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.

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