Ohio Supreme Court: Victim can’t file delayed appeal, despite initial legal confusion

The amendment was approved by 83% of voters in 2017, and implemented in Ohio House Bill 343 in 2023.

The amendment changed the Ohio Revised Code to do things such as redact victim names and identifying information from public records, allow victims to be heard and present in public proceedings, and authorize victims and victim’s advocates to argue for restitution based on the convictions.

Even more recently, the state supreme court ruled that police officers can be considered victims and be protected under Marsy’s Law privacy clauses.

The constitutional amendment notes that victim’s rights “shall be upheld in a manner no less vigorous than the rights of the accused.”

The supreme court case stems from an Eighth District Court of Appeals decision related to a Cuyahoga County woman identified as “M.S.” in the court records.

The woman asked to file a delayed appeal to seek restitution after a 2017 incident in which a man broke into her office, stealing a pistol and a nail gun.

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A delayed appeal occurs as a second attempt after an initial appeal has already occurred.

Delayed appeals are allowed for those convicted of crimes, but not victims, according to the supreme court’s decision.

The man involved in the crime pleaded guilty to breaking and entering, as well as petty theft, but while the Cuyahoga County Prosecutor’s Office requested restitution for M.S. when the man was sentenced, his attorney argued the issue should be dealt with separately from his sentencing hearing. The trial judge didn’t include restitution in sentencing documents, according to court records.

Marsy’s Law went into effect in February 2018, and the woman appealed for restitution in December 2018, citing the constitutional amendment.

But, at the time of her appeal, “the legislature had not yet enacted legislation implementing the constitutional amendment and there was some uncertainty as to the proper manner for a victim to enforce the rights guaranteed under Marsy’s Law,” Justice Patrick DeWine wrote in the July 22 supreme court decision.

With confusion over what she could and couldn’t legally do, M.S. requested a voluntary dismissal of her appeal, instead asking the Eighth District Court of Appeals to order that the Cuyahoga County court decide whether she was owed restitution, and if so, how much.

As the case went on, the Ohio Supreme Court decided in a separate case that a direct appeal — an appeal made within 30 days of a conviction or case decision — “is the appropriate remedy for a victim to challenge a trial court’s failure to award restitution under Marsy’s Law.”

Because of that decision, the man convicted of stealing the woman’s pistol and nail gun argued she had “forfeited her right to challenge” when she voluntarily dismissed her first appeal. The appellate court agreed.

In appealing to the state supreme court, M.S. argued that victims should have the constitutional right to delayed appeals.

To enact a change in the way the law works, the legislature and the supreme court would have to look into changing the rules of procedure, the high court stated in its July decision.

“We have no authority to bypass this constitutional procedure and simply amend those rules by judicial decision in an individual case,” DeWine wrote in the majority opinion.

“While there may be good reasons to allow a victim to request leave to file a delayed appeal in at least some situations, that matter must be left to the rulemaking process.”

While the supreme court said it can “prescribe rules governing practice and procedure in all courts of the state,” the constitution requires the rules to be filed with the General Assembly, which has the ability to adopt a “resolution of disapproval” to stop them from going into effect.

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