State ex rel. Howery v. Powers , 2020 Ohio 2767 ( 2020 )

[Cite as State ex rel. Howery v. Powers, 2020-Ohio-2767.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, ex rel., :
DEBORAH HOWERY,
: CASE NO. CA2019-03-045
Relator,
: OPINION
5/4/2020
- vs - :
:
JUDGE NOAH POWERS,
:
Respondent.
ORIGINAL ACTION IN MANDAMUS
Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio, for respondent
Morgan Keilholz, 2300 Montana Avenue, Suite 238, Cincinnati, Ohio 45211, for relator
RINGLAND, J.
{¶ 1} This matter is before the court upon a complaint for a writ of mandamus filed by
relator, Deborah Howery, in which she asserts that she is a victim entitled to certain rights
under Article I, Section 10a of the Ohio Constitution, commonly referred to as Marsy's Law,
and seeks an order to compel respondent, Judge Noah Powers, to reopen sentencing in
State v. Brasher, Butler C.P. No. CR2018-05-0933, to enforce her constitutional right to
restitution.
Butler CA2019-03-045
{¶ 2} The parties entered into a stipulated statement of facts. On December 3, 2017,
Howery's vehicle was stolen and wrecked by Kyle Brasher. On September 17, 2018, Brasher
pled guilty to one count of grand theft of a motor vehicle. State v. Brasher, Butler C.P. No.
CR2018-05-0933.
{¶ 3} The trial court ordered a presentence-investigative report ("PSI") and set the
matter for a sentencing hearing. The PSI stated "[r]estitution is unknown at this time, as the
victim has not had the car repaired yet, but they have been given several estimates."
{¶ 4} On October 16, 2018, the day of sentencing, Howery submitted a victim impact
statement to the court. The victim impact statement alleged she had sustained an economic
loss due to Brasher's criminal acts. The victim impact statements included attachments for
reference during the sentencing hearing, which included two repair estimates for the vehicle.1
{¶ 5} The trial court sentenced Brasher to an 18-month prison term. As pertinent to
this matter, the trial court did not impose a restitution order. As a result, Howery brought this
action in mandamus to compel the trial court to reopen sentencing and order Brasher to
make full and timely restitution in the amount of $3,021.
{¶ 6} This matter is now before the court on reciprocal motions for summary
judgment. Civ.R. 56 sets forth the summary judgment standard and requires that there be no
genuine issues of material fact to be litigated, the moving party is entitled to judgment as a
matter of law, and reasonable minds can come to only one conclusion which is adverse to
the nonmoving party. Slowey v. Midland Acres, Inc., 12th Dist. Fayette No. CA2007-08-030,
2008-Ohio-3077, ¶ 8. The moving party has the burden of demonstrating that there is no
genuine issue of material fact. Harless v. Willis Day Warehousing Co., 54 Ohio St. 2d 64, 66
1. In the parties' stipulated statement of facts, the parties agree that some, but not all of the attachments, were
submitted to the trial court for reference during the sentencing hearing. The attachments include a certificate of
title for the vehicle, the police incident report, information concerning the criminal proceedings, the victim impact
statement, and repair estimates. The victim impact statement at the sentencing hearing did not include a third
additional repair estimate or the Kelly Blue Book information.
-2-
Butler CA2019-03-045
(1978).
{¶ 7} The nonmoving party "may not rest on the mere allegations of his pleading, but
his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts
showing the existence of a genuine triable issue." Mootispaw v. Eckstein, 76 Ohio St. 3d 383,
385 (1996). A dispute of fact can be considered "material" if it affects the outcome of the
litigation. State ex rel. Madison Cty. Engineer v. Madison Cty. Bd. of Commrs., 12th Dist.
Madison No. CA2016-01-003, 2016-Ohio-7191, ¶ 10. A dispute of fact can be considered
"genuine" if it is supported by substantial evidence that exceeds the allegations in the
complaint. Id.
{¶ 8} To be entitled to a writ of mandamus, relator is required to show: (1) a clear
legal right to the requested relief, (2) a clear legal duty on respondent's part to provide it, and
(3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v.
Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-69, ¶ 6. Relator must prove that he is entitled to the
writ by clear and convincing evidence. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.
3d 392, 2015-Ohio-974, ¶ 10.
{¶ 9} The constitutional amendment known as Marsy's Law became effective on
February 5, 2018, and expands the rights afforded to victims of crimes. State v. Lee, 12th
Dist. Warren No. CA2018-11-134, 2019-Ohio-4725, ¶ 12. Marsy's Law provides that victims
have the right "to full and timely restitution from the person who committed the criminal
offense or delinquent act against the victim." Ohio Constitution, Article I, Section 10a(A)(7).
{¶ 10} This case presents an issue of first impression in this state. Relator, as a crime
victim, seeks to exercise her constitutional rights guaranteed by Marsy's Law to full and timely
restitution for the economic loss caused by the offender. Respondent does not dispute that
relator is the victim and supports the expansion of victim's rights embodied by Marsy's Law.
However, respondent disputes the procedures to effectuate Marsy's Law and whether a court
-3-
Butler CA2019-03-045
can be compelled to issue an order of restitution in the amount claimed by relator.
{¶ 11} Following review, we find relator has satisfied the requirements for the issuance
of a writ of mandamus. Therefore, we issue the writ to compel resentencing in State v.
Brasher, Butler C.P. No. CR2018-05-0933. However, we overrule relator's argument that she
is entitled to an award of $3,021. Instead, we issue the writ directing respondent to conduct
a restitution hearing in accordance with R.C. 2929.18(A)(1).
{¶ 12} In this case, it is undisputed that relator is the victim of a crime and that she
suffered economic loss from the offender through the commission of a criminal offense.
Under the new provisions in Marsy's Law, there was a clear legal duty to provide for full and
timely restitution. Ohio Constitution, Article I, Section 10a(A)(7). Thus, there is no genuine
issue of material fact that relator has satisfied her burden of showing the first and second
prongs for mandamus: a clear legal right to restitution, and a clear legal duty on respondent's
part to provide it.
{¶ 13} We also find that relator has satisfied the third prong for the issuance of a writ
of mandamus, i.e., that she lacks an adequate remedy in the ordinary course of the law. As
set forth in Ohio Constitution, Article I, Section 10a(B):
(B) The victim, the attorney for the government upon request of
the victim, or the victim's other lawful representative, in any
proceeding involving the criminal offense or delinquent act
against the victim or in which the victim's rights are implicated,
may assert the rights enumerated in this section and any other
right afforded to the victim by law. If the relief sought is denied,
the victim or the victim's lawful representative may petition the
court of appeals for the applicable district, which shall promptly
consider and decide the petition.
(Emphasis added).
{¶ 14} Thus, by the terms of the constitutional provision, the remedy for the victim in
this circumstance is to petition the court of appeals. State v. Hughes, 8th Dist. Cuyahoga No.
107697, 2019-Ohio-1000, ¶ 14 ("while Marsy's Law expands the rights of victims, the law
-4-
Butler CA2019-03-045
does not make a victim a party to a criminal action"). Appellate courts have original
jurisdiction to hear actions in quo warranto, mandamus, habeas corpus, prohibition,
procedendo, or "[i]n any cause on review as may be necessary to its complete
determination." Ohio Constitution, Article IV, Section 3(B)(1). This is not inconsistent with
other similar provisions throughout the country, such as the federal Crime Victims' Rights Act,
18 U.S.C. 3771, which allows alleged victims to challenge trial court decisions through a writ
of mandamus.
{¶ 15} We are likewise unpersuaded by the argument that relator could obtain
reimbursement for her losses through other means, such as through private insurance, the
Ohio Crime Victim Compensation Fund, or a separate civil action. The right to restitution is
not synonymous with reimbursement, which is contemplated by R.C. 2929.18 where the
statute specifically references recovery in a civil action as offsetting restitution payments.
Furthermore, an order of restitution provides a victim with compensation without the need for
a new civil proceeding and includes other protections, such as the inability to discharge a
restitution order in bankruptcy proceedings. See Kelly v. Robinson, 479 U.S. 36, 38, 107
S. Ct. 353 (1986); Morgan v. Mikhail, 10th Dist. Franklin Nos. 04AP-195 and 04AP-196, 2004-
Ohio-5792, ¶ 8 ("[r]estitution orders imposed by state criminal courts as part of a criminal
sentence are preserved from discharge in bankruptcy"). As a result, we find relator's only
adequate remedy for "full and timely restitution" is through the grant of a writ of mandamus.
{¶ 16} However, this court's ruling does not imply that relator is entitled to a restitution
award of $3,021. It is well established that "mandamus will not lie to control a judge's
discretion to determine the legal and factual issues properly raised in the case before him."
State ex rel. Roush v. Montgomery, 156 Ohio St. 3d 351, 2019-Ohio-932, ¶ 10. "Although a
writ of mandamus may require an inferior tribunal to exercise its judgment or to proceed to
the discharge of its function, * * * it may not control judicial discretion[.]" State ex rel. Ney v.
-5-
Butler CA2019-03-045
Niehaus, 33 Ohio St. 3d 118, 119 (1987). Rather, in issuing the writ, we find that Marsy's Law
does not conflict with R.C. 2929.18(A)(1). See Ohio Constitution, Article I, Section 10a(E)
("[a]ll provisions of this section shall be self-executing and severable, and shall supersede all
conflicting state laws").
{¶ 17} R.C. 2929.18(A)(1) grants a trial court the authority to order restitution by an
offender to a victim, or any survivor of the victim, in an amount commensurate with the
victim's economic loss. Lee, 2019-Ohio-4725 at ¶ 8. As defined by R.C. 2929.01(L), the
term "economic loss" means "any economic detriment suffered by a victim as a direct and
proximate result of the commission of an offense." The need to establish damages must still
bear a reasonable relationship to the actual loss suffered by the victim. State v. Bowman,
181 Ohio App. 3d 407, 2009-Ohio-1281, ¶ 10 (2d Dist.).
{¶ 18} If the court imposes restitution at sentencing, the court must determine the
amount of restitution at that time. State v. Lowe, 1st Dist. Hamilton No. C-130048, 2013-
Ohio-4224, ¶ 4. Pursuant to R.C. 2929.18(A)(1), "[i]f the court decides to impose restitution,
the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the
amount." Therefore, as this court has stated previously, "if the court decides to impose
restitution, it must hold a hearing if the offender disputes the amount." State v. Geldrich, 12th
Dist. Warren No. CA2014-08-112, 2015-Ohio-1706, ¶ 8; State v. Lalain, 136 Ohio St. 3d 248,
2013-Ohio-3093, ¶ 22 (noting the statute "mandates that the court must hold a hearing on
restitution" if the offender disputes the amount of restitution imposed).
{¶ 19} This court has consistently found reversible error where, pursuant to the
requirements found in R.C. 2929.18(A)(1), a trial court was required to hold an evidentiary
hearing to determine the appropriate amount of restitution that should be imposed. Geldrich
at ¶ 10; State v. Hill, 12th Dist. Warren No. 2019-07-072, 2020-Ohio-1433, ¶ 8 (finding the
trial court's refusal to hold an evidentiary hearing after the offender specifically disputed the
-6-
Butler CA2019-03-045
amount of restitution ordered at sentencing constituted reversible error).
{¶ 20} In this case, relator presented evidence that she sustained economic loss due
to Brasher's criminal acts. The issue of restitution was in dispute at the time of the
sentencing hearing, however, no restitution was granted and there is no indication that a
hearing was held as to the amount of restitution. Since we find there are no genuine issues
of material fact that relator has satisfied all three prongs necessary for a writ of mandamus,
we hereby grant summary judgment to relator, deny respondent's motion for summary
judgment, and issue a writ directing respondent to reopen sentencing in State v. Brasher,
Butler C.P. No. CR2018-05-0933, to allow relator to enforce her constitutional right of
restitution. There, relator will be able to assert her right to restitution and the matter may
proceed and be subject to the provisions contained in R.C. 2929.18.
{¶ 21} Writ granted.
M. POWELL, P.J., and S. POWELL, J., concur.
-7-