In re S.S. ( 2023 )

[Cite as In re S.S., 2023-Ohio-4197.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: S.S. : APPEAL NO. C-230075
TRIAL NO. 03-11091X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: November 22, 2023
Raymond T. Faller, Hamilton County Public Defender, and Jessica R. Moss, Assistant
Public Defender, for Appellant S.S.,
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Appellee State of Ohio.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Nearly 20 years after his last juvenile adjudication, S.S. applied to seal
and expunge 18 juvenile records. In the case subject to this appeal, the court denied
sealing and expungement solely due to unpaid restitution arising from the underlying
adjudication. However, because a juvenile court lacks jurisdiction to enforce unpaid
juvenile restitution orders after the person turns 21, unpaid restitution is only
probative of that person’s rehabilitation up until the age of 21. In re I.J., 1st Dist.
Hamilton No. C-220553, 2023-Ohio-2024, ¶ 14-15. Because the juvenile court did not
have the benefit of our intervening opinion in In re I.J. (and thus improperly relied on
unpaid juvenile restitution in assessing S.S.’s present rehabilitation), we reverse its
judgment and remand this cause for reconsideration in light of In re I.J. and this
opinion.
I.
{¶2} In April 2022, at the age of 35, S.S. applied to seal and expunge records
of 18 juvenile cases. At a hearing before a juvenile court magistrate, S.S. explained
that he had obtained his GED, had earned an Electrical Technician Certification from
Kaplan College, and was actively paying child support and other financial obligations.
He now works full-time as a service technician for an ATM maintenance and repair
company and noted that sealing and expungement would aid his career by helping him
access certain facilities for installations and repairs. After the court raised the issue of
$400 in outstanding restitution on one case, S.S. indicated that he was willing to make
payments towards it within 90 days. Opposing S.S.’s applications, the state
emphasized S.S.’s “lengthy misdemeanor record” as an adult, listing 14 misdemeanor
convictions including drug and paraphernalia possession charges and thefts from 2013
to 2018. S.S. attributed his adult record to his struggle with drug addiction from 2012
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OHIO FIRST DISTRICT COURT OF APPEALS
until 2018 and told the court he has been sober for more than four years now and had
successfully completed drug court. The magistrate explained, “I want to grant the
expungement and sealing,” but continued the case for three months “to see if you can
make some payments on the restitution.”
{¶3} The $400 restitution order in question arose from an August 2003
juvenile adjudication, the case numbered 03-11091X, in which S.S. admitted to a
charge that would have been a misdemeanor theft if he had been charged as an adult.
The parties agree that he was ordered to pay restitution to the victim and never did.
In August 2022, after a second sealing hearing continuance, S.S. told the magistrate
that he still had been unable to pay anything, citing unexpected car expenses, other
financial obligations, and his indigent status. S.S. also pointed out the juvenile court’s
lack of jurisdiction to collect any restitution funds since he is now over 21 years old.
Citing his unpaid restitution, the magistrate denied the application for expungement
but did not enter a decision on the sealing application. The magistrate did not specify
whether expungement was denied just for the restitution case or for all 18 cases.
{¶4} S.S. objected regarding all 18 cases, arguing to the juvenile court that
the magistrate erred by rejecting his applications and relying on the unpaid restitution.
He also objected to the court’s jurisdiction to enforce unpaid restitution. In response,
the state highlighted S.S.’s adult criminal record and defended the magistrate’s
reliance on unpaid restitution by pointing to the “other circumstances” factor under
R.C. 2151.356(C)(2)(e), the statute for assessing rehabilitation for the purpose of
juvenile record sealing. In January 2023, the juvenile court denied S.S.’s objection in
an entry in case 03-11091X only. Seeing “no guidance in the law regarding payment
of restitution and sealing a record,” the court decided “since S.S. did not attempt to
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OHIO FIRST DISTRICT COURT OF APPEALS
pay his restitution his record should not be sealed or expunged.” However, soon after
entering its judgment, the court sent a notice letter to S.S. providing that his
application to seal or expunge records had been granted. The notice listed all 18 cases
and did not specify individual dispositions. S.S. now appeals the juvenile court’s
judgment denying sealing and expungement of case 03-11091X.
II.
{¶5} In his sole assignment of error, S.S. objects to the juvenile court’s denial
of sealing and expungement of his record in case 03-11091X on various grounds.
Essentially, he objects to the juvenile court’s finding of a lack of rehabilitation,
challenging the court’s reliance on his unpaid juvenile restitution in its calculus.
{¶6} Apart from some provisions requiring automatic record sealing and
expungement, juvenile record sealing is “a privilege, not a right.” See State v. Dixon,
1st Dist. Hamilton No. C-220234, 2023-Ohio-587, ¶ 6; R.C. 2151.356(B)(1)
(mandating record sealing in some situations); R.C. 2151.358(A) (requiring
expungement five years after sealing or upon person’s 23rd birthday). Even so,
statutes governing sealing and expungement are fundamentally remedial and are to
be liberally construed. See State v. A.S., 2022-Ohio-3833, 199 N.E.3d 994, ¶ 7 (1st
Dist.). “The purpose of sealing a record of conviction is to recognize that people may
be rehabilitated.” Id. at ¶ 7, citing State v. Petrou, 13 Ohio App.3d 456, 456, 469
N.E.2d 974 (9th Dist.1984). Appellate courts review a trial court’s judgment regarding
sealing and expunging records under an abuse of discretion standard unless the
dispute involves a purely legal question. State v. Floyd, 2018-Ohio-5107, 126 N.E.3d
361, ¶ 4 (1st Dist.). Abuse of discretion occurs when “a court exercis[es] its judgment,
in an unwarranted way, in regard to a matter over which it has discretionary
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OHIO FIRST DISTRICT COURT OF APPEALS
authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d
463, ¶ 35. When the court’s judgment involves an “ ‘erroneous interpretation of the
law,’ ” we review its decision de novo. State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-
5590, 918 N.E.2d 497, ¶ 6, quoting Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d
181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.
{¶7} A juvenile court may grant record sealing “if it finds that the person has
been rehabilitated to a satisfactory degree.” R.C. 2151.356(C)(2)(e). In making that
determination, the court may consider the applicant’s age, education, employment
history, whether they have continued or ceased unruly or criminal activity, the nature
of the case for which sealing is sought, classification under the juvenile offender
registry, and “any other circumstances that may relate to the rehabilitation of the
person.” R.C. 2151.356(C)(2)(e)(i)-(vi). It may not, however, consider unpaid juvenile
restitution as probative of the applicant’s rehabilitation after the age of 21 when they
apply for sealing as an adult. In re I.J., 1st Dist. Hamilton No. C-220553, 2023-Ohio-
2024, at ¶ 11-14. After a court grants sealing, expungement occurs either automatically
by law or in the court’s discretion by application. See R.C. 2151.358.
{¶8} Turning to the rationale for the juvenile court’s conclusion that S.S. was
not rehabilitated, we encounter a familiar problem: the juvenile court’s reliance on
unpaid juvenile restitution as the motivating factor for denying sealing and
expungement of juvenile records when the person applies as an adult. Earlier this
year, we reviewed a juvenile court’s decision to deny sealing and expungement in just
1 case out of 46 where the primary distinguishing factor in the denied case was unpaid
juvenile restitution. In re I.J. at ¶ 11-14 (concluding that the applicant’s age, adult
record, and education and employment history were the same across all 46 cases and
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OHIO FIRST DISTRICT COURT OF APPEALS
that the nature of the offense (breaking and entering) insufficiently differentiated it
from the rest). Rejecting a comparison to unpaid restitution in the adult record sealing
context, we concluded that a juvenile court may not properly consider unpaid juvenile
restitution to determine whether an adult is presently rehabilitated for the purposes
of sealing and expunging their juvenile records. Id. at ¶ 14-15. To the extent unpaid
juvenile restitution may constitute “[a]ny other circumstances” relating to an
applicant’s rehabilitation under R.C. 2151.356(C)(2)(e)(vi), the court could only
consider it as probative of the applicant’s rehabilitation when they turned 21 or earlier.
Id. at ¶ 14.
{¶9} Indeed, a juvenile court loses jurisdiction to enforce juvenile restitution
orders against a child upon their 21st birthday. R.C. 2152.203(F) (“The [juvenile]
court retains jurisdiction over the restitution order until [the child] attains twenty-one
years of age.”). At that time, “ ‘any dispositional order that the juvenile court makes,
including an order of restitution, terminates by operation of law.’ ” (Emphasis
deleted.) In re I.J. at ¶ 14, quoting In re J.Z., 6th Dist. Huron No. H-11-003, 2012-
Ohio-1105, ¶ 11. At least until recently, this jurisdictional problem left juvenile courts
in somewhat of a bind: if the restitution remained outstanding after the juvenile’s 21st
birthday, no court seemed to have the power to enforce any unpaid juvenile restitution
thereafter.
{¶10} The Ohio General Assembly apparently recognized this problem in
enacting R.C. 2152.203(F), which took effect in April 2023. Under that statute, “if [a
restitution] order remains unpaid in full, * * * a court order for restitution imposed
under this section shall be reduced to a civil judgment in favor of the victim prior to
the termination of the court’s jurisdiction upon [the child’s] attainment of twenty-one
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OHIO FIRST DISTRICT COURT OF APPEALS
years of age.” R.C. 2152.203(F). After that point, “the civil judgment obligation
continues to be enforceable by a victim * * * until the obligation is satisfied.” Id. In
effect, this statute gives county and municipal courts jurisdiction to enforce civil
judgments converted from unpaid juvenile restitution orders that otherwise terminate
by law upon the child’s 21st birthday.
{¶11} This legislative fix reinforces our conclusion in In re I.J. that a juvenile
court cannot assess an applicant’s current rehabilitation as an adult in light of an
unpaid juvenile restitution order that legally terminated upon the applicant’s 21st
birthday, In re I.J., 1st Dist. Hamilton No. C-220553, 2023-Ohio-2024, at ¶ 14,
because juvenile courts lose jurisdiction over unpaid juvenile restitution orders upon
the child’s 21st birthday. R.C. 2152.203(F) (providing for unpaid juvenile restitution
orders to be converted into civil judgments “prior to the termination of the court’s
jurisdiction upon [the child’s] attainment of twenty-one years of age. * * * The court
retains jurisdiction over the restitution order until [the child] attains twenty-one years
of age.”). Indeed, the civil judgment conversion mechanism identified in R.C.
2152.203(F) tackles this jurisdictional problem, identifying a means by which victims
and courts may continue to pursue and enforce the offender’s obligation after the
juvenile court’s jurisdiction expires. But absent such a conversion order breathing new
life into the obligation after the offender turns 21, an unpaid juvenile restitution order
is enforceable by no court. See id. Thus, this new statute does not disturb, and in fact
reinforces, our holding that juvenile courts cannot rely on unpaid juvenile restitution
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OHIO FIRST DISTRICT COURT OF APPEALS
as a proxy for determining an adult’s rehabilitation under R.C. 2151.356. Id.; In re I.J.
at ¶ 14-15.1
{¶12} Here, before this court issued its decision in In re I.J., the juvenile court
denied sealing and expungement in case 03-11091X based solely on S.S.’s $400 unpaid
restitution in that case. Despite S.S.’s significant evidence of rehabilitation, including
favorable education and employment history, completion of drug court programming,
and lack of criminal record since 2018, the court denied sealing and expungement
without discussing those factors. In line with our holding in In re I.J., we hold that
the trial court erred in using unpaid juvenile restitution as a proxy for deciding
whether an applicant for sealing and expungement was presently rehabilitated as an
adult.2 See In re I.J. at ¶ 14-15. Because we cannot determine from the record how
the juvenile court would have weighed S.S.’s positive rehabilitation evidence against
any negative evidence excluding the unpaid juvenile restitution, remand for its
reconsideration of S.S.’s applications in light of our holding in In re I.J. is appropriate.
1 This court recently decided another appeal of a juvenile court’s denial of sealing and expungement
of a set of juvenile cases. In re J.D., 1st Dist. Hamilton Nos. C-220564, C-220565, C-220566, C-
220567, C-220568 and C-220569, 2023-Ohio-3581. Although the court did not fault the juvenile
court in that case for referencing the applicant’s unpaid juvenile restitution (among several distinct
factors weighing against a finding of rehabilitation) in its decision to deny sealing and
expungement, its discussion of restitution is dicta because the court ultimately affirmed the juvenile
court on the grounds that J.D. presented inadequate evidence to support his rehabilitative efforts.
Id. at ¶ 17. A majority of this full court agreed, declining to rehear the juvenile restitution issue (or
to potentially question In re I.J.) en banc. Therefore, In re J.D. does not disturb the holding here
or in In re I.J. on the issue of unpaid juvenile restitution.
2 The record is unclear on whether the juvenile court ordered the sealing and expungement of S.S.’s
17 other cases. Because S.S. appeals only the court’s denial of sealing and expungement in case 03-
11091X, and because the court sent notice to S.S. that his applications were granted, we can fairly
conclude that his other 17 cases were sealed and expunged. If so, the record lacks evidence of how
the court differentiated those cases from case 03-11091X. See In re I.J. at ¶ 14-15 (holding that the
trial court’s denial of sealing and expungement in one case was erroneous because it was
insufficiently dissimilar from 45 other cases in which sealing and expungement were granted).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} To the extent the court may have based its decision on S.S.’s
representations during the hearings that he would attempt to pay the restitution, at
least in part, we hold that failure to make new payments on a terminated,
unenforceable restitution order cannot bear on an applicant’s rehabilitation under
R.C. 2151.356 and 2151.358. Endorsing such a rationale would, in effect, empower the
juvenile court to extract nonenforceable payments in exchange for sealing and
expungement. Under such a system, courts would reserve the fresh start that sealing
and expungement afford only to those with the means to pay for it.
{¶14} Therefore, in accordance with In re I.J. and Ohio’s juvenile record
sealing and expungement statutes, the juvenile court erred as a matter of law in
denying sealing and expungement of case 03-11091X based on S.S.’s unpaid juvenile
restitution order.
* * *
{¶15} Ultimately, we sustain S.S.’s sole assignment of error because the
juvenile court erred in assessing his present rehabilitation based on his failure to make
payments on an unpaid juvenile restitution order that terminated upon his 21st
birthday. We reverse the judgment of the trial court and remand this cause for
reconsideration in light of In re I.J. and this opinion.
Judgment reversed and cause remanded.
Kinsley, J., concurs.
Zayas, P.J., dissents.
Zayas, P.J., dissenting.
{¶16} “Judicial policy preferences may not be used to override valid legislative
enactments.” State v. Smorgala, 50 Ohio St.3d 222, 223, 553 N.E.2d 672 (1990),
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OHIO FIRST DISTRICT COURT OF APPEALS
superseded by statute on other grounds as stated in State v. Mayl, 106 Ohio St.3d
207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 54. This court must respect the fact that the
constitutional authority to legislate and to make policy decisions are the sole province
of the General Assembly. See Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-
Ohio-546, 883 N.E.2d 377, ¶ 212. Contrary to the majority’s opinion, the plain and
unambiguous language of the juvenile sealing statute authorizes a juvenile court to
consider “any other circumstances that may relate to the rehabilitation of the person
who is the subject of the records under consideration,” determine the weight to be
given that factor, and ultimately grant or deny the application “if it finds that the
person has been rehabilitated to a satisfactory degree.” R.C. 2151.356(C)(2)(e).
Because the majority inserts its own policy-making preferences into the statute while
simultaneously limiting a juvenile court’s broad discretionary power in record-sealing
determinations, I respectfully dissent.
{¶17} The sealing of juvenile cases is governed by R.C. 2151.356, which states
in relevant part:
the court may order the records of the person that are the subject of the
motion or application to be sealed if it finds that the person has been
rehabilitated to a satisfactory degree. In determining whether the
person has been rehabilitated to a satisfactory degree, the court may
consider all of the following:
(i) The age of the person;
(ii) The nature of the case;
(iii) The cessation or continuation of delinquent, unruly, or criminal
behavior;
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OHIO FIRST DISTRICT COURT OF APPEALS
(iv) The education and employment history of the person;
***
(vi) Any other circumstances that may relate to the rehabilitation of the
person who is the subject of the records under consideration.
R.C. 2151.356(C)(2)(e).
{¶18} The juvenile court “may” seal the records if it determines the applicant
has been satisfactorily rehabilitated, but is not required to do so. See id. In
determining rehabilitation, the court “may consider any other circumstances that may
relate to rehabilitation.” Id. The legislature affords juvenile courts broad discretion
in determining rehabilitation. See In re H.S., 2020-Ohio-4530, 159 N.E.3d 344, ¶ 23
(11th Dist.).
{¶19} Here, S.S. was adjudicated for a theft of property that resulted in an
economic loss to the victim of $400. As part of his disposition, S.S. was ordered to pay
restitution to the victim. At that time, S.S. was notified of the obligation in a letter that
also notified him that, “no record is eligible for sealing unless and until the full amount
has been paid.” The letter also informed S.S. that his “parents can also be sued in a
civil action for damages caused by their children.” At the hearing, S.S. acknowledged
the outstanding $400 obligation and represented to the court that he could and would
pay the debt, yet he did not meet that obligation and ultimately made no payments
toward restitution.
{¶20} In denying the application, the juvenile court considered the statutory
factors and found “since S.S. did not attempt to pay his restitution, his record should
not be sealed or expunged.” In reaching this determination, the court recognized that
victims have the right to restitution, see Article I, Section 10a(A)(7), Ohio Constitution,
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OHIO FIRST DISTRICT COURT OF APPEALS
and determined that, “Sealing and expunging the case before any restitution is paid
prioritizes the defendant child’s rights over the victim and their need to be made
whole. * * * When the court makes an order for restitution, the victim should expect
that the order will be followed.”
{¶21} In reaching its decision, the juvenile court considered the statutory
factors, made factual conclusions supported by the record, and determined, in its
discretion, that S.S. was not satisfactorily rehabilitated. Instead of affirming the
juvenile court’s proper exercise of its discretionary judgment, the majority rewrites the
statute to achieve its desired result.
{¶22} First, it determines, without examining the plain language of the statute,
that the juvenile court may not “consider unpaid juvenile restitution as probative of
the applicant’s rehabilitation after the age of 21 when they apply for sealing as an
adult.” To support this legal proposition, the majority cites to In re I.J., 1st Dist.
Hamilton No. C-220553, 2023-Ohio-2024, at ¶ 11-14. A review of I.J. reveals a
complete lack of authority to support that sweeping conclusion. The majority
disregards the plain language of the statute granting the juvenile court broad
discretion to consider any factor it deems relevant to an applicant’s rehabilitation. See
R.C. 215.356(C)(2)(e).
{¶23} “[T]he 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.” State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178,
¶ 12, citing State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 Ohio App. LEXIS
2424, 2 (May 31, 2001). Restitution contributes to rehabilitation, and therefore, “may
relate” to rehabilitation as contemplated by R.C. 2151.356(C)(2)(e)(iv). See id.12
OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Conceding that restitution “may relate” to rehabilitation, the majority
limits the weight to be given that factor by rewriting the statute to declare that unpaid
restitution may only be considered “as probative of the applicant’s rehabilitation when
they turned 21 or earlier.” Again, the majority relies on I.J., which pronounced this
rule of law devoid of supporting authority for this limitation. The majority concludes
that unpaid restitution cannot be considered when determining an applicant’s
“current rehabilitation” because the order terminates when the child turns 21, and the
court can no longer enforce the order. However, the jurisdiction of the juvenile court
to enforce the order is irrelevant because the obligation to pay the restitution does not
terminate when the child turns 21. See R.C. 2152.203(F) (“A restitution obligation
imposed by a court does not expire until paid in full.”); Aguirre at ¶ 28 (“While
community control sanctions end after five years, R.C. 2929.15(A)(1), the obligation to
pay restitution does not expire due to the passage of time.”).
{¶25} Moreover, if the legislature had intended to limit the weight to be given
unpaid restitution, it would have said so. We should not “add those words by judicial
fiat. See Clark v. Scarpelli, 91 Ohio St.3d 271, 291, 744 N.E.2d 719 (2001) (Cook, J.,
dissenting) (‘the role of a court is not to decide what the law should say; rather, the
role of this court is to interpret what the law says as it has been written by the General
Assembly.’ [emphasis sic]).” Hulsmeyer v. Hospice of Southwest Ohio, Inc., 142 Ohio
St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 27. “Because the General Assembly is
the final arbiter of public policy, judicial policy preferences may not be used to override
valid legislative enactments.” State ex rel. Tritt v. State Emp. Relations Bd., 97 Ohio
St.3d 280, 2002-Ohio-6437, 779 N.E.2d 226, ¶ 17.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Here, the juvenile court found that S.S.’s records should not be sealed
because “S.S. did not attempt to pay his restitution.” The court prioritized the victim’s
right to restitution over the juvenile’s privilege to have his record sealed. See In re
C.L., 8th Dist. Cuyahoga No. 104661, 2017-Ohio-7253, ¶ 7, citing State v. Simon, 87
Ohio St.3d 531, 533, 721 N.E.2d 1041 (2000), quoting State v. Hamilton, 75 Ohio St.3d
636, 639, 665 N.E.2d 669 (1996) (The sealing of a juvenile record is “an act of grace
created by the state, and so is a privilege, not a right.”).
{¶27} The payment of the restitution obligation is intended, in part, to
rehabilitate the offender. See Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d
1178, at ¶ 23 (“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.”). Thus, the failure to honor the obligation “may relate” to rehabilitation
until the obligation is fulfilled, and the juvenile court “may consider” the unpaid
restitution under R.C. 2151.356(C)(2)(e)(iv). The plain language of the statute does
not prohibit the juvenile court from considering unpaid restitution or limit the weight
the juvenile court may place on the unpaid restitution.
{¶28} Accordingly, the juvenile court did not abuse its discretion in denying
the application to seal, and I would affirm the judgment of the trial court.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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