COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 79033 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION PENNY McKENNEY : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: May 31, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-220467 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: WILLIAM D. MASON Cuyahoga County Prosecutor LISA REITZ WILLIAMSON, Ass't 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: ROBERT A. DIXON, ESQ. 1280 West 3rd Street, Ste. 100 Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, J.: This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1, the record from the lower court, and the parties' briefs. -2- Plaintiff-appellant State of Ohio appeals the trial court's decision granting defendant-appellee's motion for order to seal records of conviction and arrest record. For the reasons below, we reverse. On February 17, 1988, defendant-appellee Penny McKenney pleaded guilty to one count of grand theft in violation of R.C. 2913.02. The court sentenced McKenney to a suspended eighteen-month prison term and ordered her to serve three years probation. The court also ordered McKenney to pay restitution. Subsequent thereto, the victim, Tedrich Furniture Company, received payment for the full amount of the stolen items from its insurer, Motorist Mutual Insurance Company. McKenney then agreed to a civil judgment against her in favor of the insurer. On October 15, 1999, after her three-year term of probation ended, McKenney filed a motion pursuant to R.C. 2953.32 asking the trial court to seal the record of her conviction. The trial court, noting that McKenney has permitted the victim's insurer to obtain a civil judgment against her, determined that McKenney made complete restitution and granted the motion to seal the record. This appeal followed. The State's sole assignment of error argues that: I. A TRIAL COURT ERRS IN ORDERING CRIMINAL RECORDS SEALED PURSUANT TO R.C. 2953.32 ET SEQ. WHEN THE DEFENDANT-APPLICANT IS NOT FINALLY DISCHARGED UNDER R.C. 2953.32 (A)(1) FOR THE REASON THAT SHE HAS NOT PAID IN FULL RESTITUTION AS ORDERED BY THE TRIAL COURT AS A CONDITION OF HER PROBATION. Relying on our decisions in State v. Wainwright (1991), 75 Ohio App.3d 793, 600 N.E.2d 831, and State v. Pettis (May 6, 1999), -3- Cuyahoga App. No. 74989, unreported, the State argues that because McKenney failed to pay complete restitution as required by her sentence, she is not entitled to have her record expunged. McKenney argues that because the victim, Tedrich Furniture Company, has been made whole by its insurer, her obligation to pay restitution has been satisfied. McKenney further argues that said obligation has been satisfied because the insurer has a civil money judgment against her towards which she has been making monthly payments and has paid half of the total amount owed. R.C. 2953.32 provides in part that: (A)(1) *** [A] first offender may apply to the sentencing court *** for the sealing of the conviction record. Application may be made at the expiration of three years after the offender's final discharge if convicted of a felony ***. *** (C)(2) If the court determines *** that the applicant is a first offender ***, that no criminal proceeding is pending against the applicant, and that the interests of the applicant in having the records pertaining to the applicant's conviction *** sealed are not outweighed by any legitimate governmental needs to maintain those records, and that the rehabilitation of an applicant who is a first offender *** has been attained to the satisfaction of the court, the court ***, shall order all official records pertaining to the case sealed ***. In order for R.C. 2953.32 to apply, McKenney has to have been discharged for at least three years. However, an offender is not finally discharged until she has served the sentence imposed by the court. See Willowick v. Langford (1984), 15 Ohio App.3d 33, 34, 472 N.E.2d 387; Pettis. -4- Restitution, as a condition of an offender's probation, is a part of the offender's sentence. See, R.C. 2951.02(C). McKenney has not fully paid restitution as ordered by the terms of her probation and therefore has failed to meet a condition of her sentence. See, Wainright, supra. Thus, the court erred in sealing the record of McKenney's conviction because she had not been finally discharged as required by R.C. 2953.32. The factual situation addressed in Pettis is nearly identical to the case at hand. The trial court sentenced Pettis to probation and ordered her to pay restitution. Pettis signed a cognovit note for the amount of restitution at the time she was sentenced. When Pettis applied to have the record of her conviction sealed, the trial court granted Pettis' motion to seal the record, finding that by signing the cognovit note, she had fully discharged her restitution obligations. We reversed, finding that Pettis had not been finally discharged until she paid full restitution, and that the trial court erred by granting the motion to seal the record of Pettis' conviction. Pettis; see also, Wainwright. Here, in making its decision, the trial court attempted to distinguish the matter at hand from Pettis. The trial court reasoned that the promissory note that was signed [in Pettis] is a lot less enforceable by a holder than the judgment that has been entered into by [McKenney]. The court further noted that McKenney has been religiously making payments to the insurer and that she has every incentive to continue to do so because if she does not, the insurer can initiate collection procedures against her, -5- including levying her property and bank accounts in order to satisfy the judgment. However, this reasoning is flawed. There is little difference between holding a cognovit note and having a money judgment against a party. A cognovit note is a powerful promissory note which contains a warrant of attorney to confess by which the maker waives his right to a court trial and permits judgment to be taken against him, without notice, upon the maker's failure to make the requisite payments. See, R.C. 2323.13. Other than the extra step of filing a complaint required to obtain the judgment on the cognovit note, there simply is nothing to support the trial court's opinion that the Pettis cognovit note is a lot less enforceable than the judgment held against McKenney. Further, there is no indication that the holder of the cognovit note in Pettis would be precluded, upon obtaining judgment, from seeking the collection remedies which the trial court pointed out are currently available to the insurer in the instant case. The fact is that, like a promissory note, a civil judgment cannot be considered "payment in full" sufficient to constitute a final discharge under R.C. 2953.32. See, Pettis. Although a civil money judgment clearly obligates the judgment- debtor to satisfy the judgment, until the judgment-creditor actually has payment in hand, the debt has not been satisfied, nor can the judgment be considered to be discharged. See Id. Further, McKenney's argument that the purpose of the restitution order has been met because the victim has already been made whole, is misplaced. It suggests that the purpose of -6- restitution is to benefit the victim. However, restitution is an integral part of an offender's sentence, not only as punishment, but for rehabilitation as well. Id. As stated in Kelly v. Robinson (1986), 479 U.S. 36, 93 L.Ed.2d 216, 107 S.Ct. 353: 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. [citations omitted.] McKenney has not completed the terms of her sentence, and therefore has not been finally discharged for purposes of having the record of her conviction sealed under R.C. 2953.32. Thus, this assignment of error is well-taken, and the decision of the trial court is reversed. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas 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. DIANE KARPINSKI, A.J., and ANN DYKE, J., CONCUR JUDGE COLLEEN CONWAY COONEY 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. 22. 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 journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .