State v. G.K.State v. G.K.
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 29, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellee.
Zukerman, Lear & Murray, Co., L.P.A., Larry W. Zukerman, Brian A. Murray, and Adam M. Brown, for appellant.
{1} G.K. appeals the trial court‘s denial of his application to seal the records related to dismissed charges in Cuyahoga C.P. No. CR-09-526944-B.1 For the reasons that follow, we reverse and remand.
I. FACTUAL BACKGROUND
{2} George Moses (“Moses“) was indicted on August 19, 2009, for 23 offenses. Of the 23 offenses charged, 21 arose out of sexual misconduct directed at Moses‘s daughter, who was cognitively impaired. The other two charges were for obstructing justice and tampering with evidence. Moses pled guilty to three out of nine rape charges and three out of six kidnapping charges against his own daughter. The other 17 charges against Moses were nolled. He was sentenced to serve 60 years in prison for his crimes.
{3} G.K. is Moses‘s first cousin. G.K. was named as a codefendant in the August 19, 2009 indictment against Moses. G.K., however, was only charged with seven offenses. The indictment falsely charged G.K. with three counts of rape, one
{4} In addition to facing the alleged sexual offense charges, the indictment charged G.K. with obstructing justice and tampering with evidence. Those offenses were dated between July 22, 2009, and August 6, 2009, at least one month after the alleged sexual offenses charged against G.K. were thought to have occurred. The record indicates that the obstructing justice charge arose in connection with G.K. allegedly concealing Moses‘s computer from the police. The police eventually obtained the computer through a search of G.K.‘s home. But after a forensic examination, the computer did not yield any evidence against either G.K. or Moses.
{5} In a plea agreement, G.K. pled guilty to a single count of obstructing justice and the state nolled all the other charges against him. G.K. was sentenced to community control, which the court terminated early for his good compliance. He later sought to have the dismissed charges sealed.
{6} G.K. was 51 years old when he was indicted and had been married for about ten years. He is now 62 years old and has been married for 20 years. He has a tenth-grade education and is a trained locksmith. G.K. described to the trial court how the false charges against him have impacted his entire life:
I‘ve got this placard across my forehead of embarrassment and shame that I‘ve had to suffer and endure all this time, which is totally unfair to
live a life — to live a year in my shoes, I don‘t think anybody could bear. But this is what I have to deal with.
Tr. 66:11-15.
II. PROCEDURAL BACKGROUND
{7} Moses, G.K.‘s cousin, was indicted on 23 charges in Cuyahoga C.P. No. CR-09-526944-A. He faced nine counts of rape, in violation of
{8} DNA evidence determined that Moses — not G.K. — committed all the most egregious crimes. Moses pled guilty to three counts of rape and three counts of kidnapping. The state nolled the 17 other charges against him. On May 13, 2010, the trial court sentenced Moses to ten consecutive years on each count to that he pled guilty, for a total of 60 years, with five years’ mandatory postrelease control.
{9} The indictment included the following seven charges against G.K.: three counts of rape, in violation of
{10} The false rape, gross sexual imposition, and kidnapping charges (Counts 13 - 17) were for offenses dated around June 20, 2009. The obstructing justice charge (Count 18) and tampering with evidence charge (Count 19) were for offenses dated between July 22, 2009, through August 6, 2009.
{11} G.K. pled not guilty to all charges on September 16, 2009. Around September 22, 2010, after DNA evidence exonerated G.K. and the victim recanted her accusations against him, the state nolled the false rape, gross sexual imposition, and kidnapping charges (Counts 13, 14, 15, 16, and 17). The tampering with evidence charge (Count 19) was also nolled.
{12} On September 27, 2010, G.K. pled guilty to a single count of obstructing justice in violation of
{13} On August 15, 2014, G.K. sought to have the dismissed charges in the indictment sealed pursuant to
{14} The judge originally assigned to G.K.‘s case oversaw a hearing regarding G.K.‘s application to seal the dismissed charges on April 27, 2015. At the hearing, the state argued that G.K.‘s dismissed charges could not be sealed because doing so would require the court to order a partial sealing since G.K.‘s obstructing justice charge cannot be sealed. The trial court expressed hesitation about refusing to seal charges that were proven false just because another charge in the indictment resulted in a conviction that G.K. is not statutorily eligible to have sealed:
But in this case, if what [defense counsel] is outlining is true and the dismissed counts that were initially brought from a grand jury, based on information that was later proven false, now it‘s just on the record, are now hampering his client‘s ability to be employed, at no fault of his own.
What public policy is advanced in not sealing the claims that were not only not proven, but during the discovery phase of the case determined to be false, if [defense counsel] is representing the facts correctly, and were based on accusations that were later recanted?
* * *
[A]s I‘m hearing this I‘m hard pressed to think of a public policy that would be advanced by allowing charges that were brought to your office, that were later dismissed, not as a result of a negotiated plea agreement, but because of the discovery that the information that was
used to obtain the indictment in the first place were based upon false information. I have no — I cannot see how — how any public policy is advanced by requiring that those remain as part of the public record in this case when they‘re, you know, clearly salacious, scandalous accusations, that were not proven.
Tr. at 22:13-23:1; 25:18-26:7.
{15} Nevertheless, the trial court allowed the state to supplement the record to provide the Ohio Supreme Court case it believed prohibited the court from sealing the false, dismissed charges on G.K.‘s record. Both parties finished briefing the issue on April 28, 2015. Thereafter, the case inexplicably sat dormant until February 11, 2019, when a newly appointed judge was assigned to the case.
{16} The newly assigned judge also held a hearing on G.K.‘s application to seal his dismissed charges on August 16, 2019. The state maintained that the law does not permit records to be partially sealed, but was forthright that it otherwise did not have an interest in opposing G.K.‘s request to seal. The trial court denied the application on September 23, 2019. The judgment entry stated:
Motion for expungement of criminal record, filed, $50, filed 08/15/2014, is denied. The court reviewed the briefs of the parties and a supplemental hearing was held on the record. Pursuant to Ohio Revised Cod 2953.61(A), defendant is not an eligible offender. The obstruction of justice charges [sic] at issue arose in conjunction with the charges that were dismissed.
{17} This appeal follows. G.K. asserts one assignment of error:
Assignment of Error No. 1
The trial court erred when it denied Appellant‘s application to seal the records related to the dismissed charges.
A. Standard of review.
{18} ““We review a trial court‘s decision on a motion to seal record for an abuse of discretion.“” State v. Chudakoff, 8th Dist. Cuyahoga No. 108770, 2020-Ohio-2723, ¶ 8, citing State v. Krutowsky, 8th Dist. Cuyahoga No. 81545, 2003-Ohio-1731, ¶ 10. A trial court abuses its discretion where its decision is unreasonable, arbitrary, or unconscionable. Bales v. Forest River, Inc., 8th Dist. Cuyahoga No. 107896, 2019-Ohio-4160, ¶ 21, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{19} However, an abuse-of-discretion standard is not appropriate when a lower court‘s judgment is based on an erroneous interpretation of the law. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. A trial court‘s interpretation of a statute is a question of law that we review de novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9.
{20} We will apply an abuse of discretion standard of review to the trial court‘s factual determinations related to G.K.‘s motion to seal and a de novo standard to issues involving statutory interpretation of the relevant sealing statutes.
B. The statutes governing sealing of records.
{21}
{22}
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.
{23} Both sealing statutes are subject to
Except as provided in division (B)(1) of this section, a person charged with two or more offenses as a result of or in connection with the same act may not apply to the court pursuant to section 2953.32 or 2953.52 of the Revised Code for the sealing of the person‘s record in relation to any of the charges when at least one of the charges has a final disposition that is different from the final disposition of the other charges until such time as the person would be able to apply to the court and have all of the records pertaining to all of those charges sealed pursuant to section 2953.32 or 2953.52 of the Revised Code.
C. Summary of the arguments.
{24} G.K. applied under
{26} The state argues that neither
[W]hen an applicant with multiple convictions under one case number moves to seal his or her criminal record in that case pursuant to
R.C. 2953.32 and one of those convictions is statutorily exempt from sealing pursuant toR.C. 2953.36 , the trial court may not seal the remaining convictions.
Futrall at ¶ 15.
R.C. 2953.52 .
{27}
{28} “““When the General Assembly has plainly and unambiguously conveyed its legislative intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law as written.““” State v. A.H., 8th Dist. Cuyahoga No. 108205, 2019-Ohio-5120, ¶ 7, quoting V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274 at ¶ 15, quoting State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.
{29} However, when a statute‘s language is not clear and unambiguous, a court must look beyond the language to determine legislative intent. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, at ¶ 10. “When construing a statute, a court‘s objective is to determine and give effect to the legislative intent.” Pariag at ¶ 10, citing State ex rel. Solomon v. Police & Firemen‘s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995).
{31} We first find that {32} The state argues that the plain language of {33} At best, the state‘s argument reveals ambiguity within the statute that requires us to construe the legislature‘s intent. The state‘s interpretation overlooks {34} We acknowledge that the Fourth District has concluded that the defendant was not eligible to seal four dismissed counts in an indictment where he was found guilty of one count of rape. State ex rel. Lewis v. Lawrence Cty., 95 Ohio App.3d 565, 642 N.E.2d 1166 (4th Dist.1994). The Tenth District came to a similar conclusion in holding that {35} We are also not persuaded by the state‘s reliance on Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497. In Futrall, the court held that courts may not seal convictions under {36} Because we find {37} Legislative history demonstrates that the legislature did not intend to prohibit applications like G.K.‘s. When the General Assembly enacted 2013 S.B. 143 and amended the language of {38} This authorization is evidenced by the Legislative Service Commission‘s Final Analysis of 2013 S.B. 143. The Commission summarized that the Act “[c]hanges the language of that Law that refers to the sealing of records to clarify that the record sealing provisions apply with respect to individual convictions and bail forfeitures in a case and not just with respect to an entire case.” https://www.lsc.ohio.gov/documents/gaDocuments/analyses130/14-sb143-130.pdf (accessed Aug. 24, 2020.) {39} When discussing the operation of the act, the Commission stated: (2) It changes the language that currently refers to the sealing of the “conviction record,” “records of the case,” “official records pertaining to the case,” “proceedings in the case,” and similar language to clarify that the record sealing provisions apply with respect to individual convictions and bail forfeitures in a case and not just with respect to an entire case. Id., citing {40} Additionally, we find further support that the General Assembly permits partial sealing because in {41} Interpreting the {42} Furthermore, the Supreme Court of Ohio has determined that ” {43} There is no indication that the legislature intended to prohibit the partial sealing of records under the circumstances in which G.K. finds himself. DNA evidence and the victim‘s recanted accusations exonerated him of the false sexual and kidnapping charges and the state dismissed those charges. But as long as the false charges remain public, G.K. must bear the inescapable social stigma they carry. Without any suggestion that the legislature intended such an unjust outcome, we {44} Having found that G.K.‘s application is proper under {45} Regarding the first element, the Ohio Supreme Court has determined that “‘same act’ plainly refers to the ‘same conduct.‘” Pariag at ¶ 16. G.K. was charged with multiple offenses that resulted in different dispositions — one conviction and six dismissals. We find that one of the dismissed charges, the tampering with evidence charge, arose from the same conduct as the differently disposed obstructing justice conviction. However, because the obstructing justice conviction is not exempt from sealing under {46} We will first discuss whether the court abused its discretion in finding that the “obstruction of justice charges at issue arose in conjunction with the charges [sic] that were dismissed.” We agree that the dismissed tampering with evidence charge arose from the same conduct as the obstruction of justice conviction. However, we find that the trial court abused its discretion in finding that the dismissed rape, gross sexual imposition, and kidnapping charges arose in connection with the obstruction conviction. {47} The acts that supported the obstruction of justice conviction are distinctly separate in time, place, and nature from the rape, gross sexual imposition, and kidnapping charges. The obstructing justice conviction was for an offense dated between July 22, 2009, and August 6, 2009. The rape, gross sexual imposition, and kidnapping charges were for offenses dated June 20, 2009, at least one month before the offense date for the obstructing justice charge. The difference in dates demonstrates that the alleged conduct related to the false dismissed sexual and kidnapping charges did not arise from the same conduct that gave rise to the obstructing justice conviction. {48} Further, the record demonstrates that the obstructing justice charge arose because G.K. hid Moses‘s computer in his home and the police officers had to {49} However, we do not find an abuse of discretion in concluding that the tampering with evidence charge arose from the same conduct that supported the obstruction conviction. Given that the tampering charge and obstruction conviction shared an offense date and that the charges are generally similar in nature, we find that the trial court did not abuse its discretion in concluding that the tampering with evidence charge arose from the same conduct as the obstructing justice charge. {50} We next consider whether the trial court erred in denying G.K.‘s application pursuant to {51} G.K. does not dispute that he is not an eligible offender pursuant to {52} The Ohio Supreme Court has determined that A trial court is precluded from sealing the record of a dismissed charge pursuant to Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, at ¶ 21, quoting {53} Accordingly, the fact that the tampering charge and obstruction conviction are related is immaterial because G.K.‘s obstructing justice conviction is not exempt from sealing under {54} We also note that although G.K.‘s 1996 conviction for felony-one drug possession is exempt from sealing pursuant to {¶ 55} Accordingly, G.K.‘s assignment of error is sustained. {¶ 56} We find that (1) G.K. is eligible to seek to have his dismissed charges sealed under {¶ 57} Upon the filing of an application to seal dismissed charges, ” State v. Andrasek, 8th Dist. Cuyahoga No. 81398, 2003-Ohio-32, ¶ 10, quoting State v. Newton, 10th Dist. Franklin Nos. 01AP-1443 and 01AP-1444, 2002-Ohio-5008, ¶ 7. {¶ 58} The record demonstrates that the charges G.K. seeks to have sealed were dismissed, thus satisfying the first requirement. As to the second requirement, nothing in the record indicates that there are pending criminal proceedings against I don‘t have an interest why the records shouldn‘t be sealed, other than the fact that the law says that they can‘t be sealed. Tr. 57:3-6. {¶ 59} The state did not argue otherwise in this appeal and still has not expressed any interest in maintaining records of the dismissed charges G.K. seeks to have sealed. Having determined that the law does not prohibit the sealing of G.K.‘s dismissed charges, the assistant prosecutor plainly admitted that the state has no interest in maintaining records of the false charges, which the trial court accurately described as “clearly salacious, scandalous accusations.” Tr. 26:5-6. {¶ 60} On remand, the trial court must determine whether there are any criminal proceedings pending against G.K. to satisfy the second requirement. The trial court must also consider the third requirement on remand and determine whether G.K.‘s interest in sealing the dismissed charges outweighs the state‘s interest in maintaining them. {¶ 61} Finally, we address alternative grounds for this appeal. Even if the state‘s interpretation of {¶ 62} “A person convicted of a crime has no substantive right to have the record of that conviction sealed. The sealing of the record of a conviction ‘is an act of grace created by the state.‘” State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 13, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996). However, where (1) the legislature does not expressly authorize or prohibit a particular request to seal and where (2) “unusual and exceptional circumstances” exist, the judiciary has inherent authority to order the sealing of records.2 Pepper Pike v. Doe, 66 Ohio St.2d 374, 376, 421 N.E.2d 1303 (1981). {¶ 63} If G.K.‘s application falls outside the purview of {¶ 64} In Pepper Pike, the Supreme Court established a balancing test requiring trial courts to weigh “the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records.” Id. at 377. “Where there is no compelling state interest or reason to retain the judicial and police records, * * * the accused is entitled to this remedy.” Id. The court cautioned, however, that “this is the exceptional case” and that courts should not construe the decision “to be a carte blanche for every defendant acquitted of criminal charges.” Id.; see also Schussheim at ¶ 16 (applying Pepper Pike but recognizing that courts are limited in the exercise of this inherent authority). Pepper Pike based this inherent authority on the constitutional right to privacy. Id. at 377. {¶ 65} Assuming, in the alternative, that (1) there is no Ohio statute that expressly authorizes the sealing of records where, as here, G.K. pled guilty to one charge in an indictment and the state dismissed all the other charges in the same indictment, and that (2) Ohio‘s sealing statutes do not prohibit the partial sealing {¶ 66} In Pepper Pike, the Ohio Supreme Court invoked extrastatutory authority to seal records of dismissed charges that were brought purely to harass and vex the defendant. Pepper Pike v. Doe, 66 Ohio St.2d at 377. Pepper Pike was decided before the legislature enacted {¶ 67} Similar to the defendant in Pepper Pike, if {¶ 68} The state charged G.K. with multiple offenses for heinous acts that not only were ultimately dismissed, but also DNA evidence exonerated G.K. and the victim recanted her allegations that lead to these charges. Other than its legal objection to partial sealings, which we have determined is without merit, the state admittedly has no legitimate need in maintaining a record of the dismissed charges, thus raising unique and exceptional circumstances required to invoke inherent judicial authority. {¶ 69} Even on this alternative ground, our instructions on remand are largely the same because {¶ 70} The judgment of the trial court is reversed and the matter is remanded for further consideration of the remaining requirements set forth in It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to MARY EILEEN KILBANE, JUDGE KATHLEEN ANN KEOUGH, P.J., CONCURS WITH SEPARATE OPINION; MICHELLE J. SHEEHAN, J., DISSENTS WITH SEPARATE OPINION {¶ 71} I concur with the lead opinion‘s decision to reverse the trial court‘s decision denying G.K.‘s application to seal the records related to the dismissed charges in Cuyahoga C.P. No. CR-09-526944-B. I also concur with the majority‘s decision to remand the matter to the trial court for further consideration. I write separately to express my concern about how we got here and what could be done to prevent a miscarriage of justice in these types of cases. {¶ 72} G.K. was charged with his codefendant in a 23-count indictment — an indictment where it was determined that his codefendant committed all the most egregious crimes. G.K. accepted a “plea deal” with the state where he agreed to plead guilty to an obstruction of justice charge, a fifth-degree felony, and the state would nolle or dismiss the remaining charges against G.K. The state waved a dangling carrot before G.K., who believed that the dismissal of the sexually based offenses in exchange for a plea to a fifth-degree felony was exoneration. {¶ 73} I agree with the original trial court judge that this was not a situation where the “plea agreement” was a deal where G.K. obtained a benefit. The court stated: I could see in a case where a negotiated plea bargain takes place, and counts are dismissed in exchange for an admission of guilt on either one of the counts that was brought forth in the indictment, or a lesser included count. But in this case, if what [defense counsel] is outlining is true and the dismissed counts that were initially brought from a grand jury, based on information that was later proven false, now it‘s just on the record, are now hampering his client‘s ability to be employed, at no fault of his own. What public policy is advanced in not sealing the claims that were not only not proven, but during the discovery phase of the case determined to be false, if [defense counsel] is representing the facts correctly, and were based on accusations that were later recanted? (Tr. 22-23.) In my opinion, the state used false charges as a bargaining chip, and unfortunately, G.K. and his counsel did not realize the unintended consequences of his plea. Therefore, I question whether G.K. made a knowing, intelligent, and voluntary plea. {¶ 74} The state charged G.K. with multiple offenses for heinous acts that not only were ultimately dismissed, but also DNA evidence exonerated G.K. and the victim recanted her allegations that led to these charges. It is my belief that when this occurred, the state had the obligation to dismiss the entire indictment against G.K. and reindict him only for the offenses that the state felt it could prove beyond a reasonable doubt or where the interest of justice demanded, which I find lacking. {¶ 75} At the hearing on G.K.‘s motion to seal, counsel revealed that the obstruction offense was based on the purported delay in turning over his codefendant‘s computer after the police asked G.K. to retrieve it for them. The {¶ 76} By the time G.K. agreed to bite at the dangling carrot, his codefendant was already convicted and sentenced to 60 years for the heinous acts — the state received its pound of flesh. What justice was served by G.K.‘s guilty plea to a fifth-degree felony charge of obstruction? In my opinion, the case against G.K. should have been dismissed in its entirety. {¶ 77} I also find problematic that G.K. and his codefendant were indicted under the same charging instrument and were comingled under multiple counts, i.e. both G.K. and his codefendant were charged with obstruction of justice in the same count that G.K. ultimately pleaded guilty. G.K.‘s codefendant accepted a plea agreement and pleaded guilty to multiple offenses in the indictment. Accepting the dissent‘s position, G.K. would be ineligible for sealing of the record regardless of his plea deal or even if all offenses were dismissed because sealing the record for G.K. would amount to partial sealing of a case. Clearly, the General Assembly could not have intended this result, but as the dissent states unequivocally, “cases are sealed, not convictions.” {¶ 78} Finally, as the lead opinion points out, the state has almost no interest in keeping the dismissed charges open or any interest in maintaining these records against G.K. The state‘s only objection is that G.K. is not eligible under {¶ 79} Because I would find that {¶ 80} Appellant, G.K., Sr., entered a plea bargain on the day of trial, September 27, 2010, in which he pleaded guilty to one of several charges in the indictment. On that same day, the state nolled the remaining charges in exchange for his plea. In 1996, appellant was convicted of a first-degree felony possession of drugs. He admits he cannot have his conviction for obstruction of justice sealed {¶ 81} After the indictment, appellant filed several motions that shed light on the basis of the indicted charges. The sexual assault charges in the indictment were based upon statements from the victim that G.K. participated when her father raped her in the kitchen. The victim is the codefendant‘s 37-year-old cognitively impaired daughter. According to G.K.‘s Supplemental Motion for Separate Trials, his cousin and codefendant, Moses, provided a statement to the police that G.K. was present and left alone for a period of time with the victim on the day of the incident. {¶ 82} In 2015, at the first hearing on the motion to seal at issue in this appeal, the trial judge listened to the arguments, and wavered on finding that the charges were “false” or that DNA evidence “exonerated” appellant. The trial judge did opine that “if” that were the case, then he could not see public policy furthered by not sealing the charges dismissed in this case, but allowed the parties to provide supplemental briefing and caselaw. {¶ 83} In 2019, at the second hearing on the motion before a successor judge, appellant testified, which testimony forms the basis of the majority opinion that the charges were “false.” This case has a limited record regarding the basis of the underlying charges other than witness statements filed with the court and appellant‘s motions referencing the statement of the codefendant that appellant was present. Lacking is any explanation from the state as to why the plea agreement was reached, leaving us without a clear record of why the charges were dismissed — were {¶ 84} However, the legal issue of whether nolled charges can be sealed in a case where unsealable convictions remain has arisen in the past, and courts reviewing the statutory structure have found the law does not allow for the sealing of the charges. {¶ 85} In his Motion to Seal Records Related to Dismissed Charges, appellant asked to seal only those charges dismissed as part of his plea bargain. [a]ny 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 {¶ 86} However, {¶ 87} In State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 7, the Ohio Supreme Court found that a dismissed charge could not be sealed when it “arises ‘as a result of or in connection with the same act‘; that supports a conviction when the records are not sealable under In other words, when multiple offenses have different dispositions, an application to seal a record may be filed only when the applicant is able to apply to have the records of all the offenses sealed. Thus, if the record of one charge cannot be sealed, any charges filed as a result of or in connection with the act that resulted in the unsealable charge cannot be sealed. (Emphasis added.) Id. at ¶ 17. The Supreme Court remanded the case to the trial court to determine if the drug charges arose “as the result of or in connection with the same act” as the traffic violation. Id. at ¶ 22, quoting {¶ 88} In this case, the trial court found, “[t]he obstruction of justice charges [sic] at issue arose in conjunction with the charges that were dismissed.” It is {¶ 89} In addition to being ineligible for sealing under {¶ 90} Reiterating the General Assembly‘s intent to authorize the sealing of cases, rather than charges within a single case, several courts of appeal have read the statute to preclude partial sealing of records. Following Futrall, the Tenth District Court of Appeals explained: (Emphasis added.) In Re K.J., 10th Dist. Franklin No. 13AP-1050, 2014-Ohio-3472, ¶ 31, citing Futrall at ¶ 20; see also State v. C.K.J., 2016-Ohio-5637, 70 N.E.3d 1087, ¶ 24 (10th Dist.). {¶ 91} This interpretation of the law is consistent with other districts. In State v. Selesky, 11th Dist. Portage No. 2008-P-0029, 2009-Ohio-1145, ¶ 22, the Eleventh District Court of Appeals held that an applicant who had a charge that could not be sealed pursuant to [a]lthough several counts in the indictment against appellant were either dismissed or nolle prosequi, neither a complaint nor an indictment was dismissed against appellant. In other words, the statute requires that an indictment against the appellant be dismissed, not merely a count in an indictment. {¶ 92} Prior courts interpreting the sealing statutes in a case such as this one where appellant seeks sealing some charges in a case, have not found the statutes to be ambiguous. Nor have the amendments to {¶ 93} The issue of whether nolled charges in a case where convictions remain unsealable arises frequently. This case highlights the complexity of the statutes and unique nature of each case. Because the plain language of the statutes1.
2. The legislature did not intend to prohibit the sealing of individually dismissed charges.
E.
1. The trial court abused its discretion in finding that the dismissed rape, gross sexual imposition, and kidnapping charges arose from the same conduct as the obstructing justice conviction.
2. The trial court erred in finding that
F. Whether G.K. is entitled to have his dismissed charges sealed under
G. The judiciary‘s inherent authority to seal records.
IV. CONCLUSION
KATHLEEN ANN KEOUGH, P.J., CONCURRING WITH SEPARATE OPINION:
MICHELLE J. SHEEHAN, J., DISSENTING: