State v. BurnsideState v. Burnside
For Plaintiff-Appellee: Attorney Paul J. Gains, Prosecuting Attorney, Attorney Ralph M. Rivera, Assistant Prosecuting Attorney, 21 W. Boardman St., 6th Floor, Youngstown, OH 44503
For Defendant-Appellant: John O. Burnside, Pro-se, #17973004, P.O. Box 3000, White Deer, PA 17887
{¶1} This timely appeal comes for consideration upon the record in the trial court, and the parties’ briefs. Pro-se defendant-appellant, John Otis Burnside, appeals the decision of the Mahoning County Court of Common Pleas that denied a motion to expunge his attempted rape conviction. Burnside first argues his attempted rape conviction is void for lack of subject matter jurisdiction due to an allegedly defective indictment. He therefore urges this court to reverse and vacate his conviction. Second, Burnside contends the trial court abused its discretion by denying his motion to expunge his attempted rape conviction.
{¶2} Upon review, Burnside‘s arguments are meritless. First, the defective indictment issue could have been raised in the context of a direct appeal or possibly a petition for post-conviction or habeas relief, however, it is unfit for resolution in the context of the present appeal. Second, Burnside‘s argument is meritless because amending an indictment to charge attempted rape, instead of rape, does not violate
Facts
{¶3} On October 15, 1981, Burnside was convicted by the Mahoning County Court of Common Pleas of one count of attempted rape, pursuant to
{¶4} On April 22, 2008, Burnside filed a pro-se motion to expunge that conviction with the trial court, pursuant to
The Validity of the Underlying Conviction
{¶5} In his first of two assignments of error Burnside asserts:
{¶6} “Whether the Court of Common Pleas erred in denying the Appellant‘s Motion to Expunge Appellant‘s Criminal Conviction, since the Court of Common Pleas never had any subject-matter jurisdiction in Case No: 1980-CR-1131.”
{¶7} Burnside first challenges the validity of the attempted rape conviction he seeks to expunge. He argues his attempted rape conviction was void for lack of subject matter jurisdiction because of an allegedly defective indictment. He claims that he was originally indicted for rape and that the trial court improperly permitted the State to amend the indictment to a charge of attempted rape without presenting that amended charge to the grand jury. He therefore posits his conviction was void for lack of subject matter jurisdiction, and urges this court to reverse and vacate the conviction. The State argues this court should disregard Burnside‘s argument, as it is untimely and irrelevant.
{¶8} As an initial matter, Burnside never raised this issue during the expungement proceedings below. The defective indictment issue could have been raised in the context of a direct appeal or possibly a petition for post-conviction or habeas relief. Moreover, Burnside‘s defective indictment argument is meritless because amending an indictment to charge attempted rape, instead of rape, absent re-presentment to the grand jury is proper. Contrary to Burnside‘s assertions, such an amendment does not change the “identity of the crime charged,” and therefore does not violate
The Trial Court‘s Denial of the Motion to Expunge
{¶10} “Whether the Court of Common Pleas abused its discretion in denying the Appellant‘s Motion to Expunge.”
{¶11} Burnside reiterates his contention that his underlying conviction is void, and argues the trial court should have therefore granted the motion to expunge. The State counters that the trial court properly dismissed the motion to expunge because Burnside‘s conviction is ineligible for sealing pursuant to
{¶12} An appellate court generally reviews a trial court‘s disposition of a motion to expunge and seal the record under an abuse of discretion standard. State v. Pierce, 10th Dist. Case No. 06AP-931, 2007-Ohio-1708 at ¶5, citing State v. Hilbert (2001), 145 Ohio App.3d 824, 827, 764 N.E.2d 1064. An abuse of discretion means trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. However, where, as here, questions of law are in dispute, an appellate court reviews the trial court‘s determination de novo. Pierce at ¶5, citing State v. Derugen (1996), 110 Ohio App.3d 408, 410, 674 N.E.2d 719.
{¶13} Pursuant to
{¶14} Specific statutory provisions, set forth in
{¶15}
{¶16} “(A)(1) Except as provided in section
{¶17}
{¶18} “(B) Convictions under section
{¶19} “(G) Convictions of a felony of the first or second degree.”
{¶20} Burnside was convicted of attempted rape pursuant to
{¶21} Burnside was convicted of attempted rape. A conviction for rape, like gross sexual imposition, is one that is excepted from sealing pursuant to
{¶22} Moreover, Burnside‘s attempted rape conviction also falls under the
{¶23} Based on the foregoing, the trial court correctly overruled Burnside‘s motion to expunge. Burnside‘s second assignment of error is meritless.
Conclusion
{¶24} Both of Burnside‘s assignments of error are meritless. First, although the defective indictment issue could have been raised to challenge Burnside‘s conviction within a direct appeal or possibly a petition for post-conviction or habeas relief, it is unfit for resolution in the context of the present appeal. In any event, Burnside‘s argument is meritless because amending an indictment to charge attempted rape, instead of rape, absent re-presentment to the grand jury, does not violate
Vukovich, P.J., concurs.
Waite, J., concurs.