Oral Argument Preview: Does a Pardon by the Governor Guarantee Sealing the Record of Conviction? State of Ohio and City of Akron v. Montoya L. Boykin.

Update: On October 22, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 10, 2013, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio and City of Akron v. Montoya L. Boykin, 2012-0808/2012-1216. This matter was accepted on discretionary appeal and conflict certification and the cases have been consolidated. The issue is whether an offender who has received a gubernatorial pardon is entitled to have the record of her pardoned convictions sealed.

Case Background

In 2007, Montoya Boykin filed an application for a pardon with the Ohio Parole Board for a conviction in the Summit County Court of Common Pleas for receiving stolen property, two misdemeanor theft offenses for which she had been found not guilty in Akron Municipal court, and a fourth theft conviction in Cuyahoga County that is not at issue in this appeal. In 2009, Governor Ted Strickland pardoned Boykin for all the offenses. In 2010, Boykin separately moved the Akron Municipal and Common Pleas courts to seal her record, and both courts denied the motions.

The Ninth District Court of Appeals consolidated the cases, and affirmed the trial court decisions, in a split decision.  The majority held that where there has been a conviction, only statutory expungement is available, except for exceptional circumstances where the accused has been acquitted or exonerated and where the accused’s privacy interest is essential to preventing injustice. Analyzing the legal effect of a pardon, it found that the nature of the pardon does not require courts to grant judicial expungement in every case. Recognizing a split of authority, the court held that a pardon does not conclusively entitle the recipient to have the record sealed. The dissenting judge would find that sealing the public records of a conviction must go hand in hand with a full pardon, or else the pardon isn’t really a pardon.

Conflict Case

State v. Cope, 111 Ohio App.3d 309 (1st Dist. 1996) (I sat on this case when I was an appellate judge.)

The First District Court of Appeals held that even if an offender is not eligible to have his record sealed pursuant to statute, the trial court has inherent authority to order the sealing of its own records where unusual and exceptional circumstances warrant this exercise of jurisdiction, and the granting of a pardon is such a circumstance.

At the Supreme Court

Chief Justice O’Connor has recused herself from this case, probably because she was the Summit County Prosecutor at times relevant to this case.  Judge Stephen Shaw of the Third District Court of Appeals will sit for her on this case.

Boykin’s arguments on appeal

Boykin argues that the purpose of a pardon is to relieve an offender of all the punishment and collateral consequences arising from a conviction. The lower court erred when it stated that a pardon only eliminates the penalty but does not eliminate the fact that the underlying conduct occurred. Further, she argues that the state cases cited by the Ninth District, which all found that a pardon does not remove the conviction, were based on fundamentally different approaches to executive pardons under other state constitutions. In contrast to other states, Ohio recognizes that a full pardon operates as a remission of the crime and places the offender in the same position as if the crime had never occurred. Boykin argues that mandatory sealing is the only way of achieving this end, because otherwise a pardoned conviction that remains public record does not release the offender from all disabilities arising from the conviction.

Boykin further argues that a court does not need statutory authorization to seal a pardoned conviction; it has inherent power to do so under Pepper Pike v. Doe, which requires the court to balance the government’s interest in maintaining the records against the privacy interests of the application. However, a governor’s decision to pardon is conclusive of the state’s determination that it no longer has an interest in keeping the conviction public. The trial court, in denying the motions to seal, disregarded the governor’s analysis of the state’s interests in the matter.

City’s and State’s arguments on appeal

The City of Akron argues that a pardon does not conclusively warrant the sealing of the pardoned convictions. Under the definition of pardon in R.C. 2967.01, a pardon only has the effect of relieving the convicted person of the resulting penalties. It does not provide for erasing the history of the offense or sealing of records of conviction. Other states have similarly rejected an expansive view of the effect of a pardon. Because a pardon does not have the effect of acquitting or exonerating the offender, a pardon does not create unusual and extraordinary circumstances that would require a court to seal the record of conviction. Finally, the decision of whether to grant expungement to a pardoned offender should be left to the General Assembly.

The State further elaborates that a pardon is not equivalent to a finding of innocence, and does not remove the historical fact that a conviction occurred. Various sections of the Revised Code make clear that a pardoned offender is still subject to a number of collateral consequences of the conviction, such as inability to hold office, to circulate or serve as a witness for a petition or referendum, or to carry a concealed weapon. In light of that fact, a pardon does not erase all traces of the conviction.

Boykin’s Proposed Proposition of Law

A pardon conclusively entitles the recipient to have her pardoned convictions sealed.

Amici Curiae

The Ohio Public Defender, Ohio Justice and Policy Center, Ohio Poverty Law Center, Legal Aid Society, and various other policy groups and nonprofit legal advocacy groups have filed an amicus brief in favor of Boykin. They argue, based on various Ohio decisions, that a pardon is intended to relieve the offender of all disabilities arising out of the conviction. They also argue that the disabilities and lingering collateral consequences that follow from a criminal conviction have severe effects on peoples’ ability to re-enter society and are of a nature as to require the courts to use their inherent powers to grant expungement outside the expungement statutes. Furthermore, a full and unconditional pardon cannot achieve its full effect unless the record of the pardoned conviction is sealed.

Ron O’Brien, Franklin County Prosecutor, has filed an amicus brief in support of Akron and the State. The Prosecutor argues that the Pepper Pike holding is limited to cases in which there was no conviction in the first place. He also argues that modern case law and Ohio statutes establish that a pardon does not erase the fact of conviction, and that pardons and expungement are separate forms of relief that are not required to go together. Finally, he argues that expungement after a pardon should not be automatic, especially where, as here, the offender is not innocent of the crimes and has minimal privacy interests, and where the government has a compelling need to maintain the public records.

Key Precedent

Pepper Pike v. Doe, 66 Ohio St. 2d 374 (1981) (syllabus)

1. The trial courts in Ohio have jurisdiction to order expungement and sealing of records in a criminal case where the charges are dismissed with prejudice prior to trial by the party initiating the proceedings.

2. The trial courts have authority to order expungement where such unusual and exceptional circumstances make it appropriate to exercise jurisdiction over the matter. When exercising this power, the court should use a balancing test which weighs the privacy interest of the defendant against the government’s legitimate need to maintain records of criminal proceedings.

State ex rel. Gordon v. Zangerle, 136 Ohio St. 371 (1940) (a full pardon “purges away all guilt and leaves the recipient from a legal standpoint in the same condition as if the crime had never been committed.”).

State ex rel. Maurer v. Sheward, 71 Ohio St. 3d 521 (holding that a pardon “releases the offender…from all the disabilities consequent on his conviction.”).

R.C. 2953.32

A first offender may move to have the record of conviction of eligible offenses sealed under this statutory provision.

R.C. 2953.52

The record of a criminal case may also be sealed under this provision where there is an acquittal, dismissal or no bill.

Student Contributor: Greg Kendall

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