State v. ClemensState v. Clemens
Case Information
*1
[Cite as
State v. Clemens
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Stаte of Ohio, :
Plaintiff-Appellant, :
No. 14AP-945 v. : (C.P.C. No. 14EP-0381) Donavan L. Clemens, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on August 6, 2014 Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellant.
Jodelle M. D'Amico, for appellee.
APPEAL from the Franklin County Court of Common Pleas HORTON, J.
Plaintiff-appellant, the State of Ohio ("state"), appeals from a judgment of
the Franklin County Court of Common Pleas, granting an application filеd by defendant- appellee, Donovan L. Clemens, to seal the record of his prior conviction. The state assigns the following sole assignment of error for our review:
THE TRIAL COURT ERRED WHEN IT GRANTED AN APPLICATION TO SEAL A CONVICTION FOR AN "OFFENSE OF VIOLENCE."
Because attempted robbery is statutorily definеd as an offense of violence, we reverse. I. FACTS AND PROCEDURAL HISTORY On May 20, 2014, defendant filed an application to seal the record of his
attempted robbery conviction in case No. 96CR-154, a felony of the third degree. The facts giving risе to the conviction occurred on December 21, 1995, when defendant placed a television and a car stereo in a shopping cart at a Target store and exited the store without paying for the items. A Targеt store security officer confronted defendant outside of the store. Defendant attempted to flee, and a struggle ensued between defendant, two store security officers, and an unidentified customer. One of the store security officers "suffered abrasions on her knees and a chipped tooth" and the unidentified customer suffered a "cut above his eye," as a result of the struggle. (State's Supplemental Objection to Sealing, 6.) The state indicted defendant for one count of robbery as a result of this incident. Defendant struck a plea bargain with the state, however, and pled guilty to attempted robbery, in violation of R.C. 2923.02 and 2911.02, on August 13, 1996. The state filed an objeсtion to defendant's application on June 20, 2014,
asserting that R.C. 2953.36 and 2901.01 precluded the court from granting defendant's
application, as defendant's conviction was defined as an offense of violence under R.C.
2901.01(A)(9)(d). The court held a hearing on the application on July 30, 2014.
At the hearing, defendant, relying on
State v. V.M.D.
, 8th Dist. No. 100522,
asserted that, under the "plain language of the statute," attempted robbery was an offense of violence. The state further noted that V.M.D. was not controlling, and that the facts underlying defendant's conviction demonstrated that two individuals were injured as a result of defendant's conduct. Defendant asserted that V.M.D. was persuasive authority, that "there was no violence in connection with the commissiоn" of the theft itself, and that the injuries occurred when the security officer tried to handcuff defendant. (Oct. 18, 2014 Tr. 5.) The trial court concluded that, while it wasn't "excusing the scuffle in the
parking lot," it found that "defendant was not violent when he was in the store, nor did he pose threats to anybody while in the store." (Oct. 18, 2014 Tr. 8.) The court further noted that, while was not controlling, the court found "some of the language" from that case "compelling." (Oct. 18, 2014 Tr. 8.) The court observed that defendant had served his sentence, fully complied with the terms of his probation, and had not incurred any new criminal charges in 18 years. The court concluded that, "[i]f that that doesn't define an individual who has exhibited evidence that he's bеen rehabilitated, I don't know what else does." (Oct. 18, 2014 Tr. 9.) As such, the court granted defendant's application.
II. DEFENDANT CANNOT SEAL THE RECORD OF HIS COVICTION
The state asserts that, as defendant was convicted of a crime which is
statutorily defined as an offense of violence, he is not eligible to have the record of his
conviction sealed. An appellate court generally reviews a trial court's disposition of an
application to seal a record of conviсtion under an abuse of discretion standard.
State v.
Black
, 1oth Dist. No. 14AP-338,
number of convicted persons the privilege of having record of their * * * conviction
sealed.' "
Koehler v. State,
10th Dist. No. 07AP-913,
2953.32. R.C. 2953.32(A)(1) provides that "an eligible offender may apply to the
sentencing court * * * for the sealing of the record of the case that pertains to the
conviction." For a felony conviction, a defendаnt may apply for sealing "at the expiration
of three years after the offender's final discharge." R.C. 2953.31(A)(1). A court may grant
expungement only when all statutory requirements for eligibility are met.
State v.
Brewer,
10th Dist. No. 06AP-464,
sealing. The statute provides that R.C. 2953.31 to 2953.35 "do not apply" to "[c]onvictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony." R.C. 2953.36(C). R.C. 2901.01 provides that, "[a]s used in the Revised Code," the term "offense of violence" is defined as "[a] violation of section * * * 2911.02" and includes "[a] conspiracy or attempt to commit" such offense. R.C. 2901.01(A)(9)(a) and (d). R.C. 2901.02 defines the crime of robbery. Thus, because R.C. 2901.01 defines attempted robbery as an offense of violence for purposes of the Ohio Revised Code, the state asserts R.C. 2953.36(C) prohibits defendant from sealing the record of his attempted robbery conviction. Thе interpretation of a statute is a question of law which we review de novo.
State v. Vanzandt
, 142 Ohio St.3d 223,
When analyzing statutory provisions, our paramount concern is to ascertain and give effect to the intention of the General Assembly. Henry v. Cent. Natl. Bank , 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), рaragraph two of the syllabus. We primarily seek to determine legislative intent from the plain language of a statute. Summerville v. Forest Park , 128 Ohio St.3d 221,2010-Ohio-6280 , 943 N.E.2d 522, ¶ 18. "If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is nеcessary." State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. , 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). An unambiguous statute must be applied by giving effect to all of its language, without adding or deleting any words chosen by the General Assembly. Armstrong v. John R.
Jurgensen Co. , 136 Ohio St.3d 58,2013-Ohio-2237 , 990 N.E.2d 568, ¶ 12.
Id. at ¶ 7. The trial court relied on V.M.D. to grant defendant's application. In V.M.D. ,
the defendant filеd an application to seal the record of his attempted robbery conviction, but the trial court denied the application. The reviewing court acknowledged that the term "offense of violence" was defined in R.C. 2901.01, and that R.C. 2901.01 defined attempted robbery as an offense of violence, but held that "the term 'offense of violence' [was] not defined in R.C. 2953.31 to 2953.36, the specific code sections governing expungement." Id . at ¶ 10. The V.M.D. court noted that, in State v. J.K. , 8th Dist. No. 96574 , 2011-
Ohio-5675, it did not apply R.C. 2901.01(A)(9)(d) to determine whether the applicant's
attempted arson conviction was an offense of violence. Instead, in
J.K.
, the court
"reviewed the record to determine whether the facts 'clearly revealed' that the defendant
committed a disqualifying 'offense of violence.' "
V.M.D.
at ¶ 13, quoting
J.K.
at ¶ 30. As
the facts underlying the defendant's conviction in
V.M.D.
indicated that defendant did not
carry the firearm at issue, and further indicated that the firearm was not a real, operable
firearm, the court concluded that "[u]nder the particular circumstances of this case, we
cannot say the record 'clearly revealed' V.D. committed a disqualifying 'offense of
violence.' "
Id
. at ¶ 15. As such, the court concluded that the defendant should be
permitted to seal the record of his attempted robbery conviction. Defendant asks this
court to apply to the instant action and uphold the trial cоurt's judgment.
V.M.D.
, however, as a decision from the Eighth District Court of Appeals, is
non-binding authority in this court. This court has held that R.C. 2901.01 defines an
offense of violence for purposes of R.C. 2953.36(C), and that an attempt to commit an
offense is included within the term offense of violence.
See State v. Evans
, 10th Dist. No.
13AP-939,
{¶ 15}
Furthermore, this court has held that R.C. 2901.01(A)(9) unambiguously
defines offenses of violеnce by reference to Revised Code sections, and does not
"differentiate between conduct causing physical harm" or conduct which merely causes
"mental distress."
State v. Miller
, 10th Dist. No. 06AP-192,
2953.36(C) is part of the Revised Code, and R.C. 2901.01(A)(9)(d) defines attempted
robbery as an offense of violence, R.C. 2953.36(C) precludes defendant from sealing the
record of his attempted robbery conviction. As defendant was conviсted of a statutory
offense of violence, this court has no authority "to do anything but follow the directive of
law enacted by the general assembly."
Youngstown v. Garcia
, 7th Dist. No. 05 MA 47,
such, we reverse the judgment of the Franklin County Court of Common Pleas and remand the case for proceedings consistent with this decision.
Judgment reversed; case remanded.
TYACK and KLATT, JJ., concur.
_________________
Notes
[1] The Supreme Court of Ohio accepted the state's discretionary appeal in
V.M.D.
on September 24, 2014.
State v. V.M.D.
,