State v. Dye , 2016 Ohio 5065 ( 2016 )

[Cite as State v. Dye, 2016-Ohio-5065.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
COLTON DYE : Case No. 15-CA-65
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 15CRB669
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 21, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL E. COGLEY JAMES L. DYE
123 East Chestnut Street P.O. Box 161
Lancaster, OH 43130 Pickerington, OH 43147
Fairfield County, Case No. 15-CA-65 2
Farmer, P.J.
{¶1} On March 27, 2015, appellant, Colton Dye, was charged with five
misdemeanor counts which allegedly occurred on March 21, 2015 (arson, aggravated
menacing, menacing, criminal damaging, and domestic violence threats). The counts
were subsequently dismissed without prejudice on May 5, 2015.
{¶2} On June 23, 2015, appellant filed an application for sealing of the dismissal
pursuant to R.C. 2953.52(A). A hearing was held on November 16, 2015. By journal
entry filed November 17, 2015, the trial court denied the application, finding the applicable
statute of limitations had not run in order to seal the dismissal.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING
APPELLANT WAS STATUTORILY INELIGIBLE TO APPLY FOR SEALING THE
RECORD OF DISMISSAL AS THE STATUTE OF LIMITATIONS HAD NOT YET RUN."
I
{¶5} Appellant claims the trial court erred in denying his request to seal the
record of the dismissal without prejudice as the trial court inappropriately required the
expiration of the statute of limitations in order to seal the record. We disagree.
{¶6} Statutory interpretation is a question of law, and therefore our standard of
review is de novo. State v. Futrall, 123 Ohio St. 3d 498, 2009-Ohio-5590. In construing
a statute, the primary goal "is to ascertain and give effect to the intent of the legislature
Fairfield County, Case No. 15-CA-65 3
as expressed in the statute." Hudson v. Petrosurance, Inc., 127 Ohio St. 3d 54, 2010-
Ohio-4505, ¶ 30.
{¶7} R.C. 2953.52 governs application to have records sealed and states the
following in pertinent part:
(A)(1) Any person, who is found not guilty of an offense by a jury or
a court or who is the defendant named in a dismissed complaint, indictment,
or information, may apply to the court for an order to seal the person's
official records in the case. Except as provided in section 2953.61 of the
Revised Code, the application may be filed at any time after the finding of
not guilty or the dismissal of the complaint, indictment, or information is
entered upon the minutes of the court or the journal, whichever entry occurs
first.
(B)(2) The court shall do each of the following, except as provided in
division (B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in the case,
or the complaint, indictment, or information in the case was dismissed, or a
no bill was returned in the case and a period of two years or a longer period
as required by section 2953.61 of the Revised Code has expired from the
date of the report to the court of that no bill by the foreperson or deputy
foreperson of the grand jury;
(ii) If the complaint, indictment, or information in the case was
dismissed, determine whether it was dismissed with prejudice or without
Fairfield County, Case No. 15-CA-65 4
prejudice and, if it was dismissed without prejudice, determine whether the
relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the
person;
(c) If the prosecutor has filed an objection in accordance with division
(B)(1) of this section, consider the reasons against granting the application
specified by the prosecutor in the objection;
(d) 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.
(3) If the court determines after complying with division (B)(2)(a) of
this section that the person was found not guilty in the case, that the
complaint, indictment, or information in the case was dismissed with
prejudice, or that the complaint, indictment, or information in the case was
dismissed without prejudice and that the relevant statute of limitations has
expired, the court shall issue an order to the superintendent of the bureau
of criminal identification and investigation directing that the superintendent
seal or cause to be sealed the official records in the case consisting of DNA
specimens that are in the possession of the bureau and all DNA records
and DNA profiles. The determinations and considerations described in
divisions (B)(2)(b), (c), and (d) of this section do not apply with respect to a
determination of the court described in this division.
Fairfield County, Case No. 15-CA-65 5
(4) The determinations described in this division are separate from
the determination described in division (B)(3) of this section. If the court
determines, after complying with division (B)(2) of this section, that the
person was found not guilty in the case, that the complaint, indictment, or
information in the case was dismissed, or that a no bill was returned in the
case and that the appropriate period of time has expired from the date of
the report to the court of the no bill by the foreperson or deputy foreperson
of the grand jury; that no criminal proceedings are pending against the
person; and the interests of the person in having the records pertaining to
the case sealed are not outweighed by any legitimate governmental needs
to maintain such records, or if division (E)(2)(b) of section 4301.69 of the
Revised Code applies, in addition to the order required under division (B)(3)
of this section, the court shall issue an order directing that all official records
pertaining to the case be sealed and that, except as provided in section
2953.53 of the Revised Code, the proceedings in the case be deemed not
to have occurred. (Emphasis added.)
{¶8} In its journal entry filed November 17, 2015, the trial court denied the
application, finding "the movant is not yet eligible for sealing of this record as the matter
was dismissed without prejudice and the statute of limitations has not expired."
{¶9} Appellant argues in reading the cited sections in pari materia, it leads to the
conclusion that the passage of the statute of limitations is not determinative, but the trial
court should proceed to the considerations enumerated in subsection (B)(4) e.g., "the
Fairfield County, Case No. 15-CA-65 6
interests of the person in having the records pertaining to the case sealed are not
outweighed by any legitimate governmental needs to maintain such records." In other
words, appellant argues the statute provides for three categories: "1) dismissal with
prejudice; 2) dismissal without prejudice where the applicable statute of limitations has
expired; and 3) dismissal without prejudice where the applicable statute of limitations has
not expired." Appellant's Brief at 2. Appellant argues if the applicant falls under (1) or
(2), subsection (B)(3) applies; however, if the applicant falls under (3), as appellant herein,
then subsection (B)(4) applies and appellant needs to meet a higher burden.
{¶10} We disagree with appellant's analysis of the relative statutory steps. R.C.
2953.52 requires a trial court to first comply with subsection (B)(2) in making a
determination, including section (B)(2)(a)(ii) which requires a finding on "if it was
dismissed without prejudice, determine whether the relevant statute of limitations has
expired." Only after making a (B)(2) determination does the trial court proceed under
subsection (B)(4) to seal the record. If the applicable statute of limitations on a dismissal
without prejudice has not passed, sealing is not permitted, as the charges may be refiled
prior to the expiration of the statute of limitations. Subsection (B)(3) pertains only to the
sealing of official records regarding DNA evidence which is not relevant to this case. As
subsection (B)(4) states, "[t]he determinations described in this division are separate from
the determination described in division (B)(3) of this section."
{¶11} Although appellant's case was dismissed without prejudice, the required
two year statute of limitations had not expired. R.C. 2953.52(B)(2)(a)(i) and (ii).
Therefore, appellant was not eligible for sealing under subsection (B)(4). Appellant's
Fairfield County, Case No. 15-CA-65 7
record is not available for sealing until the passage of two years from the date of the
alleged misdemeanors which will be March 21, 2017.
{¶12} Upon review, we find the trial court did not err in denying the application to
seal the record.
{¶13} The sole assignment of error is denied.
{¶14} The judgment of the Municipal Court of Fairfield County, Ohio is hereby
affirmed.
By Farmer, P.J.
Wise, J. and
Baldwin, J. concur.
SGF/sg 624