2020 Ohio 2767
Ohio Ct. App.2020Background
- On Dec. 3, 2017, Kyle Brasher stole and wrecked Deborah Howery's vehicle; he pled guilty to grand theft on Sept. 17, 2018.
- The presentence investigation noted restitution was unknown; at sentencing (Oct. 16, 2018) Howery submitted a victim impact statement with repair estimates.
- The court sentenced Brasher to 18 months imprisonment but did not order restitution; no restitution hearing was held and no restitution amount was imposed.
- Howery filed an original action in mandamus in the court of appeals seeking an order compelling Judge Noah Powers to reopen sentencing and order restitution of $3,021 under Marsy’s Law (Ohio Const. Art. I, § 10a).
- The parties stipulated facts and filed cross-motions for summary judgment; the court found Howery is a victim entitled to restitution but declined to mandamus a specific dollar award.
- The court granted the writ directing the trial court to reopen sentencing and hold a restitution hearing consistent with R.C. 2929.18(A)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a victim may obtain mandamus to enforce Marsy’s Law restitution rights | Howery: Marsy’s Law gives victims a right to "full and timely restitution" and she may petition the court of appeals when relief is denied | Judge Powers: Agrees victims have rights but disputes the procedures and whether mandamus may compel a restitution order | Yes. Victim may seek relief by petitioning the court of appeals; mandamus is an appropriate remedy here. |
| Whether Howery had an adequate alternative remedy (so mandamus is barred) | Howery: No adequate remedy; civil suit, insurance, or victim compensation are not equivalent to restitution under Marsy’s Law | Powers: Implicitly that other remedies exist (insurance, civil action, crime victim fund) | No adequate remedy. Constitutionally provided appellate remedy and mandamus are proper. |
| Whether the court can be compelled to award a specific restitution amount ($3,021) by mandamus | Howery: Entitled to $3,021 based on estimates submitted at sentencing | Powers: Judicial discretion and statutory procedures govern restitution amount | Mandamus will not control judicial discretion to award a specific sum; court refused to order the $3,021 award. |
| Whether Marsy’s Law displaces or conflicts with R.C. 2929.18 procedures for restitution | Howery: Marsy’s Law guarantees full and timely restitution, which requires courts to award restitution | Powers: Procedures under R.C. 2929.18 govern determination and hearings on restitution | No conflict. Marsy’s Law is consistent with R.C. 2929.18; trial court must follow R.C. 2929.18(A)(1) and hold a restitution hearing when amount is disputed. |
Key Cases Cited
- State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (2012) (mandamus standard and availability of writ)
- State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392 (2015) (relator must prove entitlement to writ by clear and convincing evidence)
- State ex rel. Roush v. Montgomery, 156 Ohio St.3d 351 (2019) (mandamus will not control judicial discretion)
- Ney v. Niehaus, 33 Ohio St.3d 118 (1987) (writ may compel exercise of function but not control judicial discretion)
- Kelly v. Robinson, 479 U.S. 36 (1986) (restitution orders imposed in criminal cases are not dischargeable in bankruptcy)
- State v. Lalain, 136 Ohio St.3d 248 (2013) (statute mandates a restitution hearing if amount is disputed)
- State v. Bowman, 181 Ohio App.3d 407 (2009) (restitution must reasonably relate to actual economic loss)