In re Tanksley
Rendered on September 29, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Stevеn L. Taylor, for appellant. Argued: Steven L. Taylor.
On brief: Dye Law Offices and Lewis T. Dye, for appellee.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Respondent-appellant, Franklin County Prosecutor Ron O‘Brien, appeals from the trial сourt‘s granting of petitioner-appellee‘s, Nikko D. Tanksley, petition for a Certificate of Qualification for Employment (“CQE“) pursuant to
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Pursuant to a jury trial in December 2006, Tanksley was found guilty of one count of aggrаvated robbery and one count of robbery, each with a firearm specification. State v. Tanksley, 10th Dist. No. 07AP-262, 2007-Ohio-6596, ¶ 5. Tanksley served three and one-half years in prison for the offenses and was released in 2010. (Tanksley‘s Petition for CQE at 7.)
{¶ 4} On Octоber 29, 2015, the trial court granted Tanksley‘s petition for CQE and specifically found that “[p]etitioner has suffered a COLLATERAL SANCTION that is related to employment оr occupational licensing as a result of individual‘s conviction of a felony offense and that said sanction applies by operаtion of law in this state” and “[t]he purpose for this certificate is to assist the Petitioner in obtaining employment and in obtaining a Certified Public Accоuntant license from the Accountancy Board of Ohio.” (Oct. 29, 2015 Jgmt. Entry at 1-2.) In addition, the court made the requisite findings under
{¶ 5} On November 30, 2015, appellant filed a notice of appeal.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant assigns the following errors:
[I.] THE COMMON PLEAS COURT ERRED IN GRANTING THE PETITION FOR CERTIFICATE OF QUALIFICATION FOR EMPLOYMENT BECAUSE THE STATUTE IS UNCONSTITUTIONAL IN ASSIGNING NON-JUDICIAL MATTERS AND FUNCTIONS TO THE JUDICIAL BRANCH.
[II.] THE COMMON PLEAS COURT ERRED IN GRANTING THE PETITION FOR CERTIFICATE OF QUALIFICATION FOR EMPLOYMENT IN THE ABSENCE OF ANY INDICATION THAT PETITIONER‘S CONVICTION FOR AGGRAVATED ROBBERY WITH FIREARM SPECIFICATION CREATED A “COLLATERAL SANCTION.”
[III.] THE COMMON PLEAS COURT ERRED IN GRANTING THE PETITION FOR CERTIFICATE OF QUALIFICATION FOR EMPLOYMENT IN THE ABSENCE OF ANY INDICATION THAT GRANTING THE CQE WOULD PROVIDE MATERIAL ASSISTANCE TO PETITIONER.
{¶ 7} We find appellant‘s assignment of error two to be dispositive of this appeal. Because we find that Tanksley is not subject to any collateral sanctions that apply by operation of law, we reverse the trial court.
{¶ 8}
“[C]reates a mechanism by which an individual who has been convicted of or pleaded guilty to an offense, who for a specified period of time has been relеased from incarceration and all supervision imposed after release or has received a final release from all other sanctions imposed, and who is subject to a ‘collateral sanction’ may obtain from the court of common pleas of the county in which the individual resides a ‘certificate of qualification for employment’ that will provide relief from certain bars on employment or occupational licensing.”
(Emphasis added.) In re Bailey, 8th Dist. No. 101108, 2015-Ohio-413, ¶ 10, quoting the Ohio Legislative Service Commission Final Analysis of Am.Sub.S.B. No. 337.
{¶ 9} In order to be able to file the petition and obtain CQE relief, the petitioner must be “subject to one or more collateral sanctions.”
{¶ 10} The petition must be made on a copy of a form prescribed by the division of parole and community services. See
{¶ 11}
{¶ 12} Tanksley‘s petition fails at the threshold, as he does not point to аny “collateral sanction.” In order to be able to file the petition and obtain CQE relief, the petitioner must be “subject to one or morе collateral sanctions.”
{¶ 13} Although the petition mentioned accountant licensure, it did not point to any actuаl collateral sanction barring him because of his conviction.
{¶ 14} It is clear that only persons “subject to one or more collatеral sanctions” may file a petition, and “collateral sanction” is narrowly defined to mean a conviction-based penalty, disability or disadvantage “that applies by operation of law in this state.” The court‘s authority to grant relief is limited to those petitioners who are facing collateral sanctions which apply by operation of law.
IV. DISPOSITION
{¶ 16} Appellant‘s second assignmеnt of error is sustained, thereby rendering assignments of error one and three as moot. Accordingly, the judgment of the Franklin County Court of Common Pleas is reversed and remanded with instructions to deny Tanksley‘s Petition for CQE.
Judgment reversed; cause remanded.
DORRIAN, P.J. and TYACK, J., concur.