Summary
In Greene, the court found an abuse of discretion in denying a defendant's motion to seal his record, based on the fact that the trial court's "prime reason for denying expungement was rooted in a misconception of the law."
Summary of this case from State v. SassOpinion
No. 90-1495
Submitted April 24, 1991 —
Decided July 10, 1991.
APPEAL from the Court of Appeals for Medina County, No. 1873.
Appellee, Phillip Greene, was convicted in the Wadsworth Municipal Court of assault, in 1985, after an altercation with a former girlfriend. He was fined, ordered to make restitution, and placed on probation for two years. Since then, he has had no further trouble with the law other than minor traffic offenses.
In 1989, Greene, then a law student at the University of Toledo, filed a motion with the trial court to expunge the conviction pursuant to R.C. 2953.32. In the accompanying memorandum, Greene stated that he had obtained a bachelor of science degree in criminal justice from Kent State University, and planned to pursue a career with the federal government. He stated that he sought expungement because the record of his conviction might hinder his employment prospects.
R.C. 2953.32 provided, at the time relevant herein, in pertinent part:
"(A)(1) A first offender may apply to the sentencing court if convicted in the state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of his conviction, at the expiration of three years after his final discharge if convicted of a felony, or at the expiration of one year after his final discharge if convicted of a misdemeanor.
"(B) Upon the filing of the application, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons he believes justify a denial of the application. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant.
"(C)(1) The court shall do each of the following:
"(a) Determine whether the applicant is a first offender;
"(b) Determine whether criminal proceedings are pending against the applicant;
"(c) Determine whether the applicant has been rehabilitated to the satisfaction of the court;
"(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
"(e) Weigh the interests of the applicant in having the records pertaining to his conviction sealed against the legitimate needs, if any, of the government to maintain those records.
"(2) If the court determines, after complying with division (C)(1) of this section, that the applicant is a first offender, that no criminal proceeding is pending against him, that his rehabilitation has been attained to the satisfaction of the court, and that the interests of the applicant in having the records pertaining to his conviction sealed are not outweighed by any legitimate governmental needs to maintain such records, the court shall order all official records pertaining to the case sealed and, except as provided in division (F) of this section, all index references to the case deleted. The proceedings in the case shall be deemed not to have occurred and the conviction of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31 to 2953.33 of the Revised Code.
"(3) Upon the filing of an application under this section, the applicant shall, unless he is indigent, pay a fee of fifty dollars. The court shall pay thirty dollars of the fee into the state treasury. It shall pay twenty dollars of the fee into the county general revenue fund if the sealed conviction was pursuant to a state statute, or into the general revenue fund of the municipal corporation involved if the sealed conviction was pursuant to a municipal ordinance.
"(D) Inspection of the sealed records included in the order may be made only by the following persons or for the following purposes:
"* * *
"(3) Upon application by the person who is the subject of the records, by the persons named in his application; * * *[.]"
The prosecutor objected to the expungement. Following an investigation by the court pursuant to R.C. 2953.32(B), the motion was denied. The court found that Greene was a "first offender," as defined by R.C. 2953.31(A), and that he had been rehabilitated to the satisfaction of the court, but concluded that expungement was improper because, inter alia, "* * * the Supreme Court of Ohio and any future employer of the Defendant should be allowed to examine the records that are maintained in * * * [this] case to see whether or not he is a suitable applicant for admission to the bar." The court of appeals reversed in a split decision and ordered the conviction expunged.
R.C. 2953.31(A) provides, in pertinent part:
"(A) `First offender' means anyone who has been convicted of an offense in this state or any other jurisdiction, and who has not been previously or subsequently convicted of the same or a different offense in this state or any other jurisdiction. * * *"
This cause is before the court pursuant to the allowance of a motion to certify the record.
Norman E. Brague, Law Director, and Page C. Shrock III, for appellant.
Phillip Greene, pro se.
For the reasons which follow, we find that the trial court's judgment was based on an error of law, and affirm the judgment of the court of appeals.
The trial court was concerned that expunging Greene's conviction would prevent this court from obtaining a complete picture of his fitness to practice law. However, this is not the case.
Gov.Bar R. I(2)(B)(5) requires all applicants for admission to the bar to file a completed character questionnaire. Question 12 reads in pertinent part:
"(a) State whether you have ever been, or presently are, a party to or otherwise involved (except as a witness) in:
"* * *
"(2) any criminal or quasi-criminal action or legal proceeding (whether involving a misdemeanor, minor misdemeanor, traffic offense, or felony) * * *." (Emphasis added.)
Gov.Bar R. I(2)(B)(6) further requires the applicant to submit three authorization and release forms granting the Board of Commissioners on Character and Fitness access to sealed criminal records. Together, these provisions insure that this court will know the details of an expunged conviction when determining if an applicant is fit to practice law in this state.
Thus, it was not necessary for the trial court to deny expungement in order to protect our inquiry into Greene's fitness to become a lawyer. While the trial court, in its entry, also said that "* * * criminal convictions of possible bar members should be open to the public for its inspection * * *," it is clear that the prime reason for denying expungement was rooted in a misconception of the law. Given that the trial court's decision was based on this erroneous assumption, the court of appeals was correct to reverse it and order the conviction expunged.
It should be noted, however, that we are not passing on Greene's fitness to practice law at this time. That question is reserved for another proceeding.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
SWEENEY, HOLMES, DOUGLAS and WRIGHT, JJ., concur.
MOYER, C.J., and RESNICK, J., concur in part and dissent in part.
I agree with the majority's conclusion that the trial court erred in denying expungement based on this court's need to know of the defendant's conviction for assault. However, I cannot agree with the majority's affirmance of the court of appeals' judgment.
As a second reason for its decision, the trial court relied on its conclusion "that criminal convictions of possible bar members should be open to the public for its inspection in order that the public may satisfy itself as to the fitness of the Defendant to be employed as an attorney." This emphasis on the public's need to know was not misplaced and it should be supported by this court. R.C. 2953.32(C)(1)(e) and (2) mandate a weighing of the "interests of the applicant" for expungement against "any legitimate governmental needs to maintain such records." In setting forth a similar balancing test in Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, 377, 20 O.O.3d 334, 336, 421 N.E.2d 1303, 1306, this court stated that "the public interest in retaining records of criminal proceedings, and making them available for legitimate purposes, [typically] outweighs any privacy interest the defendant may assert." After having been amended in 1984, R.C. 2953.32 now provides for a "greater emphasis on the individual's interest in having the record sealed." State v. Bissantz (1988), 40 Ohio St.3d 112, 114, 532 N.E.2d 126, 128. Nevertheless, the public's need to know is a relevant, legitimate governmental need under the statute. Cf. State v. Grove (1986), 29 Ohio App.3d 318, 320, 29 OBR 418, 420, 505 N.E.2d 297, 299.
The relevance of the public's need to know is heightened in this case, given the defendant's plans to become an attorney and the facts underlying his conviction. In an "expungement report" apparently submitted to the trial court, it is alleged that the defendant threatened to kill his former girlfriend during a physical attack on her and her male companion at a social gathering. The assault charge regarding the girlfriend was dismissed at her request. Defendant was convicted of assault on the male. Even now, the events underlying defendant's conviction are only six years removed.
The court of appeals apparently believed that the public's need to know of such a conviction was not a "legitimate" governmental need because R.C. 2953.33(B) permits prospective employers to inquire into expunged convictions if the inquiry "bears a direct and substantial relationship to the position for which the person is being considered." However, the interests of the defendant's future employers, including clients, are not illegitimate merely because R.C. 2953.33(B) affords them some additional protection. Nothing in that statute renders their interests irrelevant for purposes of the weighing process under R.C. 2953.32(C).
The Supreme Court of Ohio is charged by the Ohio Constitution with the admission to the bar and discipline of members of the bar. It seems paradoxical that we would declare as an abuse of discretion the decision of a trial judge that has the effect of preserving rather than eliminating a very important source of information from the public regarding a person who intends to become a member of the bar of Ohio. A person seeking the services of a lawyer should have available to him or her information that may affect the choice. Can we say that knowledge of an attorney's conviction for assault would never affect a person's decision to employ a lawyer? I think not. The issue is not whether every person who would engage the services of "attorney" Greene would search the public records to determine whether he had engaged in criminal conduct. The question is whether this court should eliminate the opportunity for such information to be found if it is sought.
Although the trial court erred in considering this court's need to know, it did not err in weighing the public's need to know as a legitimate governmental need under R.C. 2953.32(C)(1)(e) and (2). On this latter basis, considering the facts of the case, the trial court could still deny the defendant's expungement motion without abusing its discretion.
Because the defendant is not entitled to expungement as a matter of law, it was error for the court of appeals to order the expungement of his assault conviction. We should remand the case to the trial court so that it can decide whether to expunge the conviction without relying on this court's need to know as a basis for that decision.
RESNICK, J., concurs in the foregoing opinion.