Restitution Must Be Paid Before Applying to Seal Criminal Record
The Ohio Supreme Court ruled today that an offender is not eligible to have a felony conviction sealed until the offender has paid all court-ordered restitution.
The Supreme Court held that a trial court may not seal an offender’s criminal record before he or she has completed all sentencing requirements, which includes any order to pay restitution. When a record is sealed, it is shielded from public view.
The court’s 5-2 decision, written by Chief Justice Maureen O’Connor, resolves a conflict between appellate courts and reverses the judgment of the Tenth District Court of Appeals. The case will return to the common pleas court in Franklin County to set aside its earlier judgment and, if needed, conduct more proceedings based on this opinion.
In May 2002, Sharlene Aguirre pled guilty to theft for stealing money from her Columbus employer to pay gambling debts. Aguirre was sentenced to five years of community control and to restitution. She was ordered to pay $2,000 to her employer and $32,562.47 to two of its insurance companies. She made a $4,000 payment soon after her sentencing and then started making $100 monthly payments.
Aguirre finished five years of community control in 2007. In 2012, while still making restitution payments, she applied to have her conviction sealed.
The trial court approved her application. On appeal, the Tenth District affirmed sealing Aguirre’s record. The appeals court also notified the Supreme Court that its decision was in conflict with one from the Eighth District Court of Appeals in 2001 (State v. McKenney).
The Supreme Court agreed to review the conflict and also accepted an appeal from the state.
Chief Justice O’Connor explained that, according to state law, offenders may apply to have their records sealed if they first meet two prerequisites – they obtain a “final discharge” of their sentence, and three years have passed since the discharge.
She noted that Ohio appellate courts, including the Tenth District in other decisions besides Aguirre’s case, have concluded that an offender has not been finally discharged under R.C. 2953.32(A)(1) if the offender still owes restitution.
She pointed out that the Tenth and Eighth District cases both involve former versions of Ohio’s restitution statute, which allowed courts to award restitution to third parties, such as insurance companies. Effective June 1, 2004, though – after Aguirre’s sentencing – the General Assembly amended the law to no longer allow payments to victims’ insurance companies.
Regardless, “final discharge cannot occur until restitution is fully paid,” the chief justice wrote. “Only then 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 Aguirre apply to have her record sealed. … [T]he person or entity to whom restitution is owed is immaterial, unless the person or entity was not statutorily eligible for restitution at the time of the order.”
Restitution is both a remedy and a punishment, she added. By ensuring that restitution is paid before sealing a criminal record, a court abides by the statute and imposes the remedial and punitive parts of a restitution order, she wrote.
Also noting that sealing a record is a privilege, not a right, Chief Justice O’Connor concluded: “No court is ever required to seal conviction records. … But the General Assembly has decreed that courts are required to refuse to seal a record when the offender is not yet eligible to have her conviction records sealed. No discretionary consideration can justify granting an application to seal before the offender has established eligibility to apply.”
Joining the majority were Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French.
Justice Paul E. Pfeifer dissented without opinion. He would have affirmed the judgment of the Tenth District appeals court.
Justice William M. O’Neill dissented in a written opinion. In his view, restitution is a type of community-control sanction, and state law gives trial courts the discretion to modify the sanction. In addition, because R.C. 2929.15(A)(1) limits all community-control sanctions to five years, Justice O’Neill reasoned that restitution orders are also limited to five years.
“When a person has a history of compliance with the state’s community-control sanctions, the language of the statute clearly authorizes what the trial court did here,” he wrote. “The trial court terminated the community-control sanction and essentially sent the defendant on her way. The trial court clearly demonstrated its intention to close the books. The trial courts either do, or do not, have statutory authority to modify their own community-control orders. I would hold that they do.”
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