The opinion
[Cite as In re Kommick, 2011-Ohio-4027.]
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: AUSTIN W. KOMMICK
AUSTIN W. KOMMICK
Applicant
Case No. V2011-60301
Commissioners:
Karl C. Kerschner, Presiding
William L. Byers IV
Necol Russell-Washington
ORDER OF A THREE-
COMMISSIONER PANEL
{¶1}On December 29, 2010, applicant, Austin Kommick, filed a compensation
application as the result of a robbery which occurred on July 13, 2007. On February
15, 2011, the Attorney General issued a finding of fact and decision denying the
applicant’s claim pursuant to R.C. 2743.56(B)(2) and 2743.60(A), failure to file the
compensation application within two years of the occurrence of the criminal incident.
On March 14, 2011, the applicant submitted a request for reconsideration. The
applicant stated he was unable to timely file a compensation application due to his
deployment with the United States Army in Iraq. On March 22, 2011, the Attorney
General rendered a Final Decision finding no reason to modify the initial decision. On
March 30, 2011, the applicant filed a notice of appeal from the March 22, 2011 Final
Decision of the Attorney General. Hence, a hearing was held before this panel of
commissioners on June 16, 2011 at 11:10 A.M.
{¶2}Assistant Attorney General Lauren Angell appeared on behalf of the state
of Ohio, while the applicant did not attend the hearing.
Case No. V2011-60301 - 2 - ORDER
{¶3}The Attorney General made brief statement for the panel’s consideration.
Initially, the Attorney General stated it would like to amend part three of its brief filed on
May 24, 2011. Part three dealt with applicant’s contention that it was impossible to
Case No. V2011-60301 - 3 - ORDER
timely file the compensation application due to his deployment to Iraq with the United
States Army. The Attorney General cited 50 United States Code Section 526, the
Service Member’s Civil Relief Act, which tolls the statute of limitations during the period
of military service. The Attorney General quoted from the statute which states:
{¶4}"The period of a servicemember’s military service may not be included in
computing any period limited by law, regulation, or order for the bringing of any
action of proceeding in a court, or in any board, bureau, commission,
department, or other agency of a State (or political subdivision of a State) or the
United States by or against the servicemember or the servicemember’s heirs,
executors, administrators, or assigns."
{¶5}The Attorney General stated that the applicant had until July 13, 2009 to file
the compensation application; he received his deployment order in June of 2009, but did
not deploy to Iraq until August 26, 2009.
{¶6}Upon questioning by the panel of commissioners an issue arose
concerning the exact date which the statute of limitations would be tolled pursuant to the
federal statute. Consequently, the panel ordered the Attorney General to file a
supplemental brief conclusively determining the date the statute of limitations is tolled
pursuant to 50 USC 526. Whereupon, the hearing was concluded.
{¶7}On June 24, 2011, the Attorney General filed an updated brief. The
Attorney General’s investigation revealed that the applicant entered into full-time duty
with the United States Army, in Bradenton, Florida, on September 12, 2007. This was
61 days after the criminal incident. Pursuant to relevant case law, Conroy v. Aniskoff
(1993), 507 U.S. 511, the statute of limitations is tolled once an individual enters into
full-time service with the military. Accordingly, based upon the federal statute and the
Case No. V2011-60301 - 4 - ORDER
decision rendered by the United States Supreme Court the applicant’s claim should not
be barred pursuant to R.C. 2743.56(B)(2) and 2743.60(A). Consequently, the Attorney
General requests this claim be remanded to the Attorney General for further
investigation and decision.
{¶8}From review of the case file and with full and careful consideration given to
the Attorney General’s statements at the hearing and the updated brief, we find the
applicant’s claim should not be barred pursuant to R.C. 2743.56(B)(2) and 2743.60(A).
Therefore, the March 22, 2011 decision of the Attorney General is reversed.
IT IS THEREFORE ORDERED THAT
{¶9}1) The March 22, 2011 decision of the Attorney General is REVERSED
and judgment is rendered in favor of the applicant;
{¶10}2) This claim is remanded to the Attorney General for investigation and
decision;
{¶11}3) This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
Case No. V2011-60301 - 5 - ORDER
{¶12}4) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
WILLIAM L. BYERS IV
Commissioner
_______________________________________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\VICTIMS\2011\60301\V2011-60301.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Seneca County Prosecuting Attorney and to:
Filed 8-5-11
Jr. Vol. 2279, Pgs. 185-188
Sent to S.C. Reporter 8-15-11