State v. BarnesState v. Barnes
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. 2026-OHIO-2750
THE STATE OF OHIO; M.S., APPELLANT, v. BARNES, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Barnes, Slip Opinion No. 2026-Ohio-2750.]
Criminal law—Constitutional law—Marsy’s Law—Restitution—Delayed appeals—Crime victim seeking to appeal trial court’s denial of restitution is subject to procedural regulations set forth in
(No. 2025-0030—Submitted December 9, 2025—Decided July 22, 2026.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 114516.
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DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and FISCHER, DETERS, HAWKINS, and SHANAHAN, JJ., joined and BRUNNER, J., joined except as to Part II(B).
{¶ 1} This case involves a theft victim who sought restitution from her offender. The trial court did not award restitution. The victim filed a direct appeal from that ruling but later voluntarily dismissed her appeal. Some five years later, the victim sought to file a delayed appeal of the trial court’s order that failed to award restitution, but the Eighth District Court of Appeals denied her leave to file a delayed appeal because the express terms of
{¶ 2} The victim now seeks to challenge the Eighth District’s ruling, arguing that victims have a constitutional right to pursue a delayed appeal. In effect, she asks us to judicially rewrite
I. BACKGROUND
{¶ 3} Frederick Barnes was charged with breaking into M.S.’s office and stealing a pistol and a nail gun. In October 2018, Barnes pleaded guilty to attempted breaking and entering and petty theft. The State requested restitution at the sentencing hearing. M.S. addressed the court at the hearing, and the State presented the court with paperwork supporting the restitution request. Defense counsel countered, “We’re not here to try the restitution case,” and suggested that restitution was best handled “as a civil matter.” The court then sentenced Barnes to time served and waived court costs. The court did not mention restitution in its pronouncement of sentence, nor did it provide for restitution in its sentencing entry.
{¶ 4} M.S. filed a direct appeal of Barnes’s sentence in the Eighth District, arguing that she was entitled to restitution under the Marsy’s Law amendment to the Ohio Constitution. Specifically, M.S. relied on
{¶ 5} Marsy’s Law became effective in February 2018. When M.S. filed her appeal in December 2018, the legislature had not yet enacted legislation implementing the constitutional amendment, and there was some uncertainty as to the proper manner for a victim to enforce the rights guaranteed under Marsy’s Law.
{¶ 6} While M.S.’s appeal was pending, the Eighth District rendered a decision in State v. Hughes, 2019-Ohio-1000 (8th Dist.). In Hughes, a victim sought to enforce her rights under Marsy’s Law by appealing an order in a criminal case that required her to disclose the names of her medical providers so that the defendant could subpoena her medical records and furnish them to the court for an in camera review by the trial judge. Id. at ¶ 1-3 (Jones, J., opinion). The decision was fractured. Judge Jones’s opinion was reported first and announced the court’s judgment dismissing the victim’s appeal, but no other judge joined the opinion. Judge Jones concluded that victims do not have standing to directly appeal from a trial court’s order in a criminal case and instead should petition for an extraordinary writ. Id. at ¶ 16, 28. Judge Sheehan concurred in judgment only, concluding that the appeal was properly dismissed “not because [the victim] does not have standing to file this appeal but because the trial court’s order is not a final appealable order . . . .” Id. at ¶ 31 (Sheehan, J., concurring in judgment only). In her view, because the court’s order only required an in camera review of the records, the interlocutory discovery order did not meet the final-order requirements of
{¶ 8} Several factors, including an effort by Barnes to withdraw his guilty plea, see State v. Barnes, 2024-Ohio-2184, ¶ 11-12 (8th Dist.), caused the matter to linger in the trial court for several years after the Eighth District’s mandamus order. During that period, this court decided State v. Brasher, 2022-Ohio-4703. In Brasher, a three-justice plurality concluded that a direct appeal is the appropriate remedy for a victim to challenge a trial court’s failure to award restitution under Marsy’s Law.1 Brasher at ¶ 2, 22 (lead opinion). A fourth justice concurred in judgment only, but “agree[d] 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.” Id. at ¶ 48 (DeWine, J., concurring in judgment only).
{¶ 9} The trial court in M.S.’s case ultimately set a restitution hearing for May 2023. See Barnes, 2024-Ohio-2184, at ¶ 12 (8th Dist.). Relying on Brasher, Barnes appealed the order setting the hearing, arguing in part that M.S. had forfeited her right to challenge the failure to award restitution by dismissing her direct appeal. Id. at ¶ 20. The Eighth District ruled in favor of Barnes and vacated the trial court’s order directing a restitution hearing. Id. at ¶ 27. We declined to accept jurisdiction over M.S.’s appeal of that decision. 2024-Ohio-4713.
II. ANALYSIS
{¶ 11} We accepted M.S.’s appeal challenging the Eighth District’s judgment denying her motion for leave to file a delayed appeal. She raises a single proposition of law, which asserts that victims have a constitutional right to file a delayed appeal.
A. The Eighth District Properly Denied M.S.’s Motion for a Delayed Appeal
{¶ 12} Although the procedural posture of this case is convoluted, the analysis of the Eighth District’s order denying M.S.’s motion for a delayed appeal is straightforward.
{¶ 13} Under the doctrine of res judicata, a final judgment bars a party from reasserting claims that were raised or that could have been raised at trial or in an appeal from that judgment. See State v. Perry, 10 Ohio St.2d 175, 180 (1967); see also AJZ’s Hauling, L.L.C. v. TruNorth Warranty Programs of N. Am., 2023-Ohio-3097, ¶ 15. Thus, there is a strong argument that because M.S. voluntarily dismissed her direct appeal, res judicata prevented her from further litigating the claim she later sought to raise in her delayed appeal. Contra State v. Shifflett, 1994 Ohio App. LEXIS 489, *3-4 (2d Dist. Feb. 9, 1994) (allowing a defendant who had previously dismissed his direct appeal to pursue a delayed appeal). The court of appeals did not deny M.S.’s motion for leave on the basis of res judicata, however. And we have never directly addressed the res judicata effect of a voluntarily
{¶ 14} The only provision allowing for an appeal outside the limits established by
{¶ 15} M.S. effectively asks that the rule be rewritten through judicial decision to allow victims the opportunity to seek leave to file a delayed appeal. But neither the Eighth District nor this court possesses such authority.
{¶ 16} The Ohio Constitution sets forth the procedure by which rules governing practice and procedure are promulgated and amended. Under
{¶ 17} The Ohio Constitution thus prescribes a specific procedure for amendment of the rules of practice and procedure that involves both this court and the General Assembly. We have no authority to bypass this constitutional procedure and simply amend those rules by judicial decision in an individual case. While there may be good reasons to allow a victim to request leave to file a delayed appeal in at least some situations, that matter must be left to the rulemaking process.
B. We Reject M.S.’s Constitutional Challenge
{¶ 18} M.S. argues that victims have a constitutional right under the state and federal Constitutions to file delayed appeals. Because
{¶ 19} M.S. locates her claimed right to file a delayed appeal under the Marsy’s Law amendment in the Ohio Constitution and in procedural-due-process and equal-protection guarantees of the Ohio and United States Constitutions. In essence, she argues that constitutional requirements compel us to decline to follow
1. Marsy’s Law
{¶ 20} M.S. first argues that Marsy’s Law provides her with a right to a delayed appeal. When interpreting a provision of the Ohio Constitution, we apply its original public meaning. State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 40. “The first consideration is always a provision’s text.” State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Columbus Police Dept., 2025-Ohio-5243, ¶ 17. Relevant here are Section 10a(A) and (B) of the amendment.
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.
{¶ 22} Despite the lack of direct textual support, M.S. makes two arguments for reading an implicit right to a delayed appeal into Marsy’s Law. First, M.S. asserts that a victim’s right to an appeal is absolute and that no restrictions can be placed on it. She reasons that because the Ohio Constitution trumps all other procedural rules and the text of Marsy’s Law contains no time constraints for seeking appellate review, no such limitations can be imposed against a victim. Under this view, any timeliness requirements are impermissible, and a victim may appeal at any point in the future.
{¶ 23} It is worth pausing first to note the expansiveness of M.S.’s argument. It would mean that unlike all other categories of litigants, victims could appeal at any time, and the government would be prevented from applying normal procedural limitations—e.g., notice and filing requirements, page limitations, and the like—that affect a victim’s right to appeal.
{¶ 24} “In construing constitutional text that was ratified by direct vote, we consider how the language would have been understood by the voters who adopted the amendment.” Centerville v. Knab, 2020-Ohio-5219, ¶ 22. This analysis is undertaken “‘in light of our history and traditions.’” Bloom, 2024-Ohio-5029, at ¶ 35, quoting State v. Smith, 2020-Ohio-4441, ¶ 29. At the time Marsy’s Law was adopted, appeals in Ohio were subject to the time limitations established by the Rules of Appellate Procedure. See
{¶ 26} The point is that it is widely understood that procedural rules can channel the exercise of constitutional rights, and a constitutional right can be waived if not timely asserted. Against this backdrop, it is implausible to suggest that when voters enacted Marsy’s Law, they were conferring an open-ended right to appeal at any point in the future, not subject to any procedural regulation by statute or rule.
{¶ 27} For her second argument, M.S. points to the language in
2. Due Process
{¶ 29} M.S. next tries to locate a right to a delayed appeal in the Due Process Clause of the
{¶ 30} M.S.’s real complaint is that she dismissed her direct appeal in purported reliance on Judge Jones’s solo opinion in Hughes, 2019-Ohio-1000 (8th Dist.). It is not clear, however, why M.S. relied on Judge Jones’s opinion. Although the manner in which the Eighth District formatted the Hughes opinion was unusual, it should have been clear to M.S. that Judge Jones’s opinion represented the opinion of only one judge, not the majority of the three-judge panel. And if M.S. was uncertain about whether mandamus or direct appeal was the proper manner in which to exercise her rights under Marsy’s Law, the prudent course would have been to continue her direct appeal while at the same time also pursuing relief in mandamus. Had she done so and had the Eighth District ultimately dismissed her direct appeal, she could have sought discretionary review of that decision in this court.
{¶ 32} M.S. also makes a cursory argument under
3. Equal Protection
{¶ 33} M.S. also contends that denying victims a right to a delayed appeal violates the equal-protection clauses of the Ohio and United States Constitutions. The
{¶ 34} Under federal equal-protection standards, M.S.’s claim is subject to rational-basis review. Crime victims are not a suspect class. See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing a “suspect class” as one that is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process”); see also Ondo v. Cleveland, 795 F.3d 597, 609 (6th Cir. 2015) (explaining that the United States Supreme Court “has never defined a suspect or quasi-suspect class on anything other than a trait that is definitively ascertainable at the moment of birth, such as race or biological gender”). Nor is there a fundamental right to pursue a delayed appeal. See Rodriguez at 33-34 (a fundamental right is one “explicitly or implicitly” guaranteed by the federal Constitution).
{¶ 35} Recognizing as much, M.S. concedes that rational-basis review applies to her federal claim. Upon such review, a classification “‘must be upheld against [an] equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Am. Assn. of Univ. Professors, Central State Univ. Chapter v. Central State Univ., 1999-Ohio-248, ¶ 11, quoting Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
{¶ 36} While the Ohio Constitution accords significant protection to crime victims, there are rational reasons to accord criminal defendants an opportunity to seek leave to file a delayed appeal, but not crime victims. Most significantly, a criminal sentence may subject a defendant to a loss of liberty, and in some cases even death. This is not to diminish the substantial harms inflicted upon crime
{¶ 37} M.S. also argues that she has a right to pursue a delayed appeal under
{¶ 38} Some members of this court have rightly suggested that we should revisit this understanding in an appropriate case in which a litigant presents arguments based on “the unique language and historical background of this state’s Equal Protection Clause.” Stolz at ¶ 28 (Fischer, J., concurring); see also id. at ¶ 44; Sherman v. Ohio Pub. Emps. Retirement Sys., 2020-Ohio-4960, ¶ 40, fn. 5 (DeWine, J., dissenting). M.S. would like us to change how we analyze the Ohio
{¶ 39} We decline to accept M.S.’s invitation to create a hybrid version of the federal equal-protection standard for analysis of
{¶ 40}
III. CONCLUSION
{¶ 41} We affirm the judgment of the Eighth District Court of Appeals denying M.S.’s motion for leave to file a delayed appeal.
Judgment affirmed.
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Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellee.
Elizabeth R. Miller, Ohio Public Defender, and Stephan P. Hardwick, Assistant Public Defender, urging affirmance for amicus curiae, Office of the Ohio Public Defender.
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