Ohio’s New Expungement Statute Creates Huge Changes with Your Criminal Record

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On April 4, 2023, Senate Bill 288 took effect in Ohio that changed expungement law. This new law can allow criminal convictions to be sealed or expunged as long as it is within the list of proper convictions and the appropriate amount of time has passed. This new bill, “expands the number of convictions and the types of offenses eligible for either expungement or sealing.” The biggest change is that previous offenders under the old law with only one offense in certain categories would not have an option to seal or expunge their record. However, the new law provides an opportunity for these one-time offenders to have a chance for this new change.

Additionally, there are some offenses that were eligible under the old law that are no longer eligible which include a Misdemeanor of the 4th Degree for Domestic Violence and Violation of a Protection Order.

Another big change between the old law and the new law is that courts no longer use the term “Eligible Offender” when sealing or expunging a case. Eligible Offender under the old law meant “anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.” (You can view the old version of the law by clicking here). Now, each case for sealing or expungement is viewed on a case-by-case basis. The Court will consider the offense involved, weigh the State’s interest against the offender’s case, and view objections by the prosecutor and the victim.

You can view these new changes by clicking to this link to the Ohio Revised Code.

What is the difference between sealing or expunging a criminal record?

When a criminal case is sealed, the public cannot access the record. The record is not destroyed or erased due to certain circumstances with the court accessing the record.

When a criminal case is expunged, the records are permanently destroyed. The case documents can never be accessed again.

What offenses are eligible for sealing or expungement?

Senate Bill 288 has drastically expanded the offenses that can be sealed or expunged. Take a look at the felonies that are not able to be sealed or expunged:

Felonies not eligible for sealing or expungement:

  • First or second-degree felonies
  • Violent offenses
  • Most sexual offensives
  • Domestic violence
  • Violations of protective orders
  • Traffic offenses
  • Most offenses where the victim was under 13 years of age

How long do you have to wait to seal or expungement the record?

Sealing a record will be less overall time then expunging a record, however the timeline does depend on the type of offense. Take a look at these charts to explain the waiting periods:

Hearing Timelines

Senate Bill 288 has a positive impact on creating quick turnarounds for hearings regarding applications to seal or expunge a record. This bill requires that Courts conduct a hearing 45 to 90 days after the application is filed! The applicant must attend the hearing to explain why they want their record sealed or expunged.

Experienced, Trusted and Professional Dayton Criminal Defense Lawyers

Our experienced criminal defense law attorneys at Holzfaster, Cecil. McKnight & Mues understand the subtleties of this change in law. If you have a criminal record that is holding you back from pursuing your dreams, we might be able to assist!

To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to assisting you and answering your questions!

PUBLISHER’S NOTE: I want to thank Anna DiFilippo for the excellent job she did researching and writing this blog article! Anna is externing with Holzfaster, Cecil, McKnight & Mues this semester. She will be graduating from the University of Dayton School of Law in January of 2025. Great job Anna! We are so fortunate to have you as part of our team this semester!

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The Impact of a Misdemeanor Conviction on Second Amendment Rights – The Case of Bryan Range

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Do non-violent misdemeanants infringe upon their Second Amendment rights?

Bryan Range pled guilty in a Pennsylvania federal district court to one charge of making a false statement on an application to receive food stamp assistance in violation of 62 Pa. C.S. § 481(a). Back in 1995, Range was providing financial support for his wife and three children by mowing lawns which earned him around $300 per week. Range’s wife applied for food stamps, but when she submitted the application form, she did not include her husband’s mowing income. Both spouses signed the application. When a government agency discovered the omission, Mr. Range accepted responsibility for the error. Consequently, he faced a first-degree misdemeanor charge that carried a potential sentence of five years imprisonment. As part of his plea agreement, Range received a three-year probation sentence and was required to pay restitution, fines, and costs amounting to nearly $3,000. Range was not informed that he would be ineligible to own a firearm as a result of his sentencing.

At a later point, Mr. Range attempted to purchase a firearm from a licensed dealer but was denied after failing the background check. The dealer informed Range that the denial was likely due to a computer error. A few years later, Range made another attempt to buy a firearm from a local dealer but once again failed the background check. This prompted Range to investigate the matter where he discovered that his misdemeanor conviction barred him from purchasing firearms. In response, Range filed a lawsuit challenging the restriction on his right to bear arms.

Examining Second Amendment Rights and Misdemeanor Convictions under Binder

The United States District Court for the Eastern District of Pennsylvania grappled with an issue that was left open in the landmark case of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.E.2d 637 (2008). In Heller, the Supreme Court concluded that while the Constitution creates an individual right to keep and bear arms apart from any military purposes, States must be free to regulate who can possess firearms based on certain safety concerns. Specifically, the Court discussed longstanding prohibitions on the possession of firearms by felons and the mentally ill. Nonetheless, lower courts have considered whether laws that prohibit the possession of firearms by misdemeanants are also consistent with the Second Amendment.

The District Court first considered whether Mr. Range’s conduct was sufficiently “serious” for Range to lose his Second Amendment rights. Binderup v. Attorney General of the United States of America, 836 F.3d 336, 345 (citing United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010)). Then, if it finds that the Second Amendment is implicated, it will consider whether the Government has carried its burden of demonstrating that the regulation satisfies heightened scrutiny. Binderup, 836 F.3d at 347.

In determining whether the Second Amendment is implicated, the District Court began and ended its analysis at the first step by looking to a factor test for determining whether the crime is “serious”: (1) whether the conviction was classified as a misdemeanor or a felony; (2) whether the criminal offense involves violence or attempted violence as an element; (3) the sentence imposed; (4) whether there is a cross-jurisdictional consensus as to the seriousness of the crime; and (5) the potential for physical harm to others. Binderup, 836 F.3d at 336.

The Government conceded that Range satisfied four out of the five factors. His conviction was classified as a misdemeanor, the criminal offense does not involve violence or attempted violence as an element, he was not sentenced to any jail time, and the crime involved no potential for physical harm to others. However, the Court concluded that there is a cross-jurisdictional consensus that making a false statement regarding food stamps is serious. Because the Government prevailed in finding that Range’s conduct was sufficiently serious for Range to lose his Second Amendment rights, the Court did not find it necessary to proceed to the second step to consider whether the Government has produced sufficient evidence to withstand heightened scrutiny.

Third Circuit Court Upholds Second Amendment Rights for Non-Violent Misdemeanants

Range timely appealed, and while his appeal was pending, the Supreme Court decided Bruen which rejected the two-step approach as “one step too many.” See New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022). After Bruen, courts must determine whether the text of the Second Amendment applies to a person and his proposed conduct. If it does, the Government now bears the burden of affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. Specifically, here, the Government bears the burden of showing that Range’s conviction places him outside the class of people traditionally entitled to Second Amendment rights.

In the Third Circuit Court of Appeals, the Government contends that the Second Amendment does not apply to Range because the right to bear arms has historically been extended to the political community of law abiding, responsible citizens. However, the Court ultimately rules in favor of Range, stating that the term “the people” as referred to throughout the Constitution unambiguously refers to all members of the political community, without any specific subset being excluded. Thus, Bryan Range remains among “the people” despite his 1995 false statement conviction.

Because Range and his proposed conduct are protected, the Court went on to consider whether the Government can strip him of his right to keep and bear arms. Since the Government failed to fulfill its obligation of providing that the statute, as applied to Range, aligns with the historical tradition of firearm regulation in the United States, Bryan Range cannot be deprived of his Second Amendment right to possess a firearm.

How Will This Decision Impact Other Circuits?

In the aftermath of Bruen, it is likely Circuit Courts will encounter factually analogous situations. It is plausible that other Circuits will adopt the Third Circuit’s approach, recognizing that limitations on firearms for non-violent misdemeanors infringes upon an individual’s Second Amendment rights. It is important to note that the Third Circuit is not binding on Ohio state courts. Currently in Ohio the following people may not own or possess a firearm:

  • A fugitive from justice;
  • A person who is under indictment for or has been convicted of any violent felony offense or has been adjudicated a delinquent child for an offense that would have been a violent felony offense if committed by an adult;
  • A person who is under indictment for or has been convicted of any felony drug offense or has been adjudicated a delinquent child for a drug offense that would have been a felony if committed by an adult;
  • A person who is drug dependent, in danger of drug dependence, or a chronic alcoholic;
  • A person who is under adjudication of mental incompetence has been adjudicated as a mental defective, has been committed to a mental institution, has been found by a court to be a mentally ill person subject to a court order, or is an involuntary patient other than one who is a patient only for purposes of observation.

As of June 2023, the Sixth Circuit (ruling on Ohio cases) has yet to adopt the approach of the Third Circuit and still holds that the limitation on non-violent misdemeanants does not infringe upon their Second Amendment rights.

You can read the case of Range v. AG United States here.

PUBLISHER’S NOTE: I want to thank McKenna Hinkebein for the excellent job she did researching and writing this blog article! McKenna is externing with Holzfaster, Cecil, McKnight & Mues this semester. She will be graduating from the University of Dayton School of Law in May of 2024. Great job McKenna! We are so fortunate to have you as part of our team this semester!

Recent Ohio Supreme Court Decision Broadens Ohioans’ Rights from Warrantless Police Searches

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Major Win For Ohioans, Ohio Supreme Court Rules On Protection of Privacy

On June 28, 2022 the Ohio Supreme Court released their majority opinion with an unanimous 7-0 decision, on the case of Ohio v. Burroughs. Click here to read the decision. The case involved police officers arriving at the defendant’s household to execute an arrest warrant. Soon after, Police Officers forcefully entered the household when they believed the destruction of evidence was underway. Once the defendant was arrested and detained, the police conducted a protective sweep of the premises. During this sweep an officer found a book bag and opened it to search for weapons, instead a bag of marijuana was recovered.

At trial, the prosecution was able to overcome the defense’s motion to suppress and introduce the recovered contents of the book bag into the record. The court rejected the defendant’s argument that the opening of the backpack was a violation of her 4th amendment right of protection against warrantless searches. The lower courts agreed with the prosecutor’s argument that no warrant was needed under the constitution because of the single-purpose-container exception.

The Ohio Supreme Court rejected the use of the single use exception in this scenario. The single use exception has been sparingly applied where the container itself speaks for content’s inside. Meaning a police officer just by looking at the object, could conclude what’s inside of it. Some examples of this exception hypothetically could be: a gun holster, a pack of cigarettes, a tuba case. No warrants are needed in cases involving these types of items because there is no privacy to protect due to the fact the object already showed itself by the container. The Ohio Supreme Court ruled that the book bag that was searched, could have contained anything.

Privacy Of Book Bag Contents

This was displayed by the fact that from officer’s plain view of the book bag, he could not have reasonably determined that anything inside of the bag was illegal. So by this fact, the book bag did not meet the criteria of the single-purpose container exception. Even furthering the defense’s case the court reasoned that, a book bag, does not let someone know what is inside of a book bag just because it’s a book bag. Therefore the defendant was entitled to the protection of privacy of the contents of the book bag which could have only been overcome by a warrant.

The Ohio Supreme Court not deciding with The State is a major win for Ohioans. If the Court would have accepted their argument that the “totality of the circumstances” must be taken into account when an officer is trying to determine what’s in the bag. Then the rule, a warrant is required to search a seized item, is no longer The Rule.

Publisher’s Note:

I want to thank our new law clerk at HCM&M, Connor Zamilski, for his assistance in writing this post! Well done, Connor!

We are experienced Dayton traffic and criminal defense lawyers

Our experienced Dayton traffic and criminal defense lawyers at Holzfaster, Cecil, McKnight & Mues are here for you. We can assist you with better understanding of possible defenses to any criminal action! To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!

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PROFANE OUTBURSTS ARE NOT BASIS FOR ADDITIONAL PRISON TIME ACCORDING TO THE OHIO SUPREME COURT

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Why A Ohio Trial Court Cannot Sentence Someone To More Time Based on Outbursts

In March 2019, a Lake County trial court handed down a 22-year sentence to Manson Bryant for his involvement in an armed burglary of an occupied trailer home. Bryant’s response to the sentence made national news when he uttered a variety of profanities and called the trial judge a racist. Because of Bryant’s outburst, the trial judge added six additional years to Bryant’s sentence for a total of 28 years behind bars. However, on June 7, 2022, the Ohio Supreme Court determined that the trial judge could not increase Bryant’s sentence merely because of his reaction to the sentence. Click here to read the full case.

The Facts:

In October 2018, a Lake County grand jury indicted Manson Bryant for seven criminal counts relating to his involvement in the armed burglary of the occupied trailer home. Bryant pleaded not guilty to all counts and the matter proceeded to trial. Bryant was found guilty on all counts.

On March 1, 2019, some of Bryant’s counts were merged, such that Bryant was charged, and sentenced for Count One, aggravated burglary; Count Three, aggravated robbery; Count Six, having weapons while under a disability; and Count Seven, carrying concealed weapons.

At his sentencing hearing, Bryant’s attorney reminded the court that Bryant merely aided and abetted the co-defendant in the commission of the offense. Since Bryant’s co-defendant received only 12 years for the crimes, Bryant’s attorney requested that Bryant receive 10 years in prison for his participation in the crime.

Manson Bryant then addressed the court and requested leniency. He indicated that his drug addiction is the instigator of many of his poor decisions. However, Bryant told the court that he respected the jury’s decision and would respect whatever sentence the judge handed down.

After the State requested that Bryant receive a 20-year sentence, the judge handed down a sentence of 22 years. As the judge finished announcing the sentence, Bryant called the judge a variety of profanities and called the judge racist. The judge then stated that he was mistaken to believe that Bryant was remorseful for his crimes and tacked on an additional 6 years to Bryant’s sentence for a total of 28 years in prison. On March 4, 2019, approximately 3 days after Bryant’s sentencing hearing, the sentencing judgment was journalized.

Bryant’s Appeal to the Eleventh District Court of Appeals:

In his appeal to the Eleventh District Court of Appeals, Manson Bryant argued that the trial court should not have added six additional years to his sentence. While Bryant acknowledged that he could have received contempt charges for his outburst, he argued that his profane outburst did not indicate that he was not remorseful for his crimes.

The Eleventh District Court of Appeals relied heavily on State v. Thompson, 11th Dist. Lake No. 2017-Ohio-1001. In Thompson, the trial court added time to a defendant’s sentence after an emotional outburst. Since the sentence had not been officially journalized, the trial court could add time to a defendant’s sentence.

Additionally, the Eleventh District noted that Bryant’s outburst merely demonstrated that his statements at his sentencing were not genuine. However, the outburst did not indicate that he was not remorseful for the crimes he helped commit. Thus, the Eleventh District affirmed Bryant’s conviction and sentence. Bryant then filed a pro se appeal to the Supreme Court of Ohio.

The Main Issue before the Supreme Court of Ohio:

The main issue before the Supreme Court of Ohio was whether Bryant’s outburst warrants adding prison time to a defendant’s sentence under R.C. 2929.11 and 2929.12.

The Supreme Court of Ohio’s Holding:

The Supreme Court determined that Bryant’s outburst did not warrant adding prison time to his sentence. While the court recognized that Bryant’s outburst was certainly disrespectful to the trial court, the court indicated that his outburst was merely a reaction to the sentence and nothing more. Since the statements did not relate to the crime committed or the victims involved, the statements could not be construed as demonstrating a lack of remorse.

Further, the Supreme Court of Ohio questioned the trial judge’s motives in sentencing Bryant for the additional six years. While the Supreme Court noted that the trial court is not required to explain their findings, such a severe addition to Bryant’s sentence should have been explained by the trial judge. Particularly, the judge should have explained why Bryant’s outburst made him believe that Bryant no longer showed remorse for his crimes.

Additionally, the Supreme Court of Ohio noted the incongruity between the trial court’s findings before and after Bryant’s outburst. Before Bryant’s profane outburst, the trial court acknowledged that Bryant exhibited remorse for his crimes. After his outburst, the trial court determined that Bryant showed no remorse. This immediate switch in the trial court’s belief of the defendant’s remorsefulness concerned the Supreme Court of Ohio. As the Supreme Court of Ohio noted, an examination of Bryant’s statements during his outburst demonstrate that he still exhibited the same level of remorsefulness.

The Supreme Court of Ohio thus determined that Bryant’s statements were merely disruptive and disrespectful. Since these kinds of statements are not sentencing factors for the trial court to consider under R.C. 2929.11 and 2929.12, the six-year increase to Bryant’s sentence was contrary to law. Therefore, the Supreme Court of Ohio reversed Bryant’s sentence to the originally imposed sentence of 22 years.

The Dissent:

Justice Kennedy’s dissent indicates that a defendant’s outburst, depending on the type of outburst, should be considered when determining whether a defendant is genuinely remorseful or not. When Bryant’s remorsefulness was considered, the trial court had not made its final order. Thus, the trial court had authority to modify the sentence.

Further, Justice Kennedy indicated that the Supreme Court of Ohio should not even be reviewing this case. In his dissenting opinion, Justice Kennedy cites State v. Jones. In Jones, the Supreme Court of Ohio determined that an appellate court is prohibited from modifying or vacating a sentence “based on a lack of support in the record for the trial court’s findings under R.C. 2929.11 and 2929.12.” State v. Bryant, Slip Opinion No. 2022-Ohio-1878 ¶ 19. Since the Supreme Court of Ohio is essentially required to evaluate the trial court’s findings under R.C. 2929.11 and 2929.12, Justice Kennedy argued that the Supreme Court of Ohio ruled contrary to the Jones decision.

The Implications:

Overall, the Supreme Court of Ohio’s recent decision indicates that a defendant cannot be punished with additional prison time for a profane outburst in response to a sentence. Additionally, the holding indicates that a profane outburst cannot be considered as a lack of remorse for a crime committed. While such outbursts are certainly not encouraged and might still be grounds for a contempt charge, a trial court cannot sentence someone to more time based on these outbursts.

PUBLISHER’S NOTE: I want to thank our Summer law extern Mackenzie Reiber for writing this blog post! Well done Mack! Mackenzie is now back at the University of Dayton School of Law and will be graduating law school in May of 2023. We will all miss you!

We are experienced Dayton traffic and criminal defense lawyers

Our experienced Dayton traffic and criminal defense lawyers at Holzfaster, Cecil, McKnight & Mues are here for you. We can assist you with better understanding of possible defenses to any criminal action! To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!

Tell Us About Your Case.

Future of Traffic Cameras in Ohio

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Dayton Continues To Employ Traffic Cameras Despite Ohio Supreme Court Decision

Citations generated from traffic cameras tend to be a nuisance for most drivers. However, the Ohio Supreme Court’s recent decision now makes traffic-camera citations a nuisance for local governments. On May 19, 2022, the Ohio Supreme Court unanimously upheld a 2019 state law that reduces state funding to municipalities with traffic-cameras based on the revenues received from the citations. Click here to read the case.

The Facts:

On July 3, 2019, the Ohio General Assembly enacted R.C. 5747.502(B), which requires municipalities to report to the tax commissioner the fines collected from traffic cameras by July 31 of each year. Once these revenues are reported, the tax commissioner reduces a municipalities state funding based off the revenues generated from these traffic-camera citations. See. C. 5747.502(A)(6) and (C). Additionally, municipalities are required to pay for the costs and fees associated with the traffic-camera citations, unless these citations are generated from traffic violations in school zones. See .C. 4511.099(A).

Newburgh Heights is located in East Cleveland and employs traffic cameras to enforce traffic laws. After the passage of the 2019 law, Newburgh Heights filed for a declaratory judgment and injunctive relief. Further, Newburgh Heights argued that the 2019 law violated the municipal-home-rule powers in Article XVIII, Section 3 of the Ohio Constitution.

The Home Rule Amendment:

So what is the Home Rule Amendment? Essentially, the Home Rule Amendment grants municipalities (1) sovereignty and (2) self-sufficiency. First, the Home Rule Amendment grants municipalities full power over all matters relating to the local government. Second, this Amendment to the Ohio Constitution gives municipalities the power to levy taxes and raise revenue through other means.

The Issues Presented to the Ohio Supreme Court:

The Ohio Supreme Court was tasked with answering the two following questions:

  1. Does the Home Rule Amendment prohibit legislation that reduces a municipality’s state funding by the revenues generated from traffic-camera citations?
  2. Is a municipality required to cover the costs and fees from the civil actions commenced by the traffic cameras?

The Holding:

Regarding the first issue, the Ohio Supreme Court held that the 2019 law does not conflict with the Home Rule Amendment. The 2019 law does not outright prohibit municipalities from using traffic cameras to regulate traffic. While the 2019 law might ultimately discourage use of traffic cameras, the Court reasons that the 2019 law “may disincentivize municipalities from adopting or continuing to use traffic cameras, but it does not forbid what municipal law permits any more than the creation of a financial incentive to adopt the use of traffic cameras would require a municipality to do what its own laws proscribe.” See Newburgh Hts. v. State, Slip Opinion No. 2022-Ohio-1642 at ¶ 30. Therefore, the 2019 law does not conflict with a municipality’s sovereignty granted by the Home Rule Amendment.

As to the second issue, the Ohio Supreme Court held that a municipality’s payment of cost and fees associated with the traffic tickets does not violate the Home Rule Amendment. As the Court reasoned, the General Assembly granted municipalities jurisdiction to litigate violations of traffic laws or city ordinances. Since private litigants must pay costs and fees associated with their litigation, municipalities must also do the same. While it may be costly for the municipalities to pay these costs and fees, this provision does not violate the Home Rule Amendment because the General Assembly is not outright directing municipalities to remove their traffic cameras. Thus, this provision does not interfere with a municipality’s self-sufficiency.

The Implications:

Does the Ohio Supreme Court’s decision abolish traffic cameras? Unfortunately, that answer is no. Instead, the Ohio Supreme Court’s opinion simply means that municipalities will just have to cut their losses if they want to continue to utilize traffic cameras.

However, steps are being taken by local governments to get rid of traffic cameras. For example, Columbus has completely removed traffic cameras. Cleveland has voted to remove the traffic cameras as well. On the other hand, Dayton continues to employ traffic cameras, and will for the foreseeable future. Only time will tell whether the Ohio Supreme Court’s upholding of the 2019 law will completely discourage use of traffic cameras altogether.

Our experienced Dayton traffic and criminal defense lawyers at Holzfaster, Cecil, McKnight & Mues are here for you. We can assist you with better understanding of possible defenses to any criminal action! To learn more, please go to our website at www.hcmmlaw.com or call us at 937 293-2141. We can schedule an in-person conference or one by phone or Zoom. We look forward to helping you!

PUBLISHER’S NOTE: I want to thank Mackenzie Reiber who just started externing with our firm for the Summer. Mackenzie is a second year law student at the University of Dayton School of Law. She will be graduating in May of 2023. Thanks for the great job on this blog Mackenzie!