Bottom line
A crime victim appealing the denial of restitution is bound by the 30-day deadline in App.R. 4(A), and App.R. 5(A) offers delayed appeals only to defendants. A victim who voluntarily dismissed a timely appeal could not revive it years later through constitutional arguments, and the court refused to rewrite the rule by decision.
The question: can a crime victim file a delayed appeal?
The defendant in State v. Barnes pleaded guilty in 2018 to attempted breaking and entering and petty theft. The State requested restitution for the victim, M.S., but the trial court sentenced the defendant to time served and did not provide for restitution. M.S. filed a timely direct appeal under the Marsy's Law amendment, Ohio Const., art. I, § 10a, then voluntarily dismissed it in April 2019 and sought a writ of mandamus instead.
Years of further litigation followed. M.S. eventually moved the Eighth District for leave to file a delayed appeal from the original sentencing entry. The Eighth District denied leave because App.R. 5 limits delayed appeals to criminal defendants. Her single proposition of law asserted that victims have a constitutional right to file a delayed appeal.
The holding: App.R. 4(A) and 5(A) bind victims too
The Supreme Court of Ohio affirmed. App.R. 5(A)(1) permits an appeal after the 30-day period in App.R. 4(A) only when taken "by a defendant" in criminal, delinquency, or serious youthful offender proceedings. Because M.S. was not a defendant, she could not pursue a delayed appeal, and the court declined to rewrite the rule through case law. It also rejected her arguments under Marsy's Law, federal due process, Article I, Section 16, and the federal and Ohio equal protection guarantees.
Justice DeWine wrote for the court, joined by Chief Justice Kennedy and Justices Fischer, Deters, Hawkins, and Shanahan. Justice Brunner joined except as to Part II(B), the portion rejecting the constitutional challenges. The opinion reflects no separate writing and no dissent.
One question was left open. The court saw "a strong argument" that res judicata barred M.S. after she voluntarily dismissed her direct appeal, but it has never directly addressed that issue and found it unnecessary to decide. That discussion is dicta.
The reasoning: rules change through rulemaking, not briefs
The court's first move was structural. Article IV, Section 5(B) of the Ohio Constitution prescribes how procedural rules are adopted and amended, including filing with the General Assembly. A litigant cannot use an individual case to obtain an amendment that process has not produced:
"We have no authority to bypass this constitutional procedure and simply amend those rules by judicial decision in an individual case." (¶ 17)
On Marsy's Law, the court relied on its earlier decision in State v. Brasher, 2022-Ohio-4703, which it described as reading Section 10a(B) to confer a right to a direct appeal from a denial of restitution. But it drew a firm line:
"But a right to an appeal is not a right to a delayed appeal, and nowhere in Marsy’s Law is a right to a delayed appeal explicitly conferred." (¶ 21)
Voters adopting Marsy's Law would have understood appeals to be subject to App.R. 4 timing, and constitutional rights may be forfeited if not timely asserted. The "no less vigorous" clause of Section 10a(A) did not help, because the right to appeal sits in Section 10a(B), outside the enumerated rights that clause protects.
The due process argument failed because M.S. had an opportunity to be heard and abandoned it. If she was unsure whether mandamus or direct appeal was the right vehicle, "the prudent course would have been to continue her direct appeal while at the same time also pursuing relief in mandamus." (¶ 30) On equal protection, the court applied rational basis review and found a rational distinction in a defendant's exposure to loss of liberty:
"Just as our rules do not allow prosecutors and civil litigants the right to ask for leave to file a delayed appeal, there are rational reasons not to extend such latitude to victims." (¶ 36)
Why it matters beyond Marsy's Law
Barnes is framed as a victims' rights case, but its core lesson applies to every Ohio appeal. Under App.R. 3(A), a timely notice of appeal is the one jurisdictional step in taking an appeal, so the App.R. 4(A) deadline is the threshold of appellate jurisdiction. The court called App.R. 5(A) the only provision allowing an appeal outside that limit, and it exists only for defendants. For prosecutors, civil litigants, and now crime victims, a missed or abandoned appeal cannot be restored by motion for leave, and constitutional arguments will not supply the missing rule.
The case is also a warning about voluntary dismissals. M.S. dismissed a timely appeal in reliance on a fractured Eighth District decision, State v. Hughes, 2019-Ohio-1000 (8th Dist.). As the Supreme Court described it, the first-reported opinion in Hughes was joined by no other judge, while a separate opinion concurring in judgment represented the panel's majority holding. The court treated the dismissal as a strategic choice and a legal miscalculation, not a due process violation.
The opinion also notes that after Brasher the General Assembly amended R.C. 2930.19 to clarify that victims may pursue a direct appeal under Marsy's Law and to set procedures for doing so. Whatever those procedures require, Barnes holds that a victim appealing a denial of restitution is subject to App.R. 4(A) and 5(A), with no delayed-appeal fallback.
Practice pointers
- Treat the App.R. 4(A) deadline as final unless your client is a defendant. App.R. 5(A) is limited by its text to defendants in criminal, delinquency, and serious youthful offender proceedings. Victims, prosecutors, and civil litigants have no comparable motion for leave.
- Do not dismiss a timely appeal to change vehicles. When the correct remedy is unsettled, the court identified the safer path: keep the direct appeal pending while pursuing the writ, and seek discretionary review if the appeal is later dismissed.
- Count the votes in a fractured opinion before relying on it. The first opinion printed may not be the holding. Identify which writing commands a panel majority before advising a client to abandon a remedy.
- Expect res judicata arguments after a voluntary dismissal. The court left the question undecided but called the argument strong. Dismissing an appeal may forfeit the issue entirely.
- Ground state constitutional arguments in text and history. The court rejected an Article I, Section 2 theory that offered no argument from the provision's language or history. A request to change the rules themselves belongs in the rulemaking process, not a merit brief.
The opinion
Supreme Court of Ohio · Decided July 22, 2026
State v. Barnes, 2026-Ohio-2750
This analysis is published for Ohio attorneys and is not legal advice. It reflects the opinion as released; slip opinions are subject to formal revision before publication in the Ohio Official Reports. Appellate Ohio was not counsel in this case.