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State v. Wiley

Court of Appeals of Ohio, Tenth District

May 9, 2017

State of Ohio, Plaintiff-Appellee,
v.
Lenore Wiley, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 15CR-5663

         On brief:

          Michael DeWine, Samual J. Kirk, Attorney General, and Anil Patel, for appellee.

          Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.

         Argued:

          Samuel J. Kirk.

          John W. Keeling.

          DECISION

          BRUNNER, J.

         {¶ 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. 2929.19(B)(5).

         I. 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 restitution:

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 ...

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