State v. H.M.

[Cite as State v. H.M., 2025-Ohio-5522.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, :

No. 115043

v. :

H.M., :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED

RELEASED AND JOURNALIZED: December 11, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-10-536102

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Chauncey Keller, Assistant Prosecuting

Attorney, for appellant.

Carrabine & Reardon and James W. Reardon, for

appellee.

MICHAEL JOHN RYAN, J.:

This is plaintiff-appellant State of Ohio’s, second appeal in this case,

which centers on the trial court’s decision granting defendant-appellee H.M.’s,

motion to seal or expunge his record. In the first appeal, this court reversed the trial

court’s judgment granting H.M.’s motion to seal or expunge the record and

remanded the case “for a hearing to determine whether the victim, D.K., has

received full payment of the restitution amount ordered by the trial court in its

October 31, 2010 judgment entry of conviction to qualify H.M. as an eligible offender

under R.C. 2953.32.” State v. H.M., 2025-Ohio-46, ¶ 1 (8th Dist.).

On remand, the trial court held a hearing in compliance with the H.M.

Court’s mandate and, on April 16, 2025, the trial court issued a judgment granting

H.M.’s motion to seal or expunge the record in this case. The State appeals again.

For the reasons that follow, we remand this case to the trial court with instructions

to vacate its April 16, 2025 judgment.

Factual and Procedural History

H.M. is a formerly licensed Ohio attorney, who in 2010, pleaded guilty

to theft, a felony of the fifth degree. The victim, D.K., was a former client.1 Prior to

sentencing, H.M. submitted a sentencing memorandum in which he stated that D.K.

was entitled to repayment of $36,783.01 and indicated that D.K. had applied for

reimbursement through the Ohio Supreme Court Client Security Fund (“the Fund”).

The trial court sentenced H.M. to five years of community-control

sanctions and ordered him to pay restitution to D.K. in the amount of $36,783.01,

payable through the probation department.

1

D.K. was one of 14 clients victimized by H.M.

In May 2011, the trial court determined that H.M. may be transferred

to low-risk supervision but that he needed to have a monthly payment plan

established for restitution. In November 2011, the trial court ordered that all

restitution be forwarded to the Fund.

H.M.’s community-control sanctions were on track to potentially

expire on October 12, 2015. On October 29, 2015, H.M. filed an executed cognovit

note dated June 20, 2015, payable to the Fund in the amount of $30,039.01. The

note indicated that the original amount of H.M.’s obligation was $36,783.01, which

was the amount of restitution that the trial court imposed.

In February 2024, H.M. filed a motion to seal or expunge his record in

this case. The trial court ordered the probation department to prepare an

expungement report, which the department did. According to the report, H.M.’s

probation terminated on October 12, 2015, but a restitution balance of $27,744.01

remained. The report did not provide any clarification as to whether D.K. received

compensation through the Fund or if the restitution amount was what was currently

owed under the cognovit note.

The State opposed H.M.’s motion, contending that he was ineligible

because he had not fulfilled the restitution order and thus had not achieved “final

discharge” as required under R.C. 2953.32. The State did not indicate whether the

victim had received compensation through the Fund. The State waived its right for

a hearing on the motion.

The trial court determined that H.M. qualified as an eligible offender

under R.C. 2953.32(A) and had satisfied all the criteria, including being

rehabilitated to the court’s satisfaction, and granted H.M.’s motion.

The State appealed and, as mentioned, this court reversed the trial

court’s judgment granting H.M.’s motion to seal or expunge the record and

remanded the case “for a hearing to determine whether the victim, D.K., has

received full payment of the restitution amount ordered by the trial court in its

October 31, 2010 judgment entry of conviction to qualify H.M. as an eligible offender

under R.C. 2953.32.” H.M., 2025-Ohio-46, at ¶ 1 (8th Dist.). The H.M. decision

further stated, “Accordingly, we sustain the State’s assignment of error, reverse the

trial court’s judgment, and remand for the trial court to conduct a hearing pursuant

to R.C. 2953.32 to ascertain whether H.M. qualifies as an eligible offender.” Id. at ¶

19.

On remand, the trial court held a hearing at which counsel for the State

and counsel for H.M. appeared and made their respective arguments; H.M. was not

present. The State maintained that H.M. had neither fulfilled his restitution

obligation to the victim nor reimbursed the Fund in an amount to satisfy his

restitution obligation to the victim. The State submitted exhibit No. 1, which was a

March 28, 2025 letter from the director of the Fund stating that the Fund

reimbursed a total of $144,640.47 to the 14 victims and had received a total of

$9,039 in payments from H.M., leaving a balance owed by H.M. of $135,601.47. The

letter further indicated that the last payment H.M made to the Fund was on August

5, 2016.

The State also submitted exhibit No. 2, which was a complete release,

assignment of rights, and subrogation agreement the victim executed. Under the

agreement, the victim acknowledged that he received $36,783.01 from the Fund as

reimbursement for the restitution award in this case.

The State further argued at the hearing that “there’s no evidence of

rehabilitation in this case, something that the Court must decide when granting [an]

application.” Tr. 11. The State relied on paragraph 19 of H.M., 2025-Ohio-46

(8th Dist.), for its proposition that H.M.’s rehabilitation was part of this court’s

remand mandate.

On the other hand, the defense maintained that because the victim

had been fully compensated by the Fund, H.M. achieved final discharge of his

restitution order. Relying on the first paragraph of H.M., it was the defense’s

position that this court’s remand mandate was for the limited purpose of

determining whether H.M. fulfilled his restitution order.

The trial court stated that there was “a conflict in the way this thing

[i.e., this court’s remand mandate] is couched,” but found, as to whether the victim

was fully compensated, “The answer is yes.” Tr. 14. The trial court did not consider

H.M.’s rehabilitation and granted H.M.’s motion to seal or expunge, finding that the

victim had been fully compensated. The State appeals again, presenting a sole

assignment of error challenging the trial court’s decision granting H.M.’s motion to

seal or expunge.

Law and Analysis

The sealing or expungement of a criminal record is an “act of grace

created by the state.” State v. Hamilton, 75 Ohio St.3d 636, 639 (1996). Generally,

we review a trial court’s decision to seal or expunge a record of conviction under an

abuse-of-discretion standard. State v. J.W.G., 2024-Ohio-2071, ¶ 6 (8th Dist.),

citing Bedford v. Bradberry, 2014-Ohio-2058, ¶ 5 (8th Dist.). However, whether an

applicant is eligible to have his or her record sealed or expunged is a question of law

to be reviewed de novo. State v. V.S., 2017-Ohio-1565, ¶ 6 (8th Dist.), citing

Bradberry at id.

The State has presented two issues in this appeal: (1) whether H.M.

achieved “final discharge,” which is a requirement for the sealing or expungement

of a record and (2) whether H.M. met the other statutory requirements for sealing

or expungement so as to qualify as an eligible offender.

Regarding the first issue, it is the State’s position that H.M. did not

achieve final discharge. In opposing the State, H.M. cites State v. C.S., 2018-Ohio-

1841 (8th Dist.). We find C.S. distinguishable from this case.

In C.S., the defendant pleaded no contest to two theft charges. The

trial court sentenced the defendant to five years of community-control sanctions and

ordered her to pay restitution “at a minimum of $750.00 per month.” Id. at ¶ 2. The

trial court’s sentencing entry did not identify the victim or state the total restitution

amount. Prior to the defendant’s no-contest plea, the defendant had already paid

the victim $15,000.

Approximately two years after being sentenced, the defendant filed a

motion to terminate the community-control sanctions and be placed on inactive

probation. The trial court held a hearing and found the defendant compliant with

the conditions of probation and current with the restitution order. The trial court

denied the defendant’s motion, however, and ordered the defendant to continue

making restitution payments, stating “community control to terminate upon

restitution in full.” Id. at ¶ 3.

Over a year and a half later, the defendant filed another motion to

terminate the community-control sanctions. In the motion, the defendant stated

that the total restitution order to the victim was $100,000. The defendant stated

that she had paid $63,250 directly to the victim, and the remaining $36,750 balance

was paid to the victim through the Fund. The defendant further stated that she had

paid $10,035 of the $36,750 owed to the Fund, making her total payments $73,285.

The following month, the defendant entered into a cognovit note with the Fund in

the amount of $26,250, with the original balance of $36,750. The defendant filed

the cognovit note with the trial court in January 2013, and thereafter the trial court

terminated the defendant’s community-control sanctions.

In April 2017, the defendant filed a motion for expungement, which

the State opposed. The trial court ordered an expungement investigation report and

set the matter for a hearing. At the hearing, the State argued that it opposed the

expungement because the defendant still owed $26,250 in restitution. The

defendant argued that the victim was not owed any restitution because the Fund

made the victim whole by paying the victim the remaining balance of the restitution.

Thus, according to the defendant, the Fund made the victim whole. The defendant

argued that because the victim had been made whole and the matter was between

the defendant and the Fund, the restitution order had been satisfied and she was

eligible for an expungement. The trial court agreed and the State appealed.

Recognizing that courts speak through their journal entries, this court

found that the lack of specificity in the trial court’s sentencing entry as to the victim

and the total amount of the restitution order meant that the trial court’s restitution

order was “a payment plan of $750 per month for five years, which was the length

of [the defendant’s] community control sanction.” C.S., 2018-Ohio-1841, at ¶ 13 (8th

Dist.). This court found that even though the trial court held that the defendant’s

sentence was completed, the defendant nonetheless “recognizes her obligation and

is still making payments on the $26,250 balance she owes the Fund.” Id. at ¶ 17.

Further, the defendant had recently lost her job but was still making payments at a

reduced rate until she could find employment again. This court noted that the

defendant

continues to demonstrate a good faith effort in creating the obligation

of the cognovit note. She signed the cognovit note to be responsible for

the balance and has continued to pay it, despite losing her job. She has

repaid the Fund almost $19,000 since the signing of the cognovit note.

In total, it appears that she has repaid over $80,000. In seeking an

expungement of her criminal record, [the defendant] hopes to obtain

gainful employment so that she can continue to repay the cognovit note

until it is satisfied.

Id. at ¶ 19.

The C.S. Court, therefore, upheld the trial court’s decision granting

the defendant’s application for expungement.

The within case is distinguishable from C.S. The sentencing entry

here, unlike the one in C.S., was clear as to the amount of restitution and the victim

who was to receive it. Moreover, unlike the defendant in C.S., who continued

making payments to the Fund after executing the cognovit note and even despite her

job loss, as of March 2025, H.M. had only paid the Fund a total of $9,039 and had a

remaining balance of $135,601.47 (for all 14 victims). See State’s exhibit No. 1. The

total amount H.M. paid, $9,039, is insufficient to cover the total restitution amount

of $36,783.01 owed to the victim here. Further, unlike the defendant in C.S., who

made a “good faith effort” in continuing to pay restitution, the last payment the Fund

received from H.M. was in August 2016. Id.

For all of the above-stated reasons, C.S. is distinguishable from this

case. This case is more akin to State v. McKenney, 2001 Ohio App. LEXIS 2424

(8th Dist. May 31, 2001), and State v. Pettis, 133 Ohio App.3d 618 (8th Dist. 1999).

In Pettis, the defendant was sentenced to three years of community-

control sanctions (then called probation) and ordered to pay $20,396 in restitution.

After completing probation, the defendant filed a motion to seal the record of her

conviction. The State opposed the motion, citing State v. Wainwright, 75 Ohio

App.3d 793 (8th Dist. 1991), and contended that the defendant failed to pay

complete restitution as required by her sentence because she had a $15,108 balance

on the restitution imposed. The defendant maintained that she paid $250 a month

for three years, which was the term of her community control and believed the

restitution applied only to the term of her community control. The trial court, noting

that the defendant signed a cognovit note at the time of her sentencing, determined

that defendant made complete restitution and granted the motion to seal the record.

On appeal, this court considered its prior decision in Wainwright. In

Wainwright, the defendant was sentenced to probation and ordered to pay

restitution. After the defendant had complied with his restitution obligation and his

probation ended, he applied to have the record of his conviction sealed. However,

the defendant applied before the required statutory three-year period had expired.

The trial court granted the defendant’s motion. This court reversed, finding that

because the defendant “failed to pay the restitution until December 19, 1990, he was,

therefore, not eligible to file for sealing of his record of conviction until three years

from that date.” Id. at 795. This court was not persuaded by the defendant’s

argument that his probation ended three years after sentencing and that he was

therefore eligible to have his record sealed and held:

Probation is a sentencing condition, similar to a fine or restitution. An

applicant is not entitled to seal his [or her] conviction records until all

of the sentencing conditions imposed by the court are fulfilled. State v.

Braun, [1983 Ohio App. LEXIS 15139 (8th Dist. July 7, 1983)]. In the

case sub judice the sentencing conditions were both probation and

restitution; the restitution condition had not been fulfilled.

(Italics in original.) Id.

The Pettis Court recognized the “added wrinkle” of the cognovit note

in that case was not present in Wainwright and stated that

a promissory note cannot be considered “payment in full” sufficient to

constitute a final discharge under R.C. 2953.32. A promissory note is

nothing more than the promise to pay in the future -- by definition, 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.

Pettis at 620.

In Pettis, similar to this case, the defendant had not made a payment

toward restitution in a number of years. The Pettis Court recognized that while one

of the goals of restitution is to make the victim of a crime whole, restitution is also

meant to benefit society as a whole, punish the defendant, and rehabilitate the

defendant. To that end, this court reasoned its decision to reverse the judgment of

the trial court granting the defendant’s motion to seal as follows:

Were we to affirm the court’s decision to seal the record of conviction,

we 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 is worthless, could sign a note promising payment

and then have the record of conviction sealed without ever having made

good on the note. The only meaningful collateral disability associated

with the restitution order would be the inability to have the record of

conviction sealed, but the promissory note would make that disability

meaningless. In the end, the offender would have no reason to pay the

note.

Whether the state chooses to collect the debt or not, until such time as

the restitution order is paid in full, defendant cannot 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 sealed.

Id. at 622-623.

In McKenney, the defendant pleaded guilty to a theft charge and was

sentenced to an 18-month suspended sentence and three years of probation. The

trial court also ordered the defendant to pay restitution to the victim, a furniture

company. Thereafter, the furniture company received payment for the full amount

of the restitution order from its insurance company. The defendant then agreed to

a civil judgment against her in favor of the insurance company.

After the defendant’s three-year term of probation ended, she filed a

motion to seal her record of conviction. The trial court found that, because the

defendant allowed the victim’s insurance company to obtain a civil judgment against

her, she made “complete restitution” and granted her motion to seal her record.

Id. at *2.

The State appealed and this court reversed the trial court’s judgment.

This court found that “[i]n order for R.C. 2953.32 to apply, [the defendant] 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.” Id. at *4, citing

Willowick v. Langford, 15 Ohio App.3d 33 (11th Dist. Apr. 2, 1984), and Pettis,

133 Ohio App.3d 618. The McKenney Court further found that “[r]estitution, as a

condition of an offender’s probation, is a part of the offender’s sentence.” Id., citing

R.C. 2951.02(C). This court reasoned that because the defendant had “not fully paid

restitution as ordered by the terms of her probation” she “failed to meet a condition

of her sentence.” Id., citing Wainwright, 75 Ohio App.3d 793.

This court found the trial court’s attempt in McKenney to distinguish

McKenney from Pettis unpersuasive. Specifically, the trial court in McKenney

reasoned that the cognovit note in Pettis was “a lot less enforceable by a holder than

the judgment entered into by” the defendant in McKenney. The trial court further

distinguished Pettis, noting that, in McKenney, the insurance company could

initiate collection procedures against the defendant, including levying her property

and bank accounts, to satisfy the civil judgment. This court found the trial court’s

reasoning “flawed.” McKenney at *5.

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 [or her] right to a court trial and permits

judgment to be taken against him [or her], 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.

(Italics added.) McKenney at *5 - *6

Like the defendants in Pettis and McKenney, H.M. failed to meet a

condition of his sentence, specifically, he failed to achieve final discharge by paying

the full amount of restitution he was ordered to pay. Therefore, the trial court erred

by granting H.M.’s motion to seal or expunge.

Regarding the second issue raised by the State, this court has

recognized that

“R.C. 2953.32(C)(1) provides for an applicant to have his [or her]

record of conviction sealed if the trial court finds him [or her] to be an

eligible offender; there are no pending criminal proceedings; he [or

she] has been rehabilitated to the satisfaction of the court; his [or her]

interests in having his [or her] record sealed are not outweighed by any

legitimate governmental need to maintain the record of conviction; and

the trial court considers the government’s reasons for opposing the

application. R.C. 2953.32(C)(1)(a)-(e).”

State v. S.D.F., 2025-Ohio-1832, ¶ 14 (8th Dist.), quoting State v. A.V., 2019-Ohio-

1037, ¶ 7 (9th Dist.).

The S.D.F. Court acknowledged that although the rules of evidence do

not apply to hearings on motions to seal or expunge, nonetheless, “the applicant has

the burden of establishing his [or her] rehabilitation and that his [or her] privacy

interests are equal to or greater that the government’s interest to maintain the

record of conviction.” Id. at ¶ 16, citing A.V. at ¶ 9, and State v. Shaffer, 2010-Ohio-

6565, ¶ 30, 32 (11th Dist.). This court noted that the burden is generally met through

the presentation of evidence or testimony and that neither a mere statement that the

applicant has satisfied the requirements nor arguments of counsel are sufficient to

satisfy the burden. In the instant case, H.M. failed to present any evidence or

testimony demonstrating compliance with the R.C. 2953.32 requirements. Indeed,

H.M. was not even present at the hearing on remand, there was no hearing on H.M.’s

initial motion to seal or expunge, and his motion was a “three-paragraph motion”

without “any evidence in support of his motion.” H.M., 2025-Ohio-46, at ¶ 7 (8th

Dist.).

Conclusion

H.M did not complete the terms of his sentence and, therefore, has

not been finally discharged for the purpose of having his record sealed or expunged.

Further, H.M. failed to demonstrate that he was a statutorily eligible offender. The

trial court’s judgment granting his motion to seal or expunge is therefore vacated.

Case remanded to trial court to vacate the April 16, 2025 judgment

granting H.M.’s motion to seal or expunge.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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.

MICHAEL JOHN RYAN, JUDGE

EILEEN T. GALLAGHER, P.J., and

WILLIAM A. KLATT, J.,* CONCUR

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of

Appeals.)