[Cite as State v. E.A., 2017-Ohio-180.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 103829



                                          STATE OF OHIO
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                              E.A.
                                                     DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Case No. CR-96-347043-ZA


        BEFORE: Celebrezze, J., McCormack, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: January 19, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

      {¶1} Appellant, the state of Ohio, seeks to overturn a lower court’s decision to

grant an application for the sealing of criminal records of conviction filed by appellee,

E.A. The state argues that the trial court erred when it failed to hold a hearing on the

motion, and also erred in granting the expungement when E.A. was not eligible for

expungement. After a thorough review of the record and law, this court reverses.

                          I. Factual and Procedural History

      {¶2} As part of a plea agreement, E.A. pled guilty to attempted robbery to resolve

multiple counts of robbery and theft with which he had been indicted on February 4,

1997. E.A. was sentenced to a suspended six-month sentence, placed on one year of

community control, fined $250, and ordered to pay court costs. He then completed his

community control without serious incident.

      {¶3} On April 9, 2015, E.A. filed an application for the sealing of records of

conviction pursuant to R.C. 2953.32. The state responded with a brief in opposition.

The lower court ordered an “expungement report/investigation” on April 15, 2015. The

docket does not reflect that a hearing date was set, but a November 4, 2015 journal entry

indicates that the matter was called for hearing on that day. The journal entry indicates

that the court provided the state with notice of the hearing, but the state did not attend.

The journal entry further indicates that a hearing was held without a prosecutor in

attendance. The court granted the application and sealed E.A.’s records of criminal
conviction. The state then filed the instant appeal raising one assignment of error for

review:

       I. A trial court errs in ruling on a motion for expungement filed pursuant
       to R.C. 2953.32 without first holding a hearing.

       {¶4} Because an issue recently decided by the Ohio Supreme Court is dispositive,

it will be addressed first.

                                  II. Law and Analysis

                                   A. Eligible Offense

       {¶5} While not separately assigned as error, the state argues within its single

assignment of error that the trial court erred in sealing E.A.’s records of conviction

because E.A. was convicted of an offense of violence. Therefore, he is not eligible for

expungement. The state is correct.

       {¶6} According to R.C. 2953.32(C), a court must hold a hearing to determine if an

applicant is an eligible offender as well as whether any other exception bars the sealing of

records as set forth in R.C. 2953.36.       One such exclusion is if the applicant was

previously convicted of an “offense of violence.”          R.C. 2953.36(A)(2)-(3).      This

statutory term is defined in R.C. 2901.01(A)(9):

       “Offense of violence” means any of the following:

       (a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11,
       2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02,
       2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24,
       2911.01, 2911.02, 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25,
       2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1), (2), or (3) of
       section 2911.12, or of division (B)(1), (2), (3), or (4) of section 2919.22 of
       the Revised Code or felonious sexual penetration in violation of former
       section 2907.12 of the Revised Code;

       (b) A violation of an existing or former municipal ordinance or law of this
       or any other state or the United States, substantially equivalent to any
       section, division, or offense listed in division (A)(9)(a) of this section;

       (c) An offense, other than a traffic offense, under an existing or former
       municipal ordinance or law of this or any other state or the United States,
       committed purposely or knowingly, and involving physical harm to persons
       or a risk of serious physical harm to persons;

       (d) A conspiracy or attempt to commit, or complicity in committing, any

       offense under division (A)(9)(a), (b), or (c) of this section.

       {¶7} E.A. was convicted of an attempted violation of R.C. 2911.02, robbery. R.C.

2901.01(A)(9)(a) lists robbery as an offense of violence. R.C. 2901.01(A)(9)(d) also

indicates that an attempt to commit an offense listed in R.C. 2901.01(A)(9) is also an

offense of violence.     Therefore, E.A. is not eligible for the sealing of records of

conviction in this matter. See State v. V.M.D., Slip Opinion No. 2016-Ohio-8090.

       {¶8} In V.M.D., the Ohio Supreme Court determined that there was no room for

statutory interpretation when analyzing the above provisions. Id. at ¶ 16. It rejected this

court’s consideration of other factors and the premise that incorporation of the attempt

statute to a crime that already includes an attempted act was too far removed to constitute

a crime of violence based on the facts of that case. Id. at ¶ 18.

       {¶9} According to the Ohio Supreme Court, the statutory definition of “offense of

violence” is clear and unambiguous and this court may not deviate from its application.
Therefore, the trial court erred in granting E.A.’s application where E.A. was convicted of

an offense of violence, making him ineligible for expungement.

                              B. Failure to Hold a Hearing

       {¶10} The state claims that the lower court abandoned its statutory duty to hold a

hearing before granting E.A.’s application. In light of the above holding, this argument

is moot.

       {¶11} R.C. 2953.32 provides a limited right to criminal defendants to seal records

of criminal conviction but requires the trial court to hold a hearing prior to granting such

an application. R.C. 2953.32(B).

       {¶12} The state argues that the trial court did not follow the dictates of R.C.

2953.32 and hold a hearing on E.A.’s application.            The lower court’s journal entry

granting E.A.’s application states that a hearing was conducted. However, the docket

does not indicate a hearing date was set or notice issued. This court does not need to

resolve the inherent conflict between the docket and the journal entry in this case because

the records of conviction cannot be sealed. The offense E.A. committed is an offense of

violence and not subject to sealing under R.C. 2953.32. Therefore, the state’s claim that

the court erred because it did not hold a hearing is moot.

                                     III. Conclusion

       {¶13} E.A. is not an eligible offender because his conviction was for an offense of

violence. Therefore, the trial court erred in granting his application to seal the records of
his criminal conviction. The state’s claim that the court erred when it failed to hold a

hearing is moot.

       {¶14} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
