As Reported by the Senate Judiciary Committee            1            

123rd General Assembly                                             4            

   Regular Session                              Sub. S. B. No. 13  5            

      1999-2000                                                    6            


                        SENATOR BLESSING                           8            


_________________________________________________________________   10           

                          A   B I L L                                           

             To amend sections 2953.31, 2953.32, and 2953.36 of    12           

                the Revised Code to expand the definition of       13           

                "first offender" in the criminal conviction        14           

                records sealing law to include, in certain         15           

                situations, offenders who have two or three        16           

                convictions resulting from the same indictment,    17           

                information, complaint, guilty plea, or official   18           

                proceeding and resulting from related criminal     20           

                acts that were committed within a three-month                   

                period, and to exclude from that law all           21           

                convictions of an offense of violence, an offense  22           

                of which the victim was a juvenile, or a felony    23           

                of the first or second degree.                                  




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        25           

      Section 1.  That sections 2953.31, 2953.32, and 2953.36 of   27           

the Revised Code be amended to read as follows:                    28           

      Sec. 2953.31.  As used in sections 2953.31 to 2953.36 of     37           

the Revised Code:                                                  38           

      (A)  "First offender" means anyone who has been convicted    40           

of an offense in this state or any other jurisdiction, and who     41           

previously or subsequently has not been convicted of the same or   42           

a different offense in this state or any other jurisdiction.       43           

When two or more convictions result from or are connected with     44           

the same act, or result from offenses committed at the same time,  45           

they shall be counted as one conviction.  WHEN TWO OR THREE        46           

CONVICTIONS RESULT FROM THE SAME INDICTMENT, INFORMATION, OR       47           

                                                          2      


                                                                 
COMPLAINT, FROM THE SAME PLEA OF GUILTY, OR FROM THE SAME          48           

OFFICIAL PROCEEDING, AND RESULT FROM RELATED CRIMINAL ACTS THAT    49           

WERE COMMITTED WITHIN A THREE-MONTH PERIOD BUT DO NOT RESULT FROM  50           

THE SAME ACT OR FROM OFFENSES COMMITTED AT THE SAME TIME, THEY     51           

SHALL BE COUNTED AS ONE CONVICTION, PROVIDED THAT A COURT MAY      52           

DECIDE AS PROVIDED IN DIVISION (C)(1)(a) OF SECTION 2953.32 OF     53           

THE REVISED CODE THAT IT IS NOT IN THE PUBLIC INTEREST FOR THE     54           

TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE CONVICTION.          55           

      For purposes of, and except as otherwise provided in, this   57           

division, a conviction for a minor misdemeanor, a conviction for   58           

a violation of any section in Chapter 4511., 4513., or 4549. of    59           

the Revised Code, or a conviction for a violation of a municipal   60           

ordinance that is substantially similar to any section in those    61           

chapters, is not a previous or subsequent conviction.  A           62           

conviction for a violation of section 4511.19, 4511.192,           63           

4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.07, or     64           

sections 4549.41 to 4549.46 of the Revised Code, or a conviction   65           

for a violation of a municipal ordinance that is substantially     66           

similar to any of those sections, shall be considered a previous   67           

or subsequent conviction.                                          68           

      (B)  "Prosecutor" means the county prosecuting attorney,     70           

city director of law, village solicitor, or similar chief legal    71           

officer, who has the authority to prosecute a criminal case in     72           

the court in which the case is filed.                              73           

      (C)  "Bail forfeiture" means the forfeiture of bail by a     75           

defendant who is arrested for the commission of a misdemeanor,     76           

other than a defendant in a traffic case as defined in Traffic     77           

Rule 2, if the forfeiture is pursuant to an agreement with the     78           

court and prosecutor in the case.                                  79           

      (D)  "Official records" has the same meaning as in division  81           

(D) of section 2953.51 of the Revised Code.                        82           

      (E)  "OFFICIAL PROCEEDING" HAS THE SAME MEANING AS IN        84           

SECTION 2921.01 OF THE REVISED CODE.                               85           

      Sec. 2953.32.  (A)(1)  Except as provided in section         94           

                                                          3      


                                                                 
2953.61 of the Revised Code, a first offender may apply to the     95           

sentencing court if convicted in this state, or to a court of      96           

common pleas if convicted in another state or in a federal court,  97           

for the sealing of the conviction record that offender's.          98           

Application may be made at the expiration of three years after     100          

the offender's final discharge if convicted of a felony, or at     101          

the expiration of one year after the offender's final discharge    102          

if convicted of a misdemeanor.                                                  

      (2)  Any person who has been arrested for any misdemeanor    104          

offense and who has effected a bail forfeiture may apply to the    105          

court in which the misdemeanor criminal case was pending when      106          

bail was forfeited for the sealing of that person's the record of  107          

the case.  Except as provided in section 2953.61 of the Revised    108          

Code, the application may be filed at any time after the           109          

expiration of one year from the date on which the bail forfeiture  110          

was entered upon the minutes of the court or the journal,          111          

whichever entry occurs first.                                      112          

      (B)  Upon the filing of an application under this section,   114          

the court shall set a date for a hearing and shall notify the      115          

prosecutor for the case of the hearing on the application.  The    116          

prosecutor may object to the granting of the application by        117          

filing an objection with the court prior to the date set for the   118          

hearing.  The prosecutor shall specify in the objection the        119          

reasons the prosecutor for believing a denial of the application   120          

is justified.  The court shall direct its regular probation        122          

officer, a state probation officer, or the department of           123          

probation of the county in which the applicant resides to make     124          

inquiries and written reports as the court requires concerning     125          

the applicant.                                                                  

      (C)(1)  The court shall do each of the following:            127          

      (a)  Determine whether the applicant is a first offender or  129          

whether the forfeiture of bail was agreed to by the applicant and  130          

the prosecutor in the case;.  IF THE APPLICANT APPLIES AS A FIRST  132          

OFFENDER PURSUANT TO DIVISION (A)(1) OF THIS SECTION AND HAS TWO   133          

                                                          4      


                                                                 
OR THREE CONVICTIONS THAT RESULT FROM THE SAME INDICTMENT,                      

INFORMATION, OR COMPLAINT, FROM THE SAME PLEA OF GUILTY, OR FROM   134          

THE SAME OFFICIAL PROCEEDING, AND RESULT FROM RELATED CRIMINAL     135          

ACTS THAT WERE COMMITTED WITHIN A THREE-MONTH PERIOD BUT DO NOT    136          

RESULT FROM THE SAME ACT OR FROM OFFENSES COMMITTED AT THE SAME    137          

TIME, IN MAKING ITS DETERMINATION UNDER THIS DIVISION, THE COURT                

INITIALLY SHALL DETERMINE WHETHER IT IS NOT IN THE PUBLIC          138          

INTEREST FOR THE TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE     139          

CONVICTION.  IF THE COURT DETERMINES THAT IT IS NOT IN THE PUBLIC  140          

INTEREST FOR THE TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE     141          

CONVICTION, THE COURT SHALL DETERMINE THAT THE APPLICANT IS NOT A  142          

FIRST OFFENDER; IF THE COURT DOES NOT MAKE THAT DETERMINATION,                  

THE COURT SHALL DETERMINE THAT THE OFFENDER IS A FIRST OFFENDER.   143          

      (b)  Determine whether criminal proceedings are pending      145          

against the applicant;                                             146          

      (c)  If the applicant is a first offender who applies        148          

pursuant to division (A)(1) of this section, determine whether     149          

the applicant has been rehabilitated to the satisfaction of the    150          

court;                                                             151          

      (d)  If the prosecutor has filed an objection in accordance  153          

with division (B) of this section, consider the reasons against    154          

granting the application specified by the prosecutor in the        155          

objection;                                                         156          

      (e)  Weigh the interests of the applicant in having the      158          

records pertaining to the applicant's conviction sealed against    159          

the legitimate needs, if any, of the government to maintain those  160          

records.                                                           161          

      (2)  If the court determines, after complying with division  163          

(C)(1) of this section, that the applicant is a first offender or  164          

the subject of a bail forfeiture, that no criminal proceeding is   165          

pending against the applicant, and that the interests of the       166          

applicant in having the records pertaining to the applicant's      168          

conviction or bail forfeiture sealed are not outweighed by any     169          

legitimate governmental needs to maintain those records, and that  170          

                                                          5      


                                                                 
the rehabilitation of an applicant who is a first offender         171          

applying pursuant to division (A)(1) of this section has been      172          

attained to the satisfaction of the court, the court, except as    173          

provided in division (G) of this section, shall order all          174          

official records pertaining to the case sealed and, except as      175          

provided in division (F) of this section, all index references to  176          

the case deleted and, in the case of bail forfeitures, shall       177          

dismiss the charges in the case.  The proceedings in the case      178          

shall be considered not to have occurred and the conviction or     179          

bail forfeiture of the person who is the subject of the            180          

proceedings shall be sealed, except that upon conviction of a      181          

subsequent offense, the sealed record of prior conviction or bail  182          

forfeiture may be considered by the court in determining the       183          

sentence or other appropriate disposition, including the relief    184          

provided for in sections 2953.31 to 2953.33 of the Revised Code.   185          

      (3)  Upon the filing of an application under this section,   187          

the applicant, unless the applicant indigent, shall pay a fee of   188          

fifty dollars.  The court shall pay thirty dollars of the fee      190          

into the state treasury.  It shall pay twenty dollars of the fee   191          

into the county general revenue fund if the sealed conviction or   192          

bail forfeiture was pursuant to a state statute, or into the       193          

general revenue fund of the municipal corporation involved if the  194          

sealed conviction or bail forfeiture was pursuant to a municipal   195          

ordinance.                                                         196          

      (D)  Inspection of the sealed records included in the order  198          

may be made only by the following persons or for the following     199          

purposes:                                                          200          

      (1)  By a law enforcement officer or prosecutor, or the      203          

assistants of the law enforcement officer or prosecutor of                      

either, to determine whether the nature and character of the       205          

offense with which a person is to be charged would be affected by  206          

virtue of the person's previously having been convicted of a       207          

crime;                                                                          

      (2)  By the parole or probation officer of the person who    209          

                                                          6      


                                                                 
is the subject of the records, for the exclusive use of the        210          

officer in supervising the person while the person on parole or    211          

probation and in making inquiries and written reports as           212          

requested by the court or adult parole authority;                  213          

      (3)  Upon application by the person who is the subject of    215          

the records, by the persons named in that person's the             216          

application;                                                                    

      (4)  By a law enforcement officer who was involved in the    218          

case, for use in the officer's defense of a civil action arising   219          

out of the officer's involvement in that case;                     220          

      (5)  By a prosecuting attorney or the prosecuting            222          

attorney's assistants of the prosecuting attorney to determine a   224          

defendant's eligibility to enter a pre-trial diversion program     225          

established pursuant to section 2935.36 of the Revised Code;       226          

      (6)  By any law enforcement agency or any authorized         228          

employee of a law enforcement agency or by the department of       229          

rehabilitation and correction as part of a background              230          

investigation of a person who applies for employment with the      231          

agency as a law enforcement officer or with the department as a    232          

corrections officer;                                               233          

      (7)  By any law enforcement agency or any authorized         235          

employee of a law enforcement agency, for the purposes set forth   236          

in, and in the manner provided in, section 2953.321 of the         237          

Revised Code;                                                      238          

      (8)  By the bureau of criminal identification and            240          

investigation or any authorized employee of the bureau for the     241          

purpose of providing information to a board or person pursuant to  242          

division (F) or (G) of section 109.57 of the Revised Code;         243          

      (9)  By the bureau of criminal identification and            245          

investigation or any authorized employee of the bureau for the     246          

purpose of performing a criminal history records check on a        248          

person to whom a certificate as prescribed in section 109.77 of    249          

the Revised Code is to be awarded.                                 250          

      When the nature and character of the offense with which a    252          

                                                          7      


                                                                 
person is to be charged would be affected by the information, it   253          

may be used for the purpose of charging the person with an         254          

offense.                                                           255          

      (E)  In any criminal proceeding, proof of any otherwise      257          

admissible prior conviction may be introduced and proved,          258          

notwithstanding the fact that for any such prior conviction an     259          

order of sealing previously was issued pursuant to sections        260          

2953.31 to 2953.36 of the Revised Code.                            261          

      (F)  The person or governmental agency, office, or           263          

department that maintains sealed records pertaining to             264          

convictions or bail forfeitures that have been sealed pursuant to  265          

this section may maintain a manual or computerized index to the    266          

sealed records.  The index shall contain only the name of, and     267          

alphanumeric identifiers that relate to, the persons who are the   268          

subject of the sealed records, the word "sealed," and the name of  269          

the person, agency, office, or department that has custody of the  270          

sealed records, and shall not contain the name of the crime        271          

committed.  The index shall be made available by the person who    272          

has custody of the sealed records only for the purposes set forth  273          

in divisions (C), (D), and (E) of this section.                    274          

      (G)  Notwithstanding any provision of this section or        276          

section 2953.33 of the Revised Code that requires otherwise, a     277          

board of education of a city, local, exempted village, or joint    278          

vocational school district that maintains records of an            279          

individual who has been permanently excluded under sections        280          

3301.121 and 3313.662 of the Revised Code is permitted to          281          

maintain records regarding a conviction that was used as the       282          

basis for the individual's permanent exclusion, regardless of a    283          

court order to seal the record.  An order issued under this        284          

section to seal the record of a conviction does not revoke the     285          

adjudication order of the superintendent of public instruction to  286          

permanently exclude the individual who is the subject of the       287          

sealing order.  An order issued under this section to seal the     288          

record of a conviction of an individual may be presented to a      289          

                                                          8      


                                                                 
district superintendent as evidence to support the contention      290          

that the superintendent should recommend that the permanent        291          

exclusion of the individual who is the subject of the sealing      292          

order be revoked.  Except as otherwise authorized by this          293          

division and sections 3301.121 and 3313.662 of the Revised Code,   294          

any school employee in possession of or having access to the       295          

sealed conviction records of an individual that were the basis of  296          

a permanent exclusion of the individual is subject to section      297          

2953.35 of the Revised Code.                                       298          

      Sec. 2953.36.  Sections 2953.31 to 2953.35 of the Revised    309          

Code do not apply to convictions when the offender is subject to   310          

a mandatory prison term, convictions under section 2907.02,        311          

2907.03, 2907.04, 2907.05, 2907.06, 2907.321, 2907.322, or         312          

2907.323, former section 2907.12, or Chapter 4507., 4511., or      313          

4549. of the Revised Code, or a conviction for a violation of a    314          

municipal ordinance that is substantially similar to any section   315          

contained in any of those chapters, CONVICTIONS OF AN OFFENSE OF   316          

VIOLENCE, CONVICTIONS OF AN OFFENSE IN CIRCUMSTANCES IN WHICH THE  317          

VICTIM OF THE OFFENSE WAS UNDER EIGHTEEN YEARS OF AGE,             318          

CONVICTIONS OF A FELONY OF THE FIRST OR SECOND DEGREE, or bail     319          

forfeitures in a traffic case as defined in Traffic Rule 2.        320          

      Section 2.  That existing sections 2953.31, 2953.32, and     322          

2953.36 of the Revised Code are hereby repealed.                   323          

      Section 3.  Section 2953.32 of the Revised Code is           325          

presented in this act as a composite of the section as amended by  326          

both Am. Sub. H.B. 566 and Am. Sub. S.B. 160 of the 121st General  327          

Assembly, with the new language of neither of the acts shown in    328          

capital letters.  Section 2953.36 of the Revised Code is           329          

presented in this act as a composite of the section as amended by  330          

Am. Sub. H.B. 445, Am. Sub. H.B. 353, and Am. Sub. S.B. 269 of     331          

the 121st General Assembly, with the new language of none of the   332          

acts shown in capital letters.  This is in recognition of the                   

principle stated in division (B) of section 1.52 of the Revised    334          

Code that such amendments are to be harmonized where not                        

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substantively irreconcilable and constitutes a legislative         335          

finding that such is the resulting version in effect prior to the  336          

effective date of this act.