THE STATE OF OHIO, APPELLANT, v. AGUIRRE, APPELLEE.
Nos. 2013-0870 and 2013-0876
Supreme Court of Ohio
October 22, 2014
144 Ohio St.3d 179, 2014-Ohio-4603
O‘CONNOR, C.J.
Submitted May 13, 2014
Zaino, Hall & Farrin, L.L.C., and Thomas M. Zaino, urging reversal for amici curiae National Football League Players Association, Major League Baseball Players Assoсiation, National Hockey League Players Association, and National Basketball League Players Association.
O‘CONNOR, C.J.
{1} Under Ohio law, a court may seal an eligible offender‘s felony conviction record upon an “[a]pplication * * * made at the expiration of three years after the offender‘s final discharge.”
{12} We hold that a trial court may not seal an offender‘s record before the offender hаs completed all sentencing requirements, including any order to make restitution to third parties. Because our holding rejects the analysis adopted by the Tenth District Court of Appeals in this case, and because appellee, Sharlene Aguirre, concedes that she still owes restitution to two third-party insurance companies, we reverse the appellate court‘s judgment and remand this case to the Franklin County Court of Common Pleas.
RELEVANT BACKGROUND
The Tenth District: Aguirre
{13} On May 22, 2002, Aguirre pleaded guilty to one count of theft, a fourth-degree felony, for stealing money to pay her gambling debts. The prosecution and defense jointly recommended a sentence of five years of community control, plus restitution to be paid to Aguirre‘s former employer, Economy Enterprises, Inc., and two of its insurance companies, Westfield Insurance and Harleysville Insurance Company. The court imposed the recommended sentence on July 9, 2002. Aguirre was ordered to pay restitution of $2,000 to Economy Enterprises and $32,562.47 to the insurance companies. Aguirre paid $4,000 soon thereafter and then began making monthly payments of $100 toward the balance.
{14} In June 2007, Aguirre completed the community-control portion of her sentence, but she had not yet met her restitution obligation.
{15} On January 12, 2012, Aguirre applied to have the record of her theft conviction sealed. The state objected, arguing that Aguirre was ineligible for
{16} The Tenth District Court of Appeals affirmed. It focused on three considerations that it found warranted sealing despite the restitution owed by Aguirre at the time.
{17} First, the appellate court relied on the notion that the “statutory provisions governing conviction expungement are remedial in nature and must be liberally construed.” State v. Aguirre, 10th Dist. Franklin No. 12AP-415, 2013-Ohio-768, 2013 WL 816547, 112, citing State v. Boddie, 170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, 18 (8th Dist.). Second, it noted that the creditor retains the same remedies it had “for collection of unpaid restitution * * * under
{18} The Tenth District certified that its decision was in conflict with the Eighth District‘s decision in State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 WL 587493 (May 31, 2001), which held that a trial court cannot seal an offender‘s record of conviction until that offender has finished paying court-ordered restitution to a third-party insurance company. Id. at *3.
The Eighth District: McKenney
{19} Penny McKenney pleaded guilty on February 17, 1988, to one count of grand theft. Her sentence included a suspended prison term, three years’ probation, and restitution. After the victim‘s insurance company reimbursed the victim for the cost of the stolen goods, McKenney agreed to a civil judgment against her in favor of the third-party insurer.
{110} McKenney made monthly payments to the insurance company, and when she applied for sealing of her record on October 15, 1999, she had paid half of the total owed. The trial court granted the motion to seal McKenney‘s record.
{111} The Eighth District Court of Appeals reversed. In doing so, it stated that McKenney had not satisfied the statutory prerequisites for eligibility to seal her record. It held that under
{112} In reaching this conclusion, McKenney relied upon established legal norms. The McKenney court first noted that “an offender is not finally discharged until she has served the sentence imposed by the court.” Id. at *2, citing State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (8th Dist.1999), and Willowick v. Langford, 15 Ohio App.3d 33, 34, 472 N.E.2d 387 (11th Dist.1984). And the appellate court concluded that “[r]estitution, as a condition of an offender‘s probation, is a part of the offender‘s sentеnce.” Id. It rejected McKenney‘s argument that because the victim had been made whole, the purpose of restitution had been satisfied. The court stated that the purpose of restitution is not merely to benefit the victim; restitution also is meant to punish the offender and contribute to the offender‘s rehabilitation. Id.
{113} The Eighth District‘s decision in McKenney is consistent with decisions by the Tenth District issued before Aguirre. State v. Jordan, 10th Dist. No. 07AP-584, 2007-Ohio-6383, 2007 WL 4216956 (application for sealing of reсord properly denied; restitution owed to Bureau of Workers’ Compensation had not been fully paid); In re White, 165 Ohio App.3d 288, 846 N.E.2d 93 (10th Dist.2006) (sealing application properly denied; applicant had not received final discharge because court-ordered restitution not paid).
{114} And even after Aguirre was decided, the Tenth District issued State v. Hoover, 10th Dist. Franklin Nos. 12AP-818 and 12AP-826, 2013-Ohio-3337, 2013 WL 3963460, containing the following passage:
The term “final discharge” is not defined by statute. Per case law, however, an offender is not finally discharged until he has served any sentence previously imposed by the court. * * * For example, this court and others have repeatedly held that final discharge under the [sealing] statute does not occur until court-ordered restitution has been satisfied.
Hoover at 17. But in Aguirre, the Tenth District departed from Jordan and White, without citing those cases, based on its apparent belief that certain
{115} We recognized the conflict certified by the Tenth District and agreed to answer the following question certified for our review: “Whether an offender‘s record of conviction may be sealed when the offender still owes court-ordered restitution to a third-party insurance company.” State v. Aguirre, 136 Ohio St.3d 1470, 2013-Ohio-3790, 993 N.E.2d 776. We аlso accepted the state‘s discretionary appeal on the following similar proposition: “A defendant/applicant who still owes restitution has not been finally discharged and is not eligible to seal her conviction, under
ANALYSIS
{116} Our analysis is driven by what we have held previously: “the sealing of a criminal record is a “privilege, not a right.“” ” State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, 115, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, 111, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, 16. Accord State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000); State v. Hamilton, 75 Ohio St.3d 636, 639-640, 665 N.E.2d 669 (1996). Suppression of a criminal record at the request of the offender is an ” “act of grace created by the state.” ” Boykin at 11 11, quoting Hamilton at 639, 665 N.E.2d 669. Accordingly, a court may seal an offender‘s conviction record “only when all requirements for eligibility are met.” Boykin, id., citing Futrall at 16.
{117} With that understanding in mind, we turn to the Tenth District‘s decision.
Statutory Construction
{118} The Tenth District misstated the standard to be applied by a trial court in determining an offender‘s eligibility to have her conviction record sealed. It quoted an Eighth District case that described the standаrd as follows: a ” “court must weigh the interest of the public‘s need to know as against the individual‘s interest in having the record sealed, and must liberally construe the statute so as to promote the legislative purpose of allowing expungements.” ” Aguirre, 2013-Ohio-768, 2013 WL 816547, at 11 13, quoting State v. Hilbert, 145 Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001). But the relevant statutory language makes clear that a court can apply this standard only after it has determined that “the applicant is an eligible offender.” See
{119} Ohio appellate courts, including the Tenth District, have repeatedly held that “[a]n offender is not finally discharged for purposes of
{120} Here, it is undisputed that Aguirre was sentenced by the trial court to pay restitution to her employer‘s insurance companies. Consequently, final discharge cannot occur until restitution is fully paid. Only then does the three-year waiting period in
{121} Aguirre concedes that she has yet to pay over $14,000 in court-ordered restitution to the third-party insurance companies. As we have noted, courts were permitted to ordеr restitution to third parties when Aguirre was sentenced in 2002. Therefore, as a matter of law, Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, 116, the trial court could not find that Aguirre had obtained the final discharge that is required to seal a conviction record pursuant to
Benefit of Public Record
{122) We also note that the Tenth District held that refusing to seal a record of conviction “is a continued punishment, with no benefit to a victim or private payer who is owed restitution.” 2013-Ohio-768, 2013 WL 816547, аt 1 17. Not so.
{123} We recognize that although the primary goal of restitution is remedial or compensatory, it also serves punitive purposes. Paroline v. United States, ___ U.S. ___, 134 S.Ct. 1710, 1726, 188 L.Ed.2d 714 (2014). But payment of court-ordered restitution is an obligation ” “rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” ” Pettis, 133 Ohio App.3d at 621, 729 N.E.2d 449, quoting Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), quoting In re Pellegrino, 42 B.R. 129, 133 (Bankr.D.Conn.1984). It thus serves both remedial and punitive purposes.
{124} A court is nоt imposing “continued punishment” by denying a premature application to seal an offender‘s record before the completion of restitution. Rather, the court is ensuring that both the punitive and remedial aspects of the restitution order are satisfied before the offender‘s sentence is sealed, in accordance with the statutory scheme. Compare
{125} To the extent that public policy might support the sealing of a criminal record before the offender pays all court-ordered restitution, implementation of that policy must occur at the legislative branch. See Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, 119 (refusing to create judicial exceptions to statutory provision and stating that an offender who pleaded guilty cannot not be declared wrongfully imprisoned). As the General Assembly has demonstrated through its statutory framework, it is clearly aware of these issues and is capable of enunciating its determination of which of the competing interests implicated here are best served by sealing a conviction record and at what point sealing shall be permitted. See Harmelin v. Michigan, 501 U.S. 957, 964, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), quoting Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (” “the length of the sentence actually imposed is purely a matter of legislative prerogative’ “); United States v. Jones, 131 U.S. 1, 19, 9 S.Ct. 669, 33 L.Ed. 90 (1889) (“Of course, our province is construction only; the policy of the law is the prerogative of the legislative department“). Indeed, the General Assembly‘s amendments to the statutory scheme for sealing records demonstrate its continued awareness of public-policy concerns, including both sealing and restitution. As we have stated previously:
The Ohio Legislature having dealt with the subject, and having made certain provisions and certain exceptions thereto, it will be presumed that the Legislature has exhausted the legislative intent, and that it has not intended the practice to be extended further than the plain import of the statutes already enacted.
Madjorous v. State, 113 Ohio St. 427, 433, 149 N.E. 393 (1925).
{126} Sealing Aguirre‘s conviction record before she is eligible ignores the extant and explicit statutory language restricting eligibility to those applicants who have obtained a final discharge and who have waited three years thereafter to apply for sealing. See
{1127) As we have said, sealing a conviction record is, first and foremost, an act of graсe. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, at 111. No court is ever required to seal conviction records. See
{128} An offender may apply to have his or her records sealed “at the expiration of three years after the offender‘s final discharge if convicted of a felony.”
CONCLUSION
{29} We answеr the certified question in the negative and, therefore, reverse the Tenth District‘s judgment. We hold that an offender does not attain a final discharge, and is thus ineligible to have his or her felony conviction records sealed under
{130} Because Aguirre still owes restitution in this case, she has not received a final discharge of her conviction and cannot have her records sealed. Accordingly, we remand the case to the trial court with instructions to vacate its prior judgment and conduct any additional proceedings consistent with this opinion.
O‘DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
Judgment reversed and cause remanded.
PFEIFER, J., dissents and would affirm the judgment of the court of appeals.
O‘NEILL, J., dissents.
{131} Respectfully, I dissent.
{132} The Ohio Revised Code entrusts trial courts with discretion to reduce the period of time for a community-control sanction or even to impose a less restrictive sanction where an offender, for a significant period of time, fulfills the conditions of a sanction in an exemplary manner.
{133} The majority opinion sees some difference between community-control sanctions and a restitution order, and I see none. It is a distinction without a difference.
{134} In light of the clear meaning of the community-control laws, this case is easily resolved. Other than the unpaid restitution, Ms. Aguirre‘s community-control sanctions were terminated on June 19, 2007. Thus, as required by
{135} As a broader policy matter, however, the criminal-justice system simply should not be utilized as the collections agent for private interests, and the legislature would seem to agree. 150 Ohio Laws, Part III, 3914 and 3922; see also State v. Johnson, 1st Dist. Hamilton No. C-100702, 2011-Ohio-5913, 2011 WL 5620184, 15 (“the legislature‘s intent to disallow payment to victims’ insurance companies is clear“). The common law recognized the civil cause of action for conversion as distinct from the criminal offense of theft precisely because the state and private parties stand in different shoes.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Barbara A. Farnbacher, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellee.