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Sealing a record of non-conviction

by | Mar 8, 2022 | Criminal Defense

Sealing a record of non-conviction: a two-year delay for people who were not indicted and immediate eligibility for people who were indicted

People in Ohio are eligible to seal a record of non-conviction immediately after a dismissal, yet people who are accused of a crime but not indicted must wait two years before they are eligible to seal a record of non-conviction. A discrepancy that is likely an oversight by our legislature and something that should be changed.

When an individual files a motion to seal a non-conviction, the person is asking the court to shield the charge from the public record. Sealing a non-conviction removes from the record the fact that a person was charged with a crime. It helps with background checks related to things like employment, work, and living opportunities. It is fair and equitable because no conviction exists – the person was not found guilty under the law, at any point.

Sealing a record of non-conviction immediately upon dismissal

Under Ohio law, a defendant is permitted to file a motion to seal a criminal charge immediately upon a dismissal of the charge. A dismissal of the charge arises in several ways: by way of the judge granting a motion to dismiss, through a voluntary dismissal by the prosecutor, by way of a diversion program or intervention in lieu of conviction (in which the defendant pleads guilty and if successfully completes a probationary term, the charge is dismissed), or from a not guilty verdict after a bench or jury trial.

Grand jury ‘no bill’

But what happens when an individual is charged in a lower court with a felony, the case makes its way to the grand jury, and the grand jury issues a ‘no-bill?’ Or, what happens when the defendant is not charged in the lower court, but the prosecutor seeks a direct indictment and the grand jury issues a ‘no-bill?’ A no-bill is issued by a grand jury when the grand jury decides to not file an indictment (which is a formal charge) against the defendant. When this occurs, the felony court (i.e., the Common Pleas Court) does not have the jurisdiction over the case because there is no pending charge.

Unfortunately, when a defendant is either: charged in the lower court and ultimately receives a ‘no bill’ by a grand jury; or has a case brought directly before the grand jury by the prosecutor without charges filed in the lower court (i.e., a direct indictment), that information is public record. This means a background check by anyone reveals that although the person was not convicted of a felony, the person was nonetheless charged with a felony or that the person had a felony case that was pending at one time. And again, because the charge was no-billed, the individual was never actually convicted; however, the stigma of the felony charge or case itself is concerning and can be problematic when applying to schools, jobs, or housing.

Sealing a record of non-conviction after a ‘no bill’

Ohio law—specifically, R.C. 2953.52—says an individual who received a no-bill by a grand jury must wait two years before he or she is eligible to file a motion to seal. In other words, the individual who was never convicted of a crime but whose case was simply considered by a grand jury and disregarded must wait two years before he or she can have the opportunity to seal the felony charge or case from their record.

Why does the law make an individual wait two years after a grand jury issues a no-bill, before the person can request the felony case be dismissed? Perhaps the legislature thought under these circumstances, there was no finality or clear resolution to the matter—or, perhaps that the government may at some point later, try to re-indict the person. On the other hand, in the case of dismissals, the matter is closed—there is no constitutional way that felony charge could resurface. We believe there is no compelling reason the no-billed felony case should be viewable by the public. There would be nothing preventing the government from re-seeking an indictment even if the felony case was no-billed and the original charge was sealed. We believe that the two-year waiting period for eligibility to seal a non-conviction should be fixed by the legislature.

If you or someone you know need representation, the experienced criminal defense attorneys at Rittgers Rittgers & Nakajima are here to help. Feel free to contact 513-496-0134 for a free consultation today.