State v. Barnes (2026-Ohio-2750): Marsy’s Law Victims Must Follow App.R. 4(A) and Cannot Use App.R. 5(A) Delayed Appeals Reserved to Defendants

I. Introduction

State v. Barnes, Slip Opinion No. 2026-Ohio-2750 (Ohio July 22, 2026), addresses a narrow but consequential procedural question at the intersection of Marsy’s Law (Ohio Const., art. I, § 10a) and Ohio appellate procedure: whether a crime victim may pursue a delayed appeal to challenge a trial court’s failure to award restitution.

The appellant, M.S., was the theft victim. The appellee, Frederick Barnes, pleaded guilty in 2018. Although the State requested restitution at sentencing and M.S. supported the request, the trial court’s oral pronouncement and sentencing entry omitted restitution. M.S. timely filed a direct appeal but voluntarily dismissed it in 2019. After years of collateral litigation (including mandamus and further appellate proceedings), she attempted—about five years later—to file a delayed appeal from the 2018 sentencing entry. The Eighth District denied leave, citing the text of App.R. 5(A), which by its terms authorizes delayed appeals only for a defendant.

The Ohio Supreme Court affirmed, holding that Marsy’s Law and constitutional due process/equal protection do not require expanding App.R. 5(A) by judicial decision to include victims.

II. Summary of the Opinion

  • Holding: A crime victim seeking to appeal the denial of restitution is subject to the procedural regulations in App.R. 4(A) and App.R. 5(A); because App.R. 5(A) authorizes delayed appeals only for a defendant, a victim may not obtain leave to file a delayed appeal. The court of appeals properly denied M.S.’s motion.
  • Rulemaking principle: Courts may not “judicially rewrite” the appellate rules in an individual case; amendments must proceed through the Ohio Constitution’s rulemaking process under Article IV, Section 5(B).
  • Constitutional claims rejected: The court found no “clear incompatibility” between the Constitutions and App.R. 4(A)/5(A) and rejected asserted rights to delayed appeal under Marsy’s Law, due process, and equal protection.

Vote/joinder note: Justice Brunner joined the court’s opinion except as to Part II(B) (the constitutional-challenge analysis).

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Victims’ Marsy’s Law enforcement path and the “direct appeal vs. writ” uncertainty

  • State v. Hughes, 2019-Ohio-1000 (8th Dist.): The opinion recounts Hughes as a fractured appellate decision that contributed to confusion about whether victims may pursue direct appeals in criminal cases. Judge Jones would have required an extraordinary writ; Judge Sheehan (whose view the Supreme Court characterizes as the panel’s majority holding) treated the issue as final appealable order analysis under R.C. 2505.02(B).
    Influence here: Hughes is not used as controlling authority; it is used to explain M.S.’s strategic decision to dismiss her direct appeal and pursue mandamus, and to frame why that strategic choice does not create a constitutional entitlement to a delayed appeal years later.
  • State ex rel. [M.S.] v. Russo, 2019-Ohio-4983: The Eighth District partially granted mandamus and directed the trial judge to determine entitlement/amount of restitution.
    Influence here: The Supreme Court treats this as part of the procedural saga, not as a basis to expand delayed-appeal doctrine.
  • State v. Brasher, 2022-Ohio-4703: A three-justice plurality (with an additional justice agreeing that victims may file direct appeals from restitution denials) concluded that a direct appeal is the appropriate remedy for a victim challenging a failure to award restitution under Marsy’s Law.
    Influence here: Brasher supports the premise that M.S. had an avenue—direct appeal—but it does not suggest an unlimited time to appeal or a victim’s right to delayed appeal. The court distinguishes between a right to appeal and a right to delayed appeal.
  • State v. Barnes, 2024-Ohio-2184, ¶ 11-12, 20, 27 (8th Dist.) and 2024-Ohio-4713: The Eighth District vacated the order setting a restitution hearing, reasoning (in part) that M.S. forfeited her challenge by dismissing her direct appeal; the Ohio Supreme Court declined jurisdiction.
    Influence here: These decisions underscore the practical consequences of abandoning direct appellate review and reinforce the Barnes court’s focus on procedural finality.
  • Legislative context: 2022 Sub.H.B. No. 343 (effective Apr. 6, 2023), amending R.C. 2930.19: The court notes the General Assembly later clarified that victims may pursue a direct appeal and established procedures.
    Influence here: The amendments highlight that victims’ appellate mechanisms can be clarified by legislation and rulemaking—supporting the court’s insistence that expanding delayed appeals is a policy choice for the rulemaking process, not ad hoc adjudication.

2. Finality, res judicata, and procedural default principles

  • State v. Perry, 10 Ohio St.2d 175, 180 (1967) and AJZ's Hauling, L.L.C. v. TruNorth Warranty Programs of N. Am., 2023-Ohio-3097, ¶ 15: Cited for the res judicata principle that final judgments bar claims raised or that could have been raised.
    Influence here: The court flags (without deciding) a “strong argument” that M.S.’s voluntary dismissal of her direct appeal could trigger res judicata against later efforts.
  • State v. Shifflett, 1994 Ohio App. LEXIS 489, *3-4 (2d Dist. Feb. 9, 1994): Cited as contrary authority allowing a defendant who dismissed a direct appeal to pursue a delayed appeal.
    Influence here: The court uses Shifflett to show the res judicata question is unsettled, then deliberately avoids resolving it because App.R. 5(A)’s text alone defeats M.S.’s request.

3. Constitutional interpretation methodology and judicial restraint

  • Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty. Commrs., 1 Ohio St. 77, 82-83 (1852): Quoted for the principle that courts refuse to execute a law only upon “clear incompatibility” with the Constitution.
    Influence here: Sets a high bar for striking down procedural rules (App.R. 4(A), App.R. 5(A)) on constitutional grounds.
  • State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 40 and State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Columbus Police Dept., 2025-Ohio-5243, ¶ 17: Cited for original public meaning and text-first constitutional interpretation.
    Influence here: Drives the court’s refusal to infer an unwritten “delayed appeal” right from Marsy’s Law’s text.
  • Centerville v. Knab, 2020-Ohio-5219, ¶ 22 and State v. Smith, 2020-Ohio-4441, ¶ 29: Used to emphasize voter-understanding and “history and traditions” when construing voter-adopted constitutional text.
    Influence here: Supports the conclusion that voters would not have understood Marsy’s Law as creating an unlimited-time appeal right in a legal system where timeliness rules for appeals were ubiquitous.

4. Due process: timeliness and forfeiture of constitutional rights

  • Yakus v. United States, 321 U.S. 414, 444 (1944): Quoted for the familiar rule that constitutional rights can be forfeited by failing to timely assert them.
    Influence here: Supports the court’s core theme that procedural rules may channel—even constrain—the exercise of constitutional rights, including Marsy’s Law rights.
  • Taylor v. Illinois, 484 U.S. 400, 411 (1988): Cited for the proposition that even explicit constitutional trial rights (there, compulsory process) can be conditioned on procedural rules.
    Influence here: Reinforces that Marsy’s Law rights can be subject to ordinary procedural requirements like App.R. 4(A)’s 30-day deadline.

5. Equal protection: tiers of scrutiny and rational basis for distinguishing victims from defendants

  • Ferguson v. State, 2017-Ohio-7844, ¶ 31: Cited for the equal-protection framework and rational-basis standard where no suspect class/fundamental right is implicated.
  • State v. O'Malley, 2022-Ohio-3207, ¶ 22 and Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 64: Cited regarding strict scrutiny for suspect classes/fundamental rights.
  • State v. Thompson, 2002-Ohio-2124, ¶ 13 (lead opinion) and United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000): Cited for the “narrowly tailored to serve a compelling state interest” formulation.
  • San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28, 33-34 (1973) and Ondo v. Cleveland, 795 F.3d 597, 609 (6th Cir. 2015): Used to define suspect classes and fundamental rights under federal law; victims are not a suspect class, and there is no fundamental right to delayed appeal.
  • Am. Assn. of Univ. Professors, Central State Univ. Chapter v. Central State Univ., 1999-Ohio-248, ¶ 11 and Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993): Cited for the deferential rational-basis standard (“any reasonably conceivable state of facts”).
    Influence here: Supports the court’s conclusion that App.R. 5(A)’s limitation to defendants is rational because criminal defendants face loss of liberty (and sometimes death), whereas victims do not.
  • Ohio equal protection analog: Kinney v. Kaiser Aluminum & Chem. Corp., 41 Ohio St.2d 120, 123 (1975): Cited for the long-standing practice of treating Ohio’s and federal equal protection guarantees as “essentially identical.”
  • Potential doctrinal reconsideration (declined here): Stolz v. J & B Steel Erectors, Inc., 2018-Ohio-5088, ¶ 28-44 (Fischer, J., concurring) and Sherman v. Ohio Pub. Emps. Retirement Sys., 2020-Ohio-4960, ¶ 40, fn. 5 (DeWine, J., dissenting): Acknowledge arguments that Ohio’s equal protection clause may differ from the federal clause, but the court declines to revisit methodology because M.S. did not present text-and-history arguments.
    Influence here: The court emphasizes disciplined constitutional interpretation: it will not invent a “hybrid” scrutiny framework untethered to Ohio’s constitutional text and history.

B. Legal Reasoning

1. The dispositive procedural rule: App.R. 5(A) is textually limited to “a defendant”

The court begins with the basic structure of Ohio appellate timing: App.R. 4(A)(1) requires filing a notice of appeal within 30 days of a final order. Once that 30-day window closes, the only rule-based path to an out-of-time appeal is App.R. 5(A). But App.R. 5(A)(1) expressly provides that “an appeal may be taken by a defendant with leave of the court” in criminal and specified juvenile proceedings.

Because M.S. is a victim—not a defendant—the Eighth District was bound by the text of App.R. 5(A) to deny leave. The Supreme Court frames this as an ordinary, “straightforward” application of a clear procedural rule.

2. Separation of powers within Ohio’s rulemaking architecture: courts cannot amend rules through case law

A major doctrinal contribution of Barnes is its insistence that even if there are “good reasons” to allow delayed victim appeals, courts cannot accomplish that by “judicial rewrite.” The opinion explains Ohio’s constitutionally specified rulemaking process:

  • Article IV, Section 5(B) grants the Supreme Court rulemaking authority over “practice and procedure,” subject to the limitation that rules may not “abridge, enlarge, or modify any substantive right.”
  • Proposed rules/amendments must be filed with the General Assembly on a set schedule and take effect unless disapproved by concurrent resolution.
  • Institutional mechanisms (including the Commission on the Rules of Practice and Procedure and public comment) channel rule change.

This structural discussion does double work: it answers M.S.’s remedial request (“rewrite App.R. 5”) and frames the court’s restraint as constitutionally compelled, not merely discretionary.

3. Marsy’s Law: a constitutional right to appeal is not a right to an untimely appeal

The court accepts that Marsy’s Law provides meaningful enforceable rights, including restitution (art. I, § 10a(A)(7)) and a mechanism to seek appellate intervention (art. I, § 10a(B)). But it refuses to read into Marsy’s Law an implied right to delayed appeal.

Two key interpretive moves drive the analysis:

  1. Text and structure: The “no less vigorous” protection clause appears in § 10a(A) and attaches to the enumerated rights that follow. The right to seek appellate review is located in § 10a(B). Therefore, the court holds that the “no less vigorous” clause does not itself require parity with defendants regarding delayed appeals.
  2. Original public meaning against a background of ubiquitous timeliness rules: Given that timeliness requirements for appeals were standard when voters adopted Marsy’s Law, the court finds it “implausible” that voters silently created an open-ended, unregulated ability to appeal “at any point in the future.”

4. Due process: opportunity existed; it was relinquished

M.S. argued she never received a “meaningful opportunity to be heard.” The court’s response is categorical: she had that opportunity through her original direct appeal and then voluntarily dismissed it. Confusion arising from the formatting and fractured nature of State v. Hughes, 2019-Ohio-1000 (8th Dist.) does not convert her litigation choice into a due process violation.

The court also rejects the state constitutional “open courts” argument under Article I, Section 16 because it was not developed independently and does not justify bypassing App.R. 4(A)/5(A).

5. Equal protection: rational reasons to reserve delayed appeals for defendants

Applying rational-basis review, the court identifies a legitimate rationale: defendants face severe deprivations from criminal judgments—most notably loss of liberty, and in rare cases death—justifying extra procedural latitude. Victims, while harmed, are not subject to state-imposed incarceration based on the judgment they seek to appeal. The court analogizes victims to other litigants (including prosecutors and civil parties) who also lack delayed-appeal leave under App.R. 5(A).

On the Ohio constitutional claim under Article I, Section 2, the court declines to adopt a “hybrid” approach (retaining tiers of scrutiny but treating restitution and “meaningful appellate review” as fundamental), emphasizing the absence of text-and-history support for the requested methodological shift.

C. Impact

1. Immediate doctrinal impact: timeliness governs Marsy’s Law restitution appeals

Barnes makes explicit that even when Marsy’s Law authorizes a victim to seek appellate review of a restitution denial, the victim must comply with ordinary appellate deadlines under App.R. 4(A). If the 30-day window closes, App.R. 5(A) does not provide a safety valve for victims.

2. Litigation strategy signal: preserve direct appeal; do not rely on later procedural “fixes”

The opinion functions as a cautionary instruction: where the procedural vehicle is uncertain, litigants should protect their position through available routes rather than abandon direct review. The court suggests that maintaining the direct appeal while also pursuing extraordinary relief (e.g., mandamus) would have preserved options.

3. Institutional impact: changes must come through rulemaking (and potentially legislation), not adjudication

The court channels future reform efforts toward: (a) the Supreme Court’s formal rulemaking process under Article IV, Section 5(B), and/or (b) legislative choices that interact with Marsy’s Law procedures (as reflected in the amendments to R.C. 2930.19 via 2022 Sub.H.B. No. 343). This sharply limits “creative” case-by-case expansion of victim appellate rights beyond the text of the rules.

4. Open question preserved: res judicata effect of voluntary dismissal on later delayed-appeal attempts

The court pointedly does not resolve whether res judicata bars a delayed appeal after a voluntary dismissal of a direct appeal. That question may reemerge, especially in defendant cases (where App.R. 5(A) applies) and in disputes about finality and waiver.

IV. Complex Concepts Simplified

  • Restitution: Money a defendant may be ordered to pay a victim to compensate for economic loss caused by the crime.
  • Marsy’s Law (Ohio Const., art. I, § 10a): A constitutional amendment granting victims enumerated rights (including restitution) and a mechanism to seek appellate review when relief is denied.
  • Direct appeal (App.R. 4(A)): The ordinary appeal filed within 30 days after a final order is entered.
  • Delayed appeal (App.R. 5(A)): A request to appeal after the 30-day deadline, available only where the rule authorizes it. In Ohio criminal cases, App.R. 5(A) authorizes it only for “a defendant.”
  • Extraordinary writ / mandamus: A separate legal action asking an appellate court to order a public official/judge to perform a legal duty. It is not a substitute for every missed appeal.
  • Final appealable order (R.C. 2505.02(B)): Not every trial-court ruling can be appealed immediately; some are interlocutory (e.g., many discovery orders).
  • Res judicata: A doctrine promoting finality—once a matter has been (or could have been) litigated and a final judgment entered, it cannot be relitigated later.
  • Rational-basis review: The most deferential equal-protection standard; a classification stands if any reasonably conceivable facts provide a rational reason for it.
  • “Judicial rewrite” vs. rulemaking: Courts interpret and apply rules in cases; changing the text of procedural rules requires the constitutional rulemaking process involving both the Supreme Court and the General Assembly.
  • Pyrrhic victory: Winning a legal point but obtaining no practical benefit (here, even if App.R. 5(A) were unconstitutional, the remedy might be non-enforcement rather than expansion).

V. Conclusion

State v. Barnes (2026-Ohio-2750) establishes a clear procedural boundary for Marsy’s Law litigation: while victims may have a constitutional right to seek appellate review of certain denials (including restitution), that right operates within ordinary appellate timing rules. Victims must file timely appeals under App.R. 4(A); they cannot invoke App.R. 5(A) delayed-appeal leave reserved to defendants.

The opinion is equally significant for what it refuses to do: it declines to constitutionalize a delayed-appeal remedy for victims and insists that any expansion of delayed appeals must come through Ohio’s formal rulemaking process, not through adjudicative “rewriting” of procedural rules in a single case.