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National Crime Victim Law Institute

Ohio ex rel. Howery v. Powers, NO. CA2019-03-045, 2020 WL 2119323 (Ohio Ct. App. May, 4, 2020) (slip copy)

May 14, 2020

Defendant pled guilty to grand theft of a motor vehicle. At the sentencing hearing, the victim submitted a victim impact statement detailing that she sustained an economic loss due to defendant’s criminal conduct and attached two repair estimates for the vehicle for the trial court’s reference. This reflected what was in the presentence investigation report, which stated that “[r]estitution is unknown at this time, as the victim has not had the car repaired yet, but they have been given several estimates.” The trial court sentenced defendant to 18 months in prison, but did not impose restitution. The victim then filed a petition for writ of mandamus seeking to compel the trial court to reopen sentencing and order defendant to pay restitution. At the outset, the appellate court acknowledged that this case presented an issue of first impression for Ohio: whether a crime victim may enforce his/her/their right under the state’s constitutional victims’ rights amendment (Marsy’s Law), Ohio Constitution, article I, § 10, to full and timely restitution for the economic loss caused by the offender. The court explained that to be entitled to a writ of mandamus, the victim must show: (1) a clear legal right to the requested relief; (2) a clear legal duty on respondent’s part to provide it; and (3) the lack of an adequate remedy in the ordinary course of the law. The court held that the victim satisfied the requirements for the issuance of the writ. The court found that the first two requirements were met as it was undisputed that the victim suffered economic loss due to the defendant’s crime and, under Marsy’s Law, there is a clear legal duty to provide for full and timely restitution. As to the third requirement, the court looked again to Marsy’s Law where it sets forth: “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.” The court thus found that under the Ohio Constitution, the victim’s remedy was to petition the court of appeals. In finding that the victim was entitled to the issuance of the writ, the court rejected the counter argument that the victim could obtain reimbursement for her losses through other means, such as through private insurance, the Ohio Crime Victim Compensation Fund, or a separate civil action. The court stated that the right to restitution is not synonymous with reimbursement, and an order of restitution provides a victim with compensation without the need for a new civil proceeding and includes other protections, such as the inability of an offender to discharge a restitution order in bankruptcy proceedings. The court declined to impose an order of restitution, however, instead issuing a writ directing the trial court to reopen sentencing to allow the victim to assert her right to restitution, where the determination of the amount of restitution may require a restitution hearing.