Plea Bargains and Expungements
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| If you are plea bargaining the case against you, you need to be careful what you plead to. It may not be an expungeable offense.
In the recent case of State of Ohio v. Creske, Creske was indicted by the Franklin County Grand Jury on one count of aggravated burglary, a first degree felony. Defendant later pled guilty to aggravated menacing, a first degree misdemeanor. |
On September 19, 2006, defendant filed an application seeking to seal his record of conviction under R.C. 2953.32, Ohio's expungement statute. The state of Ohio filed an objection to defendant's application on December 13, 2006, arguing that the trial court lacked jurisdiction to grant defendant's application pursuant to R.C. 2953.32(C), because defendant had been convicted for an offense of violence.
The interesting thing here is that had Creske simply plead out to burglary, a non-violent offense, he would have been eligible, even though that is a felony rather than a misdemeanor like aggravated menacing.
The trial court granted Creske his sought-after expungement on January 24, 2007.
The state of Ohio filed a timely notice of appeal from that judgment, arguing that the trial court erred when it granted Creske's expungement since R.C. 2953.36(C) bars expunging an offense of violence.
Ohio's Tenth District Court of Appeals started out by noting that "[E]xpungement is an act of grace created by the state," and so is a privilege and not a right. State v. Hamilton (1996), 75 Ohio St.3d 636, 639, 1996 Ohio 440, 665 N.E.2d 669. Specific statutory provisions govern the sealing of a record of conviction. See R.C. 2953.31 through 2953.36. The applicant must be eligible for expungement and the offense must be one that is subject to expungement. To be eligible, an applicant must be a "first offender" as defined in R.C. 2953.32(A)(1). Further, the offense must be subject to expungement and not be excluded by R.C. 2953.36. Additionally, the application must not be filed until the time set by R.C. 2953.32(A)(1) has expired."
The court reasoned that unless the application for expungements meets all of these requirements, the application must be denied.
The court specifically identified the issue as being R.C. 2953.36, which identifies a number of convictions which are not eligible for expungement. R.C. 2953.36 provides, in relevant part:
Sections 2953.31 to 2953.35 of the Revised Code do not apply to any of the following:
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(C) convictions of an offense of violence when the offense is a misdemeanor of the first degree[.] * * *
The court noted that Creske was originally charged with aggravated burglary, a first degree felony. Defendant later pled guilty to aggravated menacing, in violation of R.C. 2903.21, a first degree misdemeanor. The state of Ohio argued that aggravated menacing is an offense of violence and that the trial court lacked jurisdiction to seal defendant's record. This court agrees.
R.C. 2901.01 provides certain definitions, including the following:
(A) As used in the Revised Code:
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(9) "Offense of violence" means any of the following:
(a) A violation of section * * * 2903.21 [.] * * *
The Tenth District Court of Appeals ruled that: "Applying the above provisions, it is evident that, under the plain language of R.C. 2953.36, a defendant who has been convicted of aggravated menacing pursuant to R.C. 2903.21 is ineligible to have his record sealed and the trial court should have denied the motion.
So if you are planning on filing an application with the court to expunge your conviction down the road, you need to be careful if you accept a plea bargain. The offense you plead to may not be expungeable, and it won't matter if the original charges were expungeable.
Continue on to our complete guide to Ohio expungement law
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