Juvenile felony question

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Re: Juvenile felony question

Postby MyWifeSaidYes » Wed Oct 29, 2014 8:06 pm

From R.C. 2923.14:

(B) The application shall recite the following:

(1) ... if the disability is based upon a factor other than an indictment, a conviction, or an adjudication, the factor upon which the disability is based and all details related to that factor


Just mention that there "may be records in law enforcement databases that are not up to date with court records". How to do that is why you want to have a lawyer.



The prosecutor will almost always object to expungement or granting relief as a matter of policy. I can confirm this as a fact in Franklin county.

"It is the position of the Prosecutor's office to keep as many guns off the streets as possible."

Fortunately, it's not up to them...it's up to the judge.

You CAN apply for Relief without an attorney, but I wouldn't recommend it. Anyone can file the application for relief, but the attorney knows how to counter any argument the prosecutor might make against granting that relief.

You'll file the application. The prosecutor will file a motion to deny granting relief or a memo contra to granting relief. You'll file a reply that reasserts why you are eligible for relief.

At that point, the judge will either rule against relief or schedule a hearing. At the hearing, you and the prosecutor get to convince the judge which way he/she should rule.

Getting choked up while testifying (and maybe shedding a tear) may go over well.
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Re: Juvenile felony question

Postby BobK » Wed Oct 29, 2014 9:22 pm

Werz wrote:I was afraid you would say that. Personally, I think you should seek relief from disability, and I have recommended that - in addition to expungement - for people who want foolproof restoration of gun rights.

A certificate of final release is good enough for the "civil rights restored" provision of 18 USC §921(a)(20)(B) for the purpose of firearm disability under federal law. Expungement is good enough for the "sealing or expungement" exception of R.C. 2923.125(D)(5) for the purpose of concealed handgun licensing. However, the procedure described under R.C. 2923.14 is the sole remedy for disability under R.C. 2923.13(A)(2).

OK, I understand the whole "belt & suspenders" approach to being super-duper careful, and do not disagree that foolproof is better than "good enough". However, I'd still like to discuss the point you make about R.C. 2923.13(A)(2) and "sole remedy".

First, here is the statute you reference:
RC 2923.13 (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
...
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.


I assume you are referring to "Unless relieved from disability as provided in section 2923.14 of the Revised Code".

However, how does that square with this:
R.C. 2953.33 Restoration of rights and privileges.

(A) An order issued under section 2953.37 of the Revised Code to expunge the record of a person's conviction or, except as provided in division (G) of section 2953.32 of the Revised Code, an order issued under that section to seal the record of a person's conviction restores the person who is the subject of the order to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control.

(B)
(1) In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of section 2953.32 and in section 3319.292 of the Revised Code and subject to division (B)(2) of this section, a person may be questioned only with respect to convictions not sealed, bail forfeitures not expunged under section 2953.42 of the Revised Code as it existed prior to June 29, 1988, and bail forfeitures not sealed, unless the question bears a direct and substantial relationship to the position for which the person is being considered.

(2) A person may not be questioned in any application, appearance, or inquiry of a type described in division (B)(1) of this section with respect to any conviction expunged under section 2953.37 of the Revised Code.


The way I look at it, R.C. 2923.13(A)(2) does not apply because the person -- in accordance with R.C. 2953.32-.33 -- can never be questioned regarding the conviction "of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence." Further, it explicitly states "all rights and privileges" are restored.

Not trying to be argumentative for the sake of being a jerk, I am sincerely trying to understand your position.
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Re: Juvenile felony question

Postby Mike6789 » Wed Oct 29, 2014 9:59 pm

Bob, Under R.C. 2953.33(B)(1) it says "except as provided in division (E) of section 2953.32".

2953.32(E) says "In any criminal proceeding, proof of any otherwise admissible prior conviction may be introduced and proved, notwithstanding the fact that for any such prior conviction an order of sealing previously was issued pursuant to sections 2953.31 to 2953.36 of the Revised Code."

This would not apply correct? Because of R.C. 2953.33(B)(2) saying "A person may not be questioned in any application, appearance, or inquiry of a type described in division (B)(1) of this section with respect to any conviction expunged under section 2953.37 of the Revised Code."

Only a sealed record would apply to 2953.32(E) not an expunged?

Am I correct in this regard?
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Re: Juvenile felony question

Postby Werz » Thu Oct 30, 2014 1:16 am

Mike2541 wrote:2953.32(E) says "In any criminal proceeding, proof of any otherwise admissible prior conviction may be introduced and proved, notwithstanding the fact that for any such prior conviction an order of sealing previously was issued pursuant to sections 2953.31 to 2953.36 of the Revised Code."

This would not apply correct? Because of R.C. 2953.33(B)(2) saying "A person may not be questioned in any application, appearance, or inquiry of a type described in division (B)(1) of this section with respect to any conviction expunged under section 2953.37 of the Revised Code."

Only a sealed record would apply to 2953.32(E) not an expunged?

In a criminal case, a person cannot be questioned about anything if he does not wish it. That is the Fifth Amendment. That does not mean that evidence cannot be used against him. And a prior conviction or adjudication can be proved by means other than court records.
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Re: Juvenile felony question

Postby Werz » Thu Oct 30, 2014 1:43 am

BobK:

You might wish to review State v. Hendren, 2005-Ohio-2814 (9th Dist.), an opinion written by our retiring Speaker of the Ohio House.

You may also wish to review United States v. Cassidy (6th Cir. 1990), 899 F.2d 543.
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Re: Juvenile felony question

Postby BobK » Thu Oct 30, 2014 5:56 am

Werz wrote:You might wish to review . . . .

Got it. I understand the distinction.

Although R.C. 2953.33(A) says "all rights and privileges not otherwise restored", US v. Cassidy requires looking at the totality of state law which would bring the RC 2923.13 (A) requirement for RC 2923.14 into consideration.

In State v. Hendren, I am unsure how much the revised code changed in the last 30 years and if R.C. 2953.33(A) even existed back then. There have certainly been a lot of changes in the last 6 years.
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Re: Juvenile felony question

Postby SeanC » Thu Oct 30, 2014 9:06 am

There are good arguments either way. I tend to agree with Werz. But even if we're wrong and that's an excessive approach, who wants to be a test case for something like that? Yuck. You could be arrested and spend a few days in jail. Then you're going to have to shell out for a lawyer anyway, and it's going to cost a hell of a lot more than it would to file a restoration and a petition to seal the records. Everything in this area of the law is a continuum of risk. If finances are very, very tight, it might be an acceptable risk for you to roll the dice on sealing the records alone. You can also buy some peace of mind knowing that you're golden. It sort of like carrying minimum coverage on your car. You'll probably be fine, but if you guess wrong it's going to suck. My wife happens to be an insurance agent, so we're insured up the wazoo. It's a good feeling.
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Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 9:20 am

BobK wrote:
Werz wrote:You might wish to review . . . .

Got it. I understand the distinction.

Although R.C. 2953.33(A) says "all rights and privileges not otherwise restored", US v. Cassidy requires looking at the totality of state law which would bring the RC 2923.13 (A) requirement for RC 2923.14 into consideration.

In State v. Hendren, I am unsure how much the revised code changed in the last 30 years and if R.C. 2953.33(A) even existed back then. There have certainly been a lot of changes in the last 6 years.


So for the US v. Cassidy, that would essentially nullify 2953.33(A) because you would have to take into account R.C. 2923.13(A) is that correct?

Looks like I may have to end up getting relief or it seems it may just be a 50/50 gamble, at least that is the way it seems. As the way the law is worded it could go both ways, until I become a test case lol.

SeanC wrote: Then you're going to have to shell out for a lawyer anyway, and it's going to cost a hell of a lot more than it would to file a restoration and a petition to seal the records.


Well the records are going to be sealed/expunged anyways so will be removed from court/bci view. Now I guess I would just have to find an attorney who is not charging out the butt for firearms restoration.
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Re: Juvenile felony question

Postby Chuck » Thu Oct 30, 2014 9:52 am

Ain't activism fun?

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Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 9:59 am

Chuck wrote:Try http://ohiogunlawyer.com


Yea, I met with Derek, do not have $2500 up front to pay, which is what they require right away. May have to wait.
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Re: Juvenile felony question

Postby Chuck » Thu Oct 30, 2014 10:07 am

Sorry,
I thought he was more "reasonably priced" than that,,,,
Ain't activism fun?

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Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 10:14 am

Chuck wrote:Sorry,
I thought he was more "reasonably priced" than that,,,,


Yea, he said his prices are going up at the end of the year. I have no doubts he is good at what he does, but for me $2,500 seems a bit on the high end, it could be a standard price but coming up with $2,500 up front would be quite the task without clearing my savings :roll:
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Re: Juvenile felony question

Postby JediSkipdogg » Thu Oct 30, 2014 11:05 am

Mike2541 wrote:
Chuck wrote:Sorry,
I thought he was more "reasonably priced" than that,,,,


Yea, he said his prices are going up at the end of the year. I have no doubts he is good at what he does, but for me $2,500 seems a bit on the high end, it could be a standard price but coming up with $2,500 up front would be quite the task without clearing my savings :roll:


Now, was that his retainer or a flat fee? Record sealings are pretty simple and I find that hard to believe it's a flat fee. Generally a record sealing is filing for it to be sealed (and some courts it's a standardized form) and then showing up in court one day. It's either a yes or no. I've never seen any have motions, discovery, etc. It's simply show up, plead a good case, and the judge either says yay or nay.

My opinion, attorneys are pointless in sealing records. Simply state that you have behaved, have nothing new on your record, what you've done in your life since then, what you plan on doing in the immediate future that you want the record sealed for, and you should be good to go. Don't show any anger, don't get upset, just act like a person that made a mistake in your life. The only ones I ever really see denied are where the person has done nothing in their life or argue when the prosecutor says his/her recommendation is no.
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Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 11:13 am

Jedi, the 2,500 would of been to file a petition for relief. Once that is granted file for the felony to be expunged. Once the felony was expunged to file for the petition for relief to be expunged as that would now show up. It was a $2,500 up front retainer. I had went to him about a week before my court date just looking for more info. The courts already approved the sealing and expunging of the record. It should be gone here soon. So it's just a matter of does the expungement and lack of a felony case now grant me relief? And if not, all I would need now is to file the petition for restriction, which I doubt would go over well without an attorney.
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Re: Juvenile felony question

Postby JediSkipdogg » Thu Oct 30, 2014 11:15 am

Gotcha, now his fee is more reasonable as you'd be having them do quite a bit. I doubt it would have hit the $2500, but could have gotten close. I'm not sure how hard relief from disability is as that's one area I'll admit I have zero experience in.
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