NO. 14-0990

IN THE SUPREME COURT OF OHIO

APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO

NO. 100522

STATE OF OHIO,

Plaintiff-Appellant

vs.

V.M.D.

Defendant-Appellee

MERIT BRIEF OF APPELLEE [UNDER SEAL]

Counsel for Plaintiff- Appellant

TIMOTHY J. McGINTY (0024626) Cuyahoga County Prosecutor DIANE SMILANICK (0019987) JAMES M. PRICE (0073356) Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 Phone: (216) 443-7800

RON O'BRIEN (0017245) Franklin County Prosecuting Attorney BARARA A. FARNBACHER (0036862) Assistant Prosecuting Attorney 3 73 South High Street, 13th Floor Columbus, Ohio 43215

Counsel for Defendant-Appellee

A. STEVEN DEVER (0024982) 13363 Madison Avenue Lakewood, Ohio 44107 Phone:216-228-1166 Fax: 216-228-3484 astevendever@aol.com

Counsel for Amicus Curiae Frankliln County Prosecutor Ron O'Brien

Supreme Court of Ohio Clerk of Court - Filed January 26, 2015 - Case No. 2014-0990

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

STATEMENT OF THE CASE and FACTS 4

LAW AND ARGUMENT 10

Proposition of Law No. 1: Ohio Courts are prohibited from granting motion to expunge and seal records of criminal convictions that are offenses of violence.

CONCLUSION 16

SERVICE 16

APPENDICES

Notice of Appeal 1

State v. V.MD. gth Dist. Cuyahoga App. No. 100522, 2014-0hio-1844 3, 7, 8

R.C. 2901.01 (A)(9)(D) 12

R. C. 2901.04 (A) 9

R.C. 2911.02 (A) 12

R.C. 2911.02 (A)(l) 4

R.C. 2911.02 (A)(3) 4, 5, 6

R.C. 2913.01 4

R.C. 2921.04 4

R.C. 2923.02 5, 6

R. C. 2953.31 9

R.C. 2953.31 (A) 11

R.C. 2953.32 (A)(l) 11

R.C. 2953.32 (B) 11

R.C. 2953.32 (C) 11

R.C. 2953.36 7, 9

2

TABLE OF AUTHORITIES

CASES

Chillicothe v. Herron, 3 Ohio App.3d 468 (1982). 10

Cleveland v. Hang, 110 Ohio Misc.2d 4 7, (2000). 11

Pepper Pike v. Doe, 66 Ohio St.2d 374 (1981). 10

Schussheim v. Schussheim, 137 Ohio St.3d 133, 2013-0hio-4529. 9

State v. Aggarwal, 31 Ohio App.3d 32 (1986). 10

State v. Derugen, 110 Ohio App.3d 408 ( 1996). 9

State v. Futrall, 123 Ohio St.3d 498, 2009-0hio-5590. 10

State v. J.K., gth Dist. Cuyahoga App. No. 96574, 2011-0hio-5675, appeal not accepted, 131 Ohio St. 3d 1513, 2012-0hio-1710. 15

State v. Long, 68 Ohio Spp.3d 663 (1990). 13

State v. McGinnis, 90 Ohio App.3d 479, (1993). 9

State v. Penn, 52 Ohio App.2d 315 ( 1977). 10

State, ex rel. Gains v. Rossi, 86 Ohio St.3d 620 (1999). 9

State v. Shaina.ff, 117 Ohio App.3d 129 (8th Dist. 1996). 13

State v. Simon, 87 Ohio St.3d 53 I (2000). 10, 11, 14, 15

State v. V.MD., gth Dist Cuyahoga App. No. 100522, 2014-0hio-1844. 16

STATUTES R.C. 2901.01 10

R.C. 2901.04 10

R.C. 291 I .02 3-6, 10

R.C. 2921.04 3

R.C. 2953.31 12

R.C. 2953.36 7,9 3

STATEMENT OF THE CASE AND FACTS

On March 27, 2000, the Appellee, V.M.D., was indicted by the Cuyahoga County

Grand Jury for two counts of aggravated robbery with firearm specifications in violation

of R.C. 2911.02(A)(l) and one count of complicity in the commission of intimidation in

violation ofR.C. 2921.04. The pertinent portion of aggravated robbery is defined as:

(A) No person, in attempting or committing a theft offense, as defined in section

2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall

do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the

offender's control and either display the weapon, brandish it, indicate that the offender

possesses it, or use it;

(2) Have a dangerous ordnance on or about the offender's person or under the

offender's control;

(3) Inflict, or attempt to inflict, serious physical harm on another.

On July 26, 2000, the Prosecuting attorney moved to amend the original charge of

aggravated robbery to the crime of robbery. Ohio Revised Code Section 291 l.02(A)(3)

provides:

4

(A) No person, in attempting or committing a theft offense or in fleeing

immediately after the attempt or offense, shall do any of the following:

(3) Use or threaten the immediate use of force against another.

The state thereupon moved to amend the indictment for a second time by adding

the attempt statute changed the crime to an attempt to commit attempted robbery,

pursuant to R.C. 2911.02 (A)(3). (7126/2000 Tr. 2). The State also moved to delete the

firearm specifications from this charge, and to add the "attempt" statute, R.C. 2923.02-

rendering the count a felony of the fourth degree. (Id. at 2-3). The Prosecutor dismissed

the second aggravated robbery count. (Id. at 4). In addition, the Prosecutor moved to

amend the complicity in intimidation charge by adding the attempt statute making it a

felony of the fourth degree. (Id.) The Prosecutor also indicated that he had repeatedly

subpoenaed that victim to no avail and despite his efforts, she could not be located. (Id.

At 4-5).

The trial court inquired of the State, "why are you taking out the firearm

specifications?" and the State responded "Actually there is some possibility that it was

not an operable weapon and also this defendant was not in possession of that weapon."

(Id. at 6). The prosecution further indicated "It is the State's understanding that it was

not a real gun, your Honor". (Id.)

The trial court accepted the requested amendments and V.M.D. 's guilty pleas were

5

accepted. (Id. at 15). With respect to the newly amended crime, V.M.D. admitted guilt

to: "under 291 l.02(A)(3) and 2923.02, did, in attempting or committing a theft offense,

or in fleeing immediately after, attempted to use or threatened the immediate use of force

against another person." (Id. at 12-15).

On August 29, 2000 V.M.D.'s sentencing was held. The prosecution did not

appear at the hearing. The court reviewed the presentence report and noted that the

victim did not submit an impact report. (8/29/200 Tr. at 4). The court noted that

V.M.D.'s drug test was clean, that he had no prior criminal record, that he did not play a

primary role in the crime, and that the presentence report indicated that "there was

substantial grounds for making this among the less serious crimes". (Id. at 6). V.M.D.

was sentenced to 18 months of community control sanctions with conditions, court costs

and a supervision fee. (Id. at 11-13). The Appellee successfully fulfilled all requirements

of community control and the supervision was terminated several months early, in

December of 2001.

Twelve and half years later, in June of 2013, V.M.D. sought to expunge his

conviction. The State opposed the motion and the trial court held a hearing on September

19, 2013. V.M.D. asserted that his record should be expunged and that the crime

Appellee was found guilty of was not an offense of violence as it was a legal fiction: an

"attempt to attempt to commit a robbery." (9/19/2013 Tr. 3). In reply, the State argued

that V.M.D. pleaded guilty to attempted robbery and that his conviction could not be

6

expunged. (Id. at 5-7).

Although the trial court found V.M.D. to be deserving of expungement the court

denied the application stating,

(Id. at 10-11 ).

You're welcome to take this to the Court of Appeals and have them look at it. And I'd be delighted to be proven wrong. If we can expunge a conviction on a deserving person, I would like to do that.

And it does look like, absent the prohibition for a robbery conviction being the subject of expungement, *** [V.M.D.] could get expungement. He has just two other offenses, both misdemeanors. Under current law, he can get the expungement.

I think the fact the conviction came down under the robbery statute, no matter how many attempts are in there, that the law prohibits it. Okay.

So I have to regretfully deny your application. We will journalize that and then, of course, we have a transcript and we have the filings, and then you can take that to the Court of Appeals.

The Appellee sought appellate review of the trial court ruling and won reversal in

a unanimous decision. The Court of Appeals correctly applied de novo review to the

question of law concerning the applicability of the categories listed in R.C. 2953.36 to

V.M.D.'s application for expungement. State v. VMD., 81h Dist. No. 100522, 2014-0hio-

7

1844, ii 9-10. The Court of Appeals determined:

When the underlying offense itself contemplates attempt, and the defendant was charged with an attempt of that offense, the element of violence is simply too removed for the defendant to be automatically precluded from expungement. Under the particular circumstances of this case, we cannot say the record "clearly revealed" V.M.D. committed a disqualifying "offense of violence."

The expungement statute is 'designed to recognize individuals with a single criminal infraction may be rehabilitated.' Here, V.M.D. committed the offense as a young age, when he has just graduated from high school. He fully complied with the terms of his community control sanctions and was discharged early. He has been gainfully employed as a full-time employee for a subcontractor at a chemical company, and apparently has been law-abiding for the last 12 years. V.M.D. certainly appears to be the sort of person the expungement process was designed to benefit. The trial court itself acknowledged that there was no other reason to deny O.K. 's expungement request other than its strict interpretation of the robbery statute. Construing the expungement statute liberally, as precedent guides us, we will continue to advance the legislative purpose of allowing expungements. We conclude a sealing ofV.M.D.'s record should be allowed and, therefore reverse the trial court's judgment.

State v. V.MD., 81h Dist. No. 100522, 2014-0hio-1844, ii 15-16, (internal citations

omitted).

The State pursued its appeal to this Supreme Court and jurisdiction has been

extended over the already well-established legal proposition that "Ohio courts are

prohibited from granting motions to expunge and seal records of criminal convictions that

are offenses of violence."

(Id. at 10-11).

8

LAW AND ARGUMENT

Proposition of Law No. 1:

Ohio Courts are prohibited from granting motion to expunge and seal records of criminal convictions that are offenses of violence.

A. Ohio Law follows a statutory method for sealing records of convictions.

Sealing the record of a conviction, commonly known as expungement is governed

by R.C. 2953.31 to R.C.2953.36. 1 The expungement process is "remedial in nature and

'must be liberally construed to promote their purposes."' State, ex rel. Gains v. Rossi

(1999), 86 Ohio St.3d 620. In the same vein statutes "'defining offenses or penalties shall

be strictly construed against the state, and liberally construed in favor of the accused."'

State v. McGinnis, 90 Ohio App.3d 479, 481; also citing R.C. 2901.04 (A).

An expungement "is a legislative construct with no universally applied definition. It stems from a correctional philosophy that gained momentum in the 1950s and 1960s, when a minority of states enacted laws to allow those with juvenile­delinquency records or criminal-conviction records to avoid the social stigma attached to those records by allowing courts to order the records erased or sealed.

Schussheim v. Schussheim, 2013-0hio-4529, 137 Ohio St.3d 133. (Dissent, French, J.,

para. 64.) The expungement statutes are "designed to recognize that individuals with a

single criminal infraction may be rehabilitated." State v. Derugen, (1996), 110 Ohio

App.3d 408, 411.

The standard of review for motions for expungement is abuse of discretion;

however, whether one is a first offender is a question of law, and appellate courts may

Pertinent sections of the law to this appeal are attached in the appendix. 9

apply a de novo standard when reviewing that issue. State v. Futrall (2009), 123 Ohio

St. 3d 498, 2009-0hio-5590/ The question of whether one is a "first offender" is a

question of law, which is subject to an independent review by this court without

deference to the trial court's determination. See State v. Aggarwal (1986), 31 Ohio

App.3d 32,; Chillicothe v. Herron (1982), 3 Ohio App.3d 468; State v. Penn (1977), 52

Ohio App.2d 315

B. In addition to the statutory process, trial courts have had inherent authority to

expunge or seal records of convictions.

This Court has recognized the power of courts to seal records even in the absence

of distinct legislative authority. In Pepper Pike v. Doe (1981), 66 Ohio St.2d 374, this

Court held a trial court has the authority to order an expungement under "unusual and

exceptional circumstances" employing a balancing test where the defendant's privacy

interest is weighed against the government's legitimate need to maintain records of

criminal proceedings." Id., syllabus 2.

This Court, in 2013, extended the Pepper Pike holding in Schussheim, supra, to

recognize the power of trial courts to expunge the records of civil protection orders so

long as a trial court employs the Pepper Pike balancing test.

C. The trial court has jurisdiction to entertain the Appellee's application because

the Appellee meets all statutory requirements and the offense initially pleaded to is not an

offense of violence.

The trial court that has jurisdiction over an expungement case is tasked with

examining the entire record before granting or denying a defendant's request. State v.

10

Simon (2000), 87 Ohio St.3d 531, 535. "In some cases it may not be [readily} apparent

from the record *** and further inquires outside the record may be necessary." Id.

quoting Cleveland v. Hang (2000), 110 Ohio Misc.2d 47, 49 (Adrine, J.).

A defendant who seeks an expungement must be an eligible offender. R.C.

2953.31 (A) defines an eligible offender as

anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction.

R.C. 2953.32 (A) (1) provides an eligible offender

may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor.

Upon filing an application for expungement, R.C. 2953.32 (B) provides the Court

shall set the motion for hearing and provide the prosecuting attorney an opportunity to

respond to it. The Court may direct its probation department to conduct an investigation

to determine the Defendant's status as a first offender, and whether criminal proceedings

are pending against him. The trial court followed this procedure.

R.C. 2953.32 (C) sets forth the procedure a trial court must undertake to

determine whether an eligible offender qualifies for sealing his record. The trial court

must determine if the Defendant is an eligible offender, whether the defendant has

proceedings pending against him, determine if the offender has been rehabilitated to the

satisfaction of the court, consider the prosecutor's objection, and weigh the interests of

11

the applicant having his record sealed against the legitimate needs of the government

maintaining those records. If the applicant qualifies under this subsection, then Division

(C) (2) permits the trial court to seal the record.

The Appellant relies on the definition of an offense of violence from R.C. 2901.01

(A) (9) (D) to disqualify the Appellee's application below. The thrust of the argument is

that robbery, as defined in the statute, already incorporates attempt as an element of the

crime. R.C. 2911.02 (A). Therefore, a robbery conviction would disqualify a defendant

from seeking his record to be sealed. However, the Appellee did not plead to robbery or

attempted robbery. The Appellee, with the agreement of the State, pleaded guilty to a

charge that was twice amended form aggravated robbery to an attempted robbery, to an

attempt to attempt a robbery, a made-up crime.

A review of the change of plea and sentencing transcripts from 2000 show that the

Appellant amended the original charges of aggravated robbery to attempted robbery, and

then incorporated the attempt statute to the crime of attempted robbery. The state also

deleted firearm specifications that were contained in the original indictment. (Plea Tr.,

3.) The firearm specification was removed because the weapon in the crime was not

operable, as well as the Defendant was not in possession of a weapon while committing

the crime. (Id.)

As the Appellant indicated at the change of plea, the crime the Defendant pleaded

to was not an amendment of an indictment as it was a "motion to amend the body of the

complaint ****" (Id. 9.) After a colloquy, the Court indicated the State was "actually

changing the body of the indictment to allege new stuff****." (Id. 10.) The Appellant

12

waived any defects in the indictment as well as presentment to a grand jury. (Id.)

The Appellant may claim that the Appellee pleaded guilty to a crime that was not

eligible to be sealed. However, the Appellant pleaded to an invention agreed upon by

both parties and approved by the trial court. Pleading guilty to attempting to attempt

robbery allowed the record to be eligible for sealing.

Incorporating the attempt statute in other crimes has been held to change the

character of that crime. In State v. Long (1990), 68 Ohio App.3d 663, the Court of

Appeals for Medina County held that a person that pleaded to an attempted rape could be

subject to probation overruling a trial court that sentenced him to prison holding rape was

not a probationable crime. There was no express exclusion of probation for attempted

rape and there was no indication that the legislature precluded

"Where a crime is not specifically mentioned in R.C. 295 l .02(F), it is understood that the legislature intended to exclude that crime from consideration as non­probationable (expressio unius est exlcusio alterius2). Since attempted rape is not mentioned in the statute it is, therefore, probationable."

State v. Shainoff(Cuyahoga 1996), 117 Ohio App.3d 129.

Including the attempt statute where attempt is listed in the body of the underlying

crime creates a new crime that is not listed as an offense of violence permitting the

Appellant to be eligible to seek an expungement of his conviction. The trial court agreed

to the change of plea and the defendant's counsel waived presentment as well as any

The expression of one thing is the exclusion of another. 13

defects. (Ex. A., 9.)

Examining the total record, the Appellant should be eligible to have his record

sealed. The record reveals that this matter occurred when the Appellant was just over

eighteen years old, he had just graduated from Midpark High School and was a student in

community college. He had no record before that time and only had two misdemeanor

convictions since he was discharged from probation. He was discharged from

community control sanctions without any violation hearings against him. The Appellant

has also been gainfully employed with an independent contractor with a large chemical

company. Simon, supra, holds that eligibility for having a record sealed is determined

"not only by examining the plea ultimately entered, but also by reviewing the events that

resulted in the original charges. Id, 533.

If the Appellant had pleaded guilty to robbery or attempted robbery, he would not

be eligible to have his records sealed. But, as the trial court indicated, the amendments

made by the Appellee substantially change the crimes which now make him eligible to

have his conviction sealed. These same points were affirmed by the Court of Appeals on

review. Although Ohio courts are prohibited from expunging criminal convictions that

are offenses of violence, courts must not be prevented from making discretionary

determinations as to whether an applicant's past criminal conduct constitutes an "offense

of violence".

Prior to being accepted for review in this Supreme Court, the facts of the instant

14

case were reviewed by four other Ohio judges-the trial court, and the appellate panel.

All four judges agreed that Appellee is the type of candidate who deserves to reap the

benefits of Ohio's expungement statute. Only the trial court found that expungement of

V.M.D. 's conviction is statutorily precluded.

In State v. JK., 2011-0hio-5675, (Cuyahoga County), the Court of Appeals for

Cuyahoga County correctly affirmed an order granting an expungement based on Simon,

supra, criteria where a defendant committed attempted arson and insurance fraud. As

JK. held the defendant's record did not "clearly reveal" that he committed an offense of

violence disqualifying him. JK, supra, para. 29-30; Simon, supra. The Appellant's

record of youth, no previous record, and lack of use of a firearm was sufficient to

demonstrate he did not commit an offense of violence. The argument is not that robbery

isn't an offense of violence. Rather, the argument is that the crime to which V.M.D.

pleaded guilty-which was attempting to attempt to commit a robbery-is not an

automatic barrier that prevents expungement.

The Court of Appeals below found the Appellee should receive an expungement

because there was no "disqualifying offense of violence." Citing its own prior decision

in State v. JK., supra, the Court of Appeals considered whether Appellee committed a

"disqualifying offense of violence." The court found:

V.M.D. was convicted of an offense that itself embeds the notion of attempt - he was convicted of either committing or attempting to commit a theft while either using or threaten to use force, which the State admitted involved possibly a fake gun not in his possession. When the underlying offense itself contemplates attempt, and the defendant was charged with an attempt of that offense, the

15

element of violence is simply too removed for the defendant to be automatically precluded from expungement.

State v. V.MD., 2014-0hio-1844 ii 15.

CONCLUSION

The Appellee respectfully requests that this Court affirm the judgment of the

Court of Appeals for Cuyahoga County and remand the matter to the Court of Common

Pleas consistent with the Court of Appeal's mandate.

SERVICE

Respectfully submitted,

/s/ A. Steven Dever A. STEVEN DEVER (0024982) A. Steven Dever Co., L.P.A. Attorney for Appellee, V.M.D. 13363 Madison Avenue Lakewood, Ohio 44107 Ph: 216-228-1166 e-mail: astevendever@aol.com Fax: 216-228-3484 fax

A copy of the foregoing Brief of Appellee has been mailed by regular U.S. mail to

Attorneys for Plaintiff-Appellant, Diane Smilanick and James M. Price, at the Justice

Center, 1200 Ontario Street, Cleveland, OH 44113 and to Attorney for Franklin County

Assistant Prosecutor, Barbara A. Fambacher, at 373 South High Street, 13th Floor,

Columbus, Ohio 43215 this January 26, 2015

16

/s/ A. Steven Dever A. Steven Dever (0024982) A. Steven Dever Co., L.P.A.

NO.

IN THE SUPREME COURT OF OHIO

APPEAL FROM THE EIGHTH DISTRICT COURT OF APPEALS

CUYAHOGA COUNTY, OHIO CA 100522

STATE OF OHIO Plaintiff/Appellant

vs.

V.M.D. Defendant/Appellee

NOTICE OF APPEAL TO THE SUPREME COURT OF OHIO

Counsel for Defendant/Appellee

A. STEVEN DEVER 13363 Madison Avenue Lakewood, Ohio 44107

STATE PUBLIC DEFENDER'S OFFICE 250 East Broad Street, Suite 1400 Columbus, OH 43215

JUN 1 3 2014

CLERK OF COURT SUPREME COURT OF OHIO

Counsel for Plaintiff/Appellant TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR

DIANE SMILANICK (0019987) JAMES M. PRICE (0073356) Assistant Prosecuting Attorneys 1200 Ontario Street, gth Floor Cleveland, OH 44113 (216) 443-7800

Appx. 1

ORIGINAL

Now comes the State of Ohio and hereby give Notice of Appeal to the Supreme

Court of Ohio from a judgment and final order of the Court of Appeals for Cuyahoga

County, Ohio, Eighth Judicial District, entered May 1, 2014.

Said cause did not originate in the Court of Appeals, is a felony, and involves an

issue of great general and public interest.

Respectfully submitted,

TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR

BY ~fuJ/Jou.dk DIANE SMILANICK (0019987) JAMES M. PRICE (0073356) Assistant Prosecuting Attorneys Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800

CERTIFICATE OF SERVICE

A copy of the foregoing Notice of Appeal has been mailed this 1 zth day of June,

2014, to A. Steven Dever, 13363 Madison Avenue, Lakewood, Ohio 44107 and to the

Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH

43215.

~57~1--DIANE SMILANICK (0019987) ' Assistant Prosecuting Attorney

Appx:. 2

(Cite as State v. V.M.D., 2014-0hio-1844.)

<!Court of ~ppeals of '®bto EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100522

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-00~389059-ZA

BEFORE: McCormack, J., Boyle, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: May 1, 2014

Appx. 3

. ATTORNEY FOR APPELLANT

A. Steven Dever Law Offices of A. Steven Dever Co., LP.A. 13363 Madison Avenue Lakewood, OH 44107

ATTORNEYSFORAPPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Diane Smilanick Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113

Appx. 4

TIM McCORMACK, J.:

{~1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1. V.D. appeals from a judgment of the trial court denying an

expungement of his criminal record. V.D. was convicted of attempted robbery in 2000,

when he was 18. The trial court denied his request for expungement because it

considered attempted robbery as an "offense of violence" precluding expungement.

Following precedent from this court, we conclude V.D. is entitled to have his record

expunged and therefore teverse the trial court's judgment.

Substantive Facts and Procedural History

{~2} In 2000, V.D., 18 at the time, was charged in Berea Municipal Court with

aggravated robbery. The exact circumstances of the incident were not fully reflected in

the record before us. The record only reveals that, in a criminal complaint filed in the

Berea Municipal Court, V.D. was accused of stealing $242 and other personal items while

having "on or about his person" a 9 mm pistol. He was subsequently bound over to the

county common pleas court, and the grand jury indicted him for two counts of aggravated

robbery, in violation of R.C. 2911.02, each with a one-year and three-year firearm

specification, as well as one count of complicity in the commission of intimidation, in

violation of R.C. 2921.04. At the plea agreement, however, the state nolled the firearm

specifications, representing to the trial court that "actually there is some possibility that it

was not an operable weapon and also this defendant was not in possession of that

Appx. 5

weapon." The prosecutor stated to the court that "it's the State's understanding that it

was not a real gun."

{~3} The state also amended the indictment and charged V.D. instead with one

count of robbery, in violation of R.C. 291 l .02(A)(3), alleging that he "did, in attempting

or committing a theft offense, or in fleeing immediately [thereafter], attempted to use or

threatened the immediate use of force against [a victim]," a felony of the third degree.

The state amended the count further, by incorporating the attempt statute (RC. 2932.021)

into the count, making his offense a fourth-degree felony. Pursuant to a plea agreement,

V.D. pled guilty to attempted robbery, as amended, and also to attempted complicity in the

commission of intimidation, a fourth-degree felony as well.

{~4} V.D. was sentenced to 18 months of community control sanctions for his

offenses. He complied fully with the terms of his community control sanctions. In

December 2001, the trial court sua sponte terminated his community control sanctions

early and discharged him in the case.

{~5} Twelve years later, in June 2013, V.D. filed a motion to seal his criminal

record. 'The state opposed the motion. The trial court held a hearing and denied his

request. The trial court determined that V.D. was precluded from an expungement of his

1R.C. 2923.02(A) states, "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." An attempt to commit an offense is an offense of the next lesser degree than the original offense.

Appx. 6

record because his offense was an "offense of violence" excepted by the expungement

statute. The trial court stated that it "regretfully" denied V.D. 's application and remarked

that he would have been eligible, "other than that pesky language about robbery being a

prohibited offense."

{~6} V.D. now appeals and raises one assignment of error. He contends that the

trial court erred when it overruled his motion for an expungement.

Law and Analysis

{~7} R.C. 2953.32(C)(l) sets forth factors the trial court must consider m an

application to seal the record of conviction. The court must (1) ascertain whether the

applicant is an "eligible offender,"2 (2) detennine whether any criminal proceedings are

pending against the applicant, (3) satisfy itself regarding whether the applicant has been

rehabilitate·d to the court's satisfaction, (4) consider any objections raised by the

prosecutor, and (5) weigh the interests of the applicant in having the records pertaining to

his or her conviction sealed against the legitimate needs, if any, of the government to

maintain those records. RC. 2953.32(C)(l)(a)-(e); State v. MD., 8th Dist. Cuyahoga No.

97300, 2012-0hio-1545 1 ii 6.

2We note the legislature revised the statute, effective September 28, 2012, and the statute now refers to "eligible offender" instead of "first offender." Generally, an "eligible offender" means someone who has no more than one felony conviction, no more than two different misdemeanors if the convictions are not of the same offense, or no more than one felony conviction and one misdemeanor conviction. R.C. 2953.3l(A); In re Mooney, 10th Dist Franklin No. 12AP-376, 2012-0hio-5904, ,! 7.

Appx. 7

{~8} The expungement statute, however, excludes certain criminal offenses from

being expunged. R.C. 2953.36 enumerates these excepted offenses, which include

convictions of an "offense of violence." Whether V.D.'s offense of attempted robbery is

an "offense of violence" for purposes of expungement is the only issue before us in this

appeal.

{~·9} We begin our review with the recognition that, generally, a trial court's

decision regarding an application to seal a record is reviewed for an abuse of discretion.

However, we determine de novo the applicability of R.C. 2953.36 categories to an

applicant's conviction, because that is a question of law. State v. MR., 8th Dist.

Cuyahoga No. 94591, 2010-0hio-6025, 4f 15, citing State v. Futral!, 123 Ohio St.3d 498,

2009-0hio-5590, 918 N.E.2d 497,, 6.

{~10} Notably, the term "offense of violence" is not defined in R.C. 2953.31 to

2953.36, the specific code sections governing expungement. A definition of the term

"offense of violence" can be found, however, in R.C. 2901.01, the statute providing

definitions for various terms for use in the Ohio Revised Code. A review of R.C.

2901.01 indicates robbery is an "offense of violence." R.C. 2901.0l(A)(9)(a). V.D.,

however, was not convicted of robbery, but attempted robbery. The question we are

confronted with in this appeal is whether attempted robbery is an "offense of violence"

disqualifying V .D. from expungement.

{~11} The state argues attempted robbery is an "offense of violence," citing R.C.

2901.0l(A)(9)(d), which contains a provision that an "offense of violence" includes "[a]

Appx. 8

conspiracy or attempt to commit, or complicity in committing" any offense defined as an

"offense of violence."

{~12} This court was confronted with a similar issue in State v. JK., 8th Dist.

Cuyahoga No. 96574, 2011-0hio-5675, appeal not accepted, 131 Ohio St.3d 1513,

2012-0hio-1710, 965 N.E.2d 312. There, the applicant was convicted of attempted arson.

While arson was also a statutory "offense of violence," this court, instead of concluding

attempted arson was an "offense of violence" by operation of R.C. 2901.0l(A)(9)(d), did

not apply RC. 2901.0l(A)(9)(d) to automatically preclude J.K.'s conviction of attempted

arson from expungement.

{~13} Rather, this court reviewed the record to determine whether the facts "clearly

revealed" that the defendant committed a disqualifying "offense of violence. Id. at 4f 30,

citing State v. Simon, 87 Ohio St.3d 531, 721 N.E.2d 1041 (2000). After an honorable

military discharge, J.K. arranged for a fellow soldier to destroy his car so that insurance

would have paid off the balance of his car loan; the act of arson was attempted, but was

quickly discovered by law enforcement. This court, upon a review of the record, held

that the record did not "clearly reveal" that J.K., plea bargain notwithstanding, committed

a disqualifying "offense of violence" and concluded J.K. was eligible for expungement. "

Id.

{1[14} Because of R.C. 2901.0l(A)(9)(d), which is not part of the expungement

statute, R.C. 2953.36 potentially casts a wide net excluding any attempted acts of violence

from expungement. It is not clear at all this is a result intended by the General Assembly.

Appx. 9

Just as we did in JK., we recognize that the expungement provisions were crafted to be

in fact remedial in nature and "must be liberally construed to promote their purposes."

State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 716 N.E.2d 204 (1999). We are further

mindful that "[s]ections of the Revised Code defining offenses or penalties shall be strictly

construed against the state, and liberally construed in favor of the accused." State v.

McGinnis, 90 Ohio App.3d 479, 481, 629 N.E.2d 1084 (4th Dist.1993), citing R.C.

2901.04(A).

{~15} The trial court, understandably, was reluctant to allow expungement

because of a strict interpretation of the robbery statute. Pursuant to JK., however, we do

not consider V .D. 's offense of attempted robbery automatically disqualifying him by

operation of R.C. 2901.0l(A)(9)(d). Although we recognize an "offense of violence"

includes an attempt of the offense under the definition, here, however, V.D. was convicted

of an offense that itself embeds the notion of attempt -- he was convicted of either

committing or attempting to commit a theft while either using or threaten to use force,

which the state admitted involved possibly a fake gun not in his possession. When the

underlying offense itself contemplates attempt, and the defendant was charged with an

attempt of that offense, the element of violence is simply too removed for the defendant to

be automatically precluded .from expungement. Under the particular circumstances of

this case, we cannot say the record "clearly revealed" V.D. committed a disqualifying

"offense of violence."

Appx. 10

{~16} The expungement statute is '~designed to recognize that individuals with a

single criminal infraction may be rehabilitated." State v. Derugen, 110 Ohio App.3d 408,

411, 674 N.E.2d 719 (3d Dist.1996). Here, V.D. committed the offense at a young age,

when he had just graduated from high school. He fully complied with the terms of his

community control sanctions and was discharged early. He has been gainfully employed

as a full-time employee for a subcontractor at a chemical company, and apparently has

been law-abiding for the last 12 years. V.D. certainly appears to be the sort of person the

expungenient process was designed to benefit. The trial court itself acknowledged that

there was no other reason to deny V.D. 's expungement request other than its strict

interpretation of the robbery statute. Construing the expungement statute liberally, as

precedent guides us, we will continue to advance the legislative purpose of allowing

expungements. State v. Niesen-Pennycuff; 132 Ohio St.3d 416, 2012~0hio-2730, 973

N.E.2d 221, ir 23. We conclude a sealing of V.D.'s record should be allowed and,

therefore reverse the trial court's judgment.

It is ordered that appellant recover of said appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the connnon

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 Appellate Procedure.

Appx. 11

TIM McCORMACK, JUDGE

MARY J. BOYLE, A.J., and MARY EILEEN KILBANE, J., CONCUR

Appx. 12

2901.01 General provisions definitions. (A) As used in the Revised Code:

(1) "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.

(2) "Deadly force" means any force that carries a substantial risk that it will proximately result in the death of any person.

(3) "Physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration.

(4) "Physical harm to property" means any tangible or intangible damage to property that, in any degree, results in loss to its value or interferes with its use or enjoyment. "Physical harm to property" does not include wear and tear occasioned by normal use.

(5) "Serious physical harm to persons" means any of the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

( c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

( d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

( e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

(6) "Serious physical harm to property" means any physical harm to property that does either of the following:

(a) Results in substantial loss to the value of the property or requires a substantial amount of time, effort, or money to repair or replace;

(b) Temporarily prevents the use or enjoyment of the property or substantially interferes with its use or enjoyment for an extended period of time.

(7) "Risk" means a significant possibility, as contrasted with a remote possibility, that a certain result may occur or that certain circumstances may exist.

(8) "Substantial risk" means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist.

(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,

Appx. 13

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)(l ), (2), or (3) of section 2911.12 , or of division (B)(l ), (2), (3 ), or ( 4) of section 2919 .22 of the Revised Code or felonious sexual penetration in violation of former section 2907 .12 of the Revised Code;

(b) A violation of an existing or former municipal ordinance or law of this or any other state or the United States, substantially 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 existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical 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.

(10)

(a) "Property" means any property, real or personal, tangible or intangible, and any interest or license in that property. "Property" includes, but is not limited to, cable television service, other telecommunications service, telecommunications devices, information service, computers, data, computer software, financial instruments associated with computers, other documents associated with computers, or copies of the documents, whether in machine or human readable form, trade secrets, trademarks, copyrights, patents, and property protected by a trademark, copyright, or patent. "Financial instruments associated with computers" include, but are not limited to, checks, drafts, warrants, money orders, notes of indebtedness, certificates of deposit, letters of credit, bills of credit or debit cards, financial transaction authorization mechanisms, marketable securities, or any computer system representations of any of them.

(b) As used in division (A)(l 0) of this section, "trade secret" has the same meaning as in section 1333.61 of the Revised Code, and "telecommunications service" and "information service" have the same meanings as in section 2913.01 of the Revised Code.

(c) As used in divisions (A)(lO) and (13) of this section, "cable television service," "computer," "computer software," "computer system," "computer network," "data," and "telecommunications device" have the same meanings as in section 2913.01 of the Revised Code.

(11) "Law enforcement officer" means any of the following:

(a) A sheriff, deputy sheriff, constable, police officer of a township or joint police district, marshal, deputy marshal, municipal police officer, member of a police force employed by a metropolitan housing authority under division (D) of section 3735.31 of the Revised Code, or state highway patrol trooper;

(b) An officer, agent, or employee of the state or any of its agencies, instrumentalities, or

Appx. 14

political subdivisions, upon whom, by statute, a duty to conserve the peace or to enforce all or certain laws is imposed and the authority to arrest violators is conferred, within the limits of that statutory duty and authority;

( c) A mayor, in the mayor's capacity as chief conservator of the peace within the mayor's municipal corporation;

( d) A member of an auxiliary police force organized by county, township, or municipal law enforcement authorities, within the scope of the member's appointment or comm1ss10n;

( e) A person lawfully called pursuant to section 311.07 of the Revised Code to aid a sheriff in keeping the peace, for the purposes and during the time when the person is called;

(f) A person appointed by a mayor pursuant to section 737.01 of the Revised Code as a special patrolling officer during riot or emergency, for the purposes and during the time when the person is appointed;

(g) A member of the organized militia of this state or the armed forces of the United States, lawfully called to duty to aid civil authorities in keeping the peace or protect against domestic violence;

(h) A prosecuting attorney, assistant prosecuting attorney, secret service officer, or municipal prosecutor;

(i) A veterans' home police officer appointed under section 5907 .02 of the Revised Code;

(j) A member of a police force employed by a regional transit authority under division (Y) of section 306.35 of the Revised Code;

(k) A special police officer employed by a port authority under section 4582.04 or 4582.28 of the Revised Code;

(1) The house of representatives sergeant at arms if the house of representatives sergeant at arms has arrest authority pursuant to division (E)( 1) of section 101.311 of the Revised Code and an assistant house of representatives sergeant at arms;

(m) The senate sergeant at arms and an assistant senate sergeant at arms;

(n) A special police officer employed by a municipal corporation at a municipal airport, or other municipal air navigation facility, that has scheduled operations, as defined in section 119.3 of Title 14 of the Code of Federal Regulations, 14 C.F.R. 119.3, as amended, and that is required to be under a security program and is governed by aviation security rules of the transportation security administration of the United States department of transportation as provided in Parts 1542. and 1544. of Title 49 of the Code of Federal Regulations, as amended.

(12) "Privilege" means an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity.

Appx. 15

(13) "Contraband" means any property that is illegal for a person to acquire or possess under a statute, ordinance, or rule, or that a trier of fact lawfully determines to be illegal to possess by reason of the property's involvement in an offense. "Contraband" includes, but is not limited to, all of the following:

(a) Any controlled substance, as defined in section 3719.01 of the Revised Code, or any device or paraphernalia;

(b) Any unlawful gambling device or paraphernalia;

(c) Any dangerous ordnance or obscene material.

(14) A person is "not guilty by reason of insanity" relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person's acts.

(B)

(1)

(a) Subject to division (B)(2) of this section, as used in any section contained in Title XXIX of the Revised Code that sets forth a criminal offense, "person" includes all of the following:

(i) An individual, corporation, business trust, estate, trust, partnership, and association;

(ii) An unborn human who is viable.

(b) As used in any section contained in Title XXIX of the Revised Code that does not set forth a criminal offense, "person" includes an individual, corporation, business trust, estate, trust, partnership, and association.

(c) As used in division (B)(l)(a) of this section:

(i) "Unborn human" means an individual organism of the species Homo sapiens from fertilization until live birth.

(ii) "Viable" means the stage of development of a human fetus at which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary artificial life-sustaining support.

(2) Notwithstanding division (B)(l)(a) of this section, in no case shall the portion of the definition of the term "person" that is set forth in division (B)(l)(a)(ii) of this section be applied or construed in any section contained in Title XXIX of the Revised Code that sets forth a criminal offense in any of the following manners:

(a) Except as otherwise provided in division (B)(2)(a) of this section, in a manner so that the offense prohibits or is construed as prohibiting any pregnant woman or her physician from performing an abortion with the consent of the pregnant woman, with the consent of the pregnant woman implied by law in a medical emergency, or with the approval of one otherwise authorized by law to consent to medical treatment on behalf of the pregnant woman. An abortion that violates the conditions described in the immediately preceding

Appx. 16

sentence may be punished as a violation of section 2903.01 , 2903.02, 2903.03, 2903.04 '2903.05 '2903.06 '2903.08 '2903.11 '2903.12 '2903.13 '2903.14 '2903.21 ' or 2903.22 of the Revised Code, as applicable. An abortion that does not violate the conditions described in the second immediately preceding sentence, but that does violate section 2919.12 , division (B) of section 2919.13 , or section 2919.151 , 2919.17 , or 2919.18 of the Revised Code, may be punished as a violation of section 2919.12, division (B) of section 2919.13 , or section 2919.151 , 2919.17, or 2919.18 of the Revised Code, as applicable. Consent is sufficient under this division if it is of the type otherwise adequate to permit medical treatment to the pregnant woman, even if it does not comply with section 2919 .12 of the Revised Code.

(b) In a manner so that the offense is applied or is construed as applying to a woman based on an act or omission of the woman that occurs while she is or was pregnant and that results in any of the following:

(i) Her delivery of a stillborn baby;

(ii) Her causing, in any other manner, the death in utero of a viable, unborn human that she is carrying;

(iii) Her causing the death of her child who is born alive but who dies from one or more injuries that are sustained while the child is a viable, unborn human;

(iv) Her causing her child who is born alive to sustain one or more injuries while the child is a viable, unborn human;

(v) Her causing, threatening to cause, or attempting to cause, in any other manner, an injury, illness, or other physiological impairment, regardless of its duration or gravity, or a mental illness or condition, regardless of its duration or gravity, to a viable, unborn human that she is carrying.

(C) As used in Title XXIX of the Revised Code:

(1) "School safety zone" consists of a school, school building, school premises, school activity, and school bus.

(2) "School," "school building," and "school premises" have the same meanings as in section 2925.01 of the Revised Code.

(3) "School activity" means any activity held under the auspices of a board of education of a city, local, exempted village, joint vocational, or cooperative education school district; a governing authority of a community school established under Chapter 3314. of the Revised Code; a governing board of an educational service center, or the governing body of a school for which the state board of education prescribes minimum standards under section 3301.07 of the Revised Code.

(4) "School bus" has the same meaning as in section 4511.01 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, § 101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.58, SB 235, §1, eff. 3/24/2011.

Appx. 17

Effective Date: 04-08-2003; 07-01-2007

2901.04 Rules of construction for statutes and rules of procedure. (A) Except as otherwise provided in division (C) or (D) of this section, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.

(B) Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure administration of justice.

(C) Any provision of a section of the Revised Code that refers to a previous conviction of or plea of guilty to a violation of a section of the Revised Code or of a division of a section of the Revised Code shall be construed to also refer to a previous conviction of or plea of guilty to a substantially equivalent offense under an existing or former law of this state, another state, or the United States or under an existing or former municipal ordinance.

(D) Any provision of the Revised Code that refers to a section, or to a division of a section, of the Revised Code that defines or specifies a criminal offense shall be construed to also refer to an existing or former law of this state, another state, or the United States, to an existing or former municipal ordinance, or to an existing or former division of any such existing or former law or ordinance that defines or specifies, or that defined or specified, a substantially equivalent offense.

Effective Date: 03-23-2000; 09-23-2004

2911.02 Robbery. (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under the offender's control;

(2) Inflict, attempt to inflict, or threaten to inflict physical harm on another;

(3) Use or threaten the immediate use of force against another.

(B) Whoever violates this section is guilty of robbery. A violation of division (A)(l) or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section is a felony of the third degree.

(C) As used in this section:

(1) "Deadly weapon" has the same meaning as in section 2923.11 of the Revised Code.

(2) "Theft offense" has the same meaning as in section 2913.01 of the Revised Code.

Effective Date: 07-01-1996

Appx. 18

2921.04 Intimidation of attorney, victim or witness in criminal case or delinquent child action proceeding.

(A) No person shall knowingly attempt to intimidate or hinder the victim of a crime or delinquent act in the filing or prosecution of criminal charges or a delinquent child action or proceeding, and no person shall knowingly attempt to intimidate a witness to a criminal or delinquent act by reason of the person being a witness to that act.

(B) No person, knowingly and by force or by unlawful threat of harm to any person or property or by unlawful threat to commit any offense or calumny against any person, shall attempt to influence, intimidate, or hinder any of the following persons:

(1) The victim of a crime or delinquent act in the filing or prosecution of criminal charges or a delinquent child action or proceeding;

(2) A witness to a criminal or delinquent act by reason of the person being a witness to that act;

(3) An attorney by reason of the attorney's involvement in any criminal or delinquent child action or proceeding .

(C) Division (A) of this section does not apply to any person who is attempting to resolve a dispute pertaining to the alleged commission of a criminal offense, either prior to or subsequent to the filing of a complaint, indictment, or information, by participating in the arbitration, mediation, compromise, settlement, or conciliation of that dispute pursuant to an authorization for arbitration, mediation, compromise, settlement, or conciliation of a dispute of that nature that is conferred by any of the following:

(1) A section of the Revised Code;

(2) The Rules of Criminal Procedure, the Rules of Superintendence for Municipal Courts and County Courts, the Rules of Superintendence for Courts of Common Pleas, or another rule adopted by the supreme court in accordance with section 5 of Article IV, Ohio Constitution;

(3) A local rule of court, including, but not limited to, a local rule of court that relates to alternative dispute resolution or other case management programs and that authorizes the referral of disputes pertaining to the alleged commission of certain types of criminal offenses to appropriate and available arbitration, mediation, compromise, settlement, or other conciliation programs;

( 4) The order of a judge of a municipal court, county court, or court of common pleas.

(D) Whoever violates this section is guilty of intimidation of an attorney, victim, or witness in a criminal case. A violation of division (A) of this section is a misdemeanor of the first degree. A violation of division (B) of this section is a felony of the third degree.

(E) As used in this section, "witness" means any person who has or claims to have knowledge concerning a fact or facts concerning a criminal or delinquent act, whether or not criminal or delinquent child charges are actually filed.

Amended by 129th General AssemblyFile No.83, HB 20, §1, eff. 6/4/2012. Effective Date:

Appx. 19

09-03-1996

2923.02 Attempt to commit an offense. (A) No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.

(B) It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be.

(C) No person who is convicted of committing a specific offense, of complicity in the commission of an offense, or of conspiracy to commit an offense shall be convicted of an attempt to commit the same offense in violation of this section.

(D) It is an affirmative defense to a charge under this section that the actor abandoned the actor's effort to commit the offense or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of the actor's criminal purpose.

(E)

(1) Whoever violates this section is guilty of an attempt to commit an offense. An attempt to commit aggravated murder, murder, or an offense for which the maximum penalty is imprisonment for life is a felony of the first degree. An attempt to commit a drug abuse offense for which the penalty is determined by the amount or number of unit doses of the controlled substance involved in the drug abuse offense is an offense of the same degree as the drug abuse offense attempted would be if that drug abuse offense had been committed and had involved an amount or number of unit doses of the controlled substance that is within the next lower range of controlled substance amounts than was involved in the attempt. An attempt to commit any other offense is an offense of the next lesser degree than the offense attempted. In the case of an attempt to commit an offense other than a violation of Chapter 3734. of the Revised Code that is not specifically classified, an attempt is a misdemeanor of the first degree if the offense attempted is a felony, and a misdemeanor of the fourth degree if the offense attempted is a misdemeanor. In the case of an attempt to commit a violation of any provision of Chapter 3 734. of the Revised Code, other than section 3 734.18 of the Revised Code, that relates to hazardous wastes, an attempt is a felony punishable by a fine of not more than twenty­five thousand dollars or imprisonment for not more than eighteen months, or both. An attempt to commit a minor misdemeanor, or to engage in conspiracy, is not an offense under this section.

(2) In addition to any other sanctions imposed pursuant to division (E)(l) of this section for an attempt to commit aggravated murder or murder in violation of division (A) of this section, ifthe offender used a motor vehicle as the means to attempt to commit the offense, the court shall impose upon the offender a class two suspension of the offender's driver's license, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege as specified in division (A)(2) of section

Appx. 20

4510.02 of the Revised Code.

(3) If a person is convicted of or pleads guilty to attempted rape and also is convicted of or pleads guilty to a specification of the type described in section 2941.1418 , 2941.1419 , or 2941.1420 of the Revised Code, the offender shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.

(F) As used in this section:

(1) "Drug abuse offense" has the same meaning as in section 2925.01 of the Revised Code.

(2) "Motor vehicle" has the same meaning as in section 4501.01 of the Revised Code.

Effective Date: 03-23-2000; 01-02-2007; 04-04-2007

2953.31 Sealing of record of conviction definitions.

As used in sections 2953.31to2953.36 of the Revised Code:

(A) "Eligible offender" means anyone who has been convicted of an offense in this state or any other jurisdiction and who has not more than one felony conviction, not more than two misdemeanor convictions , or not more than one felony conviction and one misdemeanor conviction in this state or any other jurisdiction. When two or more convictions result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction. When two or three convictions result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, they shall be counted as one conviction, provided that a court may decide as provided in division (C)(l)(a) of section 2953.32 of the Revised Code that it is not in the public interest for the two or three convictions to be counted as one conviction.

For purposes of, and except as otherwise provided in, this division, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters is not a conviction. However, a conviction for a violation of section 4511.19, 4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.62 or sections 4549.41 to 4549.46 of the Revised Code, for a violation of section 4510.11 or 4510.14 of the Revised Code that is based upon the offender's operation of a vehicle during a suspension imposed under section 4511.191 or 4511.196 of the Revised Code, for a violation of a substantially equivalent municipal ordinance, for a felony violation of Title XLV of the Revised Code, or for a violation of a substantially equivalent former law of this state or former municipal ordinance shall be considered a conviction.

Appx. 21

(B) "Prosecutor" means the county prosecuting attorney, city director of law, village solicitor, or similar chief legal officer, who has the authority to prosecute a criminal case in the court in which the case is filed.

(C) "Bail forfeiture" means the forfeiture of bail by a defendant who is arrested for the commission of a misdemeanor, other than a defendant in a traffic case as defined in Traffic Rule 2, if the forfeiture is pursuant to an agreement with the court and prosecutor in the case.

(D) "Official records" has the same meaning as in division (D) of section 2953.51 of the Revised Code.

(E) "Official proceeding" has the same meaning as in section 2921.01 of the Revised Code.

(F) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.

(G) "Post-release control" and "post-release control sanction" have the same meanings as in section 2967.01 of the Revised Code.

(H) "DNA database," "DNA record," and "law enforcement agency" have the same meanings as in section 109.573 of the Revised Code.

(I) "Fingerprints filed for record" means any fingerprints obtained by the superintendent of the bureau of criminal identification and investigation pursuant to sections 109.57 and 109.571 of the Revised Code.

Amended by 130th General Assembly File No. TBD, SB 143, §1, eff. 9/19/2014.

Amended by 129th General AssemblyFile No.131, SB 337, § 1, eff. 9/28/2012.

Amended by 128th General AssemblyFile No.30, SB 77, § 1, eff. 7/6/2010.

Effective Date: 01-01-2004

2953.32 Sealing of conviction record or bail forfeiture record.

(A)

(1) Except as provided in section 2953.61 of the Revised Code, an eligible offender may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of the record of the case that pertains to the conviction. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony, or at the expiration of one year after the offender's final discharge if convicted of a misdemeanor.

(2) Any person who has been arrested for any misdemeanor offense and who has effected a bail forfeiture for the offense charged may apply to the court in which the misdemeanor criminal case was pending when bail was forfeited for the sealing of the record of the case that pertains to the charge. Except as provided in section 2953.61 of the Revised Code, the application may be filed at any time after the expiration of one year from the date on which the bail forfeiture was entered upon the minutes of the court or the journal,

Appx. 22

whichever entry occurs first.

(B) Upon the filing of an application under this section, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for the hearing. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. The court shall direct its regular probation officer, a state probation officer, or the department of probation of the county in which the applicant resides to make inquiries and written reports as the court requires concerning the applicant. If the applicant was convicted of or pleaded guilty to a violation of division (A)(2) or (B) of section 2919.21 of the Revised Code, the probation officer or county department of probation that the court directed to make inquiries concerning the applicant shall contact the child support enforcement agency enforcing the applicant's obligations under the child support order to inquire about the offender's compliance with the child support order.

(C)

(1) The court shall do each of the following:

(a) Determine whether the applicant is an eligible offender or whether the forfeiture of bail was agreed to by the applicant and the prosecutor in the case. If the applicant applies as an eligible offender pursuant to division (A)(l) of this section and has two or three convictions that result from the same indictment, information, or complaint, from the same plea of guilty, or from the same official proceeding, and result from related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time, in making its determination under this division, the court initially shall determine whether it is not in the public interest for the two or three convictions to be counted as one conviction. If the court determines that it is not in the public interest for the two or three convictions to be counted as one conviction, the court shall determine that the applicant is not an eligible offender; if the court does not make that determination, the court shall determine that the offender is an eligible offender.

(b) Determine whether criminal proceedings are pending against the applicant;

(c) If the applicant is an eligible offender who applies pursuant to division (A)(l) of this section, determine whether the applicant has been rehabilitated to the satisfaction of the court;

(d) If the prosecutor has filed an objection in accordance with division (B) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;

( e) Weigh the interests of the applicant in having the records pertaining to the applicant's conviction or bail forfeiture sealed against the legitimate needs, if any, of the government to maintain those records.

(2) If the court determines, after complying with division (C)(l) of this section, that the applicant is an eligible offender or the subject of a bail forfeiture, that no criminal

Appx. 23

proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant's conviction or bail forfeiture sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is an eligible offender applying pursuant to division (A)(l) of this section has been attained to the satisfaction of the court, the court, except as provided in divisions (G), (H), or (I) of this section, shall order all official records of the case that pertain to the conviction or bail forfeiture sealed and, except as provided in division (F) of this section, all index references to the case that pertain to the conviction or bail forfeiture deleted and, in the case of bail forfeitures, shall dismiss the charges in the case. The proceedings in the case that pertain to the conviction or bail forfeiture shall be considered not to have occurred and the conviction or bail forfeiture of the person who is the subject of the proceedings shall be sealed, except that upon conviction of a subsequent offense, the sealed record of prior conviction or bail forfeiture may be considered by the court in determining the sentence or other appropriate disposition, including the relief provided for in sections 2953.31to2953.33 of the Revised Code.

(3) An applicant may request the sealing of the records of more than one case in a single application under this section. Upon the filing of an application under this section, the applicant, unless indigent, shall pay a fee of fifty dollars, regardless of the number of records the application requests to have sealed. The court shall pay thirty dollars of the fee into the state treasury. It shall pay twenty dollars of the fee into the county general revenue fund if the sealed conviction or bail forfeiture was pursuant to a state statute, or into the general revenue fund of the municipal corporation involved if the sealed conviction or bail forfeiture was pursuant to a municipal ordinance.

(D) Inspection of the sealed records included in the order may be made only by the following persons or for the following purposes:

(1) By a law enforcement officer or prosecutor, or the assistants of either, to determine whether the nature and character of the offense with which a person is to be charged would be affected by virtue of the person's previously having been convicted of a crime;

(2) By the parole or probation officer of the person who is the subject of the records, for the exclusive use of the officer in supervising the person while on parole or under a community control sanction or a post-release control sanction, and in making inquiries and written reports as requested by the court or adult parole authority;

(3) Upon application by the person who is the subject of the records, by the persons named in the application;

(4) By a law enforcement officer who was involved in the case, for use in the officer's defense of a civil action arising out of the officer's involvement in that case;

(5) By a prosecuting attorney or the prosecuting attorney's assistants, to determine a defendant's eligibility to enter a pre-trial diversion program established pursuant to section 2935.36 of the Revised Code;

(6) By any law enforcement agency or any authorized employee of a law enforcement agency or by the department of rehabilitation and correction as part of a background

Appx. 24

investigation of a person who applies for employment with the agency as a law enforcement officer or with the department as a corrections officer;

(7) By any law enforcement agency or any authorized employee of a law enforcement agency, for the purposes set forth in, and in the manner provided in, section 2953.321 of the Revised Code;

(8) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of providing information to a board or person pursuant to division (F) or (G) of section 109.57 of the Revised Code;

(9) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of performing a criminal history records check on a person to whom a certificate as prescribed in section 109.77 of the Revised Code is to be awarded;

(10) By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of conducting a criminal records check of an individual pursuant to division (B) of section 109 .572 of the Revised Code that was requested pursuant to any of the sections identified in division (B)(l) of that section;

(11) By the bureau of criminal identification and investigation, an authorized employee of the bureau, a sheriff, or an authorized employee of a sheriff in connection with a criminal records check described in section 311.41 of the Revised Code;

(12) By the attorney general or an authorized employee of the attorney general or a court for purposes of determining a person's classification pursuant to Chapter 2950. of the Revised Code;

(13) By a court, the registrar of motor vehicles, a prosecuting attorney or the prosecuting attorney's assistants, or a law enforcement officer for the purpose of assessing points against a person under section 4510.036 of the Revised Code or for taking action with regard to points assessed.

When the nature and character of the offense with which a person is to be charged would be affected by the information, it may be used for the purpose of charging the person with an offense.

(E) In any criminal proceeding, proof of any otherwise admissible prior conviction may be introduced and proved, notwithstanding the fact that for any such prior conviction an order of sealing previously was issued pursuant to sections 2953.31 to 2953.36 of the Revised Code.

(F) The person or governmental agency, office, or department that maintains sealed records pertaining to convictions or bail forfeitures that have been sealed pursuant to this section may maintain a manual or computerized index to the sealed records. The index shall contain only the name of, and alphanumeric identifiers that relate to, the persons who are the subject of the sealed records, the word "sealed," and the name of the person, agency, office, or department that has custody of the sealed records, and shall not contain the name of the crime committed. The index shall be made available by the person who

Appx. 25

has custody of the sealed records only for the purposes set forth in divisions (C), (D), and (E) of this section.

(G) Notwithstanding any provision of this section or section 2953.33 of the Revised Code that requires otherwise, a board of education of a city, local, exempted village, or joint vocational school district that maintains records of an individual who has been permanently excluded under sections 3301.121and3313.662 of the Revised Code is permitted to maintain records regarding a conviction that was used as the basis for the individual's permanent exclusion, regardless of a court order to seal the record. An order issued under this section to seal the record of a conviction does not revoke the adjudication order of the superintendent of public instruction to permanently exclude the individual who is the subject of the sealing order. An order issued under this section to seal the record of a conviction of an individual may be presented to a district superintendent as evidence to support the contention that the superintendent should recommend that the permanent exclusion of the individual who is the subject of the sealing order be revoked. Except as otherwise authorized by this division and sections 3301.121 and 3313.662 of the Revised Code, any school employee in possession of or having access to the sealed conviction records of an individual that were the basis of a permanent exclusion of the individual is subject to section 2953.35 of the Revised Code.

(H) For purposes of sections 2953.31 to 2953.36 of the Revised Code, DNA records collected in the DNA database and fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation shall not be sealed unless the superintendent receives a certified copy of a final court order establishing that the offender's conviction has been overturned. For purposes of this section, a court order is not "final" if time remains for an appeal or application for discretionary review with respect to the order.

(I) The sealing of a record under this section does not affect the assessment of points under section 4510.036 of the Revised Code and does not erase points assessed against a person as a result of the sealed record.

Amended by l 30th General Assembly File No. TBD, SB 143, § 1, eff. 9/19/2014.

Amended by 129th General AssemblyFile No.131, SB 337, § 1, eff. 9/28/2012.

Amended by 128th General AssemblyFile No.30, SB 77, § 1, eff. 7/6/2010.

Effective Date: 04-08-2004; 2007 SBlO 07-01-2007; 2007 HB104 03-24-2008; 2008 HB195 09-30-2008

2953.321 Divulging confidential investigatory work product.

(A) As used in this section, "investigatory work product" means any records or reports of a law enforcement officer or agency that are excepted from the definition of "official records" contained in section 2953.51 of the Revised Code and that pertain to a conviction or bail forfeiture the records of which have been ordered sealed pursuant to division (C)(2) of section 2953.32 of the Revised Code or that pertain to a conviction or delinquent child adjudication the records of which have been ordered expunged pursuant to division (E) of section 2151.358, division (D)(2) of section 2953.37, or division (G) of

Appx. 26

section 2953.38 of the Revised Code.

(B) Upon the issuance of an order by a court pursuant to division (C)(2) of section 2953.32 of the Revised Code directing that all official records of a case pertaining to a conviction or bail forfeiture be sealed or an order by a court pursuant to division (E) of section 2151.358, division (D)(2) of section 2953.37, or division (G) of section 2953.38 of the Revised Code directing that all official records of a case pertaining to a conviction or delinquent child adjudication be expunged:

( 1) Every law enforcement officer who possesses investigatory work product immediately shall deliver that work product to the law enforcement officer's employing law enforcement agency.

(2) Except as provided in division (B)(3) of this section, every law enforcement agency that possesses investigatory work product shall close that work product to all persons who are not directly employed by the law enforcement agency and shall treat that work product, in relation to all persons other than those who are directly employed by the law enforcement agency, as if it did not exist and never had existed.

(3) A law enforcement agency that possesses investigatory work product may permit another law enforcement agency to use that work product in the investigation of another offense if the facts incident to the offense being investigated by the other law enforcement agency and the facts incident to an offense that is the subject of the case are reasonably similar. The agency that permits the use of investigatory work product may provide the other agency with the name of the person who is the subject of the case if it believes that the name of the person is necessary to the conduct of the investigation by the other agency.

(C)

(1) Except as provided in division (B)(3) of this section, no law enforcement officer or other person employed by a law enforcement agency shall knowingly release, disseminate, or otherwise make the investigatory work product or any information contained in that work product available to, or discuss any information contained in it with, any person not employed by the employing law enforcement agency.

(2) No law enforcement agency, or person employed by a law enforcement agency, that receives investigatory work product pursuant to division (B)(3) of this section shall use that work product for any purpose other than the investigation of the offense for which it was obtained from the other law enforcement agency, or disclose the name of the person who is the subject of the work product except when necessary for the conduct of the investigation of the offense, or the prosecution of the person for committing the offense, for which it was obtained from the other law enforcement agency.

(3) It is not a violation of division (C)(l) or (2) of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the

Appx. 27

superintendent of the bureau of criminal identification and investigation.

(D) Whoever violates division (C)(l) or (2) of this section is guilty of divulging confidential investigatory work product, a misdemeanor of the fourth degree.

Amended by 130th General Assembly File No. TBD, SB 143, §1, eff. 9/19/2014.

Amended by 129th General AssemblyFile No.142, HB 262, § l, eff. 6/27/2012.

Amended by 129th General AssemblyFile No.34, SB 17, §1, eff. 9/30/2011.

Amended by 128th General AssemblyFile No.30, SB 77, §1, eff. 7/6/2010.

Effective Date: 06-29-1988

2953.33 Restoration of rights and privileges.

(A) An order issued under section 2953.37 of the Revised Code to expunge the record of a person's conviction or, except as provided in division (G) of section 2953.32 of the Revised Code, an order issued under that section to seal the record of a person's conviction restores the person who is the subject of the order to all rights and privileges not otherwise restored by termination of the sentence or community control sanction or by final release on parole or post-release control.

(B)

(1) In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of section 2953.32 and in section 3319.292 of the Revised Code and subject to division (B)(2) of this section, a person may be questioned only with respect to convictions not sealed, bail forfeitures not expunged under section 2953.42 of the Revised Code as it existed prior to June 29, 1988, and bail forfeitures not sealed, unless the question bears a direct and substantial relationship to the position for which the person is being considered.

(2) A person may not be questioned in any application, appearance, or inquiry of a type described in division (B)(l) of this section with respect to any conviction expunged under section 2953.37 of the Revised Code.

Amended by 129th General AssemblyFile No.34, SB 17, §1, eff. 9/30/2011.

Effective Date: 01-01-2004; 2008 HB428 09-12-2008

2953.34 Sealing record not to affect appeal rights of eligible offender.

Nothing in sections 2953.31 to 2953.33 of the Revised Code precludes an eligible offender from taking an appeal or seeking any relief from the eligible offender's conviction or from relying on it in lieu of any subsequent prosecution for the same offense.

Amended by 129th General AssemblyFile No.131, SB 337, §1, eff. 9/28/2012.

Effective Date: 01-01-1974

Appx. 28

2953.35 Divulging confidential information.

(A)

(1) As used in divisions (A)(2) and (3) of this section, "law enforcement or justice system matter" means an arrest, complaint, indictment, trial, hearing, adjudication, conviction, or correctional supervision.

(2) Except as authorized by divisions (D), (E), and (F) of section 2953.32 of the Revised Code or by Chapter 2950. of the Revised Code and subject to division (A)(3) of this section, any officer or employee of the state, or a political subdivision of the state, who releases or otherwise disseminates or makes available for any purpose involving employment, bonding, or licensing in connection with any business, trade, or profession to any person, or to any department, agency, or other instrumentality of the state, or any political subdivision of the state, any information or other data concerning any law enforcement or justice system matter the records with respect to which the officer or employee had knowledge of were sealed by an existing order issued pursuant to sections 2953.31to2953.36 of the Revised Code, were expunged by an order issued pursuant to division (E) of section 2151.358, section 2953.37, or section 2953.38 of the Revised Code, or were expunged by an order issued pursuant to section 2953.42 of the Revised Code as it existed prior to June 29, 1988, is guilty of divulging confidential information, a misdemeanor of the fourth degree.

(3) Division (A)(2) of this section does not apply to an officer or employee of the state, or a political subdivision of the state, who releases or otherwise disseminates or makes available for any purpose specified in that division any information or other data concerning a law enforcement or justice system matter the records of which the officer had knowledge were sealed or expunged by an order of a type described in that division, if all of the following apply:

(a) The officer or employee released, disseminated, or made available the information or data from the sealed or expunged records together with information or data concerning another law enforcement or justice system matter.

(b) The records of the other law enforcement or justice matter were not sealed or expunged by any order of a type described in division (A)(2) of this section.

( c) The law enforcement or justice matter covered by the information or data from the sealed or expunged records and the other law enforcement or justice matter covered by the information or data from the records that were not sealed or expunged resulted from or were connected to the same act.

( d) The officer or employee made a good faith effort to not release, disseminate, or make available any information or other data concerning any law enforcement or justice matter from the sealed or expunged records, and the officer or employee did not release, disseminate, or make available the information or other data from the sealed or expunged records with malicious purpose, in bad faith, or in a wanton or reckless manner.

(B) Any person who, in violation of section 2953.32 of the Revised Code, uses,

Appx. 29

disseminates, or otherwise makes available any index prepared pursuant to division (F) of section 2953.32 of the Revised Code is guilty of a misdemeanor of the fourth degree.

(C) It is not a violation of this section for the bureau of criminal identification and investigation or any authorized employee of the bureau participating in the investigation of criminal activity to release, disseminate, or otherwise make available to, or discuss with, a person directly employed by a law enforcement agency DNA records collected in the DNA database or fingerprints filed for record by the superintendent of the bureau of criminal identification and investigation.

Amended by 130th General Assembly File No. TBD, SB 143, §1, eff. 9/19/2014.

Amended by 129th General AssemblyFile No.142, HB 262, §1, eff. 6/27/2012.

Amended by 129th General AssemblyFile No.34, SB 17, § 1, eff. 9/30/2011.

Amended by 128th General AssemblyFile No.30, SB 77, §1, eff. 7/6/2010.

Effective Date: 07-01-1997

2953.36 Sealing of record of conviction exceptions.

Sections 2953.31to2953.35 of the Revised Code do not apply to any of the following:

(A) Convictions when the offender is subject to a mandatory prison term;

(B) Convictions under section 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321, 2907.322, or 2907.323, former section 2907.12, or Chapter 4507., 4510., 4511., or 4549. of the Revised Code, or a conviction for a violation of a municipal ordinance that is substantially similar to any section contained in any of those chapters, except as otherwise provided in section 2953.61 of the Revised Code;

(C) Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 of the Revised Code and is not a violation of section 2903.13, 2917.01, or 2917.31 of the Revised Code that is a misdemeanor of the first degree;

(D) Convictions on or after October 10, 2007, under section 2907.07 of the Revised Code or a conviction on or after October 10, 2007, for a violation of a municipal ordinance that is substantially similar to that section;

(E) Convictions on or after October 10, 2007, under section 2907.08, 2907.09, 2907.21, 2907.22, 2907.23, 2907.31, 2907.311, 2907.32, or 2907.33 of the Revised Code when the victim of the offense was under eighteen years of age;

(F) Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degree or a felony, except for convictions under section 2919 .21 of the Revised Code;

(G) Convictions of a felony of the first or second degree;

(H) Bail forfeitures in a traffic case as defined in Traffic Rule 2.

Amended by 130th General Assembly File No. TBD, SB 143, §1, eff. 9/19/2014.

Appx. 30

Amended by 129th General AssemblyFile No.131, SB 337, § l, eff. 9/28/2012.

Effective Date: 01-01-2004; 2007 SB18 10-10-2007

Appx. 31

NO.

IN THE SUPREME COURT OF OHIO

APPEAL FROM THE EIGHTH DISTRICT COURT OF APPEALS

CUYAHOGA COUNTY, OHIO CA 100522

ORIGINAL

STATE OF OHIO Plaintiff/Appellant 14-0,'990

vs.

V.M.D. Defendant/Appellee

NOTICE OF APPEAL TO THE SUPREME COURT OF OHIO

Counsel for Defendant/Appellee

A. STEVEN DEVER 13363 Madison Avenue Lakewood, Ohio44107

STATE PUBLIC DEFENDER'S OFFICE 250 East Broad Street, Suite 1400 Columbus, OH 43215

JUN 1 3 2014

CLERK OF COURT SUPREME COURT OF OHIO

Counsel for Plaintiff/Appellant TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR

DIANE SMILANICK (0019987) JAMES M. PRICE (0073356) Assistant Prosecuting Attorneys 1200 Ontario Street, gth Floor Cleveland, OH 44113 (216) 443-7800

~1= f~f[)\""'"~'~"-1 U- U lL .. u:; U:!J f JUN 1 3 2014 I

I . CLERK OF COUBT f L~u~~EME cpU.ffLQ.E.PlliQJ

Now comes the State of Ohio and hereby give Notice of Appeal to the Supreme

Court of Ohio from a judgment and final order of the Court of Appeals for Cuyahoga

County, Ohio, Eighth Judicial District, entered May 1, 2014.

Said cause did not originate in the Court of Appeals, is a felony, and involves an

issue of great general and public interest.

Respectfully submitted,

TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR

BY ~~rul/)V/r1.~ DIANE SMILANICK (0019987) JAMES M. PRICE (0073356) Assistant Prosecuting Attorneys Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800

CERTIFICATE OF SERVICE

A copy of the foregoing Notice of Appeal has been mailed this 12th day of June,

2014, to A. Steven Dever, 13363 Madison Avenue, Lakewood, Ohio 44107 and to the

Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH

43215.

~~~f-_ DIANE SMILANICK (0019987) 7

Assistant Prosecuting Attorney