COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74220 and 74241 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY vs. : : AND KEVIN SHERIDAN : : OPINION Defendant-Appellee : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-297798 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor ARTHUR A. ELKINS, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: THOMAS E. SHAUGHNESSY, ESQ. 11510 Buckeye Road Cleveland, Ohio 44104 PER CURIAM: This is an accelerated appeal under App.R. 11.1, which allows for our decisions to be in brief, conclusory form. Consequently, this opinion will not contain a comprehensive exposition of our -2- reasons for reversing the trial court's decision. See Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158. Appellant State of Ohio filed two appeals, both stemming from the same trial court decision. In its first appeal, the State appeals the trial court's decision modifying Appellee Kevin Sheridan's sentence. In its second appeal, the State appeals the trial court's granting of Sheridan's Motion for Expungement of Conviction. Because these matters are related, we will treat them as consolidated appeals. The State assigns the following consolidated assigned errors for our review: I. THE COURT ERRED IN MODIFYING APPELLEE'S SENTENCE BECAUSE ONCE A VALID SENTENCE IS ORDERED INTO EXECUTION, THE COURT LACKS JURISDICTION TO MODIFY THE SENTENCE EXCEPT AS PROVIDED BY THE GENERAL ASSEMBLY. II. THE TRIAL COURT, PURSUANT TO CRIM.R. 25(B), ERRED AS A MATTER OF LAW WHEN IT MODIFIED APPELLEE'S SENTENCE. III. THE COURT LACKED JURISDICTION TO SEAL APPELLEE'S RECORD OF CONVICTION PURSUANT TO R.C. 2953.32(A)(1). Having reviewed the record and the legal arguments of the parties, we reverse the decision of the trial court as to both appeals. The apposite facts follow. Sheridan, and two co-conspirators, were charged with embezzling over $700,000.00 from the Department of Workers' Compensation.On June 10, 1993, Sheridan waived his right to have his case presented to the grand jury and proceeded to have his case heard by way of information. The information contained three -3- counts: count one - receiving stolen property; count two - theft; and count three - complicity to commit theft in office. Before Judge Peggy Foley Jones, Sheridan withdrew his previously entered plea of not guilty and pled guilty as charged in the information in exchange for an agreed mandatory prison term of two years, and the repayment of $66,634.00 in restitution. A pre- sentence investigation and report was then conducted by the probation department. On July 9, 1993, before Judge Thomas Pokorny, Sheridan was sentenced according to the agreement. He filed no appeal, and on December 28, 1994, he was released on parole. On January 14, 1998, Sheridan filed a Motion for Expungement. A hearing was held on the Motion before Judge Pokorny on March 12, 1998. Also, during the hearing, Sheridan orally moved for sentence modification. Over the State's objection, both Motions were granted. In addition to sealing his record, the trial court vacated Sheridan's restitution of $66,634.00 nunc pro tunc. Thereafter, Sheridan was ordered to voluntarily submit a cognovit note for $10,000.00 to the State of Ohio, payable within five years. These appeals followed. In its first appeal, the State argues the trial court was not lawfully authorized to modify Sheridan's sentence. We agree. This court has held [o]nce a valid sentence has been commenced, the trial court no longer has power to modify the sentence except as provided by the legislature. State v. Harris (November 21, 1991), Cuyahoga App. Nos. 59354, 59355, unreported. -4- We also recognized [t]his standard applie[d] to reductions in sentences, as well as increases in sentencing. Id. See also, State v. Cockerham (1997), 118 Ohio App.3d 767. Here, Sheridan had commenced his sentence. He served one year of the two year sentence and was on probation for the remainder of the year. He also was required to pay restitution as a part of his sentence. Once execution of a sentence commences, the trial court may not amend the sentence to [de]crease punishment. Cockerham, supra, citing, Columbus v. Messer (1982), 7 Ohio App.3d 266, 268. Consequently, the State's first assigned error is well taken. Because of our ruling on the State's first assigned error, we conclude assignment of error two is moot. In the State's assignment of error in its second appeal, the State argues the trial court's decision to seal Sheridan's record was error. The State contends the trial court was without jurisdiction to render such decision. See R.C. 2953.32(A)(1) and State v. Wainwright (April 25, 1991), Cuyahoga App. No. 60491, unreported. We agree. Revised Code 2953.32(A)(1) allows a first offender to seek to have his record sealed by the sentencing court. The same section also states the first offender is to seek expungement at the expiration of three years after his final discharge if convicted of a felony ***. Id. Since Judge Pokorny was the sentencing judge, he had the requisite jurisdiction to grant Sheridan's motion for expungement; however, his decision to grant the request was erroneous. R.C. -5- 2953.32 specifically states three years must expire before an expungement can be granted. Although it has been three years since Sheridan was released from jail, incarceration was only part of his sentence. Sheridan's restitution sentence remained in effect. In Wainwright, supra, we held that a criminal record could not be sealed until the final discharge of the defendant, as stipulated by Section 2953.32(A). We concluded earlier that Sheridan had not complied with his restitution, thus he had not fulfilled his sentence. Since Sheridan had not fulfilled his sentence, the expungement was premature. Because the facts of this case do not meet the law as defined in R.C. S2953.32(A), we conclude the trial court erred in granting the request for expungement. Accordingly, the State's assigned error is well taken. Judgment reversed as to both appeals. This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is ordered that appellant recover of appellee its costs herein taxed. It is ordered that a special mandate issue out of this Court directing said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate procedure. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE ANN DYKE, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .