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Ohio Supreme Court to Review Effect of Pardon on Criminal Record

The Ohio Supreme Court has agreed to review a case involving the effect of a pardon granted by the Governor.  In particular, the court will address whether a pardon entitles a person to have the record of his or her convictions sealed or expunged.

The case is State v. Boykin, Ohio Supreme Court No. 2012-0808.

The opinion in the court of appeals had held that a court was not required to seal a record.

This case arose because in 1992, Boykin pled guilty to one count of receiving stolen property in a case originating in the Summit County Court of Common Pleas.  In 1992, Boykin 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.

The issue is that, under the relevant statutes, Boykin is not eligible to have her record sealed.  Under Ohio law, a first offender may move to have the record of conviction of eligible offenses sealed.  A defendant who was acquitted, had the case dismissed, or received a grand jury no bill may also seek to have a record sealed.

In a prior case (under a prior but similar statute), Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981) the Ohio Supreme Court had held 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 of appeals concluded that the trial courts have the authority to seal a record after a pardon, but are not required to do so:

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.

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[A] pardoned individual is “a new man” insofar as the restoration of competency and the further imposition of punishment are concerned.  A pardon, so understood, does not wipe away all traces of the criminal case. . . . Despite a pardon, for example, the character of an offense may be relevant for purposes of employment. 

Judge Belfance dissented.  The judge relied upon a contrary opinion in from another district in State v. Cope, 111 Ohio App.3d 309 (1st Dist.1996).  The dissent concluded:  “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.”

In the Supreme Court, Boykin argued that “The sentencing court automatically should seal the pardoned conviction to secure the pardon’s intended purpose. Absent this sealing, the pardoned conviction will remain available to all to view and will result in the recipient continuing to suffer the collateral consequences of the pardoned conviction.”