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