from the Franklin County Court of Common Pleas C.P.C. No.
Michael DeWine, Samual J. Kirk, Attorney General, and Anil
Patel, for appellee.
R. Venters, Public Defender, and John W. Keeling, for
1} Defendant-appellant, Lenore Wiley, appeals a
judgment entry of the Franklin County Court of Common Pleas
issued on September 1, 2016 insofar as it ordered her to pay
restitution of $44, 316.23 to the Ohio Department of
Medicaid. Because we agree that the State presented evidence
to show that it suffered an economic loss only in the amount
of $1, 748.54, the $44, 316.23 restitution award was
excessive. We therefore reverse and remand for imposition of
restitution in an amount consistent with the evidence and
instruct that the trial court shall give consideration to
Wiley's ability to pay in accordance with R.C.
FACTS AND PROCEDURAL HISTORY
2} A Franklin County Grand Jury indicted Wiley on
November 17, 2015 for Medicaid fraud in the range of $7, 500
to $150, 000 and several other offenses. She pled
"not guilty" to the indicted offenses on February
12, 2016. But on August 3, 2016, she pled "guilty"
to Medicaid fraud in the range of $1, 000 to $7, 500. The
State and Wiley's counsel jointly recommended a sentence
of community control, along with restitution in an amount to
be determined. (Aug. 3, 2016 Plea Tr. at 11-12, filed Nov. 8,
2016; Aug. 31, 2016 Plea Form.) The remaining indicted
offenses were dismissed.
3} During the plea hearing but after the court
accepted her guilty plea, the prosecution called an
investigator as a witness to present evidence of the amount
of restitution she owed. (Plea Tr. at 14.) The investigator
testified that she began investigating Wiley in 2012 in
connection with a report of a kickback scheme. Id.
at 17. Video surveillance revealed that with respect to a
Medicaid recipient, "Curry" (with whom Wiley had a
kickback scheme), Wiley did not provide services for which
Medicaid was billed during the two months of video
surveillance. Id. at 17-18, 26-28. The amount of
wrongful payment totaled $1, 748.54. Id. at 17-18.
4} Wiley was only employed for companies receiving
Medicaid funds because she used forged BCI background checks
to avoid disqualification for impermissible criminal
convictions on her record. Id. at 20-21. Thus, the
investigator stated that the loss to Medicaid was the total
amount billed during Wiley's entire multi-year period of
employment, $44, 316.23. Id. at 20-24. She did
admit, however, that the State had no evidence that Wiley had
not provided the services for which the State was billed with
respect to any recipients other than "Curry."
Id. at 25-27. The investigator witness also admitted
that Wiley had not billed Medicaid, herself, nor did she
receive $44, 316.23, because Wiley submitted timesheets to
her various employers who billed Medicaid. Id. at
28-29. Medicaid funded home-health aids like Wiley, the
witness testified, make approximately $8 per hour (though the
witness did not know how much Wiley was actually paid).
Id. at 29-30.
5} On September 1, 2016, the trial court held a
sentencing hearing. (Sept. 1, 2016 Sentencing Tr., filed Nov.
8, 2016.) At sentencing, the State argued that:
But for the Defendant's actions of actively deceiving
these home health agencies, the Ohio Department of Medicaid
would not have improperly paid out the monies that it did;
and it's for that reason that the State is asking for the
full restitution amount, as we noted earlier, of $44, 316.23
as a condition of community control.
Id. at 4. The defense contended that potential
restitution argued for by the State fell into two categories:
first-actual loss for money paid in exchange for services not
provided (a small subset of the overall restitution sought),
and second-a purported loss for all services reportedly
provided by Wiley based on the notion that she was ineligible
to provide the services because of her criminal record.
Id. at 5-6. The defense objected to the second
category of restitution. Id.
6} The trial court stated its reasoning on
I mean, the fact is that you [Wiley] shouldn't have been
taking care of these people. Regardless of whether you
actually performed the services or not, there's a reason
they have requirements to -- you need approval to be able to
do this and you falsified background information and passed
off old ...