State v. Futrall , 123 Ohio St. 3d 498 ( 2009 )

[Cite as State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590.]
THE STATE OF OHIO, APPELLEE, v. FUTRALL, APPELLANT.
[Cite as State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590.]
Criminal law — Sealing criminal records — 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 — Judgment affirmed.
(No. 2008-2391 — Submitted September 1, 2009 — Decided October 29, 2009.)
APPEAL from the Court of Appeals for Lorain County, No. 08CA009388,
2008-Ohio-5654.
__________________
SYLLABUS OF THE COURT
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.
__________________
LUNDBERG STRATTON, J.
{¶ 1} Today this court must decide whether a trial court is precluded
from sealing an applicant’s convictions that are eligible to be sealed by statute
when one of the convictions is exempt from being sealed. Because we hold that a
conviction that is exempt by statute from being sealed also precludes the sealing
of convictions that are otherwise eligible, we affirm the judgment of the court of
appeals.
Facts
{¶ 2} In May 2001, defendant-appellant, Douglas Futrall, was indicted
on five criminal offenses: (1) aggravated menacing in violation of R.C.
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2903.21(A), a first-degree misdemeanor, (2) improper handling of firearms in
violation of R.C. 2923.16(B), a first-degree misdemeanor, (3) carrying a
concealed weapon in violation of R.C. 2923.12(A), a fourth-degree felony, (4)
domestic violence in violation of R.C. 2919.25, a fourth-degree misdemeanor, and
(5) telephone harassment in violation of R.C. 2917.21(A)(4), a first-degree
misdemeanor. All charges resulted from one incident and were filed under one
case number.
{¶ 3} In March 2002, Futrall entered a guilty plea to a negotiated
misdemeanor charge of carrying a concealed weapon as well as to the other
misdemeanor charges. The court placed Futrall on a two-year probation. Four
months later, the trial court terminated Futrall’s probation and restored Futrall to
all appropriate civil rights.
{¶ 4} Approximately five years later, Futrall filed an application in the
trial court to seal his record. After a hearing, the trial court denied the request.
The trial court concluded that Futrall was sufficiently rehabilitated and was
“otherwise an outstanding candidate” to have convictions sealed, but “because the
aggravated menacing charge is statutorily exempt from being sealed, as a matter
of law, all of his convictions are precluded from being sealed and his application
to seal record is accordingly denied.”
{¶ 5} The Court of Appeals for Lorain County affirmed the judgment of
the trial court. State v. Futrall, 9th Dist. No. 08CA009388, 2008-Ohio-5654. The
cause is now before this court pursuant to the acceptance of a discretionary
appeal. State v. Futrall, 121 Ohio St.3d 1424, 2009-Ohio-1296, 903 N.E.2d 324.
Standard of Review
{¶ 6} The court of appeals reviewed this matter under an abuse-of-
discretion standard, noting that “ ‘ “expungement is an act of grace created by the
state,” and so is a privilege, not a right. Expungement should be granted only
when all requirements for eligibility are met.’ ” Futrall, 2008-Ohio-5654, ¶ 6,
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quoting State v. Simon (2000), 87 Ohio St.3d 531, 533, 721 N.E.2d 1041, quoting
State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 665 N.E.2d 669. While we
agree that expungement is a privilege and not a right, we disagree with the court
of appeals’ decision to review this matter using the abuse-of-discretion standard,
because the matter in dispute is purely a question of law. “When a court's
judgment is based on an erroneous interpretation of the law, an abuse-of-
discretion standard is not appropriate. See Swartzentruber v. Orrville Grace
Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6;
Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554,
2008 WL 2572598, ¶ 50.” Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
{¶ 7} Therefore, as a preliminary matter, we conclude that the court of
appeals erred in reviewing the case under an abuse-of-discretion standard. But “
‘reviewing courts are not authorized to reverse a correct judgment on the basis
that some or all of the lower court’s reasons are erroneous.’ ” Goudlock v.
Voorhies, 119 Ohio St.3d 398, 2008-Ohio-4787, 894 N.E.2d 692, ¶ 12, quoting
State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-
5062, 796 N.E.2d 526, ¶ 8. Because we reach the same conclusion even applying
a de novo standard of review, we affirm the judgment of the court of appeals.
Analysis
{¶ 8} The procedure for expungement is set forth in R.C. 2953.32 and
provides that the court shall do each of the following when considering an
application to expunge:
{¶ 9} “(C)(1)(a) Determine whether the applicant is a first offender or
whether the forfeiture of bail was agreed to by the applicant and the prosecutor in
the case. * * *
{¶ 10} “(b) Determine whether criminal proceedings are pending against
the applicant;
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{¶ 11} “(c) If the applicant is a first offender who applies pursuant to
division (A)(1) of this section, determine whether the applicant has been
rehabilitated to the satisfaction of the court;
{¶ 12} “(d) If the prosecutor has filed an objection in accordance with
division (B) of this section, consider the reasons against granting the application
specified by the prosecutor in the objection;
{¶ 13} “(e) Weigh the interests of the applicant in having the records
pertaining to the applicant’s conviction sealed against the legitimate needs, if any,
of the government to maintain those records.”
{¶ 14} R.C. 2953.36 enumerates the crimes that cannot be expunged,
including convictions of an offense of violence when the offense is a
misdemeanor of the first degree. R.C. 2953.36(C). “Offense of violence” is
defined by R.C. 2901.01(A)(9) and includes aggravated menacing, R.C. 2903.21.
Therefore, Futrall’s conviction for aggravated menacing cannot be sealed.
{¶ 15} The question then becomes whether an applicant with multiple
convictions in one case may seal the portion of his or her criminal record that is
eligible pursuant to R.C. 2953.32 when one of the convictions is statutorily
exempt from being sealed. For the reasons that follow, we hold 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 statutorily exempt from sealing pursuant to R.C. 2953.36, the trial
court may not seal the remaining convictions.
{¶ 16} 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
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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.)
{¶ 17} 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 provides:
{¶ 18} “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.)
{¶ 19} 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.
{¶ 20} 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
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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.
Conclusion
{¶ 21} Based on R.C. 2953.31, 2953.61, and 2953.32, we hold 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. Accordingly, we affirm the judgment of the
court of appeals.
Judgment affirmed.
PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and CUPP, JJ., concur.
MOYER, C.J., concurs separately.
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MOYER, C.J., concurring.
{¶ 22} I concur because the majority correctly analyzes R.C. 2953.31,
2953.32, 2953.36, and 2953.61 and draws the proper conclusion that none of
appellant’s convictions in this case may be expunged. Still, our path in this case
is dimly lit by the existing statutory framework. No Ohio statute directly answers
the question before us. For that reason, we have been required 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. See S. Pacific Co.
v. Jensen (1917), 244 U.S. 205, 221, 37 S.Ct. 524, 61 L.Ed. 1086 (Holmes, J.,
dissenting). But an opinion of this court is not the preferred method of
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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.
O’CONNOR, O’DONNELL, and LANZINGER, JJ., concur in the foregoing
opinion.
__________________
Dennis P. Will, Lorain County Prosecuting Attorney, and Mary R.
Slanczka, Assistant Prosecuting Attorney, for appellee.
Giardini, Cook & Nicol, L.L.C., and D. Chris Cook, for appellant.
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