Lead Opinion
{¶ 1} In this appeal, we answer questions that were not addressed in our recent decision in State v. Boykin,
{¶ 2} We are presented with a certified conflict between the decision of the Tenth District Court of Appeals in this case and a prior decision of the First District Court of Appeals, State v. Cope,
{¶ 3} And in a discretionary appeal that we consolidated with the certified conflict, we are presented with a proposition of law that states, “A trial court has the inherent authority to seal the records of a conviction, which has been erased by a pardon from the governor, in order to give effect to an important constitutional provision.”
{¶ 4} We answer the certified question in the negative, reject the holding in Cope, and overrule the proposition of law. We therefore affirm the judgment of the Tenth District Court of Appeals.
Relevant Background
{¶ 5} On January 7, 2011, Governor Ted Strickland, acting under the authority conferred on him by Article III, Section 11 of the Ohio Constitution, granted a “full and unconditional pardon” to appellant, James Radcliff. That pardon extended to five convictions that occurred in several counties approximately 30 years ago, including a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver.
{¶ 6} On February 28, 2011, Radcliff applied to the Franklin County Common Pleas Court for an order sealing his conviction in that forum. Appellee, the state of Ohio, opposed his application, arguing that Radcliff was ineligible to have his record sealed under the statutory framework of R.C. 2953.32 because he had at least seven convictions and therefore was not a “first offender” within the meaning of the statute. The state also argued that the court lacked the inherent
{¶ 7} After conducting a hearing, the trial court granted Radcliffs application to seal. In its resulting order, the trial court stated that it was acting “[i]n accordance with” R.C. 2953.32 and that the sealing of Radcliffs record was “consistent with the public interest.”
{¶ 8} The state appealed to the Tenth District Court of Appeals. The appellate court reversed.
{¶ 9} The appellate court recognized that although the trial court had cited R.C. 2953.32 in its order granting the motion to seal, no statute authorized the sealing of Radcliffs record based on a gubernatorial pardon. And the appellate court specifically noted that Radcliff had acknowledged that the statutory scheme did not entitle him to have his record sealed and instead had asked the court to seal the Franklin County record solely because the governor had issued a pardon for those crimes.
{¶ 10} The appellate court turned to our decision in Pepper Pike, which held that a court may seal criminal records after applying a balancing test that “weighs the privacy interest of the defendant against the government’s legitimate need to maintain records of criminal proceedings” and “where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction.” Pepper Pike at paragraph two of the syllabus. But as the appellate court recognized, at the time we decided Pepper Pike, the General Assembly had not yet enacted R.C. 2953.52. Radcliff at ¶ 12.
{¶ 11} The appellate court held that the vitality of Pepper Pike had been limited by subsequent case law that applied Pepper Pike only in cases in which the defendant had not been convicted of a crime. Id. at ¶ 51. After an extensive review of this court’s precedent on gubernatorial pardons, the United States Supreme Court’s decisions on presidential pardons, and the decisions of its sister appellate courts, the appellate court ultimately concluded that “a pardon neither erases the conviction nor renders the pardon recipient innocent as if the crime were never committed.” Id. It concluded that Radcliff was not eligible for judicial “expungement”
{¶ 12} Subsequently, the Tenth District certified its decision as in conflict with Cope,
{¶ 13} We recognized the conflict, accepted Radcliff s discretionary appeal, and consolidated the causes.
Analysis
{¶ 14} The appellate court found that the record in this case suggests that Radcliff deserves redemption. But if he is to have that redemption, it must come from the General Assembly.
The Sealing of a Record Is a Privilege That Flows Primarily from the Legislature
{¶ 15} Our analysis is driven initially by what we have held previously: “the sealing of a criminal record is a ‘ “privilege, not a right.” ’ ” State ex rel. Cincinnati Enquirer v. Lyons,
{¶ 17} In the usual course, the legislature determines the eligibility for sealing a record. The General Assembly has done so through R.C. 2953.32 and 2953.52, which reflect Ohio’s public policy on sealing records. As the Tenth District recognized, Ohio’s statutes do not provide Radcliff with authority to secure the sealing of his record, notwithstanding Governor Strickland’s pardon:
R.C. 2953.52(A) permits any person who has been found not guilty by a jury, who is the defendant named in a dismissed indictment, or against whom the Grand Jury enters a no bill, to apply to the court for an order sealing the official records of the case. R.C. 2953.32(A)(1) permits a first offender to apply to the sentencing court for an order sealing the record of conviction. A first offender is “anyone who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction.” R.C. 2953.31(A).
Under either, section, the court must determine if the prosecutor filed an objection to the application and, if so, consider the prosecutor’s reasons for the objection. R.C. 2953.32(B); R.C. 2953.52(B); Koehler [v. State, 10th Dist. Franklin No. 07AP-913,2008-Ohio-3472 ] at ¶ 13. The court also must weigh the applicant’s interests in having the records sealed against the legitimate needs, if any, of the government to maintain the records. R.C. 2953.32(C)(1); R.C. 2953.52(B)(2)(d). If the applicant fails to satisfy any one of the statutory requirements, the court must deny the application. Id. at ¶ 13, citing State v. Krantz, 8th Dist. No. 82439,2003-Ohio-4568 , ¶ 23. None of the applicable statutes permits a defendant to seek expungement after obtaining a gubernatorial pardon, and defendant acknowledges he is not entitled to expungement under either statutory provision.
Radcliff,
{¶ 18} Instead of the statutory authority to seal his record, Radcliff relies on what he asserts is the judiciary’s inherent authority to seal records. We recognized the judiciary’s authority to seal certain criminal records in Pepper Pike v. Doe.
{¶ 20} But in recognizing the authority of the municipal court to seal the record in Pepper Pike, we noted that it was “clear from the context and history of the matter that appellant’s former husband and current wife used the courts as a vindictive tool to harass appellant.” Id. We found that the facts giving rise to Pepper Pike were “such unusual and exceptional circumstances” that it was appropriate for the trial court to exercise its jurisdiction “to expunge and seal all records in the case.” Id. Our holding was limited, and driven by two considerations: the unique facts of that case and the absence of legislative guidance.
{¶ 21} We cautioned that Pepper Pike was “the exceptional case” and that the decision “should not be construed to be a carte blanche for every defendant acquitted of criminal charges in Ohio courts.” Id. Instead, it remained the norm for courts to lack the discretion to seal criminal records because “[tjypically, the public interest in retaining records of criminal proceedings, and making them available for legitimate purposes, outweighs any privacy interest the defendant may assert.” Id.
{¶ 22} Significantly, at the time we decided Pepper Pike, the General Assembly had not enacted a statute to address the situation with which we were then presented, i.e., a defendant acquitted of charges brought purely to harass and vex her. In 1981, the only statute for sealing records was R.C. 2953.32, which “extended the remedy to first offenders, but was silent as to those who had been prosecuted but not convicted.” Sellers, Sealed with an Acquittal: When Not Guilty Means Never Having to Say You Were Tried, 32 Cap.U.L.Rev. 1, 3 (2003).
{¶23} It was not until three years after Pepper Pike that the General Assembly enacted R.C. 2953.52, which now governs the sealing of the records of acquitted defendants. Am.Sub.H.B. No. 227, 140 Ohio Laws, Part 1, 2382, 2387-2388; see also Sellers at 3. By enacting R.C. 2953.32, the legislature “closed the gap” in the statutory scheme for sealing and expunging criminal records. Boykin,
{¶ 25} When the General Assembly enacted R.C. 2953.52, it was certainly aware of the power of the pardon. And it was within its purview to incorporate statutory provisions that required, or permitted, recipients of a gubernatorial pardon to be eligible to have their records sealed. But the General Assembly did not do so, and we must presume that its omission of pardoned defendants was intentional. Madjorous v. State,
The Judiciary’s Inherent Authority to Order Sealing of a Record Is Subservient to the Legislature’s Authority
{¶ 26} When we relied upon our own, extrastatutory authority to permit sealing in Pepper Pike, we did so because of the importance of the constitutional right to privacy and the lack of any statutory remedy for the person pleading for sealing, who had not been convicted of any crime. See State v. Weber,
{¶ 27} But neither the rule of Pepper Pike nor its rationale has vitality when the offender has been convicted and is not a first-time offender. “ ‘While it is true that a trial court has inherent power to order an expungement absent statutory authority, it is a limited power.’ ” State v. Bailey, 10th Dist. Franklin
{¶ 28} Since our decision in Pepper Pike was rendered, a host of Ohio’s appellate courts have similarly and consistently recognized the limitation on a court’s inherent authority to act in this area of the law. See, e.g., State v. Bailey, 10th Dist. Franklin No. 02AP-406,
{¶29} In reaching our conclusion, we are mindful that the law of pardons implicates a delicate balance of power among the three branches of government. The Ohio Constitution contemplates that the executive branch will have the primary authority to pardon, but reserves certain record-keeping rights to the legislative branch. See Article III, Section 11 of the Ohio Constitution. The constitutional scheme demands our fidelity to the separation-of-powers doctrine and militates strongly against judicial intervention in this area.
{¶ 30} By its plain wording, Article III, Section 11 of the Ohio Constitution provides that the governor “shall have power, after conviction, to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as the governor may think proper.” The courts have no power of judicial review of the governor’s discretion to pardon. Knapp v. Thomas,
{¶ 31} The Constitution permits the General Assembly some power in the area of pardons. Although the legislature lacks any authority to create substantive regulations that limit the governor’s power to pardon, it is empowered to impose procedural prerequisites to the application process for pardons. State ex rel. Maurer v. Sheward,
{¶ 32} For example, R.C. 2967.06 requires that pardons and commutations be issued in triplicate: one to be given to the offender, “one to be filed with the clerk of the court of common pleas in whose office the sentence is recorded,” and one to be filed with the correctional institute where the offender is confined, if any. The fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it. Indeed, in the years since Pepper Pike, the General Assembly has enacted, amended, and repealed statutes that govern sealing and expunging criminal records. See, e.g., R.C. 2953.32 and 2953.42. Despite the General Assembly’s repeated returns to the subject of criminal record-sealing, it has never shown, or even suggested, any intent to extend this remedy to an offender who has been pardoned.
{¶ 33} Given the importance placed on record preservation in the statutory scheme governing pardons, we should not intrude on the record-keeping rules provided by the General Assembly. Just as the courts must jealously protect the judicial power against encroachment by the executive and legislative branches, see, e.g., Norwood v. Horney,
{¶ 34} That said, we are not unmindful that Radcliff has been pardoned for his crimes. And he may, as the appellate court suggested, be deserving of the opportunity to continue to be a productive, law-abiding member of society without the badges and incidents of his conviction. In that regard, he is not alone.
As stated earlier in this opinion, however, the equities in this case weigh heavily in appellant’s favor. The record is replete with evidence of appellant’s remarkable achievements both in his personal and professional life. Appellant has more than demonstrated that he is deserving of a fresh start. Unfortunately, state law precludes us from equitable consideration if a prior conviction has been demonstrated.
The frustration of the courts in situations such as this one was noted in a recent ease before the First District Court of Appeals, where Judge Marianna Brown Bettman expressed the hope that “the legislature will consider amending the expungement statute to give our trial judges discretion in the granting of expungements. * * * [C]ertain defendants who do not technically meet the present definition of first offenders would clearly benefit from the statute’s remedial purpose, and our trial judges, who are in the best position to make this decision, are handcuffed by the present law.
“In Barker v. State (1980),62 Ohio St.2d 35 , 41,16 O.O.3d 22 , 25-26,402 N.E.2d 550 , 554-555, the Ohio Supreme Court wrote that the purpose of the expungement statute ‘is to provide remedial relief to qualified offenders in order to facilitate the prompt transition of these individuals into meaningful and productive roles.’ * * * That purpose * * * is to encourage those who have committed crimes, who have been appropriately punished, and who have been properly rehabilitated to get on with their lives. Nowhere, perhaps, is this more important than in getting and keeping a job. We want to encourage all of our citizens to have productive employment.
“ * * * [O]ur trial judges are unable to effectuate these goals under the present statute.” State v. Coleman (1997),117 Ohio App.3d 726 , 729,691 N.E.2d 369 , 370-371 (Bettman, P.J., concurring).
We must reluctantly overrule appellant’s first assignment of error.
Brasch,
{¶ 36} Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the
Conclusion
{¶ 37} We hold that a court lacks the authority to seal a criminal record of a pardoned offender who does not meet applicable statutory requirements for sealing the record. Accordingly, we answer the certified question in the negative, reject the proposition of law presented in the discretionary appeal, and affirm the Tenth District’s judgment in this cause.
Judgment affirmed.
Notes
. We recently explained the term “expungement” in State v. Aguirre, — Ohio St.3d-,
Though the Tenth District repeatedly referred to the process at issue in this case as “expungement,” we note that expungement is a separate process from sealing a conviction record. Expungement results in deletion, making all case records “permanently irretrievable,” R.C. 2953.37(A)(1), while sealing simply provides a shield from the public’s gaze. R.C. 2953.32(D), restricting inspection of sealed records of conviction to certain persons for certain*81 purposes. We use the term “expungement” in this opinion only where it appears in quoted material.
See also State v. Pariag,
Dissenting Opinion
dissenting.
{¶ 38} The majority opinion states, “When the General Assembly enacted R.C. 2953.52, it was certainly aware of the power of the pardon.” Majority opinion at ¶ 25. I agree, though I disagree about the import of that fact. The majority opinion concludes that because the General Assembly knew about pardons and nevertheless did not mention them in R.C. 2953.52, “we must presume that its omission of pardoned defendants was intentional * * * [and] [t]hat omission is important here.” Id. I also think the omission is important, for a different reason from the majority opinion’s unstated reason. Just as the General Assembly was aware of the power of the pardon when it enacted R.C. 2953.52, it was also aware of Pepper Pike v. Doe,
{¶ 39} The majority opinion draws exactly the wrong conclusion. It states, “Despite the General Assembly’s repeated returns to the subject of criminal record-sealing, it has never shown, or even suggested, any intent to extend this remedy to an offender who has been pardoned.” Majority opinion at ¶ 32. Although that is true, it can equally be said that the General Assembly has never stated that records of crimes for which the offender has been pardoned cannot be sealed, even though it is aware that pursuant to Pepper Pike, records of such crimes can be sealed in unusual and exceptional circumstances. Id. at paragraph two of the syllabus.
{¶ 40} The General Assembly is fully capable of superseding judicial decisions. E.g., 2001 Am.Sub.S.B. No. 97 (amending R.C. 3937.18), Section 3(D) and (E), 149 Ohio Laws, Part I, 789-790. It has not done so with respect to Pepper Pike. From that omission and the failure to include the word “pardon” in the statute, I conclude that R.C. 2953.52 does not apply to the records of crimes for which the offender has been pardoned. It takes legalistic legerdemain to conclude otherwise — such as inserting the word “pardon” into a statute that does not include it. See Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm.,
{¶ 41} In Pepper Pike, this court held that “trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter.” Pepper Pike,
{¶ 43} In this case, the trial court found that sealing Radcliffs record was “consistent with the public interest.” This finding is not an abuse of the trial court’s discretion for a variety of reasons:
{¶ 44} 1. Pepper Pike, which states that courts have the authority to seal records even in the absence of a statutory grant of authority.
(¶ 45} 2. R.C. 2967.04(B), which states, “An unconditional pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted.”
{¶ 46} 3. The fact that R.C. 2953.32 and 2953.52 do not apply to pardons and therefore noncompliance with them cannot justify prohibiting the sealing of records related to crimes for which the offender has been pardoned.
{¶ 47} 4. State ex rel. Atty. Gen. v. Peters,
{¶ 48} 5. State ex rel. Gordon v. Zangerle,
{¶ 49} 6. Knapp v. Thomas,
{¶ 50} 7. An acknowledgment from a most unusual source of authority, the opposing party in this case, the state of Ohio. In State v. Vanzandt,
{¶ 51} These factors, when considered in aggregate, convince me that the trial court did not act unreasonably, arbitrarily, or unconscionably when it granted Radcliffs request to seal the record of his convictions. It is not unreasonable to conclude that the state’s interest in providing records of criminal convictions that occurred at least 30 years ago and for which the offender has been unconditional
{¶ 52} I would answer the certified question in the affirmative and reverse the court of appeals. Although there is a certain amount of justice in Commonwealth v. C.S.,
{¶ 53} The majority opinion’s conclusion, that “a court lacks the authority to seal a criminal record of a pardoned offender who does not meet applicable statutory requirements for sealing the record,” Majority opinion at ¶ 37, is, based on the facts of this case, illogically circular, a legalistic Mobius strip. The statutes at issue do not mention the word “pardon” and therefore do not apply to Radcliff. Thus, although the majority opinion states that Radcliff has not complied with “applicable statutory requirements,” id., the statutory requirements to which the opinion refers are, in fact, irrefutably not applicable to offenders who have been pardoned.
{¶ 54} I dissent.