[Cite as State v. V.M.D., 2014-Ohio-1844.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100522



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                             V.M.D.
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Case No. CR-00-389059-ZA

        BEFORE: McCormack, J., Boyle, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: May 1, 2014
ATTORNEY FOR APPELLANT

A. Steven Dever
Law Offices of A. Steven Dever Co., L.P.A.
13363 Madison Avenue
Lakewood, OH 44107


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Diane Smilanick
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1. V.D. appeals from a judgment of the trial court denying an

expungement of his criminal record. V.D. was convicted of attempted robbery in 2000,

when he was 18.         The trial court denied his request for expungement because it

considered attempted robbery as an “offense of violence” precluding expungement.

Following precedent from this court, we conclude V.D. is entitled to have his record

expunged and therefore reverse the trial court’s judgment.

                        Substantive Facts and Procedural History

       {¶2} In 2000, V.D., 18 at the time, was charged in Berea Municipal Court with

aggravated robbery.     The exact circumstances of the incident were not fully reflected in

the record before us.    The record only reveals that, in a criminal complaint filed in the

Berea Municipal Court, V.D. was accused of stealing $242 and other personal items while

having “on or about his person” a 9 mm pistol. He was subsequently bound over to the

county common pleas court, and the grand jury indicted him for two counts of aggravated

robbery, in violation of R.C. 2911.02, each with a one-year and three-year firearm

specification, as well as one count of complicity in the commission of intimidation, in

violation of R.C. 2921.04.    At the plea agreement, however, the state nolled the firearm

specifications, representing to the trial court that “actually there is some possibility that it

was not an operable weapon and also this defendant was not in possession of that
weapon.”      The prosecutor stated to the court that “it’s the State’s understanding that it

was not a real gun.”

       {¶3}     The state also amended the indictment and charged V.D. instead with one

count of robbery, in violation of R.C. 2911.02(A)(3), alleging that he “did, in attempting

or committing a theft offense, or in fleeing immediately [thereafter], attempted to use or

threatened the immediate use of force against [a victim],” a felony of the third degree.

The state amended the count further, by incorporating the attempt statute (R.C. 2932.021)

into the count, making his offense a fourth-degree felony.           Pursuant to a plea agreement,

V.D. pled guilty to attempted robbery, as amended, and also to attempted complicity in the

commission of intimidation, a fourth-degree felony as well.

       {¶4} V.D. was sentenced to 18 months of community control sanctions for his

offenses. He complied fully with the terms of his community control sanctions.                       In

December 2001, the trial court sua sponte terminated his community control sanctions

early and discharged him in the case.

       {¶5} Twelve years later, in June 2013, V.D. filed a motion to seal his criminal

record.    The state opposed the motion.         The trial court held a hearing and denied his

request.   The trial court determined that V.D. was precluded from an expungement of his



         R.C. 2923.02(A) states, “No person, purposely or knowingly, and when purpose or knowledge
       1


is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful,
would constitute or result in the offense.” An attempt to commit an offense is an offense of the next
lesser degree than the original offense.
record because his offense was an “offense of violence” excepted by the expungement

statute.   The trial court stated that it “regretfully” denied V.D.’s application and remarked

that he would have been eligible, “other than that pesky language about robbery being a

prohibited offense.”

       {¶6} V.D. now appeals and raises one assignment of error.               He contends that the

trial court erred when it overruled his motion for an expungement.

                                        Law and Analysis

       {¶7} R.C. 2953.32(C)(1) sets forth factors the trial court must consider in an

application to seal the record of conviction.         The court must (1) ascertain whether the

applicant is an “eligible offender,”2 (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. 2953.32(C)(1)(a)-(e); State v. M.D., 8th Dist. Cuyahoga No.

97300, 2012-Ohio-1545, ¶ 6.


         We note the legislature revised the statute, effective September 28, 2012, and the statute now
       2


refers to “eligible offender” instead of “first offender.” Generally, an “eligible offender” means
someone who has no more than one felony conviction, no more than two different misdemeanors if the
convictions are not of the same offense, or no more than one felony conviction and one misdemeanor
conviction. R.C. 2953.31(A); In re Mooney, 10th Dist. Franklin No. 12AP-376, 2012-Ohio-5904, ¶
7.
      {¶8} The expungement statute, however, excludes certain criminal offenses from

being expunged.     R.C. 2953.36 enumerates these excepted offenses, which include

convictions of an “offense of violence.”   Whether V.D.’s offense of attempted robbery is

an “offense of violence” for purposes of expungement is the only issue before us in this

appeal.

      {¶9} We begin our review with the recognition that, generally, a trial court’s

decision regarding an application to seal a record is reviewed for an abuse of discretion.

However, we determine de novo the applicability of R.C. 2953.36 categories to an

applicant’s conviction, because that is a question of law.      State v. M.R., 8th Dist.

Cuyahoga No. 94591, 2010-Ohio-6025, ¶ 15, citing State v. Futrall, 123 Ohio St.3d 498,

2009-Ohio-5590, 918 N.E.2d 497, ¶ 6.

      {¶10} Notably, the term “offense of violence” is not defined in R.C. 2953.31 to

2953.36, the specific code sections governing expungement. A definition of the term

“offense of violence” can be found, however, in R.C. 2901.01, the statute providing

definitions for various terms for use in the Ohio Revised Code.        A review of R.C.

2901.01 indicates robbery is an “offense of violence.”     R.C. 2901.01(A)(9)(a).   V.D.,

however, was not convicted of robbery, but attempted robbery.       The question we are

confronted with in this appeal is whether attempted robbery is an “offense of violence”

disqualifying V.D. from expungement.

      {¶11}    The state argues attempted robbery is an “offense of violence,” citing R.C.

2901.01(A)(9)(d), which contains a provision that an “offense of violence” includes “[a]
conspiracy or attempt to commit, or complicity in committing” any offense defined as an

“offense of violence.”

      {¶12} This court was confronted with a similar issue in State v. J.K., 8th Dist.

Cuyahoga No. 96574, 2011-Ohio-5675, appeal not accepted, 131 Ohio St.3d 1513,

2012-Ohio-1710, 965 N.E.2d 312. There, the applicant was convicted of attempted arson.

 While arson was also a statutory “offense of violence,” this court, instead of concluding

attempted arson was an “offense of violence” by operation of R.C. 2901.01(A)(9)(d), did

not apply R.C. 2901.01(A)(9)(d) to automatically preclude J.K.’s conviction of attempted

arson from expungement.

      {¶13} Rather, this court reviewed the record to determine whether the facts “clearly

revealed” that the defendant committed a disqualifying “offense of violence. Id. at ¶ 30,

citing State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041 (2000). After an honorable

military discharge, J.K. arranged for a fellow soldier to destroy his car so that insurance

would have paid off the balance of his car loan; the act of arson was attempted, but was

quickly discovered by law enforcement.     This court, upon a review of the record, held

that the record did not “clearly reveal” that J.K., plea bargain notwithstanding, committed

a disqualifying “offense of violence” and concluded J.K. was eligible for expungement.

Id.

      {¶14} Because of R.C. 2901.01(A)(9)(d), which is not part of the expungement

statute, R.C. 2953.36 potentially casts a wide net excluding any attempted acts of violence

from expungement. It is not clear at all this is a result intended by the General Assembly.
 Just as we did in J.K., we recognize 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, 86 Ohio St.3d 620, 716 N.E.2d 204 (1999). We are further

mindful that “[s]ections of the Revised Code defining offenses or penalties shall be strictly

construed against the state, and liberally construed in favor of the accused.” State v.

McGinnis, 90 Ohio App.3d 479, 481, 629 N.E.2d 1084 (4th Dist.1993), citing R.C.

2901.04(A).

       {¶15}    The trial court, understandably, was reluctant to allow expungement

because of a strict interpretation of the robbery statute.   Pursuant to J.K., however, we do

not consider V.D.’s offense of attempted robbery automatically disqualifying him by

operation of R.C. 2901.01(A)(9)(d).      Although we recognize an “offense of violence”

includes an attempt of the offense under the definition, here, however, 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 threaten 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.”
       {¶16} The expungement statute is “designed to recognize that individuals with a

single criminal infraction may be rehabilitated.” State v. Derugen, 110 Ohio App.3d 408,

411, 674 N.E.2d 719 (3d Dist.1996). Here, V.D. committed the offense at a young age,

when he had just graduated from high school. He fully complied with the terms of his

community control sanctions and was discharged early.       He has been gainfully employed

as a full-time employee for a subcontractor at a chemical company, and apparently has

been law-abiding for the last 12 years.   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 the legislative 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.

       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.
______________________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
