State v. Brasher

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brasher, Slip Opinion No. 2022-Ohio-4703.]
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-4703THE STATE OF OHIO ET AL., APPELLANTS, v. BRASHER, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Brasher, Slip Opinion No. 2022-Ohio-4703.]
Criminal law—Marsy’s Law—Restitution—Writ of mandamus is not appropriate
remedy for crime victim to challenge trial court’s denial of restitution—
Victims should have used direct appeal to challenge trial court’s sentence
because they developed standing to appeal when trial court denied their
request to impose restitution—Court of appeals’ judgment affirmed.
(No. 2021-1060—Submitted June 14, 2022—Decided December 28, 2022.)
APPEAL from the Court of Appeals for Butler County,
No. CA2020-08-094, 2021-Ohio-1688.
__________________
SUPREME COURT OF OHIO
BRUNNER, J., announcing the judgment of the court.
I. INTRODUCTION
{¶ 1} Appellee, Kyle Brasher, stole the victims’ car and totaled it.1 The
victims held a right to restitution under Marsy’s Law. Ohio Constitution, Article I,
Section 10a(A)(7). Yet the victims and the state did not argue for restitution before
the trial court, and the victims did not appeal the trial court’s denial of restitution.
The question raised before this court is whether the victims should have appealed
the portion of Brasher’s sentence denying restitution or whether they had the right
to collaterally attack the trial court’s judgment sentencing Brasher by seeking an
extraordinary writ for a restitution order—in this case, after the sentencing court’s
judgment was final and Brasher’s sentence had been completed.
{¶ 2} The victims should have appealed the trial court’s failure to award
restitution, because they developed standing to appeal when the trial court denied
their request to impose restitution. While it is clear that these victims should be
compensated for the loss of their stolen vehicle, they did not act to protect their
right to restitution when they did not appeal the portion of Brasher’s sentence
denying restitution. This court affirms the judgment of the Twelfth District Court
of Appeals reversing the trial court’s later granting of restitution after the trial court
had lost jurisdiction in Brasher’s case.
II. FACTS AND PROCEDURAL HISTORY
{¶ 3} On September 17, 2018, Brasher pled guilty to grand theft of a motor
vehicle. On October 16, 2018, the trial court held a sentencing hearing. Brasher,
his mother, his attorney, and the prosecutor were present and indicated that they
were ready to proceed. The victims were apparently not present, and the state
declined an opportunity to be heard. While sentencing Brasher, the court remarked
1. The victims in this case were husband and wife, Deborah Howery and Lawrence Hammon. For
ease of reference, we generally will refer to Howery and Hammon collectively as “the victims,”
except where it is necessary to single out their individual actions.
2
January Term, 2022
about economic harm to the victims and their desire for restitution, but it then noted
that restitution had not been proved or shown to any specific degree:
[Y]ou took somebody’s car. It’s been pretty devastating for him.
The guy lost a couple days’ work. He hasn’t been able to get a
replacement car. It puts him and his wife in a very severe
disadvantage. They don’t have the money to repair it. They don’t
have the money to get another one.
When you were confronted about this, you told the police
some story. You took this, and you had to plan it somewhat because
you didn’t just go by yourself. It wasn’t like you jumped in the car.
You put somebody else in there with you, and you went down to
Cincinnati to buy drugs, and then you left the guy’s car down there
where it got damaged. And here this poor guy is left to pick up the
pieces. You don’t come into court with any restitution or anything,
nothing to fix it. So this guy is left on his own. I don’t even know
what to tell him because he can’t come up with a figure to even tell
us what it’s worth.
But I’ve looked at your pre-sentence investigation. You’ve
got a substantial criminal history, which includes felony
convictions, failed supervision, prison. Your [Ohio Risk
Assessment System] score is a 33, which indicates you’re a very
high risk to reoffend. That means you’re not a good risk to put out
on the street. And, you know, in spite of this, this guy—this guy
says he forgives you, but he wants restitution and no contact. But
you’ve got no restitution to give him. He’s got no way to be made
whole.
3
SUPREME COURT OF OHIO
The trial court then sentenced Brasher to 18 months in prison. Although the trial
court, even after pronouncing sentence, gave the state and defense counsel the
opportunity to raise any additional matters, no one did, and neither party objected
to any portion of the sentencing.
{¶ 4} The court entered Brasher’s sentencing entry on October 19, 2018.
The entry made no mention of restitution. The victims did not seek to intervene,
and neither the state nor Brasher appealed.
{¶ 5} Five months later, on March 11, 2019, the victims filed a complaint
for a writ of mandamus in the Twelfth District Court of Appeals seeking an order
to compel the trial court to hold a restitution hearing.2 On October 31, 2019, while
litigation of the mandamus case was pending, the state filed a motion with the trial
court that sentenced Brasher, requesting that it hold a restitution hearing. Less than
two weeks later, the trial court ordered a hearing. Brasher then filed a motion
asking the trial court to reconsider its order and deny the state’s motion for a
restitution hearing and to vacate the scheduled hearing. Brasher asserted that in
light of the ongoing mandamus litigation, the case was “under the jurisdiction of
[the Twelfth District] and the issue [was] not ripe” for the trial court. The victims
filed a motion in response to Brasher’s request to vacate the hearing, asserting that
holding the restitution hearing was not inconsistent with the existence of the
mandamus action and therefore the hearing should proceed before Brasher’s trial-
court judge.
{¶ 6} On May 4, 2020, the Twelfth District granted summary judgment in
the mandamus action in favor of the victims and ordered the trial court to hold a
2. The mandamus case, State ex rel. Howery v. Powers, case No. CA2019-03-0045, is not part of
the record as contemplated by App.R. 9 and is not a fact that alters or influences the substance of
our decision. Nevertheless, for the sake of clarity as to the posture of the case before us today and
because all briefs by the parties refer to this separate litigation, we take judicial notice of the
mandamus litigation. See, e.g., State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-
4798, 874 N.E.2d 516, ¶ 7-10.
4
January Term, 2022
restitution hearing (which the trial court had already determined to do). State ex
rel. Howery v. Powers, 2020-Ohio-2767, 154 N.E.3d 146 (12th Dist.). The Twelfth
District reasoned that Marsy’s Law permits a victim to petition the court of appeals
for enforcement of the rights set forth in Marsy’s Law but that it does not make the
victim a party to the underlying criminal case. Id. at ¶ 14, citing State v. Hughes,
2019-Ohio-1000, 134 N.E.3d 710, ¶ 14. Thus, the Twelfth District concluded that
a writ of mandamus was an appropriate avenue to grant relief in the case. Id. at ¶
13-14. Because the victims had a right to restitution and no restitution hearing had
been held, the court of appeals ordered the trial court to conduct a restitution
hearing. Id. at ¶ 17-21. No appeal was taken from the mandamus action, and
Brasher was not a party to the mandamus action.
{¶ 7} On July 27, 2020, both because it had already determined to hold a
restitution hearing and because it had been ordered to do so in the mandamus action,
the trial court conducted a hearing on restitution. At the hearing, the victims’
attorney called both victims to the stand.
{¶ 8} One victim, Deborah Howery, testified that she had inherited the
stolen car from her sister, that it was in excellent condition, and that it was of great
sentimental value to her. She testified that before the sentencing hearing, she
obtained estimates to repair the car, a 2002 Mazda, and that the estimates varied
from around $2,700 to $4,000. In addition to apparent crash damage, the car
suffered significant water damage when it was exposed to the elements for over a
month before it was discovered. Howery testified that she did not have the car
repaired, because she could not afford to pay for the repairs out of pocket at the
time, but she did, in the course of obtaining estimates, pay for a new key and for a
tow—at a total cost of $176.55. A police detective performed valuation research
for Howery using Kelley Blue Book estimates, and she found that the car was, to
Howery’s recollection, worth $1,360 on the low end and $3,021 on the high end.
Thus, Howery explained that she was asking for restitution of $3,197.55: $3,021
5
SUPREME COURT OF OHIO
for the car plus $176.55 for the key and towing. However, she acknowledged that
ultimately, she sold the damaged car to a mechanic for $200. Thereafter, Howery’s
husband, Lawrence Hammon, bought another used car, but that vehicle was not for
Howery’s use nor titled in her name. Howery further testified that she had provided
this information with her victim-impact statement and had requested restitution the
day of the initial sentencing hearing.3
{¶ 9} Hammon testified that he too was seeking $3,197.55 in restitution. He
also testified that he spent $2,000 on a replacement car. He confirmed that the
Mazda had been in excellent condition before being stolen but that it was essentially
ruined after the theft because of an apparent collision and its windows being down
for over a month during the winter.
{¶ 10} In closing argument, Brasher’s counsel expressed the view that there
were multiple legal issues complicating the situation with respect to who appeared
and who did not appear at the original sentencing and who did not request a
restitution hearing at that time. However, counsel expressed the belief that, having
been ordered by the Twelfth District to conduct a restitution hearing, the parties
were now “stuck” with the requirement of doing so. Brasher’s counsel thereafter
merely argued issues regarding the specific amount of restitution.
{¶ 11} On August 18, 2020, the trial court entered a restitution order for
$1,976.55. That figure was based on the $2,000 cost of the replacement vehicle,
plus $176.55 for towing and the replacement key, less the $200 ultimately obtained
when the Mazda was sold. The court declined to grant the requested amount of
$3,021 for the Mazda because it had doubts as to whether that figure reflected the
fair market value of the car.
3. This portion of Howery’s testimony is somewhat difficult to reconcile with the events reflected
in the transcript of Brasher’s October 16, 2018 sentencing hearing, which appears to show that
neither she nor her husband were present at sentencing and definitively shows that no one asked to
be heard about restitution, including the prosecutor, who specifically declined to be heard on any
subject.
6
January Term, 2022
{¶ 12} Brasher appealed the trial court’s restitution order to the Twelfth
District. Howery then sought and was granted leave to intervene, and she filed a
brief. The court of appeals concluded that when Brasher was released from prison
on February 17, 2020, having served his entire term of imprisonment, 4 the trial
court lost jurisdiction to modify his sentence and could not, thereafter, impose
restitution. 2021-Ohio-1688, 170 N.E.3d 920, ¶ 19-21. The Twelfth District
therefore found that the trial court’s August 18, 2020 supplemental sentencing entry
ordering restitution was void. Id. at ¶ 22.
{¶ 13} The state and one of the victims, Howery, now appeal to this court,
and they each present one proposition of law. The state’s proposition of law
provides:
Pursuant to Marsy’s Law a trial court retains jurisdiction to
correct previous proceedings as to restitution following a
defendant’s conviction and performance of his prison sentence; a
trial court’s post-completion-of-prison-sentence supplemental
sentencing entry ordering restitution is not void.
Howery’s proposition of law states:
4. Brasher was sentenced following the hearing on October 16, 2018. The judgment entry, filed
October 19, 2018, indicates that he was sentenced to 18 months in prison, with 59 days of credit for
time served, and optional postrelease control of up to three years. This would mathematically result
in a release date of no later than February 17, 2020. The court of appeals noted that “Brasher was
released into a local treatment program prior to February 17, 2020,” but it nonetheless used February
17, 2020, as his release date “for purposes of [the] appeal.” 2021-Ohio-1688, 170 N.E.3d 920, at ¶
19, fn. 1. There are no docketed records on the circumstances of Brasher’s release or whether he
was, in fact, placed on postrelease control. However, in their respective briefs before this court, all
three parties seem to agree that Brasher was transferred from prison to a treatment facility and was
ultimately released from that facility prior to February 17, 2020. None of the briefs suggests that
he was placed on postrelease control, and we therefore do not assume that he was placed on
postrelease control.
7
SUPREME COURT OF OHIO
Victims are constitutionally entitled to full and timely
restitution, and must be provided an effective appellate remedy for
violations of their right to restitution.
This court accepted the appeal on both propositions of law, see 165 Ohio St.3d
1442, 2021-Ohio-3938, 175 N.E.3d 1269, and now affirm the judgment of the
Twelfth District.
III. DISCUSSION
A. Marsy’s Law and Restitution
{¶ 14} Article I, Section 10a of the Ohio Constitution, as amended by
Marsy’s Law, provides:
(A) To secure for victims justice and due process throughout
the criminal and juvenile justice systems, a victim shall have the
following rights, which shall be protected in a manner no less
vigorous than the rights afforded to the accused:
***
(2) upon request, to reasonable and timely notice of all
public proceedings involving the criminal offense or delinquent act
against the victim, and to be present at all such proceedings;
(3) to be heard in any public proceeding involving release,
plea, sentencing, disposition, or parole, or in any public proceeding
in which a right of the victim is implicated;
***
(7) to full and timely restitution from the person who
committed the criminal offense or delinquent act against the victim;
***
8
January Term, 2022
(9) upon request, to confer with the attorney for the
government; and
(10) to be informed, in writing, of all rights enumerated in
this section.
(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.
***
(E) All provisions of this section shall be self-executing and
severable, and shall supersede all conflicting state laws.
{¶ 15} Restitution is defined “based on the victim’s economic loss” and
“shall not exceed the amount of the economic loss suffered by the victim as a direct
and proximate result of the commission of the offense.” R.C. 2929.18(A)(1); R.C.
2929.28(A)(1). “Economic loss” is defined generally in R.C. 2929.01(L) as “any
economic detriment suffered by a victim as a direct and proximate result of the
commission of an offense * * *.” And this court has recognized that “[a]n order of
restitution imposed by the sentencing court on an offender for a felony is part of
the sentence.” State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d
444, syllabus. If no one appeals a criminal judgment, it becomes final and res
judicata attaches. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162
N.E.3d 776, ¶ 16-40; State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
9
SUPREME COURT OF OHIO
N.E.3d 248, ¶ 20-41. Once an offender has completed his or her sentence, the trial
court loses jurisdiction to modify it. State v. Holdcroft, 137 Ohio St.3d 526, 2013-
Ohio-5014, 1 N.E.3d 382, ¶ 14-18, overruled on other grounds by Harper at ¶ 5,
40.
B. Marsy’s Law and finality in this case
{¶ 16} In this case, the victims submitted information about restitution to
the prosecution with their victim-impact statement, and the trial court was evidently
aware of that fact, since it remarked during sentencing that the victims wanted
“restitution and no contact.” Yet the victims did not appear for the October 2018
sentencing or ask to be heard, despite having the right to do so. See Ohio
Constitution, Article I, Section 10a(A)(2) and (3). Nor did the state object or ask
to be heard on the matter of restitution, despite the provisions of Marsy’s Law
permitting a victim to authorize the prosecution to assert the victim’s rights. See
id. at Section 10a(B). And the trial court, despite being aware of the request for
restitution as well as the victims’ right to receive restitution under the Article I,
Section 10a(A)(7) of the Ohio Constitution, did not order it. The key issue in this
case is what should have happened next.
{¶ 17} The Ohio Constitution, as amended by Marsy’s Law, provides: “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). Brasher takes the view
that the victims should have appealed, arguing that this court should “acknowledge
that ‘petition’ in paragraph B of Marsy’s Law includes ‘direct appeal.’ ” Howery
and the state take the position that victims are entitled to meaningful review and
that, under the circumstances of this case, the victims were permitted to seek a writ
of mandamus.
{¶ 18} In State ex rel. Thomas v. McGinty, 164 Ohio St.3d 167, 2020-Ohio-
5452, 172 N.E.3d 824, ¶ 1-2 (lead opinion), this court determined that a prohibition
10
January Term, 2022
action was not the proper mechanism for alleged victims to challenge discovery
orders issued by a trial-court judge permitting a criminal defendant and her defense
team to conduct a court-supervised inspection of the alleged victim’s residence
(which was the alleged crime scene). Because Thomas was a four-to-three decision,
with one justice concurring in judgment only, the reasoning employed by the
opinion is not binding. Nevertheless, the lead opinion offered a sound analysis,
reasoning that “the undefined term, ‘petition,’ in Section 10a(B) is broad enough to
encompass an original action or appellate review.” (Emphasis sic.) Id. at ¶ 41. It
also determined that the discovery order was a final, appealable order by which the
victims were arguably damaged, and thus, they had a right to appeal. Id. at ¶ 43-
49. Because of that, the victims in Thomas had an adequate remedy at law and no
right to pursue relief in a prohibition action. Id. at ¶ 49. Regardless, the lead
opinion did not “determine what ‘petition’ means in the context of all the Marsy’s
Law rights under Section 10a(A) that a crime victim may seek to protect under
Section 10a(B).” Id. at ¶ 42.
{¶ 19} Then, in State ex rel. Suwalski v. Peeler, 167 Ohio St.3d 38, 2021-
Ohio-4061, 188 N.E.3d 1048, this court determined that it was proper for the victim
of a crime to contest the restoration of the perpetrator’s firearm rights by filing a
prohibition action, reasoning that the victim lacked an adequate remedy in the
ordinary course of law because she was not a party to the firearms-restoration
proceeding. Id. at ¶ 17-18, 36. We held that the victim could not have filed a direct
appeal, because “she was not a party to the application proceeding in the common
pleas court” and “the fact that a victim has the right to petition the court of appeals
under Article I, Section 10a(B) of the Ohio Constitution does not make the victim
a party or provide her standing on which to assert an appeal.” Id. at
¶ 36. We noted that unlike the victims in Thomas (who were ordered by the trial
court to open their house for inspection by the defendant), “Suwalski was not the
subject of a discovery order that required some action or acquiescence on her part.”
11
SUPREME COURT OF OHIO
Id. at ¶ 36-37. Thus, we concluded that the facts in Suwalski “present[ed] the type
of extraordinary circumstances in which there [was] no clear path in the ordinary
course of the law by which Suwalski [could] seek redress.” Id. at ¶ 38.
{¶ 20} If we were to strictly follow the distinction set forth in Suwalski, we
would have to hold that the victims in this case could not have filed a direct appeal,
because like the victim in Suwalski, they were not the subject of an order “that
required some action or acquiescence” on their part. The Suwalski decision has
sown confusion about how victims are to assert their right to petition in the court
of appeals.
{¶ 21} The distinction set forth in Suwalski interprets Marsy’s Law too
narrowly. As this court stated in Thomas, the term “petition” in Marsy’s Law is
broad enough to encompass a direct appeal. Id., 164 Ohio St.3d 167, 2020-Ohio-
5452, 172 N.E.3d 824, at ¶ 41 (lead opinion), citing Jones v. First Natl. Bank of
Bellaire, 123 Ohio St. 642, 176 N.E. 567 (1931), syllabus (referring to appellate
review in court of appeals as being pursuant to “a petition in error”). And it is broad
enough to encompass a direct appeal without an order that would require action or
acquiescence by the victim.
{¶ 22} The Tenth District recently considered a similar matter and
concluded that victims seeking to enforce their rights under Marsy’s Law may
pursue a direct appeal or an original action depending on which is the suitable form
based on standing and other traditional criteria for determining the availability of
an appeal or an original writ. State v. Beach, 10th Dist. Franklin No. 20AP-589,
2021-Ohio-4497, ¶ 12-16. We agree with the Tenth District. To bring our case law
back in line with the text of Marsy’s Law, when a victim of a crime seeks
enforcement of his or her constitutional rights by submitting a request to the trial
court, the victim has standing to file a direct appeal. In short, whether a direct
appeal or an original action is the appropriate “petition” for a crime victim to file
12
January Term, 2022
relies on the circumstances of the case, particularly whether an appeal is available
as an adequate remedy. Id. at ¶ 16.
{¶ 23} In this case, the trial court considered and denied restitution to the
victims even though they had a constitutional right to it. See Ohio Constitution,
Article I, Section 10a(A)(7). Despite the fact that victims are not traditional parties
to a criminal action and despite the fact that Brasher’s victims had not yet formally
intervened in the state’s prosecution of Brasher, when the victims requested
enforcement of their constitutional rights by submitting their restitution request and
the trial court denied that relief, they thereby—like the victims in Thomas—had
clear standing to appeal the restitution portion of Brasher’s sentence. See Thomas
at ¶ 42-49; see also State v. Bates, 167 Ohio St.3d 197, 2022-Ohio-475, 190 N.E.3d
610, ¶ 20-22, quoting Ohio Contract Carriers Assn. v. Pub. Util. Comm, 140 Ohio
St. 160, 161, 42 N.E.2d 758 (1942) (“ ‘It is fundamental that appeal lies only on
behalf of a party aggrieved’ ” and thus, a “party aggrieved by a court’s error * * *
must challenge it on direct appeal; otherwise, the sentence will be subject to res
judicata”); Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-
Ohio-5024, 875 N.E.2d 550, ¶ 27 (noting that the question of standing depends on
whether the party has alleged a personal stake in the outcome of the controversy).
On direct appeal of the denial of restitution from Brasher to the victims, the Twelfth
District could have reversed the trial court’s judgment and remanded Brasher’s case
for a restitution hearing. And had the victims pursued restitution in a direct appeal,
the trial court’s judgment would not have become final, avoiding the timing and
jurisdictional issues created by the absence of a timely appeal and Brasher’s
completion of his sentence. Thus, by direct appeal, the victims had an adequate—
and far superior—legal remedy than the mandamus action that Howery ultimately
filed. See, e.g., State ex rel. Cherry v. Breaux, ___ Ohio St.3d ___, 2022-Ohio-
1885, ___ N.E.3d ___, ¶ 8-13.
13
SUPREME COURT OF OHIO
{¶ 24} Without a timely appeal by the victims or the prosecutor, the trial
court’s initial judgment on Brasher’s sentence—devoid of any order of restitution
to the victims—became final, and res judicata attached. See Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, at ¶ 26-27, 34-38; Harper, 160 Ohio
St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, at ¶ 41. Moreover, when Brasher
completed his sentence,5 the trial court lost any jurisdiction to modify the sentence.
Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, at
¶ 14-18, overruled on other grounds by Harper at ¶ 5, 40. When the trial court later
tried to order restitution, it acted without jurisdiction and, even under both Harper
and Henderson, an order issued without jurisdiction is void. Henderson at ¶ 43;
Harper at ¶ 42.
{¶ 25} While this result is difficult for the victims here, it is necessary in the
end to provide clarity to victim-litigants on the proper procedures for appealing
restitution orders under Marsy’s Law. We stress that there is no question that the
victims here had the right to seek and be awarded restitution under Marsy’s Law
while the trial court had jurisdiction over Brasher’s case. Ohio Constitution, Article
I, Section 10a(A)(7). But like most constitutional rights, this right can be forfeited
if it is not invoked as necessary or required. See United States v. Olano, 507 U.S.
725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), citing Yakus v. United States,
321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
{¶ 26} Brasher’s victims had a right “to be present at all * * * proceedings,”
Ohio Constitution, Article I, Section 10a(A)(2), and specifically, the right “to be
heard in any public proceeding involving * * * sentencing * * * or in any public
proceeding in which a right of the victim is implicated,” id. at Section 10a(A)(3).
However, these crime victims did not appear at sentencing. They may have
exercised their right to “confer with the attorney for the government” about
5. As noted above, we have no evidence before us that Brasher was placed on postrelease control.
14
January Term, 2022
restitution,6 but the attorney for the government, for whatever reason, did not
“assert” the victims’ right to restitution. See Ohio Constitution Article I, Section
10a(A)(9) and (B). And they had an additional right, when “the relief sought [was]
denied,” to “petition the court of appeals for the applicable district.” Ohio
Constitution, Article I, Section 10a(B). But Brasher’s victims did not timely appeal
the trial court’s failure to award restitution. Rather, they let the appellate window
close and the judgment become final; only then did they seek to enforce their rights
through a collateral attack on a final judgment by seeking a writ of mandamus.
{¶ 27} It is unfortunate that these car-theft victims were left with a vehicle
so damaged that it could not be repaired and that they have now become a “test
case” for how to enforce rights under Marsy’s Law. Under Article I, Section
10a(A)(7) of the Ohio Constitution, they had a right to restitution—if they exercised
that right. When that right is not invoked at the defendant’s trial or raised on direct
appeal, thereby eliminating the availability of that remedy, victims must then turn
to the civil-justice system to seek compensation from the offender in order to be
made whole.
IV. CONCLUSION
{¶ 28} The judgment of the Twelfth District Court of Appeals is affirmed.
Judgment affirmed.
FISCHER and DONNELLY, JJ., concur.
O’CONNOR, C.J., concurs in judgment only, with an opinion.
KENNEDY and STEWART, JJ., concur in judgment only.
6. The record is unclear about whether the victims actually requested that the prosecutor advocate
for restitution on their behalf as contemplated by Marsy’s Law. See Article I, Section 10a(B), Ohio
Constitution. During the July 2020 restitution hearing, Howery testified that at the time of Brasher’s
initial sentencing in October 2018, she had provided the trial court with restitution information that
was included with her victim-impact statement and that she had requested restitution at that time.
The transcript of Brasher’s October 2018 sentencing hearing indicates that Howery was not present
at that hearing. The record does not specify the extent to which the victims requested that the
prosecutor assert their rights. But it is clear that the prosecutor did not assert them on behalf of the
victims at Brasher’s October 2018 sentencing.
15
SUPREME COURT OF OHIO
DEWINE, J., concurs in judgment only, with an opinion.
_________________
O’CONNOR, C.J., concurring in judgment only.
{¶ 29} I agree with the lead opinion that the judgment of the Twelfth
District Court of Appeals should be affirmed, but I would do so based solely on the
ground that the trial court lacked jurisdiction to modify appellee Kyle Brasher’s
sentence. Although the lead opinion acknowledges that the trial court “acted
without jurisdiction” when it ordered restitution to the victims after Brasher had
completed his sentence, lead opinion, ¶ 24, the bulk of its analysis nevertheless
focuses on issues that the court of appeals never addressed and that it need not reach
given the circumstances of this case. Because this appeal begins and ends with the
fact that the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution prohibited the trial court from imposing restitution as part of Brasher’s
sentence after he had completed his 18-month prison sentence for grand theft of a
motor vehicle, I concur in judgment only.
{¶ 30} It is well-settled law that once a defendant completes his sentence,
the trial court cannot modify that sentence. State v. Holdcroft, 137 Ohio St.3d 526,
2013-Ohio-5014, 1 N.E.3d 382, ¶ 14, 18, overruled on other grounds by State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. The reason for
such a rule is clear: “[t]he Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution protects against the imposition of multiple criminal
punishments for the same offense in successive proceedings,” State v. Raber, 134
Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24, and
“ ‘[i]f a defendant has a legitimate expectation of finality, then an increase in that
sentence is prohibited by the double jeopardy clause,’ ” id., quoting United States
v. Fogel, 829 F.2d 77, 87 (D.C.Cir.1987). Generally, a defendant has a legitimate
expectation of finality in his sentence when the time for filing a direct appeal has
run and the prison sentence for the relevant crime has been completed. Holdcroft
16
January Term, 2022
at ¶ 18. In other words, “a defendant has no legitimate expectation of finality in a
sentence that remains subject to direct review,” id. at ¶ 16, and “when the entirety
of a prison sanction has been served, the defendant’s expectation in finality in his
sentence becomes paramount, and his sentence for that crime may no longer be
modified,” id. at ¶ 18.
{¶ 31} Here, the trial court considered at the original sentencing hearing the
victims’ request for restitution, but it did not impose restitution as part of Brasher’s
sentence. Indeed, as the lead opinion acknowledges, the original sentencing entry
“made no mention of restitution.” Lead opinion at ¶ 4. Neither of the appellants,
the state or the victim, appealed that original sentencing entry. Moreover, the
record before us establishes that Brasher completed his 18-month prison sentence
prior to the trial court issuing the supplemental sentencing entry, which ordered
Brasher to pay restitution to the victim. As a result, once the time for filing an
appeal had run and Brasher had completed his 18-month prison sentence, his
legitimate expectation in the finality of his sentence was paramount, and his
sentence for that crime could no longer be modified. Holdcroft at ¶ 18.
{¶ 32} Therefore, regardless of whether the victims had standing to appeal
the trial court’s original sentencing entry or whether the victims should have
appealed the entry instead of filing an original action, the protections of the Double
Jeopardy Clause prohibited the trial court from reopening the case and resentencing
Brasher for the purpose of imposing restitution once Brasher had served his entire
sentence. See id. at ¶ 5; Raber at ¶ 26. For this reason, and this reason alone, I
would affirm the judgment of the Twelfth District Court of Appeals.
_________________
DEWINE, J., concurring in judgment only.
{¶ 33} I agree that the trial court erred when it modified Kyle Brasher’s
sentence by imposing an additional sanction of restitution. I therefore concur in
17
SUPREME COURT OF OHIO
this court’s judgment affirming the judgment of the Twelfth District Court of
Appeals.
{¶ 34} There are two independent reasons why it was inappropriate for the
trial court to modify Brasher’s sentence. First, the trial court lacked jurisdiction to
change Brasher’s sentence after it had issued a final judgment and the time to appeal
that judgment had expired. Second, because Brasher had a reasonable expectation
of finality in his sentence, the trial court’s imposition of an additional sanction
violated his rights under the Double Jeopardy Clause. I write separately to clarify
the difference between these two concepts.
The trial court lacked jurisdiction to modify Brasher’s final criminal
sentence
{¶ 35} An order to pay restitution in a criminal case is a part of the sentence.
See R.C. 2929.01(DD) (restitution is a criminal sanction imposed as punishment
for an offense) and 2929.01(EE) (the sentence is the combination of sanctions
imposed by the sentencing court); see also State v. Danison, 105 Ohio St.3d 127,
2005-Ohio-781, 823 N.E.2d 444, ¶ 6, 8 (an order of restitution is part of the
sentence). And here, the trial court lacked jurisdiction to modify Brasher’s sentence
once it became final and the time for filing a direct appeal had expired.
{¶ 36} As this court has explained, “[T]he trial court’s jurisdiction over a
criminal matter is limited once the proceedings are complete. Generally, a trial
court loses jurisdiction to modify its judgment once that judgment has been
affirmed on appeal.” State ex rel. Davis v. Janas, 160 Ohio St.3d 187, 2020-Ohio-
1462, 155 N.E.3d 822, ¶ 11, citing State ex rel. Special Prosecutors v. Judges,
Court of Common Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978). “Relief from
final judgments in criminal cases is confined to the procedures authorized by statute
or rule,” and “[o]utside of those procedures, there is no statute or criminal rule
permitting a trial court to * * * substantively change a defendant’s sentence after
that sentence has been affirmed on direct appeal.” Id. Thus, except when
18
January Term, 2022
authorized by statute or rule, a trial court lacks jurisdiction to modify a criminal
sentence once it has become final and it is either affirmed on appeal or the time to
appeal has expired. And there is no statute or rule authorizing the trial court to
impose a belated restitution order in a criminal case.7 The amendments made to
the Ohio Constitution as part of the Marsy’s Law ballot initiative have not changed
this aspect of the law.
{¶ 37} The Marsy’s Law amendment grants crime victims a right to “full
and timely restitution from the person who committed the criminal offense.” Ohio
Constitution, Article I, Section 10a(A)(7). This broad guarantee provides that
victims have a constitutional right to the full amount of restitution established in
the trial court. But the Marsy’s Law amendment operates in conjunction with state
law, except when there is a conflict between the amendment and a statute, in which
case the amendment controls. See Ohio Constitution, Article I, Section 10a(E)
(providing that the amendment “shall supersede all conflicting state laws”).
{¶ 38} The amendment does not conflict with statutory law making
restitution part of the criminal sentence. It does not purport to give victims the
ability to collaterally attack final judgments. Nor does the amendment evince any
intent to enlarge the jurisdiction of the courts of common pleas and permit them to
reopen closed cases. Thus, while the amendment grants crime victims a right to
restitution, it does not alter the existing law providing that an order of restitution in
7. Ohio law authorizes the trial court to modify the payment terms of a restitution order imposed as
part of a criminal sentence. See R.C. 2929.18(A)(1) (“The victim or survivor may request that the
prosecutor in the case file a motion, or the offender may file a motion, for modification of the
payment terms of any restitution ordered. If the court grants the motion, it may modify the payment
terms as it determines appropriate”). Thus, when restitution is imposed as part of a sentence, this
provision gives the trial court continuing jurisdiction to modify the “payment terms” of the
“restitution ordered.” But it does not grant the trial court authority to impose a new sanction of
restitution after a final judgment has been issued.
19
SUPREME COURT OF OHIO
a criminal case is a part of the defendant’s sentence.8 And a court loses jurisdiction
to modify a final sentence after the time to appeal has expired.
Brasher had a legitimate expectation of finality in his sentence, so the trial
court’s restitution order also violated his Double Jeopardy rights
{¶ 39} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution protects against the imposition of multiple punishments for the
same offense, beyond those authorized by the legislature. Missouri v. Hunter, 459
U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), citing North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This protection
further prohibits “sentence adjustments that upset a defendant’s legitimate
‘expectation of finality in his sentence.’ ” Warnick v. Booher, 425 F.3d 842, 847
(10th Cir.2005), quoting United States v. DiFrancesco, 449 U.S. 117, 136, 101
S.Ct. 426, 66 L.Ed.2d 328 (1980).
{¶ 40} In this case, the court of appeals concluded that once Brasher had
completed his prison sentence, “the trial court lost jurisdiction to modify [his]
sentence pursuant to the decision in State v. Holdcroft, 137 Ohio St.3d 526, 2013-
Ohio-5014, 1 N.E.3d 382.” 2021-Ohio-1688, ¶ 19. This court’s decision in
Holdcroft addressed, among other things, a defendant’s legitimate expectation of
finality in his sentence after he had fully served the prison portion of the sentence.
Id. at ¶ 12. A defendant’s expectation of finality in his sentence relates to the
question whether a change in the sentence would violate the Double Jeopardy
Clause. See Warnick at 847. But in Holdcroft, this court conflated that question
with the issue of a trial court’s jurisdiction to modify a sentence, ultimately holding
that “once a valid prison sanction has been served, * * * the court has lost
8. The imposition of restitution as a criminal sanction does not preclude a victim from filing a
separate civil action against the offender. R.C. 2929.18(H). This appeal involves an order of
restitution imposed as part of a criminal case, so we have no occasion to consider whether the
constitutional right to restitution has any application in the civil context.
20
January Term, 2022
jurisdiction to modify the sentence” (emphasis in original), id. at ¶ 14. This
statement is incorrect, and it has caused confusion for courts and litigants.
{¶ 41} The Double Jeopardy Clause does not always bar an increase in a
defendant’s sentence after he has served the prison term originally imposed. We
have explained, for instance, that a defendant has no legitimate expectation of
finality in his sentence while it remains subject to review on direct appeal. State v.
Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 16-19, citing
DiFrancesco at 136-139. This is true even if a defendant has finished serving his
sentence while the direct appeal is pending. State v. Christian, 159 Ohio St.3d 510,
2020-Ohio-828, 152 N.E.3d 216, ¶ 1, 21-22. Thus, when a defendant’s sentence is
vacated on direct appeal, the trial court may properly resentence the defendant—
even if he has already served the original term. Id.{¶ 42} Consequently, the completion of a prison term does not deprive the
trial court of jurisdiction to modify a sentence. Indeed, Holdcroft did not point to
any statute providing that a trial court is divested of jurisdiction over a criminal
case once a prison sentence has been served.
{¶ 43} That leaves us to consider whether the imposition of an additional
term to Brasher’s sentence nevertheless violates the Double Jeopardy Clause. The
question whether a change in sentence will violate the Double Jeopardy Clause
“depends upon the extent and legitimacy of a defendant’s expectation of finality.”
Roberts at ¶ 12. Most of the time, a defendant will have a legitimate expectation
of finality in his sentence after any appeal is concluded or the time to appeal has
expired. See DiFrancesco, 449 U.S. at 136, 101 S.Ct. 426, 66 L.Ed.2d 328.
{¶ 44} But laws passed by the legislature can extend the point at which a
defendant’s expectation of finality in his sentence becomes concrete. As the United
States Supreme Court explained in DiFrancesco, defendants are charged with
knowledge of statutory law, and many statutes inflict “criminal sanctions under
which the defendant is unaware of the precise extent of his punishment for
21
SUPREME COURT OF OHIO
significant periods of time.” Id. at 137. “The Double Jeopardy Clause does not
provide the defendant with the right to know at any specific moment in time what
the exact limit of his punishment will turn out to be.” Id.{¶ 45} As I have explained, though, the controlling laws in this case make
restitution a part of the criminal sentence. And in the absence of some statute
authorizing the trial court to impose an award of restitution after a final judgment
of conviction is entered, Brasher could reasonably expect that his sentence would
not be changed once it became final and the time to appeal had expired. Thus,
under the circumstances here, Brasher had a legitimate expectation of finality in his
sentence, and the subsequent imposition of a restitution sanction therefore violated
his double-jeopardy protections.
Marsy’s Law permits a victim to appeal a restitution award
{¶ 46} The Marsy’s Law amendment permits victims to assert their
constitutional right to restitution in the criminal case against the defendant. Article
I, Section 10a(B). And “[i]f 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.” Id. (The General Assembly
has recently passed legislation that further details the procedures for victims to
pursue appeals, though at the time of this writing, the legislation has not yet been
signed into law by the governor. See 2022 Sub.H.B. No. 343, available at
https://www.legislature.ohio.gov/legislation/legislation-status?id
=GA134-HB-343 (accessed Dec. 19, 2022) [https://perma.cc/LQ7F-W5X2].)
{¶ 47} The problem in this case is that the victims did not object to the trial
court’s denial of restitution in the trial court and did not take any action to pursue
an appeal from the trial court’s judgment. Further, the victims did not file their
mandamus action until after Brasher’s criminal judgment had become final and the
time for appeal had passed. By that time, the trial court lacked jurisdiction to
modify Brasher’s sentence. Likewise, Brasher obtained a reasonable expectation
22
January Term, 2022
of finality in his judgment once that judgment became final and non-appealable.
Therefore, double-jeopardy protections also precluded the trial court from imposing
an additional criminal sanction ordering Brasher to pay restitution.
Conclusion
{¶ 48} I agree with the lead opinion that the Marsy’s Law amendment
grants crime victims the ability to file a direct appeal from a trial court’s decision
denying their request for restitution. That didn’t happen in this case. Therefore,
once Brasher’s sentence became final and the time to appeal that sentence had
passed, the trial court lacked authority to modify the sentence to include an
additional sanction of restitution.
_________________
John C. Heinkel, Butler County Prosecuting Attorney, for appellant state of
Ohio.
Elizabeth Well and Bobbie Yeager, Ohio Crime Victim Justice Center, for
appellant Deborah Howery.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, for appellee.
_________________
23