On February 8, 2022, the Supreme Court of Ohio will hear 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 was assigned to the case.

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 decision. Judge Mary Eileen Kilbane, for the majority, held that G.K. may apply to seal his dismissed charges under R.C. 2953.52. Judge Kathleen Ann Keough concurred, and Judge Michelle J. Sheehan dissented.

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, Judge Kilbane 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.”

Judge Sheehan dissented, writing 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 (“[T]he sealing statutes are remedial and are, therefore, to be construed liberally to promote their purpose and assist the parties in obtaining justice.”)

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Kennedy, DeWine, and Stewart

No: Justices Fischer, Donnelly, and Brunner

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.

State’s Argument

The Supreme Court of Ohio previously found it impossible for a court to partially seal individual charges in a given case in the manner requested by G.K. In Futrall, the Court recognized the legislature’s intent to allow cases, not individual counts, to be sealed.

The language of R.C. 2953.52 indicates that only whole cases may be sealed. The Eighth District wrongly found the statute to be ambiguous. Language indicating single offenses may be sealed pertains only to who may request sealing. A separate subsection, (B)(4), provides the requirements to be met in order to seal records, and that subsection requires the dismissal of an entire indictment or a not guilty verdict in a case. Neither is true for G.K., as he pleaded guilty to one charge contained in his indictment.

Pepper Pike is inapplicable here because the survivor’s apparent recantation was not properly supported in the record. While the majority found that DNA evidence exonerated G.K., the record does not indicate why the charges were dismissed, nor is there any evidence in the record that the victim recanted the allegations against GK.

G.K. cites the Final Analysis of S.B. 143 for the proposition that individual charges may be sealed. However, the Analysis states that a court “may not order that only a portion of the records be sealed.”

A holding that allows partial sealing of dismissed counts would pose an “unworkable burden” on court clerks.

Finally, the General Assembly has yet to explicitly reject Futrall by allowing partial sealing of individual counts.

G.K.’s Argument

The State aims to inflict a lifetime of shame on people by “forcing them to wear dismissed, criminal charges like a permanent scarlet letter.”

The legislature intended to allow sealing of dismissed counts within cases. The Legislative Service Commission’s Final Analysis of S.B. 143 states that the “record sealing provisions apply with respect to individual convictions … in a case and not just with respect to an entire case” (emphasis added). Though the amendments concerned other sealing statutes, the language clarifies the legislature’s intent to allow partial sealing of individual charges within a larger case.

The State’s claim, that R.C. 2953.52 is not ambiguous, would lead to an absurd result. The State claims that the subsection that suggests individual counts can be sealed only pertains to who may seek to seal charges. But the legislature would not permit a person to seek to seal records if “such applicant was legally prohibited from obtaining said relief.”

The sealing statutes are also intended to be liberally construed, as the C.A. court held.

The State relies on Futrall, but that case is inapposite to this one. Futrall concerned sealing convictions, not dismissed charges. It also concerned offenses exempt from sealing under R.C. 2953.36. As the Eighth District noted, G.K.’s conviction is not exempt from sealing.

In addition, Futrall and other cases relied on by the State were decided before 2014, the year the legislature clarified its intent with S.B. 143. Those decisions are thus inherently less reliable.

Finally, Pepper Pike provides the judiciary with authority to seal records where the legislature has not expressly forbidden it and exceptional circumstances exist. The Eighth District correctly determined that G.K.’s case merits this rare judicial action “because the horrific charges were proved to be false, and it would not serve justice to require G.K. to continue to live with these unspeakable stains on his record.”

Amici in Support of the State of Ohio

Ohio Association of Municipal and County Court Clerks

The OAMCC is interested in this case because the Eighth District’s decision would impose an administrative burden on Ohio’s court clerks. The decision would apply to everything from “arrest records to written statements to transcripts to journal entries.” The plain language of R.C. 2953.52 requires that an indictment be dismissed, “not merely a count or counts” within an indictment. G.K. is not eligible under R.C. 2953.52 to apply to the court for an order to seal his official records in the case. Revised Code 2953.61 applies not only when sealing is exempt under R.C. 2953.36 but also when, as here, sealing is exempt under R.C. 2953.32 This Court should reverse the Eighth District’s decision.

Ohio Clerk of Courts Association

The OCCA is interested in this case because its purpose is to assist Ohio’s Clerks, and the case will significantly impact the Clerks in all Ohio counties. Nolled charges cannot be sealed in a case where unsealable convictions remain. In finding otherwise, the Eighth District engaged in judicial policymaking, contrary to the Ohio Constitution. Clerks cannot partially seal documents under their existing case management systems. This Court should reverse the Eighth District.

OCCA’s Proposed Proposition of Law 1

If a criminal case is not eligible for sealing, individual dismissed counts within that case cannot be sealed.

Amici in Support of G.K.

Southeastern Ohio Legal Services, The Legal Aid Society of Columbus, The Legal Aid Society of Cleveland, and Community Legal Aid Services

These amici are interested in this case because the outcome affects the lives of Ohioans living in poverty. Legal Aid’s work allows it to optimally see the adverse consequences that criminal dismissals have on a person’s employment and housing. The benefit of freeing people from the collateral consequences of dismissed charges far outweighs the burden created by the Eighth District’s decision. Collateral consequences include hindering a person’s ability to secure private or public housing for their family, and this disparately impacts people of color. Revised Code 2953.52 also allows for sealing dismissals “at any time.” A partial dismissal as sought by G.K. should be allowed.

Western Reserve University Second Chance Reentry Clinic

The Clinic, which provides representation to people attempting to seal criminal records, is interested in this case as it will bear on the power trial courts have to seal criminal records. The Clinic’s clients have a substantial interest in avoiding “unnecessary stigma and unwarranted punishment.” Revised Code 2953.61 does not bar G.K.’s request because the dismissed charges are not the result of or connected to the same acts that precipitated his obstruction conviction. This Court should affirm the Eighth District.

Cuyahoga County Public Defender and Ohio Association of Criminal Defense Lawyers

The amici are interested because they work to secure the rights of criminally accused people. The question of sealing should be determined by the acts in question, not by the “unfettered discretion” of a prosecutor who can decide to charge in one document or two. These amici’s proposition of law would not be impractical to implement and is consistent with the legislature’s intent in enacting the sealing statutes. Revised Code 2953.61 applies to charges arising from the same act, not charges found in the same charging instrument. The Eighth District should be affirmed.

Cuyahoga County Public Defender and OACDL’s Proposed Proposition of Law 1

Even if a conviction cannot be sealed, dismissed charges contained in the same indictment can be sealed so long as they are not the result of or connected with the same conduct as the conviction.

Student Contributor: Max Londberg