The Supreme Court of Ohio held today that a trial court may not seal the record of a dismissed criminal charge if it arises “as a result of or in connection with the same act” that gave rise to a nonsealable conviction.

In a 4-3 decision, authored by Justice Judith Ann Lanzinger, the court reversed the judgment of the Tenth District Court of Appeals and sent the case back to the trial court for further proceedings.

Marlon Pariag was stopped by the Ohio State Highway Patrol in 2010 and was charged with a traffic offense, drug possession, and possession of drug paraphernalia. The traffic offense and the criminal drug charges were assigned separate case numbers. When Pariag entered a plea in the traffic case, the drug charges were dismissed.

The next year, Pariag applied to seal the records of his dismissed drug charges. The trial court sealed the records, and the state appealed to the Tenth District Court of Appeals. The court of appeals ruled that R.C. 2953.61 does not prevent courts from sealing records of dismissed charges in one case when the record of conviction in another case may not be sealed, even if the charges arose out of the same act. The statute governs merely the timing of the application to seal, the court said. The state sought and was granted review by the Supreme Court of the court of appeals’ ruling.

In today’s opinion, Justice Lanzinger wrote that R.C. 2953.61 prevents the court from sealing the record of a dismissed charge if the dismissed charge arises “as a result of or in connection with the same act” that supports a conviction whose records are not sealable under R.C. 2953.36, regardless of whether the dismissed charge and conviction are filed under separate case numbers.

Justice Lanzinger stated that because expungement of a criminal record is an “act of grace created by the state,” it should be granted only when all requirements for eligibility are met, because it is a “privilege, not a right.” She wrote: “R.C. 2953.52 allows for application to seal the records of a dismissed complaint, indictment, or information “at any time” after dismissal; however, the statute expressly states that this timeframe is subject to the mandatory waiting period in R.C. 2953.61, which governs the sealing of records in multiple charges with differing dispositions.”

“Although the Tenth District Court of Appeals held that R.C. 2953.61 was unclear with respect to the meaning of the phrase ‘the same act’ and the state misreads these words to mean a conviction, we do not agree that the statute is ambiguous,” she continued. “The ‘same act’ plainly refers to the ‘same conduct.’”

With respect to the time for applying for sealing of the record, Justice Lanzinger disagreed with the court of appeals, writing that R.C. 2953.61 states, “[T]he person may not apply … in any of the cases until such time as he would be able to apply … and have all of the records in all of the cases pertaining to those charges sealed.”

“In other words, when multiple offenses have different dispositions, an application to seal a record may be filed only when the applicant is able to apply to have the records of all the offenses sealed,” she wrote. “Thus, if the record of one charge cannot be sealed, any charges filed as a result of or in connection with the act that resulted in the unsealable charge cannot be sealed. Because R.C. 2953.61 refers to ‘all of the records in all of the cases,’ our holding is not affected by the fact that the different charges were assigned different case numbers.

The case was returned to the trial court to determine if the dismissed drug charges arose as the result of or in connection with the same act as Pariag’s traffic conviction.

Justice Lanzinger’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy and Judith L. French.

Justice Paul Pfeifer dissented and would have dismissed the case as improvidently allowed. Justice Terrence O’Donnell dissented in an opinion joined by Justice William O’Neill.

The court shouldn’t have accepted jurisdiction in this case, Justice Pfeifer wrote in his dissent. Barring that, he added: “Drug offenses can materially affect a person’s life, and the General Assembly allows them to be sealed. Today this court determines that a material offense that was dismissed and that is ordinarily sealable cannot be sealed because an immaterial traffic offense cannot be sealed.”

Justice O’Donnell wrote in his dissent: “My analysis of this case differs from the majority in three respects: determining legislative intent, analyzing the elements of the crimes at issue, and interpreting R.C. 2953.36. … The intent of the General Assembly in enacting R.C. 2953.52 and 2953.61 was to address the time to file an application to seal records of dismissed criminal charges. In addition, the elements of the offense of driving under suspension differ from and are independent of the drug charges, which were dismissed, and therefore, the drug charges are not ‘a result of or in connection with the same act’ as required by R.C. 2953.61. Hence, a pivotal requirement of R.C. 2953.61 cannot be established in this case. And finally, a plain reading of R.C. 2953.36 reveals that it does not preclude the sealing of records relating to dismissed charges because it only precludes the sealing of records of certain convictions. Here, the drug charges did not result in convictions. For these reasons, I would affirm the judgment of the court of appeals ….”

2012-0819. State v. Pariag, Slip Opinion No. 2013-Ohio-4010.

View oral argument video of this case.

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