State v. V.M.D. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. V.M.D., Slip Opinion No. 2016-Ohio-8090.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-8090THE STATE OF OHIO, APPELLANT, v. V.M.D., APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. V.M.D., Slip Opinion No. 2016-Ohio-8090.]
Pursuant to R.C. 2953.36, a person convicted of attempted robbery is ineligible to
have the record of that conviction sealed.
(No. 2014-0990—Submitted September 16, 2015—Decided December 13, 2016.)
APPEAL from the Court of Appeals of Cuyahoga County, No. 100522,
2014-Ohio-1844.
_________________
PFEIFER, J.
{¶ 1} In this case, we determine whether R.C. 2953.36 precludes the sealing
of the record of a conviction for a specific crime—attempted robbery pursuant to
R.C. 2911.02(A)(3) and 2923.02. 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.
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Factual and Procedural Background
{¶ 2} Appellee, V.M.D., was an 18-year-old high school student when he
allegedly committed the criminal acts that led to his March 27, 2000 indictment by
the Cuyahoga County Grand Jury on two counts of aggravated robbery under R.C.
2911.01—each with firearm specifications under R.C. 2941.141 and 2941.145—
and one count of complicity in the commission of intimidation of a witness under
R.C. 2923.03 and 2921.04. On April 13, 2000, he pleaded not guilty to the charges.
{¶ 3} At a hearing on July 26, 2000, the state moved to amend the charges.
First, the state amended the first count from aggravated robbery to robbery under
R.C. 2911.02(A)(3), alleging “that [V.M.D.] did, in attempting or committing a
theft offense, did use or threaten the immediate use of force against [the victim].”
That change in the charge reduced it from a first-degree felony to a third-degree
felony. The state then made another motion “to amend that count further to
incorporate the attempt statute, in violation of section 2923.02, [making] the
offense a felony of the 4th degree.” The state also moved to delete the firearm
specifications from Count 1; the state advised the court that the gun involved was
not real and had not been in the possession of V.M.D. The state also moved to nolle
prosequi Count 2 and to incorporate the attempt statute, R.C. 2923.02, into the
complicity-to-commit-intimidation charge in Count 3, making that offense also a
felony of the fourth degree. V.M.D. waived any objection to the amendment of the
indictment; after the amendment, two fourth-degree felonies remained. The focus
of this case is the attempted-robbery charge under R.C. 2911.02(A)(3) and 2923.02.
{¶ 4} The trial court explained to V.M.D. that the amended-robbery charge
under R.C. 2911.02(A)(3) and 2923.02 meant that the state was claiming 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 victim].”
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{¶ 5} At the hearing, V.M.D. pleaded guilty to the two remaining counts.
In its journal entry, the court found V.M.D. guilty of attempted robbery under R.C.
2923.02 and 2911.02(A)(3) and guilty of attempted complicity in the commission
of intimidation. On September 1, 2000, the court sentenced V.M.D. to 18 months
of community control. On December 28, 2001, after a report by the probation
department that V.M.D. was in full compliance with his community-control
sanctions, the trial court sua sponte terminated V.M.D.’s community control and
discharged him.
{¶ 6} Eleven years later, on June 26, 2013, V.M.D. applied to the trial court
pursuant to R.C. 2953.32 to seal the records pertaining to his conviction. On
August 19, 2013, the state responded with a brief in opposition to V.M.D.’s
application. The state argued that R.C. 2953.36 prohibited the sealing of the record
of V.M.D.’s conviction; that statute prohibits the sealing of records of
“[c]onvictions of an offense of violence when the offense is * * * a felony.” Former
R.C. 2953.36(C), 2012 Am.Sub.S.B. No. 337; now codified as R.C. 2953.36(A)(3).
(We refer to former R.C. 2953.36(C) because “[t]he statutory law in effect at the
time of the filing of an R.C. 2953.32 application to seal a record of conviction is
controlling.” State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d
1172, paragraph two of the syllabus.) R.C. 2901.01(A)(9)(a) defines a violation of
R.C. 2911.02, robbery, as an offense of violence; R.C. 2901.01(A)(9)(d) states that
an offense of violence includes an “attempt to commit * * * any offense under
division (A)(9)(a) * * * of this section.”
{¶ 7} The trial court held a hearing on the application on September 19,
2013. V.M.D. argued that his conviction under the robbery statute and the attempt
statute created a legal fiction. He argued that R.C. 2911.02(A)(3) already contains
an attempt element without the incorporation of the attempt statute. R.C. 2911.02
reads:
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(A) No person, in attempting or committing a theft offense
or in fleeing immediately after the attempt or offense, shall do any
of the following:
***
(3) Use or threaten the immediate use of force against
another.
V.M.D. argued that incorporating the attempt charge under R.C. 2923.02 resulted
in his pleading guilty to an attempt to attempt to commit a robbery.
{¶ 8} The court rejected the argument:
Well, it’s a novel argument; I don’t think it’s a valid one.
You’re welcome to take this to the Court of Appeals and have them
look at it. And I’d be delighted to be proven wrong. If we can
expunge a conviction on a deserving person, I would like to do that.
***
I think the fact the conviction came down under the robbery
statute, no matter how many attempts are in there, that the law
prohibits it.
The trial court thus denied V.M.D.’s application to seal the record of his conviction.
{¶ 9} V.M.D. appealed to the Eighth District Court of Appeals. That court
noted that “the expungement provisions were crafted to be in fact remedial in nature
and ‘must be liberally construed to promote their purposes.’ State ex rel. Gains v.
Rossi, 86 Ohio St.3d 620, 716 N.E.2d 204 (1999).” 2014-Ohio-1844, ¶ 14 (8th
Dist.). The court used the term “expungement”; although the relevant statutes now
refer to “sealing,” “ ‘expungement’ remains a common colloquialism used to
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describe the process.” (Footnote deleted.) State v. Pariag, 137 Ohio St.3d 81,
2013-Ohio-4010, 998 N.E.2d 401, ¶ 11.
{¶ 10} The court held that the incorporation of the attempt charge under
R.C. 2923.02 into the robbery charge, which includes an attempt as a possible
element, left V.M.D.’s crime too far removed from an actual crime of violence to
disqualify the record of the conviction from being sealed:
Although we recognize an “offense of violence” includes an attempt
of the offense under the definition, here, * * * V.D. was convicted
of an offense that itself embeds the notion of attempt—he was
convicted of either committing or attempting to commit a theft while
either using or threaten[ing] to use force, which the state admitted
involved possibly a fake gun not in his possession. 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. Under the particular circumstances
of this case, we cannot say the record “clearly revealed” V.D.
committed a disqualifying “offense of violence.”
(Emphasis sic.) 2014-Ohio-1844 at ¶ 15.
{¶ 11} The court then reviewed V.M.D.’s personal history, noting that he
was young when he committed the crime, “has been gainfully employed as a full-
time employee * * *, and apparently has been law-abiding for the past 12 years.”
The court went on to state:
V.D. certainly appears to be the sort of person the expungement
process was designed to benefit. The trial court itself acknowledged
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that there was no other reason to deny V.D.’s expungement request
other than its strict interpretation of the robbery statute. Construing
the expungement statute liberally, as precedent guides us, we will
continue to advance the legislative purpose of allowing
expungements. State v. Niesen–Pennycuff, 132 Ohio St.3d 416,
2012-Ohio-2730, 973 N.E.2d 221, ¶ 23. We conclude a sealing of
V.D.’s record should be allowed and, therefore reverse the trial
court’s judgment.
Id. at ¶ 16.
{¶ 12} The state appealed to this court. The cause is now before this court
upon the allowance of a discretionary appeal. 140 Ohio St.3d 1438, 2014-Ohio-
4160, 16 N.E.3d 682.
Law and Analysis
{¶ 13} 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.” State v. Hamilton, 75 Ohio St.3d 636, 639, 665
N.E.2d 669 (1996). Although the determination whether to seal an applicant’s
record of conviction involves some exercise of discretion by the trial court, before
an applicant gets to the point where the court “determine[s] whether the applicant
has been rehabilitated to the satisfaction of the court,” R.C. 2953.32(C)(1)(c), he
must first cross the threshold of statutory eligibility:
[T]he government possesses a substantial interest in ensuring that
expungement is granted only to those who are eligible.
Expungement is accomplished by eliminating the general public’s
access to conviction information. Accordingly, expungement
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should be granted only when an applicant meets all the requirements
for eligibility set forth in R.C. 2953.32.
Hamilton at 640.
{¶ 14} Pursuant to R.C. 2953.32(C)(1)(a), the trial court must determine
whether the applicant is an eligible offender. R.C. 2953.36 precludes the sealing
of records of certain convictions; thus, an offender seeking to have sealed the
records of conviction for an offense listed in R.C. 2953.36 is an ineligible offender.
V.M.D.’s conviction for attempted robbery places him in that category. Former
R.C. 2953.36(C) prevented the sealing of records of “[c]onvictions of an offense of
violence when the offense is a * * * felony.” 2012 Am.Sub.S.B. No. 337. R.C.
2901.01(A)(9) provides the applicable definition of “offense of violence”; it
includes “[a] violation of section * * * 2911.02,” i.e., robbery. R.C.
2901.01(A)(9)(a). The fact that a conviction is for an attempt to commit an offense
of violence is irrelevant—R.C. 2901.01(A)(9)(d) provides that “[a] conspiracy or
attempt to commit * * * any offense under division (A)(9)(a)” also meets the
definition of an “offense of violence.”
{¶ 15} R.C. 2953.36 speaks for itself. “Our first duty in statutory
interpretation is to determine whether the statute is clear and unambiguous.” Estate
of Heintzelman v. Air Experts, Inc., 126 Ohio St.3d 138, 2010-Ohio-3264, 931
N.E.2d 548, ¶ 15. “[W]hen the General Assembly has plainly and unambiguously
conveyed its legislative intent, there is nothing for a court to interpret or construe,
and therefore, the court applies the law as written.” State v. Kreischer, 109 Ohio
St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.
{¶ 16} There is no room for interpretation in this case. 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. When the General Assembly makes convictions of specific
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offenses ineligible for sealing because they are offenses of violence, courts do not
have authority to review the record to examine the facts underlying the conviction
to determine whether they reveal a violent act. In regard to attempted robbery, the
General Assembly has rendered such a review irrelevant—every attempted robbery
is by definition an offense of violence.
{¶ 17} The process of sealing a record of conviction does not consist of the
general evaluation of a person’s soul—it is statutory. Because the record of his
conviction is prohibited from being sealed pursuant to former R.C. 2953.36(C),
V.M.D.’s rehabilitation is irrelevant in this case. There seems to be little doubt that
V.M.D. has made significant personal progress from when he was a high school
student and committed the crime at issue and that he is the type of person that
Ohio’s sealing statutes are designed to benefit. However, the General Assembly
has left the courts no room to seal the record of V.M.D.’s conviction, regardless of
his being 18 when he committed the crime or the extent of his rehabilitation since
his conviction. The focus in R.C. 2953.36 is on the crime committed rather than
on the person who committed it. Any change in that calculus must come from the
General Assembly.
Conclusion
{¶ 18} Because V.M.D. was convicted of attempted robbery, which is a
felony and is defined by the General Assembly as an offense of violence, former
R.C. 2953.36(C) prohibited the sealing of the record of that conviction.
Accordingly, we reverse the judgment of the court of appeals and reinstate the
judgment of the trial court.
Judgment reversed,
and trial court judgment reinstated.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
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January Term, 2016
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Diane
Smilanick and T. Allan Regas, Assistant Prosecuting Attorneys, for appellant.
A. Steven Dever, for appellee.
Ron O’Brien, Franklin County Prosecuting Attorney, and Barbara A.
Farnbacher, Assistant Prosecuting Attorney, urging reversal for amicus curiae
Franklin County Prosecuting Attorney.
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, urging affirmance for amicus curiae Ohio Public
Defender.
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