State of Ohio, [and City of Columbus], Plaintiffs-Appellants, v. C.A., Defendant-Appellee.
No. 13AP-982 (M.C. 2013 CRX 052260) and No. 13AP-1001 (M.C. No. 2013 CRX 52261)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 17, 2014
[Cite as State v. C.A., 2014-Ohio-2621.]
(REGULAR CALENDAR)
Rendered on June 17, 2014
Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton; Richard C. Pfeiffer, Jr., Columbus City Attorney, and Melanie R. Tobias, for appellants.
Yeura R. Venters, Franklin County Public Defender, and Emily L. Huddleston, for appellee.
APPEALS from the Franklin County Municipal Court
DORRIAN J.
{¶ 1} The Franklin County Municipal Court entered separate judgments granting two applications filed pursuant to
I. Facts and Case History
{¶ 2} On May 30, 2012, an officer of the Ohio State Patrol issued numerous citations to appellee in the course of a traffic stop, including speeding and operating a vehicle while intoxicated (“OVI“), in violation of
{¶ 3} The most serious of the four drug-related charges was one charging appellee with the offense of aggravated possession of drugs (heroin), in violation of
{¶ 4} The remaining three drug-related charges, all misdemeanors, were prosecuted by the Columbus City Attorney in Municipal Court case No. 2012 CRB 13537. Those charges were possession of drug paraphernalia (smoking bowl), in violation of
{¶ 5} The charges of operating a vehicle while intoxicated (“OVI“) and speeding proceeded in a third case, Municipal Court case No. 2012 TRC 146198. On July 23, 2012, appellee pleaded guilty to a first offense of OVI; the court ordered a fine of $375 and sentenced appellee to 180 days in jail, with three days of jail time credited for time served.
{¶ 6} In summary, on May 30, 2012, appellee was cited for speeding, OVI, and four drug-related offenses, three of which were initially charged as misdemeanors, and one of which was later amended from a felony to a misdemeanor. The court ultimately dismissed all four of the drug-related charges. Appellee was also convicted and sentenced for OVI.
{¶ 7} On August 22, 2013, appellee filed two applications pursuant to
{¶ 8} On October 29, 2013, the court held a hearing on appellee‘s applications and ordered the sealing of the records of case Nos. 2012 CRA 13537 and 2012 CRA 3538. Both the city and the state have appealed, and we have consolidated the two appeals.
{¶ 9} In a joint brief, the state and the city assert a single assignment of error, as follows:
THE TRIAL COURT ERRED IN GRANTING THE APPLICATION TO SEAL THE RECORDS OF TWO CASES, WHERE THE APPLICATIONS WERE BARRED BY R.C. 2953.61.
{¶ 10} In this appeal, appellants argue that the trial court erred in sealing the record of appellee‘s dismissed drug-related cases pursuant to
{¶ 11} The syllabus to Pariag provides as follows:
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 the 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.
{¶ 12}
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 and divisions (A)(1) and (2) of section 2953.52 of the Revised Code.
(Emphasis added.)
{¶ 13}
Sections 2953.31 to 2953.35 of the Revised Code [outlining the criteria, process and effect of the sealing of the records of convictions] do not apply to any of the following:
* * *
(B) Convictions under * * * Chapter * * * 4511. * * * of the Revised Code, or a conviction for a violation of a municipal ordinance that is substantially similar to any section contained in any of those chapters[.]
{¶ 14} OVI is an offense delineated in
{¶ 15} The facts in Pariag3 are similar to those in the case now before us in that both Pariag and appellee were convicted of one misdemeanor traffic offense, while one or more other drug-related charges that had been contemporaneously, but separately, filed against them were dismissed. That is, in both Pariag and the case before us, the court convicted the defendant of a traffic offense but dismissed a contemporaneously filed, but separate, case alleging drug-related charges.
{¶ 16} In Pariag, 137 Ohio St.3d 81, the Supreme Court held that, under the unambiguous terms of
{¶ 17} In the case before us, it is clear from the Supreme Court‘s decision in Pariag that, if appellee‘s drug-related charges and her OVI “arose as a result of or in connection with the same act,” then sealing of the records of the dismissed drug-related charges against her is precluded. As in Pariag, however, the record does not reflect that the trial court made a determination as to whether the OVI and the drug-related charges arose as a
{¶ 18} The appellants contend that, in the case before us, the record demonstrates that appellee was cited in both the OVI case and the drug-related cases on the same date, at the same location, and by the same police officer. It argues that all of the charges against appellee accordingly “arose from the same incident” (Appellants’ Brief, 7), and that Pariag thus precludes sealing of the records of appellee‘s misdemeanor drug-related cases. In so arguing, appellants imply that charges “arising from the same incident” necessarily equates to charges “arising as the result of or in connection with the same act” and urges us to remand this matter to the trial court with instructions that it deny appellee‘s application for sealing of the records.
{¶ 19} The Supreme Court in Pariag, however, could have, but did not, dispose of that case by remanding it to the trial court with instructions to deny the application. Rather, it remanded the case for the trial court to determine in the first instance whether Pariag‘s DUS charge and drug possession charges arose “as a result of or in connection with the same act.” It 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. See Pariag, 2012-Ohio-1376, at ¶ 2, as quoted at footnote 3 of this decision. Moreover, the record before us is devoid of facts concerning the events surrounding the traffic stop. We therefore order the same disposition in this case as the Supreme Court ordered in Pariag; i.e., reversal of the trial court‘s judgment sealing the records and remand to that court for it to reconsider the applications.
III. Conclusion
{¶ 20} Consistent with the disposition of the Supreme Court of Ohio in Pariag, we sustain appellants’ assignment of error to the extent that we recognize that the trial court erred in granting the sealing of the records without having first determined whether
Judgments reversed; cause remanded with instructions.
KLATT and CONNOR, JJ., concur.
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Notes
(A)(1) 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.
In re Application of Pariag, 10th Dist. No. 11AP-569, 2012-Ohio-1376, ¶ 2.On December 31, 2010, the Ohio State Highway Patrol issued a traffic stop on Interstate 71 in Columbus, Ohio. Appellee‘s license had previously been suspended, so he was charged with driving under suspension, in violation of
R.C. 4510.11(A) , a first-degree misdemeanor. At the time of the traffic stop, appellee allegedly had in his possession a plastic bag of marijuana and rolling papers. He was therefore charged with possession of drugs, in violation ofR.C. 2925.11(C)(3) , a minor misdemeanor, and possession of drug paraphernalia, in violation ofR.C. 2925.14(C)(1) , a fourth-degree misdemeanor. Separate complaints were filed with respect to the traffic charge and drug charges. Thus, the traffic charge was filed in case No. 2011 TRD 100861, while the drug charges were filed in case No. 2011 CRB 239. Appellee pleaded guilty to the traffic charge in 2011 TRD 100861, and, in exchange, the drug charges in 2011 CRB 239 were dismissed.