State v. Aguirre

Decision Date22 October 2014
Docket NumberNos. 2013–0870,2013–0876.,s. 2013–0870
Citation144 Ohio St.3d 179,41 N.E.3d 1178,2014 Ohio 4603
Parties The STATE of Ohio, Appellant, v. AGUIRRE, Appellee.
CourtOhio Supreme Court

Ron O'Brien, Franklin County Prosecuting Attorney, and Barbara A. Farnbacher, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellee.


{¶ 1} Under Ohio law, a court may seal an eligible offender's felony conviction record upon an "[a]pplication * * * made at the expiration of three years after the offender's final discharge." R.C. 2953.32(A)(1). In this appeal, we resolve a conflict between the Eighth and Tenth Appellate Districts over whether an offender has secured a "final discharge" to pursue sealing pursuant to R.C. 2953.32(A)(1) when she has not finished paying court- ordered restitution to a third-party insurance company. We note, however, that the conflict arises from a former version of Ohio's restitution statute, R.C. 2929.18(A)(1), which permitted a court to award restitution to third parties, including insurers. See former R.C. 2929.18(A)(1), 148 Ohio Laws, Part III, 5767, 5785 (an order of restitution "may include a requirement that reimbursement be made to third parties for amounts paid to or on behalf of the victim or any survivor of the victim for economic loss resulting from the offense"). The General Assembly removed that language from the restitution statutes, effective June 1, 2004. 150 Ohio Laws, Part III, 3914 (deleting language from R.C. 2929.18(A)(1) for felonies) and 3922 (deleting language from R.C. 2929.28(A)(1) for nonfelonies). Given these deletions, "the legislature's intent to disallow payment to victims' insurance companies is clear." State v. Johnson, 1st Dist. Hamilton No. C–100702, 2011-Ohio-5913, 2011 WL 5620184, ¶ 5. In cases in which sentencing occurs after June 1, 2004, "[a] court may not order a defendant to pay restitution to a victim's insurance company." Baldwin's Ohio Practice, Criminal Law, Section 119:6 (2013). Thus, that portion of our analysis dealing with restitution to third parties is limited to cases in which an offender was sentenced prior to June 1, 2004.

{¶ 2} We hold that a trial court may not seal an offender's record before the offender has completed all sentencing requirements, including any order to make restitution to third parties. Because our holding rejects the analysis adopted by the Tenth District Court of Appeals in this case, and because appellee, Sharlene Aguirre, concedes that she still owes restitution to two third-party insurance companies, we reverse the appellate court's judgment and remand this case to the Franklin County Court of Common Pleas.

The Tenth District: Aguirre

{¶ 3} On May 22, 2002, Aguirre pleaded guilty to one count of theft, a fourth-degree felony, for stealing money to pay her gambling debts. The prosecution and defense jointly recommended a sentence of five years of community control, plus restitution to be paid to Aguirre's former employer, Economy Enterprises, Inc., and two of its insurance companies, Westfield Insurance and Harleysville Insurance Company. The court imposed the recommended sentence on July 9, 2002. Aguirre was ordered to pay restitution of $2,000 to Economy Enterprises and $32,562.47 to the insurance companies. Aguirre paid $4,000 soon thereafter and then began making monthly payments of $100 toward the balance.

{¶ 4} In June 2007, Aguirre completed the community-control portion of her sentence, but she had not yet met her restitution obligation.

{¶ 5} On January 12, 2012, Aguirre applied to have the record of her theft conviction sealed. The state objected, arguing that Aguirre was ineligible for sealing under R.C. 2953.32 until she paid the full amount of restitution.1 Although the trial court recognized that Aguirre had not satisfied her obligation to make restitution, it nevertheless granted Aguirre's application to seal her record because the restitution was "ordered to an insurance company and [Aguirre] paid a substantial portion" of the total.2

{¶ 6} The Tenth District Court of Appeals affirmed. It focused on three considerations that it found warranted sealing despite the restitution owed by Aguirre at the time.

{¶ 7} First, the appellate court relied on the notion that the "statutory provisions governing conviction expungement are remedial in nature and must be liberally construed." State v. Aguirre, 10th Dist. Franklin No. 12AP–415, 2013-Ohio-768, 2013 WL 816547, ¶ 12, citing State v. Boddie, 170 Ohio App.3d 590, 2007-Ohio-626, 868 N.E.2d 699, ¶ 8 (8th Dist.). Second, it noted that the creditor retains the same remedies it had "for collection of unpaid restitution * * * under R.C. 2929.28." Id. at ¶ 14; see also id. at ¶ 16, 18. Third, the appellate court concluded that "denying expungement is a continued punishment, with no benefit to a victim or private payer who is owed restitution." Id. at ¶ 17.

{¶ 8} The Tenth District certified that its decision was in conflict with the Eighth District's decision in State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 WL 587493 (May 31, 2001), which held that a trial court cannot seal an offender's record of conviction until that offender has finished paying court-ordered restitution to a third-party insurance company. Id. at *3.

The Eighth District: McKenney

{¶ 9} Penny McKenney pleaded guilty on February 17, 1988, to one count of grand theft. Her sentence included a suspended prison term, three years' probation, and restitution. After the victim's insurance company reimbursed the victim for the cost of the stolen goods, McKenney agreed to a civil judgment against her in favor of the third-party insurer.

{¶ 10} McKenney made monthly payments to the insurance company, and when she applied for sealing of her record on October 15, 1999, she had paid half of the total owed. The trial court granted the motion to seal McKenney's record.

The court determined that McKenney had made complete restitution because she had permitted the insurer to obtain a civil judgment against her, and more than three years had passed since the end of McKenney's probation.

{¶ 11} The Eighth District Court of Appeals reversed. In doing so, it stated that McKenney had not satisfied the statutory prerequisites for eligibility to seal her record. It held that under R.C. 2953.32(A)(1), she could apply to have her conviction record sealed only after three years had expired since her final discharge. The Eighth District concluded that a final discharge for the purposes of sealing a record requires full payment of restitution.

{¶ 12} In reaching this conclusion, McKenney relied upon established legal norms. The McKenney court first noted that "an offender is not finally discharged until she has served the sentence imposed by the court." Id. at *2, citing State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (8th Dist.1999), and Willowick v. Langford, 15 Ohio App.3d 33, 34, 472 N.E.2d 387 (11th Dist.1984). And the appellate court concluded that "[r]estitution, as a condition of an offender's probation, is a part of the offender's sentence." Id . It rejected McKenney's argument that because the victim had been made whole, the purpose of restitution had been satisfied. The court stated that the 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. Id.

{¶ 13} The Eighth District's decision in McKenney is consistent with decisions by the Tenth District issued before Aguirre . State v. Jordan, 10th Dist. No. 07AP–584, 2007-Ohio-6383, 2007 WL 4216956 (application for sealing of record properly denied; restitution owed to Bureau of Workers' Compensation had not been fully paid); In re White, 165 Ohio App.3d 288, 846 N.E.2d 93 (10th Dist.2006) (sealing application properly denied; applicant had not received final discharge because court-ordered restitution not paid).

{¶ 14} And even after Aguirre was decided, the Tenth District issued State v. Hoover, 10th Dist. Franklin Nos. 12AP–818 and 12AP–826, 2013-Ohio-3337, 2013 WL 3963460, containing the following passage:

The term "final discharge" is not defined by statute. Per case law, however, an offender is not finally discharged until he has served any sentence previously imposed by the court. * * * For example, this court and others have repeatedly held that final discharge under the [sealing] statute does not occur until court-ordered restitution has been satisfied.

Hoover at ¶ 7. But in Aguirre, the Tenth District departed from Jordan and White , without citing those cases, based on its apparent belief that certain considerations may justify excusing the applicant from completing court-ordered restitution. The court also did not cite R.C. 2953.32(A)(1) or address its requirement that the applicant must obtain a "final discharge" as a condition of eligibility.

{¶ 15} We recognized the conflict certified by the Tenth District and agreed to answer the following question certified for our review: "Whether an offender's record of conviction may be sealed when the offender still owes court-ordered restitution to a third-party insurance company." State v. Aguirre, 136 Ohio St.3d 1470, 2013-Ohio-3790, 993 N.E.2d 776. We also accepted the state's discretionary appeal on the following similar proposition: "A defendant/applicant who still owes restitution has not been finally discharged and is not eligible to seal her conviction, under R.C. 2953.32(A)(1)." 136 Ohio St.3d 1472, 2013-Ohio-3790, 993 N.E.2d 777.


{¶ 16} Our analysis is driven by what we have held previously: "the sealing of a criminal record is a "privilege, not a right." " State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 15, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, ¶ 11, quoting State v....

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