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Court News Ohio

Attempted Acts of Violence Not Eligible for Expungement

The Ohio Supreme Court ruled today that attempted robbery is a crime of violence and that someone convicted of it is statutorily ineligible to have the record of conviction sealed.

In an 7-0 opinion written by Justice Paul E. Pfeifer, the Supreme Court reversed an Eighth District Court of Appeals’ decision and upheld a trial court’s decision not to seal the record of an attempted-robbery conviction in a 2000 Cuyahoga County case.

“We hold that attempted robbery is a crime of violence and that, pursuant to R.C. 2953.36, a person convicted of that crime is ineligible to have the record of that conviction sealed,” Justice Pfeifer wrote.

State Reduces Charges, but Includes Attempt Statute
The focus of this case, Justice Pfeifer explained, is an attempted-robbery charge under R.C. 2911.02(A)(3) and 2923.02 that remained after the state amended its initial charges stemming from a March 2000 incident.

V.M.D. was 18 years old at the time he was indicted by a Cuyahoga County grand jury on two counts of aggravated robbery. Each count had firearms specifications. He also was indicted on one count of complicity in the intimidation of a witness. The young man, who was charged in Berea Municipal Court, pleaded not guilty to the charges in April 2000.

Three months later, the state amended the charges from aggravated robbery to robbery – from a first-degree felony to a third-degree felony. The state amended the count further by adding the attempt statute, a violation of R.C. 2923.02, making the offense a fourth-degree felony, and also removed the firearms specifications because the gun used in the incident was a toy gun that was not in V.M.D.’s possession during the attempted-robbery incident.

The state dropped the second aggravated robbery count and amended the complicity-to-commit-intimidation count by incorporating the attempt statute, making it also a fourth-degree felony.

During a trial court hearing, the court explained to V.M.D. that the amended robbery charge meant that the state believed that he “did, in attempting or committing a theft offense, or in fleeing immediately after, attempted to use or threatened the immediate use of force against another person.” The defendant pleaded guilty to the amended charges, and the court’s journal entry showed the court found V.M.D. guilty of attempted robbery and guilty of attempted complicity in the commission of intimidation. The court sentenced the teen to 18 months of community control in September 2000.

In late December 2001, the trial court terminated V.M.D.’s community control and discharged him early based on a probation department recommendation.

‘An Attempt to Attempt to Commit Robbery’
More than a decade later, in June 2013, V.M.D. applied to the trial court to seal the records of his conviction. The state objected to the request, arguing that R.C. 2953.36 prohibits the sealing of records when the conviction is for an offense of violence when the offense is a felony. V.M.D., however, argued that his conviction under the robbery statute and the attempt statute “created a legal fiction” because “R.C. 2911.02(A)(3) already contains an attempt element without the incorporation of the attempt statute.”

V.M.D. went on to argue that adding the attempt charge “resulted in his pleading guilty to an attempt to attempt to commit a robbery.” The trial court rejected the argument and denied his application to seal the record of his felony conviction.

V.M.D. appealed the trial court’s decision to the Eighth District Court of Appeals, which cited the Ohio Supreme Court’s 1999 decision in State ex rel. Gains v. Rossi that “the expungement provisions were crafted to be in fact remedial in nature and ‘must be liberally construed to promote their purposes.’”

The appellate court used the term “expungement” in this case, while current statutes refer to “sealing.”

In its decision, the appellate court stated, “When the underlying offense itself contemplates attempt, and the defendant was charged with an attempt of that offense, the element of violence is simply too removed for the defendant to be automatically precluded from expungement.”

The Eighth District also pointed out that V.M.D. was young at the time of the incident, has been “gainfully employed” in the years since, and has been a law-abiding citizen for the past 12 years. “(V.M.D.) certainly appears to be the sort of person the expungement process was designed to benefit,” it wrote, concluding that a sealing of V.M.D.’s record and should be allowed, thus, reversing the trial court’s decision.

The state appealed the Eighth District’s decision to the Supreme Court, which agreed to hear the case.

‘The Threshold of Eligibility’
The Supreme Court found that the pertinent statute is both clear and unambiguous as it relates to eligibility for sealing of court records.

“There is no room for interpretation in this case,” Justice Pfeifer wrote. “The General Assembly has determined that an attempt to commit a violation of R.C. 2911.02 is an offense of violence. Records of felony convictions of offenses of violence cannot be sealed.”

He also pointed out that a person convicted of a crime “has no substantive right to have the record of that conviction sealed. The sealing of the record of a conviction ‘is an act of grace created by the state,’” he wrote citing the Court’s 1996 State v. Hamilton decision.

The justices held that while a trial court must use some discretion in determining whether an applicant has been rehabilitated to the court’s satisfaction when considering whether to seal an applicant’s record of conviction, the court first must determine the applicant’s eligibility.

“He must first cross the threshold of statutory eligibility,” Justice Pfeifer wrote. “Accordingly, expungement should be granted only when an applicant meets all the requirements for eligibility set forth in R.C. 2953.36.”

Statute is Clear
The Court held that R.C. 2953.36 “speaks for itself.” Citing its 2006 decision in State v. Kreischer, the Court stated there is nothing for a court to interpret or construe “when the General Assembly has plainly and unambiguously conveyed its legislative intent.” R.C. 2953.36 precludes the sealing of records for certain convictions, it stated, and V.M.D.’s conviction of attempted robbery puts him in that category.

Addressing the act of attempted robbery, the Court stated the General Assembly rendered such a review irrelevant because every attempted robbery is by definition an offense of violence.

“The process of sealing a record of conviction does not consist of the general evaluation of a person’s soul – it is statutory,” Justice Pfeifer wrote.

2014-0990. State v. V.M.D., Slip Opinion No. 2016-Ohio-8090.

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