         [Cite as State v. Vanzandt, 2013-Ohio-2290.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :      APPEAL NO. C-130079
                                                        TRIAL NO. B-1200737-B
        Plaintiff-Appellee,                       :
                                                            O P I N I O N.
  vs.                                             :

TERRELL VANZANDT, f.k.a.                          :
TERRELL ASBERRY,
                                                  :
    Defendant-Appellant.




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 5, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

A. Brian McIntosh, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}    This case presents a question of first impression: may a trial court

that has issued an order sealing a criminal defendant’s record of acquittal later

unseal the record to allow for the criminal prosecution of the defendant?           The

defendant argues that the trial court erred in unsealing his record of acquittal

because the court lacked explicit statutory authority to do so. We disagree. We

conclude that a court possesses inherent authority to unseal records that have been

sealed, and may exercise that authority in unusual and exceptional cases. We further

conclude that under the facts before us, the trial court did not abuse its discretion in

unsealing the defendant’s records.

                                            I.

       {¶2}    Terrell Vanzandt was indicted on three counts of trafficking in drugs

and one count of aggravated trafficking.         A jury acquitted Mr. Vanzandt of all

charges. Shortly thereafter, Mr. Vanzandt moved to seal the record of his acquittal

pursuant to R.C. 2953.52. With no objection from the state, the trial court granted

the motion to seal.

       {¶3}    Three months after the case had been sealed, the state moved to

unseal the case. The state alleged that Mr. Vanzandt had retaliated against the

confidential informant just three days after his case was sealed. The state argued

that it needed to use the trafficking case as evidence to prove its case of witness

retaliation. Following a hearing, the trial court granted the motion to unseal for the

limited purpose of use by the state in the retaliation case. The court’s order provides:

       The defendant is currently facing a retaliation charge in case no. B-

       1206778. That charge springs forth from this case. Because evidence




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       of this case is crucial to the state’s case, the court grants the motion to

       unseal. The state of Ohio shall be permitted to use the records of this

       case in case no. B-1206778 and may introduce them as evidence. The

       records shall otherwise remain sealed.

                                            II.

       {¶4}     In his sole assignment of error, Mr. Vanzandt asserts that the trial

court erred when it unsealed the records because it lacked statutory authority to do

so.

       {¶5}     R.C. 2953.52 sets forth procedures under which a person who has

been found not guilty or has had charges against him dismissed may have the case

records sealed. The statutory scheme provides that such “sealed official records * * *

shall not be available to any person” except (1) to the person who is the subject of the

record and anyone designated by that person, (2) to a law enforcement official

defending himself in a civil suit arising out of the case, and (3) to the prosecutor in

certain circumstances to determine eligibility for a pretrial diversion program. R.C.

2953.53(D).    Ohio has a separate statutory framework that governs the sealing or

expungement of records of convictions, and access to such records.              See R.C.

2953.31-2953.36.

       {¶6}     There is nothing in the statutory scheme that addresses the question

of whether, in a case like ours, a trial court that has sealed records retains the power

to unseal the records and to allow their use outside the confines set forth in R.C.

2953.53(D).    To answer this question, it is helpful to trace the sources of a court’s

authority to seal its records.

       {¶7}     There is a strong presumption of a public right of access to court

records, but it also has been long understood that a court has “supervisory power



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over its own records and files[.]” Nixon v. Warner Communications, Inc., 435 U.S.

589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). See State ex rel. Cincinnati Enquirer

v. Winkler, 149 Ohio App.3d 350, 2002-Ohio-4803, 777 N.E.2d 320, ¶ 15 (1st Dist.);

In re Search Warrant No. 5077/91, 96 Ohio App.3d 737, 645 N.E.2d 1304 (10th

Dist.1994).

       {¶8}    The power to seal a record of acquittal does not flow solely from R.C.

2953.52. Prior to the statute’s enactment, the Ohio Supreme Court recognized a

judicial power to order the expungement and sealing of records where charges were

dismissed prior to trial.   Pepper Pike v. Doe, 66 Ohio St.2d 374, 421 N.E.2d 1303

(1981). In Pepper Pike, the defendant sought to seal the record of an assault case

that had been filed against her based on allegations of her ex-husband and his wife.

Id. at 377. The charges—which the Supreme Court characterized as “a vindictive tool

to harass appellant”—had been dismissed with prejudice at the request of the

prosecuting witness prior to trial. Id. at 377 and paragraph one of the syllabus. The

trial court concluded that it did not have authority to seal the record of the case

because the only statutory mechanism in place at the time, R.C. 2953.32, provided

only for the sealing of records of convictions.

       {¶9}    While acknowledging that R.C. 2953.32 only provided for the sealing

and expungement of convictions, the Supreme Court held that the lack of a similar

statutory scheme for dismissed charges did not mean that a court lacked the

authority to seal such records in appropriate circumstances. Id. at 376-77. To the

contrary, “even absent statutory authorization,” trial courts retain the authority “to

order expungement where such unusual and exceptional circumstances make it

appropriate to exercise jurisdiction over the matter.” Id. at 376 and paragraph two of

the syllabus. The court cautioned that an order of expungement did not “obliterate”



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the criminal record. Rather, as with conviction expungements under R.C. 2953.32,

“the government, even after expungement, is entitled to retain the record of

appellant’s arrest in its appropriate files. It will remain an historical event, available

for use in legitimate criminal investigations, and as the appellant may direct.” Id. at

378.

       {¶10}   Three years after Pepper Pike, the legislature enacted a statutory

means, R.C. 2953.51 through 2953.56, by which a defendant could move to seal the

record of his case following an acquittal or a dismissal. Since the enactment of the

statutes, courts have recognized that in areas not addressed by the legislation there

continues to exist a judicial power to seal records in unusual and exceptional cases.

For example, it has been held that despite a lack of statutory authorization, a court

has the authority to grant judicial expungement where an executive pardon is at

issue. State v. Boykin, 9th Dist. Nos. 25752 and 25845, 2012-Ohio-1381. It also has

been held that a court may seal children services records as part of a criminal case

where a no bill has been issued even though the statute specifically excludes children

services records from “official records” that are subject to statutory expungement.

See In re Application to Seal Record of No Bill, 131 Ohio App.3d 399, 722 N.E.2d

602 (3d Dist.1999).     Likewise, at least one court has authorized the sealing of an

arrest record where no charges were ever filed. Bound v. Biscotti, 76 Ohio Misc.2d 6,

663 N.E.2d 1376 (M.C.1995). Courts that have found such judicial authority to exist

have been careful to note its limited scope. It has been said that “although the

judicial expungement power to grant an expungement still exists * * * it is limited to

cases where the accused has been acquitted or exonerated in some way and

protection of the accused’s privacy interests is paramount to prevent injustice.”




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State v. Chiaverini, 6th Dist. No. L-000-1305, 2001 Ohio App. LEXIS 1190, *4 (Mar.

16, 2001).

       {¶11}    It does not appear that any other Ohio appellate courts have been

confronted with the issue of whether this inherent and limited judicial authority to

seal records also extends to the power to unseal. Certainly, however, the existence of

extra-statutory authority to seal a case suggests the existence of extra-statutory

authority to unseal a case as well.

       {¶12}    Further, there is nothing in the statutory scheme that is inconsistent

with a judicial power to grant access to sealed cases. R.C. 2953.53(D) provides a

mandatory duty to allow access for the individuals identified therein. See Akron v.

Frazier, 142 Ohio App.3d 718, 756 N.E.2d 1258 (9th Dist.2001). The statute does not

even require intervention by the court for individuals given access under R.C.

2953.53(D). We do not believe that in providing that certain people are entitled to

automatic access, the legislature meant to preclude the courts from granting access

to others on a discretionary basis in the appropriate circumstances. Allowing a court

to grant access on a discretionary basis upon a proper showing is perfectly consistent

with a statute that allows a certain narrow category of people to view sealed records

as a matter of right.

       {¶13}    Thus, in light of the court’s supervisory power over its own records

and the nonexclusive nature of the statute providing for access to sealed records, we

conclude that within the court’s power to seal its records is a concomitant power to

unseal such records in appropriate circumstances.

                                         III.

       {¶14}    This power to unseal must not be exercised lightly. We presume that

a court that has issued an order sealing a record has carefully balanced the privacy



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interests of the individual and the legitimate needs of the state (including the public’s

presumptive right of access to judicial records) and has determined that these

interests weigh in favor of sealing the record. See State ex rel. Cincinnati Enquirer,

149 Ohio App.3d 350, 2002-Ohio-4803, 777 N.E.2d 320, at ¶ 30.                   Further,

individuals whose records have been sealed necessarily rely upon the limitations on

access to those records and have a right to expect that individuals beyond those set

forth in R.C. 2953.53(D) will not ordinarily be able to obtain their records. Thus, we

hold that in considering a request to exercise judicial authority to unseal records that

have been sealed, a court should be guided by the Ohio Supreme Court’s admonition

in Pepper Pike, and only exercise such authority in “unusual and exceptional

circumstances.”

       {¶15}    We consider next whether the trial court properly exercised its power

in this case.   A trial court’s decision to seal a record is reviewed for an abuse of

discretion, and we believe it also appropriate to review a decision to allow access to a

sealed record under the same standard. State v. Moore, 5th Dist. No. 2012CA00047,

2012-Ohio-4483, ¶ 16.

       {¶16}    In Pepper Pike, the court provided guidance for the analysis that a

court should perform before sealing a record. “When exercising these powers, the

trial court should use a balancing test, which weighs the interest of the accused in his

good name and right to be free from unwarranted punishment against the legitimate

need of government to maintain records.” Pepper Pike, 66 Ohio St.2d at 377, 421

N.E.2d 1303.       A similar balancing should occur when a court considers a

governmental request to unseal a record.

       {¶17}      Here, Mr. Vanzandt is not trying to save “his good name”; he is

trying to save his skin. As acknowledged in his appellate brief, Mr. Vanzandt’s



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contention is that his trafficking case should remain under seal to prevent

prosecution for witness retaliation. The state’s interest in prosecuting the alleged

crime, however, far outweighs Mr. Vanzandt’s interest in avoiding prosecution.

       {¶18}   Another factor that weighs in favor of the trial court’s decision is that

this is not a case where a record has long been sealed and a party has relied upon the

contents of the record remaining private.       Here, the alleged witness retaliation

occurred just three days after the order sealing the records, and the state’s request to

unseal came three months later.

       {¶19}   It is also significant that the trial court’s order was narrowly tailored.

Here the court did not issue a blanket order unsealing the records for all purposes,

but issued a limited order allowing use of the record only in the retaliation case

against Mr. Vanzandt.

       {¶20}   Considering the foregoing, we conclude that this case is one of the

“unusual and exceptional” cases in which the power to unseal records properly could

be exercised. The trial court did not abuse its discretion in unsealing the record of

Mr. Vanzandt’s acquittal. The sole assignment of error is overruled, and we affirm

the judgment of the trial court.

                                                                    Judgment affirmed.



C UNNINGHAM , P.J., and D INKELACKER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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