In the Matter of the Application of: K. J., (State of Ohio, Appellant).
No. 13AP-1050
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 12, 2014
[Cite as In re K.J., 2014-Ohio-3472.]
CONNOR, J.
(M.C. No. 2013CRX-52411) (REGULAR CALENDAR)
Rendered on August 12, 2014
Richard C. Pfeiffer, Jr., City Attorney, and Melanie R. Tobias, for appellant.
APPEAL from the Franklin County Municipal Court
CONNOR, J.
{1} Plaintiff-appellant, the State of Ohio (“state“), appeals from a judgment of the Franklin County Municipal Court, granting an application filed by defendant-appellee, K.J., to seal the records of two dismissed criminal charges pursuant to
The trial court erred in granting Appellee‘s application to seal her record, where the application was barred by
Revised Code 2953.61 .
{2} Because the trial court erred, in part, in its application of
I. FACTS AND PROCEDURAL HISTORY
{3} On November 3, 2012, K.J. was pulled over for speeding. As a result of that traffic stop, K.J. was charged with the following three offenses: operating a motor vehicle while under the influence of alcohol, a drug of abuse, or both (“OVI“), in violation of Columbus City Code (“CCC“) 2133.01(A)(1)(a), a misdemeanor of the first degree;
{4} On September 9, 2013, K.J. filed an application to seal the record of the dismissed charges, pursuant to
{5} At the hearing, K.J. explained that she was seeking to have the records of the dismissed charges sealed because she was working toward receiving her third degree in the health care industry, and she did not want the dismissed charges to hurt her chances for employment. K.J. then addressed the events which led to the three charges. K.J. explained that, on the night of November 3, 2012, she had been at a friend‘s house hanging out after a concert. She got into an argument with the father of her children, and had to leave her friend‘s house to go pick up her children. She explained that she was upset from the argument with her children‘s father, so she “took two shots” from a bottle of liquor, then “threw the bottle in the” passenger side of her car and rushed to go get her kids. (Tr. 7.) The court asked K.J. if she only drank from the bottle before she drove. K.J. responded affirmatively, stating that she took the two drinks before she got into the car, and that she did not drink anything while she was driving. K.J. further explained that it was “just a little piece” of marijuana in the car. (Tr. 7.) K.J. admitted that she “was impaired for the alcohol” as she “had just took the drink” prior to getting into the car. (Tr. 7.) When she was pulled over, K.J. took a breath test which revealed that her blood alcohol content was over the legal limit.
{6} On November 20, 2013, the court filed a judgment entry granting K.J.‘s application to seal the records of the dismissed charges. The court noted that
II. LEGAL ANALYSIS
{7} The state argues that the trial court erred in granting K.J.‘s
{8} ” ‘Expungement is a post-conviction relief proceeding which grants a limited number of convicted persons the privilege of having record of their * * * conviction sealed.’ ” Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12, quoting State v. Smith, 3d Dist. No. 9-04-05, 2004-Ohio-6668, ¶ 9. Expungement ” ’ “is an act of grace created by the state” and so is a privilege, not a right.’ ” Koehler, quoting State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). In Ohio, “expungement” remains a common colloquialism used to describe the process of
{9} K.J. applied to have the records of the two dismissed charges sealed, she did not seek to have her conviction sealed. See Schussheim v. Schussheim, 12th Dist. No. CA2011-07-078, 2012-Ohio-2573, ¶ 10 (noting that “there are currently two statutory methods to expunge and seal criminal records:
Any 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, may apply to the court for an order to seal the person‘s official records in the case. Except as provided in
section 2953.61 of the Revised Code , the application may be filed at any time after the finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.
{10}
{11}
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 pursuant to
divisions (A)(1) and(2) of section 2953.32 anddivisions (A)(1) and(2) of section 2953.52 of the Revised Code .
A trial court is precluded, pursuant to
R.C. 2953.61 , from sealing the record of a dismissed charge if the dismissed charge arises “as a result of or in connection with the same act” that supports a conviction when the records of the conviction are not sealable underR.C. 2953.36 , regardless of whether the charges are filed under separate case numbers.
Id. at syllabus.
{13}
{14} The facts in Pariag parallel those in the case before us.1 Pariag was charged with driving under a suspended license, a non-sealable traffic offense, as well as other drug-related offenses, out of the same traffic stop. Pariag was convicted of the non-sealable traffic offense, the remaining charges were dismissed, Pariag applied to have the records of the dismissed charges sealed, and the court granted the application. However, unlike the instant action, the trial court in Pariag did not hold a hearing to determine whether the dismissed charges arose as a result of or in connection with the same act that led to the non-sealable traffic conviction. Because the trial court in Pariag did not determine whether the charges arose as a result of or in connection with the same act, the Supreme Court concluded that it was “not clear whether [Pariag‘s] traffic
{15} This court recently observed that the Supreme Court in Pariag could have, but did not, remand the case to the trial court with instructions to deny the application. The Pariag court “did so, even though the facts were clear in Pariag, as in the case now before us, that the traffic charges and the drug-related charges both arose out of the same traffic stop.” State v. C.A., 10th Dist. No. 13AP-1001, 2014-Ohio-2621, ¶ 19; State v. R.L.M., 10th Dist. No. 13AP-981, 2014-Ohio-2661, ¶ 16. C.A. and R.L.M. both concerned fact patterns similar to Pariag, and the trial courts in both C.A. and R.L.M. failed to determine whether the non-sealable traffic conviction arose as a result of or in connection with the same act as the dismissed drug-related charges. Accordingly, in both C.A. and R.L.M., this court applied Pariag and remanded those cases to the trial court for it to consider in the first instance whether the charges at issue arose as a result of or in connection with the same act.
{16} Here, unlike Pariag, C.A., and R.L.M., the trial court held a hearing and determined, based on the evidence presented at the hearing, that the dismissed charges did not arise as a result of or in connection with the same act which led to the non-sealable traffic conviction. Before reviewing the trial court‘s judgment further, we must determine the appropriate standard of review to apply to a trial court‘s ruling under
{17} As the instant case demonstrates, where the record does not contain facts regarding the events which led to the multiple charges at issue under
{19} The trial court found, based on the evidence presented at the hearing, that K.J. only drank from the bottle of liquor prior to driving her car. The court also found that the OVI charge was based solely on K.J.‘s alcohol consumption, as there was no allegation that she had consumed the marijuana that evening. According deference to those facts, we must next determine whether the trial court correctly applied those facts to the law. As Pariag instructs, for
{20} The state asserts that, as the drug possession, open container, and OVI charges all arose “out of a single traffic stop,” and because K.J. had the open container and the marijuana in her vehicle “at the same time” that she operated the motor vehicle under the influence, the charges all arose from the same act. (Appellant‘s brief, 12, 14.) The state appears to equate offenses which an applicant committed at the same time, with offenses that result from or are committed in connection with the same act.
{21} The statutes which govern the sealing of records, however, differentiate between offenses which are committed at the same time and those which are committed through the same act. All statutes relating to the same subject matter must be read in pari materia, and construed together, so as to give the proper force and effect to each and all such statutes. State v. Cook, 128 Ohio St.3d 120, 2010-Ohio-6305, ¶ 45. See also State v. Moaning, 76 Ohio St.3d 126, 128 (1996) (noting that courts should construe statutory provisions together and read the
{22} As noted above,
{23} Construing
{24} In Pariag, the Supreme Court held that, under
{25} Thus, under
{26} CCC 2133.01(A)(1)(a) provides that “[n]o person shall operate any vehicle * * *, if, at the time of the operation * * * [t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.” CCC 2325.62(B)(4) provides that “[n]o person shall have in his possession an opened container of beer or intoxicating liquor * * * [w]hile operating or being a passenger in or on a motor vehicle on any street, highway, or other public or private property open to the public for purposes of vehicular travel or parking.”
{27} The act which supported K.J.‘s OVI conviction was her operation of a motor vehicle, while under the influence of alcohol. The act which supported K.J.‘s open container charge was her operation of a motor vehicle, while possessing an open container of alcohol. The act which supported the drug possession charge was K.J.‘s possession of marijuana. Thus, there is no commonality of acts between the possession of marijuana charge and the OVI conviction. Accordingly, the trial court correctly determined that the possession of marijuana charge did not arise as a result of or in connection with the same act which supported the OVI conviction.
{28} There is, however, a similar act shared by both the open container charge and the OVI conviction: K.J.‘s operation of a motor vehicle. Although one does not need to be the operator of a vehicle in order to be charged with an open container under CCC 2325.62(B)(4), as the code section equally applies to individuals who are passengers in a vehicle, under the particular facts of this case, K.J. was operating her vehicle. Thus, in the instant case, K.J.‘s act of driving her car was an act which was necessary to support the OVI conviction and the open container charge. Although K.J. had to engage in additional acts beyond merely driving her car to commit the OVI and open container offenses, as she had to be under the influence of alcohol for the OVI offense, and had to possess an open container of alcohol for the open container offense, her act of operating her motor vehicle was an act in connection with which K.J. was charged with the open container violation and convicted of the OVI. Thus, the open container charge did arise in connection with an act which also supported the OVI conviction. The trial court erred in finding that the open container charge did not arise in connection with the same act as the OVI conviction.
{29} Based on the foregoing, we find that the trial court correctly determined that
{30} In Futrall, the court held that “[w]hen an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to
{31} Although Futrall concerned convictions rather than dismissed charges, we find Futrall‘s holding equally applicable to the records of dismissed charges.
III. DISPOSITION
{32} Based on the foregoing, the state‘s sole assignment of error is sustained in part and overruled in part. Because we find that the record of the possession of marijuana charge could be sealed, but that the record of the open container charge could not be sealed, pursuant to Futrall, the trial court cannot seal the record of the possession of marijuana charge. Therefore, we reverse the judgment of the trial court, and remand the case for proceedings consistent with this decision.
Judgment reversed; case remanded.
KLATT and DORRIAN, JJ., concur.