Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Revisiting Pepper Pike v. Doe

Back in 1978, a woman filed charges claiming that her husband's ex-wife had assaulted her.  The charges were bogus, and the case was dismissed on the day of trial.  The defendant filed a motion to have the arrest and all other records of the case expunged.  The Supreme Court, in Pepper Pike v. Doe, decided that given the "unusual and exceptional circumstances" of the case, the court had inherent authority to expunge the records.

That led to the passage of RC 2953.51, which allows for the sealing of an arrest record if the defendant is acquitted or the charges are dismissed.  What we learned from the Supreme Court last week is that the expungement statutes for sealing an arrest record or a conviction now define the court's authority, regardless of what "unusual" or "exceptional" circumstances exist. 

First up was State v. VanzandtHe would seem to be a perfect candidate for having his arrest record sealed; he'd been acquitted of the drug trafficking charges levied against him.  And so the trial court did, only to be presented with a motion by the State three months later to unseal the records.  The State claimed that Vanzandt's acquittal had been procured by threatening one of the witnesses against him, and wanted to pursue an intimidation case against Vanzandt.  That, of course, would require them to present evidence of the trafficking case, the proceeding which served as the basis for the intimidation claim.  The judge agreed.

The Supreme Court didn't.  The statute does allow for access to sealed records, but only in narrow circumstances:   by the person whose records were sealed, by a police officer defending against a civil action involving the case, or by a prosecutor, in determining whether a defendant is eligible for diversion.  The reason the State presented for unsealing Vanzandt's records didn't fall into any of those, so no go.

In 2011, the governor granted a pardon to Radcliff for five convictions which occurred some thirty years ago.  Last year, in State v. Boykin, the court held that a pardon didn't automatically entitle a defendant to expungement, and last week's decision in State v. Radcliff expands on that by holding that a defendant can't get a pardoned conviction expunged unless he otherwise meets the qualifications of the statute.

Given the statutes, Radcliff and the State in Vanzandt were left to rely on Pepper Pike and the assertion that a court has inherent authority to grant the relief being sought.  (Pfeifer, who dissented in both cases, noted in Vanzandt the diametrically opposite the positions the State was taking:  arguing for the court's extra-statutory authority in Vanzandt, and against it in Radcliffe.)  From a purely precedential view, that's a hard argument to make; Pepper Pike involved the sealing of records of an arrest, while Vanzandt involved unsealing them, and Radcliff involved the sealing of a conviction.

But the argument doesn't go anywhere in either case:  the court holds that while it was writing on a blank slate in Pepper Pike, the legislature had filled out that slate.

That's not necessarily dispositive of the question, though; it presumes that when the legislature decided to regulate the expungement process, it did so with the intent of pre-empting the court's authority to go beyond that in "unusual and exceptional" circumstances.  Radcliff may well have presented just such a situation.  He'd committed a number of felonies in his youth, but in the past 30 years had led an exemplary life:  he was married and supported his disabled wife and her four children from a previous marriage, and became an active member of the church.  He'd obtained a custodial position with the Dublin City schools, and in 21 years rose to the position of lead custodian at the high school.  He was fired after a local newspaper published an article about his criminal record and that of other school employees. 

The court's not unsympathetic to that, and indeed the real blame here lies in the harshness of Ohio's expungement statute.  The list of offenses which can't be expunged has steadily grown, and there's no sell-by date for them:  that "aggravated shoplifting" case -- pushing the security guard who tries to stop you from leaving the store with that $5 bottle of purloined shampoo -- you picked up when you were 18 stays on your record for the rest of your life. 

It could be that the court's decisions, especially in Radcliff, could turn out for the better.  Had the court decided it could go beyond what the statutes dictate, there would have been no incentive for the General Assembly to change the law.  Now, faced with the prospect that it is the ultimate authority in this area, and the court's chastisement about the harshness of the law, the legislature may finally decide to remedy that.

Be sure to hold your breath.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case