What’s On Their Minds: 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.

“Wouldn’t it be better for the General Assembly to be asked to liberalize the expungement statute to allow for a look at the particular circumstances of a plea?” Justice Lanzinger, to defense counsel.

On September 16, 2015, the Supreme Court of Ohio heard 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 was 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., then 18, and a high school senior, was involved in a robbery along with two juveniles, during which $242 in cash, a watch, a necklace, a wallet and a knife were stolen.  A gun, later determined to be a toy, was used in the robbery. V.M.D. was not the one who brandished the gun.  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 fake gun is “too far removed” from an “offense of violence” and he should not be automatically disqualified from expungement.

Read the oral argument preview of this case here.

Key Statutes

R.C. 2953.32 (Eligibility for judicial record sealing)

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

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

R.C. 2911.02(C)(3) (Robbery includes use of or threatening the immediate use of force against another.)

R.C.2923.02 (A)(3)(Attempt statute)( No person…shall engage in conduct that, if successful, would constitute or result in the offense.)

 At Oral Argument

Allan Rigas, Assistant Prosecuting Attorney, Cuyahoga County, for Appellant, State of Ohio

A. Steven Dever, Lakewood, for Appellee V.M.D.

State’s Argument

The expungement statutes clearly and unambiguously preclude the sealing of the records of an attempted crime of violence. Robbery is an offense of violence. Attempted robbery is included in the primary offense of robbery. Throughout the Revised Code, the legislature has defined any offense of violence to include an attempt of that crime as well. The plea in this case was unequivocally to an offense of violence. The court’s journal entry states that the defendant was convicted of attempted robbery. By definition, under R.C., 2929.01, that is an offense of violence. Even a liberal reading of the expungement statutes cannot change that.

V.M.D.’s Argument

 Fifteen years ago, the defendant was an accomplice in an attempted robbery where a toy gun was used. As a result, a very scared kid entered a plea to an amendment to an amendment. He pled guilty to an attempt to commit an attempted robbery. And the journal entry of what happened in this case is incorrect; it does not accurately reflect what happened. The defendant in this case simply did not plead guilty to an offense of violence. You cannot attach attempt to a predicate offense that already includes an attempt in the language of the crime, and many courts around the state have so held.

What Was On Their Minds

 To What Exactly Did the Defendant Plead?

Is there any question as to what the defendant pled to, asked Justice O’Donnell? (not according to the prosecutor) Did the state amend the crime of attempted robbery or did it amend the crime of robbery? (the latter, said the prosecutor) Of what offense does the court’s journal entry say that defendant was convicted? (attempted robbery the prosecutor repeated. a number of times.)  Later, O’Donnell noted that the journal entry of the court states that the defendant “retracts former plea of not guilty and enters a plea of guilty to attempted robbery 2923.02(A)(3), a felony of the 4th degree. Why is that not dispositive? Why should the court not give credence to the journal entry of conviction? Is the journal entry incorrect?  Is the defendant now trying a collateral attack on the court’s journal entry when there was no direct appeal of that? How can there be a collateral attack on a journal entry that was signed in August of 2000?

What does the actual judgment of conviction say, asked Justice Lanzinger?  And what code section is cited? It would be a stronger argument if all the defense were dealing with was the attempt statute, and not the robbery, but in this case there is the robbery specifically as a separate conviction, she noted.

An Offense of Violence

Is a fourth degree felony an offense of violence, asked Justice O’Donnell?

What the state wants determined here is purely a legal consideration, even though it may be extremely unfair to this defendant, mused Justice Pfeifer. Because perhaps going way back he didn’t do the thing that would have brought him into the reaches of a so-called crime of violence?

Is there any question that a robbery took place here, asked Justice O’Neill? (No, conceded defense counsel) Then since robbery is an offense of violence, why are we here today? He commented, “yes this is a liberal statute, but listening to the prosecutor, there are just some pesky facts here that the 8th district did not want to address. I think they went straight to the liberally construed part and said let’s go  home, this is a good person, which he surely seems to be, but he pled guilty to a robbery.”

Attempt Offenses

Has the court ever said that an attempt is the same as the original offense, asked Justice Lanzinger? Is an attempted robbery co-equal with a robbery conviction?

Is there an attempt to attempt a crime, asked Justice O’Donnell? Is it the defense argument that this defendant pled to something that is not a crime because you can’t have an attempt to attempt to commit a robbery, asked Justice O’Donnell? (yes, said defense counsel)

Where in the record do we find that the defendant pled to an attempt to attempt, asked Justice Pfeifer? Did the sentencing judge use the word “attempt” twice incorrectly?

Expungement Eligibility

Should the court look solely to the statute and not consider the facts underlying a plea or the conviction, asked Justice Lanzinger? The state would have the court look to the definition of offense of violence even though it is not incorporated explicitly within the expungement statute, correct? Chief Justice O’Connor also asked if the court could go back and look at the underlying facts of the case.

Chief Justice O’Connor said this to defense counsel:

“ You want this expunged, erased as if it never happened, for the purposes of going forward for your client. In this day and age with searchability and the fact that this case is in the Ohio Supreme Court, is it realistic that anyone who googles your client is not going to determine the conviction?”

Isn’t this statute supposed to be liberally construed on behalf of the applicant, asked Justice O’Neill?

Justice O’Donnell mused that the reason the case was here was because long ago the defendant did something he shouldn’t have, it was resolved, and he is now trying to re-acclimate himself into the business community and this transgression is following him everywhere. Defense counsel agreed.

What Should Have Happened at the Plea Hearing

 Wouldn’t it have been the responsibility of the defendant’s trial attorney who would have been representing the defendant  at that time to coordinate the language of the journal entry with what was said, and if there was a discrepancy, at that time it should have been appealed or just corrected, asked Chief Justice O’Connor?  Wasn’t that the method to be employed? Was there any attempt to revoke that guilty plea from those many years ago?  Vacate it? Shouldn’t that have been the first step? She asked both the prosecutor and defense counsel these questions. Could he still go back and do that now? (both seemed to think he could at least try)

Does the record show at any point there was a discussion with the defendant that down the road he might have this wiped off his record—anything like that, asked Justice Lanzinger?

 Where the Real Solution Lies

Justice Pfeifer wrapped up the arguments with questions (and comments) he said went beyond this case.  He noted that a serious look was being taken at the entire criminal code and wondered aloud whether there should be some mercy at some point for individuals who did something while they were young, something that may have been just on the edge of being a crime of violence, who had turned their lives around and stayed out of trouble for an extended period of time.  Shouldn’t the judicial sealing statutes be thus used? He clearly thought so. As do I.

To his credit, the always professional Mr. Rigas discussed some interesting proposals from the Cuyahoga County Prosecutor’s office suggesting a number of interesting reforms in this area.

How it Looks from the Bleachers

To Professor Bettman

A win for the state, without doubt, despite clear sympathy for the defendant for having turned his life around. Both arguments were full of technicalities and statutory interrelationships, which made for some ponderous listening. But the prosecution has the statutory support here.  Furthermore, even though the plea hearing may have been confused, it is axiomatic that a court speaks through its journal entries, and in this case, both sides agreed that the entry states the defendant was convicted of attempted robbery, which seems clearly to be an offense of violence. Of course, if it were permissible to look at the underlying facts, as the court of appeals did, things might well be different.

There is no way this court is going to allow a collateral attack on an unappealed judgment all these years later. On the other hand, as the Chief suggested, other than the passage of time, nothing really prohibits V.M.D. from going back and making his best case for vacating the plea.  The original trial judge, Janet Burnside, an eminently fair and reasonable jurist, is still on the bench.

The real bottom line here is as both Justices Lanzinger and Pfeifer directly discussed at argument—the judicial record sealing statute is too rigid and in need of overhaul. The court has discussed this problem before, in State v. Boykin, 2013-Ohio-4582,  (gubernatorial pardon does not automatically entitle recipient to have record judicially sealed; a pardon is not a statutory basis for judicial record sealing)  State v. Radcliff2015-Ohio-235(despite a gubernatorial pardon, a trial court has no inherent authority to seal the record of a pardoned conviction where the petitioner has other offenses on his record) and State v. Vanzandt, 2015-Ohio-236 ( court has no inherent power to unseal a judicially sealed record; trial court has no discretion to create additional exceptions to the sealing statute).

Here is what Justice Pfeifer wrote in his dissent in Vanzandt:

 “Though I have served on this court a long time, the court is still able to surprise and sadden me. Today, the court decides two cases related to the sealing of criminal records and issues two opinions so lacking in justice that they defy credulity. As Don Imus says, you can’t make this stuff up. In State v. Radcliff, the court disallows the sealing of records of criminal convictions that are 30 years old and for which the offender has been pardoned by a governor of Ohio.

In this case, the court concludes that records of criminal cases less than three years old must remain sealed; indeed, it holds that their existence can’t even be recognized for the limited purpose of showing that there had been a previous trial.

In Radcliff, the failure to seal the records ensures that a public-school employee with 20 years of good service is ineligible to work for the school. In this case, the failure to unseal the record ensures that a person accused of retaliating against a witness will not be prosecuted. Two cases, two exactly wrong conclusions. So much for justice, equity, sanity.”

 It’s ironic.  In 1981, before the current record sealing statutes were on the books, in Pepper Pike v. Doe, the Supreme Court of Ohio held that trial courts had the inherent power to expunge arrest records in the absence of statutory authority, in unusual and exceptional circumstances.  This case would surely seem to be such a case, as was Radcliff.  The current justices on the court disagree about whether Pepper Pike has any ongoing validity.  Regardless of the answer, the judicial record sealing statute needs to be reworked, to give more discretion to trial judges.  Mr. Rigas presented some interesting suggestions in the rebuttal portion of the state’s argument—that, for example, a defendant would know at the outset if the committed offense was expugnable, and if he or she completed all necessary requirements, the record would then automatically be sealed.  So this case, while a likely loss to the defendant, again raises the need for more mercy, less rigidity, in the proper circumstances.

To Student Contributor Austin LiPuma

 The off-site argument nurtured a more congenial, educational environment for the observing students. Lots of softball questions were lobbed from the bench today. Much of the court’s focus turned on the nuances of an “attempt” to commit a crime versus actually committing the crime. However, the issue is trickier in this circumstance because the plea deal effectively reads as an “attempt to attempt.” The State’s staunch interpretation of what constitutes an offense of violence that precludes expungement remained consistent. However, the court picked up on the consequences of such a narrow view throughout the argument.

Counsel for V.M.D. attempted to shift the exceedingly legal focus to the specific facts of what rose to the amendment plea bargain. However, the court refused to entertain the emotional underpinning of this case. When broken down, V.M.D. ostensibly pled to an attempt to commit robbery—in other words he pled guilty to an offense of violence. Why not pursue an alternative avenue? If V.M.D. did not brandish a weapon during this attempted robbery, why not attempt to vacate this fictitious “attempt to attempt” plea? Regardless, the threshold issue here is what crime V.M.D. committed. Unfortunately for V.M.D, the court does not appear to buy the “attempt to attempt” plea as a misapplication of law that should benefit V.M.D. in favor of expungement.

Thirty-three minutes into the argument, the “General Assembly” question was finally posed. Based on the court’s general reluctance to deviate from any statutory scheme, it looks like a win for the State. Unfortunately, the overarching principles of expungement were largely overshadowed by the dense dissection of what occurred leading up to V.M.D’s request.

 

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