THE STATE OF OHIO, APPELLANT, v. V.M.D., APPELLEE.
No. 2014-0990
SUPREME COURT OF OHIO
December 13, 2016
2016-Ohio-8090
PFEIFER, J.
Submitted September 16, 2015. APPEAL from the Court of Appeals of Cuyahoga County, No. 100522, 2014-Ohio-1844.
[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 advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-8090
[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
PFEIFER, J.
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
{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
{4} The trial court explained to V.M.D. that the amended-robbery charge under
{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
{6} Eleven years later, on June 26, 2013, V.M.D. applied to the trial court pursuant to
{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
(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
{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.
{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
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
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
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,”
[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
should be granted only when an applicant meets all the requirements for eligibility set forth in
R.C. 2953.32 .
{14} Pursuant to
{15}
{16} There is no room for interpretation in this case. The General Assembly has determined that an attempt to commit a violation of
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
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
Judgment reversed, and trial court judgment reinstated.
O‘CONNOR, C.J., and O‘DONNELL, LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
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.