Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
EILEEN KILBANE, PRESIDING JUDGE
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,
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. 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
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.
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."
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.
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 ...