Marsy’s Law gives crime victims the right to appeal decisions denying restitution , but does not give victims the right to file delayed appeals, the Supreme Court of Ohio ruled today.

The Supreme Court affirmed an Eighth District Court of Appeals decision denying the delayed appeal of a woman identified in court records as “M.S.” She was seeking restitution from a man who stole a pistol and nail gun when he broke into her office in 2017.

Writing for the Court, Justice R. Patrick DeWine explained that while M.S. initially timely filed a direct appeal, the voluntary dismissal of her direct appeal seven years ago ultimately ended the matter because court rules give criminal defendants, but not crime victims, the right to pursue a case by filing a delayed appeal. He wrote that the Ohio Constitution includes a rule-change procedure involving the Supreme Court and the General Assembly.

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

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion. Justice Jennifer Brunner also joined the opinion, except for one section in which the Court found M.S. did not have any constitutional right to file a delayed appeal.

Victim Seeks Repayment for Stolen Items
In 2018, Frederick Barnes pleaded guilty to breaking and entering and petty theft based on accessing M.S.’s office and taking her gun and nail gun. The Cuyahoga County Prosecutor’s Office requested restitution at the sentencing hearing. M.S. addressed the court at the hearing, and the prosecutor presented evidence to support the restitution request. Barnes’ attorney argued that the restitution issue would be best addressed separately from the criminal sentencing and should be handled “as a civil matter.” The trial court sentenced Barnes to time served in jail pending his trial.

The trial judge did not mention restitution when handing down the sentence and did not provide restitution in the sentencing entry.

M.S. filed a direct appeal of Barnes’ sentence with the Eighth District, arguing she was entitled to restitution under the newly enacted Marsy’s Law. She specifically noted the amendment provides a right “to fully and timely restitution from the person who commits the criminal offense … against the victim.”

Law Changes Complicate Appeal
Marsy’s Law became effective in February 2018. M.S. filed her appeal within a month of Barnes’ conviction in December 2018. At the time, the General Assembly had not yet enacted legislation implementing the amendment, and there was uncertainty among Ohio courts about the proper manner for victims to enforce their rights under Marsy’s Law.

As M.S.’s appeal was pending, a three-judge panel of the Eighth District decided State v. Hughes. The case involved a victim appealing an order in a criminal case. The decision was fractured, with the three judges not fully agreeing on how to resolve the issue. The first opinion issued by the three judges held that victims do not have standing to directly appeal a trial court’s order and should instead seek an extraordinary writ.

In April 2019, based on Hughes, M.S. voluntarily dismissed her appeal of the Barnes decision. She then sought a writ of mandamus from the Eighth District requesting the trial judge to revisit the case. The Eighth District ordered the trial judge to determine whether M.S. was entitled to restitution from Barnes, and if so, the amount.

Several factors, including Barnes’ effort to withdraw his guilty plea, caused the matter to linger in the trial court for several years. As the matter was pending, the Supreme Court decided State v. Brasher in December 2022. In Brasher, four justices agreed that victims could assert their rights under Marsy’s Law through a direct appeal.

A restitution hearing was set for M.S. in May 2023. However, relying on Brasher, Barnes asked the Eighth District to halt the hearing, arguing M.S. had forfeited her right to seek restitution by dismissing her direct appeal. The Eighth District agreed.

M.S. appealed the Eighth District’s decision to cancel the hearing to the Supreme Court, which declined to consider her case. M.S. then asked the Eighth District for leave, or permission, to file a delayed appeal of the trial court’s original sentencing of Barnes that failed to include restitution.

The Eighth District denied the motion with a short statement indicating that Rule 5 of the Ohio Rules of Appellate Procedure limits the filing of delayed appeals to criminal defendants. M.S. appealed that decision to the Supreme Court.

Supreme Court Analyzed Delayed Appeal Rights
M.S. claimed that crime victims have a constitutional right to file a delayed appeal.

Justice DeWine explained the appellate rules require an appeal to be filed within 30 days of a trial court’s final order. The only provision for filing an appeal outside of the 30-day window is Rule 5, the Court stated. The rule states that any appeal filed after 30 days may be taken by a defendant with leave of the court in cases involving criminal, juvenile delinquency, or serious youthful offender proceedings.

“Here, the Eighth District correctly determined that because M.S. was not a ‘defendant’ in any of the proceedings, she could not pursue a delayed appeal,” the Court stated.

The Court noted the Ohio Constitution specifies how rules governing the practices and procedures of Ohio courts may be changed, and the Court has no authority to ignore the constitutional requirements and change the rules through a decision in a specific case.

The Court also rejected M.S.’s claim that Marsy’s Law provided her with the right to file a delayed appeal. The opinion noted that Section 10a(B) of the constitution, a provision of Marsy’s Law, allows victims to assert their rights in any proceeding involving a criminal offense against the victim. The Court has interpreted Section 10a(B) as granting a victim the right to file a direct appeal following a trial court’s denial of restitution.

“But a right to an appeal is not a right to a delayed appeal, and nowhere in Marsy’s Law is a right to a delayed appeal explicitly conferred,” the opinion stated.

The Court also denied M.S.’s claims that due process and equal protection provisions of the state and federal constitutions gave her the right to file a delayed appeal. The Court noted M.S. made the strategic decision to dismiss her direct appeal based on the opinion of one judge on a three-judge panel.

2025-0030. State v. Barnes, Slip Opinion No. 2026-Ohio-2750.

View oral argument video of this case.

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