The Akron Legal News

Criminal record will remain open for pharmacist who illegally sold drugs

ANNIE YAMSON
Special to the Legal News
Published: November 19, 2014

In Ohio’s 11th District Court of Appeals, a divided appellate panel ruled this week that the Trumbull County Court of Common Pleas properly denied a motion by a pharmacist, who used to illegally sell prescription medications, to have his record sealed.

The Trumbull County court had concluded that the state’s interest in not sealing the record of Gary Sass outweighed the defendant’s interest.

On Sept. 30, 2004, Sass was indicted on one count of third-degree felony aggravated trafficking in drugs, three counts of illegal processing of drug documents and two counts of drug trafficking.

A bill of particulars was later filed alleging Sass had agreed to give a confidential informant prescription medications and requested sexual favors in return.

Sass eventually pleaded guilty to one count of fourth-degree felony aggravated trafficking in drugs and drug trafficking.

He was sentenced to five years of community control and was ordered to pay a $5,000 fine for each count along with $20,000 for the cost of the investigation.

In 2012, Sass filed a motion to seal his record, arguing that the Ohio Pharmacy Board has restored his license to practice and would be monitoring his work.

He noted that sealing his record would not prevent the board or potential employers from considering his record of conviction.

In a memorandum filed in opposition to Sass’ motion the state argued that, given the circumstances of the case, the public has an interest in the record remaining unsealed.

It noted that Sass “violated his responsibility as a pharmacist to prevent prescription drugs from being used illegally.”

Earlier this year, the trial court issued a judgment on Sass’ motion, stating on the record, “As a pharmacist, the applicant violated and abused the most important of his professional responsibilities. He knowingly filled false and forged prescriptions to satisfy his sexual craving. Putting him back in the exact same position with the exact same opportunities is against public interest.”

A majority in the court of appeals agreed with the Trumbull County court’s refusal to grant the motion.

“The trial court’s judgment entry demonstrates that its denial was based on the determination that granting Sass’ motion was against the public interest,” wrote Judge Diane Grendell in the opinion she authored on behalf of the majority.

Sass claimed the trial court’s specific finding was an abuse of discretion and that the public interest was not a valid basis for denying his request.

“Appellate courts have found that the public’s interest and ‘need to know’ of a defendant’s criminal record is a legitimate governmental interest to balance against the defendant’s interest,” wrote Judge Grendell. “Here, there is a public need and, therefore, a legitimate government interest in not sealing Sass’ record.”

Again, the court noted that Sass abused his duty as a pharmacist more than 10 years ago.

“Potential customers and employers have a need to be aware of the offenses he committed, which were directly related to his professional employment,” wrote Judge Grendell.

Sass proceeded to argue that a condition of sealing his record would be that the fact of his conviction would still be made available to the state pharmacy board and certain employers, but the appellate panel ruled that “this does not overcome the foregoing justification for denying his motion.”

Judge Colleen Mary O’Toole dissented with a separate opinion in which she compared Sass’ situation to that of Hester Prynne in Nathaniel Hawthorne’s “The Scarlet Letter.”

“In that 1850 romantic work of fiction, a crowd gathered to witness the punishment of Hester Prynne, a young woman found guilty of adultery,” wrote Judge O’Toole. “She was required to wear on her dress a scarlet letter ‘A,’ i.e., the symbol of adultery and shame. She was forced to stand on the scaffold for three hours, exposed to public humiliation.”

By denying Sass’ motion to seal his record, Judge O’Toole stated that the court was subjecting him to public humiliation.

“The instant case is not some fanciful tale appearing in a work of fiction,” she wrote. “In essence, Sass is being forced to wear on his white coat an unnecessary, albeit invisible, scarlet ‘C,’ i.e., the symbol of criminal.”

Judge O’Toole pointed out that Sass served his time and paid for his action, his license to practice pharmacy has been restored and his work monitored by the Ohio Pharmacy Board.

She maintained that the majority’s decision has “serious ramifications” for Sass as well as his profession.

“The public’s right to know does not include a right to continue to punish someone who has already served his time,” Judge O’Toole concluded. “Based on the facts presented in this case, Sass should not have been denied his right to seal his record because he is a pharmacist.”

Presiding Judge Timothy Cannon joined Judge Grendell to form the majority and uphold the decision of the Trumbull County court.

The case is cited State v. Sass, 2014-Ohio-4745.

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