[Cite as State v. Gainey, 2015-Ohio-3119.]
                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellant,               :
                                                                        No. 14AP-583
v.                                                  :                 (C.P.C. No. 14EP-82)

Lakeisha Gainey,                                    :              (REGULAR CALENDAR)

                 Defendant-Appellee.                :



                                             D E C I S I O N

                                      Rendered on August 4, 2015


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

                 Gregory Matthews, for appellee.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Plaintiff-appellant, State of Ohio, appeals from an entry of the Franklin
County Court of Common Pleas granting the application of defendant-appellee, Lakeisha
Gainey, to seal the record of her prior conviction. Because appellee failed to complete all
the requirements of her sentence, she is ineligible to have her conviction record sealed
under R.C. 2953.32(A)(1). Therefore, we reverse.
Facts and Procedural History
        {¶ 2} On November 22, 1994, appellee was convicted of theft, a fourth-degree
felony. Appellee was sentenced to a suspended 18-month term of incarceration and
placed on three years of community control. Appellee was also ordered to pay restitution
in the amount of $2,830 and to complete 100 hours of community service.
        {¶ 3} The record indicates that on November 17, 1997, appellee was declared an
absconder in connection with this theft conviction. She was arrested on an absconder
No. 14AP-583                                                                              2

warrant on June 21, 2005. On August 12, 2005, the court, in her criminal case, restored
appellee to community control and changed the termination date to August 12, 2006.
Later, that termination date was extended again until August 12, 2007.
       {¶ 4} On August 8, 2007, the court, in appellee's criminal case, filed an "Entry
Terminating Community Control Unsuccessfully."         In that entry, the court expressly
stated that it "finds the defendant has not complied with the terms of her community
control."
       {¶ 5} Approximately seven years later, appellee filed an application to seal the
record of her theft conviction. The trial court held a hearing on appellee's application and
appellee testified. Appellee admitted that she completed only 75 of the 100 hours of
community service required by her sentence. However, she testified she complied with
the other requirements of her sentence. The trial court granted appellee's application to
seal the record despite her failure to complete all the hours of community service required
by her sentence.
       {¶ 6} The state timely appealed assigning the following errors:
              [1.] THE TRIAL COURT LACKED JURISDICTION TO SEAL
              THE RECORD OF CONVICTION BECAUSE THE
              APPLICANT HAS NOT COMPLETED HER HOURS OF
              COMMUNITY SERVICE.

              [2.] THE TRIAL COURT LACKED JURISDICTION TO SEAL
              THE RECORD OF CONVICTION BECAUSE THE
              APPLICANT STILL OWES RESTITUTION.

Standard of Review
       {¶ 7} An appellate court generally reviews a trial court's disposition of an
application to seal a record of conviction under an abuse of discretion standard. State v.
Black, 10th Dist. No. 14AP-338, 2014-Ohio-4827, ¶ 6. An abuse of discretion connotes
more than an error of law or judgment; it requires that the court's decision is
"unreasonable, arbitrary or unconscionable." State v. Norfolk, 10th Dist. No. 04AP-614,
2005-Ohio-336, ¶ 4, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
However, we review questions of law of de novo. Black at ¶ 6. Whether an applicant is an
eligible offender for purposes of sealing a criminal record is an issue of law. State v.
Hoyles, 10th Dist. No. 08AP-946, 2009-Ohio-4483, ¶ 4.
No. 14AP-583                                                                                 3

Law of Expungement
       {¶ 8} In its first assignment of error, the state contends that the trial court erred
as a matter of law when it granted appellee's application to seal the record of her prior
conviction because appellee was not eligible under the statute due to her failure to
complete the terms of her sentence. We agree.
       {¶ 9} The sealing of a criminal record is an act of grace created by the state, and
so is a privilege, not a right. Black at ¶ 8; State v. Simon, 87 Ohio St.3d 531, 533 (2000),
quoting State v. Hamilton, 75 Ohio St.3d 636, 639 (1996).            A court may grant an
application to seal a criminal record only when all statutory requirements for eligibility
are met. State v. Brewer, 10th Dist. No. 06AP-464, 2006-Ohio-6991, ¶ 5.
       {¶ 10} Pursuant to R.C. 2953.32(A)(1), "an eligible offender may apply to the
sentencing court * * * for the sealing of the record of the case that pertains to the
conviction." Further, where the offender was convicted of a felony " '[a]pplication may be
made at the expiration of three years after the offender's final discharge.' " Black at ¶ 9,
quoting R.C. 2953.32(A)(1). A court can grant an application to seal a criminal record
only to an "eligible offender." Id. If an applicant is not an eligible offender, a trial court
lacks jurisdiction to grant the application. State v. Dominy, 10th Dist. No. 13AP-124,
2013-Ohio-3744, ¶ 6.
       {¶ 11} The first considerations in determining eligibility under the statute are
whether the offender has obtained a final discharge and whether three years have elapsed
since that event. State v. Aguirre, __ Ohio St. 3d __, 2014-Ohio-4603, ¶ 18. An offender
is not eligible to have his or her record sealed unless he or she satisfies these two
prerequisites. Id. Moreover, for purposes of determining eligibility, an offender is not
finally discharged until the offender has served all components of his or her sentence
previously imposed by the court. State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-
3337, ¶ 7; State v. Pettis, 133 Ohio App.3d 618, 619 (8th Dist.) ("[a]n offender is not finally
discharged until he has served any sentence previously imposed by the court"). This court
has reaffirmed this principle on multiple occasions in the context of restitution. Black at
¶ 10 (noting the offender has made only partial restitution and stating "[f]inal discharge
under the statute does not occur until restitution has been satisfied"); State v. Jordan,
10th Dist. No. 07AP-584, 2007-Ohio-6383, ¶ 7 (concluding that where "it is undisputed
that appellant had not been finally discharged * * * because he had not paid the ordered
No. 14AP-583                                                                               4

restitution," Jordan thus "was not yet eligible to apply to seal his conviction records"); In
re White, 165 Ohio App.3d 288, 2006-Ohio-233, ¶ 7 (10th Dist.) (holding "[a]n offender is
not finally discharged for purposes of R.C. 2953.32(A)(1) if the offender still owes
restitution").
       {¶ 12} The state asserts that because appellee did not fulfill the community service
requirement of her sentence, she has not received a final discharge and, therefore, she is
not an eligible offender for purposes of R.C. 2953.32(A)(1). We agree.
       {¶ 13} In Aguirre, the Supreme Court of Ohio stated "[w]e hold that a trial court
may not seal an offender's record before the offender has completed all sentencing
requirements, including any order to make restitution to third parties." Id. at ¶ 2.
Although most cases addressing this issue have involved the offender's failure to pay
restitution required by the sentence, the Aguirre court has made it clear that all
sentencing requirements must be satisfied before an applicant is eligible to have his or her
record of conviction sealed. Id.
       {¶ 14} Here, it is undisputed that appellee has not completed the community
service component of her sentence. Therefore, she is not currently an eligible offender for
purposes of the sealing statute. The fact that the court in her underlying criminal case
terminated her community control (noting appellee's unsuccessful completion) does not
make appellee eligible to have her criminal record sealed because she did not complete all
components of her sentence. Id. Because appellee is not an eligible offender, the trial
court erred in granting appellee's application to seal her criminal record and we sustain
the state's first assignment of error.
       {¶ 15} Having sustained appellant's first assignment of error, appellant's second
assignment is rendered moot. We reverse the judgment of the Franklin County Court of
Common Pleas, and remand the matter to the trial court with instructions to deny
appellee's application.
                                    Judgment reversed; cause remanded with instructions.

                                SADLER, J., concurs.
                    BRUNNER, J., concurs in part and dissents in part.
No. 14AP-583                                                                               5

Brunner, J., concurring in part and dissenting in part.
       {¶ 16} I respectfully dissent from the decision of the majority but concur with its
resulting outcome.     In reversing the trial court's decision, I would find Gainey's
application for sealing of the records of her criminal conviction to be premature. Gainey
failed to complete the last 25 hours of her community service requirement before she was
discharged from probation. This deficiency was due in part to being a single mother,
caring for her mother who had pancreatic cancer, and caring for her grandfather, uncle,
father, younger brothers, and nephews after her mother died.
       {¶ 17} Despite statements made at oral argument and testimony at the trial level,
there is no legal barrier that prevents Gainey from completing her remaining community
service now, nor is there a legal principle that would preclude the probation department
and the court from taking notice of that completion. Former R.C. 2951.09 was repealed
by Am.H.B. No. 490, effective January 1, 2004; it previously provided:
              When a defendant on probation is brought before the judge or
              magistrate under section 2951.08 of the Revised Code, the
              judge or magistrate immediately shall inquire into the
              conduct of the defendant, and may terminate the probation
              and impose any sentence that originally could have been
              imposed or continue the probation and remand the defendant
              to the custody of the probation authority, at any time during
              the probationary period. When the ends of justice will be
              served and the good conduct of the defendant so held
              warrants it, the judge or magistrate may terminate the period
              of probation. At the end or termination of the period of
              probation, the jurisdiction of the judge or magistrate to
              impose sentence ceases and the defendant shall be
              discharged.

(Emphasis added.)

       {¶ 18} The trial court has not lost jurisdiction over Gainey's case. I would remand
the case with instructions to the trial court to provide Gainey a reasonable interval of time
to work with the trial court's probation department in order to complete her community
service (if she wishes to do so), and upon satisfactory proof of completion, reconsider her
application in light of her completed service.
       {¶ 19} At the oral argument of this appeal, the parties appeared to believe that it is
now impossible for Gainey to complete the remaining 25 hours of her court-ordered
community service because, once the probation department closed its file on her case, it
No. 14AP-583                                                                             6

cannot be reopened, whether or not records are unavailable.         In addition, during a
June 26, 2014 hearing before the trial court, a representative of the probation department
testified that, as a result of Gainey's discharge, neither the probation department nor the
court had jurisdiction to enforce the unfinished 25 hours of community service. Based on
the repeal of R.C. 2951.09 in 2004, this is not the case.
       {¶ 20} Further, a recent decision of the Supreme Court of Ohio in State v. Aguirre,
___ Ohio St.3d ___, 2014-Ohio-4603, in resolving conflicts between the Eighth and
Tenth Districts' applications of R.C. 2953.31 and 2953.32 determined that, since the term
"final discharge" is not defined by statute:
              [A]n offender is not finally discharged until he has served any
              sentence previously imposed by the court. * * * For example,
              this court and others have repeatedly held that final discharge
              under the [sealing] statute does not occur until court-ordered
              restitution has been satisfied.

Id. at ¶ 14, quoting State v. Hoover, 10th Dist. No. 12AP-818, 2013-Ohio-3337, ¶ 7. The
Supreme Court reasoned in Aguirre that an application to seal when restitution is unpaid
is "premature."
              A court is not imposing "continued punishment" by denying a
              premature application to seal an offender's record before the
              completion of restitution.

Id. at ¶ 24. The state argues that, since Gainey has not completed her community service
requirement, just like an applicant who has not paid all court-ordered restitution, her
application to seal her records is premature.
       {¶ 21} We acknowledge that the Supreme Court in Davis v. Wolfe, 92 Ohio St.3d
549, 551-52 (2001), and courts in other cases have held that the trial court loses
jurisdiction over a probationer after the end of the term of probation, but we point out
that their decisions were rendered, relying on former R.C. 2951.09. With R.C. 2951.09
repealed, as the law stands today (and as it stood at the time of Gainey's 2007 discharge
from probation) the trial court does not lose jurisdiction when a period of probation ends.
See, e.g., State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, ¶ 12-13 and
State v. Thomas, 10th Dist. No. 13AP-985, 2014-Ohio-2912, ¶ 17, recognizing that R.C.
2951.09 was repealed, effective January 1, 2004. Thus, the probationer is simply no
longer bound by the terms of his or her probation (since those terms have expired or been
No. 14AP-583                                                                                               7

discharged).     The trial court retains jurisdiction to, for example, conduct probation
violation hearings for violations that occurred during the period of probation "provided
that the notice of violations was properly given and the revocation proceedings were
commenced before the expiration." Hemsley at ¶ 13.
        {¶ 22} In both Hemsley and Thomas the respective trial courts retained
jurisdiction past the end of the term of probation to punish violations that occurred and
were properly noticed within the period of probation. While Gainey's circumstances are
different, the holdings of Hemsley and Thomas are persuasive.                         Gainey, a former
probationer, wishes to expunge her conviction and is prevented from doing so by the fact
that she did not complete her community service before being discharged from probation.
While her probation has been discharged, and the probation department cannot now
compel her to obey the expired terms of her probation, the trial court and the probation
department are not deprived of jurisdiction if she chooses to do so. They may, and
should, allow Gainey to complete her community service if she voluntarily wishes to do so
in order to completely fulfill the conditions of her sentence and become an eligible
offender under R.C. 2953.32. Once she has done so, the trial court is able to find that she
has completed the terms of her probation, is an eligible offender under R.C. 2953.32, and
may exercise its discretion as to her application for the sealing of her records.1
        {¶ 23} Therefore, I would reverse the decision of the trial court with instructions to
permit her to voluntarily complete community service and to reconsider her application in
accordance with this decision.




1 The state also argues that Gainey did not pay her restitution and is ineligible for that reason. However,

Gainey testified that she had paid restitution in full and the probation officer who testified in the hearing
did not contradict that testimony. The only indication that Gainey did not pay in full was an
unauthenticated written report attached to the state’s objections. The author of this report was not called
as a witness at the hearing nor did any witness or attorney mention the report or even suggest that Gainey
had not paid restitution. The trial court acted within its fact-finding discretion when it chose to believe
that Gainey had fulfilled her restitution obligation.
