Back in September 2014, Ohio Congress redefined what an Eligible Offender means as it relates to Sealing of the Record statute under 2953.31. This was a big deal in the criminal defense world because it allowed for a more lenient interpretation of Eligible Offender. The basic rule is that an Eligible Offender can have at most two misdemeanor convictions, or one misdemeanor and one felony conviction.
Under prior law, a defendant could have up to two separate misdemeanor convictions sealed as long as they were not for the same offense. For example, if the defendant had a possession of marijuana conviction and a separate theft conviction, he was eligible to seal both cases so long as he met all the other criteria. But, if that same defendant had two separate theft convictions, he was ineligible to have them sealed. That is no longer the case under the new definition of Eligible Offender.
Great! This helped out a lot of folks that paid their debt to society and are trying to move forward in life without a criminal conviction attached to their name. Speaking of debts, how would court-ordered restitution work with regards to getting a criminal record expunged? For example, could I get my criminal record expunged if the court-ordered restitution is not paid? The Ohio Supreme Court solved that dilemma in State v. Aguirre, 2014-Ohio-4603.
In Aguirre, Ms. Aguirre plead guilty to one count theft, a fourth-degree felony, for stealing money from her employer to pay her gambling debts. During her sentencing hearing on July 9, 2002, the court sentenced Ms. Aguirre to five years of community control (probation) and ordered her to pay restitution in the amount of $32,562.47 between her employer’s two insurance companies.
On January 12, 2012, Aguirre applied to have the record of her theft conviction sealed after she successfully completed her community control. The state objected to the sealing of her record because Aguirre had not paid her restitution in full. Over the state’s objection, the court granted Aguirre’s sealing of the record because “the restitution was ordered to an insurance company and Aguirre paid a substantial portion of the total.” Not happy about this, the state appealed the Aguirre’s approved application for sealing her record. The 10th District of Ohio upheld the trial court’s decision. This led one last final appeal to the Ohio Supreme Court.
At this point I think it is beneficial to look at R.C. 2953.32 (A)(1) real quick:
An eligible offender may apply to the sentencing court if convicted in this state…for the sealing of the record of the case that pertains to the conviction. Application may be made at the expiration of three years after the offender’s final discharge if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor. (Emphasis added).
Based on the above statute, Ms. Aguirre would have been eligible for the sealing of her record three years after her final discharge of the case. One problem though….what does final discharge mean? Looking to R.C. 2953.31 for definitions, the legislature failed to define “final discharge” when it came to sealing criminal records. This leads us back to the case of State v. Aguirre.
When reading the opening analysis of this case, one can tell real fast that the Court was not going to be in favor of Ms. Aguirre. The Court opens up their analysis with “our analysis is driven by what we have held previously, the sealing of a criminal record is a privilege, not a right.” And that is followed up with, “suppression of a criminal record at the request of the offender is an act of grace created by the state.” Wow! That is some pretty strong opening language in my mind at least.
After the Court expressed their feelings towards an individual sealing the record, the opinion takes some different routes to get to their holding. The Court first discusses statutory construction of R.C. 2953.32, then moves on to explaining why restitution as a punishment is a continued benefit of public record, after this the Court goes back to statutory construction R.C. 2953.32 with regards to judicial discretion, and then finally restates their holding once again. Given this could be a little confusing, I figure the best way to break the opinion down will be to combine the sections of the opinion regarding statutory construction of R.C. 2953.32 and then talk about continued restitution as a benefit of public record.
The Court stated that the “first considerations in determining eligibility are whether the offender has obtained a final discharge and whether three years have elapsed since that event.” Basically, an offender is not permitted to file an application for sealing of a felony record unless they satisfied the two requirements of 1) final discharge, and 2) three years elapsing from the final discharge. Looking at Ms. Aguirre’s case, the trial court discharged her from her community control sanctions. With that discharge, the trial court discharged the remaining restitution owed to the insurance companies. In essence, that would become the final discharge date.
The Court had a problem with this logic. First, the Court found that when restitution is owed, discharge from community control does not effect a final discharge for purposes of R.C. 2953.32. Second, the Court interpreted R.C. 2953.32 as giving the trial court no discretionary consideration before the offender has established eligibility to apply for sealing of the record; and because of that, the trial court is required to refuse to seal the record. Remember, eligibility is defined as having final discharge and three years elapsing from the final discharge, for felony conviction.
I now want to focus on discharge date of community control versus final discharge date regarding restitution. It is by discussing the difference between these two dates that the Court defines final discharge date for purposes of restitution and why that is a benefit of public record.
In deciding to uphold Ms. Aguirre’s sealing of her record, the Tenth District found that by refusing to seal a record of conviction is a continued punishment with no benefit to a victim or private payer who is owed restitution. The Ohio Supreme Court’s response to the Tenth District’s above reasoning was a simple, “Not so.” The Court recognized that the primary goal of restitution is remedial or compensatory; however, they felt restitution also has a punitive purpose. According to the Court, court-ordered restitution is an obligation that is “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.” The Court went on to say, “a court is not imposing continued punishment by denying a premature application to seal an offender’s record before the completion of restitution. Rather, the court is ensuring that both the punitive and remedial aspects of the restitution order are satisfied before the offender’s sentence is sealed, in accordance with the statutory scheme.”
The statutory scheme the Court is referring to is R.C. 2929.15 and R.C. 2929.18. Under R.C. 2929.15, the duration of community control is limited to five years. While under R.C. 2929.18, there is no limit on the duration of the restitution obligation. Going back to Ms. Aguirre’s case, the Court is saying that while her community control must come to an end at five years, Ms. Aguirre’s continued punishment for restitution must continue since there is no limitation on the amount of time a trial court can hold over her head until the restitution is paid.
Are you kidding me?!? Shouldn’t that be the trial court’s discretion as to when the restitution is paid? This is where the second part of the opinion comes into play. The Court found through statutory construction, that the trial court cannot use discretion before an offender is eligible to seal their record. Which, for a felony conviction is three years after final discharge, and final discharge does not occur until restitution is paid!
With all that in mind, the Court held that an offender who has satisfied five years of community-control obligations is not eligible to apply for sealing until the restitution obligations have been satisfied; no matter how long that takes. Or in plain English, final discharge does not occur until restitution is paid in full and once that occurs, then the three-year waiting period commences.
In his dissenting opinion, Justice O’Neill brought up two very solid problems with the majority’s holding. First, Justice O’Neill sees no reason why there needs to be a distinction between community-control sanctions and a restitution order. In his understanding of the two statutes, the community-control statute allows for restitution as a sanction. Because of this, the trial court would have the authority to modify the sentence of restitution it has imposed. Second, as a broader policy matter, he felt the criminal-justice system should stay out of the collections business. I agree with both issues raised by Justice O’Neill.
In reality, there is no benefit to continuing the punishment of an individual regarding restitution. In most cases where the court orders restitution as part of the offender’s sentence, the victim or other parties involved will no doubt file a civil lawsuit against the offender. That is where the restitution issue should be resolved…in civil court. Victims can utilize various other options in order to secure payment of restitution.
Let’s take Ms. Aguirre’s case, but put a twist on it. The two insurance companies involved decide to sue Ms. Aguirre for the amount stolen from her employer (the Court’s opinion does not address whether or not there was a civil action against Ms. Aguirre). Ms. Aguirre pays the smaller amount off in full, but she negotiates a repayment plan with the insurance company for the larger amount owed. The payment plan requires Ms. Aguirre to pay $250 per month over the course of several years. Ms. Aguirre makes her payments timely each month. After being discharged from her community control, Ms. Aguirre waits three years and files an application to seal her theft record. At this point, Ms. Aguirre has paid one insurance company off and has paid the second insurance company $24,000 ($250 per month over eight years). However, Ms. Aguirre still owes $8,000 in restitution. Based on the Court’s holding, the judge will have no choice but to deny Ms. Aguirre’s application!! Even though, Ms. Aguirre and the insurance company settled the claim/restitution amount in civil court. I see no benefit to this whatsoever!
This a tough decision for anyone who is trying to get their life back on track after successfully completing five years of community-control but still has restitution balance. Hopefully, the General Assembly will define “final discharge” in a way that is beneficial to individuals trying to seal their criminal record.