State v. Fisk

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Fisk, Slip Opinion No. 2022-Ohio-4435.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4435THE STATE OF OHIO, APPELLANT, v. FISK, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Fisk, Slip Opinion No. 2022-Ohio-4435.]
Criminal law—Marsy’s Law, Ohio Constitution, Article I, Section 10a—
Restitution—Scope of Marsy’s Law is inadequate to answer whether
prosecuting attorney, on behalf of the state, is entitled to appeal under
Marsy’s Law a trial court’s denial of restitution to crime victim—Court of
appeals’ judgment reversed and cause remanded for that court to address
state’s appeal under applicable statutes regarding state’s authority to
appeal issue of restitution.
(No. 2021-1047—Submitted July 12, 2022—Decided December 13, 2022.)
APPEAL from the Court of Appeals for Montgomery County,
No. 28798, 2021-Ohio-1973.
__________________
SUPREME COURT OF OHIO
O’CONNOR, C.J.
{¶ 1} Appellee, Zacary L. Fisk, was sentenced to an indefinite prison term
of two to three years for the felonious assault of Steven Patton. At sentencing, the
trial court denied Patton’s request for restitution to compensate him for the medical
bills he incurred as a result of the assault. Fisk appealed his conviction and
appellant, the state of Ohio, cross-appealed, challenging the trial court’s decision
to deny restitution to Patton. The Second District Court of Appeals affirmed the
trial court’s judgment of conviction, 2021-Ohio-1973, ¶ 34, 47, and held that the
state lacked standing to appeal the trial court’s restitution decision under Article I,
Section 10a of the Ohio Constitution (known as “Marsy’s Law”), 2021-Ohio-1973at ¶ 44. The court of appeals therefore declined to reach the merits of the state’s
cross-appeal. Id. at ¶ 46. For the reasons set forth below, we reverse the court of
appeals’ judgment and remand this matter to that court to consider the merits of the
state’s cross-appeal.
Background
{¶ 2} A jury found Fisk guilty of one count of felonious assault in violation
of R.C. 2903.11(A)(1) and one count of felonious assault in violation of R.C.
2903.11(A)(2). The offenses stemmed from an altercation in which Fisk attacked
and repeatedly stabbed Patton, his mother’s fiancé.1 As a result of the assault,
Patton suffered life-threatening injuries and incurred more than $177,000 in
medical bills. Prior to sentencing, the trial court reviewed Patton’s victim-impact
letter and medical bills. Patton also provided a victim-impact statement at the
sentencing hearing, during which he again mentioned having incurred more than
$177,000 in medical expenses because of Fisk’s assault—medical expenses that he
claimed the Department of Veterans Affairs declined to cover through his veteran
benefits.
1. The jury acquitted Fisk of attempted murder.
2
January Term, 2022
{¶ 3} The trial court merged the felonious-assault counts for sentencing and
sentenced Fisk to an indefinite prison term of two to three years. The trial court
denied Patton’s restitution request, however, stating that the court needed
documentation from the Department of Veterans Affairs regarding the
“noncoverage, [and] the reason that coverage of any kind was declined.” The state
objected, arguing that Patton had provided medical bills that reflected the cost of
his medical treatment and that it was unnecessary for Patton “to have to provide to
the Court a reason why [the Department of Veterans Affairs was] declining
coverage.”
{¶ 4} Fisk appealed his conviction and the state cross-appealed, challenging
the trial court’s decision to deny restitution. The state argued that the trial court
should have ordered restitution to cover Patton’s medical bills that the Department
of Veterans Affairs declined to cover, or at least, should have granted Patton the
opportunity to acquire additional documentation regarding the declined coverage.
The state asserted that the trial court’s denial of restitution to Patton clearly violated
his constitutional right under Marsy’s Law to “full and timely restitution from the
person who committed the criminal offense,” see Article I, Section 10a(A)(7), Ohio
Constitution. In response, Fisk argued that the state lacked standing under Marsy’s
Law to appeal the denial of restitution. The Second District agreed with Fisk,
holding that the state did not have standing to appeal the trial court’s decision
denying restitution. It therefore affirmed the trial court’s judgment without
reaching the merits of the restitution issue. 2021-Ohio-1973 at ¶ 46-47.
{¶ 5} We accepted the state’s discretionary appeal. See 165 Ohio St.3d
1490, 2021-Ohio-4409, 178 N.E.3d 513. In its sole proposition of law, the state
argues that Marsy’s Law “gives standing to the State of Ohio, through the
prosecuting attorney who tried the defendant’s criminal case, to challenge on appeal
the trial court’s decision not to order restitution as part of a defendant’s sentence.”
3
SUPREME COURT OF OHIO
Analysis
{¶ 6} When interpreting the language of a constitutional provision ratified
by direct vote, like Marsy’s Law, we consider how the language would have been
understood by the voters who adopted the amendment. Centerville v. Knab, 162
Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 22, citing Castleberry v.
Evatt, 147 Ohio St. 30, 33, 67 N.E.2d 861 (1946). We generally apply the same
rules of construction that govern the interpretation of statutes, starting with the plain
language of the provision, State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206,
811 N.E.2d 68, ¶ 14, and “considering how the words and phrases would be
understood by the voters in their normal and ordinary usage,” Knab at ¶ 22, citing
District of Columbia v. Heller, 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d
637 (2008).
Marsy’s Law
{¶ 7} In 2017, Ohio voters adopted an initiative known as Marsy’s Law,
which amended Article I, Section 10a of the Ohio Constitution. The language in
the 2017 general-election ballot informed voters that the proposed amendment
would “expand the rights of victims” and “require that the rights of victims be
protected as vigorously as the rights of the accused.” Ohio Secretary of State,
Ballot Board: 2017, https://www.ohiosos.gov/globalassets/ballotboard/2017/2017-
08-17-certifiedballotlanguageissue1.pdf (accessed Nov. 22, 2022). The ballot
language also explained that the purpose of the amendment was to secure for
victims “due process, respect, fairness, and justice” in the criminal-justice system.
Id.{¶ 8} As adopted, Marsy’s Law expressly notes that its purpose is “[t]o
secure for victims justice and due process throughout the criminal and juvenile
justice systems.” Article I, Section 10a(A). One of the rights Marsy’s Law affords
victims is the right “to full and timely restitution from the person who committed
the criminal offense or delinquent act against the victim.” Article I, Section
4
January Term, 2022
10a(A)(7). Marsy’s Law also provides victims with the ability to vindicate their
enumerated rights or any other right afforded to them by law in the courts:
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 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.
Article I, Section 10a(B); see also State ex rel. Suwalski v. Peeler, 167 Ohio St.3d
38, 2021-Ohio-4061, 188 N.E.3d 1048, ¶ 15.
The court of appeals misinterpreted Marsy’s Law
{¶ 9} The court of appeals construed Marsy’s Law to “leave[] the State
without standing to appeal” on behalf of the victim a trial court’s decision to deny
restitution. 2021-Ohio-1973 at ¶ 44. In doing so, it examined the two sentences
that make up Article I, Section 10a(B). It noted that the first sentence of the
constitutional provision states that the “ ‘victim, the attorney for the government
upon request of the victim, or the victim’s other lawful representative’ ” may assert
in the trial court the rights afforded to the victim. (Emphasis sic.) 2021-Ohio-1973at ¶ 40, quoting Article I, Section 10a(B); see also id. at ¶ 43. The court of appeals,
however, explained that in the second sentence of Section 10a(B), the drafters
omitted “the attorney for the government” as a party with the ability to advocate for
the victim on appeal, id. at ¶ 40, 43. The court of appeals reasoned that “[h]ad the
drafters of Marsy’s Law intended for the State to be able to advocate on appeal for
a victim after relief was denied below, they would have included the attorney for
5
SUPREME COURT OF OHIO
the government language” in the second sentence, but “[t]hey specifically did not,
instead only mentioning the victim or the victim’s lawful representative.”
(Emphasis sic.) Id. at ¶ 43. The court of appeals concluded that this omission left
the state without standing to appeal the restitution issue because it “suffered no
injury”; Patton, not the state, was the aggrieved party, id. at ¶ 44-45. The Second
District accordingly declined to reach the merits of the state’s challenge to the trial
court’s decision to deny restitution to Patton. Id. at ¶ 46.
{¶ 10} We first address the problem that arises from the way the parties and
the court of appeals have framed the issue. The question was framed as whether
the language in Marsy’s Law provides standing for the state to petition the court of
appeals regarding a trial court’s decision to deny restitution. “ ‘Standing’ is defined
at its most basic as ‘[a] party’s right to make a legal claim or seek judicial
enforcement of a duty or right.’ ” (Brackets sic.) Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting
Black’s Law Dictionary 1442 (8th Ed.2004). “The issue of standing determines
‘whether a litigant is entitled to have a court determine the merits of the issues
presented.’ ” State ex rel. Teamsters Local Union No. 436 v. Cuyahoga Cty. Bd. of
Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 10, quoting Ohio
Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994).
{¶ 11} Marsy’s Law is concerned with providing victims with enumerated
rights; it is not concerned with providing the state with any legal rights or claims.
Indeed, the purpose of Marsy’s Law was to “expand the rights of victims”
(emphasis added), Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167,
at ¶ 15, and to ensure that victims receive “ ‘due process, respect, fairness, and
justice,’ ” id., quoting Marsy’s Law ballot language. Article I, Section 10a(B)
enables victims to assert their rights in the courts on their own or through “the
attorney for the government upon request of the victim” or “the victim’s other
lawful representative.” That constitutional provision also provides victims with the
6
January Term, 2022
ability to petition the court of appeals, either on their own or through their “lawful
representative” if the relief sought is denied. Id.{¶ 12} Thus, Article I, Section 10a(B) is a mechanism for victims, not the
state. Whether the state, through a prosecuting attorney, may petition the court of
appeals on behalf of the victim under Article I, Section 10a(B) is a question of the
state’s authority to represent the victim and assert the victim’s rights, not one of the
state’s standing to make a legal claim or seek judicial enforcement of its own rights.
Indeed, Fisk acknowledges as much, asserting in his brief to this court that “Marsy’s
Law gives rights to victims, not prosecutors,” and “gives prosecutors the authority
to represent victims.” (Emphasis added.)
{¶ 13} Consequently, the relevant question is whether Marsy’s Law or
some other law provides the prosecuting attorney for the state with the authority to
petition the court of appeals if the relief sought by the victim is denied. Here, the
court of appeals concluded that because the phrase “the attorney for the
government” is omitted from the second sentence of Article I, Section 10a(B), the
drafters of Marsy’s Law did not intend that the attorney for the government be able
to petition the court of appeals on behalf of the victim after relief is denied. But the
Second District never addressed in its analysis the effect, if any, of the word “other”
in the phrase “the victim’s other lawful representative,” in the first sentence of the
constitutional provision. Nor did the court of appeals discuss the fact that the state
did not file its cross-appeal as Patton’s representative. As a result, the court of
appeals essentially concluded that Marsy’s Law prohibits the state from advocating
for the victim on appeal if the relief sought is denied, regardless of whether the state
petitioned the court of appeals upon the request of the victim or under a statute that
provides the state with the ability to appeal. We find this conclusion to be
needlessly broad and inconsistent with the purposes of Marsy’s Law that were
described above.
7
SUPREME COURT OF OHIO
{¶ 14} The state argues that we should read Marsy’s Law, specifically the
second sentence of Article I, Section 10a(B), as allowing the state to petition the
court of appeals as “the victim’s lawful representative” when the victim’s claim for
restitution is denied by the trial court. But the state does not allege that Patton
requested that it petition the court of appeals on his behalf, nor does the record
reflect as much. Indeed, the prosecuting attorney filed its cross-appeal on behalf of
“the State of Ohio,” not on behalf of Patton. As a result, the record before us
establishes that the prosecuting attorney cross-appealed the trial court’s decision to
deny restitution on behalf of the state as the state’s legal representative. See State
v. Montgomery, __ Ohio St.3d __, 2022-Ohio-2211, __ N.E.3d __, ¶ 17 (“The
prosecuting attorney is the state’s legal representative in all criminal matters”),
citing State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 21,
and R.C. 309.08(A).
{¶ 15} In light of the above considerations, the scope of Marsy’s Law is
inadequate to answer whether the prosecuting attorney, on behalf of the state of
Ohio, is entitled to appeal the denial of restitution to the victim. Marsy’s Law gives
victims the ability to assert their rights on their own or through “the attorney for the
government upon request of the victim” or “the victim’s other lawful
representative,” and to “petition the court of appeals,” either on their own or
through their “lawful representative” if the requested relief is denied. Article I,
Section 10a(B).
{¶ 16} Marsy’s Law does not describe, and, to date, the General Assembly
has not yet provided by statute “how such a petition might entitle a victim to relief.”
Suwalski, 167 Ohio St.3d 38, 2021-Ohio-4061, 188 N.E.3d 1048, at ¶ 38. Yet,
other statutes do address the state’s authority to appeal and the issue of restitution,
and it is presumed that the drafters of Marsy’s Law and the voters who approved it
knew of these statutes, see State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723,
871 N.E.2d 547, ¶ 6; State ex rel. Engle v. Indus. Comm., 142 Ohio St. 425, 432,
8
January Term, 2022
52 N.E.2d 743 (1944) (explaining that the “general rule as to the interpretation of
constitutional amendments” is that “[t]he body enacting the amendment will be
presumed to have had in mind existing constitutional or statutory provisions and
their judicial construction, touching the subject dealt with”). The parties debate the
application of additional statutes in resolving this case, such as R.C. 2953.08(B)(2),
which permits the prosecuting attorney to appeal a sentence imposed upon a
defendant for a felony on the basis that the sentence is contrary to law, and R.C.
2929.18, which governs restitution in felony cases. But the sole issue raised to this
court concerned whether Marsy’s Law “gives standing to the State of Ohio, through
the prosecuting attorney who tried the defendant’s criminal case, to challenge on
appeal the trial court’s decision not to order restitution as part of a defendant’s
sentence.”
{¶ 17} Whether the state is indeed entitled to relief under applicable state
law is more appropriately considered on remand. At that time, the court of appeals
may analyze the merits of the state’s cross-appeal under applicable statutes
regarding the state’s authority to appeal the issue of restitution. Likewise, the court
of appeals may consider any alleged forfeiture issues at that time.
Conclusion
{¶ 18} For the foregoing reasons, we reverse the judgment of the Second
District Court of Appeals and remand the case to that court to address the merits of
the state’s cross-appeal.
Judgment reversed
and cause remanded.
FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
DEWINE, J., concurs in judgment only, with an opinion.
_________________
9
SUPREME COURT OF OHIO
DEWINE, J., concurring in judgment only.
{¶ 19} I concur in the judgment of the majority reversing the judgment of
the Second District Court of Appeals. The prosecuting attorney filed an appeal on
behalf of the state challenging the trial court’s denial of restitution. It is well within
the state’s authority to appeal a decision regarding restitution. See R.C.
2929.01(DD) and (EE) (restitution is part of the criminal sentence); R.C.
2953.08(B)(2) (the state may appeal a sentence that is contrary to law). The state
has an interest in ensuring the criminal law is enforced, and here it suffered an
injury-in-fact from the trial court’s failure to order restitution. It therefore has
standing to appeal the trial court’s decision. See Spokeo, Inc. v. Robins, 578 U.S.
330, 339, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016).
{¶ 20} The prosecutor’s arguments on appeal might have been more
complete. He discussed the victim’s constitutional rights but did not mention the
interests of the state in enforcing the criminal law. It is certainly not unusual,
though, for prosecutors to advocate in court for the interests of crime victims.
{¶ 21} Regardless, these issues do not create a standing problem. The state
has suffered an injury that is remediable through an appeal. I therefore agree with
the majority that the court of appeals erred by dismissing the state’s appeal, and I
join in the court’s judgment remanding the case to that court for it to consider the
merits of the state’s claims.
_________________
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Andrew T. French, Assistant Prosecuting Attorney, for appellant.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, for appellee.
Elizabeth A. Well, urging reversal for amici curiae, National Crime Victim
Law Institute and Ohio Crime Victim Justice Center.
_________________
10