State v. Downey
2016 Ohio 5778
Ohio Ct. App.2016Background
- In 2006 Mark Downey pled guilty to aggravated vehicular homicide and vehicular assault and was sentenced to nine years' imprisonment and restitution totaling $133,699; the sentencing entry did not specify payment terms.
- Downey did not appeal his sentence; he completed his prison term and was released in August 2015, with three years postrelease control remaining.
- In January 2016 Downey moved the trial court to "modify or terminate" the restitution order, alleging permanent disability and inability to pay.
- The trial court denied the motion as barred by res judicata and refused to hold a hearing.
- On appeal Downey argued R.C. 2929.18(A)(1) and (E) permit post‑sentence modification of restitution payment terms or a hearing on ability to pay.
- The Twelfth District affirmed, holding the trial court lacked post‑sentencing authority to change the restitution amount and that the R.C. 2929.18(E) claim was barred by res judicata.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Downey) | Held |
|---|---|---|---|
| Whether a trial court may modify or terminate the amount of restitution after sentencing | The court lacked authority to revisit the restitution amount post‑sentence; res judicata bars collateral attack | R.C. 2929.18(A)(1) allows an offender to file a motion to modify restitution and thus to reduce or terminate the restitution amount after sentencing | A trial court does not have continuing jurisdiction under R.C. 2929.18(A)(1) to change the amount of restitution after sentencing; motion to reduce/terminate amount denied |
| Whether a defendant is entitled to a hearing under R.C. 2929.18(E) post‑sentence to determine present or future ability to pay | Any R.C. 2929.18(E) challenge to the sentencing‑stage determination is subject to direct appeal; Downey’s failure to appeal bars relief now | R.C. 2929.18(E) permits a hearing to determine ability to pay and thus entitles Downey to have his changed circumstances considered | R.C. 2929.18(E) does not give the trial court continuing jurisdiction to revisit restitution after sentencing; issues that should have been raised on direct appeal are barred by res judicata |
Key Cases Cited
- State v. Danison, 105 Ohio St.3d 127 (2005) (restitution is part of the sentence and is a final appealable order)
- State v. Lalain, 136 Ohio St.3d 248 (2013) (if a defendant disputes restitution amount at sentencing, the court must hold a hearing to establish the proper amount)