State v. ChudakoffState v. Chudakoff
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 30, 2020
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee.
Valore & Gordillo L.L.P., and Matthew O. Williams, for appellant.
PATRICIA ANN BLACKMON, J.:
{¶ 1} Deborah Chudakoff (“Chudakoff”) appeals from the trial court’s denial of her motion to seal record and assigns the following error for our review:
The trial court erred in holding that civil settlement of cognovit notes executed upon termination of a term of community control to cover
outstanding restitution obligation does not create “final discharge” for purposes of sealing the criminal record pursuant to R.C. 2953.32 .
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court’s judgment. The apposite facts follow.
{¶ 3} On December 26, 2008, Chudakoff pled guilty to three counts of aggravated theft in violation of
{¶ 4} On August 16, 2013, the court terminated Chudakoff’s community control sanctions. On August 20, 2013, three cognovit notes were filed with the court. The three notes are dated August 8, 2013, and they were prepared by the Cuyahoga County Court of Common Pleas Probation Department. Each note is in the amount of $91,628.82 and lists Chudakoff as the defendant. The first note lists American Wholesale as the victim, the second note lists CitiMortgage Inc., as the victim, and the third note lists Saxon Mortgage as the victim.
{¶ 6} On June 5, 2019, Chudakoff filed supplemental exhibits, which included a partially executed settlement and release agreement with CitiMortgage and an unexecuted settlement and release agreement with Bank of America.
{¶ 7} The court denied Chudakoff’s motion, specifically finding as follows: “The court’s order was to pay a total of $273, 960.00 in restitution. Defendant failed to pay anything toward restitution for a number of years and has attempted to settle the restitution outside the authority of the court. This does not comply with the order to pay restitution. The request for sealing the record is denied.”
{¶ 8} We review a trial court’s decision on a motion to seal record for an abuse of discretion. State v. Krutowsky, 8th Dist. Cuyahoga No. 81545, 2003-Ohio-1731, ¶ 10 (“Every applicant * * * is not entitled to have his record expunged. * * * The trial court has considerable discretion when weighing the applicant’s interests [against] the government’s interest”). However, “the interpretation of
{¶ 9} Pursuant to
whether the applicant is an “eligible offender”; whether criminal proceedings are pending against the applicant; and whether the applicant has been rehabilitated to the satisfaction of the court. The court must then “consider the reasons against granting the application specified by the prosecutor” and weigh the applicant’s interests in having the records sealed versus the government’s needs, if any, for maintaining those records.
State v. T.S., 8th Dist. Cuyahoga No. 102648, 2017-Ohio-7395, ¶ 8. See also
{¶ 11} For an eligible offender to have his or her record sealed, final discharge of the conviction must have occurred. “Final discharge occurs where all obligations imposed by the court are completed.” State v. Alimi, 8th Dist. Cuyahoga No. 77890, 2000 Ohio App. LEXIS 5604 (Nov. 30, 2000). The Ohio Supreme Court has held that, for the purposes of
{¶ 12} In the case at hand, Chudakoff argues that “civil settlement of cognovit notes executed in satisfaction of a restitution obligation finally discharges the obligation.” There does not appear to be any case law in Ohio in support of, or against for that matter, this proposition of law. In State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (1999), this court found that signing a cognovit note was insufficient to find that full restitution had been made. This court reasoned that a cognovit note was akin to a promissory note, which is not considered “payment in
{¶ 13} The case at hand is different than Pettis in that Pettis dealt with the signing of a cognovit note, and here, we are dealing with the alleged “settlement” of a cognovit note. Nevertheless, there is insufficient evidence in the record to support Chudakoff’s allegation that the restitution order in her case was satisfied. For example, it is unclear if Chudakoff paid money to the named victims, and if she did, when that occurred. One would need the date that the restitution was fully paid — assuming all other terms of her sentence had been served — to calculate the expiration of the three-year waiting period required by
{¶ 14} Although we are able to envision a scenario where the settlement of a cognovit note satisfies restitution ordered as part of a criminal sentence, the facts of the case at hand are not exemplary. Chudakoff failed to show that she was an eligible offender or that three years had passed after the expiration of her final discharge of conviction. Thus, we are able to conclude that the court acted within its discretion
{¶ 15} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR