In re Howard

[Cite as In re Howard, 2009-Ohio-7219.]
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: LISA HOWARD
LISA HOWARD
Applicant
Case No. V2008-30812
Commissioners:
Thomas H. Bainbridge, Presiding
Karl C. Kerschner
Lloyd Pierre-Louis
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On June 7, 2002, the applicant, Lisa Howard, filed a compensation
application as the result of a criminal incident which occurred on May 6, 2002. The
application was assigned Claim No. V2002-35372 and an award in the amount of
$126.05 was granted in that claim on October 3, 2002. On April 17, 2003, the
applicant, Lisa Howard, filed a compensation application as the result of criminal
incidents which occurred between 2000 and 2003, and involved the same offender.
That claim was assigned Claim No. V2003-34552.
{2}The Attorney General, on its own, consolidated the two claims. On
September 12, 2003, the Attorney General issued a finding of fact and decision in Claim
No. V2003-34552, denying the claim since the applicant’s criminal background was in
question. Ultimately, on September 17, 2008, Claim No. V2003-34552 was denied
because the applicant had been convicted of aggravated arson, a felony of the second
degree on April 20, 2004, which was during the pendency of the claim. The applicant’s
claim was denied pursuant to R.C. 2743.60(E)(1)(a). Furthermore, the Attorney
General modified its finding of fact and decision rendered on October 3, 2002 and
Case No. V2008-30812 - 2 - ORDER
denied Claim No. V2002-35372. On October 3, 2008, the applicant filed a notice of
appeal from the Attorney General’s Final Decision of September 17, 2008. Hence, a
hearing was held before this panel of commissioners on November 4, 2009 at 10:35
A.M.
{3}Assistant Attorney General Amy O’Grady appeared on behalf of the state of
Ohio. The applicant did not attend the hearing.
{4}The Attorney General made a brief statement for the panel’s consideration.
It is now the Attorney General’s position that the award initially granted on October 3,
2002 in the amount of $126.05 should be paid and the claim should be remanded to the
Attorney General for payment. The Attorney General asserts that pursuant to R.C.
2743.72(C) and In re Ford (1997), 91 Ohio Misc. 2d 187, the applicant was legally
entitled to the $126.05 at the time the decision was rendered, and that future actions by
the applicant should not disturb that award. Whereupon, the hearing was concluded.
{5}R.C. 2743.60(E)(1)(a) states:
“(E) (1) Except as otherwise provided in division (E)(2) of this section, the
attorney general, a panel of commissioners, or a judge of the court of claims
shall not make an award to a claimant if any of the following applies:
“(a) The victim was convicted of a felony within ten years prior to the criminally
injurious conduct that gave rise to the claim or is convicted of a felony during
the pendency of the claim.”
{6}R.C. 2743.72(C) states:
“(C) If an award of reparations is made to a claimant under sections 2743.51 to
2743.72 of the Revised Code and if it is discovered that the claimant actually
was not eligible for the award or that the award otherwise should not have been
made under the standards and criteria set forth in sections 2743.51 to 2743.72
Case No. V2008-30812 - 3 - ORDER
of the Revised Code, the fund is entitled to recover the award from the
claimant.”
{7}A panel of commissioners in In re Ford, supra, focused on the word
“discovered” contained in R.C. 2743.72(C). In the Ford case, the disqualifying factor,
cocaine in the decedent’s bloodstream, had been known prior to the granting of the
initial award. Therefore, that fact could not be “discovered” later to be used as a basis
for her repayment of the award. Furthermore, the panel held that the initial decision
had not been appealed and it became final upon the expiration of the thirty-day appeal
period.
{8}From review of the file and with full and careful consideration given to the
Attorney General’s argument presented at the hearing, we find the applicant should be
granted $126.05. We reach that conclusion based upon three factors. First, the
applicant did not submit a supplemental application when she filed her second claim on
April 17, 2003. The applicant believed that the incident involved in that filing was
separate and apart from her initial application. The Attorney General also believed
they were separate filings because each initially was assigned a separate claim
number. It was only after the Attorney General began processing the second
application when it discovered the felony conviction and the two claims were
consolidated. Second, the award of the $126.05 occurred over a year and six months
prior to the applicant’s felony conviction for aggravated arson. Accordingly, the felony
conviction could not have been discovered at the time the award was granted. Third,
as in Ford, supra, the initial decision was final. Neither party appealed the initial claim
and that award would have been paid if the Attorney General had an accurate
forwarding address. Therefore the September 17, 2008 decision of the Attorney
General is reversed. It should be noted that this reversal only concerns the payment of
the $126.05, which was initially granted by the Attorney General on October 3, 2003.
With respect to applicant’s claim filed on April 17, 2003, the denial of the Attorney
General is affirmed pursuant to R.C. 2743.60(E)(1)(a).
Case No. V2008-30812 - 4 - ORDER
IT IS THEREFORE ORDERED THAT
{9}1) The September 17, 2008 decision of the Attorney General is
REVERSED in part and affirmed in part;
{10}2) This claim is remanded to the Attorney General for payment of the
award in the amount of $126.05 based upon the compensation application filed on June
7, 2002;
{11}3) The claim based on the compensation application filed on April 17,
2003 is DENIED and judgment is rendered for the state of Ohio;
{12}4) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
THOMAS H. BAINBRIDGE
Presiding Commissioner
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
LLOYD PIERRE-LOUIS
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2009\Nov-Dec 2009\V2008-30812 Howard.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Franklin County Prosecuting Attorney and to:
Filed 12-11-09
Jr. Vol. 2274, Pgs. 57-61
Sent to S.C. Reporter 9-30-11