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State v. C.S.

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 10, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
C.S. DEFENDANT-APPELLEE

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-07-500126-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor Diane Smilanick Assistant County Prosecutor

          ATTORNEYS FOR APPELLEE Mark A. Stanton Cuyahoga County Public Defender John T. Martin Assistant Public Defender

          BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Plaintiff-appellant, the state of Ohio ("State"), appeals from the trial court's decision granting the application for expungement of the criminal record in favor of defendant-appellee, C.S. For the reasons set forth below, we affirm.

         {¶2} In April 2008, C.S. pled no contest and was found guilty of two counts of theft. The charges are the result of C.S.'s misappropriation of her client's funds.[1] In June 2018, the court sentenced C.S. to five years of community control sanction under the supervision of the probation department, with the following conditions:

Defendant to abide by the rules and regulations of the probation department. Defendant to perform court community work service for 500 hours. Violation of the terms and conditions may result in more restrictive sanctions as approved by law. * * * The defendant is ordered to pay supervision fee(s). Restitution to be paid at a minimum of $750.00 a month. No fine imposed. Defendant is to pay court costs.

         {¶3} The trial court's judgment entry does not state the total amount owed or name the victim. It appears from the record that at some point before February 2008, C.S. had already repaid the victim $15, 000.[2]

         {¶4} In March 2010, the trial court held a probation compliance hearing. The trial court found C.S. to be in compliance and current with restitution. The court denied C.S.'s motion to terminate community control and placed C.S. on inactive probation. The court ordered C.S. to continue to make monthly restitution payments and noted: "community control to terminate upon restitution in full."

         {¶5} In December 2012, C.S. filed a pro se motion to terminate her community control sanction. In her motion, C.S. stated that she owed a total of $100, 000 in restitution to the victim. She paid $63, 250 directly to the victim, with the remaining $36, 750 balance paid to the victim through the Ohio Attorneys Client's Security Fund ("Fund"). She further stated that she has paid $10, 035 of the $36, 750 owed to the Fund, making her total payments $73, 285. In January 2013, C.S. entered into a cognovit note with the Fund in the amount of $26, 250, with the original balance of $36, 750. After C.S. filed this cognovit note with the court in January 2013, the trial court then terminated C.S.'s community control sanction.

         {¶6} In April 2017, C.S. filed a pro se motion for expungement, which the State opposed. The trial court ordered an expungement investigation report and set the matter for a hearing in June 2017. At the hearing, the State argued that it opposed the expungement because C.S. still owes $26, 250 in restitution. C.S. agreed with the general proposition that if restitution is owed, then an expungement should not be granted, but argued that the victim in this case is not owed any restitution because the Fund made the victim whole by paying the victim the remaining balance of the restitution. Defense counsel advised that C.S. entered into an agreement with the Fund in which she is making payments through the Ohio attorney general's office from a cognovit note between C.S. and the Fund. At the time, C.S. owed the Fund $26, 250. C.S. argues that the Fund made the victim whole in this case, and in effect is acting as an insurer. Since the victim has been made whole and the matter is now between C.S. and the Fund via the attorney general's office, C.S. argued that the restitution order has been satisfied and she is eligible for an expungement. The trial court granted C.S.'s motion, finding:

In this case, the victim was made whole. And I really liken the - the Clients' Security Fund as an insurance policy. And it is - it is well-decided that the common pleas court - we do not give restitution to an insurance company.
Now, they can go after the person, but we don't use that in deciding, for example, the terms of their community control or things of that nature because it is insurance. And we don't force them to pay - defendants ...

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