[Cite as State v. Niesen-Pennycuff, 132 Ohio St.3d 416, 2012-Ohio-2730.]




      THE STATE OF OHIO, APPELLEE, v. NIESEN-PENNYCUFF, APPELLANT.
   [Cite as State v. Niesen-Pennycuff, 132 Ohio St.3d 416, 2012-Ohio-2730.]
Criminal law—Intervention in lieu of conviction—R.C. 2951.041—Trial court has
        discretion to employ R.C. 2953.52(A)(1) and determine that defendant
        may have record sealed immediately upon successful completion of
        intervention program.
     (No. 2011-1070—Submitted February 8, 2012—Decided June 21, 2012.)
               APPEAL from the Court of Appeals for Warren County,
                        No. CA2010-11-112, 2011-Ohio-2704.
                                 __________________
                               SYLLABUS OF THE COURT
When a defendant who has successfully completed a program of intervention in
        lieu of conviction moves for an order sealing his or her record under R.C.
        2951.041(E), the trial court has discretion either to grant the motion
        immediately under R.C. 2953.52(A)(1) or to impose the waiting period set
        forth in R.C. 2953.32(A)(1). (R.C. 2951.041(E), construed.)
                                 __________________
        LUNDBERG STRATTON, J.
        {¶ 1} Today we are called upon to interpret R.C. 2951.041(E), a
provision of the statute governing intervention in lieu of conviction (“ILC”).
Specifically, we are asked to establish the scope of a trial court’s discretion to seal
the record of a defendant who has successfully completed the ILC program. For
the reasons that follow, we hold that a trial court has discretion to determine that
successful completion of the ILC program entitles the defendant to immediate
sealing of his or her record under R.C. 2953.52(A)(1) or to impose the waiting
                             SUPREME COURT OF OHIO




period set forth in R.C. 2953.32(A)(1). Therefore, we reverse the judgment of the
court of appeals and remand the matter to the trial court.
                          Facts and Procedural History
        {¶ 2} On April 21, 2009, appellant, Regina Niesen-Pennycuff, was
indicted on 12 counts of deception to obtain a dangerous drug, in violation of R.C.
2925.22(A), felonies of the fifth degree. Niesen-Pennycuff initially pled not
guilty, but later moved for ILC pursuant to R.C. 2951.041. The trial court found
that she was eligible for intervention and ordered an intervention plan.         As
required by the ILC statute, Niesen-Pennycuff retracted her initial plea, pled
guilty to the charges, pending successful completion of her intervention program,
and was placed on community control for three years.
        {¶ 3} On August 24, 2010, the court filed a termination entry in which it
recognized Niesen-Pennycuff’s successful completion of the intervention program
and thereby dismissed the 12 pending charges against her. On September 23,
2010, Niesen-Pennycuff filed an application for sealing of her record after
dismissal of the proceedings. The state opposed the application and argued that
Niesen-Pennycuff was ineligible to have her record sealed until three years after
the dismissal of the charges against her, or August 24, 2013. The trial court
agreed and denied Niesen-Pennycuff’s application, but invited her to reapply in
2013.
        {¶ 4} Niesen-Pennycuff appealed, and the Warren County Court of
Appeals affirmed the judgment of the trial court but sua sponte certified its
decision as in conflict with the Ninth District Court of Appeals’ decision in State
v. Fortado, 108 Ohio App.3d 706, 671 N.E.2d 622 (9th Dist.1996). State v.
Niesen-Pennycuff, 12th Dist. No. CA2010-11-112, 2011-Ohio-2704.
        {¶ 5} Niesen-Pennycuff filed a notice of certification of conflict, and this
court granted discretionary review and certified a conflict on the following issue:




                                         2
                               January Term, 2012




              Must a trial court order the sealing of records in the manner
       provided in R.C. 2953.32, which requires a one-year waiting
       period for misdemeanors and a three-year waiting period for
       felonies, or may the trial court employ R.C. 2953.52(A)(1) and
       determine that a defendant who has successfully completed the
       intervention in lieu of conviction program is eligible to have their
       record sealed immediately upon successful completion of the
       program?


State v. Niesen-Pennycuff, 129 Ohio St.3d 1473, 2011-Ohio-4751, 953 N.E.2d
840.
                                Law and Analysis
       {¶ 6} Intervention in lieu of conviction is established in R.C. 2951.041,
and pursuant to R.C. 2951.041(A)(1),


              If an offender is charged with a criminal offense * * * and
       the court has reason to believe that drug or alcohol usage by the
       offender was a factor leading to the criminal offense with which
       the offender is charged * * *, the court may accept, prior to the
       entry of a guilty plea, the offender’s request for intervention in lieu
       of conviction.


       {¶ 7} As we held in State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-
1864, 926 N.E.2d 1282,


              ILC is a statutory creation that allows a trial court to stay a
       criminal proceeding and order an offender to a period of
       rehabilitation if the court has reason to believe that drug or alcohol



                                         3
                              SUPREME COURT OF OHIO




        usage was a factor leading to the offense. R.C. 2951.041(A)(1).
        ***
                 “In enacting R.C. 2951.041, the legislature made a
        determination that when chemical abuse is the cause or at least a
        precipitating factor in the commission of a crime, it may be more
        beneficial to the individual and the community as a whole to treat
        the cause rather than punish the crime.” State v. Shoaf (2000), 140
        Ohio App.3d 75, 77, 746 N.E.2d 674. * * * [For that reason,] ILC
        is not designed as punishment, but rather as an opportunity for
        first-time offenders to receive help for their dependence without
        the ramifications of a felony conviction.          State v. Ingram,
        Cuyahoga App. No. 84925, 2005-Ohio-1967, 2005 WL 977820,
        ¶ 13.


Id. at ¶ 9-10.
        {¶ 8} The section of the ILC statute that deals with the sealing of
records, R.C. 2951.041(E), provides:


                 If the court grants an offender’s request for intervention in
        lieu of conviction and the court finds that the offender has
        successfully completed the intervention plan for the offender, * * *
        the court shall dismiss the proceedings against the offender.
        Successful completion of the intervention plan and period of
        abstinence under this section shall be without adjudication of guilt
        and is not a criminal conviction for purposes of any
        disqualification or disability imposed by law and upon conviction
        of a crime, and the court may order the sealing of records related to




                                           4
                                January Term, 2012




       the offense in question in the manner provided in sections 2953.31
       to 2953.36 of the Revised Code.


       {¶ 9} The state argues that the statute’s reference to R.C. 2953.31 to
2953.36 means that the sealing of records in ILC is governed by R.C.
2953.32(A)(1), which requires a three-year waiting period before a defendant may
move for an order sealing the record. However, R.C. 2953.31 to 2953.36 govern
the sealing of an individual’s record following the conviction of a crime. See,
e.g., R.C. 2953.32(A)(1) (“a first offender may apply to the sentencing court if
convicted * * * for the sealing of the conviction record”). That subsection further
provides that “[a]pplication may be made at the expiration of three years after the
offender’s final discharge if convicted of a felony, or at the expiration of one year
after the offender’s final discharge if convicted of a misdemeanor.” (Emphasis
added.) But in an ILC case, an offender who has successfully completed ILC has
no conviction.
       {¶ 10} Niesen-Pennycuff urges us to refer instead to R.C. 2953.52, which
governs the sealing of a record after the dismissal of a case. Under that statute,
any person who is found not guilty of an offense or whose complaint, indictment,
or information was dismissed may apply for an order to seal related records any
time after the not-guilty finding or dismissal is entered. R.C. 2953.52(A)(1).
       {¶ 11} Thus, whether Niesen-Pennycuff is eligible to have her record
sealed immediately or whether she has to wait for the period specified in R.C.
2953.52 depends on the meaning of the phrase in R.C. 2951.041(E) that the court
“may order the sealing of records related to the offense in question in the manner
provided in sections 2953.31 to 2953.36 of the Revised Code.”
       {¶ 12} In this case, the trial court denied Niesen-Pennycuff’s application
for sealing of her record after dismissal of the proceedings, but invited her to
reapply in 2013, when the trial court thought she would be eligible. The court of



                                         5
                            SUPREME COURT OF OHIO




appeals affirmed the judgment of the trial court, holding that the language of R.C.
2951.041(E) requires a court to follow the provisions in R.C. 2953.31 through
2953.36 rather than R.C. 2953.52(A)(1). The court of appeals also sua sponte
certified a conflict between its holding in this case and the holding of the Ninth
District Court of Appeals in Fortado, 108 Ohio App.3d 706, 671 N.E.2d 622.
        {¶ 13} We disagree with the approach taken by the appellate court below
as well as the approach taken in Fortado and instead hold that (1) R.C.
2951.041(E)’s use of the phrase “in the manner provided in” R.C. 2953.31 to
2953.36 does not connote a legislative intent that the court must comply with
those statutes and (2) the use of the word “may” in R.C. 2951.041(E) allows trial
courts the discretion to apply—or not apply—the statutes from R.C. Chapter
2953.
        {¶ 14} The Twelfth District below took the approach that under the plain
language of R.C. 2951.041(E), R.C. 2953.31 to 2953.36 govern the sealing of the
defendant’s record after his or her case is dismissed following successful
completion of ILC. Thus, under R.C. 2953.32(A)(1), Niesen-Pennycuff must wait
three years before applying for the sealing of her records. But this approach
thwarts the legislative intent behind ILC. As we have said, R.C. 2951.041 was
designed to eliminate punishment by offering first-time offenders an opportunity
to receive help for their dependence without the ramifications of a felony
conviction. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282,
¶ 10.
        {¶ 15} It is unreasonable, therefore, to view R.C. 2951.041(E)’s reference
to R.C. 2953.31 to 2953.36 as imposing a requirement that ILC defendants must
carry a criminal record for three years after the charges have been dismissed due
to successful completion of the ILC program.
        {¶ 16} In the conflict case, State v. Fortado, 108 Ohio App.3d 706, 671
N.E.2d 622, the defendant successfully completed ILC, and the trial court



                                        6
                                  January Term, 2012




dismissed the charges. The defendant then moved the court for an order sealing
the record pursuant to R.C. 2953.52(A)(1) rather than R.C. 2951.041(E). The
court granted the motion. The state appealed, arguing that R.C. 2953.32(A)(1)
requires a defendant to wait three years before requesting that his records be
sealed.
          {¶ 17} The Fortado court held that the trial court had not erred in granting
the motion before three years had passed, because the indictments had been
dismissed, and R.C. 2953.52(A)(1) applies generally to dismissals. The court
quoted R.C. 2951.041 but did not apply it or comment on it.
          {¶ 18} We are persuaded by the rationale advanced in State v. Smith, 3d
Dist. No. 9-04-05, 2004-Ohio-6668. Although the issue in Smith is somewhat
different from the issue here, the analysis contains certain insights that we find
relevant. In upholding the trial court’s sua sponte order relating to the records of
the dismissed charges, the court noted that based on R.C. 2951.041(E),


          the trial court has the authority to seal the record of an offender
          who has successfully completed an intervention program and
          against whom proceedings have been dismissed. Based on the
          language of R.C. 2951.041(E) that the court may order the records
          sealed in the “manner provided” by the expungement statutes,
          * * * we find that the legislature intended the trial court to have the
          authority to order the records sealed even without an application by
          the offender.


Id. at ¶ 22.
          {¶ 19} We believe that the Smith court’s observation about the language
of R.C. 2951.041(E) is correct. R.C. 2951.041(E) employs the unusual phrase “in
the manner provided in” rather than “pursuant to.” According to Black’s Law



                                            7
                             SUPREME COURT OF OHIO




Dictionary, “pursuant to” means “[i]n compliance with; in accordance with; * * *
[a]s authorized by; under.” Black’s Law Dictionary 1356 (9th Ed.2009). “In the
manner provided in” does not connote such rigid compliance. “Manner” is
defined as “the mode or method in which something is done or happens: a mode
of procedure or way of acting.” Webster’s Third New International Dictionary
1376 (1986).
       {¶ 20} We conclude that R.C. 2951.041(E)’s use of the phrase “in the
manner provided in” signifies that R.C. 2951.041(E) was not intended to impose
on ILC defendants all the requirements and limitations of R.C. 2953.31 to
2953.36. The phrase “in the manner provided in” is less prescriptive and more in
the nature of guidance than a command. It connotes only the “mode or method,”
i.e., the general procedure provided in those statutes.
       {¶ 21} Thus, R.C. 2951.041(E)’s reference to R.C. 2953.31 to 2953.36 is
meant to incorporate the general procedures for filing an application to seal. It is
not meant to impose on all ILC defendants the requirements and limitations
imposed by those statutes on convicted persons. For example, a court in an ILC
case may be guided by the procedures set out in R.C. 2953.32, such as the
procedures for setting a hearing, notifying the prosecutor, making the findings
described in subdivision (C)(1), determining forfeiture of bail, determining
whether criminal proceedings are pending against the applicant, etc.
       {¶ 22} In sum, trial courts may refer to R.C. 2953.31 to 2953.36 for
guidance in matters of procedure but are not bound to follow those provisions.
Thus, a trial court may be guided by R.C. 2953.32(A)(1) and, in its discretion,
impose a waiting period before granting a motion to seal under R.C. 2951.041(E).
This reading further comports with the use of the permissive word “may” in R.C.
2951.041(E): “the court may order the sealing of records related to the offense in
question in the manner provided in sections 2953.31 to 2953.36 of the Revised
Code.” Had the legislature intended to impose the requirements and limitations of



                                          8
                                January Term, 2012




those statutes on every ILC defendant, it would have used the word “shall.”
Finally, this reading is in line with the remedial purpose of ILC without rendering
the phrase “in the manner provided in” superfluous or meaningless.
       {¶ 23} As the Fourth District noted in State v. Mills, 4th Dist. No.
10CA3144, 2011-Ohio-377, “the process for sealing criminal records does not
always fit neatly within the treatment-in-lieu-of-conviction statute.” Id. at ¶ 10.
The court went on to note that it had interpreted any inherent ambiguities in the
defendant’s favor because we “ ‘must liberally construe [R.C. 2953.31-36] so as
to promote the legislative purpose of allowing expungements.’ ” (Brackets sic.)
Id., quoting State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th
Dist.2001). We agree. Thus, we conclude that the trial court has discretion to
seal the record of a case that was dismissed following successful completion of
ILC without a waiting period.
                                    Conclusion
       {¶ 24} Treating all ILC defendants as though they have been convicted of
a crime when their charges have been dismissed pursuant to a program designed
to avoid the very ramifications of a conviction would run counter to the purpose
of ILC.    Accordingly, we hold that when a defendant who has successfully
completed a program of intervention in lieu of conviction moves for an order
sealing his or her record under R.C. 2951.041(E), the trial court has discretion
either to grant the motion immediately under R.C. 2953.52(A)(1) or to impose the
waiting period set forth in R.C. 2953.32(A)(1).
       {¶ 25} Therefore, we reverse the judgment of the court of appeals and
remand the cause to the trial court for proceedings consistent with this opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, CUPP, and MCGEE BROWN,
JJ., concur.



                                         9
                            SUPREME COURT OF OHIO




       LANZINGER, J., concurs in judgment only.
                              __________________
       O’DONNELL, J., concurring.
       {¶ 26} I concur in the majority’s holding that R.C. 2951.041(E) confers
discretion upon courts to seal the records of defendants who successfully
complete intervention in lieu of conviction, permitting those courts to decide
whether to impose the restrictions and limitations contained in R.C. 2953.31
through 2953.36.
       {¶ 27} I further agree that defendants can apply for the sealing of records
pursuant to R.C. 2951.041(E) once the trial court journalizes an entry that
dismisses the pending charges and terminates the case.
       {¶ 28} I concur in the majority’s judgment and write separately only to
reinforce the majority’s determination that a conviction is required to trigger the
application of R.C. 2953.31 through 2953.36.
       {¶ 29} Intervention in lieu of conviction provides first offenders with the
opportunity to obtain treatment for chemical dependency without any criminal
sanction and shows that the General Assembly recognizes that treatment can be
“ ‘more beneficial to the individual and the community as a whole’ ” because it
treats “ ‘the cause rather than punish[es] the crime.’ ” State v. Massien, 125 Ohio
St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 10, quoting State v. Shoaf, 140
Ohio App.3d 75, 77, 746 N.E.2d 674 (10th Dist.2000).
       {¶ 30} Dispositive of the issue presented in this appeal is the language of
R.C. 2951.041(E):


       Successful completion of the intervention plan and period of
       abstinence under this section shall be without adjudication of guilt
       and is not a criminal conviction for purposes of any
       disqualification or disability imposed by law and upon conviction



                                        10
                               January Term, 2012




       of a crime, and the court may order the sealing of records related to
       the offense in question in the manner provided in sections 2953.31
       to 2953.36 of the Revised Code.


(Emphasis added.)
       {¶ 31} R.C. 2953.31 through 2953.36 relate to sealing a record of
conviction. R.C. 2953.32 sets forth the method by which a trial court may seal
the record of conviction for an individual who is a “first offender,” which R.C.
2953.31(A) defines as one “who has been convicted of an offense in this state or
any other jurisdiction and who previously or subsequently has not been convicted
of the same or a different offense in this state or any other jurisdiction.”
Applications to seal records pursuant to R.C. 2953.32 are subject to a prescribed
waiting period. R.C. 2953.52(A)(1) governs the sealing of records following a
finding of not guilty or the dismissal of a complaint, indictment, or information
and imposes no waiting period.
       {¶ 32} By its express terms, R.C. 2953.32 applies only to those
individuals who have been convicted of a criminal offense. The purpose of
successful completion of an intervention plan is to avoid conviction; the pending
charges are dismissed and the matter is adjudicated without a finding of guilt. In
my view, because the successful completion of an intervention plan prevents a
criminal conviction, R.C. 2953.32 does not apply to the sealing of those records.
       {¶ 33} The reference in R.C. 2951.041(E) to R.C. 2953.31 through
2953.36 indicates that the General Assembly intended for courts to have
discretion in sealing the records of an individual who successfully completes an
intervention plan: a court may do so according to the manner provided in either
R.C. 2953.32, by imposing a waiting period before a defendant may move for an
order to seal, or R.C. 2953.52, by allowing a defendant to apply for an order to
seal at any time after dismissal. But the court is not required to impose R.C.



                                         11
                             SUPREME COURT OF OHIO




2953.32’s waiting period, because there has been no conviction.              This
construction gives effect to the intent of the legislature, while a contrary
determination thwarts the very purposes for which the legislature created
intervention in lieu of conviction.
       {¶ 34} Accordingly, the trial court had no duty to follow R.C. 2953.32 in
sealing the records of Niesen-Pennycuff because R.C. 2951.041(E) did not
mandate sealing pursuant to that statute and because she did not have a conviction
that otherwise triggered R.C. 2953.32.
       {¶ 35} For these reasons, I concur in the judgment reversing the court of
appeals.
                               __________________
       David P. Fornshell, Warren County Prosecuting Attorney, and Michael
Greer, Assistant Prosecuting Attorney, for appellee.
       Rittgers & Rittgers and Nicholas D. Graman, for appellant.
                            ______________________




                                         12
