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State v. R.M.

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 31, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
R.M. DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-93-301491-ZA

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Diane Smilanick Assistant County Prosecutor.

          ATTORNEY FOR APPELLEE Paul V. Wolf Paul V. Wolf Co.

          BEFORE: Jones, J., Blackmon, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court's decision to grant defendant-appellee, R.M.'s, [1] application to seal his record of conviction. For the reasons that follow, we reverse.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} "'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).

         {¶7} 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.

         {¶8} 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.)

         {¶9} 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 ...


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