In re Temethy

[Cite as In re Temethy, 2011-Ohio-5296.]
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: ROGER G. TEMETHY
ROGER G. TEMETHY
Applicant
Case No. V2010-50671
Commissioners:
Randi M. Ostry, Presiding
Karl C. Kerschner
Elizabeth Luper Schuster
ORDER OF A THREE-COMMISSIONER PANEL
{¶1}On April 21, 2010, the applicant, Roger Temethy, filed a compensation
application. The applicant alleges on September 8, 2003, while he was at work his
former roommate Margaret Baum, her companion Mike Skufeeda, and various family
members came to his residence and stole cash and numerous items. The applicant
asserts his life was threatened, and Margaret Baum ultimately forced him into
bankruptcy, which was filed on March 10, 2005 and discharged on June 15, 2005. The
applicant asserts his attorney Teddy Sliwinski never told him about a restraining order
that was issued against him or advised him of his rights under the Ohio Crime Victims
Compensation Program. On June 2, 2010, the Attorney General issued a finding of
fact and decision finding the applicant’s claim should be denied for failure to file his
compensation application within two years of the occurrence of the alleged criminal
incidents pursuant to R.C. 2743.56(B)(2) and R.C. 2743.60(A). Furthermore, the
applicant failed to prove he was a victim of criminally injurious conduct pursuant to R.C.
2743.51(C)(1).
Case No. V2010-50671 - 2 - ORDER
{¶2}On June 7, 2010, the applicant submitted a request for reconsideration.
On July 30, 2010, the Attorney General rendered a Final Decision finding no reason to
modify the initial decision. On August 6, 2010, the applicant filed a notice of appeal
from the
July 30, 2010 Final Decision of the Attorney General. Hence, a hearing was held
before this panel of commissioners on November 17, 2010 at 10:30 A.M.
{¶3}The applicant appeared at the hearing and Assistant Attorneys General
Lauren Angell and Amy O’Grady represented the state of Ohio.
{¶4}The applicant was apprised of his right to counsel, however, he waived his
right and chose to proceed pro se. The applicant asserted that he was a victim of four
crimes: 1) he was defrauded into filing a Chapter 7 Bankruptcy action; 2) he was
repeatedly subjected to threats of harm and/or death; 3) he was placed under a
five-year restraining order which he had no knowledge of; and 4) he was illegally
arrested in Lorain, Ohio without any probable cause. Finally, another restraining order
was issued against him for one year without his knowledge. However, the most
unlawful actions taken against him were promulgated by the Ohio Disciplinary Counsel
in its refusal to take actions against attorneys and judges who wronged him with the use
of the judicial process. Whereupon, the applicant concluded his remarks and
presented Applicant’s Exhibits 1-6 for the panel’s consideration.
{¶5}The Attorney General stated after review of the applicant’s compensation
application, correspondence, and statements made at the hearing there appear to be 12
incidents of alleged criminal conduct. However, each incident is barred by the statute
of limitations. In order for this panel to reach the merits of these incidents the applicant
had to file his compensation application within two years of their occurrence, however,
he failed to do so. Furthermore, the applicant failed to prove he was a victim of
criminally injurious conduct, failed to timely file a police report, and engaged in
substantial contributory misconduct.
Case No. V2010-50671 - 3 - ORDER
{¶6}In response to the Attorney General’s statements, the applicant asserted
the statute of limitations should not apply since when a lay person goes to an attorney
he should be able to rely on the attorney for proper advice and to inform him of the
availability of any remedy that may be afforded to him, including the Ohio Victims of
Crime Compensation Program. The failure of his attorney to inform him of the Program
should not be imputed to him. Whereupon, the hearing was concluded.
{¶7}R.C. 2743.56(B)(2) states:
“(B) All applications for an award of reparations shall be filed as follows:
“(2) If the victim of the criminally injurious conduct was an adult, within two
years after the occurrence of the criminally injurious conduct.”
{¶8}R.C. 2743.60(A) in pertinent part states:
“(A) The attorney general, a court of claims panel of commissioners, or a judge
of the court of claims shall not make or order an award of reparations to any
claimant who, if the victim of the criminally injurious conduct was an adult, did
not file an application for an award of reparations within two years after the date
of the occurrence of the criminally injurious conduct that caused the injury or
death for which the victim is seeking an award of reparations . . .”
{¶9}The applicant’s lack of knowledge of the existence of the Ohio Victims of
Crime Compensation Program does not toll the statute of limitations. In re Robinson,
V2009-40733tc (3-12-10) affirmed jud (5-25-10); In re Proviano, V2007-90722tc
(8-22-08) affirmed jud (2-19-09).
{¶10}Alleged erroneous advice by an attorney is not sufficient to toll the statute
of limitations. In re Mowery, V79-3088jud (4-28-80). See also, In re Mulholland,
V2010-50361tc (8-27-10); In re Davis, V97-69086tc (11-20-98); and In re Totton,
V2004-60342tc (10-14-04).
{¶11}On November 18, 2010, the applicant filed a letter requesting a new
hearing. On November 19, 2010, the Attorney General filed a memorandum in
opposition to the applicant’s request for a new hearing.
Case No. V2010-50671 - 4 - ORDER
{¶12}From review of the file and with full and careful consideration given to the
statements of the applicant, the exhibits he presented at the hearing, and the arguments
advanced by the Attorney General, we find the Attorney General’s Final Decision of
July 30, 2010 should be affirmed. The only issue before this panel was whether the
applicant filed his compensation application within two years of the occurrence of the
alleged criminally injurious conduct. The applicant presented no evidence that the
compensation application was timely filed.
{¶13}This court has consistently held that the two-year statute of limitations set
forth in R.C. 2743.56(B)(2) and R.C. 2743.60(A) is mandatory and jurisdictional. See
In re Clark (1983), 8 Ohio Misc. 2d 34, 457 N.E. 2d 965. The only exceptions to this
interpretation fall into two categories. This court has held that: 1) lack of knowledge
that a crime occurred, see Irwin, supra; or 2) status of the victim and unsound mind, In
re Lattanzi (1990), 61 Ohio Misc. 2d 546, 580 N.E. 2d 541; mental incompetency, In re
Myers, V2001-32461tc (7-31-02); physical disability, In re McKee, V95-49258tc
(3-28-97); and repressed memory, In re Michaud, V92-66356tc (10-28-94) all relate to
the applicant’s inability to recall the occurrence of the criminally injurious conduct. In re
Lay (1991), 63 Ohio Misc. 2d 35, 619 N.E. 2d 1196; In re Stringfellow, V98-60813tc
(2-11-00); and In re Johnson, V92-78656tc (5-31-94) concerned the minority status of
the victims in tolling the statute of limitations.
{¶14}Neither the applicant’s lack of knowledge of the program nor the failure of
his attorney to inform him of the program qualify as an exception to the two-year statute
of limitations as noted above. Since the applicant’s compensation application was not
timely filed this panel will not reach the issues concerning criminally injurious conduct,
failure to timely report to the police, or contributory misconduct. Therefore, the
Attorney General’s July 30, 2010 decision is affirmed.
IT IS THEREFORE ORDERED THAT
Case No. V2010-50671 - 5 - ORDER
{¶15}1) The Applicant’s Exhibits 1-6 are admitted into evidence;
{¶16}2) The applicant’s request for a new hearing is DENIED since the
hearing of November 17, 2010 was in compliance with R.C. 2743.61(B);
{¶17}3) The July 30, 2010 decision of the Attorney General is AFFIRMED;
{¶18}4) This claim is DENIED and judgment is rendered for the state of Ohio;
{¶19}5) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
RANDI M. OSTRY
Presiding Commissioner
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\January 2011\V2010-50671Temethy.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 1-14-11
Jr. Vol. 2277, Pgs. 161-165
Sent to S.C. Reporter 10-13-11