Stаte of Ohio, Plaintiff-Appellant, v. [J.L.], Defendant-Appellee.
No. 19AP-91 (C.P.C. Nos. 06CR-6393, 07CR-3357)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 25, 2020
2020-Ohio-3466
BROWN, J.
(REGULAR CALENDAR)
Rendered on June 25, 2020
On brief: Ron O‘Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellant. Argued: Valerie B. Swanson.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals a decision of the Franklin County Court of Common Pleas entered on February 12, 2019, in which it granted the application for order sealing record of conviction filed by J.L., defendant-аppellee.
{¶ 2} On August 24, 2006, a Franklin County Grand Jury indicted J.L. for one count of receiving stolen property and one count of burglary in case No. 06CR-6393. J.L. was initially granted diversion, but diversion was set aside after a second indictment issued in May 2007 in case No. 07CR-3357. The second indictment alleged identity fraud, misuse of credit, theft, safecracking of his parents’ lockbox to obtain a credit card stored there, and three counts of forgery.
{¶ 3} J.L. ultimately entered guilty pleas in both cases. In case No. 06CR-6393, he pled guilty to burglary as a fourth-degree felony on July 24, 2007. In case No. 07CR-
{¶ 4} On May 22, 2009, J.L.‘s three-year period of community control was extended for another two years by agreement with a new termination date set for August 14, 2012.
{¶ 5} On July 19, 2012, the probation department requested revocation in case No. 07CR-3357 on grounds J.L. had paid only $799 of the restitution order and still owed $3,201. On August 24, 2012, the trial court heard the probation department‘s request for revocation of J.L.‘s community control in case No. 07CR-3357. At the hearing, the trial court found J.L. had violated probation but determined to discharge him, noting unsuccessful completion, rather than to revoke probation and impose a prison term. In the August 24, 2012 criminal case processing sheet, the court ordered that community control be terminated as unsuccessful and that restitution be reduced to a civil judgment against J.L. No party sought an aрpeal to challenge the conversion of restitution to a civil judgment. On August 27, 2012, the trial court issued an order terminating probation as unsuccessful in case No. 07CR-3357. During this same period, on July 25, 2012, the trial court issued an entry finding J.L. had fully complied with the terms of his probation in case No. 06CR-6393 and discharged him successfully with respect to that case.
{¶ 6} Six years later, on November 30, 2018, J.L. filed an application for order sealing the record in both case Nos. 06CR-6393 and 07CR-3357. The state objected on the ground that J.L. was ineligible with respect to case No. 07CR-3357 due to the fact he had not paid full court-ordered restitution. At a hearing on January 25, 2019, J.L.‘s father and mother testified they were the victims of the forgery crimes in case No. 07CR-3357. J.L., while involved with drugs and criminal associates, had broken into his parents’ lockbox, stolen their credit card, and used it without authorization. J.L.‘s father testified that J.L. was doing better and that, as of the time of the hearing, he and his wife had a
{¶ 7} After hearing arguments of counsel on whether to seal J.L.‘s criminal records based on the evidence, the trial court determined that the matter hinged on a single legal issue: еligibility timing. Because more than five years had elapsed since J.L.‘s discharge from probation, J.L.‘s defense counsel argued that a sealing could be granted immediately, particularly in light of his parents’ forgiveness of restitution. The state, however, argued that final discharge had not occurred until the previously ordered restitution in the 2007 case was paid or forgiven аnd, thus, the statutory waiting period had not begun to run until the date when restitution forgiveness had been established, which was at the hearing on J.L.‘s application for order sealing record on January 25, 2019. The trial court took the matter under advisement.
{¶ 8} On February 9, 2019, the trial court reconvened for another hearing at which it heard further argument and announced its decision. The trial сourt determined that J.L. was an “eligible offender” under
THE TRIAL COURT LACKED JURISDICTION TO SEAL THE RECORD OF CONVICTION BECAUSE THE APPLICANT STILL OWES RESTITUTION, AND EVEN IF THE RESTITUTION ORDER WERE MODIFIED, APPLICANT HAS NOT COMPLIED WITH THE STATUTORY WAITING PERIOD.
{¶ 10} The state‘s arguments in this case concern only the first step—whether J.L. is an “eligible offender” and has waited the requisitе period of time to apply, according to the definition of “eligible offender” in
Anyone who has been convicted of one or more offenses, but not more than five felonies, * * * if all of the offenses * * * 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[.]
{¶ 11} According to the records in this case, J.L. has been convicted of three fourth-degree felonies: two counts of forgery and one count of burglary, now called trespass in a habitation. None of these is an offense of violence or a felony sex offense. See, e.g.,
{¶ 12} “[A]n eligible offender may apply to the sentencing court * * * for the sealing of the record of the case that pertains to the conviction * * * at the expiration of five years after final discharge if convicted of three, four, or five felonies.”
{¶ 13} “Final discharge” is not defined by the Ohio Revised Code, but it has been extensively discussed and defined in case law. Both this court and the Supreme Court of Ohio have consistently defined final discharge to mean that an offender has served all components of the sentence, including the satisfaction of restitution. State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, syllabus; C.L.W. at ¶ 10, citing Aguirre at ¶ 19; In re White, 165 Ohio App.3d 288, 2006-Ohio-233, ¶ 7 (10th Dist.), citing State v. Wallace, 8th Dist. No. 79669 (Dec. 6, 2001); State v. Pettis, 133 Ohio App.3d 618, 619-20 (8th Dist.1999); State v. Wainwright, 75 Ohio App.3d 793, 795 (8th Dist.1991); State v. Gainey, 10th Dist. No. 14AP-583, 2015-Ohio-3119, ¶ 11, citing State v. Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 10; State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7; State v. Jordan, 10th Dist. No. 07AP-584, 2007-Ohio-6383, ¶ 7; In re White at ¶ 7; Pettis at 619. These holdings are founded on the rationale that restitution is generally considered a part of a sentence with both remedial and punitive purposes. Aguirre at ¶ 23, citing Paroline v. United States, 572 U.S. 434 (2014).
{¶ 14}
Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
(1) Restitution 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.
{¶ 15} The Supreme Court has stated “final discharge cannot occur until restitution is fully paid. Only then does the * * * waiting period in
{¶ 16} The state relies on Aguirre to argue that J.L. applied too soon for the sealing of his records. At the hearing on J.L.‘s application for order sealing records, the state
{¶ 17} In granting J.L.‘s application for order sealing rеcord, the trial court found that the victims, J.L.‘s parents, had forgiven the outstanding restitution and requested the court and state not pursue any further payment of the restitution. The court also found that the July 25, 2012 community control termination order in case No. 06CR-6393 acted as a final discharge. The court concluded that, based on these circumstances, J.L. had waited the requisite statutory period of five years before filing his November 30, 2018 application for order sealing record.
{¶ 18} However, we do not find J.L. qualified for the sealing of his record pursuant to
{¶ 19} As for the trial court‘s finding that “final discharge” had occurred in the present case because the victims, J.L.‘s parents, had forgiven the outstanding restitution and requested the court and state not pursue any further payment of the restitution, this finding was improper. Although the judgment entry did not specify to whom restitution was owed, the court‘s handwritten August 17, 2007 disposition sheet indicated it should be paid to “National City Bank.” The August 27, 2007 restitution order also specified “National City Bank” as the party to receive restitution. Thus, only National City Bank could forgive the payment of restitution. As only Nаtional City Bank could forgive the payment of restitution, the trial court‘s reliance upon J.L.‘s parents’ forgiveness to support a finding that there was a “final discharge” was improper.
{¶ 20} We note that, at the time of the trial court‘s decision in the present case, this court had previously determined a bank that reimburses its customer for financial loss is not a “victim” for рurposes of
{¶ 21} Therefore, based on the above findings, we find J.L. was not an eligible offender who timely filed his application for order sealing record. An eligible offender may apply for sealing of the record at the expiration of five years after final discharge. Here, J.L. filed an application for аn order sealing his record on November 30, 2018. Because his discharge from community control in the August 24 processing sheet, August 27 probation termination order, and July 25, 2012 probation termination order did not act as final discharges due to his failure to fully satisfy the restitution order, the five-year waiting period required by
{¶ 22} Accordingly, the state‘s single assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed.
Judgment reversed.
LUPER SCHUSTER, J., concurs.
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
{¶ 23} I respectfully dissent from the decision of the majority because J.L.‘s restitution obligation was not legally imposed in the first place.1 I dissent also because J.L.‘s restitution order was ordered to be converted into a civil judgment more than five years before he filed an application to seal criminal records, with J.L.‘s November 2018 sealing application having been filed after the legally required waiting period under
{¶ 24} There are at least two obvious problems with the State‘s approach. First, there was no valid restitution ordered.
{¶ 25} Under Aguirre, ” ‘an offender is not finally discharged until he has served any sentence previously imposed by the court.’ ” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, ¶ 23, quoting State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7. If the trial court modifies the terms of community control to convert restitution to a civil judgment before discharging the offender from supervision, it has removed restitution as part of the “sentence previously imposed by the court.” Hoover at ¶ 7. It should be noted that the terms of
{¶ 26} These problems exist within the context of the State‘s limited assignment of error, that being, whether J.L. is an eligible offender who timely filed his application to seal his criminal records.3 The State seeks only that we determine whether the trial court committed error in its exercise of jurisdiction in determining that J.L. was an eligible offender who timely filed his application to seal. If we agree with the State, we invalidate the trial court‘s decision as voidable on direct appeal. State v. Smith, 10th Dist. No. 06AP-1059, 2007-Ohio-2873, ¶ 15; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 24. If we disagree, and I do, we would find that the trial court did properly exercise its jurisdiction. Here, the ultimatе determination of the proper exercise of jurisdiction by the trial court hinges on whether restitution either ever existed or whether it existed at the time J.L. was released from supervision on August 24, 2012.
{¶ 27} For the reasons stated, I would find there is no unsatisfied portion of J.L‘s criminal sentence because (1) the restitution order cannot exist as restitution when