[Cite as State v. E.C. , 2019-Ohio-1240.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107097

STATE OF OHIO

PLAINTIFF-APPELLANT

vs. E.C.

DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-02-426026-ZA

BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

RELEASED AND JOURNALIZED: April 4, 2019ATTORNEYS FOR APPELLANT Michael C. O’Malley Cuyahoga County Prosecutor BY: Diane Smilanick Gregory J. Ochocki Callista Plemel Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Gregory Scott Robey Robey & Robey 14402 Granger Road Cleveland, Ohio 44107

Anne D. Veneziano 24100 Chagrin Boulevard, Suite 480 Beachwood, Ohio 44122

FRANK D. CELEBREZZE, JR., J.: {¶1} Plaintiff-appellant, the state of Ohio (hereinafter “state”), brings the instant appeal challenging the trial court’s judgment granting an application for the sealing of criminal records of conviction filed by de fendant-appellee, E.C. The state argu es that the trial court erred in granting E.C.’s motion because he was convicted of an offense of violence, and thus, was not eligible for expungement. After a thorough review of the record and law, this court reverses. I. Factual and Procedural History{¶2} In October 2002, E.C. pled guilty to robbery , a third-degree felony in violation of R.C. 2911.02(A)(3). The trial court sentenced E.C. to community control sanctions for a period of two years, which E.C. completed without incident. {¶3} On May 26, 2016, E.C. filed a motion “for expungement and sealing of records.” Therein, E.C. argued that he satisfied all of th e criteria set forth in R. C. 2953.52. The trial court ordered an expungement investiga tion report on June 1, 2016. {¶4} The state filed a brief in opposition on July 27, 2016. Therein, the state argued that E.C. was not eligible for expungement pursuan t to R.C. 2953.36 because his robbery conviction

was an offense of violence. {¶5} The trial court held a hearing on E.C.’s motion on September 6, 2017. During the hearing, defense counsel, E.C., and the state addressed the tr ial court. Th e trial court acknowledged that E.C.’s robbery conviction was, by definition, an offense of violence. (Tr. 9.) Nevertheless, the trial court explained that it would determine whether principles of equity outweighed the requirements set forth in the expungem ent statute. At the close of the hearing,

the trial court indicated that it would take the matter under advisement. {¶6} On March 28, 2018, the trial c ourt granted E.C.’s motion for expungement. The trial court’s judgment entry pr ovides, in relevant part, The court finds that [E.C.] is an e ligible offender under R.C. 2953.31(A); that three (3) years have expired after [E.C.’s] final discharge if convicted of a felony * * *; that no criminal proceedings are pe nding against [E.C.]; that [E.C.] has been rehabilitated to the satisfaction of the court; and that the criminal offense(s) [E.C.] was convicted of is not one desc ribed in R.C. 2953.36 for which the sealing of records is precluded; and that the inte rests of [E.C.] in having the recordspertaining to [his] conviction sealed are not outweighed by any legitimate governmental needs to maintain those records. {¶7} It is from this judgment that the state filed the instant appeal on April 20, 2018. The state assigns one error for our review: I. Ohio courts are prohibited from granting motions to expunge and seal records of criminal convictions that ar e offenses of violence. II. Law and Analysis

A. Eligible Offense {¶8} In its sole assignment of error, the state argues that the trial court erred in sealing

E.C.’s records of conviction because E.C. was convict ed of an offense of violence, and thus, he is not eligible for expungement. After reviewing th e record, we agree with the state. {¶9} Pursuant to R.C. 2953.32(C), a court must hold a hearing to determine if an applicant is an eligible offender as well as whether any other exception set forth in R.C. 2953.36 bars the sealing of records. On e such exclusion is if the appli cant was previously convicted of

an “offense of violence.” R.C. 2953.36(A)(2)-(3). The statutory term “offense of violence” is defined in R.C. 2901.01(A)(9): “Offense of violence” means any of the following: (a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.21, 2903.211, 2903.22, 2905.01, 2905.02, 2905.11, 2905.32, 2907.02, 2907.03, 2907.05, 2909.02, 2909.03, 2909.24, 2911.01, 2911.02 , 2911.11, 2917.01, 2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.04, 2921.34, or 2923.161, of division (A)(1), (2), or (3) of section 2911.12, or of division (B)(1), (2), (3), or (4 ) of section 2919.22 of the Revised Code or felonious sexual penetrati on in violation of former section 2907.12 of the Revised Code; (b) A violation of an existing or former m unicipal ordinance or law of this or any other state or the United States, substan tially equivalent to any section, division, or offense listed in division (A)(9)(a) of this section;(c) An offense, other than a traffic offense, under an ex isting or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physi cal harm to persons or a risk of serious physical harm to persons; (d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section. (Emphasis added.) {¶10} As noted above, E.C. was convicted of robbery, a violation of R.C. 2911.02(A)(3). R.C. 2901.01(A)(9)(a) lists robbery as an offense of violence — a fact that the trial court also acknowledged during the expungement hearing. Accordingly, E.C. is not eligible for the sealing of records of convi ction in this matter. See State v. E.A. , 8th Dist. Cuyahoga No. 103829, 2017-Ohio-180, ¶ 7. {¶11} The Ohio Supreme Court held that there is no room for statutory interpretation when analyzing the exclusions to expungement set forth in R.C. 2953.36. State v. V.M.D. , 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶ 16. The court explained, R.C. 2953.36 speaks for itself. “Our first duty in statutory interpretation is to determine whether the statute is clear and unambiguous.” Estate of Heintzelman v. Air Experts, Inc. , 126 Ohio St.3d 138, 2010-Ohio-3264, 931 N.E.2d 548, ¶ 15. “[W]hen the General Assembly has pl ainly and unambiguously conveyed its legislative intent, there is nothing for a court to interpre t or construe, and therefore, the court applies the law as written.” State v. Kreischer , 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, syllabus. There is no room for interpretation in this case. * * * When the General Assembly makes convictions of specific offenses in eligible for sealing because they are offenses of violence, courts do not have au thority to review the record to examine the facts underlying the conviction to dete rmine whether they re veal a violent act.

Id . at ¶ 15-16.{¶12} Because the statutory definition of an “offense of violence” is clear and unambiguous, this court may not devi ate from its application, either by considering principles of equity, as the trial court did, or the underlying facts of E.C.’s offense. See E.A. at ¶ 9. Accordingly, the trial court erred in granting E. C.’s motion because E.C. was convicted of an offense of violence, making him ineligible for expungement. {¶13} For all of the foregoing reasons, the state’s sole assignment of error is sustained.

III. Conclusion {¶14} After thoroughly reviewing the record, we fi nd that the trial court erred in granting E.C.’s motion for expungement. E.C. was convict ed of robbery, an offense of violence, and thus he is not an eligible offender. {¶15} The trial court’s judgment granting E.C.’s motion is reversed, and this cause is remanded to the lower court for further pro ceedings consistent with this opinion. It is ordered that appellant rec over of appellee costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE MARY J. BOYLE, P.J., CONCURS WITH SEPARATE CONCURRING OPINION; LARRY A. JONES, SR., J., CONCURS WITH MAJORITY AND CONCURS WITH SEPARATE CONCURRING OPINIONMARY J. BOYLE, P.J., CONCURRING: {¶16} I agree with the majority’s reasoning, analysis, and conclusion as to the state’s sole assignment of error. While I recognize that R.C. 2953.36 prohibits the expungement of a conviction of robbery because it is an “offense of violence,” I believe that determining whether

an offense was one of violence under R.C. 2953.36 s hould require more than analyzing the name of the offense. Instead, whether a defendant’s convictions are eligible for expungement should be determined by balancing a defendant’s interests and reasons for seeking a sealing of the records against the government’s interest in maintaining them. This case is a clear example of why that balancing test is necessary. {¶17} At the expungement hearing, E.C.’s attorn ey explained that during the time of the crime, E.C. was 18 years old. He stated, [E.C.] was in high school and he had ju st been placed on the medication Paxil by a new doctor for some anxiety he was ha ving. He was on the medication for less than a week, [when] he began having a dverse reactions to the medication, and he was having all kinds of racing thought s through his head, and that ultimately prompted him to go into a convenience st ore in Cleveland Heights and [attempt] to rob the store. * * * [W]hat he did essentially was put his ha nd in his pocket and pr etended like he had a gun. The store owner was never convin ced and he ultimately never did have a gun. * * * The store owner actually chased him out of the store and told him to get out[.] No one was harmed. Nothing ta ken. No gun. He was arrested and charged * * * with aggravated robbery, felony one. After a series of pretrials, * * * it was pled down to a felony three robbery. He was placed on two years of community contro l. He completed that without issue. And since that time there has been absolutely no violations, nothing, no criminal violations, nothing[.] * * * He’s been a law-abiding citizen. * * * So today now he’s fifteen years later, 33 years old. He ’s completed high sc hool, he’s completed a variety of educational programs. * * * He ’s got no subsequent history of mental health issues. He has a good job right now.{¶18} E.C.’s trial counsel further explained th at E.C. sought an expungement of his robbery conviction because E.C. “h ad some opportunity to get into acting, and his goal is to get in the Actor’s Guild and really relocate and [he is] not able to do that. They made it very clear he can’t do that with something like this on his record, and also something very simple, like just getting an apartment[.]” {¶19} His trial counsel concl uded that the “strong interest in moving on with his life in providing a better future for himself outweighs any government interest in keeping this conviction open.” {¶20} E.C. spoke next and explained to the trial court that “when [he] was on the medication, [he] had the adverse effect” and th at “after [he] committed the crime, [he] actually turned [himself] in because [he] knew something was off and [he] wasn’t in [the] right state of mind[.]” He said he believed th at if he had not been on the me dication and had been “thinking clearly and logically,” he would not have committed the crime. He said that he is no longer on that medication and has not “had any legal problem whatsoever for fifteen years.” He also reiterated that he sought expungement of his robbery conviction because it was preventing him from pursuing a career in acting, rentin g an apartment, and finding a job. {¶21} After a review of the record, I find it hard to believe that the General Assembly’s intent is being served in this case. After 15 years of living a law-ab iding and productive life, E.C.’s snap decision — which did not result in an injury or damage to property — while under the adverse influence of new medication at the age of 18 is still prohibiting him from renting an apartment and pursuing a career and passion. De spite his clear rehab ilitation, E.C. seemingly will never be able to remove his lifelong scarlet letter and reap the benefits and forgiveness that I

believe R.C. 2953.36 was trul y meant to provide.{¶22} The expungement provisions of the Revised C ode were created to be remedial in

nature and “must be lib erally construed to pr omote their purposes.” State ex rel. Gains v. Rossi , 86 Ohio St.3d 620, 716 N.E.2d 204 (1999). Further, expunging criminal records serves many purposes, including providing economic benefits to defendants and society as a whole because the failure to seal records “hurt communities, * * * hurts counties and [] hurts states if their citizens cannot be productively employed or aren’t part of the tax base.” National Public Radio Inc., Scrubbing the past to give those with a criminal record a second chance , https:www.npr.org/2019/02/19/692322738/ scrubbing-the-past-to-give-those-w ith-a-criminal-record-a-second-chance (accessed Feb. 19, 2019). When ex-offenders return to their community after having paid their debt to society, they are often discriminated ag ainst because of prior convictions and arrests. This discrimination occurs in nearly every aspect of the ex-offender’s life. It is found in limited employment opportunities including job interviews, hiring, promotions and advancements . It is found in housing opportunities including the ability to qualify for more secure and affordable housing and the ability to maintain mortgages and loans. It is found in the inability to obtain certain licenses needed to advance careers. It is found when parents are unable to volunteer at their children’s school even ts because of the past convictions. The American Law Institute, Indiana’s Second Chance Law — How Expungement Works in

Indiana , https://www.ali.org/me dia/filer_public/12/f7/

12f73352-432d-4c38-8f1d-d339c 7f57391/indiana2018_expungemen t_presenta-tionrev.pdf (accessed Feb. 19, 2019). {¶23} There is also “a growing body of evid ence that [prohibiting defendants from sealing their criminal records] undermines public safety if you don’t he lp people move beyond their criminal record and participate in the workfo rce. Without that hel p, the chances of people returning to the criminal justice system increases.” Scrubbing the past. Given that “withbackground checks ubiquitous for jobs, schools, mo rtgage applications and more, even one conviction — and sometimes even ju st one arrest — can dog people for years, * * * relegating someone to permanent second-class status[,]” it is not surprising that there is “a new push in some states to clear some felony c onvictions, especially non-violent ones.” Id. {¶24} With all that in mind, I do not believe that an Ohio defendant’s rehabilitation

should be rendered “irrelevant” b ecause of the labeling of their crime and without consideration of the underlying facts. State v. V.M.D. , 148 Ohio St.3d 450, 2016-Ohio-8090, 71 N.E.3d 274, ¶

17. {¶25} In V.M.D. , the Ohio Supreme Court stated,

There seems to be little doubt that V.M.D. has made signifi cant personal progress from when he was a high school student and committed the crime at issue and that he is the type of person that Ohio’s sea ling statutes are designed to benefit. However, the General Assembly has left the courts no room to seal the record of V.M.D.’s conviction, regardless of his being 18 when he committed the crime or the extent of his rehabilitation since hi s conviction. The focus in R.C. 2953.36 is on the crime committed rather than on the person who committed it. Any change in that calculus must come from the General Assembly.

Id. at ¶ 17. I, like the Ohio Supreme Court, recognize the limits that R.C. 2953.36 places on our decision in this case and that any change to the expungement process must come from the legislature. I write separate ly to note that the limits of R. C. 2953.36 undercut the rehabilitative nature that the expungement process is meant to se rve in cases such as this one, where defendants have lived productively and ha ve better opportunities awaiting upon expungement. In cases involving offenses other than homicides, sexual crimes, or those that caused serious bodily injury, trial courts should resort to the balancing test under R. C. 2953.32 (which trial courts use when an offender’s prior conviction does not fall under R.C. 2953.36’s restrictions) instead of relying on the offense’s title. The tr ial court utilized such a balancing test in this case and, in myopinion, reached a just result. While the trial c ourt’s ruling is clearly in conflict with R.C. 2953.36, I believe its ruling serves the purposes of the expungement process — rehabilitating offenders to live law-abiding lives — and justly allows E.C., who has lived a law-abiding life for 15 years, to move forward and pursue his life goals. Unfortunately, because of R.C. 2953.36’s restrictions, I have no choice but to concur.