[Cite as State v. R.M., 2017-Ohio-7396.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104327




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLANT

                                                vs.

                                             R.M.

                                                            DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-93-301491-ZA

        BEFORE:          Jones, J., Blackmon, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: August 31, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Paul V. Wolf
Paul V. Wolf Co.
50 Public Square, Suite 920
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision to grant

defendant-appellee, R.M.’s, 1 application to seal his record of conviction.               For the

reasons that follow, we reverse.

       {¶2} In 1993, R.M. was charged with abduction pursuant to R.C. 2905.02. He

pleaded guilty to attempted abduction pursuant to R.C. 2923.02 and 2905.02 and was

sentenced to one and one-half years in prison and a $2,500 fine.          He filed a motion for

shock probation, which was granted, and he was placed on four years of probation with

conditions.

       {¶3} In 2014, R.M. filed an application to seal his record.        The state opposed the

application and the court scheduled a hearing.        The court granted R.M.’s application to

seal his record, finding that no facts were presented to support that his underlying

conviction was a crime of violence.

       {¶4} The state filed a timely notice of appeal and in its sole assignment of error

argues that “Ohio courts are prohibited from granting motions to expunge and seal

records of criminal convictions that are offenses of violence.”           The state asserts that

R.M. is not eligible to have the record of his conviction sealed because he was convicted

of a crime that is statutorily defined as an offense of violence.


       1
        It is this court’s policy to refer to defendants who have had their criminal records sealed
pursuant to R.C. 2953.32 by their initials.
       {¶5} An appellate court generally reviews a trial court’s disposition of an

application to seal a record of conviction under an abuse of discretion standard. State v.

Black, 10th Dist. Franklin No. 14AP-338, 2014-Ohio-4827, ¶ 6. However, whether an

applicant is considered an eligible offender is an issue of law for a reviewing court to

decide de novo. 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; State

v. Clemens, 10th Dist. Franklin No. 14AP-945, 2015-Ohio-3153, ¶ 7.

       {¶6} “‘Expungement is a post-conviction relief proceeding which grants a limited

number of convicted persons the privilege of having record of their * * * conviction

sealed.”’ Clemens at ¶ 8, quoting Koehler v. State, 10th Dist. Franklin No. 07AP-913,

2008-Ohio-3472, ¶ 12.     Expungement is a privilege, not a right;    it is “an act of grace

created by the state.” State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000),

citing State v. Hamilton, 75 Ohio St.3d 636, 639, 665 N.E.2d 669 (1996).

       {¶7} R.C. 2953.32(A)(1) provides that, for a felony conviction, an offender may

apply for sealing “at the expiration of three years after the offender’s final discharge.” A

court may grant expungement only when all statutory requirements for eligibility are met.

 State v. Brewer, 10th Dist. Franklin No. 06AP-464, 2006-Ohio-6991, ¶ 5, citing In re

White, 10th Dist. Franklin No. 05AP-529, 2006-Ohio-1346, ¶ 4-5.

       {¶8} The Revised Code excludes certain criminal offenses from being expunged.

R.C. 2953.36(A)(3) prevents the sealing of records of “[c]onvictions of an offense of

violence when the offense is a * * * felony.”      The term “offense of violence” is not
defined in the specific code sections governing expungement, R.C. 2953.31 to 2953.36.

An “offense of violence” is defined in R.C. 2901.01, the statute providing various terms

for use in the Ohio Revised Code. R.C. 2901.01(A)(9)(a) states that abduction is an

offense of violence.   R.C. 2901.01(A)(9)(d) provides that “[a] conspiracy or attempt to

commit * * * any offense under division (A)(9)(a)” is an “offense of violence.”

(Emphasis added.)

       {¶9} As mentioned, R.M. pleaded guilty to attempted abduction. The trial court

found that there were no facts in the record that supported that the attempted abduction

was a crime of violence, and, on this basis, granted his application.

       {¶10} Subsequent to briefing in this case, the Ohio Supreme Court held that

attempted robbery is a crime of violence and one convicted of that criminal offense is

ineligible to have his or her record of conviction sealed. State v. V.M.D., 148 Ohio St.3d

450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 18. In V.M.D., the Ohio Supreme Court noted:

       R.C. 2901.01(A)(9) provides the applicable definition of “offense of
       violence”; it includes “[a] violation of section * * * 2911.02,” i.e., robbery.
       R.C. 2901.01(A)(9)(a). The fact that a conviction is for an attempt to
       commit an offense of violence is irrelevant — R.C. 2901.01(A)(9)(d)
       provides that “[a] conspiracy or attempt to commit * * * any offense
       under division (A)(9)(a)” also meets the definition of an “offense of
       violence.”

Id. at ¶ 14.    The court further determined that there was no room for statutory

interpretation when analyzing the relevant statutory provisions.     Id. at ¶ 16.   The court

rejected consideration of any other factors, such as an offender’s age at the time of the

crime, the facts underlying a case, or an offender’s rehabilitation. Id. at ¶ 17, 18.
       {¶11} Likewise, abduction is defined as a crime of violence in R.C.

2901.01(A)(9)(a). Thus, R.M.’s conviction for an “attempt” to commit abduction is

“irrelevant” and his crime meets the definition of an offense of violence.    Therefore, in

accordance with V.M.D., because R.M. was convicted of attempted abduction, which is a

felony and is defined by the General Assembly as an offense of violence, R.C.

2953.36(A)(3) prohibits the sealing of his record of that conviction.

       {¶12} The assignment of error is sustained.

       {¶13} Judgment reversed; case remanded.

       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.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
