In re Code , 2010 Ohio 6714 ( 2010 )

[Cite as In re Code, 2010-Ohio-6714.]
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: EDWARD L. CODE
EDWARD L. CODE
Applicant
Case No. V2010-50329
Commissioners:
Elizabeth Luper Schuster, Presiding
Randi M. Ostry
Lloyd Pierre-Louis
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On September 17, 2009, the applicant filed a compensation application as
the result of an assault which occurred on July 10, 2009. On December 10, 2009, the
Attorney General issued a finding of fact and decision denying the applicant’s claim for
an award of reparations pursuant to R.C. 2743.60(E)(1)(a), based on a conviction for
manslaughter, a felony of the first degree, on August 14, 2006. On January 11, 2010,
the applicant submitted a request for reconsideration. The applicant asserts he was
convicted of manslaughter on April 28, 1998, which is more than ten years prior to the
occurrence of the criminally injurious conduct. On March 12, 2010, the Attorney
General rendered a Final Decision finding no reason to modify the initial decision. The
Attorney General’s investigation revealed the initial sentence imposed in 1998 was
vacated and the applicant was subsequently convicted of voluntary manslaughter on
August 14, 2006. On April 7, 2010, the applicant filed a notice of appeal from the
March 12, 2010 Final Decision of the Attorney General. Hence, a hearing was held
before this panel of commissioners on June 16, 2010 at 11:00 A.M.
Case No. V2010-50329 - 2 - ORDER
{2}Assistant Attorney General Matthew Karam appeared on behalf of the state
of Ohio. The applicant did not attend the hearing.
{3}The Attorney General made a brief statement for the consideration of the
panel. The issue in this case concerns the application of R.C. 2743.60(E)(1)(a), the
felony exclusion. On May 12, 1998, the applicant was convicted of voluntary
manslaughter. Due to the holding in State v. Jordan, Cuyahoga App. No. 80675,
2002-Ohio-4587, the trial court must inform a defendant that post-release control is part
of his sentence either at sentencing or at the time of the plea hearing; to not do so
results in prejudicial error. The procedure enunciated in Jordan was not followed in the
applicant’s criminal case. Accordingly, the applicant was re-sentenced on August 14,
2006. Based upon prior case law, the date of the sentence is the date which trigger the
10-year period for the felony exclusion pursuant to R.C. 2743.60(E). Therefore, the
August 14, 2006 date is the controlling date for the purposes of the felony exclusion.
The Attorney General cited State v. Carter (1992), 64 Ohio St. 3d 218, for the
proposition that a judgment of conviction does not exist until sentence is imposed.
Accordingly, the Attorney General’s March 12, 2010 decision should be affirmed.
Whereupon, the hearing was concluded.
{4}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.”
{5}A person is not convicted of a criminal offense until a sentence is imposed.
State v. Carter, supra. See also, State v. Henderson (1979), 58 Ohio St. 2d 171; State
v. Poindexter (1988), 36 Ohio St. 3d 1.
Case No. V2010-50329 - 3 - ORDER
{6}Upon review of the case file and with full and careful consideration given to
the argument presented at the hearing, we find the applicant’s claim should be denied
pursuant to R.C. 2743.60(E)(1)(a). The facts of this case reveal that the applicant’s
initial conviction in 1998 was vacated and the applicant was re-sentenced on August 14,
2006. Pursuant to the holding in Carter, the sentencing date establishes the date of
conviction. Therefore, since the applicant was sentenced on August 14, 2006, for the
purposes of R.C. 2743.60(E)(1)(a), that is the date which must be used to calculate the
ten-year period. Accordingly, the Attorney General’s decision of March 12, 2010 is
affirmed.
IT IS THEREFORE ORDERED THAT
{7}1) The March 12, 2010 decision of the Attorney General is AFFIRMED;
{8}2) This claim is DENIED and judgment is rendered for the state of Ohio;
{9}3) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
ELIZABETH LUPER SCHUSTER
Presiding Commissioner
_______________________________________
RANDI M. OSTRY
Commissioner
_______________________________________
LLOYD PIERRE-LOUIS
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Jan - Aug 2010\V2010-50329.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:
Case No. V2010-50329 - 4 - ORDER
Filed 8-27-10
Jr. Vol. 2276, Pgs. 92-95
Sent to S.C. Reporter 10-6-11