State v. Niesen-Pennycuff

2012 Ohio 2730, 132 Ohio St. 3d 416
CourtOhio Supreme Court
DecidedJune 21, 2012
Docket2011-1070
StatusPublished
Cited by14 cases

This text of 2012 Ohio 2730 (State v. Niesen-Pennycuff) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Niesen-Pennycuff, 2012 Ohio 2730, 132 Ohio St. 3d 416 (Ohio 2012).

Opinions

Lundberg Stratton, J.

{¶ 1} Today we are called upon to interpret R.C. 2951.041(E), a provision of the statute governing intervention in lieu of conviction (“ILC”). Specifically, we are asked to establish the scope of a trial court’s discretion to seal the record of a defendant who has successfully completed the ILC program. For the reasons that follow, we hold that a trial court has discretion to determine that successful completion of the ILC program entitles the defendant to immediate sealing of his or,her record under R.C. 2953.52(A)(1) or to impose the waiting period set forth in R.C. 2953.32(A)(1). Therefore, we reverse the judgment of the court of appeals and remand the matter to the trial court.

Facts and Procedural History

{¶ 2} On April 21, 2009, appellant, Regina Niesen-Pennycuff, was indicted on 12 counts of deception to obtain a dangerous drug, in violation of R.C. 2925.22(A), felonies of the fifth degree. Niesen-Pennycuff initially pled not guilty, but later moved for ILC pursuant to R.C. 2951.041. The trial court found that she was eligible for intervention and ordered an intervention plan. As required by the [417]*417ILC statute, Niesen-Pennycuff retracted her initial plea, pled guilty to the charges, pending successful completion of her intervention program, and was placed on community control for three years.

{¶ 3} On August 24, 2010, the court filed a termination entry in which it recognized Niesen-Pennycuffs successful completion of the intervention program and thereby dismissed the 12 pending charges against her. On September 23, 2010, Niesen-Pennycuff filed an application for sealing of her record after dismissal of the proceedings. The state opposed the application and argued that Niesen-Pennycuff was ineligible to have her record sealed until three years after the dismissal of the charges against her, or August 24, 2013. The trial court agreed and denied Niesen-Pennycuffs application, but invited her to reapply in 2013.

{¶ 4} Niesen-Pennycuff appealed, and the Warren County Court of Appeals affirmed the judgment of the trial court but sua sponte certified its decision as in conflict with the Ninth District Court of Appeals’ decision in State v. Fortado, 108 Ohio App.3d 706, 671 N.E.2d 622 (9th Dist.1996). State v. Niesen-Pennycuff, 12th Dist. No. CA2010-11-112, 2011-ohio-2704, 2011 WL 2179250.

{¶ 5} Niesen-Pennycuff filed a notice of certification of conflict, and this court granted discretionary review and certified a conflict on the following issue:

Must a trial court order the sealing of records in the manner provided in R.C. 2953.32, which requires a one-year waiting period for misdemeanors and a three-year waiting period for felonies, or may the trial court employ R.C. 2953.52(A)(1) and determine that a defendant who has successfully completed the intervention in lieu of conviction program is eligible to have their [sic] record sealed immediately upon successful completion of the program?

State v. Niesen-Pennycuff, 129 Ohio St.3d 1473, 2011-Ohio-4751, 953 N.E.2d 840.

Law and Analysis

{¶ 6} Intervention in lieu of conviction is established in R.C. 2951.041, and pursuant to R.C. 2951.041(A)(1),

If an offender is charged with a criminal offense * * * and the court has reason to believe that drug or alcohol usage by the offender was a factor leading to the criminal offense with which the offender is charged * * *, the court may accept, prior to the entry of a guilty plea, the offender’s request for intervention in lieu of conviction.

[418]*418{¶ 7} As we held in State v. Massien, 125 Ohio St.3d 204, 2010-ohio-1864, 926 N.E.2d 1282,

ILC is a statutory creation that allows a trial court to stay a criminal proceeding and order an offender to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense. R.C. 2951.041(A)(1). * * *
“In enacting R.C. 2951.041, the legislature made a determination that when chemical abuse is the cause or at least a precipitating factor in the commission of a crime, it may be more beneficial to the individual and the community as a whole to treat the cause rather than punish the crime.” State v. Shoaf (2000), 140 Ohio App.3d 75, 77, 746 N.E.2d 674. * * * [For that reason,] ILC is not designed as punishment, but rather as an opportunity for first-time offenders to receive help for their dependence without the ramifications of a felony conviction. State v. Ingram, Cuyahoga App. No. 84925, 2005-ohio-1967, 2005 WL 977820, ¶ 13.

Id. at ¶ 9-10.

{¶ 8} The section of the ILC statute that deals with the sealing of records, R.C. 2951.041(E), provides:

If the court grants an offender’s request for intervention in lieu of conviction and the court finds that the offender has successfully completed the intervention plan for the offender, * * * the court shall dismiss the proceedings against the offender. Successful completion of the intervention plan and period of abstinence under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime, and the court may order the sealing of records related to the offense in question in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.

{¶ 9} The state argues that the statute’s reference to R.C. 2953.31 to 2953.36 means that the sealing of records in ILC is governed by R.C. 2953.32(A)(1), which requires a three-year waiting period before a defendant may move for an order sealing the record. However, R.C. 2953.31 to 2953.36 govern the sealing of an individual’s record following the conviction of a crime. See, e.g., R.C. 2953.32(A)(1) (“a first offender may apply to the sentencing court if convicted [419]*419* * * for the sealing of the conviction record”). That subsection further provides that “[application may be made at the expiration of three years after the offender’s final discharge if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanpr.” (Emphasis added.) But in an ILC case, an offender who has successfully completed ILC has no conviction.

{¶ 10} Niesen-Pennycuff urges us to refer instead to R.C. 2953.52, which governs the sealing of a record after the dismissal of a case. Under that statute, any person who is found not guilty of an offense or whose complaint, indictment, or information was dismissed may apply for an order to seal related records any time after the not-guilty finding or dismissal is entered. R.C. 2953.52(A)(1).

{¶ 11} Thus, whether Niesen-Pennycuff is eligible to have her record sealed immediately or whether she has to wait for the period specified in R.C. 2953.52 depends on the meaning of the phrase in R.C. 2951.041(E) that the court “may order the sealing of records related to the offense in question in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.”

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Cite This Page — Counsel Stack

Bluebook (online)
2012 Ohio 2730, 132 Ohio St. 3d 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-niesen-pennycuff-ohio-2012.