An Attempt To Attempt To Commit Robbery: The Ohio Supreme Court Takes A Textualistic Approach In Interpreting What Constitutes An Offense Of Violation For Expungement Purposes

State v. V.M.D., 2016-Ohio-8090, was a tough case to read because you wanted the defendant to win on getting his record expunged for a costly mistake he was 18 years old.  This guy turned his life around for the better and in my opinion deserved a fresh start with a clean criminal record.

In V.M.D., the defendant was looking to expunge or seal his criminal record stemming from his attempted robbery conviction.  Back when the defendant was an 18 year-old high school student he was indicted on two counts of aggravated robbery, with each count carrying a firearm specification, and one count of complicity in the commission of intimidation of a witness.  Through pre-trial negotiations, the defendant pled to one count of attempted robbery and one count of attempted complicity in the commission of intimidation of a witness.  The trial court explained to the defendant that his attempted robbery charge meant that the state was claiming that he “did, in attempting or committing a theft offense, or in fleeing immediately after, attempted to use or threatened the immediate use of force against another person.”

Eleven years after successfully completing his community control sanctions, V.M.D applied to the trial court to seal the records pertaining to his conviction.  The state objected to his application because V.M.D.’s conviction of robbery falls under R.C. 2953.36 which prohibits the sealing of records of convictions of an offense of violence when the offense is a felony.  R.C. 2901.01 (A)(9)(a) defines a violation of robbery as an offense of violence; R.C. 2901.01 (A)(9)(d) states an offense of violence includes an “attempt to commit any offense under division (A)(9)(a) of this section.”

At the hearing on V.M.D.’s application, V.M.D. argued that his conviction under the robbery statute and the attempt statute created a legal fiction.  Specifically, V.M.D. argued that robbery already contains an attempt element without the incorporation of the attempt statute.  Thus incorporating the attempt statute resulted in him pleading guilty to an attempt to attempt to commit a robbery.

The trial court rejected the argument and denied V.M.D.’s application.  The trial court stated the following:

“Well it’s a novel argument; I don’t think it’s a valid one.  You’re welcome to take this to the Court of Appeals and have them look at it.  And I’d be delighted to be proven wronged.  If we can expunge a conviction on a deserving person, I would like to do that.

I think the fact the conviction came down under the robbery statute, no matter how many attempts are in there, that the law prohibits it.”

On appeal, the court noted 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.

The appellate court held that the incorporation of the attempt charge into the robber charge, which includes an attempt as a possible element, left V.M.D’s crime too far removed from an actual crime of violence to disqualify the record of the conviction from being sealed.  With that, the appellate court concluded that sealing of V.M.D’s record should be allowed and reversed the trial court’s judgment.

Not sitting so well with the state, the state appealed to the Ohio State Supreme Court on a discretionary appeal.

The Ohio Supremes open up with “a person convicted of a crime has no substantive right of that conviction sealed.”  The Ohio Supremes go on to state that the sealing of the record of a conviction “is an act of grace created by the state.”  State v. Hamilton, 75 Ohio St.3d 636.

Looking at the expungement statutes, the Ohio Supremes found that robbery is a precluded offense under R.C. 2953.36 and thus made V.M.D an ineligible offender.  Based on the expungement statutes speaking for themselves, the Ohio Supremes found that there was no for interpretation in V.M.D.’s case.

The Ohio Supremes went on to state the following:

“When the General Assembly makes convictions of specific offense 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.  In regard to attempted robbery, the General Assembly has rendered such a review irrelevant-every attempted robbery by definition is an offense of violence.

The process of sealing a record of conviction does not consist of the general evaluation of a person’s soul – it is statutory.  Because the record of his conviction is prohibited from being sealed pursuant to R.C. 2953.36, V.M.D.’s rehabilitation is irrelevant in this case.


The focus of R.C. 2953.36 is on the crime committed rather than the person who committed it.  Any change in that calculus must come from the General Assembly.”

That right there is some very strong language with regards to interpreting the expungement statutes!  A true bummer for V.M.D.!!  Especially since the trial court, the appellate court, and the Ohio Supreme Court all agreed that he would be deserving of an expungement, had his crime not have been a prohibited crime for expungement purposes.

Casual Encounters With Police Officers: A Look At How A Quick Conversation With Between A Bicyclist And A Police Officer Led To Suppressed Evidence

Bicycle! Bicycle! Bicycle!  I want to ride my bicycle! bicycle! bicycle!  I want to ride my bicycle…I want to ride my bike…I want to ride my bicycle!  I want to ride it where I like!

After reading State v. Swift, 2016-Ohio-8191, the only thing that was going through my head was Queen’s Bicycle Race!  So much so I had to YouTube the song to listen to it a couple times.  Bicycle Race is probably one of my favorite Queen songs along with Somebody to Love.  Now if you really want to rock out with some Queen, checkout Somebody to Love live at Milton Keynes Bowl, 1982.  You will not be disappointed!

Alright, back to the story at hand.  In Swift, good ole Swift was riding his bike down East Fourth Street minding his own business when he noticed that a Dayton Police Cruiser made a U-turn and began to drive towards his general direction.  Upon approaching Swift, the officers did not activate the cruiser’s sirens or lights.

Officer Williams testified that when he pulled up alongside Swift, he rolled down the cruiser’s window, and asked whether he could talk with Swift real quick.  Officer Williams then got out of the cruiser and cautioned Swift about riding his bike towards the center of the street and asked Swift, “do you mind if I pat you down?”  In addition, Officer Williams asked whether Swift possessed any guns or other weapons, and Swift stated that he did not.

Officer Williams went on to testify that during the pat down, Swift advised Officer Williams that he had some weed on him.  Due to this admission, Officer Williams handcuffed Swift and continued with the search.  During the pat down, Officer Williams ordered Swift to spread his legs for weapons and noticed that Swift’s buttocks were very tight.  After convincing Swift to spread his butt cheeks, Officer Williams found a hard object between Swift’s two butt cheeks and suspected it to be either heroin or crack cocaine.

To make matters even better for Swift, Officer Williams testified that he learned Swift’s identity; he recalled the night prior to Swift’s arrest that he made a drug arrest near the location he stopped Swift.  It was during that arrest that the arrested person’s phone rang approximately 20 times and the caller was later identified as Swift.  However, Officer Williams never testified that Swift’s bicycle-riding had violated any state law or city ordinance, and no traffic citation was ever issued.

Swift, however, told a different story.  Swift testified that he did not want to stop when the officers pulled up next to him.  Swift stated that, “they made me stop cause I tried to keep going.”  Swift further testified that one of the officers hopped out of the cruiser and approached him, told him to stop his bike, and pulled the bike down.  Swift went on to testify that when the officer made him put his bike down, the officer grabbed him by the waist before patting him down.  Lastly, Swift denied giving the officers permission to pat him down or having any conversation in which he admitted to the possession of drugs.

After hearing testimony, the trial court found that “when two uniformed police officers in a police cruiser pass by a vehicle (whether an automobile or a bicycle) and then do a quick u-turn and catch up with the vehicle, drive alongside it and request or demand that the driver stop and pull over to talk, no reasonable person would believe that he was free to ignore the police and continue on his way down the street.”  The trial court went on to find that Officer Williams and his partner had approached Swift for no apparent reason.  The trial court further found that a vehicle stop, including a bicycle stop, is not a consensual encounter, and that a sensible person would not believe he/she could come and go freely from such a stop because it is made with an implicit claim of right based on fault of some sort.  With all of that the trial court ultimately held that the seizure had occurred when the officers stopped Swift and that there had been no probable cause or reasonable suspicion to justify the seizure and suppressed the contraband discovered during the stop.  The State appealed.

On appeal, the appellate court found that a stop of a person on a bicycle is governed by the same standards as any other traffic stop: an officer must have a reasonable, articulable suspicion that the operator has engaged in criminal activity, including a minor traffic violation.  State v. Brown, 2012-Ohio-5532.

Consensual encounters occur when the police merely approach a person in a public place and engage the person in conversation, and the person remains free not to answer and to walk away.  State v. Lewis, 2009-Ohio-158, citing United States v. Mendenhall, 446 U.S. 544.  The Fourth Amendment guarantees are not implicated in such an encounter.  State v. Taylor, 106 Ohio App.3d 741.  An individual is subject to an investigatory detention when, in view of all the circumstances surrounding the incident, by means of physical force or show of authority, a reasonable person would have believed that he was not free to leave or was compelled to respond to questions.  Lewis citing Mendenhall.

The appellate court found that the trial court reasonably concluded that the officer’s traffic stop of Swift was not based on reasonable, articulable suspicion of criminal activity.  In addition the appellate court found that the trial court reasonably concluded that a reasonable person in Swift’s position, having had officers pull alongside him while riding his bicycle and initiate a conversation, would not have felt free to ignore the officer’s request to speak with him.  So with all of that, the appellate court held that the trial court’s findings supported its decision to suppress the state’s evidence.

Great win for Swift, but I will say that Swift’s case is very fact-sensitive and case-specific!  In closing, enjoy that somewhat warm December weather and go ride your bicycle!