The Ohio Supreme Court affirmed July 22 that a crime victim who wants to appeal a trial court's refusal to award restitution must comply with the same appellate deadlines that govern every other appeal, rejecting a claim that Marsy's Law confers a constitutional right to file a delayed appeal years later.
Writing for the court in State v. Barnes, Justice DeWine held that App.R. 4(A) and App.R. 5(A) bind crime victims, and that neither the court nor the Eighth District Court of Appeals had authority to rewrite those rules through a decision in an individual case. The question was whether a victim may reopen a restitution claim long after the ordinary 30-day appeal window closed. The court answered no, affirming the Eighth District's denial of leave to file a delayed appeal.
The dispute traces to an October 2018 case in which Frederick Barnes pleaded guilty to attempted breaking and entering and petty theft after breaking into the office of the victim, identified as M.S., and stealing a pistol and a nail gun. The state requested restitution at sentencing, but defense counsel argued, "We're not here to try the restitution case," and suggested the matter was best handled "as a civil matter." The trial court sentenced Barnes to time served, waived court costs, and made no provision for restitution.
M.S. filed a direct appeal in December 2018, citing her right under the Marsy's Law amendment to the Ohio Constitution to "full and timely restitution." At that time the legislature had not yet enacted implementing legislation, and it was unclear how a victim should enforce those rights. While her appeal was pending, the Eighth District issued a fractured decision in State v. Hughes suggesting victims lacked standing to appeal directly. M.S. voluntarily dismissed her appeal in April 2019 and instead pursued a writ of mandamus, which the appellate court granted in part.
The case then lingered in the trial court for years, complicated by an effort by Barnes to withdraw his plea. In the interim, the Ohio Supreme Court decided State v. Brasher, in which a plurality concluded that a direct appeal is the proper remedy for a victim challenging a denial of restitution. When the trial court set a restitution hearing, Barnes appealed, arguing M.S. had forfeited her claim by dismissing her earlier appeal. The Eighth District agreed and vacated the hearing order, and the Supreme Court declined to review that decision.
M.S. then filed a motion for leave to file a delayed appeal of the original 2018 sentencing entry. The Eighth District denied it in November 2024, stating, "App.R. 5 explicitly limits the filing of delayed appeals to criminal defendants."
The Supreme Court found that analysis straightforward. App.R. 4(A) requires an appeal within 30 days of a final order, and the only exception, App.R. 5(A), allows a delayed appeal to be taken "by a defendant" in criminal, delinquency, and serious-youthful-offender proceedings. Because M.S. was not a defendant in any of those proceedings, she could not use the rule. The court noted a "strong argument" that res judicata also barred her claim because she had voluntarily dismissed her direct appeal, but it declined to resolve that question.
The court rejected M.S.'s argument that the Constitution required a different result. It held that Marsy's Law grants victims a right to appeal under Section 10a(B) but not a right to a delayed appeal, and that the amendment's guarantee that certain rights be "protected in a manner no less vigorous than the rights afforded to the accused" does not reach the right to appeal, which appears in a separate section. Timeliness requirements, the court observed, are ubiquitous and channel the exercise of constitutional rights across all jurisdictions.
The court likewise rejected M.S.'s due-process and equal-protection claims. She had an opportunity to be heard, the court said, but abandoned it when she dismissed her direct appeal in what amounted to a strategic miscalculation. On equal protection, the court applied rational-basis review, reasoning that criminal defendants may face a loss of liberty that victims do not, giving the state rational grounds to allow defendants, but not victims, prosecutors, or civil litigants, to seek delayed appeals. It declined M.S.'s request to apply strict scrutiny under the Ohio Constitution's equal-protection provision.
Chief Justice Kennedy and Justices Fischer, Deters, Hawkins, and Shanahan joined the opinion in full. Justice Brunner joined except as to the portion rejecting the constitutional challenge. The court acknowledged there "may be good reasons" to let victims seek leave to file a delayed appeal in some situations but said that decision belongs to the rulemaking process, which involves both the court and the General Assembly, not to judicial revision in a single case.
For Ohio crime victims, the ruling means the constitutional right to pursue restitution carries the same procedural deadlines as any other appeal, and a missed or abandoned appeal generally cannot be revived years later. The General Assembly amended R.C. 2930.19 in 2023 to clarify victims' direct-appeal rights, but that came too late for M.S., whose original sentencing entry issued in 2018.