Prosecutors have right to appeal when trial court denies crime victim’s request for restitution.

Prosecutors have right to appeal when trial court denies crime victim’s request for restitution.

The rights granted to crime victims through a 2017 voter-approved constitutional amendment do not impact the “standing” of prosecutors to appeal the denial of restitution to a crime victim, the Supreme Court of Ohio ruled today.

The Supreme Court ruled that the court of appeals erred in concluding the Montgomery County Prosecutor’s Office lacked standing to appeal the denial of restitution to a man who allegedly sustained $177,000 in medical bills after being assaulted by his fiancé’s son. The Court noted that the parties and the court of appeals incorrectly framed the issue as  whether the language in the ballot issue known as Marsy’s Law, which amended Article 1, Section 10a of the Ohio Constitution, provides standing for the prosecutor’s office to challenge the denial of restitution.

The Court was unanimous in its decision, but split in its reasoning, for remanding the case to the Second District Court of Appeals to consider the merits of the prosecutor’s appeal.

Writing for the Court majority, Chief Justice Maureen O’Connor explained the Second District held that under Marsy’s Law the state could not appeal a denial of restitution. The chief justice described the Second District’s conclusion as “needlessly broad and inconsistent with the purposes of Marsy’s Law.”

Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined Chief Justice O’Connor’s opinion. Justice Sharon L. Kennedy concurred in judgment only.

In a concurring opinion, Justice R. Patrick DeWine wrote that the prosecutor could have made better arguments in support of the office’s appeal. Despite how the prosecutor presented the case, state law clearly allows the office to appeal the denial of a restitution order, he concluded.

Man Seeks Compensation for Uncovered Medical Expenses
In August 2019, Zacary Fisk had an altercation with Steven Patton, who was engaged to Fisk’s mother. Fisk attacked and repeatedly stabbed Patton, who suffered life-threatening injuries. Fisk was charged with felonious assault and attempted murder. A jury found Fisk guilty of two counts of felonious assault, but acquitted him on attempted murder.

Fisk was sentenced to two to three years in prison for the attack. Prior to the sentencing, the trial court reviewed Patton’s victim-impact letter and his medical bills. At sentencing, Patton stated he incurred more than $177,000 in medical expenses and that the U.S. Department of Veteran Affairs declined to cover his expenses through his veteran benefits.

The trial court denied Patton’s request, stating it needed documentation from Veteran Affairs regarding its refusal to cover Patton’s injuries and the reason why the coverage was denied. The prosecutor objected, arguing Patton provided the medical bills and no explanation was needed.

Appellate Court Holds the State Lacked Standing to Appeal Restitution
Fisk appealed his conviction to the Second District. The prosecutor challenged the trial court’s decision to deny restitution. The prosecutor invoked Marsy’s Law and argued that under Article 1, Section 10a(A)(7), Patton was entitled to “full and timely restitution.” Fisk argued that the prosecutor’s office could not appeal the trial court’s denial of restitution under Marsy’s Law.

The Second District agreed with Fisk and held the state did not have standing to challenge the restitution decision. The Second District affirmed Fisk’s conviction without considering the merits of the state’s restitution arguments.

The prosecutor appealed to the Supreme Court, which agreed to consider the prosecutor’s argument that Marsy’s Law gave the office standing to appeal the decision denying restitution to Patton.

Supreme Court Analyzed Victims’ Rights Amendments
Chief Justice O’Connor wrote that the Second District misinterpreted Marsy’s Law. Article 1, Section 10a(B) states that the “victim, the attorney for the government upon request of the victim, or the victim’s other lawful representative” may assert the rights provided to crime victims under Marsy’s Law “and any other right afforded to the victim by law.” The next sentence of the section states that if relief is denied, “the victim or the victim’s lawful representative may petition the court of appeals.”

The Second District noted that “attorney for the government upon request of the victim” was not listed in the amendment as a party that could appeal a denial of relief. The appellate court concluded that this omission in the amendment left the prosecutor without the right to appeal the denial of restitution.

The Supreme Court ruled the parties and the court of appeals confused the issue of “standing” and the scope of Marsy’s Law. Standing determines if a party has a right to make a legal claim and seek judicial enforcement. Marsy’s Law is concerned with the rights of victims and enables the victims 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.” It also provides victims with the ability to petition the court of appeals on their own or through their “lawful representative” if the relief sought is denied.

Marsy’s Law  “is a mechanism for victims, not the state,” the Court explained. “Whether the state, through a prosecuting attorney, may petition the court of appeals on behalf of the victim under [Marsy’s Law] is a question of the state’s authority to represent the victim” and “not one of the state’s standing to make a legal claim.” The prosecutor’s appeal indicated the office appealed on behalf of “the State of Ohio,” not on behalf of the victim, and was acting as the state’s legal representative.

The Court stated that Marsy’s Law does not describe how a victim is to petition for relief, and the General Assembly has not enacted a law detailing the process. However, other statutes do address the state’s authority to appeal and the issue of restitution.

The Court directed the Second District to consider the merits of the prosecutor’s appeal. The appellate court also can consider whether the prosecutor is entitled to relief under applicable state law and whether the prosecutor forfeited any legal arguments by not raising them during the initial appeal.

State Has Authority to Appeal, Concurrence Maintained 
In his concurrence, Justice DeWine explained that the state is authorized by statute to appeal decisions regarding restitution, and it has an interest in ensuring the criminal law is enforced. During the appeal, the prosecutor discussed the victim’s constitutional rights, without mentioning the state’s right to enforce the law.

“It is certainly not unusual, though, for prosecutors to advocate in court for the interests of crime victims,” he wrote.

The state has “suffered an injury” by the denial of restitution, so it has standing to pursue an appeal, Justice DeWine concluded.

2021-1047. State v. Fisk, Slip Opinion No. 2022-Ohio-4435.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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