State v. Black , 2014 Ohio 4827 ( 2014 )

[Cite as State v. Black, 2014-Ohio-4827.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, :
No. 14AP-338
v. : (C.P.C. No. 13EP-792)
Daniel W. Black, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on October 30, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from an entry of the Franklin
County Court of Common Pleas granting the application of defendant-appellee, Daniel W.
Black, to seal the record of his prior conviction. Because the trial court erred in granting
appellee's application to seal his record when he still owed restitution, we reverse.
I. Facts and Procedural History
{¶ 2} On January 27, 2006, appellee was convicted of one count of theft, a fifth-
degree felony. As part of his sentence, the trial court imposed a period of community
control and ordered appellee to pay restitution in the amount of $1,330. Appellee's
community control was terminated February 11, 2008. Subsequently, on September 25,
2013, appellee filed an application for an order to seal the record of his conviction
pursuant to R.C. 2953.32.
No. 14AP-338 2
{¶ 3} During its investigation into appellee's application, the trial court's
investigator issued a report determining appellee still owed $966 in restitution at the time
he filed his application. After receiving the investigator's report, the state filed an
objection to appellee's application to seal the record of conviction on February 26, 2014,
arguing appellee's failure to pay restitution in full meant he had not yet received a "final
discharge" from his conviction within the meaning of R.C. 2953.32(A)(1).
{¶ 4} At a hearing on April 14, 2014, appellee agreed he still owed $966 in
restitution. The state reiterated its written objection that the trial court could not grant
the application until appellee paid the restitution in full. At the conclusion of the hearing,
the trial court determined appellee qualified as an eligible offender under R.C. 2953.32
and granted appellee's application. The trial court journalized its decision in an entry
dated April 16, 2014. The state timely appeals.
II. Assignments of Error
{¶ 5} The state assigns the following two assignments of error for our review:
[1.] The trial court lacked jurisdiction to seal the record of
conviction because the applicant still owes restitution.
[2.] The trial court abused its discretion in granting the
application to seal the record of conviction where it failed to
determine whether [appellee] had been satisfactorily
rehabilitated.
III. Standard of Review
{¶ 6} An appellate court generally reviews a trial court's disposition of an
application for an order sealing the record of conviction under an abuse of discretion
standard. State v. Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v.
Hilbert, 145 Ohio App.3d 824, 827 (8th Dist.2001). An abuse of discretion connotes more
than an error of law or judgment; it implies that the attitude of the trial court was
" 'unreasonable, arbitrary or unconscionable.' " Id., quoting Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983). However, where questions of law are in dispute, an appellate
court reviews the trial court's determination de novo. Id., citing State v. Derugen, 110
Ohio App.3d 408, 410 (3d Dist.1996).
No. 14AP-338 3
IV. First Assignment of Error – Restitution
{¶ 7} In its first assignment of error, the state argues the trial court lacked
jurisdiction to grant appellee's application. More specifically, the state asserts appellee
still owed restitution for his offense and thus had not received a "final discharge" under
R.C. 2953.32(A)(1).
{¶ 8} " '[E]xpungement is an act of grace created by the state,' and so is a
privilege, not a right." State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v.
Hamilton, 75 Ohio St.3d 636, 639 (1996). A court may grant expungement only when all
statutory requirements for eligibility are met. State v. Brewer, 10th Dist. No. 06AP-464,
2006-Ohio-6991, ¶ 5, citing In re White, 10th Dist. No. 05AP-529, 2006-Ohio-1346, ¶ 4-5.
{¶ 9} Pursuant to R.C. 2953.32(A)(1), "an eligible offender may apply to the
sentencing court * * * for the sealing of the record of the case that pertains to the
conviction." Further, where the offender was convicted of a felony, "[a]pplication may be
made at the expiration of three years after the offender's final discharge."
R.C. 2953.32(A)(1).
{¶ 10} The state asserts that, while appellee is an otherwise eligible offender within
the meaning of the statute, appellee has not made full restitution and, thus, has not
received a final discharge for purposes of the statute. Consistent with the state's position,
this court has repeatedly held that an offender who has not made full restitution has not
received a final discharge for purposes of R.C. 2953.32(A)(1). State v. Hoover, 10th Dist.
No. 12AP-818, 2013-Ohio-3337, ¶ 7 (stating "this court and others have repeatedly held
that final discharge under the statute does not occur until court-ordered restitution has
been satisfied"); State v. Black, 10th Dist. No. 12AP-375, 2012-Ohio-6029, ¶ 6 (noting the
offender had made only partial restitution and stating "[f]inal discharge under the statute
does not occur until restitution has been satisfied"); State v. Jordan, 10th Dist. No. 07AP-
584, 2007-Ohio-6383, ¶ 7 (concluding that where "it is undisputed that appellant had not
been finally discharged * * * because he had not paid the ordered restitution," appellant
thus "was not yet eligible to apply to seal his conviction records"); In re White, 165 Ohio
App.3d 288, 2006-Ohio-233, ¶ 7 (10th Dist.) (holding "[a]n offender is not finally
discharged for purposes of R.C. 2953.32(A)(1) if the offender still owes restitution").
No. 14AP-338 4
{¶ 11} The trial court nonetheless granted appellee's application even though the
parties did not dispute that appellee still owed restitution. In granting appellee's
application, the trial court relied on this court's decision in State v. Aguirre, 10th Dist. No.
12AP-415, 2013-Ohio-768 ("Aguirre I"). In Aguirre I, the offender was convicted of one
count of theft, a fourth-degree felony, and was sentenced to a period of community
control as well as ordered to pay $2,000 in restitution to the victim. The offender was
further ordered to pay the balance of $32,562.47 in restitution to two third-party
insurance companies. When the offender filed an application for expungement, the state
objected based on the offender's failure to satisfy her obligation to pay restitution. The
offender had paid the $2,000 restitution to the victim but had not yet satisfied the
restitution obligation to the two third-party insurance companies. The state conceded
that the offender had "completed all obligations owed to the state," but still argued
expungement was premature based on the money owed to the third parties. Id. at ¶ 6. In
affirming the trial court's granting of the application to seal the record of conviction, this
court determined that based on a liberal construction of the expungement statutes, the
offender had met all requirements for eligibility. Id. at ¶ 18. Aguirre I makes no mention
of this court's decisions in Black, Jordan, and White, all decided before Aguirre I.
{¶ 12} However, the Supreme Court of Ohio has since reversed this court's decision
in Aguirre I, holding that "[a]n offender does not attain a final discharge, and is thus
ineligible to have his or her felony conviction records sealed under R.C. 2953.32(A)(1),
until she has paid all court-ordered restitution." State v. Aguirre, ___ Ohio St.3d ___,
2014-Ohio-4603, syllabus ("Aguirre II"). The Supreme Court noted this court's decision
in Aguirre I represented a departure from this court's precedent and reiterated that "final
discharge cannot occur until restitution is fully paid." Id. at ¶ 20. Only after restitution
has been fully paid "does the three-year waiting period in R.C. 2953.32(A)(1) commence
to run, and only after the expiration of that period may" an offender ordered to pay
restitution have his or her record sealed. Id.
{¶ 13} Accordingly, based on the Supreme Court's decision in Aguirre II, and this
court's decisions in Hoover, Black, Jordan, and White, we conclude that because appellee
still owed restitution at the time he filed his application, he had not yet received a final
discharge and thus was not eligible to have the record of his conviction sealed. Because
No. 14AP-338 5
the trial court erred in granting appellee's application to seal his record, we sustain the
state's first assignment of error. Our disposition of the state's first assignment of error
renders the state's second assignment of error moot.
V. Disposition
{¶ 14} Based on the foregoing reasons, the trial court erred in granting appellee's
application to seal the record of his conviction when appellee had not yet satisfied the
court-ordered restitution. Having sustained the state's first assignment of error which
rendered moot the state's second assignment of error, we reverse the judgment of the
Franklin County Court of Common Pleas and remand the matter to the trial court with
instructions to deny appellee's application.
Judgment reversed;
cause remanded with instructions.
BROWN and CONNOR, JJ., concur.