“Where do we draw the line?”

Justice Donnelly, to the Assistant County Prosecutor

“Are you saying the prosecution is not a direct consequence of the commission of an offense?”

Chief Justice O’Connor to counsel for Yerkey

On September 22, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. John D. Yerkey 2020-1392. At issue in this case is whether a crime victim may be awarded restitution for lost wages that resulted from her attendance at court proceedings during the prosecution of the criminal offense.

Case Background

J.D. filed for divorce from John Yerkey in Mahoning County in 2017 and obtained a civil protection order against him in 2018. The order prohibited any contact with J.D. in person, by telephone, or through electronic communication either directly or indirectly. After the CPO went into effect, J.D. moved to Columbiana County.

While the divorce action was pending in Mahoning County, Yerkey violated the CPO three times within five weeks, from June 30, 2018, to August 1, 2018. The first violation occurred when Yerkey arrived at J.D.’s home.  J.D. filed a complaint in Columbiana County Municipal Court, which resulted in additional conditions for Yerkey, namely an order prohibiting contact through social media, a prohibition against entering Columbiana County, where J.D. resided, and a prohibition on the possession and use of alcohol. The second violation occurred when Yerkey was seen driving by J.D.’s home. J.D. filed a report with the police, and this infraction resulted in additional charges. Finally, Yerkey contacted J.D. through social media, and once again, J.D. filed a police report, and again Yerkey was charged in the same county with a third violation of the CPO.

While the three charges were pending, it was discovered that Yerkey had previously been convicted in Mahoning County Court, in 2016 and 2017, for violating protection orders for domestic violence. With the addition of these two convictions, Yerkey’s three CPO violations were then subject to an enhancement. Yerkey’s cases were transferred to the Columbiana County Common Pleas Court, where he was charged in two cases for a total of three felonies of the fifth degree, pursuant to R.C. 2919.27(A)(1).  Yerkey pled guilty to one count in the first case, and in the second, which had two counts, he pled guilty to one count in the form of an Alford plea.

On May 20, 2019, Yerkey was sentenced to two four-year sentences of probation, to be served concurrently, under intensive supervision. At a restitution hearing for both cases, J.D. testified and presented documentation requesting compensation for attorney’s fees, medical bills, and lost wages as a result of attending court proceedings. On October 1, 2019, the trial court ordered Yerkey to pay J.D. restitution of $1,615.00 for her lost wages. Yerkey appealed.

The Appeal

In a unanimous opinion, the Seventh District reversed the judgment granting restitution to J.D. for lost wages and modified the sentencing order accordingly. The court reasoned the rights afforded under Article I Section 10(a) of the Ohio Constitution, also known as Marsy’s Law, must be construed within the framework of the existing statutes governing restitution and defining economic loss.  (RC.2929.32 and R.C. 2929.01(L)).

The appeals court found that lost wages resulting from voluntarily attending court proceedings do not meet the definition of economic loss as provided in the relevant statutes, which provide that the loss must have occurred “as a direct and proximate result of the commission of the offense.” In this case, the victim, who is not a party to the criminal proceedings, attended the court proceedings of her own volition; therefore, the lost wages are too far removed to be a direct and proximate result of the commission of the offense. Lost wages would be the direct and proximate result of the prosecution of the crime, but the General Assembly did not use the word prosecution in the statutory definition. Therefore, the trial court abused its discretion when it issued the restitution order for lost wages.

Read the oral argument preview of the case here.

Key Statutes and Precedent

*Ohio Constitution Article I Section 10(a) (Marsy’s Law )(“(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused: (1) to be treated with fairness and respect for the victim’s safety, dignity and privacy (2) to be present at all public proceedings involving the criminal offense, (7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim; (E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.”)

*R.C. 2929.18(A)(1) (Affords the court the authority to impose financial sanctions – including payment of restitution to the victim of the offense – on the offender of a felony. The statute requires the restitution order to be based on “…an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided 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.”)

*R.C. 2929.01(L) (““Economic loss” means any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense and includes any loss of income due to lost time at work because of any injury caused to the victim…” )

Beckett v. Warren, 2010-Ohio-4 (If the meaning of a statute is unambiguous, the court looks to the statute’s plain language and applies it as written.)

State v. Williams, 2010-Ohio-3279 (7th Dist.) (A crime victim is not a party in the offender’s criminal proceedings.)

State v. Holt, 2011-Ohio-1582 (8th Dist.) (The trial court may order restitution if it is reasonably related to the loss suffered, and this can be established through testimony or documentary evidence.)

State v. Lalain, 2013-Ohio-3093 (“A trial court has the discretion to order restitution in an appropriate case and may base the amount it orders on a recommendation of the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, but the amount ordered cannot be greater than the amount of economic loss suffered as a direct and proximate result of the commission of the offense.”)

State v. Roach, 2017-Ohio-8511 (6th Dist.) (Restitution is limited by statute to loss of income due to an injury suffered by a victim that occurred as a direct and proximate result of the commission of the crime; therefore, lost wages for court appearances related to the crime cannot be awarded.)

State v. Johnson, 2018-Ohio-3670 (8th Dist.) (The trial court must calculate the amount of restitution ordered to a reasonable degree of certainty by supporting the calculation with competent, credible evidence.)

*Centerville v. Knab, 2019-0873 (Purpose of Marsy’s Law is to protect victim’s rights with the same vigor as rights of the accused.)

*Cited by counsel at argument

State’s Proposition of Law I Accepted for Review

Victims are constitutionally entitled to full and timely restitution, including restitution for losses incurred throughout the prosecution of the criminal offense.

State’s Proposition of Law II Accepted for Review

Victims are constitutionally entitled to restitution for losses incurred throughout the prosecution of the criminal offense to protect victims’ constitutional rights to be present throughout the criminal justice process and heard when their rights are implicated.

At Oral Argument

Arguing Counsel

Tammie Riley Jones, Assistant Prosecuting Attorney, Columbiana County, for Appellant State of Ohio

Gregg A. Rossi, Rossi & Rossi Co., Youngstown, for Appellee John D. Yerkey

State’s Argument

Under Marsy’s law, victims have been granted a constitutional right to full and timely restitution, which must include lost wages incurred as a direct result of active participation in the prosecution of the offense.  Attendance at the hearings is part of that active participation because by attending the hearings the victims have the opportunity to exercise their other constitutionally guaranteed rights under Marsy’s Law, such as participating in or voicing their opinion or objections as set forth in the other provisions of Marsy’s Law.

Part of the error in the 7th district’s holding was that in looking at the statutory framework, not only did they disregard the more expansive rights to full and timely restitution granted under Marsy’s Law but they narrowly interpreted the statutory definition of economic loss set forth in R.C. 2929.01(L). The language of that provision states that economic loss means any economic detriment suffered as a direct and proximate result of the commission of the offense and then goes on to provide some illustrative examples. But the 7th district appeared to interpret that as an exhaustive list.

This Court has addressed the meaning of the term “victim” in Centerville v. Knab, by looking to the plain language of the Constitutional Amendment. While the Court determined in that case that a municipality would not constitute a victim entitled to restitution under Marsy’s Law, the Court also determined that natural persons against whom the crime was committed or those that were proximately harmed by the commission of the offense would constitute victims of the offense.

The appeals court in this case did refer to the commission of the offense but excluded from the commission of the offense the ongoing prosecution of the offense, which is a natural and foreseeable consequence of the criminal offense. When a criminal offense is committed there is going to be a prosecution of that offense and then the expense that the victim incurs as a result of that prosecution would be directly related to the commission of the offense.

The right to full and timely restitution relates to restitution resulting from the commission of the offense. The restitution order under the procedural mechanism set forth in R.C. 2929.18(A) is something that the trial court would address at the sentencing phase. This right to full and timely restitution does not stop in the event the case is reversed and remanded. The right to be present, to participate, and to attend proceedings continues. Any wrongful conviction would be handled in the same manner as vacating the sentence and vacating that restitution order. But the state is not here to speak to the defendant’s rights to recover restitution if there is a reversal of the conviction but rather to suggest that in this particular case the 7th district improperly looked at the issue of lost wages. In making its determination the appeals court erroneously relied solely on the statutory framework and did not give effect to the constitutional rights that were created by Marsy’s law and are now guaranteed to victims. There are also cases which predate Marsy’s Law in which lost wages have been held to be compensable as restitution in criminal proceedings.

The state also disagrees that having restitution as part of the sentence is somehow a trial tax or a disincentive to a defendant to go to trial. Restitution is designed to make the victim whole and was allowed pre-Marsy’s law as part of a sentence a court could impose. A defendant is not going to be influenced in his or her decision about whether to exercise his or her constitutional rights simply because the victim was exercising his or her constitutional right to be present at all proceedings. The possibility of having to pay restitution to the victim would not be something that a defendant would consider as a disincentive to asserting his or her constitutional rights. A restitution order is a potential penalty. The penalty isn’t going to be greater simply because the defendant exercises his constitutional rights. This Court should not be dissuaded from giving full force and effect to the constitutional amendment adopted by the people of Ohio giving victims the right to full and timely restitution by suggesting that that right of the victim to full and timely restitution is somehow going to impinge on the defendant’s rights.

In terms of the restitution order, it should make no difference whether the victim was salaried or paid by the hour. The trial court must determine how the lost wages are to be calculated. In this case the victim testified that she was a salaried employee and had calculated her lost wages as such. The trial court accepted that testimony as competent credible testimony as to the amount of her loss.

Because the restitution order issued by the trial court was reviewable under an abuse of discretion standard, this Court need only reverse the court of appeals and the order imposed by the trial court would stand. This Court should hold that the victim’s lost wages were compensable as restitution under Marsy’s law and under the statutory framework, and the court of appeals should be reversed.

Crime victims have been thrust into the criminal justice system as a direct and proximate result of the defendant’s conduct in the commission of the crime. They are guaranteed the constitutional rights under Marsy’s Law to be present at and participate in the proceedings. It is not up to the defendant to decide which proceedings they may choose to attend. The state simply asks this Court to recognize the right to full and timely restitution as guaranteed by Marsy’s Law.

Yerkey’s Argument

Restitution is for losses directly and proximately caused by the commission of the offense. The court of appeals correctly looked at “commission” versus “prosecution” because RC 2929.18 speaks to losses “as a result of the commission of the offense.” That’s why the 7th district was correct. Allowing restitution for the prosecution of the offense will clog the trial courts. There will be trials and evidentiary hearings and appeals on restitution.

The Constitution provides for full and timely restitution; R.C. 2929.18 also provides for restitution. There’s no conflict there. But Marsy’s Law doesn’t define restitution, it doesn’t provide a mechanism for restitution, and it doesn’t expand restitution. Victims have had the right to restitution pursuant to statute for many years. The restitution statute was not superseded, there’s no direct conflict, and the restitution was correctly found by the 7th district to be for losses directly and proximately caused by the commission of the offense.

The victim, while an important part of the process, is not a party to the proceedings. It is the victim’s choice to participate in the proceedings. They can appear, or, unless subpoenaed, not appear. There are certainly critical stages in the proceedings such as the trial, plea, and sentencing where the victims will be present regardless of whether they are compensated for wages or not. Restitution has historically been for verifiable and identifiable situations, such as medical bills for an injury. Historically, the purpose of Marsy’s law was to give notice to the victims, the opportunity to be present and the opportunity to be heard. Restitution was already part of the criminal code and a financial sanction available to a victim upon request to the trial court. It is not a new right.  Marsy’s Law did not confer a new right. In its analysis in Knab, this Court looked to RC 2929.18 for guidance. It did not say that statute no longer exists because it conflicts with Marsy’s Law. The statute and Marsy’s Law are not in conflict with each other. Since Marsy’s law doesn’t define restitution, when it speaks of full restitution, we look to the definition of restitution existing on the books that does not conflict, and apply the statutory language as part of the framework in determining restitution. The losses must be both direct and proximate to be compensable. Restitution is for the acts that constituted the commission of the actual offense versus something that is remote or indirect or consequential. It’s not a but-for analysis. That’s not  appropriate in a restitution context.

The statutory language says “commission,” not “prosecution.” What if the defendant is found not guilty? Is the victim liable for the defendant’s wages or attorney fees? The answer would be no.

There are plenty of opportunities for participation. Victims do not need to be present at every single proceeding or stage—obviously they will be there at the critical ones. But the statute is clear and unambiguous and does not provide for restitution to cover lost wages for mere participation.

What Was On Their Minds

Marsy’s Law

Does Marsy’s Law cover all victims asked Chief Justice O’Connor? Later she commented that the Court hears from victims all the time that they want to see what happened or be in the line of communication and that gave rise to Marsy’s Law because in many instances that wasn’t the case. She added that the victim cannot be faulted because of the way Marsy’s Law is written. Does it matter whether victims are choosing to be there or they are subpoenaed to be there? A crime happened to them, and this constitutional amendment allows for their attendance and notification and allows them to deal with the consequences of the crime on their terms. And if they choose to attend and that results in economic loss to them, I think that’s behind this whole concept, the Chief added.

Is Marsy’s law self-executing, asked Justice Brunner?

Don’t we think the purpose of Marsy’s Law is the things Marsy’s Law says, asked Justice DeWine? Full compensation to the victim? Isn’t that the purpose of the law? The law previously said the court may order restitution. Marsy’s law makes restitution mandatory; it makes it a right where it didn’t exist before. Are there constitutional rights that we ignore because they would clog the trial courts? If the Constitution orders a certain thing, how would it be difficult for trial courts to do it?  

The Mechanics of Restitution

Would restitution be limited to lost wages connected to the prosecution, asked Justice Donnelly? Could it include mileage to the court, gasoline, and childcare services while they attend meetings? Would that be included in restitution?  A lot of victims require psychological counseling as a result of the crimes that were committed. Should the expenses related to that be included in restitution as well? Where do we draw the line?

How is the restitution collected, asked Chief Justice O’Connor? What’s the theory about how the victim would collect the parking, the gas, the childcare, and the lost wages? Is that a judgment against the individual? Would this also apply to post conviction hearings that the victim would attend? Anything post-sentence?

From a practical standpoint, how does this work, asked Justice Stewart? Should all the lost wages from the victim based on that conviction go into the restitution order? Whatever is deemed appropriate-childcare, lost wages, or those sorts of things? Let’s say the trial court agrees and an amount is set. It goes up on appeal and gets reversed and remanded for a new trial. Would that victim be allowed the same set of expenses for the first and the second trials?

Are there any cases in which the person’s attendance at court was reimbursed under restitution, either voluntarily or under subpoena asked Justice Fischer? Does it matter whether the victim was salaried or paid by the hour? If the victim is salaried, is the victim getting more than being made whole?

Restitution Statute

Can the statute be interpreted in light of the constitutional amendment, asked Chief Justice O’Connor?

Appellate Decision

If the Court agrees with the state, do we need to send this back to the court of appeals to review the amount of restitution the trial court ordered, asked Justice DeWine? Did the appellate court review whether the amount was an abuse of discretion? Wasn’t there also a challenge to the amount of the restitution?  If the state is correct, that the victim is entitled to restitution for lost wages, wouldn’t the court of appeals still have to review whether the amount that was given was correct?

Defendant’s Rights

What’s the defendant’s remedy with regard to the restitution order if he is wrongfully convicted and is ultimately exonerated as wrongfully convicted asked Justice Stewart? If anything was paid to the victim how is that recovered? If the victim wrongfully identifies the defendant as the perpetrator, and the defendant has to go through trial to be acquitted, is the loss by the defendant passed on to a victim who wrongfully accused him of a crime?

Keeping in mind that restitution is part of the sentence is this going to create a disincentive to a defendant to go to trial asked Justice Brunner? What’s the basis for saying there’s not a disincentive? She commented that this was almost a collision of two constitutional provisions and that the defendant has a lot of constitutional rights that must be considered. If we are stepping on the defendant’s right to a trial in any way, even with another citizen-adopted constitutional amendment, how do we resolve that? The paramount issue on the defendant’s mind is getting a lesser sentence and if restitution is part of the sentence, how do we not consider that in determining where the state wants the Court to go? She added that all of the Constitution is considered to be the voice of the people.

Commission of the Offense versus Prosecution of the Offense

The limiting phrase here is “in direct and proximate result of the commission of the offense,” commented Chief Justice O’Connor. If restitution can be linked to the commission of the offense, will it be appropriate however it is figured out?  But is the defense saying the prosecution of an offense is not part of the chain of events that take place because of the commission of the offense? Isn’t the prosecution a direct consequence of the commission of an offense?

Isn’t the question whether it’s foreseeable that someone will be prosecuted as the result of a criminal offense, asked Justice DeWine? Isn’t the analysis whether proximate cause is foreseeable? Isn’t a direct cause also a proximate cause? He commented that the victim has the right under Marsy’s Law to attend, so if it is foreseeable that there will be a trial and she will attend, that seems to be the definition of direct and proximate cause.

How it Looks from the Bleachers

To Professor Emerita Bettman

Despite misgivings from Justices Brunner, Donnelly and Stewart about what happens to restitution when a defendant is wrongfully convicted or has a conviction reversed on appeal, this looks like a win for the state. The justices expressed the sentiment that restitution under Marsy’s Law was meant to be broadly interpreted in favor of victims’ rights, and a majority seemed to think that the prosecution of an offense, with its related costs including lost wages in this case, was a direct and foreseeable consequence of the commission of the offense, and thus allowable as restitution.

Specifically, I think the Court will find the trial court did not abuse its discretion in awarding lost wages to the victim in this case, and will let the amount awarded stand.

To Student Contributor Susana Tolentino

As a matter of law, this looks like a win for the State. For the State, Ms. Jones argued the provisions of Marsy’s Law are self-executing and supersede all conflicting law. The Court must review and reconcile both Marsy’s Law and the pertinent statutes, and in doing so, find the victim is guaranteed “full” restitution under Mary’s Law. For Mr. Yerkey, Mr. Rossi proposed that restitution rights had previously been available under the criminal code and that nothing was added by the adoption of Marsy’s Law that would increase restitution rights. To counter, Justice DeWine stated Marsy’s law makes restitution mandatory where the law previously said the court may order restitution, “so it certainly makes it a right where it didn’t before.”

It was clear many of the Justices thought the constitutional amendment guaranteed a broader definition of restitution than Mr. Rossi proposed. He argued that traditionally restitution had been reserved for the compensation of economic losses incurred due to an injury that had resulted from the commission of the offense. Chief Justice O’Conner challenged Mr. Rossi to explain how the prosecution of the offense would not be foreseeable as a direct and proximate result of the commission of the offense.

The sticking point is that it is hard to draw the line as to what is considered a direct and proximate result. Many Justices were concerned with how the restitution award would be calculated and wondered if the award would include compensation for childcare, gas money, or psychological bills. Indeed Mr. Rossi argued a decision in favor of the State would be a slippery slope that would clog the courts. At this, Justice DeWine stepped in to say, “are there other constitutional rights that we ignore because they would clog the trial court?” and concluded it would not be a valid excuse to say we should ignore what the Constitution says because implementation would be difficult.

Therefore, I think the Court will find for the State but, because it is a difficult line to draw, will narrowly hold, based on the facts of this case, that the trial court did not abuse its discretion when it awarded restitution to the victim for lost wages for attendance at court proceedings;  effectively allowing the trial court to continue to use its discretion, on a case-by-case basis, to determine, of the compensation being requested, which expenses can reasonably be held to have been direct and proximate results of the commission of the offense.