time Pepper Pike was decided,
R.C. 2953.31 et seq. permitted the sealing of records relating to the convictions of
first-time offenders, but a provision for sealing the record in criminal cases
resulting in acquittal or dismissal, now found in R.C. 2953.51 et seq., did not
exist. Yet in the instance in which a defendant had been subjected to criminal
charges that were based on purely vindictive accusations—charges that were later
dismissed with prejudice—a court’s refusing to seal those records due to
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SUPREME COURT OF OHIO
legislative silence failed to protect the defendant’s compelling interests and did
little to promote any governmental interest. Pepper Pike, 66 Ohio St. 2d at 376-
377, 421 N.E.2d 1303. See also State v. Boykin, 138 Ohio St. 3d 97, 2013-Ohio-
4582, 4 N.E.3d 980, ¶ 13-14. To remedy this inequitable situation in the absence
of guidance from the General Assembly, we determined that courts had limited
extrastatutory authority to seal records of criminal proceedings in certain unusual
and exceptional cases. Pepper Pike at paragraph two of the syllabus. Courts
could carry out this limited authority by following the guidelines in the already
existing statutes governing the sealing of criminal records. Id. at 378.
{¶ 12} It is possible for legislative silence on an issue to support the
conclusion that a statute is ambiguous. See, e.g., State v. Bartrum, 121 Ohio St. 3d
148, 2009-Ohio-355, 902 N.E.2d 961, ¶ 17. And if the statute’s silence on an
issue suggests an ambiguity, a court may ascertain the General Assembly’s intent
in enacting the statute by considering several factors, including the spirit of the
statute and relevant public-policy concerns. State ex rel. Toledo Edison Co. v.
Clyde, 76 Ohio St. 3d 508, 513-514, 668 N.E.2d 498 (1996). Because our analysis
in Pepper Pike proceeded in the context of legislative silence, we were able to
consider the significant public-policy interests at play and found a place for
judicial discretion. But here we are not faced with legislative silence; we are
faced with an express legislative prohibition. There is no ambiguity.
Accordingly, Pepper Pike is not controlling.
{¶ 13} Nothing in the terms of R.C. 2953.53(D) indicates that its limited
exceptions are illustrative rather than exhaustive. The creation of an exception to
a statute that is not suggested by any of its terms constitutes “the abrogation,
rather than the construction, of the statute.” Morris Coal Co. v. Donley, 73 Ohio
St. 298, 303-304, 76 N.E. 945 (1906). Despite the fact that policy considerations
may lean strongly in favor of granting access to the sealed records in Vanzandt’s
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January Term, 2015
case, a court cannot create additional exceptions to R.C. 2953.53(D) where they
do not exist.
{¶ 14} The court was therefore not authorized to unseal Vanzandt’s
records for the purpose provided in the state’s motion.
Conclusion
{¶ 15} When a statutory provision imposing a mandatory obligation has
specifically enumerated exceptions, a court does not have discretion to create
additional exceptions. R.C. 2953.53(D) expressly prohibits access to sealed
records for purposes other than those specifically listed in the statute’s
enumerated exceptions, and those exceptions should not have been expanded
through the exercise of judicial discretion in this case.
{¶ 16} The state’s interest in unsealing Vanzandt’s record is
understandable,2 but irrelevant; the state, like individuals, is bound by the General
Assembly’s determination of public policy as expressed in the Revised Code. We
must heed the plain language of this unambiguous statute, and any claim of
injustice or inequity must be resolved through the legislative process rather than
judicial redress.
{¶ 17} Accordingly, we reverse the court of appeals’ judgment and
remand this cause to the trial court with instructions to vacate its judgment.
Judgment reversed
and cause remanded.
LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
PFEIFER, J., dissents.
O’DONNELL, J., dissents and would dismiss the case as improvidently
allowed.
2
We note that unsealing Vanzandt’s record was not critical to the success of the state’s
prosecution for retaliation. For example, the state would be able to introduce the testimony of the
victim of the retaliation.
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SUPREME COURT OF OHIO
_____________________
PFEIFER, J., dissenting.
{¶ 18} One interesting aspect of this case is that in it, the state takes a
diametrically opposite position from its position in another case released today,
State v. Radcliff, ___ Ohio St.3d ___, 2015-Ohio-235, __ N.E.3d __, with respect
to the vitality of Pepper Pike v. Doe, 66 Ohio St. 2d 374, 421 N.E.2d 1303 (1981).
In Radcliff, the state argued that “Pepper Pike no longer provides extrastatutory
inherent power to seal records in criminal cases.” In this case, the state argues not
only that Pepper Pike lives, but that it should be extended, stating, “Just as there
is judicial authority to seal records in unusual and exceptional cases, there should
also be a judicial authority to unseal records in unusual and exceptional cases.”
{¶ 19} Though I have served on this court a long time, the court is still
able to surprise and sadden me. Today, the court decides two cases related to the
sealing of criminal records and issues two opinions so lacking in justice that they
defy credulity. As Don Imus says, you can’t make this stuff up. In State v.
Radcliff, the court disallows the sealing of records of criminal convictions that are
30 years old and for which the offender has been pardoned by a governor of Ohio.
In this case, the court concludes that records of criminal cases less than three
years old must remain sealed; indeed, it holds that their existence can’t even be
recognized for the limited purpose of showing that there had been a previous trial.
In Radcliff, the failure to seal the records ensures that a public-school employee
with 20 years of good service is ineligible to work for the school. In this case, the
failure to unseal the record ensures that a person accused of retaliating against a
witness will not be prosecuted. Two cases, two exactly wrong conclusions. So
much for justice, equity, sanity.
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January Term, 2015
{¶ 20} Although it is hard to tell sometimes given the strictures this court
submits itself to,3 this court and all courts in Ohio can act in the absence of a
statute. Although the Revised Code contains many statutes that bind this court, it
has not yet subsumed the entirety of the common law. See Bresnik v. Beulah
Park Ltd. Partnership, Inc., 67 Ohio St. 3d 302, 304, 617 N.E.2d 1096 (1993)
(“Not every statute is to be read as an abrogation of the common law”).
Furthermore, the courts of Ohio have “plenary power to administer justice which
is inherent in every court whose jurisdiction derives from the Ohio Constitution.”
State ex rel. Johnston v. Taulbee, 66 Ohio St. 2d 417, 422, 423 N.E.2d 80 (1981);
see Zangerle v. Cuyahoga Cty. Court of Common Pleas, 141 Ohio St. 70, 46
N.E.2d 865 (1943), paragraph two of the syllabus.
{¶ 21} As explained in my dissent in Radcliff, courts have inherent power
to seal records in unusual and exceptional cases. See Pepper Pike, 66 Ohio St. 2d
374, 421 N.E.2d 1303. In my opinion, a court that has the inherent power to seal
records in unusual and exceptional cases has the inherent power to unseal them in
unusual and exceptional cases.
{¶ 22} The case before us is unusual. The state is not asking to unseal the
entirety of the record for all time; it is seeking to unseal the record for a specific
limited purpose: to prove that a person was a witness in a prior case. That’s it.
And then, after the record is unsealed for that limited purpose, the record would
be resealed. Courts have and ought to have the authority to so act. Otherwise, as
in this case, a person who retaliates against a witness for something said in a
sealed case will be immune from punishment for that retaliation. To the
benighted sovereign immunity, we must now add retaliation immunity.
3
The three-part test set forth in Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, is a good example. It has been described as “unworkable,” and “of
questionable value,” Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-Ohio-546, 883
N.E.2d 377, ¶ 221 and 223 (Lanzinger, J., concurring in part), and as a “legalistic straitjacket,”
Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St. 3d 141, 2007-Ohio-3762, 870 N.E.2d
714, ¶ 19 (Pfeifer, J., dissenting).
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SUPREME COURT OF OHIO
{¶ 23} I dissent.
_____________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
Raymond T. Faller, Hamilton County Public Defender, and Christine Y.
Jones and Josh Thompson, Assistant Public Defenders, for appellant.
_____________________
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