Merit Decision: A Gubernatorial Pardon Does Not Guarantee Sealing A Record of Conviction State v.Boykin

On October 22, 2013, the Supreme Court of Ohio handed down a merit decision in State v. Boykin, 2013-Ohio-4582. In a 6-1 decision written by Justice Lanzinger, the Court held that a gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.  Judge Stephen Shaw of the Third Appellate District sat for Chief Justice O’Connor in the case, and joined the majority opinion. Justice Pfeifer presided at argument, as senior associate justice.  Justice O’Donnell concurred in judgment only.  Justice O’Neill dissented without opinion. This case was argued April 10, 2013.

Case Background

Montoya Boykin was convicted six times for different theft offenses.  Here is a rundown of the offenses pertinent to this case:

  • In 1987 Boykin pled guilty to first degree misdemeanor theft in Akron Municipal Court.
  • In 1991 Boykin was convicted of another theft offense in Akron Municipal Court
  • In 1991 Boykin pled guilty to a theft offense in the Cuyahoga Court of Common Pleas
  • In 1992, Boykin pled guilty in the Summit County Court of Common Pleas to the fourth degree felony of receiving stolen property
  • In 1996 Boykin was convicted of a fourth theft offense in Akron Municipal Court

Pre-Pardon Motions to Seal the Record

In 1996 Boykin filed her first motion to seal the record of her receiving stolen property offense.  That motion was denied by the Summit County Court of Common Pleas. She filed a second request in August 2000 which was also denied because she was not a first time offender.

The Pardon

In January of 2007, Boykin filed an application for executive clemency, requesting a pardon for the 1991 Cuyahoga County theft offense, the 1991 and 1996 theft convictions in Akron Municipal Court, and the 1992 receiving stolen property conviction in the Summit County Common Pleas court. After the parole board voted unanimously to recommend clemency, in November of 2009, then-Governor Strickland granted a pardon on the three theft and one receiving stolen property offenses.  The 1987 conviction was not included in the pardon.

Post-Pardon Motions to Seal the Record

In June of 2010, Boykin filed a third motion in the Summit County Common Pleas Court to seal the record of her receiving stolen property charge, and similar applications in the Akron Municipal Court to seal the record of her theft convictions.  In all the motions she argued that the gubernatorial pardon entitled her to have her records sealed.  Both sets of courts denied her motions.

The Ninth District Court of Appeals consolidated the cases, and affirmed the trial court decisions, in a split decision.  The Supreme Court accepted the matter on discretionary appeal and conflict certification and the cases were consolidated.  Read the oral argument preview of this case here and the analysis of the argument here.

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.

R.C. 2953.32

A first offender may move to have the record of conviction of eligible offenses sealed.

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.

Nixon v. United States, 506 U.S. 224, (1993) (“the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is ‘[a]n executive action that mitigates or sets aside punishment for a crime.’”)

Expungement

In answer to a question by Justice Kennedy at oral argument, defense counsel suggested that judicial sealing of the record of conviction and judicial expungement are different, but recently in State v. Parig, 2013-Ohio-4010,  the Court noted that the two terms are often used interchangeably, as we shall do in this post, and “expungement” remains the colloquial term to describe the process. In any case, the Court makes clear that whatever this is called, it is “an act of grace created by the state; a privilege and not a right.”

By statute, an offender is eligible for an expungement if a trial court determines that there is no criminal proceeding against the applicant, the expungement of the record of conviction is consistent with the public interest, and the applicant’s rehabilitation has been attained to the satisfaction of the court. In overly simplified fashion, an offender eligible for expungement is a first time offender, or a person who has been found not guilty; who has had a criminal complaint, indictment, or information dismissed; or against whom the grand jury has returned a no bill.  A pardon is not included in the statute as a basis for expungement. Boykin would not be statutorily entitled to a judicial sealing of her record in this case. But does the pardon itself require the sealing of her record?

The Balancing Involved in a Judicial Record Sealing Decision

A few key points here:

  • The basis for the right to an expungement is the Constitutional right to privacy
  • This right is not absolute
  • Trial courts must balance the interest of the applicant “in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records.”

Separation of Powers Issues

The source of the power to pardon is Article III, Section 11 of the Ohio Constitution, which grants this power to the Governor.  The only limits that can be placed on this power are those set forth in the Constitution. The legislature cannot limit this power, nor is the governor’s decision to grant a pardon subject to judicial review.

The Effects of a Gubernatorial Pardon

Case law and pertinent statutes have defined a pardon as the release from the entire punishment prescribed for the offense, and from all collateral consequences of the conviction.

Boykin’s Argument About the Effect of a Pardon

Boykin argues that because a gubernatorial pardon relieves her of all disabilities arising out of her convictions, a judicial expungement is necessary to remove the collateral consequences that result from having a criminal record. She argues that the failure to seal the criminal record improperly impinges on the governor’s constitutional authority to issue a pardon and undermines the pardon’s impact. Since case law holds that an absolute pardon reaches both punishment and the underlying conviction, court sealing of the pertinent criminal record must accompany the pardon.

What Gets Erased?

The Court disagreed with Boykin that a pardon covers both the conviction and sentence of a pardoned offense, dismissing as dicta case holdings Boykin relied on for that assertion. The Court held that a pardon does not leave the recipient in the same condition as if the crime had never been committed. It does not erase the past.

No Automatic Sealing of the Record

The necessity of maintaining a historical record of the fact of an offense weighed heavily with the Court. The underlying conduct may be relevant in other contexts, like employment qualifications.  In an 1886 case, cited in this one, the Court rejected the notion that “a “pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”

The Importance of the Historical Record

“Although the governor may have the power to issue a pardon, an entitlement to the sealing of court records is not an automatic result of that pardon, because the maintenance of judicial records is not within the governor’s control,” wrote Lanzinger, quoting a federal court opinion that “it is beyond cavil that the maintenance of court records is an inherent aspect of judicial power.” Lanzinger also cited the Ohio Constitutional provision requiring the governor to report to the General Assembly specific details of every pardon granted as evidence of the requirement and importance of keeping this historical record. She also cited the fact that pursuant to R.C. 2967.06, one of the three required copies of the warrant of pardon is to be filed with the clerk of the court  of common pleas. “Although the sealing of a criminal record may complement a pardon, it is not an automatic right that flows from a pardon,” wrote Lanzinger.

Conclusion

“…[T]here is nothing in the Constitution, the Revised Code, or our case law that requires the sealing of a criminal record based on a pardon.”

Case Syllabus

A gubernatorial pardon does not automatically entitle the recipient to have the record of the pardoned conviction sealed.

Concluding Observations

Many years ago, I sat on the conflict case certified here, which was effectively overruled by this case. While the justices expressed major concerns with the separation of powers issues at oral argument, what I missed was the fact that they were more concerned with maintaining judicial records and historical facts of convictions than with the extent of the governor’s power to pardon. I thought the Court’s concern with separation of powers would favor the defendant, when in fact, it favored the state. I also think the Court was short sighted here about the devastating number of collateral consequences of conviction in Ohio that can remain as impediments to a pardoned offender without a concomitant judicial record sealing.

 

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