State v. H.M.

[Cite as State v. H.M., 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                 :

                 Plaintiff-Appellant,          :
                                                             No. 113866
                 v.                            :

H.M.,                                          :

                 Defendant-Appellee.           :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: January 9, 2025


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CR-10-536102


                                         Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Chauncey Keller, Assistant Prosecuting
                 Attorney, for appellant.

                 James W. Reardon, for appellee.


KATHLEEN ANN KEOUGH, P.J.:

                   The State of Ohio appeals the trial court’s judgment entry granting

H.M.’s motion to seal/expunge his record of conviction. For the following reasons,

we reverse the judgment and remand for a hearing to determine whether the victim,

D.K., has received full payment of the restitution amount ordered by the trial court
in its October 13, 2010 judgment entry of conviction to qualify H.M. as an eligible

offender under R.C. 2953.32.

              In 2010, H.M., a former attorney, pleaded guilty to theft in violation

of R.C. 2319.02(A)(2), a felony of the fifth degree. Prior to sentencing, he submitted

a sentencing memorandum, which provided in relevant part, that the victim, D.K.,

“is entitled to repayment of $36,783.01. [D.K.] has applied for reimbursement

through the Ohio Supreme Court Client Security Fund, Case No. CSF080230 and is

expected that the claim will be addressed in the next several months.”

              The trial court sentenced H.M. to five years of community control and

ordered him to pay restitution. The journal entry provided, “Restitution ordered in

the amount of $36,783.01 to [the victim]; payable through the probation

department.” H.M. did not appeal his conviction or order of restitution.

              In May 2011, the trial court determined that H.M. “may be transferred

to low[-]risk supervision but must have a monthly payment plan set up for

restitution.” Subsequently in November 2011, the trial court issued an order that

“all restitution to be forwarded to the Supreme Court of Ohio — Client Security

Fund.”

              In July 2015, the trial court scheduled a probation violation hearing.

Following a hearing in September 2015, the trial court issued the following order:

“Defendant’s community control sanctions may expire as scheduled on [October

12,2015].” Nothing in the record demonstrates whether the State agreed to or

opposed the scheduled termination of community control.
              On October 29, 2015, H.M. filed an executed Cognovit Note dated

June 20, 2015, payable to the Lawyer’s Fund for Client Protection in the amount of

$30,039.01. The Note indicates that the Original Amount was $36,783.01, which

reflects the original amount of court-ordered restitution payable to the victim, D.K.

              On February 1, 2o24, H.M. filed a three-paragraph motion seeking to

“seal/expunge” his 2010 record of conviction and the dismissed charges arising from

the same indictment. He contended that he did not have any criminal proceedings

pending against him and that he was an eligible offender under the law. H.M. did

not attach any evidence in support of his motion.

              The trial court ordered the probation department to prepare an

expungement report/investigation by March 1, 2024. According to the two-page

report, a restitution balance of $27,744.01 remained, but that H.M.’s probation

terminated on October 12, 2015. The report merely provided an overview of the

same information found on the court’s docket; it did not provide any information

regarding whether the victim received compensation through the Ohio Supreme

Court Client Security Fund, or if the restitution amount reflects what is currently

owed under the Cognovit Note.

              On April 2, 2014, the State filed its brief in response, opposing H.M.’s

motion because, according to the State, H.M. was statutorily ineligible to have his
record sealed due to unpaid restitution.1        The State noted that “neither the

[expungement] report nor the Court’s docket indicate” that H.M. paid the court-

ordered restitution to the victim and thus had not achieved “final discharge” as

required under R.C. 2953.32. The State maintained that H.M.’s execution of the

Cognovit Note did not cause him to achieve final discharge because it did not satisfy

the debt owed. The State waived its right for a hearing on the motion.

              Two days after the State filed its opposition, the trial court granted

H.M.’s motion finding that H.M. qualified as an eligible offender under R.C.

2953.32(A) and otherwise satisfied all statutory requirements for sealing his record

of conviction. The court further determined that H.M. was rehabilitated to the

court’s satisfaction and that H.M.’s interest in sealing his record outweighed any

legitimate governmental need to maintain that record. The judgment entry did not

address the State’s opposition, including whether H.M. paid his restitution.

              The State now appeals, contending in its sole assignment of error that

the “trial court erred by granting H.M.’s motion to seal/expunge record of criminal

conviction.” Specifically, the State contends that H.M. is not an eligible offender

because the record does not demonstrate that H.M. paid the court-ordered

restitution and thus has not achieved final discharge as required by Ohio law.




      1 The State’s opposition did not indicate whether it notified the victim pursuant to

Marsy’s Law or R.C. 2953.32 or whether the victim received compensation through any
client security fund with the Ohio Supreme Court.
               Generally, we review a trial court’s disposition of an application to

seal a record of conviction under an abuse of discretion standard. State v. M.E.,

, ¶ 6 (8th Dist.). However, whether an applicant is considered an

eligible offender under R.C. 2953.32 is an issue of law that we review de novo. 

citing State v. M.R., 

, ¶ 15 (8th Dist.), citing State v. Futrall, 2009-

Ohio-5590, ¶ 6.

               Relevant to this appeal, R.C. 2953.32(B)(1) provides that “an eligible

offender may apply . . . for the sealing or expungement of the record of the case.”

R.C. 2953.32(B)(1)(a)(ii) specifies the relevant timeframe for a sealing application

to be filed: “[a]n application for sealing under this section may be made . . . at the

expiration of one year after the offender’s final discharge.”2 Accordingly, achieving

“final discharge” in the case is a prerequisite for eligibility.

               Although “final discharge” is not defined under Ohio Law, the Ohio

Supreme Court determined that “final discharge,” in the context of sealing criminal

records, means a completion of all sentencing requirements, not just release from

confinement. State v. Aguirre, 

; see also State v. P.J.F.,




       2 The State contends that an ambiguity exists regarding what remedy H.M. sought

with his motion, i.e., to seal his record of conviction or to expunge his record. Although
H.M.’s motion uses the word “expunge,” we note that H.M. was not eligible for
expungement under the law because ten years had not passed between his purported final
discharge in 2015, and his application for sealing/expungement, February 1, 2024. See
R.C. 2953.32(B)(1)(b)(iii) (specifies the relevant timeframe for an expungement
application to be filed: “at the expiration of ten years after the time [the applicant is
eligible to apply for sealing]”). Accordingly, H.M. could only seek sealing his record of
conviction.


 (explaining that restitution is a financial sanction that is

completed upon payment, whereas a nonresidential community-control sanction is

completed upon the end of its duration).

               In Aguirre, the defendant pleaded guilty to one count of felony theft.

As part of her community-control sentence, the trial court ordered the defendant to

pay restitution to her former employer and two of its insurance companies.3 Ten

years later, the defendant applied to have her record sealed. The Court found the

defendant to be an ineligible offender under R.C. 2953.32 because the defendant

had not achieved final discharge because she had not fully paid the restitution

amount and thus her sentence was not satisfied. Id. at ¶ 29. The Court held, “An

offender does not attain a final discharge, and is thus ineligible to have his or her

felony conviction records sealed under R.C. 2953.32(A)(1), until [he or] she has paid

all court-ordered restitution.” Aguirre at syllabus.

               In this case, the trial court ordered H.M. to pay restitution specifically

to the victim, D.K. On this record, we cannot determine whether H.M. paid or the

victim received full restitution payment. H.M.’s sentencing memorandum indicates

that the victim applied for reimbursement through the Ohio Supreme Court Client

Security Fund. Although it would seem that the victim received compensation


      3 At the time of her sentencing, Ohio law permitted courts to award restitution to

third parties, including insurers. See former R.C. 2929.18(A)(1) (a restitution order “may
include a requirement that reimbursement be made to third parties for amounts paid to
or on behalf of the victim or any survivor of the victim for economic loss resulting from
the offense”). In 2004, the General Assembly removed this language disallowing
restitution to third parties. 

.
because H.M. executed a Cognovit Note payable to the Lawyers Fund for Client

Protection, nothing in the record verifies this assumption. If the victim has received

compensation, then it appears that H.M. may have satisfied his sentencing

obligations and thus attained final discharge. Granted, H.M. may still owe money

to the Lawyers Fund for Client Protection under the executed Cognovit Note, but the

trial court’s order specifically ordered H.M. to pay restitution to the victim, D.K.

Compare State v. Crosby, 

 (1st Dist.) (court ordering restitution to

victim, Lawyer’s Fund for Client Protection, permitted under R.C. 2929.18(A)(1)

because the Fund reimbursed theft victim prior to sentencing).

              Additionally, the trial court’s November 10, 2011 journal entry

providing that “all restitution to be forwarded to the Supreme Court of Ohio —

Client’s Security Fund,” did not change the payee of the restitution order to qualify

the fund as the “victim.” See R.C. 2929.18(A)(1) (trial courts have limited power

modifying the payment terms of a restitution order). And because the law changed

as noted in Aquirre, 

, reimbursement of restitution possibly may

not prevent an offender from attaining final discharge to qualify as an eligible

offender under R.C. 2953.32.

              A hearing before the trial court may have resolved this issue, but we

recognize that H.M. did not request a hearing on his motion and the State waived

any hearing.4 Nevertheless, the trial court has an obligation to determine whether



      4 The State also waived oral argument before this court.
an applicant meets all the statutory requirements to qualify as an eligible offender,

including whether H.M.’s restitution requirement has been fully satisfied. On this

record, we cannot make a determination whether the trial court fulfilled its

obligation.

              Accordingly, we sustain the State’s assignment of error, reverse the

trial court’s judgment, and remand for the trial court to conduct a hearing pursuant

to R.C. 2953.32 to ascertain whether H.M. qualifies as an eligible offender. The State

shall notify the victim in accordance with Marsy’s Law.

              Judgment reversed and remanded.

      It is ordered that the parties share equally in the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR