[Cite as State v. Pigg, 2024-Ohio-5466.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DWIGHT L. PIGG, : Case No. 24 CAA 04 0027 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 22-CR-I-05-0308
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 20, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL DOUGLAS A. FUNKHOUSER Prosecuting Attorney DEREK S. WELT DANIELLA M. PROSSER By: KATHERYN L. MUNGER Douglas A. Funkhouser, Co., L.P.A. Assistant Prosecuting Attorney 765 South High Street Delaware County Prosecutor’s Office Columbus, Ohio 43206 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 24 CAA 04 0027 2
Baldwin, J.
{¶1} The appellant appeals the trial court’s decision denying his application for
expungement of the dismissed charge of improper handling of a firearm following his
completion of an intervention in lieu of conviction program. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} The appellant was involved in a single-car accident on February 8, 2022.
Officers from the Ohio State Highway Patrol and the Genoa Police Department
responded. The appellant advised officers that he had a concealed handgun on his
person, which was retrieved during a pat-down search. Officers conducted an inventory
of the vehicle, at which time they discovered a second handgun. In addition, officers found
open containers inside the appellant’s vehicle, and observed the odor of alcohol. The
appellant admitted to having consumed “two beers.” Trooper Patterson conducted a
Horizontal Gaze Nystagmus (HGN) test and observed that the appellant was impaired.
The appellant refused a breathalyzer test.
{¶3} The appellant was indicted on March 31, 2022, in Case Number 22CR-I-03-
0202 on the following three counts: Count One, Improperly Handling of Firearms in a
Motor Vehicle, for having a loaded handgun in a motor vehicle when he was under the
influence of drugs or alcohol, in violation of R.C. 2923.16(D)(1) and (I), a felony of the fifth
degree; Count Two, Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse
or a Combination of Them – OVI in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(a), a
misdemeanor of the first degree; and, Count Three, OVI — Refusal with Prior in violation
of R.C. 4511.19(A)(2)(a) and (G)(1)(a), a misdemeanor of the first degree. Delaware County, Case No. 24 CAA 04 0027 3
{¶4} The parties entered into an agreement in which the Improper Handling of
Firearms in a Motor Vehicle felony charge and the OVI – Refusal with Prior charge were
bifurcated so the appellant would be eligible for Intervention in Lieu of Conviction (ILC)
on the felony charge. The OVI – Refusal with Prior charge proceeded in Case Number
22CR-I-03-0202, and the Improper Handling charge set forth in Count One and the OVI
charge set forth in Count Two were dismissed. A Bill of Information was filed in Case
Number 22CR-I-05-0308 charging the appellant Improperly Handling Firearms in a Motor
Vehicle.
{¶5} The appellant filed a Motion to Request Intervention in Lieu of Conviction
(ILC) on June 14, 2022, in Case Number 22CR-I-05-0308. The appellee did not oppose
the motion. The appellant entered a plea of guilty to the charge of Improper Handling of
Firearms in a Motor Vehicle, and the case was scheduled for a merit review on the ILC.
The trial court granted ILC on August 12, 2022, and ordered the destruction of the firearms
found during the officers’ search of the appellant’s vehicle. In Case Number 22CR-I-03-
0202, the appellant pleaded guilty to and was found guilty of OVI - Refusal with Prior, and
on August 12, 2022, was sentenced to community control for the same.
{¶6} The appellant successfully completed ILC in Case Number 22CR-I-05-
0308, and on February 9, 2024, the appellee moved to dismiss the case. On February 9,
2024, the trial court issued a Judgment Entry terminating the ILC and dismissing the case.
{¶7} On February 22, 2024, the appellant filed an Application to Seal or Expunge
Records of Nonconviction Pursuant to R.C. 2953.33 in both cases. The appellee objected.
The trial court conducted a hearing on the appellant’s Applications, and thereafter denied
them, citing R.C. 2953.61(A) and finding that the firearms case occurred on the same Delaware County, Case No. 24 CAA 04 0027 4
date and as part of the same act as the OVI case, and finding further that the facts were
that the appellant had loaded handguns in his motor vehicle while under the influence of
alcohol. Because cases arising out of R.C. 4511. et seq., are not subject to expungement,
and both cases arose out of the same incident – that is, the appellant’s operation of a
motor vehicle while under the influence of alcohol or drugs or both – the trial court denied
the Applications.
{¶8} The appellant filed a timely Notice of Appeal, and sets forth the following
sole assignment of error:
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING MR.
PIGG’S MOTION TO EXPUNGE HIS DISMISSED CHARGE OF IMPROPER HANDLING
OF A FIREARM; MR. PIGG IS AN ELIGIBLE OFFENDER PURSUANT TO R.C. 2953.61
DUE TO THE LACK OF CONNECTION IN THE ACTS THAT BROUGHT ABOUT THIS
CHARGE AND THE CHARGE FOR OPERATING A VEHICLE UNDER THE
INFLUENCE.”
STANDARD OF REVIEW
{¶10} The issue of expungement was recently addressed by this Court in State v.
Vanwey, 2023-Ohio-3116 (5th Dist.):
“An appellate court generally reviews a trial court's disposition of an
application to seal a record of conviction under an abuse of discretion
standard.” State v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715,
¶6. An abuse of discretion occurs where the trial court's decision is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). Delaware County, Case No. 24 CAA 04 0027 5
However, an abuse-of-discretion standard is not appropriate when a
lower court's judgment is based on an erroneous interpretation of the law.
State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶6.
A trial court's interpretation of a statute is a question of law that we review
de novo. State Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d
401, ¶9. Whether an applicant is considered an eligible offender is an issue
of law for a reviewing court to decide de novo. State v. D.D.G. 8th Dist.
Cuyahoga No. 108291, 2019-Ohio-4982, 136 N.E.3d 1271, ¶13, citing M.E.
at ¶7.
We will apply an abuse of discretion standard of review to the trial
court's factual determinations related to Appellee's Application to Seal a
Record and a de novo standard to issues involving statutory interpretation
of the relevant sealing statutes.
“While expungement is a state-created act of grace and ‘is a
privilege, not a right,’ M.E. at ¶7, quoting State v. Simon, 87 Ohio St.3d 531,
533, 721 N.E.2d 1041 (2000), a trial court may only grant expungement
when an applicant meets all of the statutory requirements.
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[Cite as State v. Pigg, 2024-Ohio-5466.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DWIGHT L. PIGG, : Case No. 24 CAA 04 0027 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 22-CR-I-05-0308
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 20, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL DOUGLAS A. FUNKHOUSER Prosecuting Attorney DEREK S. WELT DANIELLA M. PROSSER By: KATHERYN L. MUNGER Douglas A. Funkhouser, Co., L.P.A. Assistant Prosecuting Attorney 765 South High Street Delaware County Prosecutor’s Office Columbus, Ohio 43206 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 24 CAA 04 0027 2
Baldwin, J.
{¶1} The appellant appeals the trial court’s decision denying his application for
expungement of the dismissed charge of improper handling of a firearm following his
completion of an intervention in lieu of conviction program. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} The appellant was involved in a single-car accident on February 8, 2022.
Officers from the Ohio State Highway Patrol and the Genoa Police Department
responded. The appellant advised officers that he had a concealed handgun on his
person, which was retrieved during a pat-down search. Officers conducted an inventory
of the vehicle, at which time they discovered a second handgun. In addition, officers found
open containers inside the appellant’s vehicle, and observed the odor of alcohol. The
appellant admitted to having consumed “two beers.” Trooper Patterson conducted a
Horizontal Gaze Nystagmus (HGN) test and observed that the appellant was impaired.
The appellant refused a breathalyzer test.
{¶3} The appellant was indicted on March 31, 2022, in Case Number 22CR-I-03-
0202 on the following three counts: Count One, Improperly Handling of Firearms in a
Motor Vehicle, for having a loaded handgun in a motor vehicle when he was under the
influence of drugs or alcohol, in violation of R.C. 2923.16(D)(1) and (I), a felony of the fifth
degree; Count Two, Operating a Vehicle Under the Influence of Alcohol, a Drug of Abuse
or a Combination of Them – OVI in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(a), a
misdemeanor of the first degree; and, Count Three, OVI — Refusal with Prior in violation
of R.C. 4511.19(A)(2)(a) and (G)(1)(a), a misdemeanor of the first degree. Delaware County, Case No. 24 CAA 04 0027 3
{¶4} The parties entered into an agreement in which the Improper Handling of
Firearms in a Motor Vehicle felony charge and the OVI – Refusal with Prior charge were
bifurcated so the appellant would be eligible for Intervention in Lieu of Conviction (ILC)
on the felony charge. The OVI – Refusal with Prior charge proceeded in Case Number
22CR-I-03-0202, and the Improper Handling charge set forth in Count One and the OVI
charge set forth in Count Two were dismissed. A Bill of Information was filed in Case
Number 22CR-I-05-0308 charging the appellant Improperly Handling Firearms in a Motor
Vehicle.
{¶5} The appellant filed a Motion to Request Intervention in Lieu of Conviction
(ILC) on June 14, 2022, in Case Number 22CR-I-05-0308. The appellee did not oppose
the motion. The appellant entered a plea of guilty to the charge of Improper Handling of
Firearms in a Motor Vehicle, and the case was scheduled for a merit review on the ILC.
The trial court granted ILC on August 12, 2022, and ordered the destruction of the firearms
found during the officers’ search of the appellant’s vehicle. In Case Number 22CR-I-03-
0202, the appellant pleaded guilty to and was found guilty of OVI - Refusal with Prior, and
on August 12, 2022, was sentenced to community control for the same.
{¶6} The appellant successfully completed ILC in Case Number 22CR-I-05-
0308, and on February 9, 2024, the appellee moved to dismiss the case. On February 9,
2024, the trial court issued a Judgment Entry terminating the ILC and dismissing the case.
{¶7} On February 22, 2024, the appellant filed an Application to Seal or Expunge
Records of Nonconviction Pursuant to R.C. 2953.33 in both cases. The appellee objected.
The trial court conducted a hearing on the appellant’s Applications, and thereafter denied
them, citing R.C. 2953.61(A) and finding that the firearms case occurred on the same Delaware County, Case No. 24 CAA 04 0027 4
date and as part of the same act as the OVI case, and finding further that the facts were
that the appellant had loaded handguns in his motor vehicle while under the influence of
alcohol. Because cases arising out of R.C. 4511. et seq., are not subject to expungement,
and both cases arose out of the same incident – that is, the appellant’s operation of a
motor vehicle while under the influence of alcohol or drugs or both – the trial court denied
the Applications.
{¶8} The appellant filed a timely Notice of Appeal, and sets forth the following
sole assignment of error:
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING MR.
PIGG’S MOTION TO EXPUNGE HIS DISMISSED CHARGE OF IMPROPER HANDLING
OF A FIREARM; MR. PIGG IS AN ELIGIBLE OFFENDER PURSUANT TO R.C. 2953.61
DUE TO THE LACK OF CONNECTION IN THE ACTS THAT BROUGHT ABOUT THIS
CHARGE AND THE CHARGE FOR OPERATING A VEHICLE UNDER THE
INFLUENCE.”
STANDARD OF REVIEW
{¶10} The issue of expungement was recently addressed by this Court in State v.
Vanwey, 2023-Ohio-3116 (5th Dist.):
“An appellate court generally reviews a trial court's disposition of an
application to seal a record of conviction under an abuse of discretion
standard.” State v. M.E., 8th Dist. Cuyahoga No. 106298, 2018-Ohio-4715,
¶6. An abuse of discretion occurs where the trial court's decision is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983). Delaware County, Case No. 24 CAA 04 0027 5
However, an abuse-of-discretion standard is not appropriate when a
lower court's judgment is based on an erroneous interpretation of the law.
State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶6.
A trial court's interpretation of a statute is a question of law that we review
de novo. State Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d
401, ¶9. Whether an applicant is considered an eligible offender is an issue
of law for a reviewing court to decide de novo. State v. D.D.G. 8th Dist.
Cuyahoga No. 108291, 2019-Ohio-4982, 136 N.E.3d 1271, ¶13, citing M.E.
at ¶7.
We will apply an abuse of discretion standard of review to the trial
court's factual determinations related to Appellee's Application to Seal a
Record and a de novo standard to issues involving statutory interpretation
of the relevant sealing statutes.
“While expungement is a state-created act of grace and ‘is a
privilege, not a right,’ M.E. at ¶7, quoting State v. Simon, 87 Ohio St.3d 531,
533, 721 N.E.2d 1041 (2000), a trial court may only grant expungement
when an applicant meets all of the statutory requirements. State v.
Hamilton, 75 Ohio St.3d 636, 640, 665 N.E.2d 669 (1996).” M.E. at ¶7,
quoting State v. Williamson, 10th Dist. Franklin No. 12AP-340, 2012-Ohio-
5384, ¶10.
Further, “[s]tatutes providing for the sealing of records ‘are remedial
and are, therefore, to be construed liberally to promote their purpose and
assist the parties in obtaining justice.’ ” State v. [C.L.H], 10th Dist. Franklin Delaware County, Case No. 24 CAA 04 0027 6
No. 18AP-495, 2019-Ohio-3786, ¶14, quoting State v. C.A. 10th Dist.
Franklin No. 14AP738, 2015-Ohio-3437, ¶11, citing State ex rel. Gains v.
Rossi, 86 Ohio St.3d 620, 622, 716 N.E.2d 204 (1999), citing R.C. 1.11.
Id. at ¶¶ 15-19.
ANALYSIS
{¶11} R.C. 2953.33 provides for the expungement of records, and states in
pertinent part:
(A)(1) Any person, who is found not guilty of an offense by a jury or
a court or who is the defendant named in a dismissed complaint, indictment,
or information, may apply to the court for an order to seal or, except as
provided in division (C) of this section, expunge the person's official records
in the case. Except as provided in section 2953.61 of the Revised Code, the
application may be filed at any time after the finding of not guilty or the
dismissal of the complaint, indictment, or information is entered upon the
minutes of the court or the journal, whichever entry occurs first.
* * *
(B)(1) Upon the filing of an application pursuant to division (A) of this
section, the court shall set a date for a hearing and shall notify the
prosecutor in the case of the hearing on the application. The court shall hold
the hearing not less than forty-five days and not more than ninety days from
the date of the filing of the application. The prosecutor may object to the
granting of the application by filing a written objection with the court not later
than thirty days prior to the date set for the hearing. The prosecutor shall Delaware County, Case No. 24 CAA 04 0027 7
specify in the objection the reasons the prosecutor believes justify a denial
of the application.
(2) The court shall do each of the following, except as provided in
division (B)(3) of this section:
(a)(i) Determine whether the person was found not guilty in the case,
or the complaint, indictment, or information in the case was dismissed, or a
no bill was returned in the case and a period of two years or a longer period
as required by section 2953.61 of the Revised Code has expired from the
date of the report to the court of that no bill by the foreperson or deputy
foreperson of the grand jury;
(ii) If the complaint, indictment, or information in the case was
dismissed, determine whether it was dismissed with prejudice or without
prejudice and, if it was dismissed without prejudice, determine whether the
relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the
person;
(c) If the prosecutor has filed an objection in accordance with division
(B)(1) of this section, consider the reasons against granting the application
specified by the prosecutor in the objection;
(d) If the person was granted a pardon upon conditions precedent or
subsequent for the offense for which the person was convicted, determine
whether all of those conditions have been met; Delaware County, Case No. 24 CAA 04 0027 8
(e) Weigh the interests of the person in having the official records
pertaining to the case sealed or expunged, as applicable, against the
legitimate needs, if any, of the government to maintain those records.
{¶12} R.C. 2953.61 addresses the effect of multiple offenses with different
dispositions on applications for expungement, and states:
(A) Except as provided in division (B)(1) of this section, a person
charged with two or more offenses as a result of or in connection with the
same act may not apply to the court pursuant to section 2953.32, 2953.33,
or 2953.521 of the Revised Code for the sealing or expungement of the
person's record in relation to any of the charges, and a prosecutor may not
apply to the court pursuant to section 2953.39 of the Revised Code for the
sealing or expungement of the record of a person in relation to any of the
charges if the person was charged with two or more offenses as a result of
or in connection with the same act, when at least one of the charges has a
final disposition that is different from the final disposition of the other
charges until such time as the person, or prosecutor, would be able to apply
to the court and have all of the records pertaining to all of those charges
sealed or expunged pursuant to section 2953.32, 2953.33, 2953.39, or
2953.521 of the Revised Code.
(B)(1) When a person is charged with two or more offenses as a
result of or in connection with the same act and the final disposition of one,
and only one, of the charges is a conviction under any section of Chapter
4507., 4510., 4511., or 4549., other than section 4511.19 or 4511.194 of Delaware County, Case No. 24 CAA 04 0027 9
the Revised Code, or under a municipal ordinance that is substantially
similar to any section other than section 4511.19 or 4511.194 of the Revised
Code contained in any of those chapters, and if the records pertaining to all
the other charges would be eligible for sealing or expungement under
section 2953.33, 2953.39, or 2953.521 of the Revised Code in the absence
of that conviction, the court may order that the records pertaining to all the
charges be sealed or expunged. In such a case, the court shall not order
that only a portion of the records be sealed or expunged.
{¶13} In the case sub judice, the appellant was charged with three offenses arising
out of his conduct on February 8, 2022, following his one-vehicle accident: two OVI
offenses, and an Improper Handling of Firearms in a Motor Vehicle offense. The parties
entered into a written plea agreement in which the Improper Handling of a Firearm charge
and one of the OVI charges were dismissed. The appellant pleaded guilty to the OVI -
Refusal with Prior charge, and the Improper Handling of a Firearm charge was reasserted
through a bill of particulars under a different case number so the appellant would be
eligible for ILC.
{¶14} R.C. 2953.32 addresses exclusions from expungement, and states in
(A)(1) Sections 2953.32 to 2953.34 of the Revised Code do not apply
to any of the following:
(a) Convictions under Chapter 4506., 4507., 4510., 4511., or
4549. of the Revised Code, or a conviction for a violation of a municipal Delaware County, Case No. 24 CAA 04 0027 10
ordinance that is substantially similar to any section contained in any of
those chapters.
{¶15} The appellant, who pleaded guilty to and was convicted of OVI-Refusal with
Prior in violation of R.C. 4511.19(A)(2)(a) and (G)(1)(a), submits that the trial court erred
when it found that the improper handling of firearms in a motor vehicle charge and the
OVI charge were the result of or connected with the same act. We disagree.
{¶16} The Ohio Supreme Court addressed expungement of a charge when
connected to another charge which cannot by law be expunged. The defendant in State
v. Pariag, 2013-Ohio-4010, filed an application for expungement of the records of
dismissed drug charges that stemmed from a traffic accident that resulted in his conviction
on a traffic charge. The Court stated:
Pariag is ineligible to have the records of the dismissed drug charges
that otherwise would be sealable under R.C. 2953.52(A) and 2953.61
sealed if all charges arose as the result of or in connection with the same
act. R.C. 2953.61 thus focuses not on when separate offenses occurred,
but on whether they arose from the same conduct of the applicant. Upon
remand, the trial court must decide whether the dismissed drug charges
stemmed from the same act as Pariag's traffic violation. If the court finds
that the same conduct generated both charges, the conviction for the
unsealable traffic offense will prevent records from the otherwise sealable
dismissed drug charges from being sealed.
Id. at ¶20. In this case, the trial court correctly determined that the dismissed Improper
Handling of Firearms charge stemmed from the same conduct as the appellant’s OVI- Delaware County, Case No. 24 CAA 04 0027 11
Refusal with Prior charge, and offense that is not subject to expungement. Accordingly,
the appellant’s sole assignment of error is without merit.
CONCLUSION
{¶17} Based upon the foregoing, the appellant’s sole assignment of error is
overruled, and the decision of the Delaware County Court of Common Pleas is hereby
affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, John, J. concur.