In re Corrado

[Cite as In re Corrado, 2012-Ohio-4849.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
IN RE: MICHAEL CORRADO
BARBARA BIESZKI
BENJAMIN BIESZKI
PATRICIA BIESZKI
RICHARD BIESZKI
STEVEN BIESZKI
Applicants
Case No. V2012-70041
Commissioners:
E. Joel Wesp, Presiding
Susan G. Sheridan
Necol Russell-Washington
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On November 19, 2009, the Attorney General issued a finding of fact and decision
determining that decedent Michael Corrado was a victim of criminally injurious conduct
and the applicants met the jurisdictional requirements necessary to receive an award of
reparations. The applicants were granted an award which totaled $9,470.15,
apportioned as follows: Wujek Calcaterra & Sons, Inc., funeral home, $7,500.00;
Patricia Bieszki $500.00; Richard Bieszki $500.00; Steven Bieszki $500.00; and
Benjamin Bieszki $470.15. The awards for Patricia, Richard, Steven, and Benjamin
Bieszki were for reimbursement of travel expenses to attend the criminal proceedings.
Case No. V2012-70041 - 2 - ORDER
{¶2} On December 19, 2011, the applicants filed a supplemental compensation
application seeking reimbursement to attend the second trial of the offender who
murdered Michael Corrado. On January 3, 2012, the Attorney General issued a finding
of fact and decision for the supplemental compensation application. The Attorney
General denied the applicants’ claim for additional economic loss pursuant to R.C.
2743.191(B)(1), since the award did not equal or exceed $50.00. While R.C.
2743.51(F)(3) provides for lost wages and travel expenses for deceased family
members to attend the criminal justice proceedings arising from the criminally injurious
conduct, these expenses are capped at $2,000.00 in the aggregate, with each individual
family member’s expenses not to exceed $500.00. In this case, each family member,
with the exception of Benjamin, already incurred the individual maximum. Accordingly,
no additional award could be granted since the statutory maximum had already been
reached in the first criminal proceeding. With respect to Benjamin, he did incur
additional expenses up to and exceeding the $29.85 necessary to reach the statutory
maximum. However, since R.C. 2743.191(B)(1) provides no award shall be granted for
less than $50.00, his claim was denied.
{¶3} On January 20, 2012, the applicants submitted a request for reconsideration. On
January 25, 2012, the Attorney General rendered a Final Decision finding no reason to
modify the initial decision. On February 6, 2012, the applicants filed a notice of appeal
from the January 25, 2012 Final Decision of the Attorney General. Hence, a hearing
was held before this panel of commissions on May 2, 2012 at 10:00 A.M.
{¶4} Assistant Attorney General Georgia Verlaney appeared on behalf of the State of
Ohio, none of the applicants attended the hearing.
{¶5} The Attorney General made a brief statement for the panel’s consideration. The
Attorney General gave a brief summary of the procedural history of the claim leading up
to the appeal. The issue on appeal concerns $29.85 which was not initially awarded
Case No. V2012-70041 - 3 - ORDER
under a decision rendered on November 19, 2009. While each applicant, by statute, is
limited to a statutory maximum of $500.00 for lost wages and travel expenses incurred
to attend the criminal proceedings concerning the criminally injurious conduct, one
applicant, Benjamin Bieszki, did not reach this maximum only incurring $470.15.
Accordingly, when the supplemental compensation application was considered and
even though expenses exceeded that amount, the Attorney General was precluded
from issuing an award pursuant to R.C. 2743.191(B)(1). It is the Attorney General’s
position that R.C. 2743.191(B)(1) controls the language contained in R.C. 2743.51(F)(3)
and prevents an additional award from being granted with respect to that statutory
section.
{¶6} R.C. 2743.191(B)(1) states:
a. “(B) In making an award of reparations, the attorney general shall
render the award against the state. The award shall be accomplished
only through the following procedure, and the following procedure may be
enforced by writ of mandamus directed to the appropriate official:
b. “(1) The attorney general shall provide for payment of the claimant
or providers in the amount of the award only if the amount of the award is
fifty dollars or more.”
{¶7} R.C. 2743.51(F)(3) states:
a. “(3) A family member of a victim who died as a proximate result of
criminally injurious conduct may be reimbursed as an allowable expense
through the victim’s application for wages lost and travel expenses
incurred in order to attend criminal justice proceedings arising from the
criminally injurious conduct. The cumulative allowable expense for
wages lost and travel expenses incurred by a family member to attend
criminal justice proceedings shall not exceed five hundred dollars for each
Case No. V2012-70041 - 4 - ORDER
family member of the victim and two thousand dollars in the aggregate for
all family members of the victim.”
{¶8} From review of the case file and with careful and full consideration given to the
argument of the Attorney General, we find the applicant Benjamin Bieszki should be
granted an award in the amount of $29.85 which will meet the cumulative award
provided in R.C. 2743.51(F)(3).
{¶9} We do not perceive a conflict between statutory provisions R.C. 2743.191(B)(1)
and R.C. 2743.51(F)(3). R.C. 2743.51(F)(3) delineates the individual, type, and
amount of expense which is compensable under the program and is the basis for an
award of reparations. Specifically, one has to qualify as a family member. Family
member is defined under R.C. 2743.51(X) as “an individual who is related to a victim by
affinity or consanguinity.” Benjamin Bieszki met this qualification since he was the
father of the decedent. Second, a family member must incur lost wages and travel
expenses to attend criminal justice proceedings arising from the criminally injurious
conduct. The Attorney General concedes and the claim file reflects that Benjamin has
satisfied this requirement. Finally, the statute imposes a limitation on the amount an
individual family member may be compensated in the cumulative amount of $500.00.
Based upon the initial award granted by the Attorney General and the information
contained in the claim file, Benjamin has met or exceeded this amount. There is no
limitation contained in R.C. 2743.51(F)(3) which imposes a time limitation or event
limitation on when such expenses need to be incurred. Therefore, based upon the
evidence contained in the claim file, Benjamin Bieszki incurred $500.00 in allowable
compensable economic loss as the result of attending the criminal justice proceeding
concerning the criminally injurious conduct. While Benjamin had to attend two
separate trial dates to achieve this cumulative award, no language contained in R.C.
2743.51(F)(3) prevents the occurrence.
Case No. V2012-70041 - 5 - ORDER
{¶10} R.C. 2743.191 is a statutory section which the state treasury created a
reparations fund and directs how those funds may be expended and for what purpose.
R.C. 2743.191(B)(1) details the procedure the Attorney General should follow when
funds are expended from the reparations account. Specifically, the provision (B)1
states that: “The attorney general shall provide for payment of the claimant and
providers in the amount of the award if the amount of the award is fifty dollars or more.”
{¶11} A judge in In re Shipp, V2003-40526, V2003-40534, and V2003-40542 jud
(3-10-04), clearly found that R.C. 2743.191(B)(1) had no applicability in expanding the
class of claimants defined under R.C. 2743.51(A). In that case a funeral director filed a
compensation application to receive reimbursement for funeral services he performed to
bury a decedent. However, both applicants who incurred the expense were barred
pursuant to R.C. 2743.60(E) from receiving an award. The judge held that “[a]lthough
R.C. 2743.191(B)(1) authorizes the Attorney General to pay service providers directly,
the payments are made for expenses incurred by either a victim or a claimant and are
not paid as a benefit for the provider.” Accordingly, R.C. 2743.191(B)(1) is procedural
in nature and cannot alter the status of who qualifies as a claimant under R.C.
2743.51(A).
{¶12} Furthermore, if the applicant’s total award does not equal or exceed $50.00, no
award can be granted. In re A.R.P., V2009-40510 (11-12-09); In re Simpson,
V2010-50825tc (3-9-11), 2011-Ohio-4355. However, if the total award exceeds
$50.00, individual checks for less than that amount can be paid to two different
providers. In re Zimmer, V2003-40186tc (6-17-10), 2010-Ohio-3946, a check in the
amount of $33.00 was issued for dental expenses, while one in the amount of $643.95
was issued to Bally’s Total Fitness. Consequently, R.C. 2743.191(B)(1) does not
impose any limitations on the total amount of the payment simply for total amount of the
award. The issue in Zimmer was the failure of the Attorney General to issue a check in
Case No. V2012-70041 - 6 - ORDER
the amount of $33.20, however, when the panel determined that expenses incurred at
Bally’s Total Fitness constituted an allowable expense, there was no problem paying the
award even though one payment was less than $50.00.
{¶13} The Attorney General argues in this case that the limitation imposed by R.C.
274.191(B)(1) controls the language contained in R.C. 2743.51(F)(3). A review of the
court’s data base reveals that this question has not been previously litigated.
{¶14} We reject the Attorney General’s argument and find such a holding would directly
undermine the clear mandate of the statute. R.C. 2743.51(F)(3) provides that the
cumulative allowable expense for lost wages and travel expenses for a family member
to attend criminal justice proceedings arising from the criminally injurious conduct
cannot exceed $500.00. By using the plural proceedings the legislature contemplated
that more than one event might occur. No time limitation was placed upon the filing of
these expenses other than R.C. 2743.68 which requires a supplemental compensation
application be filed within five years of an award being granted.
{¶15} The Attorney General’s reasoning would reduce the amount of the cumulative
award to less than $500.00 if the applicant chose to file an initial application for more
than $450.00 but less than $500.00. Once the initial award was granted the applicant
would be precluded from receiving the statutory maximum due to the operation of R.C.
2743.191(B)(1). The judge in Shipp held that R.C. 2743.191(B)(1) cannot expand the
class of claimants, but by the same reasoning we find R.C. 2743.191(B)(1) cannot
negate the clear language of R.C. 2743.51(F)(3) with respect to a cumulative award.
We find the language contained in R.C. 2743.51(F)(3) predominates over the language
contained in R.C. 2743.191(B)(1). To hold otherwise would abrogate the will of the
legislature to enact meaningful provisions to compensate applicants under the Crime
Victims Compensation Act. Accordingly, when the original loss reaches the cumulative
Case No. V2012-70041 - 7 - ORDER
amount established by the legislature, this amount must be paid although it does not
strictly comply with the language contained in R.C. 2743.191(B)(1).
{¶16} Therefore, the Attorney General’s January 3, 2012 decision is reversed and the
applicant Benjamin Bieszki shall be granted an award in the amount of $29.85.
{¶17} IT IS ORDERED THAT
{¶18} The January 3, 2012 decision of the Attorney General is REVERSED;
{¶19} This claim is remanded to the Attorney General for payment of the award in
accordance with this order;
{¶20} Costs are assumed by the court of claims victims of crime fund.
_______________________________________
E. JOEL WESP
Presiding Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
_______________________________________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2012-70041 Corrado.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed on 6-27-12
Jr. Vol. 2283, Pgs. 98-104
Sent to S.C. reporter 10-18-12