State v. Yerkey

171 Ohio St.3d 367

218 N.E.3d 749

The STATE of Ohio, Appellant,

v.YERKEY, Appellee.

No. 2020-1392

Supreme Court of Ohio.

Submitted September 22, 2021

Decided December 5, 2022

Vito J. Abruzzino, Columbiana County Prosecuting Attorney, and Tammie Riley Jones, Assistant Prosecuting Attorney, for appellant.

Rossi & Rossi Co., Gregg A. Rossi, Youngstown, and James N. Melfi, for appellee.

Steven L. Taylor, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.

Elizabeth Well and Diva Edel, urging reversal for amici curiae National Crime Victim Law Institute, Ohio Crime Victim Justice Center, Ohio Alliance to End Sexual Violence, Crime Victim Services, and Advocating Opportunity, Inc.

Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant Public Defender, urging affirmance for amicus curiae Office of the Ohio Public Defender.

Brunner, J.

I. INTRODUCTION

{¶ 1} This matter calls for us to decide whether a crime victim is entitled to receive restitution from an offender for wages lost as a result of the victim's choice to exercise her right to attend court hearings. Applying both the Ohio Constitution's victims' rights amendment, Article I, Section 10a (known as "Marsy's Law"), and the relevant statutes, we conclude that Marsy's Law provides a right to "full and timely restitution" but did not alter the meaning of "restitution" in Ohio law. Restitution in Ohio is limited to economic losses suffered by the victim as a direct and proximate result of the commission of the offense. Therefore, unless the loss of wages is directly and proximately caused by the offense (as, for example, when a victim misses time at work because of an injury to the victim caused by the offense), lost wages are not compensable as restitution. Accordingly, we affirm the judgment of the Seventh District Court of Appeals.

II. FACTS AND PROCEDURAL HISTORY

{¶ 2} On July 3, 2018, an officer filed a complaint in the Columbiana County Municipal Court alleging that appellee, John Yerkey, had violated a protection order when he went to the home of his ex-wife and refused to leave. In addition, Yerkey had apparently sent her email messages and items through the mail. A short time later, on August 1, 2018, a second complaint was filed alleging that Yerkey had once again violated the order, by driving by his ex-wife's home. On August 8, 2018, a third complaint was filed based on Yerkey's attempt to connect with his ex-wife via social media and to share his location with her.

{¶ 3} Because Yerkey had previously been convicted of violating a protection order, the municipal-court cases were soon indicted as two cases in the Columbiana County Court of Common Pleas: case Nos. 2018 CR 263 and 2018 CR 307. The indictment in case No. 2018 CR 263 was filed on August 16, 2018, and involved a single fifth-degree felony count of violating a protection order. The indictment in case No. 2018 CR 307 was filed on September 14, 2018, and consisted of two fifth-degree felony counts of violating a protection order. Yerkey initially pled "not guilty" to all charges on September 27, 2018.

{¶ 4} However, on March 1, 2019, Yerkey entered into a plea agreement with appellant, the state of Ohio, whereby he would plead guilty to two of the three fifth-degree felony charges and the state would recommend community-control sanctions. On March 26, 2019, the trial court accepted Yerkey's guilty pleas. It appears to be undisputed that the factual bases for the charges to which Yerkey pled guilty were his driving by the victim's house on July 31, 2018, and sharing his location with her on social media via a "find friends request" on August 7, 2018. Two months after Yerkey's pleas were accepted, the trial court sentenced him to a term of four years of community control with intensive supervision for each count, with the terms to run concurrently, and noted that it would later address the issue of restitution, giving the victim 30 days to provide documentation to the prosecutor.

{¶ 5} On September 27, 2019, the trial court held a restitution hearing. The victim testified that she was seeking restitution for lost wages relating to seven full days' worth of work that she missed in connection with attending hearings for the criminal cases. She testified that she worked for Big Lots, earning $29.14 an hour, and that the total of her lost wages amounted to $1,615. She submitted a handwritten calculation showing how she had reached that total.¹ In addition to the lost wages, the victim also requested nearly $20,000 in attorney fees, medical bills, and counseling bills, related to treatment and professional services sought in connection with the divorce and disintegration of her relationship with Yerkey.

The trial court orally indicated that expenses or costs incurred prior to the criminal conduct at issue in the cases or not proximately caused by the criminal cases, could not be awarded as restitution. But it expressed the belief that lost wages could be "arguably directly and proximately related to the cases." The court took the matter under advisement and ultimately issued a written entry ordering $1,615 in restitution for the lost wages of the victim.

{¶ 6} The Seventh District reversed the restitution order. It concluded that Marsy's Law reaffirmed the victim's right to be present at all public proceedings and to receive full and timely restitution. 2020-Ohio-4822, 159 N.E.3d 1232, ¶ 24-26. However, it reasoned that such rights do not exist in a vacuum and still need to be construed within the valid and unchanged statutory framework governing restitution in Ohio. Id. at ¶ 26. It explained that losing wages while voluntarily attending court hearings is not a direct and proximate result of the commission of the offense. Id. It then concluded that since the amount of restitution cannot exceed the actual economic loss suffered by the victim " ‘as a direct and proximate result of the commission of an offense,’ " the lost wages could not qualify for restitution. Id. , quoting R.C. 2929.01(L).

{¶ 7} The state appealed, asserting that because crime victims have a constitutional right to full and timely restitution and to be present at court proceedings, they are entitled to restitution for losses (including lost wages) incurred during the prosecution of offenses. We accepted jurisdiction, 161 Ohio St.3d 1420, 2021-Ohio-254, 161 N.E.3d 713, and now affirm the Seventh District.

III. DISCUSSION

A. Marsy's Law

{¶ 8} In November 2017, the voters of this state passed an amendment to the victim's rights provision of the Ohio Constitution. That amendment, effective February 5, 2018, provides:

(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:

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(2) upon request, to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent act against the victim, and to be present at all such proceedings; (3) to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right of the victim is implicated;

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(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim;

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(E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.

Article I, Section 10a, Ohio Constitution. This amendment is known as Marsy's Law.

B. Method of Construing Voter-Approved Constitutional Provisions

{¶ 9} Marsy's Law was approved by direct vote of Ohio's electors, and it is well established how we construe such provisions:

In construing constitutional text that was ratified by direct vote, we consider how the language would have been understood by the voters who adopted the amendment. Castleberry v. Evatt , 147 Ohio St. 30, 33, 67 N.E.2d 861 (1946) ; see also State ex rel. Sylvania Home Tel. Co. v. Richards , 94 Ohio St. 287, 294, 114 N.E. 263 (1916) (when interpreting the Ohio Constitution, "[i]t is the duty of the court to ascertain and give effect to the intent of the people"). The court generally applies the same rules when construing the Constitution as it does when it construes a statutory provision, beginning with the plain language of the text, State v. Jackson , 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 14, and considering how the words and phrases would be understood by the voters in their normal and ordinary usage, District of Columbia v. Heller , 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

Centerville v. Knab , 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 22. In cases in which the language of the provision is unclear or ambiguous, our analysis may also include a review of the "history of the amendment and the circumstances surrounding its adoption, the reason and necessity of the amendment, the goal the amendment seeks to achieve, and the remedy it seeks to provide." Id. Also, we presume that the voters were aware of the laws in existence at the time they voted to adopt the constitutional amendment. See id. at ¶ 28 ; State v. Carswell , 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 6. It is also axiomatic that the words of the provision passed, except when otherwise indicated, are to be given their ordinary meaning. Knab at ¶ 22. So the question is, what would a voter who knew the then-existing law have understood the Marsy's Law provision to mean?

C. Ohio Statutes and Constitution Prior to Marsy's Law

{¶ 10} Before the enactment of Marsy's Law, there was a more compact constitutional provision regarding the rights of victims of crimes that stated:

Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights

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