State v. Brasher

CourtUnited States State Supreme Court of Ohio
Citation2022 Ohio 4703
Docket Number2021-1060
PartiesThe State of Ohio et al., Appellants, v. Brasher, Appellee.
Decision Date28 December 2022


The State of Ohio et al., Appellants,

Brasher, Appellee.

No. 2021-1060

Supreme Court of Ohio

December 28, 2022

Submitted June 14, 2022

Appeal from the Court of Appeals for Butler County, No. CA2020-08-094, 2021-Ohio-1688.

John C. Heinkel, Butler County Prosecuting Attorney, for appellant state of Ohio.

Elizabeth Well and Bobbie Yeager, Ohio Crime Victim Justice Center, for appellant Deborah Howery.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellee.





{¶ 1} Appellee, Kyle Brasher, stole the victims' car and totaled it.[1] The victims held a right to restitution under Marsy's Law. Ohio Constitution, Article I, Section 10a(A)(7). Yet the victims and the state did not argue for restitution before the trial court, and the victims did not appeal the trial court's denial of restitution. The question raised before this court is whether the victims should have appealed the portion of Brasher's sentence denying restitution or whether they had the right to collaterally attack the trial court's judgment sentencing Brasher by seeking an extraordinary writ for a restitution order-in this case, after the sentencing court's judgment was final and Brasher's sentence had been completed.

{¶ 2} The victims should have appealed the trial court's failure to award restitution, because they developed standing to appeal when the trial court denied their request to impose restitution. While it is clear that these victims should be compensated for the loss of their stolen vehicle, they did not act to protect their right to restitution when they did not appeal the portion of Brasher's sentence denying restitution. This court affirms the judgment of the Twelfth District Court of Appeals reversing the trial court's later granting of restitution after the trial court had lost jurisdiction in Brasher's case.


{¶ 3} On September 17, 2018, Brasher pled guilty to grand theft of a motor vehicle. On October 16, 2018, the trial court held a sentencing hearing. Brasher, his mother, his attorney, and the prosecutor were present and indicated that they were ready to proceed. The victims were apparently not present, and the state declined an opportunity to be heard. While sentencing Brasher, the court remarked

about economic harm to the victims and their desire for restitution, but it then noted that restitution had not been proved or shown to any specific degree
[Y]ou took somebody's car. It's been pretty devastating for him. The guy lost a couple days' work. He hasn't been able to get a replacement car. It puts him and his wife in a very severe disadvantage. They don't have the money to repair it. They don't have the money to get another one.
When you were confronted about this, you told the police some story. You took this, and you had to plan it somewhat because you didn't just go by yourself. It wasn't like you jumped in the car. You put somebody else in there with you, and you went down to Cincinnati to buy drugs, and then you left the guy's car down there where it got damaged. And here this poor guy is left to pick up the pieces. You don't come into court with any restitution or anything, nothing to fix it. So this guy is left on his own. I don't even know what to tell him because he can't come up with a figure to even tell us what it's worth.
But I've looked at your pre-sentence investigation. You've got a substantial criminal history, which includes felony convictions, failed supervision, prison. Your [Ohio Risk
Assessment System] score is a 33, which indicates you're a very high risk to reoffend. That means you're not a good risk to put out on the street. And, you know, in spite of this, this guy-this guy says he forgives you, but he wants restitution and no contact. But you've got no restitution to give him. He's got no way to be made whole.

The trial court then sentenced Brasher to 18 months in prison. Although the trial court, even after pronouncing sentence, gave the state and defense counsel the opportunity to raise any additional matters, no one did, and neither party objected to any portion of the sentencing.

{¶ 4} The court entered Brasher's sentencing entry on October 19, 2018. The entry made no mention of restitution. The victims did not seek to intervene, and neither the state nor Brasher appealed.

{¶ 5} Five months later, on March 11, 2019, the victims filed a complaint for a writ of mandamus in the Twelfth District Court of Appeals seeking an order to compel the trial court to hold a restitution hearing.[2] On October 31, 2019, while litigation of the mandamus case was pending, the state filed a motion with the trial court that sentenced Brasher, requesting that it hold a restitution hearing. Less than two weeks later, the trial court ordered a hearing. Brasher then filed a motion asking the trial court to reconsider its order and deny the state's motion for a restitution hearing and to vacate the scheduled hearing. Brasher asserted that in light of the ongoing mandamus litigation, the case was "under the jurisdiction of [the Twelfth District] and the issue [was] not ripe" for the trial court. The victims filed a motion in response to Brasher's request to vacate the hearing, asserting that holding the restitution hearing was not inconsistent with the existence of the mandamus action and therefore the hearing should proceed before Brasher's trial-court judge.

{¶ 6} On May 4, 2020, the Twelfth District granted summary judgment in the mandamus action in favor of the victims and ordered the trial court to hold a


restitution hearing (which the trial court had already determined to do). State ex rel. Howery v. Powers, 2020-Ohio-2767, 154 N.E.3d 146 (12th Dist). The Twelfth District reasoned that Marsy's Law permits a victim to petition the court of appeals for enforcement of the rights set forth in Marsy's Law but that it does not make the victim a party to the underlying criminal case. Id. at 14, citing State v. Hughes, 2019-Ohio-1000, 134 N.E.3d 710, ¶ 14. Thus, the Twelfth District concluded that a writ of mandamus was an appropriate avenue to grant relief in the case. Id. at 13-14. Because the victims had a right to restitution and no restitution hearing had been held, the court of appeals ordered the trial court to conduct a restitution hearing. Id. at ¶ 17-21. No appeal was taken from the mandamus action, and Brasher was not a party to the mandamus action.

{¶ 7} On July 27, 2020, both because it had already determined to hold a restitution hearing and because it had been ordered to do so in the mandamus action, the trial court conducted a hearing on restitution. At the hearing, the victims' attorney called both victims to the stand.

{¶ 8} One victim, Deborah Howery, testified that she had inherited the stolen car from her sister, that it was in excellent condition, and that it was of great sentimental value to her. She testified that before the sentencing hearing, she obtained estimates to repair the car, a 2002 Mazda, and that the estimates varied from around $2,700 to $4,000. In addition to apparent crash damage, the car suffered significant water damage when it was exposed to the elements for over a month before it was discovered. Howery testified that she did not have the car repaired, because she could not afford to pay for the repairs out of pocket at the time, but she did, in the course of obtaining estimates, pay for a new key and for a tow-at a total cost of $176.55. A police detective performed valuation research for Howery using Kelley Blue Book estimates, and she found that the car was, to Howery's recollection, worth $1,360 on the low end and $3,021 on the high end. Thus, Howery explained that she was asking for restitution of $3,197.55: $3,021


for the car plus $176.55 for the key and towing. However, she acknowledged that ultimately, she sold the damaged car to a mechanic for $200. Thereafter, Howery's husband, Lawrence Hammon, bought another used car, but that vehicle was not for Howery's use nor titled in her name. Howery further testified that she had provided this information with her victim-impact statement and had requested restitution the day of the initial sentencing hearing.[3]

{¶ 9} Hammon testified that he too was seeking $3,197.55 in restitution. He also testified that he spent $2,000 on a replacement car. He confirmed that the Mazda had been in excellent condition before being stolen but that it was essentially ruined after the theft because of an apparent collision and its windows being down for over a month during the winter.

{¶ 10} In closing argument, Brasher's counsel expressed the view that there were multiple legal issues complicating the situation with respect to who appeared and who did not appear at the original sentencing and who did not request a restitution hearing at that time. However, counsel expressed the belief that, having been ordered by the Twelfth District to conduct a restitution hearing, the parties were now "stuck" with the requirement of doing so. Brasher's counsel thereafter merely argued issues regarding the specific amount of restitution.

{¶ 11} On August 18, 2020, the trial court entered a restitution order for $1,976.55. That figure was based on the $2,000 cost of the replacement vehicle, plus $176.55 for towing and the replacement key, less the $200 ultimately obtained when the Mazda was sold. The court declined to grant the requested amount of $3,021 for the Mazda because it had doubts as to whether that figure reflected the fair market value of the car.


{¶ 12} Brasher appealed the trial court's restitution order to the Twelfth District. Howery then sought and was granted leave to intervene, and she filed a brief. The court of appeals concluded that when Brasher was released from...

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