State v. LawsonState v. Lawson
Rendered on May 23, 2013
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Swope and Swope, and Richard F. Swope, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN J.
{¶ 1} Defendant-appellant, Patricia A. Lawson (nka Thompson) (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas denying her application filed, pursuant to
I. Facts and Case History
{¶ 2} On November 1, 2006, the trial court entered judgment convicting appellant of menacing by stalking with trespass, in violation of
{¶ 3} On March 11, 2011, appellant filed her application for expungement as authorized by
{¶ 4} On remand, the trial court held a hearing on the application for expungement, which both appellant and her counsel attended. After considering the evidence, the trial court found that appellant had met all the statutory requirements for expungement as enumerated in
{¶ 5} The court, citing State v. Davenport, 116 Ohio App.3d 6 (12th Dist.1996), also rejected appellant‘s argument that the statutes precluding expungement of her conviction were unconstitutional because no legitimate governmental purpose is served by denying expungement of stalking convictions not involving physical violence. The trial court therefore denied appellant‘s application.
{¶ 6} Appellant timely appealed to this court and has asserted a single assignment of error, as follows:
Appellant did not commit an offense of violence and the definition of offense of violence is overly broad and discriminates between non-violent offenders, all contrary to the Fifth and Fourteenth Amendments to the U.S. Constitution and the Ohio Constitution, Article I, Sections 1, 2 and 10.
II. Legal Analysis
{¶ 7}
{¶ 8} In this case, the trial court found that appellant met all the necessary
Sections 2953.31 to 2953.35 of the Revised Code do not apply to any of the following:
* * *
(C) convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony * * *[.]
(Emphasis added.)
{¶ 9} The term “offense of violence” is not defined in
(A) As used in the Revised Code:
* * *
(9) “Offense of violence” means any of the following:
(a) A violation of section * * * 2903.21, 2903.211 * * * of the Revised Code * * * [.]
(Emphasis added.)
{¶ 11} Appellant does not dispute that application of the statutes and our precedent precluded the court from expunging her convictions. She argues, despite Glass and Miller, that it was improper for the General Assembly to include stalking within the statutory definition of “offense of violence” and that the expungement statutes are unconstitutional when applied to persons convicted of stalking offenses not causing physical harm. She contends that application of these statutes to her case violates due process, equal protection, or both. And in Glass and Miller, we did not discuss the constitutionality of exempting persons convicted of stalking offenses from the benefits of expungement.
{¶ 12} We begin our analysis by recognizing that expungement is not a fundamental right, but rather “’ “an act of grace created by the state,” ’ and so is a privilege, not a right.” Miller, quoting State v. Simon, 87 Ohio St.3d 531, 533 (2000), and State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). Moreover, as correctly observed by the Fifth District Court of Appeals, “[t]he expungement statute is remedial and not substantive in nature * * * [and a] party does not have a vested right in a remedial remedy.” State v. Moorehart, 5th Dist. No. 2008-CA-0072, 2009-Ohio-2844, ¶ 9. In Moorehart, the court found that application of the expungement statutes to an offender who had been convicted of felonious assault did not violate his right to due process or equal protection or other constitutional safeguards.
{¶ 14} Appellant cites a dictionary definition of the word “violence” as “[u]se of physical force so as to damage or injure.” (Emphasis sic.) (Appellant‘s brief, at 8.) It is not relevant, however, whether stalking is, or is not, “violent” as that word is used in a colloquial sense. We acknowledge that general definitions and usage may be of value in determining the intent of the General Assembly when a statute is deemed ambiguous. But we have previously recognized that ”
{¶ 15} Similarly, we reject appellant‘s argument that the statutory expungement framework violates equal protection by excluding from the benefits of expungement individuals who have been convicted of stalking violations. Appellant argues that the General Assembly has authorized the expungement of some other offenses which do include elements of physical violence and also precluded the expungement of some other offenses that include elements of physical violence. But those circumstances do not compel the conclusion that the statutes violate equal protection.
{¶ 16} Appellant does not assert that expungement is a fundamental right or that she is in a suspect class. Accordingly, we use a rational-basis test in reviewing the General Assembly‘s determination that the offenses of which she was convicted may not be
{¶ 17} The General Assembly has the authority to enact statutes to promote the state‘s safety and welfare, which is a legitimate governmental interest. The state contends that “[g]iven the nature of and seriousness of offenses involving the commission of or threat of physical harm to person or property, the legislature‘s decision to maintain public access to those records will protect Ohio citizens.” (Appellee‘s brief, at 16.) We agree that a rational relationship exists between the state‘s legitimate governmental interest in promoting the state‘s safety and welfare and making available to the public the criminal records of persons who have engaged in past harassing and menacing conduct where that conduct causes mental distress.
{¶ 18} Equal protection requires that similarly situated persons be treated similarly under the law. “But the Equal Protection Clause ‘does not require things which are different in fact * * * to be treated in law as though they were the same.’ ” GTE North, Inc. v. Zaino, 96 Ohio St.3d 9 (Feb. 27, 2002), ¶ 22, quoting Tigner v. Texas, 310 U.S. 141, 147 (1940). Moreover, “rational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’ ” Heller v. Doe by Doe, 509 U.S. 312, 319 (1993), quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). A victim of stalking who suffers mental distress may suffer as much harm, or more harm, than a victim who suffers physical harm. We therefore reject appellant‘s argument that the General Assembly could not differentiate within the class of criminal
{¶ 19} Finally, appellant further challenges the constitutionality of the anti-stalking laws themselves, arguing that they criminalize the exercise of the right to free expression guaranteed by the First Amendment. She suggests that those laws prohibit constitutionally protected conduct that would otherwise be legal. That argument presents, however, a challenge to the validity of her underlying conviction, rather than to the denial of her application for expungement. The argument is therefore untimely, as the validity of her conviction is res judicata. In any event, Ohio‘s statutes defining and prohibiting stalking have been recognized as constitutional. See State v. Dario, 106 Ohio App.3d 232 (1st Dist.1995); State v. Schwab, 119 Ohio App.3d 463 (12th Dist.1997); Dayton v. Smith, 68 Ohio Misc.2d 20 (1994).
III. Conclusion
{¶ 20} Accordingly, we overrule appellant‘s assignment of error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT, P.J., and CONNOR, J., concur.
______________