Ohio Supreme Court considering aspects of sealing criminal records

Sharlene Aguirre was convicted in 2001 for theft from a Columbus company that operates gift shops. Pleading guilty, she was sentenced to five years of community control, ordered to pay the company $2,000 and $32,562 to two insurance companies.

The Cleveland Plain Dealer earlier in the week related her community control ended in 2007, and in January 2012 she sought to have her conviction expunged. At the time she had repaid the crime victim, the company that owned the gift shops, but still owed the third-party insurance companies $14,152.

The trial court nonetheless granted the application to seal the record of conviction, according to court documents,  because the restitution had been ordered to an insurance company and Aguirre had paid a substantial portion of the remaining restitution.

The State, however, appealed, asserting that the trial court granted her application to seal her conviction prematurely because she had not been finally discharged from her conviction, under R.C. 2953.32, rendering her ineligible to seal the conviction. The Tenth District affirmed the trial court’s ruling on March 5, 2013, saying "the trial court interpreted the community control provision as it now stands, placing victims and private parties into a state judgment collection agency if they need or choose this remedy" and that denying the defendant's request to seal her conviction was "a continued punishment".

On March. 8, 2013, the State filed an application for en bancconsideration and review by the Ten District along with a motion to certify a conflict.

The Tenth District Court of Appeals on May 2, 2013, journalized on May 7, 2013 certified the conflict to the  Court based on its decision in Aguirre and the Eighth District Court of Appeals' decision in State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 WL 587493 (May 31, 2001), but by decision rendered on May 16, 2013, two judges of the court of appeals dismissed the State's en banc application as moot.

The State is now filing a discretionary appeal (No. 13-876) and certified-conflict appeal (No, 13-870), which were consolidated for review. 

The Plain Dealer’s article relays that the underlying issue is one in which prosecutors argue Aquirre’s case “should not have been viewed as "discharged," a requirement to have records sealed, until she met all terms of her sentence, and since she still owed money to the insurance companies, she was not yet eligible to have her record sealed. The insurance companies being third  parties is irrelevant. Lawyers representing Aguirre argue a person is “finally discharged” once released from the court’s supervision, and that, they say, happened when her court-supervised community control ended in 2007.”

As significant is the fact that this is a certified conflict case as well, with the Court looking at resolving the issue between the Tenth District’s decision in State v. Aguirre, 10th Dist. No.12AP-415, 2013-Ohio-768, and those rendered by the Eighth District Court of Appeals in  State v. Wainwright,   8th Dist. No. 60491, 1991 WL 64303,  (Apr. 25, 1991),  State v. Wainwright, 75 Ohio App.3d 793 (8th Dist.1991), State v. Pettis,  133 Ohio App.3d 618, 622 (8th Dist.1999)9 and  State v. McKenney,  8th Dist. No. 79033, 2001 WL 587493 (May 31, 2001).

Oral arguments were held Wednesday, May 13, 2014.