Oral Argument Preview: Can An Attempted Robbery Conviction be Judicially Sealed? State of Ohio v. V.M.D.

Update: On December 13, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read an analysis of the oral argument here.

On September 16, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. V.M.D., 2014-0990.  At issue in the case is whether attempted robbery is an “offense of violence” that precludes expungement. This case is being argued in Sandusky County, at Fremont Ross High School, as part of the court’s off-site program.

 Case Background

In 2000, Appellee V.M.D., (as he is called in the briefs), then 18, was arrested after allegedly stealing $242 while carrying a 9 mm pistol. However, evidence showed that the gun was inoperable and possibly a fake.  Regardless, V.M.D. pled guilty to  amended charges of attempted robbery and attempted complicity in intimidation, both fourth-degree felonies. V.M.D. was sentenced to eighteen months of community control sanctions, with which he fully complied.

Twelve years after completing his sanctions, V.M.D. filed a motion to seal his criminal record. The trial court denied V.M.D.’s motion, finding that his attempted robbery conviction was an “offense of violence” that precluded expungement.

On appeal, in an opinion written by Judge Tim McCormack, joined by Judges Mary J. Boyle and Mary Eileen Kilbane, The Eighth District unanimously found that, in reviewing the record in this particular case, V.M.D. did not commit an “offense of violence” and therefore is eligible for expungement. The court explained that V.M.D.’s amended attempted robbery conviction with a possibly fake gun is “too far removed” from an “offense of violence” and he should not be automatically disqualified from expungement.

Key Precedent

R.C. 2953.32 (In determining eligibility for judicial record sealing, the court must (1) ascertain whether the applicant is an “eligible offender,” (2) determine whether any criminal proceedings are pending against the applicant, (3) satisfy itself regarding whether the applicant has been rehabilitated to the court’s satisfaction, (4) consider any objections raised by the prosecutor, and (5) weigh the interests of the applicant in having the records pertaining to his or her conviction sealed against the legitimate needs, if any, of the government to maintain those records.)

R.C. 2953.36(C) (Offenses of violence cannot be expunged.)

R.C. 2901.01(A)(9)(a) and (d) (Defines offenses of violence.)

State ex rel. Gains v. Rossi 86 Ohio St.3d 620 (1999) (The expungement process is “remedial in nature and must be liberally construed to promote their purposes.”)

State v. Simon, 87 Ohio St.3d 531 (2000) (“Under the plain language of R.C. 2953.36, a defendant who is ineligible for probation pursuant to R.C. 2951.02 is ineligible to have his or her record sealed. When considering whether an applicant is ineligible to have a conviction record sealed under R.C. 2953.36 because the applicant may have been “armed with a firearm or dangerous ordnance” ( R.C. 2951.02) at the time of the offense, a trial judge must examine the entire record to determine whether the applicant was so armed.”)

State v. Hamilton, 75 Ohio St.3d 636 (1996)  (“Expungement is an act of grace created by the state, and so is a privilege, not a right.”)

Pepper Pike v. Doe 66 Ohio St.2d 374 (1981) (Courts have inherent authority to grant the judicial remedy of expungement and sealing of records in “unusual and exceptional circumstances.” In determining eligibility for expungement the court should weigh the “interest of the accused in his good name and right to be free from unwarranted punishment against the need of government to maintain records.”)

State v. J.K. 2011-Ohio-5675 (8th dist.) (In determining expungement eligibility, a court should review the entire record. After reviewing the record and considering all mitigating and/or aggravating factors the appeals court determined that a guilty plea of attempted arson was not a disqualifying “offense of violence.”)

State’s Argument

The State, the appellant here, argues that the decision from the court of appeals is in direct contradiction to the language in R.C. 2953.36, in which the legislature made it perfectly clear that offenses of violence cannot be judicially sealed. V.M.D. unquestionably committed an offense of violence as determined by statute. He was convicted of attempted robbery and robbery is considered an offense of violence. V.M.D.’s plea of “attempt” does not change the fact that the underlying offense precludes him from expungement. The Eighth District circumvented the express language of R.C. 2953.36 by creating a case-by-case analysis. The Eighth District further erred by reviewing the record to determine if V.M.D. committed an offense of violence. When a person is convicted of an offense of violence, as determined by statute, that person is unequivocally ineligible for expungement.

Furthermore, the General Assembly clearly and unambiguously includes “attempt” convictions in the definition of an offense of violence. The sealing of a criminal record is not a right that every convicted felon has. Instead, it is “an act of grace by the state” that is granted when the prescribed requirements are met. V.M.D. pled guilty to an offense of violence and should be prohibited from judicial record sealing consideration.

V.M.D.’s Argument

First, V.M.D. discusses the overarching purposes of record sealing. The expungement process is remedial in nature and must be liberally construed in favor of a rehabilitated person.

V.M.D. then establishes the deference courts are given in sealing records. While conceding that courts cannot expunge convictions for offenses of violence, courts have the discretion to determine whether a past offense is an offense of violence. In doing so, a court must review the entire record and then apply the parameters set forth in R.C. 2953.32 (C).

V.M.D. proposes a different interpretation of his conviction. He technically pled to an attempt of a crime where the underlying charge included attempt. His watered-down conviction of an “attempt to attempt a robbery” is not one that should not be considered as an offense of violence. Furthermore, the court has recognized that an “attempt” conviction does differ from a crime fully carried out. Additionally, V.M.D. was only 18 when he was convicted, and since that time has gone to community college and works as an independent contractor for a chemical company. V.M.D. is the exact sort of person who should benefit from expungement.

State’s Proposed Proposition of Law

Ohio courts are prohibited from granting motions to expunge and seal records of criminal convictions that are offenses of violence.

Amicus Brief in Support of State of Ohio

Franklin County Prosecutor Ron O’Brien filed a brief in support of the State of Ohio. Prosecutor O’Brien echoes the State’s interpretation of expungement as “a privilege, not a right.” He characterizes the Eighth District’s decision as a “fundamental error” for failing to recognize that an attempt conviction still qualifies as an offense of violence. The language in R.C. 2901(A)(9)(a) is clear and unambiguous. It does not need further exploration or evaluation. The Eighth District erred when it deviated from this express language and created its own judicial construction. Further, attempted reliance on any inherent authority of a court to judicially seal a record is inapposite in a case such as this where the statute expressly forbids record sealing for an offense of violence.

Amicus Brief in Support of V.M.D.

The Office of the Ohio Public Defender (OPD) filed a brief in support of V.M.D. OPD acknowledges that the legislature has enacted various statutes that limit or expand a court’s right to seal records. However, the State failed to address the scenarios in which a court may expunge or seal records in the absence of legislative authorization. As the Supreme Court of Ohio has recognized, particularly in Pepper Pike, courts do have inherent authority to seal or expunge records when unusual and exceptional circumstances exist. OPD maintains V.M.D.’s case presents exactly such an unusual and exceptional circumstance and he should be granted expungement.

Student Contributor: Austin LiPuma


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