How Long Can State Wait Before Questioning Trial Court's Grant of Expungement
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| The question of how long the State of Ohio can wait before it questions the trial court's decision to grant an expungement was answered recently by Ohio's Tenth District Court of Appeals. The Court of Common Pleas granted the expungement of Kim Smith.
According to a BCI document, Smith was arrested on October 16, 1993 for carrying a concealed weapon, a third-degree felony, drug abuse, a minor misdemeanor, and receiving stolen property, a first-degree misdemeanor. Smith pled guilty on April 15 and 25, 1994 to carrying a concealed weapon, a first-degree misdemeanor, and disorderly conduct, a minor misdemeanor. The BCI document also showed Smith was arrested on September 3, 1997 for forgery and possession of criminal tools, both fifth-degree felonies, and later was convicted on two counts of forgery, first-degree misdemeanors. |
The trial court conducted a hearing on Smith's application on August 15, 2002, but no transcript of the hearing was made a part of the record. On August 16, 2002, the trial court found Smith was a first offender, no criminal proceedings were pending against her, and that sealing her record of convictions in case Nos. 93CR-12-7323 and 97CR-12-6783 was consistent with public interest. The trial court therefore ordered sealed all official records pertaining to Smith's convictions.
On the bottom corner of the entry, the court handwrote: "Ms. Smith has only one offense/ her soc sec # has been repeated [sic] used by another unknown person/ this is [sic] unknown offense is standing in way of an adoption of a 7 yr old daughter by she + her husband. Ms. Smith clearly meets all the criteria for expungement and is rehabilitated." The state did not appeal the court's judgment granting Smith's application for expungement.
The State of Ohio did not appeal this ruling.
Nearly four years later, an Ohio assistant attorney general requested the state to revisit the expungement entry sealing Smith's convictions. The assistant attorney general stated she reviewed the fingerprint cards from both of Smith's arrests and believed the similarities between the fingerprints may disprove Smith's assertion that someone else used her social security number when she was arrested for the 1993 offenses. The assistant attorney general recommended the state "further investigat[e]" the court's basis for finding Smith to be a first offender and seek to vacate the expungement entry "if it was improperly sealed."
The prosecutors reviewed the fingerprint cards from both arrests and concurred with the assistant attorney general's assessment. On October 2, 2006, it filed its motion to vacate the expungement of Smith's convictions and attached in support the assistant attorney general's letter and copies of the fingerprint cards. The prosecutors argued the court lacked jurisdiction to grant Smith's expungement application because she was not a statutorily eligible first offender. The prosecutors argued that, absent jurisdiction, the court's expungement entry was void and may be vacated at any time. Smith did not file a response.
The trial court denied the state's motion because it found the assistant attorney general's inconclusive statements and lack of expertise in fingerprint analysis lacked credibility to support the relief sought. The court further found the state's motion untimely pursuant to the procedural requirements of Civil Rule 60(B) which allows a court to reconsider its rulings under certain circumstances. Observing that a motion to vacate is not a substitute for appeal, the court stated that if the state disagreed with the court's finding Smith was a victim of identity fraud in 2002, the state was obligated to appeal at that time or, at the very least, immediately seek the new evidence and submit a timely Civil Rule 60(B) motion.
The state appealed, arguing that Smith did not qualify as a "first offender" under R.C. 2953.31, the expungement statute, and as such, she was ineligible to have her record sealed pursuant to R.C. 2953.32. The state argued that the trial court's order expunging Smith's record was void as a matter of law for lack of jurisdiction and may be vacated at any time without regard to the time limitations set forth in Civil Rule 60(B).
The prosecutors cited to several cases cases where the Tenth District Court of Appeals has previously held that an order expunging the record of one "who is not a first offender is void for lack of jurisdiction and may be vacated at any time." But the Tenth District Court distinguished those cases from Ms. Smith's case.
The Tenth District reasoned that though the cases cited combined the word "void" with "jurisdiction," the cases did not stand for the proposition that a court lacks subject matter jurisdiction over an expungement applicant who is not a first offender. This is because each case was properly commenced in the court of common pleas. In each case the resulting expungement orders were voidable, not void, for the trial court's lack of jurisdiction over the particular case. Because the judgments in those cases were properly challenged on direct appeal, the court had the necessary power to "void" the "voidable" judgments. The cited proposition of law was therefore appropriate for the particular facts of each case.
But as noted above, the prosecutors never appealed the result of Ms. Smith's case. Instead, they waited four years to bring the matter before the attention of the courts that there was an error. This meant that the only way for the prosecutor to challenge the trial court's ruling granting the expungement was via Civil Rule 60(B). Since that civil rule contains certain time requirements inconsistent with the four years that the prosecutor waited to bring the matter up, the Tenth District Court of Appeals found no abuse of discretion in the trial court rejecting the prosecutor's Civil Rule 60(B) motion.
The case on this is State v. Smith, 2007 Ohio App. LEXIS 2659 (June 12, 2007) Franklin Co. App. No. 06AP-1059.
Continue on to our complete guide to Ohio expungement law
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