On October 22, 2014, the Ohio Supreme Court, in State v. Aguirre, 2014 Ohio 4603, held that an offender is ineligible to have their conviction sealed under R.C. 2953.32(A)(1) until all sentencing requirements were completed, including full payment of court-ordered restitution.

The Supreme Court’s holding resolved a conflict between the Eighth and Tenth Appellate District over whether an offender has secured “final discharge” to apply for expungement when they have not finished paying court-ordered restitution.

In State v. McKenney, the Eighth District stated that an offender is not finally discharged until they have served the sentence imposed by the court, and that the purpose of restitution is not merely to benefit the victim but is also meant to punish the offender and contribute to the offender’s rehabilitation.

In State v. Aguirre, the Tenth District, certifying that its decision was in conflict with the Eighth District’s McKenney decision, concluded that denying expungement is a continued punishment, with no benefit to a victim or private payer who is owed restitution.

In reaching its holding, The Supreme Court stated that the first considerations in determining expungement eligibility are whether:

· The offender has obtained a final discharge; and

· The 1-year waiting period for a misdemeanor conviction or the 3-year waiting period for a felony conviction has elapsed.

Ohio appellate courts have repeatedly held that an offender is not “finally discharged” until restitution is fully paid and only then, when restitution and all other court-ordered requirements have been fulfilled, does the waiting period begin. See State v. McKenney, 8th Dist. Cuyahoga No. 79033, 2001 WL 587493 (May 31, 2001).

The Supreme Court further stated that it is not a “continued punishment” by denying a premature expungement application 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 statutory scheme. See Aguirre, 2014 Ohio 4603, ¶24.

If you or someone who cares about you has any questions regarding eligibility to clean up a person’s involvement with the Criminal Justice System, please contact Attorney Michael C. Hennenberg to schedule a consultation.