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Denial of restitution leaves open wound for mom, dad

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OLIVIA -- The parents of a young man killed in a motor vehicle accident have found their efforts to seek restitution for losses beyond that provided in a civil suit quashed by something they could never have expected.

A legal ruling involving a woman accused of stealing from her employer in Kandiyohi County stopped a criminal restitution claim by Wendy Russell of Northfield and Tim Baldwin of Montevideo from being considered by the District Court in Renville County.

"Something awful has happened and our legal system got in the way,'' said Wendy Russell of Northfield. "I feel the laws have demeaned the value of my son's life.''

Her son, Josh Baldwin, a 20-year-old college student from Montevideo, died Oct. 24, 2009, as the result of injuries he suffered in a traffic accident four days earlier.

A bright and talented student, Baldwin had delayed his own trip back to school from the Twin Cities, Russell said, to give a disabled friend a ride home first on the night of the accident.

Baldwin's friend David Kriesel, 20, of Glenwood followed the handicapped-equipped vehicle and picked up Baldwin after he completed his favor. Haley Schwenk, 17, of Appleton, was along to keep Kriesel company and to get some help with school work from Baldwin.

They were making their return to Southwest Minnesota State University in Marshall when just before midnight on Oct. 20, 2009, a Chevrolet Silverado driven by Douglas Folkens of Hector crossed the centerline on U.S. Highway 212 west of Sacred Heart and struck the Ford Taurus driven by Kriesel head-on.

Folkens was on his way home after helping his brother harvest soybeans and had apparently fallen asleep at the wheel.

Kriesel and Schwenk suffered severe injuries that required multiple surgeries, and Kriesel was left permanently blind.

Folkens, 56, entered an Alford plea to a misdemeanor careless driving charge Aug. 4 in District Court in Renville County. Under an Alford plea, a defendant does not admit to the crime but acknowledges there is enough evidence to lead a jury to convict. It is recorded as a guilty plea.

Before being sentenced on Nov. 16, Folkens said he has no memory of the crash and he made known his remorse over the tragedy. He was ordered to perform 100 hours of community service.

That's also the day that Baldwin's parents learned their claim for restitution through the criminal court system would not be considered because of a Court of Appeals ruling issued on Aug. 10, 2010.

The parents had approved a civil suit settlement on April 28, 2010, even though both felt the monies provided did not compensate them for their losses. The medical costs suffered by the two survivors had maxed out the insurance coverage, Russell said.

Consequently, the greatest share of the settlement was allocated to the two survivors' needs.

Their attorney told them at the time -- and correctly so -- that they could pursue restitution through the criminal proceedings against Folkens, Russell said.

The Court of Appeals ruling that blindsided Baldwin's parents involves Christy Arends, 42, of Pennock. She had reached a settlement in a wrongful-termination civil case with her former employer Central Minnesota Senior Care. Arends dropped her civil case and Central Minnesota Senior Care agreed not to press any claims against her.

Arends was subsequently charged in criminal court with six counts of theft by swindle for allegedly charging more than $40,000 for personal vehicles, a Caribbean cruise, a new furnace, computer equipment and cash advances against her former employer. She has pleaded not guilty, and the criminal charges remain pending in court.

However, the Court of Appeals ruled that the state cannot seek restitution for the alleged economic losses in the criminal case it has brought against her. Since a civil settlement had already been reached, a claim arising from the same issues cannot be pursued by the state, it ruled.

In a manner of speaking, the court is saying you only get one bite at the apple, according to Renville County Attorney David Torgelson.

He had filed for restitution for Josh Baldwin's parents under the criminal law. Until the Court of Appeals ruling, Torgelson said he and other prosecutors largely considered criminal restitution a separate issue from civil restitution.

According to court records, each of the surviving parents had received $46,235 in the civil settlement.

The criminal restitution claim asked $16,656 for Russell and $10,626 for Baldwin.

Russell is a self-employed piano teacher.

Tim Baldwin works for a highway construction firm.

Both lost many work days, and incurred funeral, legal and travel expenses and experienced emotional losses that continue to this day, Russell said. And many losses -- such as the suffering of her daughter who has lost a brother or relatives who gave up work time and incurred travel and other expenses -- are not even considered.

Russell said they want to be made whole for the economic and emotional harm they have suffered, and they believe seeking criminal restitution is critical to making that possible.

"It's not about the money,'' said Russell to explain. "It's about the accountability.''

Criminal restitution is about acknowledgment of wrongdoing by an offender, and allows for the means to atone for the harm, she said.

To this point, her only consolation has come from a scrap of paper found in her son's wallet and retrieved at the accident scene. It held the lyrics to a song he was composing. It read: "I will not stand by and let my friends die. I will save you even if saving you takes me to heaven.''

Russell said she's convinced that somehow, her dying son's spirit was there at the accident scene to help his two friends survive.

As for her, the grief remains as difficult to heal today as then. Because of the legal roadblock, she feels as if her own recovery has been stopped two steps into a three-step process.

She and her former husband joined on the day after Thanksgiving at Echo Monument Works to check on the inscription for their son's tombstone. "He began as a student and became the teacher.''

She believes the last words on how the legal ruling affected her family are those her son would have used: "Man, this is sooo WRONG!''

Tom Cherveny

Tom Cherveny is a regional and outdoor reporter with the West Central Tribune in Willmar, MN.

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