[Cite as State v. D.G., 2016-Ohio-7609.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103861



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                            D.G.
                                                    DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-10-534930-A

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 3, 2016
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

Diane Smilanick
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

Michael P. Maloney
24441 Detroit Road, Suite 200
Westlake, OH 44145

ALSO LISTED:

D.G.
1750 Cliffview Road, 2nd Floor
Cleveland, OH 44112
MELODY J. STEWART, J.:

        {¶1} The sole issue in this appeal by the state of Ohio is whether the court erred by

finding that a conviction for attempted aggravated assault is not an offense of violence for

purposes of sealing a record of a conviction of appellee D.G. We agree with the state

that attempted aggravated assault is an offense of violence and reverse the order sealing

the record of conviction.

        {¶2} The record of conviction for certain offenses cannot be sealed, among them

“[c]onvictions of an offense of violence when the offense is a misdemeanor of the first

degree or a felony and when the offense is not a violation of section 2917.03 of the

Revised Code and is not a violation of section 2903.13, 2917.01, or 2917.31 of the

Revised Code that is a misdemeanor of the first degree[.]” R.C. 2953.36(C).1

        {¶3} D.G. pleaded guilty to a fifth-degree felony count of attempted aggravated

assault in violation of R.C. 2903.12 and 2923.02. Aggravated assault, as defined by R.C.

2903.12, is listed as an offense of violence under R.C. 2901.01(A)(9)(a). The exceptions

set forth in R.C. 2953.36(C) do not apply because attempted aggravated assault is not a

violation of R.C. 2917.03 nor is it a misdemeanor violation.




        Effective September 14, 2016, R.C. 2953.36 has been amended. The version of R.C.
        1


2953.36(C) that was in effect at the time D.G. filed her application to seal the record of her conviction
has been renumbered as R.C. 2953.36(A)(3). The amendment made no substantive changes to
former R.C. 2953.36(C).
      {¶4} Although there is no question that aggravated assault is defined as an offense

of violence, the issue below centered on the import of D.G. being found guilty of an

“attempt” to commit aggravated assault. R.C. 2901.01(A)(9)(d) states that an “offense of

violence” includes “[a] conspiracy or attempt to commit, or complicity in committing”

any offense defined as an “offense of violence.” In State v. Novak, 8th Dist. Cuyahoga

No. 92586, 2009-Ohio-6220, we found that “complicity in the commission of attempted

murder, was an offense of violence under R.C. 2953.36(C) and therefore not an

expungeable offense.” Id. at ¶ 14. In State v. Rybak, 11th Dist. Lake No. 2011-L-084,

2012-Ohio-1791, ¶ 22, the court of appeals specifically held that the offense of attempted

aggravated assault is an offense of violence and ineligible for expungement.

       {¶5} An emerging line of cases from this court, relying on a Supreme Court

directive that courts should examine “the entire record” to determine whether facts exist

that would disqualify a request to seal the record of a conviction, State v. Simon, 87 Ohio

St.3d 531, 721 N.E.2d 1041 (2000), paragraph two of the syllabus, have held that the

label “offense of violence” does not control over an offender’s actual conduct. In State

v. J.K., 8th Dist. Cuyahoga No. 96574, 2011-Ohio-5675, the panel held that an offense of

attempted arson, consisting of an insurance fraud scheme to destroy J.K.’s car for the

insurance proceeds, did not “clearly reveal” that act to constitute an offense of violence

because although “the act was attempted, [it] * * * was quickly detected by law

enforcement[.]” Id. at ¶ 29-30.
        {¶6} In State v. V.M.D., 8th Dist. Cuyahoga No. 100522, 2014-Ohio-1844, the

offender pleaded guilty to attempted robbery, as amended from the original charge of

aggravated robbery with a firearm specification.     During the plea proceedings, the

assistant prosecuting attorney told the court that V.M.D. was not in possession of the

weapon used during the attempted robbery and that the weapon may not have been “a real

gun.”    Id. at ¶ 2.   V.M.D. noted that R.C. 2901.01(A)(9)(d) was not a part of the

expungement statute and concluded that it was not clear that barring the court from

sealing the record of V.M.D.’s conviction was a result intended by the General Assembly.

Id. at ¶ 14. Finally, the decision noted that V.M.D. pleaded guilty to attempted robbery

under R.C. 2911.02(A). That statute states that no person, “in attempting or committing

a theft offense” shall do so with a deadly weapon. The panel essentially concluded that

V.M.D. had pleaded guilty to an attempt to commit an attempted robbery. Id. at ¶ 15.

        {¶7} V.M.D. was rejected as nonbinding and criticized in State v. Clemens, 10th

Dist. Franklin No. 14AP-945, 2015-Ohio-3153. In a retort to V.M.D.’s observation that

the R.C. 2901.01 definition of an offense of violence was not a part of the expungement

statute, Clemens noted that “R.C. 2901.01 provides definitions for the entire Revised

Code[.]” Id. at ¶ 17. The Clemens court considered itself bound to “‘follow the directive

of law enacted by the general assembly.’” Id. at ¶ 17, quoting Youngstown v. Garcia, 7th

Dist. Mahoning No. 05 MA 47, 2005-Ohio-7079, ¶ 22. The Tenth District therefore

found that regardless of whether Clemens did not engage in violent conduct when

committing the offense of attempted robbery, an analysis of what constitutes a offense of
violence “does not involve any consideration of the factual circumstances of the

underlying conviction.” Id. at ¶ 15.

      {¶8} Expungement of a criminal conviction is an “act of grace created by the

state,” Simon, 87 Ohio St.3d at 533, 721 N.E.2d 1041, so we strictly apply the statutory

requirements for sealing the record of a conviction. State v. Meyer, 8th Dist. Cuyahoga

No. 79513, 2001 Ohio App. LEXIS 5293, at *4 (Nov. 29, 2001). Unlike V.M.D., we

recognize that R.C. 2901.01(A)(9)(d), defining an “offense of violence” is, like all

definitions contained in R.C. 2901.01(A), to be “used in the Revised Code[.]” The

words “used in the Revised Code” mean the entire Revised Code — not just particular

revised code sections.   Compare State v. Zeune, 5th Dist. Licking No. 10 CA 06,

2011-Ohio-93, ¶ 30 (“We note that R.C. 1303.01(A) specifically provides that the

definitions that follow are ‘used in this chapter,’ not as used throughout the entire Ohio

Revised Code. The definition by its terms does not necessarily apply to Chapter [sic]

29.”) (Emphasis added.) And even if V.M.D. reasonably believed that there was room

for doubting whether R.C. 2901.01(A) meant what it said, the duty to strictly apply the

statutory requirements means that any doubt in that respect had to be resolved in favor of

finding that R.C. 2901.01(A) applies to the entire Revised Code.

      {¶9} D.G. pleaded guilty to attempted aggravated assault. Aggravated assault is

indisputably defined as an offense of violence. D.G.’s conviction for the attempt to

commit aggravated assault is treated the same as if she were convicted of aggravated
assault for purposes of the expungement statute. R.C. 2953.36(C) could not be any

clearer in barring the court from sealing D.G.’s record of conviction.

       {¶10} D.G.’s primary argument to the court below was that the court could

consider the facts of the case when deciding whether to seal the record of a conviction

and that those facts show that she did not commit any crime. D.G.’s attorney told the

court that she had been harassed outside of her apartment by some individuals. At the

time, she was speaking to her boyfriend, who heard the harassment. Counsel said that

D.G. went to bed and that:

       At about midnight that night the boyfriend comes back, apparently shot up
       an apartment from the outside into the inside where one of the perpetrators
       lived. He was indicted for felonious assault and various other things and
       was found guilty and imprisoned.

       She had literally no contributing activity with respect to the felonious
       conduct of her boyfriend. She didn’t tell him to do this. She didn’t know
       about it. She was literally in bed asleep when this was going down.

       {¶11} This is not a case where the “circumstances” of an offense indicate some

reason why the record of the conviction should be sealed. What D.G. is arguing was

that she pleaded guilty to an offense that she did not commit. There was no evidence to

support counsel’s assertion that D.G. did not commit any crime; in fact, the record does

not contain the transcript of D.G.’s guilty plea or any other material that could be

considered “evidence.” D.G.’s guilty plea to attempted aggravated assault conclusively

formed the basis for her conviction of that offense. The court erred by sealing the record

of D.G.’s conviction for attempted aggravated assault.
       {¶12} The decision in this case and in Novak conflict with J.K. and V.M.D. This

conflict would ordinarily require en banc consideration by the entire court. What is

more, the decision in J.K. and V.M.D. are in conflict with Clemens and cases from other

appellate districts, ordinarily requiring that we certify the conflict for resolution in the

Ohio Supreme Court. However, V.M.D. is currently pending on appeal in the Ohio

Supreme Court. See State v. V.M.D., 140 Ohio St.3d 1438, 2014-Ohio-4160, 16 N.E.3d

682. The issues raised in V.M.D. will likely be dispositive of the questions raised in this

appeal, so certification of a conflict would serve no purpose.

       {¶13} Judgment reversed and 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
