State v. Niesen-Pennycuff , 132 Ohio St. 3d 416 ( 2012 )


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  • [Cite as State v. Niesen-Pennycuff, 
    132 Ohio St.3d 416
    , 
    2012-Ohio-2730
    .]
    THE STATE OF OHIO, APPELLEE, v. NIESEN-PENNYCUFF, APPELLANT.
    [Cite as State v. Niesen-Pennycuff, 
    132 Ohio St.3d 416
    , 
    2012-Ohio-2730
    .]
    Criminal law—Intervention in lieu of conviction—R.C. 2951.041—Trial court has
    discretion to employ R.C. 2953.52(A)(1) and determine that defendant
    may have record sealed immediately upon successful completion of
    intervention program.
    (No. 2011-1070—Submitted February 8, 2012—Decided June 21, 2012.)
    APPEAL from the Court of Appeals for Warren County,
    No. CA2010-11-112, 
    2011-Ohio-2704
    .
    __________________
    SYLLABUS OF THE COURT
    When a defendant who has successfully completed a program of intervention in
    lieu of conviction moves for an order sealing his or her record under R.C.
    2951.041(E), the trial court has discretion either to grant the motion
    immediately under R.C. 2953.52(A)(1) or to impose the waiting period set
    forth in R.C. 2953.32(A)(1). (R.C. 2951.041(E), construed.)
    __________________
    LUNDBERG STRATTON, J.
    {¶ 1} Today we are called upon to interpret R.C. 2951.041(E), a
    provision of the statute governing intervention in lieu of conviction (“ILC”).
    Specifically, we are asked to establish the scope of a trial court’s discretion to seal
    the record of a defendant who has successfully completed the ILC program. For
    the reasons that follow, we hold that a trial court has discretion to determine that
    successful completion of the ILC program entitles the defendant to immediate
    sealing of his or her record under R.C. 2953.52(A)(1) or to impose the waiting
    SUPREME COURT OF OHIO
    period set forth in R.C. 2953.32(A)(1). Therefore, we reverse the judgment of the
    court of appeals and remand the matter to the trial court.
    Facts and Procedural History
    {¶ 2} On April 21, 2009, appellant, Regina Niesen-Pennycuff, was
    indicted on 12 counts of deception to obtain a dangerous drug, in violation of R.C.
    2925.22(A), felonies of the fifth degree. Niesen-Pennycuff initially pled not
    guilty, but later moved for ILC pursuant to R.C. 2951.041. The trial court found
    that she was eligible for intervention and ordered an intervention plan.         As
    required by the ILC statute, Niesen-Pennycuff retracted her initial plea, pled
    guilty to the charges, pending successful completion of her intervention program,
    and was placed on community control for three years.
    {¶ 3} On August 24, 2010, the court filed a termination entry in which it
    recognized Niesen-Pennycuff’s successful completion of the intervention program
    and thereby dismissed the 12 pending charges against her. On September 23,
    2010, Niesen-Pennycuff filed an application for sealing of her record after
    dismissal of the proceedings. The state opposed the application and argued that
    Niesen-Pennycuff was ineligible to have her record sealed until three years after
    the dismissal of the charges against her, or August 24, 2013. The trial court
    agreed and denied Niesen-Pennycuff’s application, but invited her to reapply in
    2013.
    {¶ 4} Niesen-Pennycuff appealed, and the Warren County Court of
    Appeals affirmed the judgment of the trial court but sua sponte certified its
    decision as in conflict with the Ninth District Court of Appeals’ decision in State
    v. Fortado, 
    108 Ohio App.3d 706
    , 
    671 N.E.2d 622
     (9th Dist.1996). State v.
    Niesen-Pennycuff, 12th Dist. No. CA2010-11-112, 
    2011-Ohio-2704
    .
    {¶ 5} Niesen-Pennycuff filed a notice of certification of conflict, and this
    court granted discretionary review and certified a conflict on the following issue:
    2
    January Term, 2012
    Must a trial court order the sealing of records in the manner
    provided in R.C. 2953.32, which requires a one-year waiting
    period for misdemeanors and a three-year waiting period for
    felonies, or may the trial court employ R.C. 2953.52(A)(1) and
    determine that a defendant who has successfully completed the
    intervention in lieu of conviction program is eligible to have their
    record sealed immediately upon successful completion of the
    program?
    State v. Niesen-Pennycuff, 
    129 Ohio St.3d 1473
    , 
    2011-Ohio-4751
    , 
    953 N.E.2d 840
    .
    Law and Analysis
    {¶ 6} Intervention in lieu of conviction is established in R.C. 2951.041,
    and pursuant to R.C. 2951.041(A)(1),
    If an offender is charged with a criminal offense * * * and
    the court has reason to believe that drug or alcohol usage by the
    offender was a factor leading to the criminal offense with which
    the offender is charged * * *, the court may accept, prior to the
    entry of a guilty plea, the offender’s request for intervention in lieu
    of conviction.
    {¶ 7} As we held in State v. Massien, 
    125 Ohio St.3d 204
    , 2010-Ohio-
    1864, 
    926 N.E.2d 1282
    ,
    ILC is a statutory creation that allows a trial court to stay a
    criminal proceeding and order an offender to a period of
    rehabilitation if the court has reason to believe that drug or alcohol
    3
    SUPREME COURT OF OHIO
    usage was a factor leading to the offense. R.C. 2951.041(A)(1).
    ***
    “In enacting R.C. 2951.041, the legislature made a
    determination that when chemical abuse is the cause or at least a
    precipitating factor in the commission of a crime, it may be more
    beneficial to the individual and the community as a whole to treat
    the cause rather than punish the crime.” State v. Shoaf (2000), 
    140 Ohio App.3d 75
    , 77, 
    746 N.E.2d 674
    . * * * [For that reason,] ILC
    is not designed as punishment, but rather as an opportunity for
    first-time offenders to receive help for their dependence without
    the ramifications of a felony conviction.          State v. Ingram,
    Cuyahoga App. No. 84925, 
    2005-Ohio-1967
    , 
    2005 WL 977820
    ,
    ¶ 13.
    Id. at ¶ 9-10.
    {¶ 8} The section of the ILC statute that deals with the sealing of
    records, R.C. 2951.041(E), provides:
    If the court grants an offender’s request for intervention in
    lieu of conviction and the court finds that the offender has
    successfully completed the intervention plan for the offender, * * *
    the court shall dismiss the proceedings against the offender.
    Successful completion of the intervention plan and period of
    abstinence under this section shall be without adjudication of guilt
    and is not a criminal conviction for purposes of any
    disqualification or disability imposed by law and upon conviction
    of a crime, and the court may order the sealing of records related to
    4
    January Term, 2012
    the offense in question in the manner provided in sections 2953.31
    to 2953.36 of the Revised Code.
    {¶ 9} The state argues that the statute’s reference to R.C. 2953.31 to
    2953.36 means that the sealing of records in ILC is governed by R.C.
    2953.32(A)(1), which requires a three-year waiting period before a defendant may
    move for an order sealing the record. However, R.C. 2953.31 to 2953.36 govern
    the sealing of an individual’s record following the conviction of a crime. See,
    e.g., R.C. 2953.32(A)(1) (“a first offender may apply to the sentencing court if
    convicted * * * for the sealing of the conviction record”). That subsection further
    provides that “[a]pplication may be made at the expiration of three years after the
    offender’s final discharge if convicted of a felony, or at the expiration of one year
    after the offender’s final discharge if convicted of a misdemeanor.” (Emphasis
    added.) But in an ILC case, an offender who has successfully completed ILC has
    no conviction.
    {¶ 10} Niesen-Pennycuff urges us to refer instead to R.C. 2953.52, which
    governs the sealing of a record after the dismissal of a case. Under that statute,
    any person who is found not guilty of an offense or whose complaint, indictment,
    or information was dismissed may apply for an order to seal related records any
    time after the not-guilty finding or dismissal is entered. R.C. 2953.52(A)(1).
    {¶ 11} Thus, whether Niesen-Pennycuff is eligible to have her record
    sealed immediately or whether she has to wait for the period specified in R.C.
    2953.52 depends on the meaning of the phrase in R.C. 2951.041(E) that the court
    “may order the sealing of records related to the offense in question in the manner
    provided in sections 2953.31 to 2953.36 of the Revised Code.”
    {¶ 12} In this case, the trial court denied Niesen-Pennycuff’s application
    for sealing of her record after dismissal of the proceedings, but invited her to
    reapply in 2013, when the trial court thought she would be eligible. The court of
    5
    SUPREME COURT OF OHIO
    appeals affirmed the judgment of the trial court, holding that the language of R.C.
    2951.041(E) requires a court to follow the provisions in R.C. 2953.31 through
    2953.36 rather than R.C. 2953.52(A)(1). The court of appeals also sua sponte
    certified a conflict between its holding in this case and the holding of the Ninth
    District Court of Appeals in Fortado, 
    108 Ohio App.3d 706
    , 
    671 N.E.2d 622
    .
    {¶ 13} We disagree with the approach taken by the appellate court below
    as well as the approach taken in Fortado and instead hold that (1) R.C.
    2951.041(E)’s use of the phrase “in the manner provided in” R.C. 2953.31 to
    2953.36 does not connote a legislative intent that the court must comply with
    those statutes and (2) the use of the word “may” in R.C. 2951.041(E) allows trial
    courts the discretion to apply—or not apply—the statutes from R.C. Chapter
    2953.
    {¶ 14} The Twelfth District below took the approach that under the plain
    language of R.C. 2951.041(E), R.C. 2953.31 to 2953.36 govern the sealing of the
    defendant’s record after his or her case is dismissed following successful
    completion of ILC. Thus, under R.C. 2953.32(A)(1), Niesen-Pennycuff must wait
    three years before applying for the sealing of her records. But this approach
    thwarts the legislative intent behind ILC. As we have said, R.C. 2951.041 was
    designed to eliminate punishment by offering first-time offenders an opportunity
    to receive help for their dependence without the ramifications of a felony
    conviction. Massien, 
    125 Ohio St.3d 204
    , 
    2010-Ohio-1864
    , 
    926 N.E.2d 1282
    ,
    ¶ 10.
    {¶ 15} It is unreasonable, therefore, to view R.C. 2951.041(E)’s reference
    to R.C. 2953.31 to 2953.36 as imposing a requirement that ILC defendants must
    carry a criminal record for three years after the charges have been dismissed due
    to successful completion of the ILC program.
    {¶ 16} In the conflict case, State v. Fortado, 
    108 Ohio App.3d 706
    , 
    671 N.E.2d 622
    , the defendant successfully completed ILC, and the trial court
    6
    January Term, 2012
    dismissed the charges. The defendant then moved the court for an order sealing
    the record pursuant to R.C. 2953.52(A)(1) rather than R.C. 2951.041(E). The
    court granted the motion. The state appealed, arguing that R.C. 2953.32(A)(1)
    requires a defendant to wait three years before requesting that his records be
    sealed.
    {¶ 17} The Fortado court held that the trial court had not erred in granting
    the motion before three years had passed, because the indictments had been
    dismissed, and R.C. 2953.52(A)(1) applies generally to dismissals. The court
    quoted R.C. 2951.041 but did not apply it or comment on it.
    {¶ 18} We are persuaded by the rationale advanced in State v. Smith, 3d
    Dist. No. 9-04-05, 
    2004-Ohio-6668
    . Although the issue in Smith is somewhat
    different from the issue here, the analysis contains certain insights that we find
    relevant. In upholding the trial court’s sua sponte order relating to the records of
    the dismissed charges, the court noted that based on R.C. 2951.041(E),
    the trial court has the authority to seal the record of an offender
    who has successfully completed an intervention program and
    against whom proceedings have been dismissed. Based on the
    language of R.C. 2951.041(E) that the court may order the records
    sealed in the “manner provided” by the expungement statutes,
    * * * we find that the legislature intended the trial court to have the
    authority to order the records sealed even without an application by
    the offender.
    Id. at ¶ 22.
    {¶ 19} We believe that the Smith court’s observation about the language
    of R.C. 2951.041(E) is correct. R.C. 2951.041(E) employs the unusual phrase “in
    the manner provided in” rather than “pursuant to.” According to Black’s Law
    7
    SUPREME COURT OF OHIO
    Dictionary, “pursuant to” means “[i]n compliance with; in accordance with; * * *
    [a]s authorized by; under.” Black’s Law Dictionary 1356 (9th Ed.2009). “In the
    manner provided in” does not connote such rigid compliance. “Manner” is
    defined as “the mode or method in which something is done or happens: a mode
    of procedure or way of acting.” Webster’s Third New International Dictionary
    1376 (1986).
    {¶ 20} We conclude that R.C. 2951.041(E)’s use of the phrase “in the
    manner provided in” signifies that R.C. 2951.041(E) was not intended to impose
    on ILC defendants all the requirements and limitations of R.C. 2953.31 to
    2953.36. The phrase “in the manner provided in” is less prescriptive and more in
    the nature of guidance than a command. It connotes only the “mode or method,”
    i.e., the general procedure provided in those statutes.
    {¶ 21} Thus, R.C. 2951.041(E)’s reference to R.C. 2953.31 to 2953.36 is
    meant to incorporate the general procedures for filing an application to seal. It is
    not meant to impose on all ILC defendants the requirements and limitations
    imposed by those statutes on convicted persons. For example, a court in an ILC
    case may be guided by the procedures set out in R.C. 2953.32, such as the
    procedures for setting a hearing, notifying the prosecutor, making the findings
    described in subdivision (C)(1), determining forfeiture of bail, determining
    whether criminal proceedings are pending against the applicant, etc.
    {¶ 22} In sum, trial courts may refer to R.C. 2953.31 to 2953.36 for
    guidance in matters of procedure but are not bound to follow those provisions.
    Thus, a trial court may be guided by R.C. 2953.32(A)(1) and, in its discretion,
    impose a waiting period before granting a motion to seal under R.C. 2951.041(E).
    This reading further comports with the use of the permissive word “may” in R.C.
    2951.041(E): “the court may order the sealing of records related to the offense in
    question in the manner provided in sections 2953.31 to 2953.36 of the Revised
    Code.” Had the legislature intended to impose the requirements and limitations of
    8
    January Term, 2012
    those statutes on every ILC defendant, it would have used the word “shall.”
    Finally, this reading is in line with the remedial purpose of ILC without rendering
    the phrase “in the manner provided in” superfluous or meaningless.
    {¶ 23} As the Fourth District noted in State v. Mills, 4th Dist. No.
    10CA3144, 
    2011-Ohio-377
    , “the process for sealing criminal records does not
    always fit neatly within the treatment-in-lieu-of-conviction statute.” Id. at ¶ 10.
    The court went on to note that it had interpreted any inherent ambiguities in the
    defendant’s favor because we “ ‘must liberally construe [R.C. 2953.31-36] so as
    to promote the legislative purpose of allowing expungements.’ ” (Brackets sic.)
    Id., quoting State v. Hilbert, 
    145 Ohio App.3d 824
    , 827, 
    764 N.E.2d 1064
     (8th
    Dist.2001). We agree. Thus, we conclude that the trial court has discretion to
    seal the record of a case that was dismissed following successful completion of
    ILC without a waiting period.
    Conclusion
    {¶ 24} Treating all ILC defendants as though they have been convicted of
    a crime when their charges have been dismissed pursuant to a program designed
    to avoid the very ramifications of a conviction would run counter to the purpose
    of ILC.    Accordingly, we hold that when a defendant who has successfully
    completed a program of intervention in lieu of conviction moves for an order
    sealing his or her record under R.C. 2951.041(E), the trial court has discretion
    either to grant the motion immediately under R.C. 2953.52(A)(1) or to impose the
    waiting period set forth in R.C. 2953.32(A)(1).
    {¶ 25} Therefore, we reverse the judgment of the court of appeals and
    remand the cause to the trial court for proceedings consistent with this opinion.
    Judgment reversed
    and cause remanded.
    O’CONNOR, C.J., and PFEIFER, O’DONNELL, CUPP, and MCGEE BROWN,
    JJ., concur.
    9
    SUPREME COURT OF OHIO
    LANZINGER, J., concurs in judgment only.
    __________________
    O’DONNELL, J., concurring.
    {¶ 26} I concur in the majority’s holding that R.C. 2951.041(E) confers
    discretion upon courts to seal the records of defendants who successfully
    complete intervention in lieu of conviction, permitting those courts to decide
    whether to impose the restrictions and limitations contained in R.C. 2953.31
    through 2953.36.
    {¶ 27} I further agree that defendants can apply for the sealing of records
    pursuant to R.C. 2951.041(E) once the trial court journalizes an entry that
    dismisses the pending charges and terminates the case.
    {¶ 28} I concur in the majority’s judgment and write separately only to
    reinforce the majority’s determination that a conviction is required to trigger the
    application of R.C. 2953.31 through 2953.36.
    {¶ 29} Intervention in lieu of conviction provides first offenders with the
    opportunity to obtain treatment for chemical dependency without any criminal
    sanction and shows that the General Assembly recognizes that treatment can be
    “ ‘more beneficial to the individual and the community as a whole’ ” because it
    treats “ ‘the cause rather than punish[es] the crime.’ ” State v. Massien, 
    125 Ohio St.3d 204
    , 
    2010-Ohio-1864
    , 
    926 N.E.2d 1282
    , ¶ 10, quoting State v. Shoaf, 
    140 Ohio App.3d 75
    , 77, 
    746 N.E.2d 674
     (10th Dist.2000).
    {¶ 30} Dispositive of the issue presented in this appeal is the language of
    R.C. 2951.041(E):
    Successful completion of the intervention plan and period of
    abstinence under this section shall be without adjudication of guilt
    and is not a criminal conviction for purposes of any
    disqualification or disability imposed by law and upon conviction
    10
    January Term, 2012
    of a crime, and the court may order the sealing of records related to
    the offense in question in the manner provided in sections 2953.31
    to 2953.36 of the Revised Code.
    (Emphasis added.)
    {¶ 31} R.C. 2953.31 through 2953.36 relate to sealing a record of
    conviction. R.C. 2953.32 sets forth the method by which a trial court may seal
    the record of conviction for an individual who is a “first offender,” which R.C.
    2953.31(A) defines as one “who has been convicted of an offense in this state or
    any other jurisdiction and who previously or subsequently has not been convicted
    of the same or a different offense in this state or any other jurisdiction.”
    Applications to seal records pursuant to R.C. 2953.32 are subject to a prescribed
    waiting period. R.C. 2953.52(A)(1) governs the sealing of records following a
    finding of not guilty or the dismissal of a complaint, indictment, or information
    and imposes no waiting period.
    {¶ 32} By its express terms, R.C. 2953.32 applies only to those
    individuals who have been convicted of a criminal offense. The purpose of
    successful completion of an intervention plan is to avoid conviction; the pending
    charges are dismissed and the matter is adjudicated without a finding of guilt. In
    my view, because the successful completion of an intervention plan prevents a
    criminal conviction, R.C. 2953.32 does not apply to the sealing of those records.
    {¶ 33} The reference in R.C. 2951.041(E) to R.C. 2953.31 through
    2953.36 indicates that the General Assembly intended for courts to have
    discretion in sealing the records of an individual who successfully completes an
    intervention plan: a court may do so according to the manner provided in either
    R.C. 2953.32, by imposing a waiting period before a defendant may move for an
    order to seal, or R.C. 2953.52, by allowing a defendant to apply for an order to
    seal at any time after dismissal. But the court is not required to impose R.C.
    11
    SUPREME COURT OF OHIO
    2953.32’s waiting period, because there has been no conviction.              This
    construction gives effect to the intent of the legislature, while a contrary
    determination thwarts the very purposes for which the legislature created
    intervention in lieu of conviction.
    {¶ 34} Accordingly, the trial court had no duty to follow R.C. 2953.32 in
    sealing the records of Niesen-Pennycuff because R.C. 2951.041(E) did not
    mandate sealing pursuant to that statute and because she did not have a conviction
    that otherwise triggered R.C. 2953.32.
    {¶ 35} For these reasons, I concur in the judgment reversing the court of
    appeals.
    __________________
    David P. Fornshell, Warren County Prosecuting Attorney, and Michael
    Greer, Assistant Prosecuting Attorney, for appellee.
    Rittgers & Rittgers and Nicholas D. Graman, for appellant.
    ______________________
    12
    

Document Info

Docket Number: 2011-1070

Citation Numbers: 2012 Ohio 2730, 132 Ohio St. 3d 416

Judges: Brown, Cupp, Lanzinger, McGee, O'Connor, O'Donnell, Pfeifer, Stratton

Filed Date: 6/21/2012

Precedential Status: Precedential

Modified Date: 8/31/2023