2014 Ohio 1844
Ohio Ct. App.2014Background
- In 2000, V.D., age 18, was charged with aggravated robbery after an incident allegedly involving a 9mm pistol and the theft of $242; firearm specifications were later nolled.
- The State amended charges to robbery and then to attempted robbery (a fourth-degree felony) via incorporation of the attempt statute; V.D. pled guilty to attempted robbery and attempted complicity in intimidation.
- V.D. received 18 months community control, complied, and was discharged early in 2001.
- In 2013 V.D. moved to seal (expunge) his record; the State opposed and the trial court denied the motion, concluding attempted robbery was an "offense of violence" excluded from expungement.
- On appeal the Eighth District considered whether attempted robbery is disqualifying under the expungement statute, and reviewed the statutory-scope question de novo while treating the sealing decision as discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted robbery is an "offense of violence" that statutorily bars expungement | Attempt is included in the definition of "offense of violence," so attempted robbery is categorically excluded from sealing. | The court should not apply the broad definition mechanically; the record must "clearly reveal" a disqualifying violent offense and here the facts do not show such violence. | The appellate court reversed: attempted robbery did not clearly reveal a disqualifying "offense of violence" under the circumstances, so V.D. is eligible for sealing. |
Key Cases Cited
- State v. Simon, 87 Ohio St.3d 531 (Ohio 2000) (record must "clearly reveal" a disqualifying offense for exclusions to apply)
- State v. Futrall, 123 Ohio St.3d 498 (Ohio 2009) (standards for de novo review of statutory applicability)
- State ex rel. Gains v. Rossi, 86 Ohio St.3d 620 (Ohio 1999) (expungement statutes are remedial and should be liberally construed)
- State v. Niesen-Pennycuff, 132 Ohio St.3d 416 (Ohio 2012) (recognizing the remedial purpose of sealing/expungement provisions)
- State v. McGinnis, 90 Ohio App.3d 479 (Ohio App. 1993) (rules on strict construction of criminal statutes in favor of the accused)