State v. Vanzandt (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

State v. Vanzandt, Slip Opinion No. 2015-Ohio-236.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2015-OHIO-236

THE STATE OF OHIO, APPELLEE, v. VANZANDT, F.K.A. ASBERRY, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Vanzandt, Slip Opinion No. 2015-Ohio-236.]

Official records that have been sealed pursuant to R.C. 2953.52 cannot be made

accessible for purposes other than those provided in R.C. 2953.53(D).

(No. 2013-1010—Submitted May 27, 2014—Decided January 28, 2015.)

APPEAL from the Court of Appeals for Hamilton County,

No. C-130079, 2013-Ohio-2290.

______________________

SYLLABUS OF THE COURT

1. When a statutory provision imposing a mandatory obligation has specifically

enumerated exceptions, a court does not have discretion to create

additional exceptions.

2. Official records that have been sealed pursuant to R.C. 2953.52 cannot be made

accessible for purposes other than those provided in R.C. 2953.53(D).

_____________________

SUPREME COURT OF OHIO

O’CONNOR, C.J.

{¶ 1} In this appeal, we address whether a court has discretion to unseal

records of criminal proceedings for purposes other than those provided in R.C.

2953.53(D). We hold that the court does not have discretion to create additional

exceptions to permit access to sealed records, and we therefore reverse the

judgment of the First District Court of Appeals.

Relevant History

{¶ 2} Appellant, Terrell Vanzandt, formerly known as Terrell Asberry,

was charged with four criminal offenses related to drug trafficking and was

subsequently acquitted by a jury. Vanzandt then moved to seal the records in that

case pursuant to R.C. 2953.52. The motion was granted by the trial court on

October 4, 2012, with no objection from appellee, the state of Ohio. But three

days after the trial court entered judgment sealing Vanzandt’s record, the state

charged Vanzandt with another crime, alleging that Vanzandt had retaliated

against the state’s informant in the drug-trafficking case. More than three months

later, on January 15, 2013, the state moved to unseal the record of Vanzandt’s

drug-trafficking case so that it could be used as evidence in the retaliation case.

The trial court granted the state’s motion over Vanzandt’s objection, holding that

evidence of the case was crucial to the state’s pending retaliation case against

Vanzandt.

{¶ 3} The First District Court of Appeals affirmed the trial court’s

judgment, holding that a court’s authority with respect to sealing a criminal record

does not originate solely from the statutory scheme. The court cited Pepper Pike

v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981), in support of its holding.

The appellate court noted that R.C. 2953.53(D) provides that the sealed records of

criminal cases ending in acquittal or dismissal “shall not be available to any

person” other than the specific exceptions enumerated in the statute. However,

the appellate court held that nothing in the statute addresses the question whether

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a trial court retains the authority to unseal records for reasons other than those

enumerated.

{¶ 4} The First District determined that Pepper Pike’s holding regarding

a court’s extrastatutory authority to seal records leads naturally to the conclusion

that courts also have extrastatutory authority to unseal records. 2013-Ohio-2290,

990 N.E.2d 692, ¶ 8-13 (1st Dist.). The First District reasoned that a trial court’s

determination whether to exercise its discretion to unseal records should be

guided by the same standards provided in Pepper Pike, which allowed the court to

exercise its extrastatutory discretion to seal records only in unusual and

exceptional cases, after weighing the applicant’s interests in sealing the records

against the government’s interest in maintaining the records. Id. at ¶ 15-16. The

First District concluded that Vanzandt’s case was one of those unusual and

exceptional cases that allowed discretionary unsealing and that the state’s interest

in prosecuting Vanzandt for retaliation far outweighed any interest that Vanzandt

had in keeping the records sealed. Id. at ¶ 17-20.

{¶ 5} We accepted Vanzandt’s discretionary appeal in order to address

the issue whether a court has the authority to unseal official records for a purpose

different from those explicitly authorized under R.C. 2953.53. 136 Ohio St.3d

1491, 2013-Ohio-4140, 994 N.E.2d 462.1

Analysis

{¶ 6} The decision in this case turns on the interpretation of R.C.

2953.53(D). The interpretation of a statute is a question of law, and accordingly,

we review the matter de novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-

4010, 998 N.E.2d 401, ¶ 9.

{¶ 7} When analyzing statutory provisions, our paramount concern is to

ascertain and give effect to the intention of the General Assembly. Henry v. Cent.

1

Vanzandt acknowledged during oral argument that the circumstances of his sealed case are now

in the public domain.

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SUPREME COURT OF OHIO

Natl. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the

syllabus. We primarily seek to determine legislative intent from the plain

language of a statute. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-

Ohio-6280, 943 N.E.2d 522, ¶ 18. “If the meaning of the statute is unambiguous

and definite, it must be applied as written and no further interpretation is

necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74

Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). An unambiguous statute must be

applied by giving effect to all of its language, without adding or deleting any

words chosen by the General Assembly. Armstrong v. John R. Jurgensen Co.,

136 Ohio St.3d 58, 2013-Ohio-2237, 990 N.E.2d 568, ¶ 12.

{¶ 8} Vanzandt’s application to seal his records was governed by R.C.

2953.52, which applies to “[a]ny 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.” R.C. 2953.52(A)(1). The statute allows a court to

seal an applicant’s records only after determining (1) the disposition of the

applicant’s case, (2) whether any other criminal proceedings are currently pending

against the applicant, and (3) whether the applicant’s interests in sealing the

records are outweighed by any legitimate governmental needs to maintain the

records. R.C. 2953.52(B)(4).

{¶ 9} After a court enters judgment sealing an applicant’s records

pursuant to R.C. 2953.52, access to those records is governed by R.C.

2953.53(D), which generally provides that the sealed records “shall not be

available to any person.” The statute includes four exceptions that allow access to

the records for limited purposes: (1) use of the records by the person who is the

subject of the records for any purpose, (2) use by a law-enforcement officer to

defend against a civil action arising from the officer’s involvement in the sealed

criminal case, (3) use by a prosecuting attorney to determine a defendant’s

eligibility to enter a pretrial diversion program for offenders unlikely to reoffend,

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January Term, 2015

and (4) use by a prosecuting attorney to determine the eligibility of a person

charged with alcohol-related offenses to enter a diversion program. Id.

{¶ 10} “We have repeatedly recognized that use of the term ‘shall’ in a

statute or rule connotes the imposition of a mandatory obligation unless other

language is included that evidences a clear and unequivocal intent to the

contrary.” State v. Golphin, 81 Ohio St.3d 543, 545-546, 692 N.E.2d 608 (1998).

Inversely, use of the words “shall not” indicates that a statutory prohibition is

mandatory. See Cantwell v. State, 18 Ohio St. 477 (1869), paragraph two of the

syllabus. Accordingly, the provision of R.C. 2953.53(D) stating that sealed

records “shall not be available to any person” constitutes a mandatory prohibition,

except for the four enumerated purposes. The statutory language at issue here is

unambiguous and need only be applied as written. Official records that have been

sealed pursuant to R.C. 2953.52 cannot be made accessible for purposes other

than those provided in R.C. 2953.53(D). Because the state in this case is not

seeking access to Vanzandt’s sealed records for one of the purposes set forth in

the four exceptions, the state’s motion to unseal the records should have been

denied.

{¶ 11} Although the First District concluded, and the state argues, that an

application of Pepper Pike demands a different result, Pepper Pike is inapplicable

to the instant case. One of the major distinctions is that Pepper Pike involved a

request to seal records, not a request to unseal records that had already been

sealed pursuant to a final order. Further, at the time Pepper Pike was decided,

R.C. 2953.31 et seq. permitted the sealing of records relating to the convictions of

first-time offenders, but a provision for sealing the record in criminal cases

resulting in acquittal or dismissal, now found in R.C. 2953.51 et seq., did not

exist. Yet in the instance in which a defendant had been subjected to criminal

charges that were based on purely vindictive accusations—charges that were later

dismissed with prejudice—a court’s refusing to seal those records due to

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legislative silence failed to protect the defendant’s compelling interests and did

little to promote any governmental interest. Pepper Pike, 66 Ohio St.2d at 376-

377, 421 N.E.2d 1303. See also State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-

4582, 4 N.E.3d 980, ¶ 13-14. To remedy this inequitable situation in the absence

of guidance from the General Assembly, we determined that courts had limited

extrastatutory authority to seal records of criminal proceedings in certain unusual

and exceptional cases. Pepper Pike at paragraph two of the syllabus. Courts

could carry out this limited authority by following the guidelines in the already

existing statutes governing the sealing of criminal records. Id. at 378.

{¶ 12} It is possible for legislative silence on an issue to support the

conclusion that a statute is ambiguous. See, e.g., State v. Bartrum, 121 Ohio St.3d

148, 2009-Ohio-355, 902 N.E.2d 961, ¶ 17. And if the statute’s silence on an

issue suggests an ambiguity, a court may ascertain the General Assembly’s intent

in enacting the statute by considering several factors, including the spirit of the

statute and relevant public-policy concerns. State ex rel. Toledo Edison Co. v.

Clyde, 76 Ohio St.3d 508, 513-514, 668 N.E.2d 498 (1996). Because our analysis

in Pepper Pike proceeded in the context of legislative silence, we were able to

consider the significant public-policy interests at play and found a place for

judicial discretion. But here we are not faced with legislative silence; we are

faced with an express legislative prohibition. There is no ambiguity.

Accordingly, Pepper Pike is not controlling.

{¶ 13} Nothing in the terms of R.C. 2953.53(D) indicates that its limited

exceptions are illustrative rather than exhaustive. The creation of an exception to

a statute that is not suggested by any of its terms constitutes “the abrogation,

rather than the construction, of the statute.” Morris Coal Co. v. Donley, 73 Ohio

St. 298, 303-304, 76 N.E. 945 (1906). Despite the fact that policy considerations

may lean strongly in favor of granting access to the sealed records in Vanzandt’s

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January Term, 2015

case, a court cannot create additional exceptions to R.C. 2953.53(D) where they

do not exist.

{¶ 14} The court was therefore not authorized to unseal Vanzandt’s

records for the purpose provided in the state’s motion.

Conclusion

{¶ 15} When a statutory provision imposing a mandatory obligation has

specifically enumerated exceptions, a court does not have discretion to create

additional exceptions. R.C. 2953.53(D) expressly prohibits access to sealed

records for purposes other than those specifically listed in the statute’s

enumerated exceptions, and those exceptions should not have been expanded

through the exercise of judicial discretion in this case.

{¶ 16} The state’s interest in unsealing Vanzandt’s record is

understandable,2 but irrelevant; the state, like individuals, is bound by the General

Assembly’s determination of public policy as expressed in the Revised Code. We

must heed the plain language of this unambiguous statute, and any claim of

injustice or inequity must be resolved through the legislative process rather than

judicial redress.

{¶ 17} Accordingly, we reverse the court of appeals’ judgment and

remand this cause to the trial court with instructions to vacate its judgment.

Judgment reversed

and cause remanded.

LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur.

PFEIFER, J., dissents.

O’DONNELL, J., dissents and would dismiss the case as improvidently

allowed.

2

We note that unsealing Vanzandt’s record was not critical to the success of the state’s

prosecution for retaliation. For example, the state would be able to introduce the testimony of the

victim of the retaliation.

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SUPREME COURT OF OHIO

_____________________

PFEIFER, J., dissenting.

{¶ 18} One interesting aspect of this case is that in it, the state takes a

diametrically opposite position from its position in another case released today,

State v. Radcliff, ___ Ohio St.3d ___, 2015-Ohio-235, __ N.E.3d __, with respect

to the vitality of Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303 (1981).

In Radcliff, the state argued that “Pepper Pike no longer provides extrastatutory

inherent power to seal records in criminal cases.” In this case, the state argues not

only that Pepper Pike lives, but that it should be extended, stating, “Just as there

is judicial authority to seal records in unusual and exceptional cases, there should

also be a judicial authority to unseal records in unusual and exceptional cases.”

{¶ 19} Though I have served on this court a long time, the court is still

able to surprise and sadden me. Today, the court decides two cases related to the

sealing of criminal records and issues two opinions so lacking in justice that they

defy credulity. As Don Imus says, you can’t make this stuff up. In State v.

Radcliff, the court disallows the sealing of records of criminal convictions that are

30 years old and for which the offender has been pardoned by a governor of Ohio.

In this case, the court concludes that records of criminal cases less than three

years old must remain sealed; indeed, it holds that their existence can’t even be

recognized for the limited purpose of showing that there had been a previous trial.

In Radcliff, the failure to seal the records ensures that a public-school employee

with 20 years of good service is ineligible to work for the school. In this case, the

failure to unseal the record ensures that a person accused of retaliating against a

witness will not be prosecuted. Two cases, two exactly wrong conclusions. So

much for justice, equity, sanity.

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January Term, 2015

{¶ 20} Although it is hard to tell sometimes given the strictures this court

submits itself to,3 this court and all courts in Ohio can act in the absence of a

statute. Although the Revised Code contains many statutes that bind this court, it

has not yet subsumed the entirety of the common law. See Bresnik v. Beulah

Park Ltd. Partnership, Inc., 67 Ohio St.3d 302, 304, 617 N.E.2d 1096 (1993)

(“Not every statute is to be read as an abrogation of the common law”).

Furthermore, the courts of Ohio have “plenary power to administer justice which

is inherent in every court whose jurisdiction derives from the Ohio Constitution.”

State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 422, 423 N.E.2d 80 (1981);

see Zangerle v. Cuyahoga Cty. Court of Common Pleas, 141 Ohio St. 70, 46

N.E.2d 865 (1943), paragraph two of the syllabus.

{¶ 21} As explained in my dissent in Radcliff, courts have inherent power

to seal records in unusual and exceptional cases. See Pepper Pike, 66 Ohio St.2d

374, 421 N.E.2d 1303. In my opinion, a court that has the inherent power to seal

records in unusual and exceptional cases has the inherent power to unseal them in

unusual and exceptional cases.

{¶ 22} The case before us is unusual. The state is not asking to unseal the

entirety of the record for all time; it is seeking to unseal the record for a specific

limited purpose: to prove that a person was a witness in a prior case. That’s it.

And then, after the record is unsealed for that limited purpose, the record would

be resealed. Courts have and ought to have the authority to so act. Otherwise, as

in this case, a person who retaliates against a witness for something said in a

sealed case will be immune from punishment for that retaliation. To the

benighted sovereign immunity, we must now add retaliation immunity.

3

The three-part test set forth in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-

5849, 797 N.E.2d 1256, is a good example. It has been described as “unworkable,” and “of

questionable value,” Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883

N.E.2d 377, ¶ 221 and 223 (Lanzinger, J., concurring in part), and as a “legalistic straitjacket,”

Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d

714, ¶ 19 (Pfeifer, J., dissenting).

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SUPREME COURT OF OHIO

{¶ 23} I dissent.

_____________________

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.

Heenan, Assistant Prosecuting Attorney, for appellee.

Raymond T. Faller, Hamilton County Public Defender, and Christine Y.

Jones and Josh Thompson, Assistant Public Defenders, for appellant.

_____________________

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