State v. V.M.D.State v. V.M.D.
Factual and Procedural Background
{¶ 2} Appellee, Y.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.
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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
{¶ 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 threatening] 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.)
{¶ 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 thelegislative 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.
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,
[T]he government possesses a substantial interest in ensuring that ex-pungement 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 inR.C. 2953.32.
Hamilton at 640.
{¶ 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
{¶ 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.