[Cite as State v. Roark, 2018-Ohio-3549.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellant,                      :      CASE NO. CA2018-02-019

                                                  :             OPINION
    - vs -                                                       9/4/2018
                                                  :

CAMERON ROARK,                                    :

        Defendant-Appellee.                       :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 12CR28424



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellant

John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B,
Springboro, Ohio 45066, for defendant-appellee



        PIPER, J.

        {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Warren County

Court of Common Pleas, which granted an expungement application filed by defendant-

appellee, Cameron Roark. For the reasons discussed below, this court reverses the lower

court's decision.

        {¶ 2} In 2012, Roark entered guilty pleas to count one, fifth-degree felony attempted
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assault, a violation of R.C. 2923.02 (attempt) and 2903.13(A) (assault), and count two,

second-degree misdemeanor criminal damaging, a violation of R.C. 2909.06(A)(1). The

court sentenced Roark to a three-year term of community control sanctions. A section of the

court's sentencing entry related to postrelease control indicated that "[t]he Defendant DID

NOT cause or threaten to cause physical harm to a person."1 (Emphasis sic.)

        {¶ 3} In 2017, Roark moved the court to expunge his criminal record. The state

opposed the motion, arguing that the felony attempted assault conviction rendered Roark

ineligible for expungement.

        {¶ 4} The court issued a decision finding that the attempted assault conviction did not

render Roark ineligible because "the prevailing view is that a misdemeanor assault conviction

[is] not precluded from expungement * * *. Because this offense is a misdemeanor violation

of R.C. [2903.13] by virtue of the attempt, it qualifies as an offense eligible to be sealed."2

The court found that Roark otherwise qualified for expungement and sealed his record of

conviction. The state appeals, raising a single assignment of error.

        {¶ 5} Assignment of Error No. 1:

        {¶ 6} THE TRIAL COURT DID NOT HAVE THE AUTHORITY TO SEAL ROARK'S

RECORD OF CONVICTION. ROARK WAS NOT AN ELGIBLE OFFENDER BY VIRTUE OF

HIS CONVICTION FOR A FELONY OFFENSE OF VIOLENCE.

        {¶ 7} The state argues that the court erred in expunging Roark's record of conviction

because the attempted assault conviction was statutorily defined as an "offense of violence,"

which precluded Roark from expungement eligibility. Roark argues that he was not convicted

of an "offense of violence" because the assault was an attempt and the court's judgment


1. This language was relevant to whether postrelease control was optional or mandatory in the then existing
version of R.C. 2967.28. See former R.C. 2967.28(B) (2012).

2. Neither party disputes that Roark was convicted of felony attempted assault and agree that the court's
statement in this regard was error.
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entry specifically noted that he did not cause or threaten to cause physical harm to a person.

       {¶ 8} "The sealing of a criminal record, also known as expungement, * * * is an 'act of

grace created by the state.'" (Citations omitted.) State v. Boykin, 138 Ohio St. 3d 97, 2013-

Ohio-4582, ¶ 11, quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). Considering its

nature, expungement should be granted only when all requirements for eligibility are met. Id.,

citing State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, ¶ 6. If an applicant is not an

"eligible offender" under R.C. 2953.31, the trial court lacks jurisdiction to grant the

expungement application. State v. Mullin, 12th Dist. Clermont No. CA2013-04-033, 2014-

Ohio-764, ¶ 8. Whether an applicant is an eligible offender is a question of law that this court

reviews de novo. Id.

       {¶ 9} An eligible offender is: "anyone who has been convicted of an offense in this

state or any other jurisdiction and who has not more than one felony conviction, not more

than two misdemeanor convictions, or not more than one felony conviction and one

misdemeanor conviction in this state or any other jurisdiction." R.C. 2953.31(A). Roark was

convicted of a felony and misdemeanor and thus would meet this threshold requirement for

expungement.

       {¶ 10} However, R.C. 2953.36 provides a list of offenses that preclude an individual

from seeking expungement. Among those are "[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 [riot] of the Revised Code and is not a violation of section

2903.13 [assault], 2917.01 [inciting violence], or 2917.31 [inducing panic] of the Revised

Code that is a misdemeanor of the first degree." R.C. 2953.36(A)(3). Stated more simply,

first-degree misdemeanor or felony "offenses of violence" disqualify an individual from

expungement.     But convictions for riot and first-degree misdemeanor assault, inciting

violence, or inducing panic do not preclude expungement. Thus, the pertinent question is
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whether attempted assault qualifies as an "offense of violence."

      {¶ 11} "As used in the Revised Code * * * '[o]ffense of violence' means * * * a violation

of section * * * 2903.13 [assault] * * *." R.C. 2901.01(A)(9)(a). "Offense of violence" also

means an "attempt to commit * * * any offense under [R.C. 2901.01(A)(9)(a)]." R.C.

2901.01(A)(9)(d). Therefore, attempted assault is an "offense of violence" and because it

was a felony conviction, Roark was ineligible to have his record of conviction sealed. The

trial court erred in finding that the attempted assault conviction was a misdemeanor and that

Roark was eligible for expungement.

      {¶ 12} Nonetheless, Roark argues that this court should consider the circumstances

underlying his conviction and find that he was not convicted of an "offense of violence"

because his conviction was for an attempted assault and the sentencing entry language

indicated that he did not cause or threaten to cause harm to a person.

      {¶ 13} In support of this argument, Roark cites an Ohio Supreme Court case where

the court considered underlying facts of the case to determine whether an applicant qualified

for expungement. State v. Simon, 87 Ohio St.3d 531 (2000). At issue in Simon was whether

the offender was precluded from expungement for having been convicted of an offense that

was subject to a mandatory prison term pursuant to R.C. 2953.36(A)(1). Id. at 533. The

court examined the record of the case to determine whether the offender was armed with a

firearm in the commission of the offense, which would render him ineligible for probation and

thus subject to a mandatory prison term. Id. at paragraph two of the syllabus. Simon is

distinguishable as it involved a different subsection of R.C. 2953.36, which, in that case,

required an examination of the underlying circumstances to determine if the offender was

subject to a mandatory prison term. In this case, no such analysis is necessary because the

Revised Code explicitly defines attempted assault as an "offense of violence" and there is no

need to go beyond the statute to aid in that determination.
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       {¶ 14} This court further finds that the language used in the sentencing entry

concerning postrelease control is an irrelevant consideration. That language, which was

included for reasons irrelevant to this matter, does not alter the fact that Roark pled guilty to

an "offense of violence" under the Revised Code.

       {¶ 15} With respect to Roark's argument that the "attempted" aspect of his offense

should be considered, the Ohio Supreme Court has squarely rejected this argument. State v.

V.M.D., 148 Ohio St.3d 450, 2016-Ohio-8090, ¶ 14. "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.

       {¶ 16} Accordingly, Roark's attempted assault conviction was a felony offense of

violence under R.C. 2901.01(A)(9)(a) and (d) and Roark was therefore ineligible to have his

record of conviction sealed pursuant to R.C. 2953.36(A)(3). This court is sympathetic to

Roark's desire to seal his record. The potentially devastating effects of a felony conviction on

a young person are well known. The record reflects Roark's youthful age at the time of his

conviction, his remorse, his successful completion of community control sanctions, and his

lack of any other criminal record. As much as we may desire a different outcome, as a court

of law we must apply the law as written. The expungement law would be improved with less

rigidity and more judicial discretion in determining eligibility. But that is a task for the General

Assembly.

       {¶ 17} This court sustains the state's sole assignment of error. The matter is

reversed and remanded for further proceedings consistent with this opinion.


       RINGLAND, P.J., and M. POWELL, J., concur.




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