         [Cite as State v. Ushery, 2013-Ohio-2509.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :        APPEAL NO. C-120515
                                                             TRIAL NO. C-05CRB-47998
        Plaintiff-Appellee,                           :

  vs.                                                 :              O P I N I O N.

PRINCELLA USHERY,1                                    :

     Defendant-Appellant.                             :



Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 19, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecutiong Attorney, for Plaintiff-Appellee,

Ohio Justice & Policy Center and Rob Wall, for Defendant-Appellant.




Note: we have removed this case from the accelerated calendar.




1 Ushery’s first name is spelled as “Pincella” on the notice of appeal, but as “Princella” on the
charging instrument and on the other documents in the case.
                       OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}     The issue in this case is whether Princella Ushery’s 2005 minor-

misdemeanor conviction for the possession of marijuana may be expunged under R.C.

2953.31 et seq., where Ushery failed to pay the court costs assessed at sentencing. Because

we hold that Ushery’s failure to pay court costs did not prevent the final discharge of her

case as contemplated by the expungement statute, we reverse the trial court’s judgment

and remand the cause to the trial court to determine whether, in its discretion,

expungement of the conviction is appropriate.

                        I. Background Facts and Procedure

       {¶2}     In 2005, Ushery was convicted of misdemeanor possession of marijuana,

a violation of R.C. 2925.11. The trial court imposed a $150 fine as her sentence, and also

assessed $85 in costs. Subsequently, the court waived her fine. Over one year later,

Ushery applied to the trial court to have her conviction sealed under R.C. 2953.32.

       {¶3}     The trial court reviewed her application and ordered the probation

department to create a report concerning the application. In the report, the probation

department accurately indicated that Ushery owed costs, but it erroneously indicated that

Ushery still owed the fine that the court had previously waived. Relying on the report, the

court found that Ushery was “not eligible” to have the conviction expunged, because she

still owed the fine and the court costs, and it denied her application. The court also

informed Ushery that she had to wait one year after paying off the fine and the court costs

before the conviction could be expunged.

       {¶4}     In her sole assignment of error, Ushery argues that the trial court erred

when it determined that she was ineligible to have her conviction sealed, because she did

not owe the fine, and because her failure to pay the court costs did not, as a matter of law,




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render her ineligible under R.C. 2953.32(A)(1) to have the conviction expunged. We

agree.

                                II. Standard of Review

         {¶5}   This court’s review of the trial court’s ruling on expungement varies.

Generally, we will not disturb a trial court’s decision to deny a R.C. 2953.32

expungement application absent an abuse of discretion. See State v. Hilbert, 145

Ohio App.3d 824, 827, 764 N.E.2d 1064 (8th Dist.2001); State v. Spicer, 1st Dist.

Nos. C-040637 and C-040638, 2005-Ohio-4302, ¶ 7.

         {¶6}   But we review issues of law de novo. See State v. Futrall, 123 Ohio

St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6, cited in State v. Pankey, 1st Dist.

Nos. C-110547 and C-110548, 2012-Ohio-936, ¶ 3. The interpretation of a statute

and the application of that statute in determining whether an offender is “eligible” to

have a conviction expunged are issues of law that we review de novo.

                                       III. Analysis

         {¶7}   As relevant to the assignment of error, R.C. 2953.32(A)(1) provides that an

otherwise eligible offender may not apply to have the record of a misdemeanor conviction

expunged until one year after “the offender’s final discharge.”        The phrase “final

discharge” is not defined in the statute, but it has been interpreted to mean that the

offender “has served any sentence previously imposed or [has] otherwise been finally

discharged by the court.” Willowick v. Langford, 15 Ohio App.3d 33, 34, 472 N.E.2d 387

(11th Dist.1984).

         {¶8}   The sentence includes any term of incarceration and other criminal

sanctions such as community control, formerly known as probation.            See State v.

Wainwright, 75 Ohio App.3d 793, 795, 600 N.E.2d 831 (8th Dist.1991). Community




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control includes residential and nonresidential sanctions, and financial sanctions such as a

fine and restitution. R.C. 2929.15; R.C. 2929.25.

       {¶9}      In applying R.C. 2953.32(A)(1), the trial court determined that Ushery had

not been discharged because she had failed to pay the imposed fine and the assessed court

costs. But it is undisputed that the trial court had waived Ushery’s fine more than one

year before Ushery had applied for expungement of the misdemeanor conviction. Thus,

the trial court erred by declaring Ushery ineligible for expungement based on her failure to

pay the fine. The issue remaining is whether Ushery’s failure to pay the court costs

precluded a finding that Ushery had been “discharged” within the meaning of R.C.

2953.32(A)(1).

       {¶10}     The Eighth District Court of Appeals addressed this issue in State v.

Summers, 71 Ohio App.3d 1, 592 N.E.2d 905 (8th Dist.1990). In that case, the state

argued that an offender who had not paid his court costs had not completed his sentence

and, therefore, he had not been discharged and he was not eligible for the expungement of

his conviction. The Summers court disagreed that the failure to pay the costs precluded a

finding that the sentence was fully served, holding that court costs are not a part of the

criminal sentence and, therefore, “the failure to pay the court costs d[id] not result in [the

offender’s] sentence not being served.” Id. at 2.

       {¶11}     In arriving at this determination, the Summers court relied on this court’s

decision in Cincinnati v. Wright, 77 Ohio App. 261, 67 N.E.2d 358 (1st Dist.1945), in

which we held that the costs of prosecution are not a part of the fine imposed in a criminal

case. Summers at 2, citing Wright at 268.

       {¶12}     The Summers court was also persuaded by the Ohio Supreme Court’s

characterization of the duty to pay court costs in a criminal case as a "civil obligation” that




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arises from an “implied contract” and, therefore, it is distinct from criminal punishment.

Summers at 2, citing Strattman v. Studt, 20 Ohio St.2d 95, 253 N.E.2d 749 (1969),

paragraph six of the syllabus.

       {¶13}    Since the Eighth Appellate District’s decision in Summers, the Ohio

Supreme Court has maintained its characterization of costs as a civil obligation and not

punishment, even when costs are included in a sentencing entry in a criminal case. State

v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 20.

       {¶14}    In this case, the state concedes that court costs are civil in nature, and it

asserts that “nothing in the expungement statute prohibits the trial court from

granting an expungement while those costs are outstanding.” The state contends,

however, that the trial court, in its discretion, may deny an application to seal a

conviction for failure to pay court costs.

       {¶15}    We find the reasoning of the Summers court persuasive, and we adopt it.

Therefore, we hold that Ushery’s failure to pay the court costs assessed in the criminal

proceeding that resulted in her conviction, a civil debt that was not made a part of her

criminal sentence, did not prevent her “final discharge” as contemplated by R.C.

2953.32(A)(1), and did not render her ineligible to have that conviction expunged. But we

also hold, as urged by the state, that Ushery’s failure to pay the court costs is a factor that

the trial court can consider when determining, in the exercise of its discretion, whether

Ushery has been rehabilitated such that expungement of her conviction is appropriate.

See R.C. 2953.32(C)(1)(c).

                                        IV. Conclusion

       {¶16}    The trial court erred in determining that Ushery had not been discharged

and that Ushery was “not eligible” to have her conviction expunged for that reason.




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Accordingly, we sustain the assignment of error, reverse the trial court’s judgment, and

remand the cause for proceedings consistent with this opinion.

                                                Judgment reversed and cause remanded.

HENDON, P.J., CUNNINGHAM and DEWINE, JJ.
Please Note:
       The court has recorded its own entry on the date of the release of this opinion.




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