Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor BY: Diane Smilanick Assistant County
ATTORNEY FOR APPELLEE Paul V. Wolf Paul V. Wolf Co.
BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Plaintiff-appellant, the state of Ohio, appeals the trial
court's decision to grant defendant-appellee, R.M.'s,
application to seal his record of conviction. For the reasons
that follow, we reverse.
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.
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.
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.
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.
"'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).
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.
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.)
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 ...