ohiolandlord
03-06-2006, 11:02 AM
From our publication, "Guide to expungements in Ohio" - found here
http://www.erasecriminalrecord.com/expunge.html
CHAPTER 3
When Can You Apply For Expungement?
Before applying for an expungement after being convicted of a crime, you must wait a period of time depending upon the nature of your conviction. One of the reasons for this waiting period is to determine if you are worthy of an expungement. During this time period, you cannot have any more convictions or pending charges. Either will generally disqualify you from the process. If you recall, the court must be satisfied that you have successfully been rehabilitated in order to grant expungement. If you have been convicted of or been charged with another crime, you have not experienced rehabilitation. You can only apply to have your record expunged three years "after [your] final discharge if convicted of a felony." You must wait one year after your final discharge if convicted of a misdemeanor. You are not finally discharged until you have served any sentence previously imposed by the court. The sentence imposed by a trial court includes the terms of probation along with any restitution the court orders you to pay.
R.C. 2951.02(C) provides in pertinent part:
In the interests of doing justice, rehabilitating the offender, and insuring his good behavior, the court may impose additional requirements on the offender, including … requiring an offender to make restitution… for all or part of the value of the property that is subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that he committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension. (emphasis added).
A review of a few cases will elaborate on the concept of what constitutes a final discharge. In State v. Wainwright, Wainwright was convicted of a felony (grand theft) and the trial court sentenced Wainwright to probation and ordered him to pay restitution. When Wainwright applied to have the record of his conviction sealed less than three years after completing full restitution, the trial court granted Wainwright’s motion to seal the record of his conviction. But the Eighth Appellate District Court reversed, finding that Wainwright had not been finally discharged until he paid full restitution and that the trial court erred by granting the motion to seal the record of Wainwright's conviction less than three years after making full restitution.
In a similar case, State v. Pettis, the Eighth Appellate District Court considered the case of a woman convicted of stealing and trafficking in food stamps. Ms. Pettis was ordered to make restitution in the amount of $20,396.00 (the amount the prosecution could prove she stole). At her sentencing hearing, Ms. Pettis signed a cognovit note for the amount of restitution. It was the practice in the Welfare Department and the court, to get a cognovit note as sufficient promise of payment, and to consider this as full restitution at the time of sentencing. Ms. Pettis had been paying $250.00 per month towards her restitution and but still had a balance of $15,108.00 when she applied for her expungement.
The Appeals Court ruled that simply signing a promissory note cannot be considered "payment in full" sufficient to constitute a final discharge under R.C. 2953.32. The Court of Appeals reasoned that a promissory note is nothing more than the promise to pay in the future. The holder of a promissory note is not paid until the holder actually receives payment pursuant to the terms of the note. Until the holder of a note actually has payment in hand, the debt cannot be considered to be discharged.
It was no good for Ms. Pettis to argue that the state was using its opposition to the motion for expungement of her conviction as a means of enforcing the cognovit note, and that this means of enforcement is arguably illegal in itself because debt collectors are barred from using criminal proceedings to compel payment of civil debts. The Court of Appeals found that Ms. Pettis had the argument backwards - the state is not trying to collect the civil debt, but merely trying to prevent a record of conviction from being improperly sealed.
In fact, insofar as the record in this case showed, the outstanding debt appeared to have been largely forgotten until Ms. Pettis sought to have her record of conviction expunged. The record suggested that the state made no effort to collect the remaining amount due on defendant’s restitution, and defendant herself made no effort to pay the restitution after her probation expired, a fact made clear by her own admission.
Defendant did not initially remember signing a note, so the court continued the hearing and asked a representative from the probation department to determine whether defendant did sign a note. When the hearing reconvened, the representative from the probation department told the court:
"I did call the Welfare Department and they indicated that [defendant] had signed a cognovit note because that was the procedure at the time and I believe it still is to this day and they also indicated that her starting restitution amount was $ 20,000 and she has a remaining balance of approximately $ 15,000 to this date." [***6]
Ms. Pettis argued that she only had to make restitution during the period of her probation. But the Appeals Court ruled that her argument was in error because at no point had the court formally vacated the restitution order. In fact, nearly ten years had p***ed since her conviction and she had not paid any amount of restitution for more than seven years.
Restitution can be an integral part of an offender's sentence, not only as punishment, but for rehabilitation as well. In Kelly v. Robinson, the United States Supreme Court stated:
The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment ‘for the benefit of' the victim, the context in which it is imposed undermines that conclusion… Unlike an obligation which arises out of contractual, statutory or common law duty, here the obligation is 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.’
Under the circumstances, the Appeals Court found that defendant's "promise" to pay restitution as part of her sentence was an empty one because by her own admission, she had no intention of making any further payments. The Appeals Court ruled that were it to affirm the court’s decision to seal the record of conviction, it would be creating law that would take away any incentive to pay full restitution. At the time restitution is ordered, an offender, knowing full well that the note was worthless, could sign a note promising payment and then have the record of conviction sealed without ever having made good on the note.
The Court of Appeals held that regardless of whether the state chooses to collect the debt or not, until such time as the restitution order is paid in full, Ms. Pettis could not be considered to have completed the terms of her sentence, and hence cannot be considered "finally discharged" for purposes of having the record of her conviction expunged.
But the same is not true of a defendant who fails to pay his or her court costs. In the case of State v. Summers, Mr. Summers was convicted, but never paid his court costs. The prosecution objected to the Motion for Expungement, arguing that until the Mr. Summers paid his court costs, he was not eligible to have his record sealed. But court costs are not a part of a fine. Rather, the duty to pay court costs is a civil obligation arising from an implied contract. Thus a defendant’s failure to pay court costs does not make him ineligible to have his record sealed.
The lesson here is that simply waiting one or three years, depending upon your conviction, may not be adequate. If you have outstanding amounts for restitution that were imposed as part of your sentence, you must completely pay those prior to seeking expungement.
http://www.erasecriminalrecord.com/expunge.html
http://www.erasecriminalrecord.com/expunge.html
CHAPTER 3
When Can You Apply For Expungement?
Before applying for an expungement after being convicted of a crime, you must wait a period of time depending upon the nature of your conviction. One of the reasons for this waiting period is to determine if you are worthy of an expungement. During this time period, you cannot have any more convictions or pending charges. Either will generally disqualify you from the process. If you recall, the court must be satisfied that you have successfully been rehabilitated in order to grant expungement. If you have been convicted of or been charged with another crime, you have not experienced rehabilitation. You can only apply to have your record expunged three years "after [your] final discharge if convicted of a felony." You must wait one year after your final discharge if convicted of a misdemeanor. You are not finally discharged until you have served any sentence previously imposed by the court. The sentence imposed by a trial court includes the terms of probation along with any restitution the court orders you to pay.
R.C. 2951.02(C) provides in pertinent part:
In the interests of doing justice, rehabilitating the offender, and insuring his good behavior, the court may impose additional requirements on the offender, including … requiring an offender to make restitution… for all or part of the value of the property that is subject of any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, that he committed. Compliance with the additional requirements shall also be a condition of the offender's probation or other suspension. (emphasis added).
A review of a few cases will elaborate on the concept of what constitutes a final discharge. In State v. Wainwright, Wainwright was convicted of a felony (grand theft) and the trial court sentenced Wainwright to probation and ordered him to pay restitution. When Wainwright applied to have the record of his conviction sealed less than three years after completing full restitution, the trial court granted Wainwright’s motion to seal the record of his conviction. But the Eighth Appellate District Court reversed, finding that Wainwright had not been finally discharged until he paid full restitution and that the trial court erred by granting the motion to seal the record of Wainwright's conviction less than three years after making full restitution.
In a similar case, State v. Pettis, the Eighth Appellate District Court considered the case of a woman convicted of stealing and trafficking in food stamps. Ms. Pettis was ordered to make restitution in the amount of $20,396.00 (the amount the prosecution could prove she stole). At her sentencing hearing, Ms. Pettis signed a cognovit note for the amount of restitution. It was the practice in the Welfare Department and the court, to get a cognovit note as sufficient promise of payment, and to consider this as full restitution at the time of sentencing. Ms. Pettis had been paying $250.00 per month towards her restitution and but still had a balance of $15,108.00 when she applied for her expungement.
The Appeals Court ruled that simply signing a promissory note cannot be considered "payment in full" sufficient to constitute a final discharge under R.C. 2953.32. The Court of Appeals reasoned that a promissory note is nothing more than the promise to pay in the future. The holder of a promissory note is not paid until the holder actually receives payment pursuant to the terms of the note. Until the holder of a note actually has payment in hand, the debt cannot be considered to be discharged.
It was no good for Ms. Pettis to argue that the state was using its opposition to the motion for expungement of her conviction as a means of enforcing the cognovit note, and that this means of enforcement is arguably illegal in itself because debt collectors are barred from using criminal proceedings to compel payment of civil debts. The Court of Appeals found that Ms. Pettis had the argument backwards - the state is not trying to collect the civil debt, but merely trying to prevent a record of conviction from being improperly sealed.
In fact, insofar as the record in this case showed, the outstanding debt appeared to have been largely forgotten until Ms. Pettis sought to have her record of conviction expunged. The record suggested that the state made no effort to collect the remaining amount due on defendant’s restitution, and defendant herself made no effort to pay the restitution after her probation expired, a fact made clear by her own admission.
Defendant did not initially remember signing a note, so the court continued the hearing and asked a representative from the probation department to determine whether defendant did sign a note. When the hearing reconvened, the representative from the probation department told the court:
"I did call the Welfare Department and they indicated that [defendant] had signed a cognovit note because that was the procedure at the time and I believe it still is to this day and they also indicated that her starting restitution amount was $ 20,000 and she has a remaining balance of approximately $ 15,000 to this date." [***6]
Ms. Pettis argued that she only had to make restitution during the period of her probation. But the Appeals Court ruled that her argument was in error because at no point had the court formally vacated the restitution order. In fact, nearly ten years had p***ed since her conviction and she had not paid any amount of restitution for more than seven years.
Restitution can be an integral part of an offender's sentence, not only as punishment, but for rehabilitation as well. In Kelly v. Robinson, the United States Supreme Court stated:
The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment ‘for the benefit of' the victim, the context in which it is imposed undermines that conclusion… Unlike an obligation which arises out of contractual, statutory or common law duty, here the obligation is 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.’
Under the circumstances, the Appeals Court found that defendant's "promise" to pay restitution as part of her sentence was an empty one because by her own admission, she had no intention of making any further payments. The Appeals Court ruled that were it to affirm the court’s decision to seal the record of conviction, it would be creating law that would take away any incentive to pay full restitution. At the time restitution is ordered, an offender, knowing full well that the note was worthless, could sign a note promising payment and then have the record of conviction sealed without ever having made good on the note.
The Court of Appeals held that regardless of whether the state chooses to collect the debt or not, until such time as the restitution order is paid in full, Ms. Pettis could not be considered to have completed the terms of her sentence, and hence cannot be considered "finally discharged" for purposes of having the record of her conviction expunged.
But the same is not true of a defendant who fails to pay his or her court costs. In the case of State v. Summers, Mr. Summers was convicted, but never paid his court costs. The prosecution objected to the Motion for Expungement, arguing that until the Mr. Summers paid his court costs, he was not eligible to have his record sealed. But court costs are not a part of a fine. Rather, the duty to pay court costs is a civil obligation arising from an implied contract. Thus a defendant’s failure to pay court costs does not make him ineligible to have his record sealed.
The lesson here is that simply waiting one or three years, depending upon your conviction, may not be adequate. If you have outstanding amounts for restitution that were imposed as part of your sentence, you must completely pay those prior to seeking expungement.
http://www.erasecriminalrecord.com/expunge.html