State v. Penny Mckenney, 01-LW-2084

• Decision Date: 31 May 2001
• Docket Number: 79033,01-LW-2084
• Parties: STATE OF OHIO, Plaintiff-Appellant v. PENNY McKENNEY, Defendant-Appellee
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellant v. PENNY McKENNEY, Defendant-Appellee

No. 79033

01-LW-2084 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

May 31, 2001

Criminal appeal from Common Pleas Court Case No. CR-220467

For Plaintiff-Appellant: WILLIAM D. MASON, Cuyahoga County Prosecutor, LISA REITZ WILLIAMSON, Ass't, 1200 Ontario Street, Cleveland, Ohio 44113

For Defendant-Appellee: ROBERT A. DIXON, ESQ., 1280 West 3rd Street, Ste. 100, Cleveland, Ohio 44113

OPINION

COLLEEN CONWAY COONEY, J.:

This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court, and the parties' briefs.

Plaintiff-appellant State of Ohio appeals the trial court's decision granting defendant-appellee's motion for order to seal records of conviction and arrest record. For the reasons below, we reverse.

On February 17, 1988, defendant-appellee Penny McKenney pleaded guilty to one count of grand theft in violation of R.C 2913.02. The court sentenced McKenney to a suspended eighteen-month prison term and ordered her to serve three years probation. The court also ordered McKenney to pay restitution.

Subsequent thereto, the victim, Tedrich Furniture Company received payment for the full amount of the stolen items from its insurer, Motorist Mutual Insurance Company. McKenney then agreed to a civil judgment against her in favor of the insurer.

On October 15, 1999, after her three-year term of probation ended, McKenney filed a motion pursuant to R.C. 2953.32 asking the trial court to seal the record of her conviction. The trial court, noting that McKenney has permitted the victim's insurer to obtain a civil judgment against her, determined that McKenney made complete restitution and granted the motion to seal the record. This appeal followed.

The State's sole assignment of error argues that:

I. A TRIAL COURT ERRS IN ORDERING CRIMINAL RECORDS SEALED PURSUANT TO R.C. 2953.32 ET SEQ. WHEN THE DEFENDANT-APPLICANT IS NOT FINALLY DISCHARGED UNDER R.C. 2953.32 (A)(1) FOR THE REASON THAT SHE HAS NOT PAID IN FULL RESTITUTION AS ORDERED BY THE TRIAL COURT AS A CONDITION OF HER PROBATION.

Relying on our decisions in State v. Wainwright (1991), 75 Ohio App.3d 793, 600 N.E.2d 831, and State v. Pettis (May 6, 1999), Cuyahoga App. No. 74989, unreported, the State argues that because McKenney failed to pay complete restitution as required by her sentence, she is not entitled to have her record expunged. McKenney argues that because the victim, Tedrich Furniture Company, has been made whole by its insurer, her obligation to pay restitution has been satisfied. McKenney further argues that said obligation has been satisfied because the insurer has a civil money judgment against her towards which she has been making monthly payments and has paid half of the total amount owed.

R.C. 2953.32 provides in part that:

(A)(1) *** [A] first offender may apply to the sentencing court *** for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony ***.

***

(C)(2) If the court determines *** that the applicant is a first offender ***, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant's conviction *** sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is a first offender *** has been attained to the satisfaction of the court, the court ***, shall order all official records pertaining to the case sealed ***.

In order for R.C. 2953.32 to apply, McKenney has to have been discharged for at least three years. However, an offender is not finally discharged until she has served the sentence imposed by the court. See Willowick v. Langford (1984), 15 Ohio App.3d 33, 34, 472 N.E.2d 387; Pettis.

Restitution, as a condition of an offender's probation, is a part of the offender's sentence. See, R.C. 2951.02(C). McKenney has not fully paid restitution as ordered by the terms of her probation and therefore has failed to meet a condition of her sentence. See, Wainright, supra. Thus, the court erred in sealing the record of McKenney's conviction because she had not been finally discharged as required by R.C. 2953.32.

The factual situation addressed in Pettis is nearly identical to the case at hand. The trial court sentenced Pettis to probation and ordered her to pay restitution. Pettis signed a cognovit note for the amount of restitution at the time she was sentenced. When Pettis applied to have the record of her conviction sealed, the trial court granted Pettis' motion to seal the record, finding that by signing the cognovit note, she had fully discharged her restitution obligations. We reversed, finding that Pettis had not been finally discharged until she paid full restitution, and that the trial court erred by granting the motion to seal the record of Pettis' conviction. Pettis; see also, Wainwright.

Here in making its decision, the trial court...