WILLIAM R. RUNIONS v. SHERIFF DEBORAH K. BURCHETT, in her capacity as Sheriff of Clark County
Appellate Case No. 2017-CA-62
Trial Court Case No. 16-CV-701; (Civil Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
July 13, 2018
2018-Ohio-2754
OPINION
Rendered on the 13th day of July, 2018.
STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 865 S. Dixie Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellant
ANDREW PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Defendant-Appellee
{¶ 1} Appellant William R. Runions appeals a judgment of the Clark County Court of Common Pleas that upheld a decision of appellee Clark County Sheriff‘s Office (the “Sheriff“) denying Runions‘s application for a cоncealed carry license (CCL). Runions filed a timely notice of appeal with this Court on June 29, 2017.
{¶ 2} In the early 1980s, Runions was convicted of three felonies, to wit: breaking and entering (1981); receiving stolen property (1981); and uttering a forged check (1984). After completing his sentences for these convictions, Runions has maintained a law abiding lifestyle and committed no further crimes. Over 30 years later, on August 9, 2016, Governor of Ohio John R. Kasich granted Runions a full and uncоnditional pardon for all three felonies.
{¶ 3} Shortly thereafter on September 6, 2016, Runions applied for a CCL with the Sheriff. Runions attached a copy of his pardon to the CCL application. Basing his decision on Runions‘s three felony convictions, the Sheriff denied his application for a CCL.
{¶ 4} On October 21, 2016, Runions, through counsel, filed an administrative appeal of the Sheriff‘s decision in the Clark County Court of Common Pleas. On February 21, 2017, Runions filed a brief in support of his administrative appeal. The Sheriff filed her brief in opposition to Runions‘s administrative appeal on March 10,
{¶ 5} It is from this decision that Runions now appeals.
Standard of Review
{¶ 6} Pursuant to
The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of this finding, it may reverse, vacate, or modify the order or make such other ruling as is suрported by reliable, probative, and substantial evidence and is in accordance with law.
{¶ 7} As discussed by the Supreme Court of Ohio in Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008–Ohio–4826, 897 N.E.2d 1096, ¶ 37, a review by the common pleas court of an administrative agency‘s decision requires a factual inquiry and a legal inquiry. Both the common pleas court and the appellate court must give deference to the agency‘s resolution of any evidentiary conflicts, and factual findings are presumed to be correct, absent an abuse of discretion. Id. However, questions of law must be reviewed de novo to determine whether the administrative order is in accordance with law. Anguiano v. Ohio Dept. of Edn., 2d Dist. Darke No. 2014–CA–2, 2014–Ohio–2810, ¶ 6, citing Bartchy at ¶ 43. The case before us requires a determination whether the trial court properly interpreted and applied the statutory qualifications for obtaining a concealed carry license. “The interpretation of a statute involves a purely legal question. Thus, we conduct a de novo review of a trial court‘s judgment interpreting a statute and afford no deference to the trial court‘s interpretation of a statute.” Salgado v. Montgomery Cty. Sheriff, 2d Dist. Montgomery Nos. 26502, 26572, 2015-Ohio-3387, ¶ 9, citing Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008–Ohio–4342, 896 N.E.2d 1011, ¶ 27 (4th Dist.).
{¶ 8} Runions‘s sole assignment of error is as follows:
THE LOWER COURT ERRED BY UPHOLDING THE SHERIFF‘S DENIAL OF MR. RUNIONS’ C[C]L BECAUSE HIS CONVICTIONS WERE PARDONED BY THE GOVERNOR OF THE STATE OF OHIO.
{¶ 9} In his sole assignment, Runions contends that the trial court erred when it upheld the Sherriff‘s decision denying his application for a CCL because he had received a pardon for his felony convictions. Specifically, Runions argues that an unconditionаl pardon relieves a CCL applicant from a disability by operation of law pursuant to
Effect of a Full Pardon
{¶ 10} In State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, the Ohio Supreme Court stated the following:
The term “pardon” is not defined or further explained in the Constitution. Sterling v. Drake, 29 Ohio St. 457, 460 (1876). We have stated that “[a] full and absolute pardon releases the offender from the еntire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885). Similarly, the General Assembly defines “pardon” as “the remission of penalty by the governor in accordance with the power vested in the governor by the constitution.”
R.C. 2967.01(B) .R.C. 2967.04(B) further provides that “[a]n unconditional pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.”
{¶ 11} Neverthеless, the Ohio Supreme Court has also held that “a pardon provides only forgiveness, not forgetfulness; [t]he pardon does not wipe the slate clean. (Emphasis added; citations omitted.) State v. Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 36.
{¶ 12} Along the same vein as the Radcliff court, the U.S. Supreme Court has discussed the effect of a pardon. See Angle v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 151 U.S. 1, 19, 14 S.Ct. 240, 38 L.Ed. 55 (1894) (although an executive pardon relieves the wrongdoer from public punishment, it does not relieve the wrongdoer from civil liability); Burdick v. United States, 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915) (a pardon “carries an imputation of guilt; acceptance a confession of it“); Carlesi v. New York, 233 U.S. 51, 59, 34 S.Ct. 576, 58 L.Ed. 843 (1914) (in sentencing a defendant as a habitual offender, a court may consider “past offenses committed by the accused as a circumstance of aggravation, even although for such past offenses there had been a pardon granted“); Nixon v. United States, 506 U.S. 224, 232, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is [a]n executive action that mitigates or sets aside punishment for a crime).
The Statutory Scheme for Obtaining a CCL
{¶ 13} The process of obtaining a concealed carry license is outlined in
{¶ 14}
(4) If an applicant has been convicted of or pleaded guilty to an offense identifiеd in division (D)(1)(e), (f), or (h) of this section or has been adjudicated a delinquent child for committing an act or violation identified in any of those divisions, and if a court has ordered the sealing or expungement of the records of that conviction, guilty plea, or adjudication pursuant to sections 2151.355 to 2151.358, sections 2953.31 to 2953.36, or section 2953.37 of the Revised Code or the applicant has been relieved under operation of law or legal prоcess from the disability imposed pursuant to section 2923.13 of the Revised Code relative to that conviction, guilty plea, or adjudication, the sheriff with whom the application was submitted shall not consider the conviction, guilty plea, or adjudication in making a determination under division (D)(1) or (F) of this section * * *.
{¶ 15}
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
* * *
(2) The person is undеr indictment for or has been convicted of any felony offense of violence * * *.
A Pardon Does Not Relieve a Disability by Operation of Law
{¶ 16} The interpretation of a statute is a question of law which we review de novo. State v. Vanzandt, 142 Ohio St.3d 223, 28 N.E.3d 1267, 2015–Ohio–236, ¶ 6. The Supreme Court of Ohio has explained that:
When analyzing statutory provisions, our paramount concern is to ascertain and give effect to the intention of the General Assembly. Henry v. Cent. 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 meаning 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.
{¶ 17} Runions argues that based upon the last antecedent rule, the phrase “under operation of law” is not tied to the later phrase “pursuаnt to section 2923.13” in
{¶ 18} Here, Runions points out that the phrase “legal process” stands between the phrase “under operation of law” and the phrase “pursuant to section 2923.13.” Therefore, Runions argues that based upon the last antecedent rule, the phrase “operation of law” is to be read separately, while the phrase “legal process” is qualified by the phrasе “pursuant to section 2923.13.” Based upon his interpretation of
{¶ 19} In support of his argument, Runions cites the Ohio Supreme Court case of Fabe. Fabe, however, was a declaratory judgment seeking an interpretation of
* * * [Appellants‘] suggested construction would alter the plain and unambiguous language of
R.C. 3905.04 . The phrase “directly or indirectly” modifies its antecedent, “solicit, place or effect such insurance.” The statute restricts the indirect placement of insurance on property for which the applicant is an agent, custodian, vendor, bailee, trustee or payee. * * * [Appellants] would apply the words “directly or indirectly,” which appear in the middle of the paragraph, to the list of relationships appearing at the end of the paragraph. Thus, under * * * [appellants‘] construction, the statute would restrict the placement of insurance on property for which the applicant is directly or indirectly an agent, custodian etc. Such a construction is not in accord with the plain wording of the statute. The phrase “directly or indirectly” cannot be moved from one place in a sеntence to another as part of statutory construction.
{¶ 20} In our view, the last antecedent rule has no applicability in the instant case. Rather, we are guided by the general rule of statutory construction expressio unius est exclusio alterius, the expression of one or more items of a class implies that those not identified are to be excluded. State v. Droste, 83 Ohio St.3d 36, 39, 697 N.E.2d 620 (1998). It is well recognized that a court cannot read words into a statute but must give effect to the words used in the statute. See State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390, 392, 732 N.E.2d 367 (2000).
{¶ 21} As previously stated,
A Pardon Cannot Act to Removе a Disability That Does Not Exist Under R.C. 2923.13
{¶ 22} As previously stated, while an unconditional pardon acts to remove all “disabilities,” “a pardon provides only forgiveness, not forgetfulness; * * * The pardon does not wipe the slate clean.” Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 36. Nevertheless, one situation where a pardon may require a sheriff to disregard a felony conviction is when the applicant has been relieved under operation of law or legal process from the disability imposed pursuant to
{¶ 23}
{¶ 24} “Offense of violence” is defined in
(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1) of section 2903.34, of division (A)(1), (2), or (3) of sеction 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of the Revised Code or felonious sexual penetration in violation of former section 2907.12 of the Revised Code;
(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;
(c) An offense, other than a traffic offense, under an existing or former municipal ordinаnce or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
(d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.
{¶ 25} As previously stated, the felonies of which Runions was convicted, and later pardoned, are as follows: 1) breaking and entering, in violation of
{¶ 26} Since Runions was not convicted of a felony “offense of violence” pursuant to
{¶ 27} In In re Wells, 11th Dist. Lake No. 2014–L–040, 2015–Ohio–2606, the appellant sought relief of a disability imposed under
{¶ 28} The court found that the “plain language of
Appellant‘s position appears to be, in part, premised upon his assumption that the ability to apply for and obtain a conceal-and-carry license is, or should be, viewed as tantamount to the more general privilege of acquiring, having, using or otherwise carrying a firearm. We decline to conflate these privileges.
Id. at ¶ 19.
{¶ 29} Conversely, Runions relies on two case from the Third District Court of Appeals, In re Reed, 3d Dist. Marion 9-14-44, 2015-Ohio-2742, and In re Application of Mullins, 3d Dist. Marion 9-14-43, 2015-Ohio-2743. In Reed, the appellant had two prior felonies for breaking and entering and welfare theft. In Mullins, the appellant had prior convictions for misdemeanor drug offenses. In both cases, the trial court granted the appellants’ applicatiоns for a CCL, relying upon
(F) Relief from disability granted pursuant to this section restores the applicant to all civil firearm rights to the full extent enjoyed by any citizen * * *.
{¶ 30} Using virtually the same language and reasoning in both Reed and Mullins, the court of appeals stated the following:
R.C. 2923.14 is unambiguous, and thus, we must give effect to its plain meaning. See Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the syllabus. Here, Reed is prohibited from carrying a firearm that is concealed.R.C. 2923.14 is quite clear that “[a]ny person who is prohibited from * * * carrying * * * firearms” may seеk relief under the statute. SinceR.C. 2923.14 provides relief for a person who cannot carry a concealed firearm, it is a mechanism available for Reed and those similarly situated.
Reed at ¶ 14.
{¶ 31} Upon review, we conclude that the appellate court‘s holding in Reed and Mullins completely ignores the language of
{¶ 32} As previously stated, Runions was not convicted of a felony “offense of violence” pursuant to
{¶ 33} In Ohio, although the right to bear arms is fundamental, it is also subject to limitation. Klein v. Leis, 99 Ohio St.3d 537, 539, 2003–Ohio–4779, 795 N.E.2d 633. Furthermоre, “[i]t is the province of the legislature to regulate the carrying of firearms and enactments for that purpose are valid and constitutional.” State v. Hogan, 63 Ohio St. 202 (1900). “The legislature‘s decision to limit or restrict the ability of a convicted felon to obtain a conceal-and-carry license is a matter of policy, the constitutionality of which is not at issue.” Wells, 11th Dist. Lake No. 2014-L-040, 2015-Ohio-2606, at ¶ 18.
{¶ 34} Since Runions‘s felony convictions did not create a firearm disability, he may acquire, have, use, or otherwise carry a firearm. Nevertheless, Runions is still ineligible for a CCL. Pursuant to
{¶ 35} Runions‘s sole assignment of error is overruled.
{¶ 36} The judgment of the trial court is affirmed.
WELBAUM, P.J., and TUCKER, J., concur.
Copies mailed to:
Andrew Pickering
Stephen Behnke
Hon. Douglas M. Rastatter