Case Summaries: Criminal - Domestic Violence Expungement
Court May Not Seal Multiple Convictions When One Conviction is Exempt from Sealing
The Ohio Supreme Court held that when an applicant with multiple convictions under one case number moves to seal a criminal record in that case as a record of first offense, and one conviction is exempt from sealing, the trial court may not seal any of the convictions. Because the aggravated menacing charge in this case is statutorily exempt from being sealed, as a matter of law, all of defendant’s convictions, including his fourth-degree domestic violence misdemeanor conviction, are precluded from being sealed and the trial court properly denied his application to seal the record. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590.
Keywords: expunge expungment
Date: 3/19/10
SEALING OF CRIMINAL CONVICTIONS
The Ohio Supreme Court held that when an applicant with multiple convictions in the same criminal case moves to seal his or her criminal record in that case pursuant to RC. 2953.32 and one of those convictions is exempt from sealing pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions. In this case the applicant’s fourth-degree misdemeanor domestic violence conviction and three other misdemeanor convictions could not be sealed because they were under the same case number and arose from the same incident as the applicant’s felony aggravated trespass conviction. State v. Futral, 2009-Ohio-5590.
Date: 3/19/10
TRIAL COURT SHOULD HAVE GRANTED EXPUNGEMENT OF FOURTH-DEGREE MISDEMEANOR CONVICTION:
The court of appeals reversed the sentencing courts denial of defendants motion to expunge her fourth-degree misdemeanor domestic violence conviction. The Defendant was seeking expungement because she had become a teacher and was concerned that her record might affect her ability to obtain teaching jobs. The trial court abused its discretion in denying the expungement because her domestic violence offense was an isolated incident, she was no longer involved with her husband (who had girlfriends and spent the grocery money on drugs), and she had invested enormous energy and persistence in to getting her college degrees and establishing a service career. Therefore, her eight years of demonstrated model citizenship carried greater weight than the states need to preserve a record for the purpose of enhancing a future domestic violence offense that is merely a theoretical possibility. Indeed, the Defendant appeared to be the very type of person for whom expungement was invented. City of Cleveland v. Cooper-Hill, 2004-Ohio-6920, No. 84164 (8th Dist., Cuyahoga, 12/17/2004).
Keywords: expunge,"seal the record"
Date: 4/4/2005
CPO Petitioner Must Prove That DV Occurred On Date Set Forth In Petition
In seeking a domestic violence CPO, the Petitioner may rely on past acts to establish a genuine fear of violence in the present situation. However, while the court may consider past acts to determine whether the incident at issue constitutes domestic violence, the issuance of a CPO cannot be based solely on previous incidents of alleged domestic violence; rather, the Petitioner must establish by a preponderance of the evidence that an act of domestic violence occurred on the date set forth on the petition for a CPO. Further, a person seeking a CPO must demonstrate by a preponderance of the evidence that they are in danger of domestic violence. The court of appeals affirmed the trial courts dismissal of the CPO petition because the evidence did not support the magistrates original conclusion that the former wife was in fear of imminent serious physical harm. Solomon v. Solomon, 157 Ohio App.#d 807, 2004-Ohio-2486 (7th Dist., Mahoning, 5/14/2004).
Keywords: pleading,evidence
Date: 4/4/2005
Ohio Supreme Court Allows Expungement of DV Conviction
The Ohio Supreme Court has refused to retroactively apply Ohio's anti-expungement statute, R.C. 2953.36(C), to a previous domestic violence conviction. This statute prohibits the sealing of records of first-degree misdemeanor convictions involving offenses of violence, including domestic violence. The Supreme Court ruled that the this statute could not be used to block the expungement of the perpetrator's domestic violence conviction because he filed his application for expungement;before the new law took effect on March 23, 2000. Absent a clear pronouncement by the general Assembly that a statute is to be applied retrospectively, a statute may be applied prospectively only. Id. at Syllabus. This Supreme Court decision, in effect, overturned a number of earlier Court of Appeals decisions that had earlier held that the anti-expungement statute could be applied retrospectively on the grounds that it is a remedial statute, and remedial laws are exempt from the constitutional limitation on retroactivity. But the Supreme Court rejected that reasoning. State v. LaSalle (2002), 96 Ohio St.3d 178, 2002-Ohio-4009.
Keywords: expunge, penalty, enhance, enhancement, seal
Date: 8/23/2004
Post-sb 13 DV Expungement, Not Void:
The conviction occurred in 1995. However, S.B. 13 (Ohio 2000) amended the statutory law relating to the sealing of records for first-time offenders like the convict. Under the new law, any offense of violence that was a misdemeanor of the first degree was not subject to expungement. The State argued the trial court's 2001 expungement order was void ab initio, because the trial court lacked subject matter jurisdiction to consider the convict's application. The convict argued that the trial court did have subject matter jurisdiction, but may have merely erred in exercising its jurisdiction. The appellate court held that the trial court had subject matter jurisdiction to address the expungement application, as the case fell within the class of cases over which the trial court had such jurisdiction. Therefore, the original judgment was not void ab initio. However, the trial court improperly exercised its jurisdiction when it granted the application in violation of the amended statutory law, resulting in a voidable judgment, which the State had to attack by way of a timely filed appeal. As the State did not file a timely appeal, the expungement order had to be reinstated. State v. Powers, 2002 Ohio 6672; 2002 Ohio App. LEXIS 6457 (Fairfield, 5th App. Dist.).
Keywords: expunge, sealing records, 2953.36, 2953.6(C)
Date: 5/16/2003
