[Cite as State v. C.R., 2017-Ohio-2676.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 16AP-849
(C.P.C. No. 16EP-680)
v. :
(REGULAR CALENDAR)
[C.R.], :
Defendant-Appellee. :
D E C I S I O N
Rendered on May 4, 2017
Brief: Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellant. Argued: Barbara A.
Farnbacher.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from an entry of the Franklin
County Court of Common Pleas granting the application of defendant-appellee, C.R., to
seal the record of his prior conviction. For the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} On September 20, 2016, C.R. filed an application requesting the trial court
seal the record of his conviction for attempted robbery in violation of R.C. 2911.02, a
fourth-degree felony. The state objected to C.R.'s application on the basis that attempted
robbery is an offense of violence and, thus, C.R. is ineligible to have the record of his
conviction sealed. Following a November 22, 2016 hearing, the trial court granted C.R.'s
application to seal the record of his conviction on the grounds that "attempted robbery is
a legal fiction." (Nov. 22, 2016 Tr. at 5.) The state timely appeals.
No. 16AP-849 2
II. Assignments of Error
{¶ 3} The state assigns the following errors for our review:
[1.] The trial court erred when it granted an application to seal
the record of a conviction for an "offense of violence."
[2.] The trial court erred when it granted an application to seal
the record of a conviction before the statutory waiting period
had elapsed.
III. First Assignment of Error – Sealing the Record of Conviction for an
Offense of Violence
{¶ 4} In its first assignment of error, the state argues the trial court erred when it
granted C.R.'s application to seal the record of his conviction. More specifically, the state
asserts C.R. was not eligible to have the record of his conviction sealed and, thus, the trial
court erred as a matter of law when it granted C.R.'s application.
{¶ 5} An appellate court generally reviews a trial court's disposition of an
application for an order sealing the record of conviction under an abuse of discretion
standard. State v. Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v.
Hilbert, 145 Ohio App.3d 824, 827 (8th Dist.2001). An abuse of discretion connotes more
than an error of law or judgment; it implies that the attitude of the trial court was
" 'unreasonable, arbitrary or unconscionable.' " Id., quoting Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). However, where questions of law are in dispute, an appellate
court reviews the trial court's determination de novo. Id., citing State v. Derugen, 110
Ohio App.3d 408, 410 (3d Dist.1996).
{¶ 6} " 'Expungement is an act of grace created by the state,' and so is a privilege,
not a right." State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton, 75
Ohio St.3d 636, 639 (1996). Pursuant to R.C. 2953.32(A)(1), "an eligible offender may
apply to the sentencing court * * * for the sealing of the record of the case that pertains to
the conviction." A court may grant the expungement only when the applicant meets all
statutory requirements for eligibility. State v. Brewer, 10th Dist. No. 06AP-464, 2006-
Ohio-6991, ¶ 5, citing In re White, 10th Dist. No. 05AP-529, 2006-Ohio-1346, ¶ 4-5.
Where the offender was convicted of a felony, "[a]pplication may be made at the
expiration of three years after the offender's final discharge." R.C. 2953.32(A)(1).
{¶ 7} "There is no burden upon the state other than to object to an application for
expungement where appropriate." State v. Reed, 10th Dist. No. 05AP-335, 2005-Ohio-
No. 16AP-849 3
6251, ¶ 13. "Applicants whose conviction falls within any category of R.C. 2953.36 are
ineligible for expungement." State v. Menzie, 10th Dist. No. 06AP-384, 2006-Ohio-6990,
¶ 7, citing Simon at 533. As relevant here, an offender is not eligible for expungement
with respect to a conviction "of an offense of violence when the offense is a misdemeanor
of the first degree or a felony." R.C. 2953.36(A)(3).
{¶ 8} C.R. was convicted of attempted robbery in violation of R.C. 2911.02, a
fourth-degree felony. Under R.C. 2901.01(A)(9)(a), attempted robbery is an "offense of
violence." This court recently held that, relying on the definition of offense of violence in
R.C. 2901.01(A)(9), attempted robbery is an offense of violence for purposes of R.C.
2953.36(A)(3), and an offender convicted of attempted robbery is, therefore, ineligible to
have the record of his conviction sealed. State v. Clemens, 10th Dist. No. 14AP-945, 2015-
Ohio-3153, ¶ 16-17. We additionally note that after the trial court rendered its decision in
this case, the Supreme Court of Ohio issued its decision in State v. V.M.D., 148 Ohio St.3d
450, 2016-Ohio-8090, ¶ 1, holding "that attempted robbery is a crime of violence and
that, pursuant to R.C. 2953.36, a person convicted of that crime is ineligible to have the
record of that conviction sealed." Thus, pursuant to Clemens and V.M.D., because C.R.
was not eligible to have the record of his conviction sealed, the trial court erred in
granting C.R.'s application. We sustain the state's first assignment of error.
IV. Second Assignment of Error – Statutory Waiting Period
{¶ 9} In its second assignment of error, the state asserts the trial court erred in
granting C.R.'s application to seal the record of his conviction because the statutory
waiting period had not yet elapsed. However, our resolution of the state's first assignment
of error renders moot its second assignment of error.
V. Disposition
{¶ 10} Based on the foregoing reasons, the trial court erred when it granted C.R.'s
application to seal the record of his conviction for an offense of violence. Having
sustained the state's first assignment of error, rendering moot the state's second
assignment of error, we reverse the judgment of the Franklin County Court of Common
Pleas and remand this matter to that court for proceedings consistent with this decision.
Judgment reversed; cause remanded.
BROWN and HORTON, JJ., concur.