State v. Niesen-PennycuffState v. Niesen-Pennycuff
Nicholas D. Graman, 12 East Warren Street, Lebanon, Ohio 45036, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Regina Niesen Pennycuff, appeals the decision of the Warren County Court of Common Pleas denying her application to seal criminal records after dismissal of proceedings. We affirm the trial court‘s denial, and as a result, sua sponte certify a question to the Ohio Supreme Court regarding the proper application of
{¶3} On August 24, 2010, the court filed a termination entry in which it recognized Pennycuff‘s successful completion of the intervention program, and thereby dismissed the 12 pending charges against her. On September 23, 2010, Pennycuff filed an application for sealing of record after dismissal of proceedings. The state opposed the application and argued that Pennycuff was ineligible for sealing until three years after the dismissal of the charges against her, or August 24, 2013. The trial court denied Pennycuff‘s application, but invited her to reapply in 2013 once she is eligible. Pennycuff now appeals the decision of the trial court, raising the following assignment of error.
{¶4} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING APPELLANT‘S APPLICATION TO SEAL HER RECORD AS UNTIMELY FOLLOWING THE DISMISSAL OF HER CASE AFTER SUCCESSFUL COMPLETION OF INTERVENTION IN LIEU OF CONVICTION.”
{¶5} Pennycuff argues in her single assignment of error that the trial court misinterpreted
{¶6} Normally, “the decision whether to grant or deny an application to seal
{¶7} According to
{¶8}
{¶9} Because Pennycuff was charged with 12 counts of a fifth-degree felony, the trial court determined that she would need to wait three years before requesting that her record be sealed. On appeal, Pennycuff relies on State v. Fortado (1996), 108 Ohio App.3d 706, for the proposition that she is not required to wait for any amount of time because the charges against her were dismissed once she successfully completed the intervention program.1
{¶10} In Fortado, the Ninth District considered whether Fortado would have to wait three years before he was eligible to have his record sealed once he successfully completed his intervention program and had the charges against him dismissed.2 In finding that the trial court did not err in sealing Fortado‘s record without waiting three years, the Ninth District concluded that “the three-year time limit applies in a situation where a conviction occurs. By definition, the present case does not contain a conviction.” Id. at 708-709.
{¶11} Instead, the Fortado court applied
{¶12} Unlike the Fortado court, we read the last sentence of
{¶13} After applying the plain meaning of the statute to the case at bar, we find that the unambiguous language of
{¶14} Recently, the Fourth District Court of Appeals also considered an appellant‘s challenge to the trial court‘s decision denying an application to seal a criminal record after successful completion of the intervention in lieu of conviction program. In State v. Mills, Ross App. No. 10CA3144, 2011-Ohio-377, the Fourth District was asked to consider whether Mills was a first time offender, as defined in
{¶15} Given the Fortado court‘s contrary reading, we find it prudent to continue our reasoning and engage in statutory interpretation to support our analysis regarding the proper application of
{¶16} “In cases of statutory construction, our paramount concern is the legislative intent in enacting the statute. To determine intent, we look to the language of the statute and the purpose that is to be accomplished by the statute * * *. Our role * * * is to evaluate a statute as a whole and give such interpretation as will give effect to every word and clause in it. No part should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative. [S]tatutes may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act.” Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶20-21. (Internal citations omitted.)
{¶18} Instead, the legislators stated specifically that if the trial court sealed the record, it was to proceed “in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.” These sections, as discussed above, set forth the procedure for sealing the record. However, no terms within these sections permit the immediate sealing of records upon dismissal of charges.
{¶19} We find the last section,
{¶20} If the legislature had intended that
{¶21} If we were to agree with the Fortado court that
{¶22} Had the General Assembly made the last sentence of Section (E) more general to include any sealing section, then we might agree with the Fortado court that
{¶23} Moreover, we see a statutory difference between a person who asks the court for intervention in lieu of conviction and a person who is found not guilty by a trier of fact, or otherwise has the charges against them dismissed by the state or because of the state‘s inability to convict. Unlike a defendant who maintains innocence throughout the proceedings until the charges are dismissed, defendants who seek intervention in lieu of conviction admit their guilt at the onset of proceedings. If a court determines that the defendant is eligible to participate in an intervention program, the defendant offers a guilty plea, and according to
{¶24} Unlike a person who has been acquitted by a trier of fact, or otherwise has had the charges dismissed because the state no longer seeks to, or cannot, convict them, a participant in the intervention-in-lieu-of-conviction program has acknowledged criminal responsibility for his or her conduct by pleading guilty, and hopes to exchange treatment for punishment. Stated more directly, participants have the pending charges dismissed because they successfully completed a treatment program, not because they were not guilty of the charges against them.
{¶25} By directing a court to apply the provisions in
{¶26} The decision to grant an application to seal records rests within the sound discretion of a trial court that must balance several factors in determining whether sealing the record is proper. Sealing the record “‘is an act of grace created by the state’ and so is a privilege, not a right.” State v. Simon, 87 Ohio St.3d 531, 533, 2000-Ohio-474, quoting State v. Hamilton, 75 Ohio St.3d 636, 639, 1996-Ohio-440.
{¶27} Various reasons exist that may cause a trial court to determine that the public interest outweighs a participant‘s request to have their record sealed, and not every request to seal will be granted. However, should a trial court find that the applicant is eligible for sealing, it must adhere to the statutory provision set forth in
{¶28} As stated throughout our analysis, we recognize that our holding is in direct conflict with the Ninth District. Therefore, we sua sponte certify a conflict between our holding in this case and that of the Ninth District Court of Appeals in State v. Fortado (1996), 108 Ohio App.3d 706. Section 3(B)(4), Article IV, of the Ohio Constitution vests in the courts of appeals the power to certify the record of a case to the Supreme Court
{¶29} Specifically, we certify the following question to the Supreme Court of Ohio:
{¶30} Must a trial court order the sealing of records in the manner provided in
{¶31} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.