[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Aguirre, Slip Opinion No. 2014-Ohio-4603.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-Ohio-4603
            THE STATE OF OHIO, APPELLANT, v. AGUIRRE, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
     it may be cited as State v. Aguirre, Slip Opinion No. 2014-Ohio-4603.]
Criminal law—R.C. 2953.32—Sealing of records—Applicant who has failed to
        complete restitution portion of sentence is not eligible for sealing of
        record.
      (Nos. 2013-0870 and 2013-0876—Submitted May 13, 2014—Decided
                                   October 22, 2014.)
    APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
                           No. 12AP-415, 2013-Ohio-768.
                               ____________________
                              SYLLABUS OF THE COURT
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 she
        has paid all court-ordered restitution.
                               ____________________
                             SUPREME COURT OF OHIO




       O’CONNOR, C.J.
       {¶ 1} Under Ohio law, a court may seal an eligible offender’s felony
conviction record upon an “[a]pplication * * * made at the expiration of three
years after the offender’s final discharge.” R.C. 2953.32(A)(1). In this appeal,
we resolve a conflict between the Eighth and Tenth Appellate Districts over
whether an offender has secured a “final discharge” to pursue sealing pursuant to
R.C. 2953.32(A)(1) when she has not finished paying court-ordered restitution to
a third-party insurance company. We note, however, that the conflict arises from
a former version of Ohio’s restitution statute, R.C. 2929.18(A)(1), which
permitted a court to award restitution to third parties, including insurers. See
former R.C. 2929.18(A)(1), 148 Ohio Laws, Part III, 5767, 5785 (an order of
restitution “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”). The General Assembly removed
that language from the restitution statutes, effective June 1, 2004. 150 Ohio Laws,
Part III, 3914 (deleting language from R.C. 2929.18(A)(1) for felonies) and 3922
(deleting language from R.C. 2929.28(A)(1) for nonfelonies).            Given these
deletions, “the legislature’s intent to disallow payment to victims’ insurance
companies is clear.” State v. Johnson, 1st Dist. Hamilton No. C-100702, 2011-
Ohio-5913, ¶ 5. In cases in which sentencing occurs after June 1, 2004, “[a] court
may not order a defendant to pay restitution to a victim’s insurance company.”
Baldwin’s Ohio Practice, Criminal Law, Section 119:6 (2013). Thus, that portion
of our analysis dealing with restitution to third parties is limited to cases in which
an offender was sentenced prior to June 1, 2004.
       {¶ 2} We 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. Because our holding rejects the analysis adopted
by the Tenth District Court of Appeals in this case, and because appellee,



                                          2
                                   January Term, 2014




Sharlene Aguirre, concedes that she still owes restitution to two third-party
insurance companies, we reverse the appellate court’s judgment and remand this
case to the Franklin County Court of Common Pleas.
                                RELEVANT BACKGROUND
                              The Tenth District: Aguirre
        {¶ 3} On May 22, 2002, Aguirre pleaded guilty to one count of theft, a
fourth-degree felony, for stealing money to pay her gambling debts.                       The
prosecution and defense jointly recommended a sentence of five years of
community control, plus restitution to be paid to Aguirre’s former employer,
Economy Enterprises, Inc., and two of its insurance companies, Westfield
Insurance and Harleysville Insurance Company.                    The court imposed the
recommended sentence on July 9, 2002. Aguirre was ordered to pay restitution of
$2,000 to Economy Enterprises and $32,562.47 to the insurance companies.
Aguirre paid $4,000 soon thereafter and then began making monthly payments of
$100 toward the balance.
        {¶ 4} In June 2007, Aguirre completed the community-control portion of
her sentence, but she had not yet met her restitution obligation.
        {¶ 5} On January 12, 2012, Aguirre applied to have the record of her
theft conviction sealed. The state objected, arguing that Aguirre was ineligible for
sealing under R.C. 2953.32 until she paid the full amount of restitution.1
Although the trial court recognized that Aguirre had not satisfied her obligation to
make restitution, it nevertheless granted Aguirre’s application to seal her record
because the restitution was “ordered to an insurance company and [Aguirre] paid
a substantial portion” of the total.2

1
  We note that the amount owed is not entirely clear from the record. But the parties do not
dispute that the amount owed was in excess of $14,000.
2
  Though the Tenth District repeatedly referred to the process at issue in this case as
“expungement,” we note that expungement is a separate process from sealing a conviction record.




                                              3
                                 SUPREME COURT OF OHIO




        {¶ 6} The Tenth District Court of Appeals affirmed. It focused on three
considerations that it found warranted sealing despite the restitution owed by
Aguirre at the time.
        {¶ 7} First, the appellate court relied on the notion that the “statutory
provisions governing conviction expungement are remedial in nature and must be
liberally construed.” State v. Aguirre, 10th Dist. Franklin No. 12AP-415, 2013-
Ohio-768, ¶ 12, citing State v. Boddie, 170 Ohio App.3d 590, 2007-Ohio-626, 868
N.E.2d 699, ¶ 8 (8th Dist.). Second, it noted that the creditor retains the same
remedies it had “for collection of unpaid restitution * * * under R.C. 2929.28.”
Id. at ¶ 14; see also id. at ¶ 16, 18. Third, the appellate court concluded that
“denying expungement is a continued punishment, with no benefit to a victim or
private payer who is owed restitution.” Id. at ¶ 17.
        {¶ 8} The Tenth District certified that its decision was in conflict with
the Eighth District’s decision in State v. McKenney, 8th Dist. Cuyahoga No.
79033, 2001 WL 587493 (May 31, 2001), which held that a trial court cannot seal
an offender’s record of conviction until that offender has finished paying court-
ordered restitution to a third-party insurance company. Id. at *3.
                             The Eighth District: McKenney
        {¶ 9} Penny McKenney pleaded guilty on February 17, 1988, to one
count of grand theft. Her sentence included a suspended prison term, three years’
probation, and restitution. After the victim’s insurance company reimbursed the
victim for the cost of the stolen goods, McKenney agreed to a civil judgment
against her in favor of the third-party insurer.
        {¶ 10} McKenney made monthly payments to the insurance company, and
when she applied for sealing of her record on October 15, 1999, she had paid half

Expungement results in deletion, making all case records “permanently irretrievable,” R.C.
2953.37(A)(1), while sealing simply provides a shield from the public’s gaze. R.C. 2953.32(D),
restricting inspection of sealed records of conviction to certain persons for certain purposes. We
use the term “expungement” in this opinion only where it appears in quoted material.




                                                4
                                January Term, 2014




of the total owed. The trial court granted the motion to seal McKenney’s record.
The court determined that McKenney had made complete restitution because she
had permitted the insurer to obtain a civil judgment against her, and more than
three years had passed since the end of McKenney’s probation.
       {¶ 11} The Eighth District Court of Appeals reversed. In doing so, it
stated that McKenney had not satisfied the statutory prerequisites for eligibility to
seal her record. It held that under R.C. 2953.32(A)(1), she could apply to have
her conviction record sealed only after three years have expired since her final
discharge. The Eighth District concluded that a final discharge for the purposes
of sealing a record requires full payment of restitution.
       {¶ 12} In reaching this conclusion, McKenney relied upon established
legal norms. The McKenney court first noted that “an offender is not finally
discharged until she has served the sentence imposed by the court.” Id. at *2,
citing State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (8th Dist.1999), and
Willowick v. Langford, 15 Ohio App.3d 33, 34, 472 N.E.2d 387 (11th Dist.1984).
And the appellate court concluded that “[r]estitution, as a condition of an
offender’s probation, is a part of the offender’s sentence.”         Id.   It rejected
McKenney’s argument that because the victim had been made whole, the purpose
of restitution had been satisfied. The court stated that the purpose of restitution is
not merely to benefit the victim; restitution also is meant to punish the offender
and contribute to the offender’s rehabilitation. Id.
       {¶ 13} The Eighth District’s decision in McKenney is consistent with
decisions by the Tenth District issued before Aguirre. State v. Jordan, 10th Dist.
No. 07AP-584, 2007-Ohio-6383 (application for sealing of record properly
denied; restitution owed to Bureau of Workers’ Compensation had not been fully
paid); In re White, 165 Ohio App.3d 288, 846 N.E.2d 93 (10th Dist.2006) (sealing
application properly denied; applicant had not received final discharge because
court-ordered restitution not paid).




                                          5
                              SUPREME COURT OF OHIO




        {¶ 14} And even after Aguirre was decided, the Tenth District issued
State v. Hoover, 10th Dist. Franklin Nos. 12AP–818 and 12AP–826, 2013-Ohio-
3337, containing the following passage:


        The term “final discharge” is not defined by statute. Per case law,
        however, an 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.


Hoover at ¶ 7. But in Aguirre, the Tenth District departed from Jordan, White,
and Hoover, without citing those cases, based on its apparent belief that certain
considerations may justify excusing the applicant from completing court-ordered
restitution.   The court also did not cite R.C. 2953.32(A)(1) or address its
requirement that the applicant must obtain a “final discharge” as a condition of
eligibility.
        {¶ 15} We recognized the conflict certified by the Tenth District and
agreed to answer the following question certified for our review: “Whether an
offender’s record of conviction may be sealed when the offender still owes court-
ordered restitution to a third-party insurance company.” State v. Aguirre, 136
Ohio St.3d 1470, 2013-Ohio-3790, 993 N.E.2d 776. We also accepted the state’s
discretionary appeal on the following similar proposition: “A defendant/applicant
who still owes restitution has not been finally discharged and is not eligible to seal
her conviction, under R.C. 2953.32(A)(1).” 136 Ohio St.3d 1472, 2013-Ohio-
3790, 993 N.E.2d 777.




                                          6
                                 January Term, 2014




                                      ANALYSIS
        {¶ 16} Our analysis is driven by what we have held previously: “the
sealing of a criminal record is a ‘ “privilege, not a right.” ’ ” State ex rel.
Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989,
¶ 15, quoting State v. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980,
¶ 11, quoting State v. Futrall, 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d
497, ¶ 6. Accord State v. Simon, 87 Ohio St.3d 531, 533, 721 N.E.2d 1041
(2000); State v. Hamilton, 75 Ohio St.3d 636, 639-640, 665 N.E.2d 669 (1996).
Suppression of a criminal record at the request of the offender is an “ ‘act of grace
created by the state.’ ” Boykin at ¶ 11, quoting Hamilton at 639. Accordingly, a
court may seal an offender’s conviction record “only when all requirements for
eligibility are met.” Boykin, id., citing Futrall at ¶ 6.
        {¶ 17} With that understanding in mind, we turn to the Tenth District’s
decision.
                               Statutory Construction
        {¶ 18} The Tenth District misstated the standard to be applied by a trial
court in determining an offender’s eligibility to have her conviction record sealed.
It quoted an Eighth District case that described the standard as follows: a “ ‘court
must weigh the interest of the public’s need to know as against the individual’s
interest in having the record sealed, and must liberally construe the statute so as to
promote the legislative purpose of allowing expungements.’ ” Aguirre, 2013-
Ohio-768, at ¶ 13, quoting State v. Hilbert, 145 Ohio App.3d 824, 827, 764
N.E.2d 1064 (8th Dist.2001). But the relevant statutory language makes clear that
a court can apply this standard only after it has determined that “the applicant is
an eligible offender.” See R.C. 2953.32(C)(1)(a). The first considerations in
determining eligibility are whether the offender has obtained a final discharge and
whether three years have elapsed since that event.              R.C. 2953.32(A)(1)
(“Application may be made at the expiration of three years after the offender’s




                                           7
                             SUPREME COURT OF OHIO




final discharge * * *”). Thus, the offender is not permitted even to file the
application unless he or she satisfies those two prerequisites. Liberal construction
and weighing of the public interest become considerations only after the applicant
has cleared these preliminary hurdles.
         {¶ 19} Ohio appellate courts, including the Tenth District, have repeatedly
held that “[a]n offender is not finally discharged for purposes of R.C.
2953.32(A)(1) if the offender still owes restitution.” White, 165 Ohio App.3d 288,
2006-Ohio-233, 846 N.E.2d 93, ¶ 7 (10th Dist.). We agree. When restitution is
owed, discharge from community control does not effect a final discharge for
purposes of R.C. 2953.32(A)(1).
         {¶ 20} Here, it is undisputed that Aguirre was sentenced by the trial court
to pay restitution to her employer’s insurance companies. Consequently, final
discharge cannot occur until restitution is fully paid. Only then 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 Aguirre apply to have her record sealed. See R.C.
2953.32(A)(1); Hoover at ¶ 7; White at ¶ 7; McKenney, 2001 WL 587493, *2.
Contrary to the implications of certain statements of the trial court at the hearing
in this case, the person or entity to whom restitution is owed is immaterial, unless
the person or entity was not statutorily eligible for restitution at the time of the
order.
         {¶ 21} Aguirre concedes that she has yet to pay over $14,000 in court-
ordered restitution to the third-party insurance companies. As we have noted,
courts were permitted to order restitution to third parties when Aguirre was
sentenced in 2002. Therefore, as a matter of law, Futrall, 123 Ohio St.3d 498,
2009-Ohio-5590, 918 N.E.2d 497, ¶ 6, the trial court could not find that Aguirre
had obtained the final discharge that is required to seal a conviction record
pursuant to R.C. 2953.32(A)(1).




                                          8
                                 January Term, 2014




                              Benefit of Public Record
       {¶ 22} We also note that the Tenth District held that refusing to seal a
record of conviction “is a continued punishment, with no benefit to a victim or
private payer who is owed restitution.” 2013-Ohio-768, at ¶ 17. Not so.
       {¶ 23} We recognize that although the primary goal of restitution is
remedial or compensatory, it also serves punitive purposes. Paroline v. United
States, __ U.S. __, 134 S.Ct. 1710, 1726, 188 L.Ed.2d 714 (2014). But payment
of court-ordered restitution is an obligation “ ‘ “rooted in the traditional
responsibility of a state to protect its citizens by enforcing its criminal statutes and
to rehabilitate an offender by imposing a criminal sanction intended for that
purpose.” ’ ” Pettis, 133 Ohio App.3d at 621, 729 N.E.2d 449, quoting Kelly v.
Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), quoting In re
Pellegrino, 42 B.R. 129, 133 (Bankr.D.Conn.1984). It thus serves both remedial
and punitive purposes.
       {¶ 24} A court is not imposing “continued punishment” by denying a
premature application to seal an offender’s record before the completion of
restitution. Rather, the court is ensuring that both the punitive and remedial
aspects of the restitution order are satisfied before the offender’s sentence is
sealed, in accordance with the statutory scheme. Compare R.C. 2929.15(A)(1)
(limiting the duration of community control to five years) with R.C.
2929.18(A)(1) (placing no limit on the duration of the restitution obligation).
       {¶ 25} To the extent that public policy might support the sealing of a
criminal record before the offender pays all court-ordered restitution,
implementation of that policy must occur at the legislative branch. See Dunbar v.
State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 19 (refusing to
create judicial exceptions to statutory provision, stating that an offender who
pleaded guilty cannot not be declared wrongfully imprisoned). As the General
Assembly has demonstrated through its statutory framework, it is clearly aware of




                                           9
                             SUPREME COURT OF OHIO




these issues and is capable of enunciating its determination of which of the
competing interests implicated here are best served by sealing a conviction record
and at what point sealing shall be permitted. See Harmelin v. Michigan, 501 U.S.
957, 964, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), quoting Rummel v. Estelle,
445 U.S. 263, 274, 100 S. Ct. 1133, 63 L.Ed.2d 382 (1980) (“ ‘the length of the
sentence actually imposed is purely a matter of legislative prerogative’ ”); United
States v. Jones, 131 U.S. 1, 19, 9 S.Ct. 669, 33 L.Ed. 90 (1889) (“Of course, our
province is construction only; the policy of the law is the prerogative of the
legislative department”). Indeed, the General Assembly’s amendments to the
statutory scheme for sealing records demonstrate its continued awareness of
public-policy concerns, including both sealing and restitution. As we have stated
previously,


       The Ohio Legislature having dealt with the subject, and having
       made certain provisions and certain exceptions thereto, it will be
       presumed that the Legislature has exhausted the legislative intent,
       and that it has not intended the practice to be extended further than
       the plain import of the statutes already enacted.


Madjorous v. State, 113 Ohio St. 427, 433, 149 N.E. 393 (1925).
       {¶ 26} Sealing Aguirre’s conviction record before she is eligible ignores
the extant and explicit statutory language restricting eligibility to those applicants
who have obtained a final discharge and who have waited three years thereafter to
apply for sealing. See R.C. 2953.32(A)(1). The courts may not excuse applicants
from requirements prescribed by the General Assembly in its proper exercise of
legislative power.
       {¶ 27} As we have said, sealing a conviction record is, first and foremost,
an act of grace. Boykin, 138 Ohio St.3d 97, 2013-Ohio-4582, 4 N.E.3d 980, at



                                         10
                                January Term, 2014




¶ 11.      No court is ever required to seal conviction records.          See R.C.
2953.32(C)(1)(c) and (e). But the General Assembly has decreed that courts are
required to refuse to seal a record when the offender is not yet eligible to have her
conviction records sealed. No discretionary consideration can justify granting an
application to seal before the offender has established eligibility to apply. See
R.C. 2953.32(C)(1) and (2) (requiring court to find that the offender is an eligible
offender before exercising its discretion to consider whether to grant the
application).
        {¶ 28} An offender may apply to have her records sealed “at the
expiration of three years after the offender’s final discharge if convicted of a
felony.” R.C. 2953.32(A)(1). While community-control sanctions end after five
years, R.C. 2929.15(A)(1), the obligation to pay restitution does not expire due to
the passage of time. See R.C. 2929.18. Thus, an offender who has satisfied five
years of community-control obligations is not eligible to apply for sealing until
his or her restitution obligations have been satisfied, no matter how long that
takes. This is so because 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.
                                   CONCLUSION
        {¶ 29} We answer the certified question in the negative and, therefore,
reverse the Tenth District’s judgment. We hold that 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 all court-ordered restitution has been paid.
        {¶ 30} Because Aguirre still owes restitution in this case, she has not
received a final discharge of her conviction and cannot have her records sealed.
Accordingly, we remand the case to the trial court with instructions to vacate its
prior judgment and conduct any additional proceedings consistent with this
opinion.




                                         11
                             SUPREME COURT OF OHIO




                                                                   Judgment reversed
                                                                and cause remanded.
       O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
       PFEIFER, J., dissents and would affirm the judgment of the court of
appeals.
       O’NEILL, J., dissents.
                            _______________________
       O’NEILL, J., dissenting.
       {¶ 31} Respectfully, I dissent.
       {¶ 32} The Ohio Revised Code entrusts trial courts with discretion to
reduce the period of time for a community-control sanction or even to impose a
less restrictive sanction where an offender, for a significant period of time, fulfills
the conditions of a sanction in an exemplary manner. R.C. 2929.15(C). In short,
for good cause shown, a trial court can lighten a sentence when convinced that the
defendant has gotten the message. The decision in this case is at odds with that
power. The majority holds instead that a trial court may never seal an offender’s
record before the offender has completed all sentencing requirements, and it does
so without even mentioning a trial court’s power to modify those very
requirements.
       {¶ 33} The majority opinion sees some difference between community-
control sanctions and a restitution order, and I see none. It is a distinction without
a difference. R.C. 2929.15(A)(1) authorizes restitution under R.C. 2929.18(A)(1)
as a community-control sanction. R.C. 2929.15(A)(1) (“the court may directly
impose a sentence that consists of one or more community control sanctions
authorized pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code”). Restitution is a community-control sanction. R.C. 2929.01(E) defines
“community control sanction” as a sanction “described in * * * 2929.18 of the
Revised Code.” R.C. 2929.18(A)(1) describes the sanction of restitution. Thus,



                                          12
                                    January Term, 2014




the trial court has the authority to modify the very sentence of restitution it has
imposed. I believe it defies logic for this court to extend restitution orders into
perpetuity when the clear intent of the legislature was to limit the force of these
sanctions to a five-year term. R.C. 2929.15(A)(1) (“The duration of all community
control sanctions imposed upon an offender under this division shall not exceed
five years”).
       {¶ 34} In light of the clear meaning of the community-control laws, this
case is easily resolved. Other than the unpaid restitution, Ms. Aguirre’s
community-control sanctions were terminated on June 19, 2007. Thus, as required
by R.C. 2953.32(A)(1), more than three years had elapsed when Ms. Aguirre
applied to have her conviction record sealed in January 2012.
       {¶ 35} As a broader policy matter, however, the criminal-justice system
simply should not be utilized as the collections agent for private interests, and the
legislature would seem to agree. 150 Ohio Laws, Part III, 3914 and 3922; see
State v. Johnson, 1st Dist. Hamilton No. C-100702, 2011-Ohio-5913, ¶ 5 (“the
legislature’s intent to disallow payment to victims’ insurance companies is
clear”). The common law recognized the civil cause of action for conversion as
distinct from the criminal offense of theft precisely because the state and private
parties stand in different shoes.
       {¶ 36} When a person has a history of compliance with the state’s
community-control sanctions, the language of the statute clearly authorizes what
the trial court did here. The trial court terminated the community-control sanction
and essentially sent the defendant on her way. The trial court clearly demonstrated
its intention to close the books. The trial courts either do, or do not, have statutory
authority to modify their own community-control orders. I would hold that they
do. R.C. 2929.15(C). Today, this court ignores the authority granted by the Ohio
Revised Code, and it does so for the benefit of private creditors. I dissent.
                            _______________________




                                            13
                            SUPREME COURT OF OHIO




       Ron O’Brien, Franklin County Prosecuting Attorney, and Barbara A.
Farnbacher, Assistant Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellee.
                          _______________________




                                           14
