In re Smith

[Cite as In re Smith, 2010-Ohio-6713.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Fourth Floor
Columbus, OH 43215
614.387.9860 or 1.800.824.8263
www.cco.state.oh.us
IN RE: MICHAEL R. SMITH
MICHAEL R. SMITH
Applicant
Case No. V2009-40731
Commissioners:
Karl C. Kerschner, Presiding
Randi M. Ostry
Elizabeth Luper Schuster
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On April 7, 2009, the applicant, Michael Smith, filed a compensation
application as the result of being assaulted by inmates in the Gallia County Jail on
December 31, 2008. On July 16, 2009, the Attorney General issued a finding of fact
and decision denying the applicant’s claim for an award of reparations pursuant to R.C.
2743.60(G), since he was serving a term of imprisonment in a detention facility at the
time of his injury. On July 23, 2009, the applicant submitted a request for
reconsideration asserting R.C. 2743.60(G) should not apply since he had not been
convicted of or had pled guilty to an offense at the time of his assault but was in the
facility as the result of a civil contempt order for failing to pay child support. On
September 18, 2009, the Attorney General rendered a Final Decision finding no reason
to modify its initial decision. On October 13, 2009, the applicant filed a notice of appeal
from the September 18, 2009 Final Decision of the Attorney General. Hence, a hearing
was held before this panel of commissioners on January 6, 2010 at 10:30 A.M.
{2}Applicant’s attorney, Andrew Schabo, appeared at the hearing, while
Assistant Attorney General Tyler Brown represented the state of Ohio. Prior to the
Case No. V2009-40731 - 2 - ORDER
commencement of the hearing, the Attorney General stipulated that the applicant was a
victim of criminally injurious conduct.
Case No. V2009-40731 - 3 - ORDER
{3}The applicant asserted that Michael Smith was found in contempt of court for
failure to pay child support. Consequently, he was sentenced to serve two, 30-day
sentences consecutively. The applicant argues that R.C. 2743.60(G) should not apply
and the applicant should be granted an award of reparations for unreimbursed
expenses he incurred. The applicant asserts Mr. Smith was never convicted of
anything. The Magistrate’s decision which confined Mr. Smith to the Gallia County Jail
was made pursuant to the Ohio Rules of Civil Procedure, not as a result of the
commission of a criminal offense. Furthermore, Mr. Smith was not serving a sentence
in a detention facility as stated in R.C. 2743.60(G). R.C. 2921.01(F) in pertinent part
defines detention as “any public or private place used for the confinement of a person
charged with or convicted of any crime in this state or another state or under the laws of
the United States.” In the case at bar, Mr. Smith never committed any crime.
Therefore, the applicant’s confinement does not meet the requirements of R.C.
2743.60(G).
{4}The Attorney General argues that the plain language of R.C. 2743.60(G)
does not require the conviction of a criminal offense, but simply an offense. The
Attorney General directed the panel to R.C. 2705.05(A), hearings for contempt
proceeding. Under this code section the court must conduct a hearing to “determine
whether the accused is guilty of the contempt charge.” Accordingly, this definition
conforms with the requirement contained in R.C. 2743.60(G). Also, pursuant to State
ex rel. Turner v. Albin (1928), 118 Ohio St. 527, the Ohio Supreme Court equated being
guilty of contempt with an offense. Furthermore, R.C. 2705.05(A) sets forth the
monetary fines and the terms of imprisonment a court may impose for the offense of
contempt.
{5}Finally, the Attorney General asserts the status of the site of the assault is
not as important as the status of the applicant at the time of the assault. The Attorney
General relies on a single commissioner’s holding in In re Hill, V92-86578sc (2-28-94).
Case No. V2009-40731 - 4 - ORDER
{6}In In re Hill, the victim suffered an assault while he was on furlough from the
Mansfield Correctional Institution. A single commissioner found that even though the
assault occurred off the grounds of the Mansfield Correctional Institution the victim was
serving a sentence of imprisonment until he was paroled. Therefore, R.C. 2743.60(G)
excluded him for eligibility. When the totality of the contempt statutes are taken into
consideration coupled with the applicant’s status at the time of the criminally injurious
conduct, the Attorney General argues that its Final Decision should be affirmed.
Whereupon, the case was concluded.
{7}R.C. 2743.60(G) states:
“(G) The attorney general, a panel of commissioners, or a judge of the court of
claims shall not make an award of reparations to a claimant if the criminally
injurious conduct that caused the injury or death that is the subject of the claim
occurred to a victim who was an adult and while the victim, after being
convicted of or pleading guilty to an offense, was serving a sentence of
imprisonment in any detention facility, as defined in section 2921.01 of the
Revised Code.”
{8}From review of the file and with full and careful consideration of the
arguments presented by the parties at the hearing, we find the applicant’s claim should
be denied pursuant to R.C. 2743.60(G). The applicant, in the case at bar, pursuant to
R.C. 2705.05 was found guilty of the offense of civil contempt. Nothing contained in
R.C. 2743.60(G) requires that the offense be criminal. Finally, the applicant was
assaulted in a detention facility, Gallia County Jail, as defined in R.C. 2921.01. The
applicant was confined in that facility as the result of being found guilty of the offense of
civil contempt by the Gallia County Court of Common Pleas, General Division.
Therefore, the September 18, 2009 Final Decision of the Attorney General is affirmed.
Case No. V2009-40731 - 5 - ORDER
IT IS THEREFORE ORDERED THAT
{9}1) The September 18, 2009 decision of the Attorney General is
AFFIRMED;
{10}2) This claim is DENIED and judgment is rendered for the state of Ohio;
{11}3) The January 4, 2010 motion for telephone testimony is hereby
GRANTED;
{12}4) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
RANDI M. OSTRY
Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Jan - Aug 2010\V2009-40731.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Gallia County Prosecuting Attorney and to:
Filed 2-24-10
Jr. Vol. 2274, Pgs. 184-187
Sent to S.C. Reporter 10-6-11