[Cite as State v. J.L., 2020-Ohio-3466.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellant,            :            No. 19AP-91
                                                         (C.P.C. Nos. 06CR-6393)
v.                                               :                07CR-3357)

[J.L.],                                          :      (REGULAR CALENDAR)

                 Defendant-Appellee.             :




                                           D E C I S I O N

                                       Rendered on June 25, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Valerie B. Swanson, for appellant. Argued: Valerie B.
                 Swanson.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
          {¶ 1} Plaintiff-appellant, State of Ohio, appeals a decision of the Franklin County
Court of Common Pleas entered on February 12, 2019, in which it granted the application
for order sealing record of conviction filed by J.L., defendant-appellee.
          {¶ 2} On August 24, 2006, a Franklin County Grand Jury indicted J.L. for one
count of receiving stolen property and one count of burglary in case No. 06CR-6393. J.L.
was initially granted diversion, but diversion was set aside after a second indictment
issued in May 2007 in case No. 07CR-3357. The second indictment alleged identity fraud,
misuse of credit, theft, safecracking of his parents' lockbox to obtain a credit card stored
there, and three counts of forgery.
          {¶ 3} J.L. ultimately entered guilty pleas in both cases. In case No. 06CR-6393,
he pled guilty to burglary as a fourth-degree felony on July 24, 2007. In case No. 07CR-
No. 19AP-91                                                                                2


3357, he pled guilty to two counts of forgery, both felonies of the fourth degree on
August 17, 2007. The trial court imposed three years of community control (also referred
to as "probation") in the two cases and, in case No. 07CR-3357, required J.L. to pay
$4,000 in restitution. Although the judgment entry did not specify to whom restitution
was owed, the court's handwritten August 17, 2007 disposition sheet indicated it should
be paid to "National City Bank."       The August 27, 2007 restitution order specified
"National City Bank" but listed the amount to be paid as $1,400. No party appealed.
       {¶ 4} On May 22, 2009, J.L.'s three-year period of community control was
extended for another two years by agreement with a new termination date set for
August 14, 2012.
       {¶ 5} On July 19, 2012, the probation department requested revocation in case
No. 07CR-3357 on grounds J.L. had paid only $799 of the restitution order and still owed
$3,201. On August 24, 2012, the trial court heard the probation department's request for
revocation of J.L.'s community control in case No. 07CR-3357. At the hearing, the trial
court found J.L. had violated probation but determined to discharge him, noting
unsuccessful completion, rather than to revoke probation and impose a prison term. In
the August 24, 2012 criminal case processing sheet, the court ordered that community
control be terminated as unsuccessful and that restitution be reduced to a civil judgment
against J.L. No party sought an appeal to challenge the conversion of restitution to a civil
judgment. On August 27, 2012, the trial court issued an order terminating probation as
unsuccessful in case No. 07CR-3357. During this same period, on July 25, 2012, the trial
court issued an entry finding J.L. had fully complied with the terms of his probation in
case No. 06CR-6393 and discharged him successfully with respect to that case.
       {¶ 6} Six years later, on November 30, 2018, J.L. filed an application for order
sealing the record in both case Nos. 06CR-6393 and 07CR-3357. The state objected on
the ground that J.L. was ineligible with respect to case No. 07CR-3357 due to the fact he
had not paid full court-ordered restitution. At a hearing on January 25, 2019, J.L.'s father
and mother testified they were the victims of the forgery crimes in case No. 07CR-3357.
J.L., while involved with drugs and criminal associates, had broken into his parents'
lockbox, stolen their credit card, and used it without authorization. J.L.'s father testified
that J.L. was doing better and that, as of the time of the hearing, he and his wife had a
No. 19AP-91                                                                                  3


good relationship with J.L. again. J.L.'s mother testified that in light of the restored
relationship, they had determined to forgive the remainder of the unpaid restitution; she
also filed an affidavit to that effect on the day of the hearing. No party objected to J.L.'s
parents' assertion that they were the victims to whom restitution was owed or to J.L.'s
mother's forgiveness of the remaining obligation.
         {¶ 7} After hearing arguments of counsel on whether to seal J.L.'s criminal
records based on the evidence, the trial court determined that the matter hinged on a
single legal issue: eligibility timing. Because more than five years had elapsed since J.L.'s
discharge from probation, J.L.'s defense counsel argued that a sealing could be granted
immediately, particularly in light of his parents' forgiveness of restitution. The state,
however, argued that final discharge had not occurred until the previously ordered
restitution in the 2007 case was paid or forgiven and, thus, the statutory waiting period
had not begun to run until the date when restitution forgiveness had been established,
which was at the hearing on J.L.'s application for order sealing record on January 25,
2019. The trial court took the matter under advisement.
         {¶ 8} On February 9, 2019, the trial court reconvened for another hearing at
which it heard further argument and announced its decision. The trial court determined
that J.L. was an "eligible offender" under R.C. 2953.31 and 2953.32, and it held that his
application was timely because his final discharge date was when he was discharged from
community control on August 24, 2012. The trial court concluded that J.L. had been
rehabilitated to the satisfaction of the court and, in light of his parents' forgiveness of the
debt for the previously ordered restitution, J.L.'s interest in having the records sealed
outweighed the legitimate interest of the government in maintaining the records for
public view. In a February 12, 2019 judgment, the trial court granted J.L.'s application for
an order sealing his record. The state appeals, asserting the following assignment of
error:
               THE TRIAL COURT LACKED JURISDICTION TO SEAL
               THE RECORD OF CONVICTION BECAUSE THE
               APPLICANT STILL OWES RESTITUTION, AND EVEN IF
               THE   RESTITUTION   ORDER    WERE    MODIFIED,
               APPLICANT HAS NOT COMPLIED WITH THE STATUTORY
               WAITING PERIOD.
No. 19AP-91                                                                                  4


       {¶ 9} Whether to grant an application to seal criminal records is a two-step
process. In the first step, the trial court determines whether the offender is an "eligible
offender," including whether the offender has waited the requisite time period before
filing. State v. C.A., 10th Dist. No. 14AP-738, 2015-Ohio-3437, ¶ 9. We review this step
de novo. State v. C.L.W., 10th Dist. No. 18AP-658, 2019-Ohio-1965, ¶ 7. In the second
step, a trial court weighs a number of substantive considerations for and against the
sealing.   See C.A. at ¶ 10.     The considerations undertaken in this second step are
reviewable according to an abuse of discretion standard.             C.L.W. at ¶ 7.   Despite
employing discretion in weighing the substantive considerations for and against sealing, a
trial court "shall" grant an application to seal criminal records when all the statutory
requirements are met. R.C. 2953.32(C)(2); see also C.A. at ¶ 11; State v. Schoenberger,
10th Dist. No. 15AP-451, 2015-Ohio-4870, ¶ 8.
       {¶ 10} The state's arguments in this case concern only the first step—whether J.L.
is an "eligible offender" and has waited the requisite period of time to apply, according to
the definition of "eligible offender" in R.C. 2953.31 and 2953.32. As relevant to this case,
an eligible offender is:
               Anyone who has been convicted of one or more offenses, but
               not more than five felonies, * * * if all of the offenses * * * are
               felonies of the fourth or fifth degree or misdemeanors and
               none of those offenses are an offense of violence or a felony
               sex offense[.]

R.C. 2953.31(A)(1)(a).
       {¶ 11} According to the records in this case, J.L. has been convicted of three
fourth-degree felonies: two counts of forgery and one count of burglary, now called
trespass in a habitation. None of these is an offense of violence or a felony sex offense.
See, e.g., R.C. 2901.01(A)(9); 2929.01(RR); and 2967.28(A)(3). Hence, J.L. is an "eligible
offender" within the meaning of Ohio's sealing statutes.
       {¶ 12} "[A]n eligible offender may apply to the sentencing court * * * for the sealing
of the record of the case that pertains to the conviction * * * at the expiration of five years
after final discharge if convicted of three, four, or five felonies." R.C. 2953.32(A)(1)(b).
Having been convicted of three felonies, J.L. was required to wait five years after "final
No. 19AP-91                                                                                5


discharge" from the period of community control imposed as punishment for them before
applying to have records of his convictions sealed.
       {¶ 13} "Final discharge" is not defined by the Ohio Revised Code, but it has been
extensively discussed and defined in case law. Both this court and the Supreme Court of
Ohio have consistently defined final discharge to mean that an offender has served all
components of the sentence, including the satisfaction of restitution. State v. Aguirre,
144 Ohio St.3d 179, 2014-Ohio-4603, syllabus; C.L.W. at ¶ 10, citing Aguirre at ¶ 19; In re
White, 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-3119, ¶ 11, citing State v. Black, 10th Dist.
No. 14AP-338, 2014-Ohio-4827, ¶ 10; State v. Hoover, 10th Dist. No. 12AP-818, 2013-
Ohio-3337, ¶ 7; State v. Jordan, 10th Dist. No. 07AP-584, 2007-Ohio-6383, ¶ 7; In re
White at ¶ 7; Pettis at 619. These holdings are founded on the rationale that restitution is
generally considered a part of a sentence with both remedial and punitive purposes.
Aguirre at ¶ 23, citing Paroline v. United States, 572 U.S. 434 (2014).
       {¶ 14} R.C. 2929.18(A) allows a trial court to impose "[r]estitution by the offender
to the victim," and provides:
              Financial sanctions that may be imposed pursuant to this
              section include, but are not limited to, the following:

              (1) Restitution by the offender to the victim of the offender's
              crime or any survivor of the victim, in an amount based on the
              victim's economic loss.

       {¶ 15} The Supreme Court has stated "final discharge cannot occur until restitution
is fully paid. Only then does the * * * waiting period in R.C. 2953.32(A)(1) commence to
run, and only after the expiration of that period may [the applicant seek] to have her
record sealed." Aguirre at ¶ 20; see also C.L.W. at ¶ 10 ("Plainly, final discharge cannot
occur until restitution is fully paid, and only then does the three-year waiting period in
R.C. 2953.32(A)(1) commence to run.").
       {¶ 16} The state relies on Aguirre to argue that J.L. applied too soon for the sealing
of his records. At the hearing on J.L.'s application for order sealing records, the state
No. 19AP-91                                                                                6


asserted that J.L. was an ineligible offender under R.C. 2953.31 and 2953.32 because he
had not fully paid restitution in the 2007 case. The state further argues on appeal that,
even though his parents, the victims, forgave the restitution amount at the January 25,
2019 hearing on sealing, J.L. had to wait to apply for sealing until five years had elapsed
from the date his parents forgave what had become a debt.
       {¶ 17} In granting J.L.'s application for order sealing record, the trial court found
that the victims, J.L.'s parents, had forgiven the outstanding restitution and requested the
court and state not pursue any further payment of the restitution. The court also found
that the July 25, 2012 community control termination order in case No. 06CR-6393 acted
as a final discharge. The court concluded that, based on these circumstances, J.L. had
waited the requisite statutory period of five years before filing his November 30, 2018
application for order sealing record.
       {¶ 18} However, we do not find J.L. qualified for the sealing of his record
pursuant to R.C. 2953.31(A)(1)(b) because five years had not elapsed between J.L.'s
application for order sealing record and "final discharge." As for the trial court's
August 24, 2012 criminal case processing sheet terminating community control as
unsuccessful and reducing restitution to a civil judgment, pursuant to R.C.
2929.18(D)(1), such did not constitute a final discharge. The application of R.C.
2929.18(D)(1) does not alter the determination of whether restitution was fully paid.
Instead, R.C. 2929.18(D)(1) merely provides a way of collecting a financial sanction by
obtaining a certificate of judgment in the same manner and form as a certificate of
judgment in a civil case. Whether ordered in the original judgment or a subsequently
obtained certificate of judgment, the recompense to the victim remains unsatisfied.
Furthermore, the August 27, 2012 order terminating probation as unsuccessful did not
act as a final discharge, consistent with Aguirre, as restitution was not fully paid at that
time. As the Supreme Court held in Aguirre, "[w]hen restitution is owed, discharge from
community control does not effect a final discharge for purposes of R.C. 2953.32(A)(1)."
Id. at ¶ 19. Finally, contrary to what the trial court found, the trial court's July 25, 2012
termination of community control in case No. 06CR-6393 did not constitute a final
discharge, given J.L. had still not paid his court-ordered restitution in case No. 07CR-
3557. Thus, none of these court actions acted as a final discharge under R.C.
No. 19AP-91                                                                                   7


2953.31(A)(1)(b) because at the time of J.L.'s filing of his application for an order sealing
his record, he still owed restitution and the entry reflected this by terminating his
probation as unsuccessful.
       {¶ 19} As for the trial court's finding that "final discharge" had occurred in the
present case because the victims, J.L.'s parents, had forgiven the outstanding restitution
and requested the court and state not pursue any further payment of the restitution, this
finding was improper. Although the judgment entry did not specify to whom restitution
was owed, the court's handwritten August 17, 2007 disposition sheet indicated it should
be paid to "National City Bank." The August 27, 2007 restitution order also specified
"National City Bank" as the party to receive restitution. Thus, only National City Bank
could forgive the payment of restitution. As only National City Bank could forgive the
payment of restitution, the trial court's reliance upon J.L.'s parents' forgiveness to support
a finding that there was a "final discharge" was improper.
       {¶ 20} We note that, at the time of the trial court's decision in the present case, this
court had previously determined a bank that reimburses its customer for financial loss is
not a "victim" for purposes of R.C. 2929.18(A)(1) and, therefore, cannot be awarded
restitution from a defendant. See State v. Allen, 10th Dist. No 17AP-296, 2018-Ohio-1529,
¶ 16 ("Allen I"). However, after briefing and oral argument in the present appeal, the
Supreme Court reversed this court's decision in Allen I. In State v. Allen, __ Ohio St.3d
__, 10th Dist. No. 2019-Ohio-4757 ("Allen II"), the Supreme Court found that, pursuant
to R.C. 2929.18(A)(1), a bank that cashes a forged check and recredits its depositor's
account is a "victim." Allen II at ¶ 5. In the present case, the trial court ordered restitution
in favor of National City Bank, consistent with Allen II.
       {¶ 21} Therefore, based on the above findings, we find J.L. was not an eligible
offender who timely filed his application for order sealing record. An eligible offender
may apply for sealing of the record at the expiration of five years after final discharge.
Here, J.L. filed an application for an order sealing his record on November 30, 2018.
Because his discharge from community control in the August 24 processing sheet,
August 27 probation termination order, and July 25, 2012 probation termination order
did not act as final discharges due to his failure to fully satisfy the restitution order, the
five-year waiting period required by R.C. 2953.31(A)(1)(b) had not elapsed at the time
No. 19AP-91                                                                                           8


he filed his application. For these reasons, we find the trial court erred when it granted
J.L.'s application for order sealing record of conviction, and we sustain the state's
assignment of error.
         {¶ 22} Accordingly, the state's single assignment of error is sustained, and the
judgment of the Franklin County Court of Common Pleas is reversed.
                                                                                Judgment reversed.

                                    LUPER SCHUSTER, J., concurs.
                                       BRUNNER, J., dissents.

BRUNNER, J., dissenting.
         {¶ 23} I respectfully dissent from the decision of the majority because J.L.'s
restitution obligation was not legally imposed in the first place.1 I dissent also because
J.L.'s restitution order was ordered to be converted into a civil judgment more than five
years before he filed an application to seal criminal records, with J.L.'s November 2018
sealing application having been filed after the legally required waiting period under R.C.
2953.32(A)(1)(b).      I would hold that the trial court did not commit legal error in
considering J.L.'s application with neither party arguing that the trial court abused its
discretion in weighing the evidence at the hearing and determining to grant the sealing. I
would overrule the State's sole assignment of error and affirm the judgment of the trial
court.
         {¶ 24} There are at least two obvious problems with the State's approach. First,
there was no valid restitution ordered. R.C. 2929.18(A)(1); State v. Ping, 10th Dist. No.
18AP-612, 2019-Ohio-2458, ¶ 9-11. Second, the restitution order, as a criminal sanction
of community control, was ordered converted to a civil judgment, and J.L. was discharged
from community control on August 24, 2012 with no unsatisfied restitution order
pending. (Aug. 24, 2012 Disposition Sheet.)
         {¶ 25} Under Aguirre, " 'an offender is not finally discharged until he has served
any sentence previously imposed by the court.' " State v. Aguirre, 144 Ohio St.3d 179,
2014-Ohio-4603, ¶ 23, quoting State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-

1 Plaintiff-appellant, State of Ohio, appeals a decision of the Franklin County Court of Common Pleas,

entered on February 12, 2019, sealing all official records in Franklin C.P. Nos. 06CR-6393 and 07CR-3357
under R.C. 2953.32.
No. 19AP-91                                                                                                   9


3337, ¶ 7.      If the trial court modifies the terms of community control to convert
restitution to a civil judgment before discharging the offender from supervision, it has
removed restitution as part of the "sentence previously imposed by the court." Hoover
at ¶ 7. It should be noted that the terms of R.C. 2929.18(D) regarding converting
restitution to a civil judgment are specific.                And post-probation, a converted civil
judgment causes the former probationer to become a judgment debtor, subject to
collection through the typical statutory collection means.2 More important, however,
unpaid restitution converted to a civil judgment is still evidence subject to the trial court's
discretionary review on an application to seal criminal records under R.C. 2953.32(C)
such that, if an applicant has not paid the civil judgment, the trial court may find him or
her not to be rehabilitated to the court's satisfaction and/or not to hold interests that
outweigh the State's or the public's interests against sealing the criminal records.
        {¶ 26} These problems exist within the context of the State's limited assignment of
error, that being, whether J.L. is an eligible offender who timely filed his application to
seal his criminal records.3 The State seeks only that we determine whether the trial court
committed error in its exercise of jurisdiction in determining that J.L. was an eligible
offender who timely filed his application to seal. If we agree with the State, we invalidate
the trial court's decision as voidable on direct appeal. State v. Smith, 10th Dist. No. 06AP-
1059, 2007-Ohio-2873, ¶ 15; Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 24.
If we disagree, and I do, we would find that the trial court did properly exercise its
jurisdiction. Here, the ultimate determination of the proper exercise of jurisdiction by the
trial court hinges on whether restitution either ever existed or whether it existed at the
time J.L. was released from supervision on August 24, 2012.
        {¶ 27} For the reasons stated, I would find there is no unsatisfied portion of J.L's
criminal sentence because (1) the restitution order cannot exist as restitution when


2  "A financial sanction of restitution imposed pursuant to division (A)(1) * * * of this section is an order in
favor of the victim of the offender's criminal act that can be collected through a certificate of judgment as
described in division (D)(1) of this section, through execution as described in division (D)(2) of this section,
or through an order as described in division (D)(3) of this section, and the offender shall be considered for
purposes of the collection as the judgment debtor." R.C. 2929.18(D).
3 In its sole assignment of error, the State has asked simply that we sustain its assignment of error that

"[t]he trial court erred when it granted the defendant's prematurely filed application to seal." (State's Brief
at iv.)
No. 19AP-91                                                                             10


ordered paid to a third-party bank, even if it could have existed as to J.L.'s parents (who
have now, in any event, forgiven the debt), and/or (2) restitution was converted to a civil
judgment and J.L. was discharged from the criminal sanction (community control) more
than five years before he filed his application for the sealing of his criminal records. I
would therefore affirm the trial court's decision on these legal questions under a de novo
standard. As neither party made arguments about the trial court's exercise of discretion
in weighing the evidence at the hearing and making the factual findings about the extent
of J.L.'s rehabilitation or the weighing of relative interests as required by statute after
determining J.L. to be an eligible offender, I would decline to address those issues,
overruling the State's sole assignment of error and affirming the judgment of the trial
court.
                                _________________
