[Cite as State v. Boykin,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25752

Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS MONTOYA L. BOYKIN COUNTY OF SUMMIT, OHIO CASE No. CR 92 03 0635 Appellant

CITY OF AKRON C.A. No. 25845

Appellee APPEAL FROM JUDGMENT v. ENTERED IN THE AKRON MUNICIPAL COURT MONTOYA L. BOYKIN COUNTY OF SUMMIT, OHIO CASE Nos. 87 CRB 05482 Appellant 91 CRB 07522 96 CRB 14102

DECISION AND JOURNAL ENTRY

Dated: March 30, 2012

CARR, Judge.

{¶1} Appellant, Montoya Boykin, appeals orders of the Summit County Court of

Common Pleas and Akron Municipal Court that denied her motions to seal the record of her

convictions. We affirm.

I.

{¶2} In 1992, Boykin pled guilty to one count of receiving stolen property in a case

originating in the Summit County Court of Common Pleas. She moved to seal her record in 2

1996 and 2000, and the trial court denied both motions. In 1996, she pled no contest to and was

convicted of two counts of theft by the Akron Municipal Court. In 2009, Governor Ted

Strickland pardoned Boykin for these three offenses. Boykin moved both courts to seal her

record, arguing that the trial courts were required to exercise their inherent judicial authority to

do so by virtue of the pardon. Both motions were denied, and Boykin appealed. This Court

consolidated the appeals for oral argument and decision.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY DENYING APPELLANT BOYKIN’S MOTION TO SEAL HER PARDONED CONVICTIONS.

{¶3} Boykin’s assignment of error is that the trial courts erred by denying her motions

to seal her records. Specifically, she has argued that the existence of the executive pardon

required the trial court to do so as an exercise of its inherent judicial powers.

JUDICIAL EXPUNGEMENT

{¶4} Underlying Ms. Boykin’s argument is the assumption that a trial court has the

inherent authority to seal criminal records when the defendant has been pardoned, even when the

defendant is not eligible under the relevant statute. This is not, however, a foregone conclusion,

nor is it an insignificant issue in this case. Boykin concedes that she is not eligible to have her

records sealed under the relevant statutes. If the trial courts did not have the authority to seal her

records from some other source, then our inquiry need go no further.

{¶5} A first offender may move to have the record of conviction of eligible offenses

sealed under R.C. 2953.32. See also R.C. 2953.36 (describing the convictions that preclude

sealing). R.C. 2953.52 also permits the official record of a criminal case to be sealed if the

defendant was acquitted, the case was dismissed, or a grand jury returned a no bill. Apart from 3

these statutes, a record of conviction may be sealed only “where such unusual and exceptional

circumstances make it appropriate to exercise jurisdiction over the matter[.]” Pepper Pike v.

Doe,

(1981), paragraph two of the syllabus. In Pepper Pike, the Ohio

Supreme Court considered whether the case record of a defendant could be sealed when the

charges against her were dismissed with prejudice before trial.

at paragraph one of the

syllabus. Because the predecessor of the current statutes only provided for expungement of a

conviction, the Court considered whether trial courts had authority to grant expungement without

statutory authorization.

. The Court concluded that trial courts have the inherent

authority to expunge records apart from the statutes when justified by “unusual and exceptional

circumstances” founded on constitutional guarantees of the right to privacy.

The Court

emphasized, however, that this judicial power should not be exercised as a matter of course:

Again, this is the exceptional case, and should not be construed to be a carte blanche for every defendant acquitted of criminal charges in Ohio courts. Typically, the public interest in retaining records of criminal proceedings, and making them available for legitimate purposes, outweighs any privacy interest the defendant may assert.

citing Chase v. King,

(1979). The Court also concluded that exercise of

this discretionary power should, for purposes of consistency, not obliterate the fact of the

criminal record, but that a record so expunged “will remain an historical event,” available for

inspection and use as provided in the expungement statute then in place. Id. at 378.

{¶6} Pepper Pike has not been broadly applied. Before the enactment of R.C.

2953.52(A), for example, this Court held that trial courts did not have the authority to expunge

the records of individuals who had been acquitted of the charges against them. See State v.

Stadler,

(9th Dist. 1983). Other courts concluded that judicial

expungement was not available to defendants who had been convicted of a crime but were 4

ineligible for statutory expungement. See State v. Netter,

(4th

Dist. 1989); State v. Weber,

(1st Dist. 1984); State v. Moore,

(8th Dist. 1986). See also State v. Spicer, 1st Dist. No. C-040637, 040638,

(“Prior to the passage of R.C. 2953.52, expungement was an equitable

remedy reserved for extraordinary cases in which the defendant was not only acquitted, but also

factually exonerated.”). In other words, courts concluded that “[w]here there has been a

conviction, only statutory expungement is available.” State v. Davidson, 10th Dist. No. 02AP-

665,

, ¶ 15.

{¶7} Nonetheless, “the judicial power to grant an expungement request still exists, * *

* [but] it is limited to cases where the accused has been acquitted or exonerated in some way and

protection of the accused’s privacy interest is paramount to prevent injustice.” State v.

Chiaverini, 6th Dist. No. L-00-1306,

, *2 (Mar. 16, 2001). Despite the

enactment of R.C. 2953.32 and 2953.52, exercise of judicial authority to expunge records is

warranted in exceptional cases:

[w]hile it may be argued that it is inappropriate for courts to supersede legislative judgment by granting judicial expungement where the legislature has specifically removed statutory expungement as a remedy, it is in such situations where the judicial expungement remedy may well be most appropriate. Judicial expungement is a constitutional remedy, and it is elementary that although the legislature has freedom to provide greater protections, it has no authority to place limits on rights guaranteed under the Constitution.

(Emphasis in original.) In re Application to Seal Record of No Bill,

(3d Dist. 1999). It therefore stands to reason that, the limitations of R.C. 2953.32

notwithstanding, a trial court has the authority to grant judicial expungement in situations in

which an executive pardon is at issue. 5

EFFECT OF PARDON

{¶8} Given that trial courts have the authority to grant judicial expungement when a

pardon is at issue, the question remains whether the nature of the executive pardon itself requires

them to do so in every case. We conclude that it does not.

{¶9} The Ohio Constitution gives the governor “power, after conviction, to grant

reprieves, commutations, and pardons * * * upon such conditions as the governor may think

proper[.]” Ohio Constitution, Article III, Section 11. A “pardon” is defined as “the remission of

penalty by the governor in accordance with the power vested in the governor by the

constitution.” R.C. 2967.01(B). It “relieves the person to whom it is granted of all disabilities

arising out of the conviction or convictions from which it is granted.” R.C. 2967.04(B). The

recipient of a pardon is, therefore, relieved of the disabilities imposed by R.C. 2961.01(A)(1) and

is no longer “incompetent to be an elector or juror or to hold an office of honor, trust, or profit.”

R.C. 2961.01(A)(2).

{¶10} Noting that a pardon restores the civil rights of the recipient, the Ohio Supreme

Court has described the effect of pardons:

“In contemplation of law it so far blots out the offense, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives him a new credit and capacity, and rehabilitates him to that extent in his former position”, and hence its effect “is to make the offender a new man.” It is, in effect, a reversal of the judgment, a verdict of acquittal, and a judgment of discharge thereon, to this extent, that there is a complete estoppel of record against further punishment pursuant to such conviction.

(Internal citations omitted.) Knapp v. Thomas,

, 381 (1883). Context is key to

understanding the Court’s explanation in Knapp, which Boykin cites in support of her

assignment of error. A careful reading of the Court’s language, however, leads to the conclusion

that a pardoned individual is “a new man” insofar as the restoration of competency and the 6

further imposition of punishment are concerned. See

A pardon, so understood, does not wipe

away all traces of the criminal case.

{¶11} Current laws support this conclusion. For example, R.C. 2961.01(A)(2) provides:

[t]he full pardon of a person who under division (A)(1) of this section is incompetent to be an elector or juror or to hold an office of honor, trust, or profit restores the rights and privileges so forfeited under division (A)(1) of this section, but a pardon shall not release the person from the costs of a conviction in this state, unless so specified.

(Emphasis added.) R.C. 2961.01 does not provide that a pardon restores the recipient’s

competency under R.C. 2961.01(B) to “circulate or serve as a witness for the signing of any

declaration of candidacy and petition, voter registration application, or nominating, initiative,

referendum, or recall petition,” although such a person may be restored by operation of R.C.

2967.16(C). 2010 Ohio Atty.Gen.Ops. No. 2010-002,

, *2. A pardon does not

automatically remove the recipient’s disability with respect to carrying a concealed weapon. See

R.C. 2923.14(C) (requiring an individual to petition the court of common pleas for the removal

of the disability, reciting “any partial or conditional pardon granted” as well as “facts showing

the applicant to be a fit subject for relief[.]”).

{¶12} Consistent with the definition of a pardon as “remission of penalty,” as set forth in

R.C. 2967.01(C), it is also apparent that an executive pardon does not eradicate the fact of the

underlying conduct. Despite a pardon, for example, the character of an offense may be relevant

for purposes of employment. See State ex rel. Atty. Gen. v. Hawkins,

, 117 (1886)

(“Whatever the theory of the law may be as to the effect of a pardon, it cannot work such moral

changes as to warrant the assertion that a pardoned convict is just as reliable as one who has

constantly maintained the character of a good citizen.”). An attorney who has been indefinitely

suspended from practicing law is not automatically entitled to reinstatement when the underlying 7

offense has been pardoned. See In re Bustamante,

,

, ¶ 3-5

(requiring an attorney to complete the prerequisites for reinstatement that had been set by the

Supreme Court of Ohio notwithstanding a presidential pardon.). A pardoned offense may be

considered in subsequent prosecutions. Carlesi v. New York,

(1914). Although

evidence of a conviction is not generally admissible in Ohio to impeach a witness, it may be

admitted if the witness subsequently committed certain crimes. Evid.R. 609(C).

{¶13} If it is to be maintained that “in the eye of the law, [a pardoned] offender is as

innocent as if he had never committed the offense,” these examples of collateral consequences

that remain after a pardon lead us to agree with one commentator, who has observed that in that

case, “the eyesight of the law is very bad.” Williston, Does a Pardon Blot Out Guilt?, 28

Harv.L.Rev. 647, 648 (1918), quoting Ex Parte Garland,

(1866). We conclude,

therefore, that a pardon does not conclusively entitle the recipient to have the record sealed. This

conclusion is in accord with the majority of courts that have considered the question. See U.S. v.

Noonan,

(3d Cir. 1990); R.J.L. v. State,

(Fla. 2004); State v.

Blanchard,

(Tenn.App. 2002); State v. Aguirre,

(Wash.App. 1994); State v. Skinner,

(Del. 1993); State v. Bachman,

(Mo.App. 1984); Commonwealth v. Vickey,

(Mass. 1980); People v.

Glisson,

(Ill. 1978).

{¶14} We recognize that a minority of courts that have addressed the issue disagree. See

State v. Cope,

(1st Dist. 1996); State v. Bergman,

(Ind.App. 1990); Commonwealth v. C.S.,

(Pa. 1987). Nonetheless, we conclude

that this result is correct. In Ohio, the legislature has not provided for sealing records of a 8

pardoned individual by statute. Some other jurisdictions have done so. See R.J.L.,

fn4. In this respect, we must defer to the legislative process.

CONCLUSION

{¶15} A pardon under Article III, Section 11, of the Ohio Constitution does not

automatically entitle the recipient of the pardon to have the record of conviction sealed. A trial

court may exercise its authority to order judicial expungement but, as the Ohio Supreme Court

concluded in Pepper Pike, this authority should not be exercised as a matter of course, but

“where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction

over the matter[.]” Pepper Pike,

at paragraph two of the syllabus. In this

case, Boykin’s motions to seal her record relied exclusively on her position that she was entitled

to relief by virtue of the pardon, and the record on appeal does not contain evidence beyond that

argument. Consequently, consideration of whether her motions should have been granted under

the analysis set forth above is premature, and this Court takes no position in that respect.

III.

{¶16} Boykin’s assignment of error is overruled, and the judgments of the Summit

County Court of Common Pleas and the Akron Municipal Court are affirmed.

Judgments affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas and Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into 9

execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R.

27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

DICKINSON, J. CONCURS.

BELFANCE, P. J. DISSENTING.

{¶17} I respectfully dissent. The question presented to this Court is whether a person

who has received a full and unconditional pardon for certain offenses is entitled to have the

public records of those convictions sealed.

{¶18} As an initial matter, and as discussed by majority, I agree that the trial court has

inherent authority to order the sealing. See Pepper Pike v. Doe,

(1981).

{¶19} Even prior to the existence of statutory sealing provisions, the Supreme Court of

Ohio discussed the effect and breadth of an unconditional pardon. It has stated that: 10

a pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It obliterates, in legal contemplation, the offense itself. In contemplation of law it so far blots out the offense, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives him a new credit and capacity, and rehabilitates him to that extent in his former position and hence its effect is to make the offender a new man. It is, in effect, a reversal of the judgment, a verdict of acquittal, and a judgment of discharge thereon, to this extent, that there is a complete estoppel of record against further punishment pursuant to such conviction.

(Internal quotations and citations omitted.) Knapp v. Thomas,

, 381 (1883). The

legal effect of a pardon is grounded upon the Supreme Court’s recognition of the executive’s

constitutional authority to make a pardon. See Ohio Constitution, Article III, Section 11. The

Ohio Supreme Court has more recently reiterated the principle that a full pardon has the effect of

removing both the punishment and guilt of the offender. In State ex rel. Gordon v. Zangerle,

(1940), it stated “[a] full pardon purges away all guilt and leaves the recipient

from a legal standpoint, in the same condition as if the crime had never been committed.”

. If a full pardon leaves a person from a legal standpoint as if the crime had never been

committed, and obliterates the offense itself, it is difficult to envision how a public document

that contains the imposition of guilt could appropriately remain in the public domain.

{¶20} In examining whether sealing is appropriate subsequent to a full and

unconditional pardon, I find the reasoning and analysis of the First District’s State v. Cope,

(1st Dist. 1996), to be very logical and persuasive. As noted in Cope, R.C.

2967.04(B) provides that “[a]n 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.” (Emphasis

added.) See

. While the majority concludes that a pardon relieves a person of only

those disabilities imposed by R.C. 2961.01(A)(1), R.C. 2967.04(B) does not reference R.C.

2961.01(A)(1), nor does it include limiting language. I would interpret the word “all” to mean 11

just that, all disabilities. I think any reasonable person would agree that having a conviction be

part of public record for all to see is a disability. Moreover, I do not find the majority’s

recitation of actions that persons granted pardons must take to restore themselves to full

competency to be a compelling argument in support of its position. The fact that someone has to

take action to receive the full benefits of the pardon does not necessitate the conclusion that the

person is not entitled to those benefits. Thus, in my view, it is logical that sealing the public

records of a conviction would go hand in hand with a full and unconditional pardon. As the

Court in Cope stated, “[a] pardon without expungement is not a pardon.” (Internal quotations

and citation omitted.)

. Furthermore, even though a public court record might be

sealed, it does not mean that is destroyed. See, e.g., Pepper Pike,

.

(“[E]xpungement does not literally obliterate the criminal record * * * [as] [t]he sealed record of

the case may be inspected by any law enforcement authority or prosecutor to aid in the decision

to file charges on any subsequent offenses involving the defendant.”).

{¶21} Accordingly, the only way to give full effect to the broad language of Supreme

Court precedent and the statute, and thus the pardon itself, is to order the sealing of the records of

a person who has received a full and unconditional pardon. Thus, I respectfully dissent.

APPEARANCES:

JOANN SAHL, Appellate Review Office, School of Law, The University of Akron, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

CHERI B. CUNNINGHAM, Director of Law, and DOUGLAS J. POWLEY, Chief City Prosecutor, for Appellee.