Earlier this month, the Ohio Supreme Court held that attempted robbery is an offense of violence and that pursuant to Ohio’s expungement statutes, an individual with a conviction for attempted robbery is not eligible to have that conviction expunged or sealed. The Ohio Supreme court held this in State v. V.D.M, 2016-Ohio-8090.
V.D.M. was a case from my home of Cuyahoga County. In 2000, V.D.M was convicted of attempted robbery. Over a decade later in 2013, V.D.M. filed a motion with the trial court to expunge or seal his record arguing that the robbery statute includes language of attempt; meaning that the robbery statute, even without the separate attempt statute, already includes attempt. Thus, V.D.M. argued that he was convicted of attempting to attempt to commit a robbery. The reason this is important is that offenses of violence, like robbery, are not eligible for expungement or sealing, but, V.D.M’s argument was that the “extra” attempt took it out of the realm of offense of violence.
His motion to seal was denied by the trial court. V.D.M. appealed to the 8th District Court of Appeals who found that when the underlying offense itself contemplates attempt, and the defendant was convicted of an attempt of that offense, the element of violence is too removed for the defendant to be automatically precluded from expungement. The 8th District essentially said it was not a statutory bar in terms of eligibility and that the particular facts of the case and circumstances of the applicant would have to be evaluated. In V.D.M’s case, they found that the offense had been committed when he was very young and that since then he had not had any further interaction with the criminal justice system and had no other criminal convictions and was gainfully employed, and that as such, was a good candidate to have his conviction sealed.
The State appealed the 8th District’s decision and took the case to the Ohio Supreme Court.
The Ohio Supreme Court took a very different approach than the 8th District Court of Appeals and found that the expungement statute in R.C. 2953.36 is clear and unambiguous in that an attempt to commit robbery is an offense of violence, and thus reversed the 8th District Court of Appeals finding that V.D.M was statutorily precluded from having the conviction sealed.
In my opinion, the Ohio Supreme Court glossed over and did not fully appreciate the effect of the addition of the attempt statute- a decision that was likely contemplated by trial counsel for V.D.M in 2000 so that he would be able to apply for expungemnt at the appropriate time. Because the robbery statute includes attempt, an attempted robbery is, as the 8th District said, too far removed from any violence to still consider it an offense of violence.
Additionally, I fear the slippy slope of this decision and how it will be used to further deny individuals the ability to have criminal convictions sealed when they have been convicted of an attempt of a crime.
Only time will tell.