State v. Pettis, 74989.

Citation133 Ohio App.3d 618,729 NE 2d 449
Decision Date17 May 1999
Docket NumberNo. 74989.,74989.
CourtUnited States Court of Appeals (Ohio)
PartiesThe STATE of Ohio, Appellant, v. PETTIS, Appellee.

L. Christopher Frey, Cuyahoga County Assistant Prosecuting Attorney, for appellant.

Carlos Warner, Cuyahoga County Assistant Public Defender; Barbara Pettis, pro se.

Per Curiam.

This matter is before the court upon reconsideration of this panel's previous opinion, released February 18, 1999, and vacated February 25, 1999.

In 1988, defendant Barbara Pettis pleaded guilty to theft and trafficking in food stamps. The court suspended a one-year prison term and ordered defendant to serve three years of probation. The court also ordered defendant to pay $20,396 in restitution. In 1998, after completing her probation, defendant filed a motion pursuant to R.C. 2953.32, asking the court to seal the record of her conviction.

The state objected and, citing our decision in State v. Wainwright (1991), 75 Ohio App.3d 793, 600 N.E.2d 831, argued that defendant failed to pay complete restitution as required by her sentence because she had a $15,108 balance on the restitution owed. Defendant told the court she had paid $250 a month for three years (the term of her probation) and believed the restitution applied only to her probationary period—that once she completed the three years' probation she did not owe any more money. The court, noting defendant had signed a cognovit note at the time of her sentencing, determined that defendant made complete restitution and granted the motion to seal the record. This appeal followed.

An offender may have a record of conviction sealed three years "after the offender's final discharge if convicted of a felony." See R.C. 2953.32(A)(1). An offender is not finally discharged until she has served any sentence previously imposed by the court. See Willowick v. Longford (1984), 15 Ohio App.3d 33, 34, 15 OBR 55, 56, 472 N.E.2d 387, 388. The sentence imposed by the court includes the terms of probation. R.C. 2951.02(C) provided:

"In the interests of doing justice, rehabilitating the offender, and insuring his good behavior, the court may impose additional requirements on the offender, including * * * requiring the offender to make restitution * * * for all or part of the value of the property that is the subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that the person committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension." (Emphasis added.) See 140 Ohio Laws, Part I, 583, 604.

Because defendant had not fully paid restitution as ordered by the terms of her probation, the court could not seal the record of her conviction pursuant to R.C. 2953.32 because she had not been "finally discharged" as required by the statute. In Wainwright, supra, we addressed an identical fact situation. The trial court sentenced Wainwright to probation and ordered him to pay restitution. When Wainwright applied to have the record of his conviction sealed less than three years after completing full restitution, the trial court granted Wainwright's motion to seal the record of his conviction. We reversed, finding that Wainwright had not been finally discharged until he paid full restitution and that the trial court erred by granting the motion to seal the record of Wainwright's conviction less than three years after making full restitution. Id., 75 Ohio App.3d at 795, 600 N.E.2d at 831-832.

The added wrinkle in this case is that defendant signed a cognovit note for the amount of restitution at the time she was sentenced. The record suggests this is the practice in the welfare department and the court, having otherwise noted our decision in Wainwright, apparently thought the cognovit note a sufficient promise of payment to find that full restitution had been made at the time of sentencing.

The flaw with the court's position is that a promissory note cannot be considered "payment in full" sufficient to constitute a final discharge under R.C. 2953.32. A promissory note is nothing more than the promise to pay in the future—by definition, the holder of a promissory note is not paid until the holder actually receives payment pursuant to the terms of the note. Until the holder of a note actually has payment in hand, the debt cannot be considered to be discharged.

Defendant claims that the state is using its opposition to the motion to seal the record of conviction as a means of enforcing the cognovit note, and that this means of enforcement is arguably illegal in itself because debt collectors are barred from using criminal proceedings to compel payment of civil debts. We believe defendant has the argument backwards—the state is not trying to collect the civil debt, but merely trying to prevent a record of conviction from being improperly sealed. Indeed, insofar as the record in this case shows, the outstanding debt appears to have been largely forgotten until defendant sought to have her record of conviction sealed. The record suggest that the state made no effort to collect the remaining amount due on defendant's restitution, and defendant herself made no effort to pay the restitution after her probation expired, a fact made clear by her own admission.

Defendant did not initially remember signing a...

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18 cases
  • State v. Aguirre, s. 2013–0870
    • United States
    • United States State Supreme Court of Ohio
    • 22 Octubre 2014
    ..."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 ......
  • State v. S.E.
    • United States
    • United States Court of Appeals (Ohio)
    • 12 Abril 2018
    ...for purposes of R.C. 2953.32 when the cognovit note for the amount of restitution had not been paid in full); State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (8th Dist.1999) (finding same).Page 6 {¶11} Because the trial court did not conduct a formal hearing, the record has not been fu......
  • State v. Taylor, 15AP-1017
    • United States
    • United States Court of Appeals (Ohio)
    • 30 Junio 2016
    ...v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-46o3, ¶ 18; State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7; State v. Pettis, 133 Ohio App.3d 618, 619 (8th Dist.1999); Black at ¶ 10; State v. Jordan, 10th Dist. No. 07AP-584, 2007-Ohio-6383, ¶ 7; In re White, 165 Ohio App.3d 288, 200......
  • State v. J.L., 19AP-91
    • United States
    • United States Court of Appeals (Ohio)
    • 25 Junio 2020
    ...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-......
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