Opinion
No. 108770
04-30-2020
STATE OF OHIO, Plaintiff-Appellee, v. DEBORAH CHUDAKOFF, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee. Valore & Gordillo L.L.P., and Matthew O. Williams, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-08-518609-B
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, Jennifer M. Meyer, Assistant Prosecuting Attorney, for appellee. Valore & Gordillo L.L.P., and Matthew O. Williams, for appellant. PATRICIA ANN BLACKMON, J.:
{¶ 1} Deborah Chudakoff ("Chudakoff") appeals from the trial court's denial of her motion to seal record and assigns the following error for our review:
The trial court erred in holding that civil settlement of cognovit notes executed upon termination of a term of community control to cover
outstanding restitution obligation does not create "final discharge" for purposes of sealing the criminal record pursuant to R.C. 2953.32.
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.
{¶ 3} On December 26, 2008, Chudakoff pled guilty to three counts of aggravated theft in violation of R.C. 2913.02(A)(3). As part of this plea agreement, the court ordered Chudakoff to pay restitution "in the amount of $275,000.00 to * * * be determined by the court, payable through the probation department." On August 16, 2010, the court sentenced Chudakoff to 36 months of community control sanctions, which included electronic home monitoring for 60 days, 300 hours of community service, and restitution "in the amount of $275,000.00 to American Wholesale, Novastar and Citi Mortgaging (all in regular monthly installments starting 9-1-10 and on the first day of each month until paid in full); payable through the probation department."
{¶ 4} On August 16, 2013, the court terminated Chudakoff's community control sanctions. On August 20, 2013, three cognovit notes were filed with the court. The three notes are dated August 8, 2013, and they were prepared by the Cuyahoga County Court of Common Pleas Probation Department. Each note is in the amount of $91,628.82 and lists Chudakoff as the defendant. The first note lists American Wholesale as the victim, the second note lists CitiMortgage Inc., as the victim, and the third note lists Saxon Mortgage as the victim.
{¶ 5} On October 25, 2017, Chudakoff filed a motion for "expungement" of criminal record. On June 4, 2019, the court held a hearing on this motion, at which no witnesses testified and no evidence was presented. Chudakoff argued that the cognovit notes were "settled outside of court" and that she was "finally discharged" from community control sanctions. The state objected to sealing Chudakoff's record arguing that Chudakoff was not an "eligible offender," because she "has not completed the requirements of her sentence. Specifically, she has restitution outstanding in the amount of $273.960. * * * I believe she's paid the amount of $3,000 in lieu of the $273,000 that is outstanding. The State does not believe that that is sufficient restitution * * *."
This motion was filed pursuant to R.C. 2953.32, which governs "sealing of record of conviction."
{¶ 6} On June 5, 2019, Chudakoff filed supplemental exhibits, which included a partially executed settlement and release agreement with CitiMortgage and an unexecuted settlement and release agreement with Bank of America.
{¶ 7} The court denied Chudakoff's motion, specifically finding as follows: "The court's order was to pay a total of $273, 960.00 in restitution. Defendant failed to pay anything toward restitution for a number of years and has attempted to settle the restitution outside the authority of the court. This does not comply with the order to pay restitution. The request for sealing the record is denied."
Motion to seal record
{¶ 8} We review a trial court's decision on a motion to seal record for an abuse of discretion. State v. Krutowsky, 8th Dist. Cuyahoga No. 81545, 2003-Ohio-1731, ¶ 10 ("Every applicant * * * is not entitled to have his record expunged. * * * The trial court has considerable discretion when weighing the applicant's interests [against] the government's interest"). However, "the interpretation of R.C. 2953.31(A) and 'the application of that statute in determining whether an offender is "eligible" to have a conviction expunged are issues of law that we review de novo.'" Bedford v. Bradberry, 8th Dist. Cuyahoga No. 100285, 2014-Ohio-2058, ¶ 5, quoting State v. Ushery, 1st Dist. Hamilton No. C-120515, 2013-Ohio-2509, ¶ 6.
{¶ 9} Pursuant to R.C. 2953.32(A), "an eligible offender may apply to the sentencing court * * * for the sealing of the record of the case that pertains to the conviction. Application may be made at the expiration of three years after the offender's final discharge of a felony * * *." The trial court must make certain determinations when ruling on a motion to seal conviction, including the following:
whether the applicant is an "eligible offender"; whether criminal proceedings are pending against the applicant; and whether the applicant has been rehabilitated to the satisfaction of the court. The court must then "consider the reasons against granting the application specified by the prosecutor" and weigh the applicant's interests in having the records sealed versus the government's needs, if any, for maintaining those records.State v. T.S., 8th Dist. Cuyahoga No. 102648, 2017-Ohio-7395, ¶ 8. See also R.C. 2953.32(C)(1)(a)-(e).
{¶ 10} The statutory definition of "eligible offender" is found in R.C. 2953.31(A)(1)(a), which states in pertinent part as follows: "Anyone who has been convicted of one or more offenses, but not more than five felonies, in this state * * * if all of the offenses * * * are felonies of the fourth or fifth degree * * * and none of those offenses are an offense of violence or a felony sex offense * * * ."
{¶ 11} For an eligible offender to have his or her record sealed, final discharge of the conviction must have occurred. "Final discharge occurs where all obligations imposed by the court are completed." State v. Alimi, 8th Dist. Cuyahoga No. 77890, 2000 Ohio App. LEXIS 5604 (Nov. 30, 2000). The Ohio Supreme Court has held that, for the purposes of R.C. 2953.32(A)(1), an offender is not finally discharged if he or she still owes restitution. State v. Aguirre, 144 Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, ¶ 19-20 ("final discharge cannot occur until restitution is fully paid. Only then does the three-year waiting period in R.C. 2953.32(A)(1) commence to run, and only after the expiration of that period may [the defendant] apply to have her record sealed").
{¶ 12} In the case at hand, Chudakoff argues that "civil settlement of cognovit notes executed in satisfaction of a restitution obligation finally discharges the obligation." There does not appear to be any case law in Ohio in support of, or against for that matter, this proposition of law. In State v. Pettis, 133 Ohio App.3d 618, 729 N.E.2d 449 (1999), this court found that signing a cognovit note was insufficient to find that full restitution had been made. This court reasoned that a cognovit note was akin to a promissory note, which is not considered "payment in full." Id. at 620. "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." Id.
{¶ 13} The case at hand is different than Pettis in that Pettis dealt with the signing of a cognovit note, and here, we are dealing with the alleged "settlement" of a cognovit note. Nevertheless, there is insufficient evidence in the record to support Chudakoff's allegation that the restitution order in her case was satisfied. For example, it is unclear if Chudakoff paid money to the named victims, and if she did, when that occurred. One would need the date that the restitution was fully paid — assuming all other terms of her sentence had been served — to calculate the expiration of the three-year waiting period required by R.C. 2953.32(A). Even if, assuming arguendo, we were to consider Chudakoff's bald assertions that she paid some money to two of the victims, that would leave the third victim unpaid and the restitution not satisfied.
{¶ 14} Although we are able to envision a scenario where the settlement of a cognovit note satisfies restitution ordered as part of a criminal sentence, the facts of the case at hand are not exemplary. Chudakoff failed to show that she was an eligible offender or that three years had passed after the expiration of her final discharge of conviction. Thus, we are able to conclude that the court acted within its discretion when it denied Chudakoff's motion to seal record. Chudakoff's sole assigned error is overruled.
{¶ 15} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common pleas 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. /s/_________
PATRICIA ANN BLACKMON, JUDGE SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR