2020-Ohio-4663
Ohio Ct. App. 10th
2020

State of Ohio v. [D.D.F.]

No. 20AP-10

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

September 29, 2020

2020-Ohio-4663

DORRIAN, J.; NELSON, J., concurs; BRUNNER, J., dissents.

(C.P.C. No. 06CR-6313); (ACCELERATED CALENDAR)

D E C I S I O N

Rendered on September 29, 2020

On brief: Ron O‘Brien, Prosecuting Attorney, and Daniel J. Stanley, for appellee.

On brief: Blaise Katter, for appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, D.D.F., appeals the December 4, 2019 judgment entry of the Franklin County Court of Common Pleas which denied appellant‘s application to seal the record of her conviction. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On August 23, 2006, a Franklin County Grand Jury filed an indictment charging appellant with a single count of theft in violation of R.C. 2913.02, a felony of the fifth degree. On July 17, 2007, appellant entered a plea of guilty to the offense as charged in the indictment. In the entry of guilty plea, which was signed by appellant, appellant‘s counsel, and the assistant prosecuting attorney, the parties agreed to a joint recommended sentence of community control with restitution in the amount of $1,590, of which $200 had already been paid. Further, the parties agreed that “[i]f [appellant] is statutorily eligible and [i]f [appellant] successfully completes community control and has no other violations of the law, the state will not oppose expungement after the statutory period [appellant] is statutorily eligible.” (Guilty Plea at 1.)

{¶ 3} In a judgment entry filed November 8, 2007, the trial court accepted appellant‘s plea, found her guilty of the charged offense, and imposed sentence. The trial court imposed a five-year period of community control, ordered appellant to maintain verifiable employment, and ordered appellant to pay court costs in the amount of $297 and restitution to Huntington National Bank in the amount of $1,390. Furthermore, the court ordered appellant to pay restitution and court costs in the amount of $25 per month beginning January 7, 2008, stating that “if [appellant] misses two (2) payments in a row she is to be arrested and set up for revocation.” (Jgmt. Entry at 2.)

{¶ 4} On September 11, 2012, a court probation officer filed a request for revocation of probation. In the request, the probation officer asserted that appellant: (1) failed to report to the probation department as scheduled on multiple occasions, (2) failed to maintain employment since being placed on community control, (3) failed to make 15 monthly payments toward costs and restitution, (4) entered pleas of guilty in two cases in Chillicothe Municipal Court, and (5) admitted to leaving Ohio without permission on two occasions. On October 9, 2012, the trial court filed an entry finding appellant to be in violation of community control. The court ordered appellant to serve ten weekends in jail and provided appellant‘s restitution obligation was a civil judgment. On January 7, 2013, the trial court filed a judgment entry finding appellant had not complied with the terms of her community control and discharging her from community control.

{¶ 5} On September 25, 2019, appellant filed an application for order sealing record of conviction pursuant to R.C. 2953.32(A). On October 31, 2019, plaintiff-appellee, State of Ohio, filed an objection to appellant‘s application to seal her record of conviction. On December 3, 2019, the trial court held a hearing on appellant‘s application. On December 4, 2019, the trial court filed an entry denying appellant‘s application to seal her record of conviction.

II. Assignment of Error

{¶ 6} Appellant appeals and assigns the following sole assignment of error for our review:

THE TRIAL COURT ERRED BY FINDING THE APPELLANT WAS NOT ELIGIBLE TO HAVE HER RECORD OF CONVICTION SEALED PURSUANT TO R.C. 2953.32.

III. Analysis

{¶ 7} In Ohio, the sealing of a record of conviction is a two-step process.1 First, a court must make a legal determination as to whether the applicant is an “eligible offender” under the pertinent statute. Compare R.C. 2953.32 with 2953.52. A court may grant an application to seal a record of conviction only to an “eligible offender” who meets all the statutory requirements, including whether the applicant has waited the statutorily prescribed amount of time prior to filing the application. State v. Young, 10th Dist. No. 19AP-49, 2019-Ohio-3161, ¶ 10; State v. Paige, 10th Dist. No. 15AP-510, 2015-Ohio-4876, ¶ 8.

{¶ 8} Here, appellee filed an application to seal her records under R.C. 2953.32. R.C. 2953.32(A)(1), which governs the waiting periods prior to filing an application for sealing of a record of conviction, provides in pertinent part as follows:

[A]n eligible offender may apply to the sentencing court * * * for the sealing of the record of the case that pertains to the conviction. Application may be made at one of the following times:

(a) At the expiration of three years after the offender‘s final discharge if convicted of one felony;

(b) When division (A)(1)(a) of section 2953.31 of the Revised Code applies to the offender, at the expiration of four years after the offender‘s final discharge if convicted of two felonies, or at the expiration of five years after final discharge if convicted of three, four, or five felonies;

(c) At the expiration of one year after the offender‘s final discharge if convicted of a misdemeanor.

Thus, in determining whether appellant is an eligible offender, a court must first consider whether he or she has obtained a final discharge and, if so, whether the statutorily prescribed amount of time has elapsed since final discharge. An “offender is not permitted even to file the application unless he or she satisfies those two prerequisites.” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, ¶ 18.

{¶ 9} R.C. 2953.31(A)(1) defines “eligible offender” as follows:

(a) Anyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offenses are an offense of violence or a felony sex offense and all of the offenses in another jurisdiction, if committed in this state, would be felonies of the fourth or fifth degree or misdemeanors and none of those offenses would be an offense of violence or a felony sex offense;

(b) Anyone who has been convicted of an offense in this state or any other jurisdiction, to whom division (A)(1)(a) of this section does not apply, 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)(1)(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.

If an applicant is not an eligible offender, a trial court lacks jurisdiction to grant the application. State v. Dominy, 10th Dist. No. 13AP-124, 2013-Ohio-3744, ¶ 6. The question of “[w]hether an applicant is an ‘eligible offender’ for purposes of an application to seal the record of a conviction is an issue that we review de novo.” A.L.M. at ¶ 9.

{¶ 10} Second, if the court finds the applicant to be an eligible offender, it must use its discretion to: (1) consider objections, if any, raised by the prosecutor, and (2) weigh the interests of the applicant to seal the record against the legitimate needs, if any, of the government to maintain those records. R.C. 2953.52(B)(2)(c) and (d). We apply an abuse of discretion standard when reviewing a trial court‘s resolution of these issues. Paige at ¶ 5, citing State v. Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 6. An abuse of discretion occurs when a court‘s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 11} R.C. 2953.32(B) provides that a prosecutor may object to the granting of the application by filing an objection, including therein the reasons for believing a denial of the application is justified, with the court prior to the date set for the hearing on the application. If the trial court finds the applicant to be an eligible offender and, using its discretion, finds the other statutory factors support sealing the records of conviction, the trial court “shall order all official records of the case that pertain to the conviction * * * sealed.” (Emphasis added.) R.C. 2953.32(C)(2). “Statutes providing for the sealing of records ‘are remedial and are, therefore, to be construed liberally to promote their purpose and assist the parties in obtaining justice.’ ” C.L.H. at ¶ 14, quoting State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 11, citing State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999), citing R.C. 1.11. See Barker v. State, 62 Ohio St.2d 35, 42 (1980). But see Aguirre at ¶ 18.

{¶ 12} Here, appellant‘s arguments concern only the first step of the analysis, i.e. whether appellant is an eligible offender meeting all statutory requirements. Specifically, appellant argues the trial court erred in determining she had not waited the statutorily prescribed amount of time from final discharge prior to filing her application. Appellant argues she received final discharge from the trial court on January 7, 2013 when the trial court terminated her community control, despite the fact that she did not complete payment of the restitution until September 2019. In support of this argument, she argues the trial court‘s entry on October 9, 2012, which provided for restitution to be a civil judgment, rendered the restitution obligation to be no longer part of the criminal sentence and, therefore, not relevant in determining the date of final discharge.

{¶ 13} R.C. 2929.18(A) provides a trial court with authority to impose “financial sanctions” including “[r]estitution by the offender to the victim of the offender‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss.” R.C. 2929.18(D) provides in pertinent part as follows:

A financial sanction of restitution imposed pursuant to division (A) (1) or (B)(8) of this section is an order in favor of the victim of the offender‘s criminal act that can be collected through a certificate of judgment as described in division (D)(1) of this section, through execution as described in division (D)(2) of this section, or through an order as described in division (D)(3) of this section, and the offender shall be considered for purposes of the collection as the judgment debtor. * * * Once the financial sanction is imposed as a judgment or order under this division, the victim, private provider, state, or political subdivision may do any of the following:

(1) Obtain from the clerk of the court in which the judgment was entered a certificate of judgment that shall be in the same manner and form as a certificate of judgment issued in a civil action[.]

{¶ 14} The term “final discharge” is not defined in the Ohio Revised Code but has been construed through caselaw to have occurred when “an offender has served all components of the sentence, including the satisfaction of restitution.” State v. J.L., 10th Dist. No. 19AP-91, 2020-Ohio-3466, ¶ 13. The Supreme Court of Ohio has held that “final discharge cannot occur until restitution is fully paid. Only then does the * * * waiting period in R.C. 2953.32(A)(1) commence to run, and only after the expiration of that period may [the applicant seek] to have her record sealed.” Aguirre at ¶ 20. See State v. C.L.W., 10th Dist. No. 18AP-658, 2019-Ohio-1965, ¶ 10. “When restitution is owed, discharge from community control does not effect a final discharge for purposes of R.C. 2953.32(A)(1).” Aguirre at ¶ 19.

{¶ 15} In J.L., we reviewed a trial court‘s decision granting an application to seal records of conviction. The trial court found final discharge occurred when the applicant‘s community control was terminated, even though the applicant still owed restitution at the time the application was filed. Id. at ¶ 17. We disagreed, finding that the termination of community control did not operate as a final discharge because the restitution obligation had not been satisfied. Furthermore, we found the trial court‘s prior order converting the restitution obligation into a civil judgment had no effect on final discharge because “[w]hether ordered in the original judgment or a subsequently obtained certificate of judgment, the recompense to the victim remains unsatisfied.” Id. at ¶ 18.

{¶ 16} In this case, the trial court found that “there is a difference between terminating from community control versus discharging them from their obligations for purposes of expungement.” (Tr. at 9.) Because appellant had not fulfilled her restitution obligation until September 2019, the trial court found that the requisite period of time had not elapsed before appellant filed her application.

{¶ 17} Here, as in J.L., we cannot find appellant was eligible to file her application to seal the record of her conviction pursuant to R.C. 2953.32 because three years had not elapsed between final discharge and appellant‘s application for order sealing the record of conviction. The trial court‘s October 9, 2012 entry which provided that appellant‘s “[r]estitution of $1,312 is now a civil judgment” pursuant to R.C. 2929.18(D)(1) did not satisfy appellant‘s restitution obligation. (Entry.) Rather, the trial court‘s order “merely provide[d] a way of collecting a financial sanction by obtaining a certificate of judgment in the same manner and form as a certificate of judgment in a civil case.” J.L. at ¶ 18. Therefore, because appellant had not satisfied her restitution obligation at the time the trial court issued its January 7, 2013 order terminating appellant‘s community control as unsuccessful, such order cannot constitute final discharge. Aguirre at ¶ 19.

{¶ 18} Although appellant‘s single conviction occurred over 12 years ago and the trial court found appellant was “a good candidate” for sealing of records, we are nevertheless constrained by the waiting periods prescribed by statute and the definition of “final discharge” as construed by this court and the Supreme Court. (Tr. at 9.) Pursuant to R.C. 2953.32(A)(1)(a), because appellant was convicted of a single felony, she was required to wait to apply until the “expiration of three years after * * * final discharge.” Here, appellant claims she did not complete restitution payments until September 2019, the same month in which she filed her application to seal the record of her conviction. As the statutorily prescribed three-year waiting period had not elapsed at the time appellant filed her application, she was not qualified to seek sealing of the record of her conviction. J.L. at ¶ 21. Therefore, we find the trial court did not err in denying appellant‘s application. Accordingly, we overrule appellant‘s sole assignment of error.

IV. Conclusion

{¶ 19} Having overruled appellant‘s sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

NELSON, J., concurs.

BRUNNER, J., dissents.

BRUNNER, J., dissenting.

{¶ 20} I respectfully dissent from the decision of the majority because D.D.F.‘s restitution order was converted into a civil judgment more than five years before she filed an application to seal her criminal records. D.D.F filed her application on September 25, 2019, more than five years after the legally required waiting period under R.C. 2953.32(A)(1)(b).

{¶ 21} The majority relies on our holding in a case in which I also dissented, State v. J.L., 10th Dist. No. 19AP-91, 2020-Ohio-3466. For the reasons relating to the legal status of a restitution order converted to a civil judgment, as existed in J.L., I dissent in D.D.F.‘s appeal. I do not believe we got it right in J.L. because converting a criminal restitution order to a civil judgment eliminates its existence as an unsatisfied condition of community control.

{¶ 22} While D.D.F.‘s situation is somewhat different than that of the applicant in J.L., the issue of the converted restitution order is the same in both cases. I would sustain D.D.F.‘s assignment of error and remand D.D.F.‘s application to the trial court with instructions that D.D.F. is an eligible offender and to consider the other factors necessary to granting or denying D.D.F.‘s application to seal her record of this single fifth-degree felony theft offense.

{¶ 23} When the restitution order as a criminal sanction of community control was ordered converted to a civil judgment and D.D.F. was discharged from community control on January 7, 2013, there was no unsatisfied restitution order pending.2 ” ‘[A]n offender is not finally discharged until [she] has served any sentence previously imposed by the court.’ ” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, ¶ 14, quoting State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7. In my view, if the trial court modifies the terms of community control to convert restitution to a civil judgment before discharging the offender from supervision, regardless of whether it was satisfactory or unsatisfactory termination, it has removed restitution as part of the “sentence previously imposed by the court.” Hoover at ¶ 7.

{¶ 24} The terms of R.C. 2929.18(D) regarding converting restitution to a civil judgment are specific. And post-probation, a converted civil judgment causes the former probationer to become a judgment debtor, subject to collection through the typical statutory collection means.3 More important, however, unpaid restitution converted to a civil judgment is still evidence subject to a trial court‘s discretionary review on an application to seal criminal records under R.C. 2953.32(C) such that, if an applicant has not paid the civil judgment, the trial court may find him or her not to be rehabilitated to the court‘s satisfaction4 and/or not to hold the applicant‘s interests outweigh the State‘s or the public‘s interests against sealing the criminal records.

{¶ 25} For the reasons stated, I would find there is no unsatisfied portion of D.D.F.‘s criminal sentence because restitution was converted to a civil judgment, and D.D.F. was discharged from the criminal sanction (community control) more than five years before she filed her application for the sealing of her criminal records. I would therefore sustain D.D.F.‘s sole assignment of error and reverse the trial court‘s decision under a de novo standard of review.

{¶ 26} Accordingly, I would remand the case with instructions that D.D.F. is an eligible offender and that the trial court must consider the other factors necessary to determine whether it must grant D.D.F.‘s application to seal her criminal record, weighing the evidence at the hearing and making the factual findings about the extent of D.D.F.‘s rehabilitation, and the weighing of relative interests as required by R.C. 2953.32(C).

Notes

1
We note that ” ‘[i]n Ohio, “expungement” remains a common colloquialism used to describe the process of sealing criminal records pursuant to statutory authority.’ ” State v. A.L.M., 10th Dist. No. 16AP-722, 2017-Ohio-2772, ¶ 11, quoting State v. Nichols, 10th Dist. No. 14AP-498, 2015-Ohio-581, ¶ 8, citing State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 11. See State v. C.L.H., 10th Dist. No. 18AP-495, 2019-Ohio-3786.
2
However, the trial court, after having ordered D.D.F. to serve ten weekends in jail as a condition of having violated her community control, terminated her community control, finding she had not complied with its terms. The trial court could take this into account on remand in making its determination of whether D.D.F. has successfully been rehabilitated, as an eligible offender.
3
“A financial sanction of restitution imposed pursuant to division (A)(1) * * * of this section is an order in favor of the victim of the offender‘s criminal act that can be collected through a certificate of judgment as described in division (D)(1) of this section, through execution as described in division (D)(2) of this section, or through an order as described in division (D)(3) of this section, and the offender shall be considered for purposes of the collection as the judgment debtor.” R.C. 2929.18(D).
4
There also must be a finding that no criminal proceeding is pending against the applicant.