State v. A.A.

[Cite as State v. A.A., 

.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                  :

                 Plaintiff-Appellant,           :                   No. 19AP-506
                                                              (C.P.C. Nos. 11CR-590,
v.                                              :             12CR-5304 & 13CR-2153)

[A.A.],                                         :         (ACCELERATED CALENDAR)

                 Defendant-Appellee.            :


                                          D E C I S I O N

                                    Rendered on February 13, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

NELSON, J.
          {¶ 1} The State of Ohio appeals from the trial court's judgment that sealed A.A.'s
records with regard to a fifth-degree felony theft offense in Franklin C.P. No. 12CR-5304,
as to which a restitution order had been satisfied only on the hearing day for A.A.'s
application to seal. The state advances a single assignment of error: "The trial court lacked
jurisdiction to seal the record of a conviction, where defendant had not fulfilled the
mandatory waiting period at the time of application." Appellant's Brief at 3. Because the
law does not permit a person convicted of one felony to apply for sealing of that record of
conviction until "the expiration of three years after the offender's final discharge," R.C.
2953.32(A)(1)(a), and because that limitation deprived the trial court of jurisdiction to
consider the application as to that matter, we agree with the state that "the trial court erred
in granting the untimely application to seal the record of 12CR-5304," Appellant's Brief at
6.
No. 19AP-506                                                                                     2

       {¶ 2} "[T]he question whether an applicant has complied with the mandatory
waiting period prior to filing an application is a question we review de novo," examining
the matter afresh. State v. Young, 10th Dist. No. 19AP-49, 

, citing In
re Application for the Sealing of Records of: A.R.H., 10th Dist. No. 18AP-554, 2019-Ohio-
1325, ¶ 13. Here, as in Young, with regard to the felony theft case "we hold that the trial
court lacked jurisdiction to entertain appellee's application because appellee failed to
comply with the mandatory waiting period of R.C. 2953.32 prior to filing [the] application."

. See also, e.g., State v. Pariag, 

, 

 ("R.C. 2953.32 et seq. set out the limits of the trial court's jurisdiction to grant a request
to seal the record of convictions …") (citation omitted).
       {¶ 3} As we further explained in Young: "The Supreme Court of Ohio has
determined that 'the final discharge required by R.C. 2953.32(A)(1) does not occur until an
offender satisfies all sentencing requirements. Court ordered restitution is one such
sentencing requirement.' State v. Aguirre, 

, 

, ¶ 28 …
Thus, a final discharge cannot be achieved by an offender prior to the payment of
restitution." 

, citing State v. Black, 10th Dist. No. 14AP-338, 2014-
Ohio-4827, ¶ 10. The three-year waiting period after final discharge from a felony
conviction "is a mandatory requirement for the sealing of a record of conviction." Young at
¶ 12, citing Black.
       {¶ 4} Consequently, "[o]nly after restitution has been fully paid ' "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" an offender ordered to pay restitution have his or her record sealed.'
Black at ¶ 12, quoting 

." Young, 

 (adding that
"[b]ecause appellee filed his application to seal the record of his felony conviction prior to
the expiration of the mandatory waiting period, the trial court lacked jurisdiction to
entertain appellee's application.") (citations omitted).
       {¶ 5} Here, the state acknowledges that "there was no dispute that [A.A.] was an
'eligible offender' within the meaning of R.C. 2953.31(A), as she had [fewer] than the
maximum number of convictions." Appellant's Brief at 4. But the state's argument is that
"the record shows that [A.A.] only paid the restitution in full in case 12CR-5304 on the day
of the hearing on her application. As a result, the earliest [she] could have attained a final
No. 19AP-506                                                                                 3

discharge as it relates to 12CR-5304 is July 25, 2019. Because the conviction in that case
was a felony, [A.A.] was required to wait three years from final discharge before applying
to seal the record of the conviction. Therefore, the trial court erred in granting the untimely
application to seal the record of 12CR-5304." Id. at 6.
       {¶ 6} Court records substantiate the state's uncontested position. A.A. was
sentenced for the felony theft on April 22, 2013 and ordered to make restitution of $439.00.
She deposited more than $400.00 in restitution payments on July 25, 2019, the day of the
hearing on her May 23, 2019 application, reducing her restitutionary balance to zero. The
court takes judicial notice of that docket, see, e.g., Lane v. U.S. Bank, 10th Dist. No. 18AP-
197, 

, and notes that the three-year period from A.A.'s final discharge
will not have expired before July 25, 2022.
       {¶ 7} Because A.A. filed her application to seal the record of her felony conviction
before the mandatory waiting period had expired, the trial court lacked jurisdiction to
consider A.A.'s application as to that case. We note that the state in its briefing does not
contest the trial court's sealing of the records in two misdemeanor cases, Franklin C.P. Nos.
11CR-590 and 13CR-2153, that the trial court addressed in the same judgment entry.
Compare State v. Newkirk, 10th Dist. No. 19AP-191, 

("Thus, we presume that [the applicant] satisfied the R.C. 2953.32 requirements for sealing
his record in" a misdemeanor case for which expungement was sought along with
expungement for the felony conviction as to which we concluded that final discharge was
not established; judgment reversed "with regard to the portion of [the] judgment sealing
the record of [the felony case]").
       {¶ 8} We sustain the state's lone assignment of error and reverse the judgment of
the Franklin County Court of Common Pleas with regard to the sealing of the record of the
felony theft offense in Franklin C.P. No. 12CR-5304. We remand this matter to that court
to vacate the order sealing the record in Franklin C.P. No. 12CR-5304.
                                                  Judgment reversed and cause remanded.
                       BRUNNER and BEATTY BLUNT, JJ., concur.
                             _________________