December 12, 2012
Intervention in Lieu of Conviction

by Justice Paul E. Pfeifer

In Ohio, we have a law that we call “intervention in lieu of conviction,” or ILC. The law states that if a person is charged with a criminal offense, and the court has reason to believe that drug or alcohol usage was a factor leading to the offense, the court may accept the offender’s request for intervention in lieu of conviction.

The ILC law was at the center of a case that we reviewed here – at the Ohio Supreme Court – involving a woman named Regina Niesen-Pennycuff. In April 2009, Regina was indicted on 12 counts of deception to obtain a dangerous drug; each indictment was a fifth-degree felony.

Regina initially pled not guilty, but later filed a motion for ILC. The trial court found that she was indeed eligible for ILC and ordered an intervention plan. As required by the law, Regina retracted her initial not-guilty plea. She then pled guilty to the charges, pending successful completion of her intervention program, and was placed on community control for three years.

On August 24, 2010, the court filed a termination entry in which it recognized Regina’s successful completion of the intervention program and thereby dismissed the 12 pending charges against her.

About a month later, Regina filed an application to have her record sealed after dismissal of the proceedings. But the state opposed the application and argued that Regina was ineligible to have her record sealed until three years after the dismissal of the charges against her.

The trial court agreed with the state and denied Regina’s application, but it invited her to reapply in 2013, after the three-year period.

After that, Regina turned to the Twelfth District Court of Appeals, which affirmed the judgment of the trial court. But the Twelfth District found that its decision was in conflict with a ruling in a similar case by the Ninth District Court of Appeals. When such conflicts exist, the cases come before us for resolution.

When the Ohio legislature enacted the ILC law, it 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.

For that reason, ILC isn’t designed as punishment. It’s an opportunity for first-time offenders to receive help for their dependence without the ramifications of a felony conviction.

In keeping with that goal, the ILC law has a section that states that if the court grants an offender’s request for ILC, and the offender successfully completes the intervention plan, the court “shall dismiss the proceedings against the offender.” It goes on to say that the court “may order the sealing of records related to the offense in question ... ”

So if the law says that the court may seal the record, why is there any conflict about this case? It has to do with some of the wording in the ILC law.

When a court such as ours interprets a law, we have to determine the legislative intent behind it; that means we examine the words and phrases used in the language of the law. The ILC law states that the court “may order” the records to be sealed. The use of the word “may” instead of “shall” indicates that the court has discretion on the issue of sealing the records.

There’s also a question of how to go about sealing the records. There are procedures that courts follow when sealing records, and there are separate sections of the Ohio legal code that describe and govern those procedures.

Some of those sections require a three-year waiting period before a defendant may move for an order sealing a record. But that part of the code governs the sealing of an individual’s record following the conviction of a crime. An ILC case is different, because an offender who has successfully completed ILC has no conviction.

Regina’s attorneys maintained that a different law should govern the sealing of a record after the dismissal of an ILC case. The law that they urged us to consider states that any person who is found not guilty of an offense or whose indictment was dismissed may apply for an order to seal related records any time after the not-guilty finding or dismissal is entered.

The trial court and the Twelfth District Court of Appeals concluded that the language in the ILC law requires a court to follow the sections of the legal code that require a three-year waiting period. We disagreed. The phrasing in the ILC law does not indicate that the legislature meant to say that a court must comply with those sections of the code that require a three-year waiting period.

As mentioned earlier, the ILC law 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. It would therefore be unreasonable to conclude that the law imposes 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.

We therefore concluded – by a seven-to-zero vote – that a trial court has discretion to seal the record of a case that was dismissed following successful completion of ILC without a waiting period.

In writing the majority opinion for this case, Justice Evelyn Lundberg Stratton concluded that “treating all ILC defendants as though they have been convicted of a crime when their charges have been dismissed” in accordance with a program “designed to avoid the very ramifications of a conviction would run counter to the purpose of ILC.”

Accordingly, we determined 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 the trial court has discretion either to grant the motion immediately or to impose the waiting period.

EDITOR'S NOTE: The case referred to is State v. Niesen-Pennycuff, 132 Ohio St.3d 416, 2012-Ohio-2730. Case No. 2011-1070. Decided June 21, 2012. Majority opinion written by Justice Evelyn Lundberg Stratton.