STATE OF OHIO, Plaintiff-Appellee v. T.J.D., Defendant-Appellant
Appellate Case No. 28592
Trial Court Case No. 2018-CR-3663
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 17, 2020
2020-Ohio-3745
(Criminal Appeal from Common Pleas Court)
OPINION
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
W. RANDALL ROCK, Atty. Reg. No. 0023231, 10817 Yankee Street, Dayton, Ohio 45458 Attorney for
WELBAUM, J.
{¶ 1} Defendant-appellant, T.J.D., appeals from his conviction in the Montgomery County Court of Common Pleas after he pled no contest to one count of having weapons while under disability. In support of his appeal, T.J.D. contends that the trial court erred in overruling his motion to dismiss the indictment, because he was not under a weapons disability at the time law enforcement discovered several firearms in his residence. T.J.D. claims that the weapons disability at issue was relieved in 1994, when he had the conviction from which the disability arose sealed pursuant to
Facts and Course of Proceedings
{¶ 2} Over 30 years ago, on September 20, 1989, T.J.D. was convicted of felony drug abuse in violation of
{¶ 3} On November 20, 2018, 24 years after T.J.D.’s felony drug conviction had been sealed, T.J.D. was indicted on one count of having weapons while under disability in violation of
{¶ 4} Prior to the indictment, the trial court permitted the State to inspect T.J.D.’s sealed record of conviction as permitted by
{¶ 5} After being indicted, T.J.D. filed a motion to dismiss the indictment on the ground that he was not under a weapons disability at the time the firearms were discovered in his residence. In support of this claim, T.J.D. argued that the underlying weapons disability was relieved once he had the record of his felony drug conviction sealed in 1994. T.J.D. argued that without an underlying weapons disability, the charge for having weapons while under disability must be dismissed.
{¶ 6} The trial court took the matter under advisement and issued a decision
{¶ 7} Following the trial court’s decision overruling his motion to dismiss, T.J.D. entered a plea of no contest to having weapons while under disability in violation of
{¶ 8} T.J.D. now appeals from his conviction, raising a single assignment of error for review.
Assignment of Error
{¶ 9} T.J.D. contends that the trial court erred in overruling his motion to dismiss the indictment charging him with having weapons while under disability. As noted above, T.J.D. claims that the indictment should have been dismissed because he was not under a weapons disability at the time police discovered the firearms in his residence. Although T.J.D. admits that he was under a weapons disability for a period of time due to his 1989 felony drug conviction, T.J.D. asserts that the disability was relieved in 1994, when he had the record of his felony drug conviction sealed pursuant to
{¶ 10} Although neither party discusses the effect of T.J.D.’s no contest plea, we note that the no contest plea permitted T.J.D. to appeal the trial court’s ruling on his pretrial motion to dismiss the indictment because the motion raised a legal issue that was capable of determination without a trial, i.e., whether sealing a record of conviction relieves a weapons disability. State v. Pointer, 193 Ohio App.3d 674, 2011-Ohio-1419, 953 N.E.2d 853, ¶ 16-18 (2d Dist.); Crim.R. 12(C) and (I).
{¶ 11} That said, this court uses a de novo standard of review when reviewing a trial court’s decision on a motion to dismiss an indictment. (Citation omitted.) State v. Cassel, 2016-Ohio-3479, 66 N.E.3d 318, ¶ 15 (2d Dist.). “De novo review requires an ‘independent review of the trial court’s decision without any deference to the trial court’s determination.’ ” State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5, quoting Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.).
{¶ 12} Pursuant to
Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse[.]
{¶ 13} There is no dispute that T.J.D. was convicted of a felony drug offense that placed him under a weapons disability pursuant to
{¶ 15} Although shielded from the public, “[a] sealed conviction is not permanently irretrievable[.]” Gyugo v. Franklin Cty. Bd. of Dev. Disabilities, 151 Ohio St.3d 1, 2017-Ohio-6953, 84 N.E.3d 1021, ¶ 15. Pursuant to
{¶ 16} As to the general effect of sealing a record of conviction,
{¶ 17} In Bernad, a convicted felon filed a replevin complaint seeking the return of an antique firearm collection that he had voluntarily relinquished after being placed under a weapons disability that arose from his felony conviction. Id. at 351. Before filing his replevin complaint, the convicted felon had the record of his felony conviction sealed. Id. at 351-352. The court of appeals in Bernad determined that the convicted felon was “entitled to the [firearms] because at the time he filed his writ of replevin, he established that his legal disability had been removed.” Id. at 354-355. Thus, the court essentially determined that the weapons disability was relieved once the felon had the record of his conviction sealed.
{¶ 18} In reaching this conclusion, the court in Bernad relied on the Supreme Court of Ohio’s decision in Rossi, 86 Ohio St.3d 620, 716 N.E.2d 204. In Rossi, the
{¶ 19} In contrast, the Ninth District Court of Appeals in State v. Hendren, 9th Dist. Summit No. 22464, 2005-Ohio-2814, held that a weapons disability under
{¶ 20} T.J.D. correctly points out that the language in
Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse[.]
(Emphasis added.)
{¶ 21} On March 23, 2015, the Ohio General Assembly enacted Am. Sub. H.B. 234, which amended
{¶ 22} T.J.D.’s argument requires this court to interpret the language in
{¶ 23} “Given its plain meaning,
{¶ 24} In light of the foregoing, we do not find that the phrase “unless relieved from disability under operation of law or legal process” is ambiguous. Therefore, it is appropriate to apply the plain meaning of the phrase without delving into further legislative interpretation.1 For purposes of this case, that means we must simply determine whether sealing a record of conviction under
{¶ 25} This court’s decision in Runions provides some guidance on that issue. In Runions, we addressed whether receiving a pardon for a felony conviction relieved an associated legal disability that prohibited a convicted felon from obtaining a concealed carry handgun license (“CCL”). See
{¶ 26} We started our analysis in Runions by noting that “ ‘ “[a] full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” ’ ” Runions at ¶ 10, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 20, quoting State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 650, 4 N.E. 81 (1885). However, we also
recognized that “while an unconditional pardon acts to remove all ‘disabilities,’ ‘a pardon provides only forgiveness, not forgetfulness; * * * The pardon does not wipe the slate clean.’ ” Id. at ¶ 22, quoting State v. Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, ¶ 36. We further noted that “a pardon is in no sense an overturning of a judgment of conviction * * * it is [a]n executive action that mitigates or sets aside punishment for a crime.” Id. at ¶ 12, citing Nixon v. United States, 506 U.S. 224, 232, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). Accord Boykin at ¶ 26.
If an applicant has been convicted of or pleaded guilty to an offense identified in division (D)(1)(e), (f), or (h) of this section [i.e., any felony offense, a drug offense, a misdemeanor offense of violence, and a resisting arrest offense] * * *, and if a court has ordered the sealing or expungement of the records of that conviction * * * pursuant to * * * sections 2953.31 to 2953.36 * * * of the Revised Code or the applicant has been relieved under operation of law or legal process from the disability imposed pursuant to section 2923.13 of the Revised Code relative to that conviction, * * * the sheriff with whom the application was submitted shall not consider the conviction in making a determination under division (D)(1) or (F) of this section[.]
{¶ 28} This court explained that “
{¶ 29} For example, under
{¶ 30} Turning back to our decision in Runions, because a pardon was not one of the exceptions “explicitly denominated in
{¶ 31} As relevant to the present case, our decision in Runions indicated that under different circumstances, a pardon could possibly constitute an “operation of law or legal process” that relieves a weapons disability under
[O]ne situation where a pardon may require a sheriff to disregard a felony conviction is when the applicant has been relieved under operation of law or legal process from the disability imposed pursuant to
R.C. 2923.13 .R.C. 2923.125(D)(4) . Stated another way, if the felony conviction for which the CCL applicant was pardoned was a conviction which made it illegal for the applicant to possess or carry a weapon under R.C. 2923.13, the pardon could have the effect of removing the “disability” imposed by virtue of the felony conviction. The felony conviction, however, must be one that actually creates a “disability.”
(Emphasis added.) Runions at ¶ 22.2
{¶ 32} Like a pardon, sealing a record of conviction does not overturn the conviction. See Pepper Pike, 66 Ohio St.2d at 378; In re Niehaus, 62 Ohio App.3d at 96; Runions at ¶ 12. While sealing a record of conviction operates to shield the record from public view and a pardon grants relief from any ongoing punishment, under both scenarios the record of conviction is still maintained. See Radcliff, 142 Ohio St.3d 78, 2015-Ohio-235, 28 N.E.3d 69, at ¶ 31; Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, at ¶ 32; Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, at fn. 2. Furthermore, a “pardon relieves the person to whom it is granted of all disabilities arising out of the conviction or convictions from which it is granted,”
{¶ 33} Given the foregoing similarities, it is logical to conclude that sealing a record of conviction would, like a pardon, be considered an “operation of law or legal process”
that relieves an associated weapons disability under
To date, the record of Bolton’s felony conviction has not been sealed and Bolton has not otherwise been relieved from
the weapons disability by operation of law or legal process. As a result, Bolton is prohibited from knowingly acquiring, having, carrying, or using any firearm or dangerous ordnance.
{¶ 34} The decision in Hendren, 9th Dist. Summit No. 22464, 2005-Ohio-2814, suggesting that the only way to relieve a weapons disability is through the procedure set forth in
{¶ 35} Because T.J.D. was no longer under a weapons disability at the time the firearms were discovered in his residence, the trial court erred in overruling the motion to dismiss the indictment charging him with having weapons while under disability. Accordingly, T.J.D.’s assignment of error is sustained.
Conclusion
{¶ 36} Having sustained T.J.D.’s sole assignment of error, the judgment of the trial court is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
FROELICH, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Hon. Gerald Parker