During oral arguments, one of the greatest feelings an attorney will experience is when opposing counsel is making an elongated argument and starts to make arguments contra to a statute or well established case law. This attorney’s ears will perk up and will fight the urge to just jump right in and explain how opposing counsel is completely wrong. This attorney just waits like a lion waiting to pounce on its helpless prey. Then the moment comes where the attorney gets to open a can of whoop-ass on opposing counsel. It is a tremendous feeling.
This feeling might have been felt in State v. Zollinger, 2016-Ohio-8399. But instead of counsel vs. counsel, this was counsel vs. trial court.
In Zollinger, Zollinger was indicted on several counts of sexual battery and was later charged by way of bill of information with two counts of attempted tampering with evidence. Pursuant to a plea agreement, Zollinger would plead guilty to the attempted tampering counts in exchange for the State dismissing the sexual battery indictment.
On January 21, 2011, Zollinger pled guilty to the attempted tampering case and was sentenced to community control, with ninety days in local jail. The sexual battery indictment was dismissed with prejudice.
On October 12, 2015, Zollinger filed a “motion to seal record after dismissal” for his sexual battery case pursuant to R.C. 2953.52 and filed a motion to seal his attempted tampering record.
On December 23, 2015, the trial court conducted a hearing, noting that it was not in possession of the post-dismissal motion to seal indictment in the sexual battery case, and that it would therefore only consider the motion to seal conviction under the attempted tampering case.
On January 4, 2016, the trial court issued its decision via a judgment entry and granted Zollinger’s motion to seal his attempted tampering record. In a separate judgment entry, the trial court noted that it obtained and reviewed the motion to seal the dismissed sexual battery offense, but nevertheless, overruled Zollinger’s motion to seal his dismissed sexual battery case.
The trial court reasoned the following:
“Unlike statutes governing a motion to seal the record of a conviction, there is no statutory procedure for sealing a record after the dismissal of a case. However, courts have inherent authority to grant the request in appropriate circumstances.
***
The dismissal of this case resulted from a plea agreement in which (a) the defendant admitted guilt for sexual battery offenses in this case, and (b) the state agreed to accept guilty pleas in the attempted tampering case in lieu of its further prosecution of this case. To the extent that the court has any legislative guidance for a motion to seal a dismissal record, R.C. 2953.36(B) (Sealing of Record of Conviction Exceptions), precludes a motion to seal the record for a sexual battery conviction.”
Given that the trial court was completely wrong, Zollinger filed a timely appeal.
The appellate court stated that R.C. 2953.52 governs applications to seal records where either the underlying charges have been dismissed or the individual was found not guilty. State ex rel. Cincinnati Enquirer v. Lyons, 2014-Ohio-2354. R.C. 2953.52 directs the trial court to “weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records. R.C. 2953.52(B)(2)(d).
The appellate court found that the trial court concluded that because the sexual battery case involved sex offenses, expungement of the indictment was not permitted pursuant to another statute, namely R.C. 2953.36. This interpretation of the law was erroneous, as the appellate court clearly points out that R.C. 2953.36 is for types of convictions that preclude sealing. Zollinger was never convicted of any sexual offense.
Based on the circumstances, the appellate court held that since the trial court failed to hold a specific hearing under R.C. 2953.52(B) and that the trial court improperly applied R.C. 2953.36 to block appellant’s request to seal the dismissed indictment, the trial court’s decision was reversed and remanded for further proceedings.
Boom-Shakalaka! Boom-Shakalaka! Boom-Shakalaka! BOOM!
Great case and great example of making sure you cover your bases before putting forth an argument.
Ohio Criminal Defense Law Blog 