Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, Sept. 22, 2021

Harry A. Fonzi, III and Linda Grimes v. Gary D. Brown and Eclipse Resource I, LP , Case no. 2020-0773
Seventh District Court of Appeals (Monroe County)

Harry A. Fonzi, III and Linda Grimes v. Allen B. Miller, M. Craig Miller, Brenda Thomas, and Eclipse Resource I, LP , Case no. 2020-0861
Seventh District Court of Appeals (Monroe County)

State of Ohio v. Marcus Toles, Case no. 2020-1242
Twelfth District Court of Appeals (Madison County)

State of Ohio v. John D. Yerkey, Case no. 2020-1392
Seventh District Court of Appeals (Columbiana County)


Should Oil and Gas Interest on Monroe County Property Return to Landowner?

Harry A. Fonzi III and Linda Grimes v. Gary D. Brown et al., Case Nos. 2020-0773
Seventh District Court of Appeals (Monroe County)

ISSUES:

  • Is a mineral interest abandoned and vested in a landowner if the landowner files “an action to quiet title” to the mineral interest under the Ohio Dormant Mineral Act, the law’s notice requirements are met, and no savings events apply?
  • Does the former mineral interest holder have the burden of establishing that service of the statutory notice was insufficient?
  • To establish that service of notice was insufficient, must a former mineral interest holder show that service would have been possible to complete if the landowner had made additional efforts?
  • Is insufficient service of notice harmless and irrelevant to whether the mineral interest is abandoned if the mineral holder could present evidence of the mineral interest in court?

BACKGROUND:
Elizabeth Henthorn Fonzi and Harry Fonzi Jr., who were married, sold a Monroe County property that Henthorn Fonzi had inherited to Donald and Eva Jean Brown in October 1952. The Fonzis retained one-half interest in the oil and gas royalty on the property. The deed stated that the Fonzis lived in Washington County, Pennsylvania.

In 2013, Gary Brown, the subsequent property owner hired an attorney to determine whether the property’s mineral interests had been abandoned. The attorney searched multiple resources in Monroe County and found no heirs. In March, Brown published a notice in the Monroe County Beacon indicating that he intended to declare the Fonzis’ partial mineral interest on the property abandoned. No one filed a response. Brown filed an affidavit of abandonment in April with the county recorder, who subsequently stated that the mineral interest had been abandoned.

Heirs Claim Right to Oil and Gas Interest
The Fonzis’ children, Harry Fonzi III and Linda Grimes, filed a complaint against Brown in May 2017, alleging they had rights to the mineral interest. The Fonzis’ brief in this appeal states that they also filed a claim to preserve their mineral interests.

The Monroe County Common Pleas Court granted summary judgment to Brown in April 2019, determining that the Fonzis failed to prove that Brown didn’t make reasonable efforts to find them.

The Fonzis appealed to the Seventh District Court of Appeals, which in June 2020 overturned the lower court decision and invalidated the abandonment of their mineral interest. The Seventh District stated it was unreasonable for Brown not to check the records in Pennsylvania’s Washington County for the Fonzi heirs.

Brown died in June 2020, and his successors – Donna Mead, Delilah Noll, Rhonda Jackson, Larry Brown, Ralph Young, Kelly Yoho, and Melissa Yoho (collectively referred to as the Browns) – now own the Monroe County property. They appealed the Seventh District’s ruling to the Ohio Supreme Court, which accepted the case on five propositions of law.

The Supreme Court stayed the case until it decided Gerrity v. Chervenak in December 2020. After lifting the stay, the Court directed the parties to brief all but the first proposition of law.

Earlier this month, the Court agreed to consolidate this appeal with the next case – Fonzi v. Miller – for oral argument. The attorneys, the legal issues, and the arguments are the same in both cases even though there are factual distinctions, the parties noted. Each side will be allotted 30 minutes to present their arguments.

Property Owners Describe Two Ways to Assert Mineral Interests Are Abandoned
The Browns’ brief states that the Ohio Dormant Mineral Act (DMA), R.C. 5301.56, was enacted on March 22, 1989, “to provide a method for the termination of dormant mineral interests and the vesting of their title in surface owners, in the absence of certain occurrences within the preceding 20 years.” The occurrences are referred to as “savings events.” In 2006, the DMA was amended to require landowners to follow additional notice and recording procedures if seeking to merge dormant mineral rights with a surface property.

The Browns maintain that, under the 2006 DMA, mineral interests can be deemed abandoned through two different mechanisms. First, R.C. 5301.56(B) states that if the requirements in R.C. 5301.56(E) – the property owner’s need to serve or publish notice and to file an affidavit of abandonment – are met and no savings event applies, then the mineral interests “shall be deemed abandoned and vested in the owner of the surface.”

However, even after the division (E) notice and affidavit requirements have been satisfied, the Browns contend, a mineral right can’t be abandoned under the “presumption of abandonment” in division (B) unless the surface property owner files a “quiet title action ” in court. In these lawsuits, mineral rights holders are given due process, including the requisite notice and opportunity to be heard.

The second avenue, the Browns argue, is a separate “extrajudicial process of abandonment” in R.C. 5301.56(E) through (I) that ends with the property owner filing of a notice under R.C. 5301.56(H)(2) claiming the mineral rights holder failed to take certain steps.

Because these are alternate mechanisms, a property owner can have a mineral interest deemed abandoned in a quiet title lawsuit even if the mineral rights holder filed a timely response under R.C. 5301.56(H)(1) to prevent the abandonment, the Browns contend. They maintain that they completed the abandonment process for these oil and gas interests and had the abandonment properly recorded through this “extrajudicial process.”

They add that any issue stemming from whether the service of notice to the Fonzis was done correctly is irrelevant. They assert that a search for the Fonzi heirs in Pennsylvania wouldn’t have meant service to them was possible because the heirs wouldn’t have been identified based on a 1952 deed. They state, “By 2013, the deed references to Washington County, Pennsylvania were approximately 60 years old and Elizabeth Henthorn Fonzi had divorced, changed her name, moved to Greene County, Pennsylvania, and died more than 20 years earlier.”

The Browns maintain that they, as potential beneficiaries of the wealth from the property’s oil and gas interest, are like the other ordinary Ohio farmers and property owners who have lived and worked on the land for decades.

“In this case, the Property has been in the Browns’ family for more than 68 years since 1952,” their brief concludes. “Depending on the outcome, the royalties for oil and gas production from the Property will either go to the Browns or they will go to two Pennsylvania residents who first became aware that the Severed Royalty Interest existed in 2017.”

Mineral Interest Heirs Reject Two Avenues, Maintain Law Is Clear
The Fonzis respond in their brief that the Browns ask the Court to adopt “a wholly new conception” of the DMA – one that’s inconsistent with the statute’s plain language and the Court’s precedent on this topic. There is nothing in the statute that suggests there are two methods – an “extrajudicial process” or a quiet title action in court – that a property owner can pursue to have the rights of the mineral interest holder abandoned, the Fonzis contend. They maintain there is only one method in the DMA for a surface owner to obtain a determination that mineral rights have been abandoned, and the method is delineated clearly in R.C. 5301.56.

Based on the law, the Fonzis’ argue, their mineral interest in the Monroe County property is considered abandoned and restored to the Browns if no savings event occurred and if the Browns met the notice requirements in R.C. 5301.56(E). But the Seventh District found that the Browns didn’t meet the notice requirements, the Fonzis note.

“There is no path around this,” they state.

According to their brief, if surface property owners want to have a mineral interest deemed abandoned under division (B), they must comply with the notice requirements of division (E). The holders of the mineral interest have the right to prevent an abandonment by filing a claim to preserve or an affidavit of a savings event. If the holders don’t file a claim to preserve or an affidavit, the property owners must file a notice of that failure.

“[T]hen, and only then, does the mineral interest vest in the surface holders. The process could not have been more clearly delineated by the Legislature,” the Fonzis maintain. “[The Browns’] alternative interpretation is a self-serving legal fiction.”

The Fonzis emphasize they were entitled to notice of the effort to have the mineral rights abandoned. And even though the Browns didn’t give them that notice, they still filed a claim to preserve their rights, the Fonzis state. Given that, the Browns had no right to take back the mineral rights, the Fonzis argue.

They also maintain they presented substantial evidence of the information the Browns would have found had their lawyer searched the records in Washington County, Pennsylvania. That search should have included both Elizabeth Henthorn Fonzi and Harry Fonzi Jr. – whose names both were searched in Ohio, the Fonzis state. Because the attorney didn’t know at the time of the couple’s divorce, whether they had children, or if either was deceased or had estates, any reasonable search would have included both names, they reason. They note that such searches would have produced Harry Fonzi’s estate and his son’s property and tax assessment records. The Fonzis argue the Browns failed to make reasonable efforts to locate and serve the required notice to them as the heirs.

Briefs Filed in Support of Landowners
Two amicus curiae briefs were filed supporting the Browns. Richard Yoss, a lawyer in the oil and gas field, and M. Marie Yoss, who wants to eliminate oil and gas interests held on Monroe properties she owns, submitted their brief to assert that the DMA has been misinterpreted.

The Ohio River Collieries Company, which owns thousands of acres of land that includes severed mineral and surface interests, filed a brief focused on the DMA notice requirements.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Browns (Donna Mead, Delilah Noll, Rhonda Jackson, Larry Brown, Ralph Young, Kelly Yoho, and Melissa Yoho): Daniel Corcoran, 740.373.5455

Representing Harry Fonzi III and Linda Grimes: Mark Fischer, 412.261.6777

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Should Oil and Gas Interest on Monroe County Property Return to Landowner?

Harry A. Fonzi III and Linda Grimes v. Allen B. Miller, M. Craig Miller, and Brenda Thomas et al., Case No. 2020-0861
Seventh District Court of Appeals (Monroe County)

ISSUES:

  • Is a mineral interest abandoned and vested in a landowner if the landowner files “an action to quiet title” to the mineral interest under the Ohio Dormant Mineral Act, the law’s notice requirements are met, and no savings events apply?
  • Does the former mineral interest holder have the burden of establishing that service of the statutory notice was insufficient?
  • To establish that service of notice was insufficient, must a former mineral interest holder show that service would have been possible to complete if the landowner had made additional efforts?
  • Is insufficient service of notice harmless and irrelevant to whether the mineral interest is abandoned if the mineral holder could present evidence of the mineral interest in court?

BACKGROUND:
In 1952, Elizabeth Henthorn Fonzi inherited a one-third interest in a Monroe County property from her father’s estate. She and her husband, Harry Fonzi Jr., sold the property to Everett and Pearl Henthorn in July of that year. The Fonzis retained one-third interest in the oil and gas royalty on the property. The deed stated that the Fonzis lived in Washington County, Pennsylvania.

Everett and Pearl Henthorn’s successors – Allen Miller, M. Craig Miller, and Brenda Thomas (the Millers) – now own the property. In 2011, the Millers hired an attorney to determine whether the property’s mineral interests were abandoned. The attorney searched multiple resources in Monroe County and found no heirs. In late 2011, the Millers published a notice in the Monroe County Beacon indicating that they intended to declare the Fonzis’ partial mineral interest on the property abandoned. No one filed a response. The Millers filed an affidavit of abandonment with the county recorder, who subsequently stated that the mineral interest had been abandoned.

Heirs Claim Right to Oil and Gas Interest
The Fonzis’ children, Harry Fonzi III and Linda Grimes, filed a complaint in May 2017, alleging that they were the sole heirs and had rights to the mineral interest. The Fonzis’ brief in this appeal states that they also filed a claim to preserve their mineral interests. The Monroe County Common Pleas Court granted summary judgment to the Millers in April 2019, determining that the Fonzis failed to prove the Millers didn’t make reasonable efforts to find them.

The Fonzis appealed to the Seventh District Court of Appeals, which in July 2020 overturned the lower court decision and invalidated the abandonment of their mineral interest. The Seventh District stated it was unreasonable for the Millers not to check the records in Pennsylvania’s Washington County for the Fonzi heirs.

The Millers appealed the Seventh District’s ruling to the Ohio Supreme Court, which accepted the case on five propositions of law. The Supreme Court stayed the case until it decided Gerrity v. Chervenak in December 2020. After lifting the stay, the Court directed the parties to brief all but the first proposition of law.

Earlier this month, the Court agreed to consolidate this appeal with the previous case – Fonzi v. Brown – for oral argument. The attorneys, the legal issues, and the arguments are the same in both cases even though there are factual distinctions, the parties noted. Each side will be allotted 30 minutes to present their arguments.

Property Owners Describe Two Ways to Assert Mineral Interests Are Abandoned
The Millers’ arguments in this case are the same as those from the Brown family, described in the Fonzi v. Brown preview above.

Mineral Interest Heirs Reject Two Avenues, Maintain Law Is Clear
The Fonzis make the same assertions in this case as they did in Fonzi v. Brown.

Briefs Filed in Support of Landowners
Two amicus curiae briefs were filed supporting the Millers. Richard Yoss, a lawyer in the oil and gas field, and M. Marie Yoss, who wants to eliminate oil and gas interests held on Monroe properties she owns, submitted their brief to assert that the DMA has been misinterpreted.

The Ohio River Collieries Company, which owns thousands of acres of land that includes severed mineral and surface interests, filed a brief focused on the DMA notice requirements.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Millers (Allen Miller, M. Craig Miller, and Brenda Thomas): Daniel Corcoran, 740.373.5455

Representing Harry Fonzi III and Linda Grimes: Mark Fischer, 412.261.6777

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Can Appellate Courts Review Factors Trial Court Considered When Sentencing?

State of Ohio v. Marcus Toles, Case No. 2020-1242
Twelfth District Court of Appeals (Madison County)

ISSUE: Can an appellate court modify a sentence if it finds by clear and convincing evidence that the record doesn’t support the trial court’s sentence?

OVERVIEW:
Before sentencing a criminal defendant, Ohio trial courts are required to make specific findings under R.C. 2929.11 and R.C. 2929.12. The findings don’t need to be specified in the record, but in some cases trial courts do so.

The Ohio Supreme Court in recent years has been asked repeatedly to address the powers of an appellate court to review and modify a trial court’s decision based on the sentence issued after conducting the required review. The Supreme Court in its 2020 State v. Jones decision appeared to resolve the matter by ruling appellate courts cannot independently weigh the evidence in the record and modify a trial court’s sentence that is issued in compliance with R.C. 2929.11 and 2929.12.

This case was accepted for review before the Court issued the Jones decision. The defendant, Marcus Toles, argues that the Jones decision definitively stated a sentence can’t be modified in those cases where the trial judge didn’t make specific findings on the record. In his case, Toles argues that when a trial court does articulate specific findings, and the findings turn out to be wrong, the appellate court can review and modify the sentence.

BACKGROUND:
In September 2018, Toles was indicted on several drug trafficking-related counts. He was convicted of most of them.

During the sentencing phase, the trial court reviewed a pre-sentence investigation report that had been prepared relating to previous criminal charges he faced, and the report was updated with his recent criminal history. The trial court noted Toles was on probation when he committed the crimes, and he had a prior felony conviction and multiple bond violations while his case was pending.

The trial court noted that it considered the required factors in R.C. 2929.11 and 2929.12 and made specific findings on the record that Toles’ most serious charges had been committed as “an organized criminal activity.” The court found he was at high risk of being a repeat offender because of his adult criminal history and not responding well to prior sanctions. While Toles took responsibility for his acts, the court found that he presented no mitigating factors , which would tend to reduce his sentence. He was given consecutive sentences for a total of five years in prison to be followed by three years of postrelease control.

Toles appealed his sentence to the Twelfth District Court of Appeals, which affirmed his conviction and sentence in a divided opinion. Toles had asked the appeals court to review the findings the trial court made on the record, and modify his sentence because of the incorrect conclusion that his actions were part of an organized criminal activity.

The Twelfth District majority cited the Supreme Court’s 2019 State v. Gwynne decision, in which a concurring opinion stated trial courts don’t have the authority to review a sentence that complies with R.C. 2929.11 and 2929.12. The concurring Twelfth District judge noted that Gwynne didn’t decisively overturn the Court’s 2016 State v. Marcum decision, which did indicate that an appellate court can review and modify sentences to ensure a trial court complied with R.C. 2929.11 and 2929.12.

Toles appealed to the Court, which agreed to hear the case.

Court Retains Right to Review Sentence, Accused Argues
Toles explains the ability of an appeals court to review a criminal sentence is governed by R.C. 2953.08(G)(2). The law states the appeals court “shall review the record, including the findings underlying the sentence or modification given by the sentencing court.” The appellate court “may increase, reduce, or otherwise modify a sentence” or “may vacate the sentence and remand the matter to the sentencing court for resentencing.”

The law states the court can take action “if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code” or “(b) That the sentence is otherwise contrary to law.”

Toles notes that while the Twelfth District debated the merits of his arguments based on the Gwynne and Marcum cases, those decisions have been supplanted by Jones. The Jones decision contained a four-member majority opinion, two concurring opinions, and a dissenting opinion. The majority opinion found R.C. 2929.11 and 2929.12 aren’t among the sections listed in the law that an appellate court can review to determine if the record supports the sentence. The majority stated Marcum was dicta and need not be followed.

Toles argues that one concurring Jones opinion and the dissenting opinion found the law states the appellate court “shall review the record, including the findings underlying the sentence,” which means in some cases an appeals court can evaluate whether the trial court’s sentence complied with R.C. 2929.11 and 2929.12. He notes, in Jones, the Court was considering a case where the trial court didn’t make specific findings on the record. He argues an appellate court could review his case because the trial court did make specific findings, notably that his actions were part of an organized criminal activity, and that he presented no mitigating factors.

Sentence Appropriately Evaluated, Prosecutor Maintains
The Madison County Prosecutor’s Office agrees with the Court’s decision in Jones, and indicates it supports the view the Twelfth District took when it used the Gwynne to determine that it had no authority to review Toles’ sentence.

The prosecutor also notes that Toles did receive a proper review of his sentence. The office notes the factors in R.C. 2929.11 and 2929.12 regard the evaluation of a single sentence. The office explains that under Ohio law, Toles received a sentence for each crime he was convicted of, and that he doesn’t dispute the findings made by the trial court that he committed each of those crimes. What Toles objects to, the prosecutor notes, is the running of his sentences consecutively for a total of five years based on the conclusion that he engaged in organized criminal activity.

The appeals court has power to review his consecutive sentences, the prosecutor notes. A trial court can impose consecutive sentences by following R.C. 2929.14, the prosecutor explains, and R.C. 2929.14 is one of the statutes listed in R.C. 2953.08(G)(2) that authorizes an appeals court to review it. The appeals court did review Toles’ sentence under that provision and found it was appropriate, the prosecutor argues.

The office also notes that in the Jones decision, the Court majority explains what type of errors a trial court may make that would allow an appeals court to modify a sentence under R.C. 2953.08(G)(2)(b) because it was “contrary to law.” The term “contrary to law” applies to a limited number of errors a trial court could make in sentencing, and the Court in Jones stated that a finding that the record does not support the sentence under R.C. 2929.11 and 2929.12 isn’t the equivalent of a conclusion that the sentence is “otherwise contrary to law,” the prosecutor states.

Toles hasn’t demonstrated any of the factors that would make his sentence “contrary to law,” and his sentence should be affirmed, the prosecution concludes.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Marcus Toles from the Ohio Public Defender’s Office: Victoria Bader, 614.466.5394

Representing the State of Ohio from the Madison County Prosecutor’s Office: Rachel Price, 740.852.2259

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Is Victim Entitled to Lost Wages for Time Spent at Offender’s Court Hearings?

State of Ohio v. John D. Yerkey, Case No. 2020-1392
Seventh District Court of Appeals (Columbiana County)

ISSUES:

  • Are victims constitutionally entitled to full and timely restitution, including for losses incurred throughout the prosecution of the criminal offense?
  • Must victims receive restitution for losses incurred during the criminal prosecution to protect their constitutional rights to be present throughout the criminal justice process and to be heard when their rights are implicated?

BACKGROUND:
John Yerkey’s wife filed for divorce in Mahoning County in the fall of 2017. A few months later, she secured a civil protection order against Yerkey, prohibiting any contact, and she moved to Columbiana County. Yerkey was charged in 2018 with violating the protection order.

He pleaded guilty in March 2019 to two counts of protection-order violations. The Columbiana County Common Pleas Court held a restitution hearing in September 2019. Yerkey’s ex-wife requested compensation for attorney fees, medical bills, counseling, and $1,615 in wages lost while attending court. The court granted the request for $1,615 in lost wages.

Yerkey appealed to the Seventh District Court of Appeals, which reversed the trial court. The Seventh District concluded the victim’s participation in Yerkey’s prosecution was voluntary. The court drew a distinction between the costs victims incur while a crime is being committed and those incurred while the matter is addressed in the courts.

The Columbiana County Prosecutor’s Office appealed the ruling to the Ohio Supreme Court, which agreed to hear the case.

Appeal Based on Marsy’s Law Draws Friend-of-the-Court Briefs
The issues arise in the context of a state constitutional amendment known as “Marsy’s Law,” approved by voters in November 2017 and designed to ensure the rights of victims in the criminal and juvenile justice systems. Among the rights enumerated in Marsy’s Law, which took effect in February 2018, are the victim’s right to be present at public proceedings involving the crime against the victim, the right to be heard at such proceedings, and the right “to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim.”

This appeal has led prosecutors, public defenders, and several crime victim advocates to submit amicus curiae briefs.

Victim Lost Wages Because of Offender’s Criminal Actions, Prosecutor Maintains
The Columbiana County prosecutor notes that Yerkey’s ex-spouse attended several court proceedings to protect her rights. In doing so, the victim missed work and lost wages and, at the restitution hearing, presented evidence of these lost wages to the trial court. The office reasons that the wages the victim lost during Yerkey’s prosecution were a “direct and proximate result” of the criminal offense.

The Seventh District looked to R.C. 2929.18(A), a restitution law that permits courts to order an offender to pay a crime victim “based on the victim’s economic loss.” The statute adds that “the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.” The prosecutor states that the appellate court focused on the word “commission” in the law, instead of the terms “direct and proximate result.”

The appeals court concluded that losses from the commission of the crime don’t extend to attendance at proceedings furthering the prosecution of the offense. Yet, the prosecutor counters, without the criminal offense there would be no prosecution.

“Victims are not merely voluntary participants in the criminal justice system,” the prosecutor writes. “The status of victim is involuntarily conferred upon them by defendants when defendants commit criminal offenses against them or commit criminal offenses that directly and proximately harm them. Victims’ interaction with the criminal justice system results solely from the defendants’ criminal conduct.”

The prosecutor adds that Marsy’s Law expanded victim rights and “supersedes all conflicting laws.” A victim’s constitutional rights under Marsy’s Law cannot be restricted by statutes that conflict with the constitution, the office argues.

The prosecutor’s brief also notes that if victims are financially burdened in exercising their rights to be present and heard at criminal proceedings, they will be discouraged from participating and “left voiceless throughout the criminal justice process.” For “full restitution” to have meaning, it must include losses stemming from active participation in the offender’s prosecution, the prosecutor concludes.

Lost Wages Weren’t Direct Result of Crime, Offender Argues
Yerkey argues Marsy’s Law doesn’t supersede R.C. 2929.18 because the two aren’t in conflict. He maintains that the statute describes how courts determine restitution and the constitutional amendment doesn’t change the statute’s operation. As the Seventh District concluded, the rights in Marsy’s Law “do not exist in a vacuum” and must be viewed within the statutory framework that preceded the constitutional amendment and is still in place, his brief contends. Yerkey believes the Ohio Supreme Court’s City of Centerville v. Knab (2020) ruling – which involved Marsy’s Law – supports this view.

He maintains that the Court in its 2013 decision in State v. Lalain, interpreting R.C. 2929.18(A), ruled consequential costs incurred after the crime can’t be part of restitution because they aren’t a direct and proximate result of the commission of the criminal offense. He argues the victim’s lost wages for attending court didn’t directly result from the commission of the crime (the violation of the protection order) and can’t be recovered.

“Restitution has historically been to compensate actual harm due to criminally injurious conduct,” his brief states.

Yerkey maintains that changing the meaning of restitution wasn’t part of the constitutional amendment. The state’s position expands what restitution means, separates restitution from the criminal conduct, and “will clog the [c]ourts with restitution hearings, restitution fights, appeals, etc.,” he contends.

He also disputes the prosecutor’s claim that victims will be voiceless and financially burdened if they receive no restitution for such expenses. The prosecutor is the voice for all people, including victims, he argues. Prosecutors keep victims informed, and victims convey their wishes and concerns to prosecutors, Yerkey states, adding that victims also are permitted to submit impact statements in person or in writing. He also maintains that the argument that victims would be deterred from participating if their lost wages aren’t reimbursed doesn’t make sense given current technology. There are other ways to participate and to be heard, he contends.

Prosecutors, Victim Rights Groups Argue Marsy’s Law Requires Restitution for Lost Wages
The Ohio Prosecuting Attorneys Association points out in its amicus brief supporting the Columbiana County prosecutor that constitutional law, such as Marsy’s Law, is “paramount” over statutes. Statutes, such as R.C. 2929.18, cannot limit constitutional provisions, the prosecutors note. Marsy’s Law created “enforceable constitutional rights that were not dependent on legislative action or approval,” they state.

Nor does the right in Marsy’s Law “to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim” impose a “direct and proximate” requirement, the association states. It maintains that the constitutional provision recognizes two groups of victims – “a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.” The first group – “a person against whom the criminal offense or delinquent act is committed” – includes no direct and proximate requirement to be entitled to restitution under Marsy’s Law, the prosecutors conclude.

A group of victim rights advocates – Advocating Opportunity, Crime Victim Services in Allen and Putnam counties, National Crime Victim Law Institute, Ohio Alliance to End Sexual Violence, and Ohio Crime Victim Justice Center – also filed an amicus brief in support of the county prosecutor’s views. Similar to the prosecutors’ association, the advocates state: “Ohio’s constitutional rights for victims are not to be construed within the context of existing laws; instead, existing laws are to be construed within the context of the constitutional guarantees.”

The advocates also maintain that forcing victims to choose between their income and participating in the justice system interferes with their right to restitution under Marsy’s Law. Barring restitution for lost wages thwarts the rights of less-well-off victims to access the courts equally with victims who have greater financial security, the groups argue. And overall, they contend, preventing restitution for lost wages contradicts the guarantee in Marsy’s Law to secure justice and due process for victims.

Public Defenders Contend that Such Restitution Creates Trial Tax
The Ohio Public Defender’s Office agrees with Yerkey in its amicus brief, arguing that Marsy’s Law didn’t change the definition of restitution to include the lost wages of accusers. Such a change to Ohio’s ongoing understanding of restitution had to be explicit, the public defenders maintain. They state that restitution doesn’t include indirect costs an accuser incurs when a defendant elects to exercise the constitutional right to go to trial. To charge a defendant for these types of costs results in a “trial tax” – a punishment for going to trial, they argue.

“[T]he approach urged by the State and its amici would be a literal trial tax in future cases where defendants elect to go to trial: money that a defendant must pay, as a part of his or her punishment, for the mere exercise of his or her constitutional rights,” their brief states. “Although it is understandable that accusers would wish to be compensated for attending trial proceedings, that wish simply must yield to the fundamental constitutional principle that an accused cannot be punished for simply choosing not to plead guilty.”

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Columbiana County Prosecutor’s Office: Tammie Jones, 330.420.0140

Representing John D. Yerkey: Gregg Rossi, 330.744.8695

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