“If he [G.K.] withdraws his application, and then refiles it under the appropriate statute, he may have this whole thing cleared up?”
Chief Justice O’Connor to the assistant county prosecutor
On February 8, 2022, the Supreme Court of Ohio heard oral argument in State of Ohio v. G .K. At issue is whether a conviction for one charge in a case precludes defendants from requesting other, dismissed charges in the same case be sealed.
Justice Donnelly, who was the initial trial court judge in the case, has recused himself from this appeal. Fourth District Court of Appeals Judge Michael D. Hess sat in his place.
Case Background
G.K. was indicted on charges of rape, gross sexual imposition, and kidnapping. However, DNA evidence exculpated him and implicated his first cousin, and the victim recanted allegations against him. The State dismissed all but one of the charges against G.K.
G.K. did plead guilty to obstruction of justice but, in 2014, sought to seal the dismissed charges. The case then sat dormant until 2019 when a new judge took over the case and held that G.K.’s case was not eligible for sealing under R.C. 2953.61(A). G.K. appealed.
The Appeal
In a 2-1 decision, the Eighth District reversed the trial court’s decision. The majority held that G.K. may apply to seal his dismissed charges under R.C. 2953.52.
The Eighth District majority found that R.C. 2953.52 is ambiguous. One section suggests defendants can request to seal individual charged offenses, while another section suggests only eligible full cases, including all charges therein, can be sealed.
The majority determined that the legislature intended to allow partial sealings of individual offenses, as G.K. sought. The court pointed to legislative history supporting this result and to State v. S.R., a Supreme Court of Ohio decision that described the policy behind sealing “a criminal offense.”
The Eighth District majority also found that G.K.’s application was not precluded by R.C. 2953.61 because the obstruction of justice conviction did not arise from the same conduct as the rape and other charges, nor was his conviction for an offense prohibited from sealing by R.C. 2953.36. The majority remanded the case to the trial court to determine the remaining requirements of R.C. 2953.52, specifically whether there were any pending criminal proceedings pending against G.K. and whether G.K.’s interests in having his records sealed were stronger than the government’s need to maintain the records.
Finally, the majority wrote that the judiciary has inherent authority to seal records in exceptional circumstances, and that G.K.’s privacy interest qualifies him for such action.
Judge Keough wrote separately, questioning whether G.K. entered his plea agreement voluntarily because the state “used false charges as a bargaining chip and … G.K. and his counsel did not realize the unintended consequences of his plea.”
The dissenting judge wrote that R.C. 2953.61 precludes G.K. from pursuing the partial sealing of his charges, and R.C. 2953.52 provides for the “sealing of cases, not individual charges within a case.”
Key Statutes and Precedent
*R.C. 2953.36 (lists specific violations of the Revised Code that cannot be sealed.)
*R.C. 2953.52 (“Any person, who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person’s official records in the case. Except as provided in section 2953.61 of the Revised Code, the application may be filed at any time after the finding of not guilty or the dismissal of the complaint, indictment, or information is entered upon the minutes of the court or the journal, whichever entry occurs first.”)
*R.C. 2953.61 (“Except as provided in division (B)(1) of this section, a person charged with two or more offenses as a result of or in connection with the same act may not apply to the court pursuant to section 2953.32 or 2953.52 of the Revised Code for the sealing of the person’s record in relation to any of the charges when at least one of the charges has a final disposition that is different from the final disposition of the other charges until such time as the person would be able to apply to the court and have all of the records pertaining to all of those charges sealed pursuant to section 2953.32 or 2953.52 of the Revised Code.”)
*City of Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981) (“[E]ven absent statutory authorization, trial courts in unusual and exceptional circumstances expunge criminal records out of a concern for the preservation of the privacy interest.”)
State v. S.R., 63 Ohio St.3d 590 (1992) (“R.C. 2953.51 et seq. was enacted to protect the privacy of those found not guilty of a criminal offense.”)
*State v. Futrall, 2009-Ohio-5590 (“[P]arsing out those convictions that can be sealed from those that cannot … would be impossible: a trial court is unable to order all index references to the case deleted while at the same time ordering that index references to one conviction in that case be maintained because the case cannot be lawfully sealed.”)
*State v. Pariag, 2013-Ohio-4010 (“A trial court is precluded from sealing the record of a dismissed charge pursuant to R.C. 2953.61 if the dismissed charge arises ‘as the result of or in connection with the same act … that supports a conviction that is exempt from sealing under R.C. 2953.36.”)
State v. C.A., 2015-Ohio-3437 (10th dist.) (“[T]he sealing statutes are remedial and are, therefore, to be construed liberally to promote their purpose and assist the parties in obtaining justice.”)
*Cited by counsel at argument
State’s Proposition of Law Accepted for Review
If a criminal case is not eligible for sealing, individual dismissed counts within that case cannot be sealed.
At Oral Argument
Arguing Counsel
Gregory Ochocki, Assistant Prosecuting Attorney, Cuyahoga County, for Appellant State of Ohio
Larry W. Zukerman, Zukerman, Lear & Murray, Co., L.P.A., Cleveland, for Appellee G.K.
State’s Argument
The state is asking the Court to reverse the 8th district and to find that if a criminal case is not eligible for sealing, individual dismissed counts within that case cannot be sealed. This outcome is compelled by the Court’s decision in Futrall. In that case the Court indicated that a trial court cannot seal any conviction in a criminal case when one conviction in that case is exempt from sealing. By statute, all official records and all indexed references are required to be sealed when a case is sealed, and this Court indicated that partial sealing would be impossible. All official records include all notations in the criminal docket, all papers and documents filed by the prosecutor, all papers and documents filed by the defendant. All fingerprints must be sealed. It would not be possible to seal fingerprints for dismissed counts but not seal fingerprints for the counts that remain open. All DNA specimens, profiles and records are required to be sealed. It’s not possible to seal all DNA records and leave some DNA records open because of one conviction. A trial court cannot order all the records sealed while at the same time ordering records of one conviction be maintained. To allow that would be a clerical nightmare. There have been cases with co-defendants where one co-defendant’s case may be sealed. But if the other co-defendant’s case is not eligible for sealing, that’s not sealed.
At the time the application was filed, G.K. was ineligible to seal this case. He did not qualify as an eligible offender, because he had an additional felony and an additional misdemeanor. The obstruction charge made him ineligible for sealing. At the time, one felony conviction, two misdemeanors, or one felony and one misdemeanor were permissible. That statute has changed and today G.K. would be eligible to have the entire case sealed. But that doesn’t change the situation here where there is a request to seal dismissed counts in a case before the entire case is eligible to be sealed. This case is not moot because eligibility is determined on the date the application is filed. G.K. would be an eligible offender under the amended statute that exists today.
As far as the argument that the Court has inherent authority to seal the record to prevent injustice, this was never argued in the courts below. The appeals court raised it sua sponte and it raised it on faulty premises. The unique and exceptional circumstances that the court relied upon was the alleged recantation of the victim. There’s absolutely no evidence in the record that this victim recanted her testimony. Nor was this a DNA case. This was a delayed disclosure case. The 8th district relied on facts that were completely outside of the record.
If G.K. were to re-file, an expungement investigation report would be generated and based upon a review of that report if he is an eligible offender the prosecutor’s office would not oppose that. The prosecutor’s office would just need to make certain that he does not have any current pending criminal cases, any criminal cases that have been adjudicated between this case and the new application that would render him ineligible. He would move to seal the case under the sealing of convictions pursuant to R.C. 2953.32.
G.K.’s Argument
In this situation, Futrall and Pariag give us direction. They direct us to look at two things: the applicant and the acts of the applicant. Here, the applicant is GK. We start with the conviction, which here was for obstruction of justice. The only act that pertained to obstruction of justice in this case was the tampering of evidence. Those occurred in July 2009. The heinous allegations occurred in June of 2009 and G.K. was exonerated. The woman involved recanted. The prosecutor dismissed the case with approval from his supervisor.
The test in Pariag was to look at the actions of the applicant which in that case was a driving offense and possession of marijuana. The accused in that case pled guilty to the driving offense which is not sealable. And then the drug offense was dismissed. They were in two separate cases. The defense lawyer applied to seal the drug offense and it was granted. The court of appeals reversed saying these are all part of the same conduct. The same activity at the same time. The same defendant, the same arresting officer, the same car, it arose out of the same conduct. Then this Court took it up and held it was not going to allow separate cases to prevent the Court from applying the statute. The conviction in G.K.’s case was the act of obstruction of justice. It was not the other actions. The other actions were done by her father, and he died in prison. Basically, what the government has done, is by charging everything in one indictment they are saying you can’t get it sealed. Gamesmanship. The decision in this case may just be an exercise in futility because it will have no precedential value because of the change in the statute. Pariag is guiding precedent in this case. If the Court returns the case to the docket of the Cuyahoga County Court of Common Pleas, G.K. can go in and petition under the new statute to have a sealing.
The defense believes Pepper Pike was raised but the Court does not need to go there to affirm the decision in this case. The conviction for obstruction of justice is a separate offense from the sex offenses and it doesn’t preclude G.K. from having these records sealed. He was charged with heinous offenses. He’s been living with this for a long time.
G.K. was asked to take a computer and put it in his garage. Later he gave it to the detective who interviewed him. The police did a forensic examination of the computer and there was no incriminating evidence whatsoever on the computer.
RC 2953.52 is ambiguous and leads to absurd results. For example, in this case, if the prosecutor dismisses the sex charges and then the case went to trial on the obstruction of justice charges and G.K. was found not guilty of the obstruction charges by virtue of a dismissal, the government is saying that a dismissal does not allow for a properly sealable offense because there was not a finding of not guilty. The state is looking for the talismanic words and a finding of not guilty. Courthouses would be clogged because everyone would be trying their cases. If word gets out that dismissed offenses cannot be sealed, everybody in the courthouse is going to be trying their cases as opposed to letting the prosecutor dismiss them because it will be there for the rest of your life. Under the state’s interpretation of R.C. 2953.52 if G.K. is found not guilty by a court or a judge that case can be sealed.
In Cuyahoga County if you don’t take a deal you go to trial on everything. So, a defendant has to risk going to trial on everything. And the prosecutors are put in the untenable position of having to prosecute a case where they believe they don’t have probable cause to go to trial. They wanted to dismiss the charge, you object to the dismissal of the charge because you can’t seal the case, and then you go to trial. So, the client has to run the gamut of potentially being found guilty, and the prosecutor has to try a case where there isn’t probable cause.
What Was On Their Minds
Creating a Clerical Nightmare
Is partial sealing really a clerical nightmare asked Chief Justice O’Connor?
Is the clerical burden greater than the burden on the defendants who want this done, asked Justice Stewart? What would be the difference then from the clerical standpoint of whether this Court allowed the sealing now or we don’t and G.K. goes back and gets it sealed under the new statute? How does that affect this clerical nightmare?
Isn’t the question in front of us what the statute says, not whether it is easy or hard for a clerk of courts to seal a case, asked Justice DeWine?
The New Statute
Under the new statute will the clerical nightmare disappear, asked Justice Stewart? Is the sealing different? The report comes back fine, he can get it sealed, how is it different, then, from a clerical standpoint, from the clerk’s office? Under the new statute the entire case would be sealed? Even the obstruction conviction?
Partial Sealing
Isn’t there partial sealing going on, asked Justice Stewart? At least in Cuyahoga County? Instead of dismissing, should G.K. have said let me go to trial and let me be found not guilty? Is his ineligibility for sealing the obstruction count? Are the substantive facts, whether there was a recantation, whether there was DNA evidence, does that matter or should that matter for the purposes of whether this can be sealed, whether he’s eligible? Regardless, he’s not eligible because he has a conviction on one part of this case? And then the other charges were dismissed but it’s the same case? Were all the offenses in connection with each other?
Unfortunately, I guess in this case G.K. is prohibited from having it sealed because of a combination of convictions, isn’t he, asked Chief Justice O’Connor? But that has now changed? This conviction would now be eligible for sealing?
Didn’t his criminal record prevent the obstruction count from being sealed, asked Justice Brunner? The obstruction offense was a separate incident and could have been charged by a separate indictment, correct?
Mootness
Is this case moot, asked Justice Fischer?
If G.K. withdraws his application, and then refiles it under the appropriate statute, may he have this whole thing cleared up, asked Chief Justice O’Connor?
If G.K. were to dismiss and refile would the prosecutor’s office still be in the posture of opposing the sealing of the obstruction and the dismissed charges, asked Justice Brunner? The fact that he previously had a criminal record that made it impossible at the time he applied to have the obstruction conviction sealed, that doesn’t have any more bearing? Couldn’t there still be situations where someone may be in a similar situation but still would be needing to have this statute discussed, interpreted, and applied?
If GK were to apply now, assuming nothing else has happened, couldn’t he get it sealed, asked Justice Stewart? What would be the difference? Does that make this moot? Future clients who might be triggered by this, can do the same thing? If instead of the cases being dismissed, G.K. said no let’s try them and he was found not guilty he’d still be in the same situation? In this situation he has the obstruction charge, you got that conviction, and the other charges are the sex offenses. Those are dismissed. G.K. knows he is innocent and his counsel says you aren’t going to be found guilty, let’s take it to trial so you can be found not guilty. If he’s found not guilty but he still has the obstruction conviction, you are saying he can get that sealed? The prosecutor is saying he is still ineligible because of the obstruction conviction. If you couldn’t get it sealed any way, I don’t see defendants breaking down the door for trials. You aren’t going to take your chances and go to trial when you can get it dismissed.
Inherent Authority
What about our inherent authority to seal the record to prevent an injustice and to protect his privacy interest in an exceptional case, asked Justice Brunner?
Was Pepper Pike raised at trial, asked Justice Fischer?
Statutory Ambiguity
Is the threshold issue before this court whether R.C. 2953.52 is ambiguous, asked Judge Hess? If we were to find that it is not ambiguous would we need to marshal the facts of the particular case? Do we need to go into the R.C. 2953.61 factors? Do we need to go into Pepper Pike? If it’s found to be not ambiguous, is that the end of the discussion? Didn’t the appellate court find it to be ambiguous?
G.K.’s Involvement
Wasn’t G.K. asked to go take a computer and put it in the garage but then he had a change of heart, asked Chief Justice O’Connor? When asked for it he turned it over to the police? His taking of the laptop had nothing to do with any of the activity of the sexual assault? What did he obstruct? What did the computer have?
How it Looks from the Bleachers
To Professor Emerita Bettman
Like a majority is trying to find a way for G.K. to win and have the obstruction charge sealed. One way would be to go the Pepper Pike route. Another possibility is to declare this case moot, which Justice Fischer seemed to favor, and have G.K. reapply under the new statute which everyone seems to agree would allow the obstruction charge to be sealed. My student contributor on the case, Max Londberg, has a lot more to say about this case, so here are his impressions.
To Student Contributor Max Londberg
The State’s arguments, presented by Gregory Ochocki, seemed tenuous to me. He contended R.C. 2953.61 prohibits partial sealing. While true, that only applies to multiple charges stemming from the “same act.” Ochocki failed to contest G.K.’s long-held position: that the sex-related charges and obstruction conviction were not part of the same act. (Though, in Ochocki’s defense, the justices peppered him with questions that consumed time, including all of his rebuttal.) Ochocki noted that even unsealable convictions could be sealed under R.C. 2953.61. While said to support his proposition that the legislature prohibited partial sealing, the point landed as ironic given the State’s hardline stance against sealing in this case. Ochocki further argued that partial sealing of official records would lead to an absurd result—how to seal fingerprints or DNA evidence for dismissed counts and not seal the same for G.K.’s single conviction? The point seemed to contort his opposition’s stance, considering it is not G.K.’s stored biological records that he seeks relief from but the stigma of being charged with sex crimes. To that point, Ochocki said ongoing partial sealing in Cuyahoga County identified by amici supporting G.K.— by redacting codefendants’ names in indictments—is not partial sealing at all. Earlier he said true partial sealing would lead to a clerical nightmare. But in the words of the amici “…if a defendant’s name can be removed from counts in an indictment, counts can be removed from an indictment…”
Some justices seemed as skeptical as I am of the State’s arguments. Chief Justice O’Connor wondered aloud whether partial sealing really would be a clerical nightmare. Justice Stewart asked whether clerical issues should supersede the many burdens imposed by a criminal charge. And Justice Brunner all but revealed her belief that the obstruction offense was not part of the same act as those leading to the dismissed charges. However, Justice Fischer indicated the case may be moot, as G.K. is now eligible by an amendment that broadened the reach of the expungement statutes. One way or another, G.K. will become eligible for expungement. Whether others in similar positions in the future will be as well is a much closer question. I predict, optimistically, that they will be, as the Court will hold the law allows partial sealing for offenses not of the same act.