[Cite as State v. E.C., 2019-Ohio-1240.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 107097




                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                               E.C.

                                                      DEFENDANT-APPELLEE




                                           JUDGMENT:
                                     REVERSED AND REMANDED




                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Case No. CR-02-426026-ZA

        BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: April 4, 2019
ATTORNEYS FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44107

Anne D. Veneziano
24100 Chagrin Boulevard, Suite 480
Beachwood, Ohio 44122




FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, the state of Ohio (hereinafter “state”), brings the instant appeal

challenging the trial court’s judgment granting an application for the sealing of criminal records

of conviction filed by defendant-appellee, E.C. The state argues that the trial court erred in

granting E.C.’s motion because he was convicted of an offense of violence, and thus, was not

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

                             I.   Factual and Procedural History
       {¶2} In October 2002, E.C. pled guilty to robbery, a third-degree felony in violation of

R.C. 2911.02(A)(3). The trial court sentenced E.C. to community control sanctions for a period

of two years, which E.C. completed without incident.

       {¶3} On May 26, 2016, E.C. filed a motion “for expungement and sealing of records.”

Therein, E.C. argued that he satisfied all of the criteria set forth in R.C. 2953.52. The trial court

ordered an expungement investigation report on June 1, 2016.

       {¶4} The state filed a brief in opposition on July 27, 2016. Therein, the state argued that

E.C. was not eligible for expungement pursuant to R.C. 2953.36 because his robbery conviction

was an offense of violence.

       {¶5} The trial court held a hearing on E.C.’s motion on September 6, 2017. During the

hearing, defense counsel, E.C., and the state addressed the trial court.            The trial court

acknowledged that E.C.’s robbery conviction was, by definition, an offense of violence. (Tr. 9.)

 Nevertheless, the trial court explained that it would determine whether principles of equity

outweighed the requirements set forth in the expungement statute. At the close of the hearing,

the trial court indicated that it would take the matter under advisement.

       {¶6} On March 28, 2018, the trial court granted E.C.’s motion for expungement. The

trial court’s judgment entry provides, in relevant part,

       The court finds that [E.C.] is an eligible offender under R.C. 2953.31(A); that

       three (3) years have expired after [E.C.’s] final discharge if convicted of a felony

       * * *; that no criminal proceedings are pending against [E.C.]; that [E.C.] has

       been rehabilitated to the satisfaction of the court; and that the criminal offense(s)

       [E.C.] was convicted of is not one described in R.C. 2953.36 for which the sealing

       of records is precluded; and that the interests of [E.C.] in having the records
       pertaining to [his] conviction sealed are not outweighed by any legitimate

       governmental needs to maintain those records.

       {¶7} It is from this judgment that the state filed the instant appeal on April 20, 2018.

The state assigns one error for our review:

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

                                     II.   Law and Analysis

                                      A.      Eligible Offense

       {¶8} In its sole assignment of error, the state argues that the trial court erred in sealing

E.C.’s records of conviction because E.C. was convicted of an offense of violence, and thus, he is

not eligible for expungement. After reviewing the record, we agree with the state.

       {¶9} Pursuant 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 set forth in R.C. 2953.36

bars the sealing of records. One such exclusion is if the applicant was previously convicted of

an “offense of violence.” R.C. 2953.36(A)(2)-(3). The statutory term “offense of violence” 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.

(Emphasis added.)

        {¶10} As noted above, E.C. was convicted of robbery, a violation of R.C. 2911.02(A)(3).

 R.C. 2901.01(A)(9)(a) lists robbery as an offense of violence — a fact that the trial court also

acknowledged during the expungement hearing.           Accordingly, E.C. is not eligible for the

sealing of records of conviction in this matter. See State v. E.A., 8th Dist. Cuyahoga No.

103829, 2017-Ohio-180, ¶ 7.

        {¶11} The Ohio Supreme Court held that there is no room for statutory interpretation

when analyzing the exclusions to expungement set forth in R.C. 2953.36.       State v. V.M.D., 148

Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 16. The court explained,

        R.C. 2953.36 speaks for itself. “Our first duty in statutory interpretation is to
        determine whether the statute is clear and unambiguous.” Estate of Heintzelman
        v. Air Experts, Inc., 126 Ohio St.3d 138, 2010-Ohio-3264, 931 N.E.2d 548, ¶ 15.
        “[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.” State v. Kreischer, 109 Ohio
        St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus.

        There is no room for interpretation in this case. * * * When the General Assembly

        makes convictions of specific offenses ineligible for sealing because they are

        offenses of violence, courts do not have authority to review the record to examine

        the facts underlying the conviction to determine whether they reveal a violent act.

Id. at ¶ 15-16.
       {¶12} Because the statutory definition of an “offense of violence” is clear and

unambiguous, this court may not deviate from its application, either by considering principles of

equity, as the trial court did, or the underlying facts of E.C.’s offense.        See E.A. at ¶ 9.

Accordingly, the trial court erred in granting E.C.’s motion because E.C. was convicted of an

offense of violence, making him ineligible for expungement.

       {¶13} For all of the foregoing reasons, the state’s sole assignment of error is sustained.

                                        III.   Conclusion

       {¶14} After thoroughly reviewing the record, we find that the trial court erred in granting

E.C.’s motion for expungement. E.C. was convicted of robbery, an offense of violence, and

thus he is not an eligible offender.

       {¶15} The trial court’s judgment granting E.C.’s motion is reversed, and this cause is

remanded to the lower court for further proceedings consistent with this opinion.

       It is ordered that appellant recover of 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

MARY J. BOYLE, P.J., CONCURS WITH SEPARATE CONCURRING OPINION;
LARRY A. JONES, SR., J., CONCURS WITH MAJORITY AND CONCURS WITH
SEPARATE CONCURRING OPINION
MARY J. BOYLE, P.J., CONCURRING:

       {¶16} I agree with the majority’s reasoning, analysis, and conclusion as to the state’s sole

assignment of error. While I recognize that R.C. 2953.36 prohibits the expungement of a

conviction of robbery because it is an “offense of violence,” I believe that determining whether

an offense was one of violence under R.C. 2953.36 should require more than analyzing the name

of the offense. Instead, whether a defendant’s convictions are eligible for expungement should

be determined by balancing a defendant’s interests and reasons for seeking a sealing of the

records against the government’s interest in maintaining them. This case is a clear example of

why that balancing test is necessary.

       {¶17} At the expungement hearing, E.C.’s attorney explained that during the time of the

crime, E.C. was 18 years old. He stated,

       [E.C.] was in high school and he had just been placed on the medication Paxil by
       a new doctor for some anxiety he was having. He was on the medication for less
       than a week, [when] he began having adverse reactions to the medication, and he
       was having all kinds of racing thoughts through his head, and that ultimately
       prompted him to go into a convenience store in Cleveland Heights and [attempt]
       to rob the store. * * *

       [W]hat he did essentially was put his hand in his pocket and pretended like he had
       a gun. The store owner was never convinced and he ultimately never did have a
       gun. * * * The store owner actually chased him out of the store and told him to get
       out[.] No one was harmed. Nothing taken. No gun. He was arrested and
       charged * * * with aggravated robbery, felony one.

       After a series of pretrials, * * * it was pled down to a felony three robbery. He
       was placed on two years of community control. He completed that without issue.

       And since that time there has been absolutely no violations, nothing, no criminal
       violations, nothing[.] * * * He’s been a law-abiding citizen. * * * So today now
       he’s fifteen years later, 33 years old. He’s completed high school, he’s completed
       a variety of educational programs. * * * He’s got no subsequent history of mental
       health issues. He has a good job right now.
       {¶18} E.C.’s trial counsel further explained that E.C. sought an expungement of his

robbery conviction because E.C. “had some opportunity to get into acting, and his goal is to get

in the Actor’s Guild and really relocate and [he is] not able to do that. They made it very clear

he can’t do that with something like this on his record, and also something very simple, like just

getting an apartment[.]”

       {¶19} His trial counsel concluded that the “strong interest in moving on with his life in

providing a better future for himself outweighs any government interest in keeping this

conviction open.”

       {¶20} E.C. spoke next and explained to the trial court that “when [he] was on the

medication, [he] had the adverse effect” and that “after [he] committed the crime, [he] actually

turned [himself] in because [he] knew something was off and [he] wasn’t in [the] right state of

mind[.]” He said he believed that if he had not been on the medication and had been “thinking

clearly and logically,” he would not have committed the crime. He said that he is no longer on

that medication and has not “had any legal problem whatsoever for fifteen years.” He also

reiterated that he sought expungement of his robbery conviction because it was preventing him

from pursuing a career in acting, renting an apartment, and finding a job.

       {¶21} After a review of the record, I find it hard to believe that the General Assembly’s

intent is being served in this case. After 15 years of living a law-abiding and productive life,

E.C.’s snap decision — which did not result in an injury or damage to property — while under

the adverse influence of new medication at the age of 18 is still prohibiting him from renting an

apartment and pursuing a career and passion. Despite his clear rehabilitation, E.C. seemingly

will never be able to remove his lifelong scarlet letter and reap the benefits and forgiveness that I

believe R.C. 2953.36 was truly meant to provide.
         {¶22} The expungement provisions of the Revised Code were created to be 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). Further, expunging criminal records serves many

purposes, including providing economic benefits to defendants and society as a whole because

the failure to seal records “hurt communities, * * * hurts counties and [] hurts states if their

citizens cannot be productively employed or aren’t part of the tax base.” National Public Radio

Inc., Scrubbing the past to give those with a criminal record a second chance,

https:www.npr.org/2019/02/19/692322738/

scrubbing-the-past-to-give-those-with-a-criminal-record-a-second-chance (accessed Feb. 19,

2019).

         When ex-offenders return to their community after having paid their debt to
         society, they are often discriminated against because of prior convictions and
         arrests. This discrimination occurs in nearly every aspect of the ex-offender’s
         life. It is found in limited employment opportunities including job interviews,
         hiring, promotions and advancements. It is found in housing opportunities
         including the ability to qualify for more secure and affordable housing and the
         ability to maintain mortgages and loans. It is found in the inability to obtain
         certain licenses needed to advance careers. It is found when parents are unable to
         volunteer at their children’s school events because of the past convictions.

The American Law Institute, Indiana’s Second Chance Law — How Expungement Works in

Indiana,                                             https://www.ali.org/media/filer_public/12/f7/

12f73352-432d-4c38-8f1d-d339c7f57391/indiana2018_expungement_presenta-tionrev.pdf

(accessed Feb. 19, 2019).

         {¶23} There is also “a growing body of evidence that [prohibiting defendants from

sealing their criminal records] undermines public safety if you don’t help people move beyond

their criminal record and participate in the workforce. Without that help, the chances of people

returning to the criminal justice system increases.” Scrubbing the past. Given that “with
background checks ubiquitous for jobs, schools, mortgage applications and more, even one

conviction — and sometimes even just one arrest — can dog people for years, * * * relegating

someone to permanent second-class status[,]” it is not surprising that there is “a new push in

some states to clear some felony convictions, especially non-violent ones.” Id.

       {¶24} With all that in mind, I do not believe that an Ohio defendant’s rehabilitation

should be rendered “irrelevant” because of the labeling of their crime and without consideration

of the underlying facts. State v. V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶

17.

       {¶25} In V.M.D., the Ohio Supreme Court stated,

       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.

Id. at ¶ 17. I, like the Ohio Supreme Court, recognize the limits that R.C. 2953.36 places on our

decision in this case and that any change to the expungement process must come from the

legislature. I write separately to note that the limits of R.C. 2953.36 undercut the rehabilitative

nature that the expungement process is meant to serve in cases such as this one, where defendants

have lived productively and have better opportunities awaiting upon expungement. In cases

involving offenses other than homicides, sexual crimes, or those that caused serious bodily

injury, trial courts should resort to the balancing test under R.C. 2953.32 (which trial courts use

when an offender’s prior conviction does not fall under R.C. 2953.36’s restrictions) instead of

relying on the offense’s title. The trial court utilized such a balancing test in this case and, in my
opinion, reached a just result. While the trial court’s ruling is clearly in conflict with R.C.

2953.36, I believe its ruling serves the purposes of the expungement process — rehabilitating

offenders to live law-abiding lives — and justly allows E.C., who has lived a law-abiding life for

15 years, to move forward and pursue his life goals. Unfortunately, because of R.C. 2953.36’s

restrictions, I have no choice but to concur.
