Alright, so we are eighteen days into the New Year and I am guessing most have given up on going to the gym.  I for one decided to forgo saying I was going to start exercising because I just know it won’t happen right now.  It is in the back of my mind and I think about it every time I pass the local gym while driving and eating a Big Mac.  I will eventually get to the gym, but for now I will just enjoy keeping on the extra pounds to fight off the cold temperatures.  That is what I am telling my wife at least.

In the legal world, the New Year means that citizens with a criminal history look to get their criminal records sealed or expunged.  A new year brings with it optimism for a new look on life, and you don’t want that optimism crushed by your criminal record that continues to hold you back!  With that, I begin to get a few phone calls every other day from upright American Citizens looking to get rid of that nasty criminal record.

There are many reasons to get your criminal record sealed or expunged.  The reasons could be for a new job, applying to colleges or graduate school, professional licenses, concealed handgun permit, or you just want the criminal charge off your record.  In any event, I sit down with the client to figure out if they are an eligible offender, and if so, I then explain the process of going about getting their criminal record sealed.

But what if you previously applied to have your criminal record sealed or expunged and the court denied your application?  Can you reapply to have your record sealed or expunged?  And if you do reapply, is there anything that may bar you from having the second application for sealing or expunging your record denied.

The answer to both questions is a simple, YES.  YES you can reapply to have your criminal record sealed and YES there is a legal term that could potentially bar your new application.  This legal term is called res judicata.  This is a Latin term that means “a matter judged.”  In the legal world this means that your legal claim can be barred from being reheard by the court if you already litigated the same claims against the same party.  An illustration might be useful to fully understand res judicata.

During your wild and crazy college days, you and your buddies were walking around campus and acting foolish.  During your foolish endeavors around campus you become drunk and disorderly.  A group of freshmen students, who are studying on a Tuesday night instead of partying like yourself, call the Campus Police on you and your buddies.  The Campus Police stop you and issue you a criminal citation for being drunk and disorderly.  Unfortunately for you though, in what you believed was funny at the time, you begin to antagonize the police officers and started to refer to them as bacon.  Well, that little conversation goes into their report along with the criminal citation.  The following week you go to court and pled guilty as charge.  Court finds you guilty, suspends the jail sentence, and orders fine and court costs.  No big deal and you move on with your life.

A year later you want to get this drunk and disorderly charge removed from your record because you are applying for jobs and you do not want your future employer to know about your college antics.  You file your application to seal your criminal record and you go before the judge.  You are sweating now because it is the same judge who sentenced you and yelled at you when you pled guilty one year ago.  The judge looks at the application, looks at you, looks at the application, then in a very soft voice the judge asks “aren’t you the one who kept referring to the Campus Police as bacon?”

Your face goes white and you know this is not going to end well.  Judge then orders application denied because the government’s interest to retain your criminal record outweighs your interest.  Well that sucks!

Alright, you file a second application to seal your criminal record one year after your first denied application.  Just your luck though, it is the same damn judge who denied your previous application and still has that distaste for you.  This time around he denies it because the prosecutor argues that your second application is barred by res judicata.  The reason why your claim is barred is because you are litigating the same claim of sealing your criminal record, the claim is with the same parties (you and the State), and the claim is before the same court.

This illustration demonstrates how res judicata can bar your second application to seal your criminal record, but don’t let it stop you from applying because there are ways around res judicata!

The Ohio Supreme Court and multiple Ohio Appellate Courts have held that res judicata does not bar a second application to seal a criminal record if there is a change in circumstances.  Well that is great news, but what constitutes a change in circumstances?

The most common example of a change in circumstance as it relates to sealing of criminal record is the change from “First Offender” to “Eligible Offender.”  Under the old expungement law in Ohio, only people who met the definition of First Offender were eligible for an expungement.  A First Offender was a person that had only one conviction.  Under the new expungement law, effective September 28, 2012, an Eligible Offender is a person who “has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction.”

A perfect example of this change is circumstance is in State v. Grillo, 2015-Ohio-308.  In Grillo, Grillo filed applications to seal his criminal record in 2009 and 2010.  Both applications were denied by the trial court.  It is important to note that both of Grillo’s applications were filed when the expungement law stated that a person had to be a First Offender.  In December 2013, Grillo filed a third application to seal his criminal record with the same trial court.  After being denied for the third time, Grillo appealed.

The State’s first argument was that Grillo’s claim is barred by res judicata.  The appellate court found that the expungement statute in effect at the time the application is filed is the statute that controls the court’s ruling.  State v. LaSalle, 2002-Ohio-4009.  The appellate court further found that res judicata applies to successive motions for sealing when there has been no change of circumstances since the filing of the offender’s prior motion.  State v. Haney, 1999 WL 1054840 (Nov. 23, 1999).

The court goes on to state that Grillo filed his previous motions for expungement under the statutory definition of First Offender not Eligible Offender.  The court further stated that Grillo’s third application to seal his criminal record was filed after the Ohio Legislature broadened the definition of an Eligible Offender.  Based on these facts, the court held that “if the expungement statute in effect at the time the application is filed is the statute that controls the court’s ruling, and that statute broadens the class of persons eligible for expungement form the previous version, we find this constitutes a change in circumstances between the prior requests for expungement and the instant application so as to allow a court to consider a subsequent petition and res judicata would not bar its review.”  see Set Products, Inc. v. Bainbridge Twp. Bd. Of Zoning Appeals, 31 Ohio St.3d 260.

Another example of a change in circumstance case that I found is State v. Cope, 111 Ohio App.3d 309 (1996).  In Cope, Cope applied to seal her criminal record for a drug conviction after Governor George Voinovich granted her an unconditional pardon for said drug conviction.  The State raised two arguments against Cope, one being that she was barred because of res judicata.  The court found that being granted an unconditional pardon for a drug conviction was a prime example of a change in circumstance.  Although, technically Cope really would not to seal her drug conviction because the pardon essentially made her conviction go away, but it was a matter of principal I suppose.

Between the two cases, I would say Grillo is more common example of a change in circumstances verses the change in circumstances in Cope.

Looking at both cases, the most important thing to realize is that a change in circumstances allows you to reapply to seal your criminal record without the possibility of being barred by res judicata.  However, this is not an easy task.  Make sure to consult with an attorney to help navigate through any res judicata argument and to help formulate your change in circumstance argument.

In closing, Happy New Year and Happy MLK Day!

I am now going to think about exercising.  Baby steps….can’t rush these things.