What Felony Crimes Can be Expunged?
Have you been denied a job because of a felony conviction? Have you been unable to find a place to live because of background checks conducted after completing a rental application? Have you been passed over for career advancements because of a mistake you made in college? If you answered yes to any of these questions, we can help you.
Contrary to popular belief, a criminal record is not automatically sealed, expunged, nor does it disappear after a number of years. In fact, a felony will stay on one’s record until an application for expungement is filed with the Court to expunge and/or seal a record. The qualifications in order to be eligible for a criminal expungement vary from state to state. In Ohio, the qualifications and criteria that govern criminal expungement are outlined in the Ohio Revised Code.
Depending on the charge, a person may have an expungement of a felony conviction, an expungement of a felony “No Bill” (when a grand jury chooses not to indict), or an expungement of a dismissed felony charge. There are legal procedures and different statutory waiting periods for each situation. In these days where it is routine to have a background check for matters such as employment, promotions, housing, bank loans, education, or even a credit score, it may just as necessary to have an expungement of a dismissed felony charge as an expungement of a felony conviction in order not to be denied opportunities.
Ohio Revised Code Section 2953.31 states that one must be a “Eligible Offender” in order to qualify for an expungement of a felony conviction. A “eligible offender” as defined in O.R.C. 2953.31, means one who has been convicted of a offense in this state or any other state and has not more than one felony conviction, not more than two misdemeanor convictions, or not more than one felony conviction and one misdemeanor conviction. O.R.C. 2953.31 further states:
“When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C)(1)(a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction.”
Although the meaning of the legislature has been interpreted differently by Ohio courts, you may be eligible to have multiple felony convictions expunged when they arise out of the same facts, or they are part of a related series of events the language of O.R.C. 2953.31.
Further, under the new Expungement Law which became effective in September of 2012, a person can now have a felony conviction expunged as well as a separate misdemeanor conviction expunged. In other words, one can have a two expungements if one is a felony conviction and the other a misdemeanor conviction.
The Court shall further notify the probation department in order that an investigation is conducted regarding the request for expungement. The probation department will conduct a background search of the person applying for expungement, including any and all past charges, whether convicted or dismissed. The probation department will provide a history of the case to the court, determine whether there are any outstanding orders not fulfilled, and determine if there any pending charges against the applicant for expungement.
Although expungement of felony convictions is an act of grace created by the State for eligible offenders, being convicted of a two or more separate unrelated felony convictions will preclude a person from having any record expunged and sealed.
Convictions NOT Eligible For Expungement in Ohio
Although the first prong to be considered by a Court for expungement of a felony conviction is whether or not one is a Eligible Offender, you may still be excluded from an expungement under Ohio Revised Code Section 2953.36. O.R.C. Section 2953.36 precludes an individual who was subject to mandatory jail time from receiving a criminal expungement. This same statute also precludes individuals who were convicted of a crime of violence or a crime where the victim is under the age of 18, that is any degree felony or a first degree misdemeanor. Ohio Revised Code Section 2953.36 also states that an individual who was convicted of any first or second degree felony is not eligible for an expungement. Also precluded by O.R.C. Section 2953.36 are any of the following convictions:
- Sexual Battery
- Corruption of a Minor
- Gross Sexual Imposition
- Sexual Imposition
- Obscenity Involving a Minor
- Pornography Involving a Minor
- Illegal Use of a Minor in Pornography
- Felonious Sexual Penetration
Additionally, the Ohio Revised Code has been amended and passed over the years to preclude additional felony convictions and misdemeanor convictions, where there was a victim under the age of 18, including:
- Public Indecency
- Compelling Prostitution
- Promoting Prostitution
- Disseminating Matter Harmful to Juveniles
- Displaying Matter Harmful to Juveniles
- Pandering Obscenity
- Deception to Obtain Matter harmful to Juveniles
(An exception to this rule is failure to pay child support which is now eligible for expungement. S.B 337 September 2012)
Unfortunately, if you have been convicted of one of these felonies or misdemeanors, you may not be eligible for expungement in Ohio.
Under Ohio law, after a conviction of a felony, a statutory waiting period of three years must have passed before one is actually eligible for to begin the expungement process. The clock does not start ticking when the conviction is recorded by the Court; however, it starts from the final date of discharge. The final date of discharge is when the case sentence has been completed. This means, if the Judge sentenced you to serve three years of community control on April 10, 2001, and you completed the community control on April 10, 2004, you would have to wait three years from April 10, 2004 (April 10, 2007) in order to be eligible to begin the expungement process. At, the time you begin the expungement process after the waiting period has expired, there can be no criminal proceedings pending against you, and you must have fulfilled all requirements of your probation, and paid all restitution, fines and cost. (In some cases, the Court may waive the restitution requirement.)
Even if you meet all the legal prerequisites to have an expungement of felony conviction, the court must consider any objection of the prosecution and impose a balancing test under. R. C. 2953.32. Having an attorney represent you will help you counter any objections of the prosecutor and advocate to the court that the scales tip in your favor to have the felony record expunged and outweigh any interests of the state in maintaining a record of your conviction.
Depending on the court, the expungement process can take few weeks to several months. Therefore, it is advisable to begin the process as soon as you are eligible and not to wait until you’re applying for a new job, a professional license or some other immediate need. For even after an felony expungement is granted, it will take a few weeks for the records to be cleared from the various reporting agencies.
The time to remove a felony from your record is now! Contact our office today work with one of our licensed Ohio attorneys to pursue an expungement of a felony conviction.
To learn more about your expungement eligility, contact our expungement attorney, Greg Mathews.