As Reported by House Criminal Justice Committee           1            

123rd General Assembly                                             4            

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

      1999-2000                                                    6            


          SENATOR BLESSING-REPRESENTATIVES LOGAN-MYERS-            8            

                     TAYLOR-CALLENDER-JONES                        9            


_________________________________________________________________   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 when the     22           

                offense is a misdemeanor of the first degree or a  23           

                felony, an offense of which the victim was a       24           

                juvenile when the offense is a misdemeanor of the               

                first degree or a felony, or a felony of the       25           

                first or second degree.                                         




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        27           

      Section 1.  That sections 2953.31, 2953.32, and 2953.36 of   29           

the Revised Code be amended to read as follows:                    30           

      Sec. 2953.31.  As used in sections 2953.31 to 2953.36 of     39           

the Revised Code:                                                  40           

      (A)  "First offender" means anyone who has been convicted    42           

of an offense in this state or any other jurisdiction, and who     43           

previously or subsequently has not been convicted of the same or   44           

a different offense in this state or any other jurisdiction.       45           

                                                          2      


                                                                 
When two or more convictions result from or are connected with     46           

the same act, or result from offenses committed at the same time,  47           

they shall be counted as one conviction.  WHEN TWO OR THREE        48           

CONVICTIONS RESULT FROM THE SAME INDICTMENT, INFORMATION, OR       49           

COMPLAINT, FROM THE SAME PLEA OF GUILTY, OR FROM THE SAME          50           

OFFICIAL PROCEEDING, AND RESULT FROM RELATED CRIMINAL ACTS THAT    51           

WERE COMMITTED WITHIN A THREE-MONTH PERIOD BUT DO NOT RESULT FROM  52           

THE SAME ACT OR FROM OFFENSES COMMITTED AT THE SAME TIME, THEY     53           

SHALL BE COUNTED AS ONE CONVICTION, PROVIDED THAT A COURT MAY      54           

DECIDE AS PROVIDED IN DIVISION (C)(1)(a) OF SECTION 2953.32 OF     55           

THE REVISED CODE THAT IT IS NOT IN THE PUBLIC INTEREST FOR THE     56           

TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE CONVICTION.          57           

      For purposes of, and except as otherwise provided in, this   59           

division, a conviction for a minor misdemeanor, a conviction for   60           

a violation of any section in Chapter 4511., 4513., or 4549. of    61           

the Revised Code, or a conviction for a violation of a municipal   62           

ordinance that is substantially similar to any section in those    63           

chapters, is not a previous or subsequent conviction.  A           64           

conviction for a violation of section 4511.19, 4511.192,           65           

4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.07, or     66           

sections 4549.41 to 4549.46 of the Revised Code, or a conviction   67           

for a violation of a municipal ordinance that is substantially     68           

similar to any of those sections, shall be considered a previous   69           

or subsequent conviction.                                          70           

      (B)  "Prosecutor" means the county prosecuting attorney,     72           

city director of law, village solicitor, or similar chief legal    73           

officer, who has the authority to prosecute a criminal case in     74           

the court in which the case is filed.                              75           

      (C)  "Bail forfeiture" means the forfeiture of bail by a     77           

defendant who is arrested for the commission of a misdemeanor,     78           

other than a defendant in a traffic case as defined in Traffic     79           

Rule 2, if the forfeiture is pursuant to an agreement with the     80           

court and prosecutor in the case.                                  81           

      (D)  "Official records" has the same meaning as in division  83           

                                                          3      


                                                                 
(D) of section 2953.51 of the Revised Code.                        84           

      (E)  "OFFICIAL PROCEEDING" HAS THE SAME MEANING AS IN        86           

SECTION 2921.01 OF THE REVISED CODE.                               87           

      Sec. 2953.32.  (A)(1)  Except as provided in section         96           

2953.61 of the Revised Code, a first offender may apply to the     97           

sentencing court if convicted in this state, or to a court of      98           

common pleas if convicted in another state or in a federal court,  99           

for the sealing of the conviction record that offender's.          100          

Application may be made at the expiration of three years after     102          

the offender's final discharge if convicted of a felony, or at     103          

the expiration of one year after the offender's final discharge    104          

if convicted of a misdemeanor.                                                  

      (2)  Any person who has been arrested for any misdemeanor    106          

offense and who has effected a bail forfeiture may apply to the    107          

court in which the misdemeanor criminal case was pending when      108          

bail was forfeited for the sealing of that person's the record of  109          

the case.  Except as provided in section 2953.61 of the Revised    110          

Code, the application may be filed at any time after the           111          

expiration of one year from the date on which the bail forfeiture  112          

was entered upon the minutes of the court or the journal,          113          

whichever entry occurs first.                                      114          

      (B)  Upon the filing of an application under this section,   116          

the court shall set a date for a hearing and shall notify the      117          

prosecutor for the case of the hearing on the application.  The    118          

prosecutor may object to the granting of the application by        119          

filing an objection with the court prior to the date set for the   120          

hearing.  The prosecutor shall specify in the objection the        121          

reasons the prosecutor for believing a denial of the application   122          

is justified.  The court shall direct its regular probation        124          

officer, a state probation officer, or the department of           125          

probation of the county in which the applicant resides to make     126          

inquiries and written reports as the court requires concerning     127          

the applicant.                                                                  

      (C)(1)  The court shall do each of the following:            129          

                                                          4      


                                                                 
      (a)  Determine whether the applicant is a first offender or  131          

whether the forfeiture of bail was agreed to by the applicant and  132          

the prosecutor in the case;.  IF THE APPLICANT APPLIES AS A FIRST  134          

OFFENDER PURSUANT TO DIVISION (A)(1) OF THIS SECTION AND HAS TWO   135          

OR THREE CONVICTIONS THAT RESULT FROM THE SAME INDICTMENT,                      

INFORMATION, OR COMPLAINT, FROM THE SAME PLEA OF GUILTY, OR FROM   136          

THE SAME OFFICIAL PROCEEDING, AND RESULT FROM RELATED CRIMINAL     137          

ACTS THAT WERE COMMITTED WITHIN A THREE-MONTH PERIOD BUT DO NOT    138          

RESULT FROM THE SAME ACT OR FROM OFFENSES COMMITTED AT THE SAME    139          

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

INITIALLY SHALL DETERMINE WHETHER IT IS NOT IN THE PUBLIC          140          

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

CONVICTION.  IF THE COURT DETERMINES THAT IT IS NOT IN THE PUBLIC  142          

INTEREST FOR THE TWO OR THREE CONVICTIONS TO BE COUNTED AS ONE     143          

CONVICTION, THE COURT SHALL DETERMINE THAT THE APPLICANT IS NOT A  144          

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

THE COURT SHALL DETERMINE THAT THE OFFENDER IS A FIRST OFFENDER.   145          

      (b)  Determine whether criminal proceedings are pending      147          

against the applicant;                                             148          

      (c)  If the applicant is a first offender who applies        150          

pursuant to division (A)(1) of this section, determine whether     151          

the applicant has been rehabilitated to the satisfaction of the    152          

court;                                                             153          

      (d)  If the prosecutor has filed an objection in accordance  155          

with division (B) of this section, consider the reasons against    156          

granting the application specified by the prosecutor in the        157          

objection;                                                         158          

      (e)  Weigh the interests of the applicant in having the      160          

records pertaining to the applicant's conviction sealed against    161          

the legitimate needs, if any, of the government to maintain those  162          

records.                                                           163          

      (2)  If the court determines, after complying with division  165          

(C)(1) of this section, that the applicant is a first offender or  166          

the subject of a bail forfeiture, that no criminal proceeding is   167          

                                                          5      


                                                                 
pending against the applicant, and that the interests of the       168          

applicant in having the records pertaining to the applicant's      170          

conviction or bail forfeiture sealed are not outweighed by any     171          

legitimate governmental needs to maintain those records, and that  172          

the rehabilitation of an applicant who is a first offender         173          

applying pursuant to division (A)(1) of this section has been      174          

attained to the satisfaction of the court, the court, except as    175          

provided in division (G) of this section, shall order all          176          

official records pertaining to the case sealed and, except as      177          

provided in division (F) of this section, all index references to  178          

the case deleted and, in the case of bail forfeitures, shall       179          

dismiss the charges in the case.  The proceedings in the case      180          

shall be considered not to have occurred and the conviction or     181          

bail forfeiture of the person who is the subject of the            182          

proceedings shall be sealed, except that upon conviction of a      183          

subsequent offense, the sealed record of prior conviction or bail  184          

forfeiture may be considered by the court in determining the       185          

sentence or other appropriate disposition, including the relief    186          

provided for in sections 2953.31 to 2953.33 of the Revised Code.   187          

      (3)  Upon the filing of an application under this section,   189          

the applicant, unless the applicant indigent, shall pay a fee of   190          

fifty dollars.  The court shall pay thirty dollars of the fee      192          

into the state treasury.  It shall pay twenty dollars of the fee   193          

into the county general revenue fund if the sealed conviction or   194          

bail forfeiture was pursuant to a state statute, or into the       195          

general revenue fund of the municipal corporation involved if the  196          

sealed conviction or bail forfeiture was pursuant to a municipal   197          

ordinance.                                                         198          

      (D)  Inspection of the sealed records included in the order  200          

may be made only by the following persons or for the following     201          

purposes:                                                          202          

      (1)  By a law enforcement officer or prosecutor, or the      205          

assistants of the law enforcement officer or prosecutor of                      

either, to determine whether the nature and character of the       207          

                                                          6      


                                                                 
offense with which a person is to be charged would be affected by  208          

virtue of the person's previously having been convicted of a       209          

crime;                                                                          

      (2)  By the parole or probation officer of the person who    211          

is the subject of the records, for the exclusive use of the        212          

officer in supervising the person while the person on parole or    213          

probation and in making inquiries and written reports as           214          

requested by the court or adult parole authority;                  215          

      (3)  Upon application by the person who is the subject of    217          

the records, by the persons named in that person's the             218          

application;                                                                    

      (4)  By a law enforcement officer who was involved in the    220          

case, for use in the officer's defense of a civil action arising   221          

out of the officer's involvement in that case;                     222          

      (5)  By a prosecuting attorney or the prosecuting            224          

attorney's assistants of the prosecuting attorney to determine a   226          

defendant's eligibility to enter a pre-trial diversion program     227          

established pursuant to section 2935.36 of the Revised Code;       228          

      (6)  By any law enforcement agency or any authorized         230          

employee of a law enforcement agency or by the department of       231          

rehabilitation and correction as part of a background              232          

investigation of a person who applies for employment with the      233          

agency as a law enforcement officer or with the department as a    234          

corrections officer;                                               235          

      (7)  By any law enforcement agency or any authorized         237          

employee of a law enforcement agency, for the purposes set forth   238          

in, and in the manner provided in, section 2953.321 of the         239          

Revised Code;                                                      240          

      (8)  By the bureau of criminal identification and            242          

investigation or any authorized employee of the bureau for the     243          

purpose of providing information to a board or person pursuant to  244          

division (F) or (G) of section 109.57 of the Revised Code;         245          

      (9)  By the bureau of criminal identification and            247          

investigation or any authorized employee of the bureau for the     248          

                                                          7      


                                                                 
purpose of performing a criminal history records check on a        250          

person to whom a certificate as prescribed in section 109.77 of    251          

the Revised Code is to be awarded.                                 252          

      When the nature and character of the offense with which a    254          

person is to be charged would be affected by the information, it   255          

may be used for the purpose of charging the person with an         256          

offense.                                                           257          

      (E)  In any criminal proceeding, proof of any otherwise      259          

admissible prior conviction may be introduced and proved,          260          

notwithstanding the fact that for any such prior conviction an     261          

order of sealing previously was issued pursuant to sections        262          

2953.31 to 2953.36 of the Revised Code.                            263          

      (F)  The person or governmental agency, office, or           265          

department that maintains sealed records pertaining to             266          

convictions or bail forfeitures that have been sealed pursuant to  267          

this section may maintain a manual or computerized index to the    268          

sealed records.  The index shall contain only the name of, and     269          

alphanumeric identifiers that relate to, the persons who are the   270          

subject of the sealed records, the word "sealed," and the name of  271          

the person, agency, office, or department that has custody of the  272          

sealed records, and shall not contain the name of the crime        273          

committed.  The index shall be made available by the person who    274          

has custody of the sealed records only for the purposes set forth  275          

in divisions (C), (D), and (E) of this section.                    276          

      (G)  Notwithstanding any provision of this section or        278          

section 2953.33 of the Revised Code that requires otherwise, a     279          

board of education of a city, local, exempted village, or joint    280          

vocational school district that maintains records of an            281          

individual who has been permanently excluded under sections        282          

3301.121 and 3313.662 of the Revised Code is permitted to          283          

maintain records regarding a conviction that was used as the       284          

basis for the individual's permanent exclusion, regardless of a    285          

court order to seal the record.  An order issued under this        286          

section to seal the record of a conviction does not revoke the     287          

                                                          8      


                                                                 
adjudication order of the superintendent of public instruction to  288          

permanently exclude the individual who is the subject of the       289          

sealing order.  An order issued under this section to seal the     290          

record of a conviction of an individual may be presented to a      291          

district superintendent as evidence to support the contention      292          

that the superintendent should recommend that the permanent        293          

exclusion of the individual who is the subject of the sealing      294          

order be revoked.  Except as otherwise authorized by this          295          

division and sections 3301.121 and 3313.662 of the Revised Code,   296          

any school employee in possession of or having access to the       297          

sealed conviction records of an individual that were the basis of  298          

a permanent exclusion of the individual is subject to section      299          

2953.35 of the Revised Code.                                       300          

      Sec. 2953.36.  Sections 2953.31 to 2953.35 of the Revised    311          

Code do not apply to convictions ANY OF THE FOLLOWING:             312          

      (A)  CONVICTIONS when the offender is subject to a           314          

mandatory prison term, convictions;                                316          

      (B)  CONVICTIONS under section 2907.02, 2907.03, 2907.04,    318          

2907.05, 2907.06, 2907.321, 2907.322, or 2907.323, former section  320          

2907.12, or Chapter 4507., 4511., or 4549. of the Revised Code,    321          

or a conviction for a violation of a municipal ordinance that is   323          

substantially similar to any section contained in any of those     324          

chapters, or bail;                                                              

      (C)  CONVICTIONS OF AN OFFENSE OF VIOLENCE WHEN THE OFFENSE  326          

IS A MISDEMEANOR OF THE FIRST DEGREE OR A FELONY;                  327          

      (D)  CONVICTIONS OF AN OFFENSE IN CIRCUMSTANCES IN WHICH     330          

THE VICTIM OF THE OFFENSE WAS UNDER EIGHTEEN YEARS OF AGE WHEN     331          

THE OFFENSE IS A MISDEMEANOR OF THE FIRST DEGREE OR A FELONY;      332          

      (E)  CONVICTIONS OF A FELONY OF THE FIRST OR SECOND DEGREE;  335          

      (F)  BAIL forfeitures in a traffic case as defined in        338          

Traffic Rule 2.                                                                 

      Section 2.  That existing sections 2953.31, 2953.32, and     340          

2953.36 of the Revised Code are hereby repealed.                   341          

      Section 3.  Section 2953.32 of the Revised Code is           343          

                                                          9      


                                                                 
presented in this act as a composite of the section as amended by  344          

both Am. Sub. H.B. 566 and Am. Sub. S.B. 160 of the 121st General  345          

Assembly, with the new language of neither of the acts shown in    346          

capital letters.  Section 2953.36 of the Revised Code is           347          

presented in this act as a composite of the section as amended by  348          

Am. Sub. H.B. 445, Am. Sub. H.B. 353, and Am. Sub. S.B. 269 of     349          

the 121st General Assembly, with the new language of none of the   350          

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

principle stated in division (B) of section 1.52 of the Revised    352          

Code that such amendments are to be harmonized where not                        

substantively irreconcilable and constitutes a legislative         353          

finding that such is the resulting version in effect prior to the  354          

effective date of this act.