Merit Decision: Record of Attempted Robbery Conviction Cannot be Judicially Sealed. State v. V.M.D.

On December 13, 2016, the Supreme Court of Ohio handed down a merit decision in State v. V.M.D., Slip Opinion No. 2016-Ohio-8090. In a unanimous opinion written by Justice Pfeifer, the court held that attempted robbery is a crime of violence, and therefore a conviction for that offense cannot be judicially sealed. The case was argued September 15, 2015, at Fremont Ross High School, in Sandusky county, as part of the court’s off-site program.

Case Background

In the year 2000, when V.M.D. was an 18-year-old high school senior, he was involved in a crime that led to him being indicted for two counts of aggravated robbery, each with a firearm specification, and one count of complicity in the commission of intimidation of a witness. After originally pleading not guilty to the charges, V.M.D. subsequently pled guilty to amended charges of attempted robbery and attempted complicity in the commission of intimidation, both fourth-degree felonies.  The firearm specification was dropped when the state advised the court that the gun was not a real gun, and wasn’t brandished by V.M.D. At issue in this case is the attempted robbery charge under R.C. 2911.02(A)(3) and 2923.02.

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. He argued that his conviction under the robbery statute and under the attempt statute created a legal fiction, because he was in effect pleading guilty to an attempt to an attempt to commit a robbery. The trial court denied V.M.D.’s motion, finding that his attempted robbery conviction was an “offense of violence” that precluded expungement.

The Eighth District unanimously reversed, finding that V.M.D. did not commit an “offense of violence” and was eligible for expungement. The court held that V.M.D.’s amended attempted robbery conviction with a fake gun was “too far removed” from an “offense of violence” and he should not be automatically disqualified from expungement. The appeals court then went on to review V.M.D.’s personal history, noting that he has been gainfully employed and law-abiding for the past twelve years, and that the sealing of his record should be allowed.

Read the oral argument preview of the case here and an analysis of that argument here.

Key Statutes and Precedent

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

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

R.C. 2901.01(A)(9) (Defines offenses of violence; expressly includes robbery)

R.C. 2911.02 (A)(3) (“No person, attempting or committing a theft offense… shall…use or threaten the immediate use of force against another.”)

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

State v. Hamilton, 75 Ohio St.3d 636 (1996) (Judicial record sealing is an act of grace created by the state, not a right.)

State v. Kreischer, 109 Ohio St.3d 391 (2006) (syllabus) (“[W]hen the General Assembly has plainly and unambiguously conveyed its legislative intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law as written.”)

Merit Decision

I’m cutting straight to the chase here. R.C. 2953.36 forbids the sealing of records of certain convictions, of which attempted robbery is one.  The fact that the conviction was for an attempt is irrelevant. There is no ambiguity in any of the statutes involved. The legislature, as it clearly has the power to do, decided an attempted robbery is an offense of violence, and offenses of violence cannot be sealed. Courts don’t have the authority to examine the underlying facts to see if they show a violent act.  An attempted robbery is, by definition, an offense of violence.

What About V.M.D.’s Rehabilitation?

“The process of sealing a record of conviction does not consist of the general evaluation of a person’s soul—it is statutory. There seems to be little doubt that V.M.D. has made significant personal progress from when he was a high school student and committed the crime at issue and that he is the type of person that Ohio’s sealing statutes are designed to benefit. However, the General Assembly has left the courts no room to seal the record of V.M.D.’s conviction, regardless of his being 18 when he committed the crime or the extent of his rehabilitation since his conviction. The focus in R.C. 2953.36 is on the crime committed rather than on the person who committed it. Any change in that calculus must come from the General Assembly,” Pfeifer wrote.

Case Disposition

The court of appeals’ decision was reversed and the trial court judgment reinstated.

Case Syllabus

None

Concluding Observations

This case, while ponderously argued, was ultimately both simple and straightforward, which is why it is puzzling that it took over a year to be decided. After argument, I called this “a win for the state, without doubt, despite clear sympathy for the defendant for having turned his life around.” At the end of oral argument in this case, Justice Pfeifer mused whether there should be some mercy at some point for individuals who did something “just on the edge of whether it even was a crime of violence,” while they were young, who then turned their lives around and stayed out of trouble for an extended period of time. He clearly thought there should be, as do I. The judicial record sealing statute is too rigid, and is in need of overhaul. The remedy here clearly lays at the feet of the General Assembly.

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