The Supreme Court of Ohio ruled today that in juvenile cases, if the state fails to exercise its right to pursue an interlocutory appeal (an appeal prior to entry of final judgment) of an adverse ruling by the trial court, and the defendant is subsequently acquitted, the state has no right to pursue a post-acquittal appeal of that ruling under R.C. 2945.67.

The court’s 5-2 decision, which affirmed a decision of the Eighth District Court of Appeals, was authored by Chief Justice Maureen O’Connor.

The state alleged that a juvenile, identified by the initials M.M., was delinquent because he had engaged in conduct that, if committed by an adult, would have constituted rape and gross sexual imposition. The charges were based on M.M.’s alleged conduct with four children who were between the ages of two and eight. Before trial, the state filed a notice of its intent to introduce testimony of a social worker at trial in which she would recount out-of-court statements the alleged victims had made to her about the alleged abuse.

Defense counsel filed a motion to suppress testimony by the social worker about what the children told her as  impermissible “hearsay” evidence.  A juvenile court magistrate granted he motion to suppress, which in effect limited the state’s case to presenting direct testimony by the three oldest victims.  The state did not ask the juvenile court judge to set aside the magistrate’s evidentiary ruling even though it had the right to do so no later than ten days after the adverse order was issued.  The state also failed to exercise its right to immediately appeal the magistrate’s evidentiary ruling to the Eighth District Court of Appeals, pursuant to Juv.R. 22(F).  Instead, the case proceeded to trial.  

The state presented testimony by the three children, but was unable to elicit testimony from them that described any incident of sexual abuse with sufficient particularity to support a conviction for the charged offenses. For that reason, the juvenile court granted M.M.’s motion for a judgment of acquittal, and dismissed all charges against him.

The state subsequently filed a motion with the Eighth District for leave to pursue a discretionary appeal under R.C. 2945.67 for the purpose of challenging the juvenile court’s legal reasoning in granting M.M.’s pre-trial, suppression motion, which excluded the social worker’s testimony about the alleged victims’ out-of-court statements to her.  R.C. 2945.67 authorizes the state, with leave of an appellate court, to pursue a post-acquittal appeal in a criminal or juvenile delinquency case in which the state may not seek to overturn the trial court’s final judgment of acquittal, but may challenge the legal correctness of some lower courts’ rulings on an issue or issues of law that it addressed in the course of arriving at its final judgment.

Although leave to appeal was initially granted, after briefing and oral argument, the court of appeals determined that leave to appeal had been improvidently granted and therefore dismissed the appeal.  The state sought and was granted Supreme Court review of the Eighth District’s ruling.

Writing for the court in today’s decision, Chief Justice O’Connor noted, as a threshold matter, that the state erred by arguing  that the Supreme Court of Ohio’s 1990 decision in State v. Bistricky had conferred on the state any substantive right to appeal in criminal cases.  Instead, she explained, the state’s substantive rights to appeal derive from statutory authority, which is enacted pursuant to a constitutional grant.    

She wrote: “The Ohio Constitution confers jurisdiction upon the courts of appeals to ‘review and affirm, modify, or reverse’ a lower court’s judgment or final order. ...  But the General Assembly —and the General Assembly alone — has the authority to provide by law the method of exercising that jurisdiction.  In an exercise of that authority, the General Assembly enacted R.C. 2945.67, which grants the state limited rights to appeal in criminal and juvenile cases. ... Absent R.C. 2945.67, the state has no substantive right to appeal trial court decisions in criminal cases.”

“R.C. 2945.67 provides: ‘(A) A prosecuting attorney ... may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants ...  a motion to suppress evidence ... and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case.’”

“First, the General Assembly defined the class of rulings of which the state may, without leave of court, obtain appellate review.  This class includes a decision that grants a motion to suppress, as here.   In the same sentence, the General Assembly provided for discretionary appeals of ‘any other decision.’  Thus, R.C. 2945.67(A) makes clear that the state’s right to a discretionary appeal is exclusive of any absolute right to appeal.  ... The plain language of R.C. 2945.67(A) refutes the state’s position that it has the right to seek leave to appeal ‘any decision,’ including one that it already has a right to appeal without seeking leave. An attempt to fuse the two renders the words of the statute meaningless. ... (T)here is no statutory authority — and therefore, no authority whatsoever — for a discretionary appeal when the state has the right to appeal without regard to the discretion of the appellate court.” 

“Whatever right to an appeal the state may have is limited to what is granted in the statute.  Here, that right is found in the first clause of R.C. 2945.67(A). The second clause of the statute grants a discretionary appeal for any ‘other’ decisions.  Both clauses cannot apply to the same decision.”

After explaining the two distinct rights to appeal given to the state by R.C. 2945.67(A), Chief Justice O’Connor explained that in order to exercise any substantive right to appeal, the state must comply with the relevant rules of procedure. And in this case, she indicated that the state failed to pursue its sole vehicle for appealing the suppression order because it failed to file an interlocutory appeal of right within seven days after that order was issued, as required by Juvenile Rule 22(F). Accordingly, she concluded, the Eighth District was correct in holding that it lacked jurisdiction to hear or decide a post-acquittal appeal of that issue.

Chief Justice O’Connor’s opinion was joined by Justices Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French and William M. O’Neill. Justices Paul E. Pfeifer and Terrence O’Donnell dissented, stating that they would dismiss the state’s appeal as having been improvidently accepted.

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2012-0250.  In re M.M., Slip Opinion No. 2013-Ohio-1495.
Cuyahoga App. No. 96776, 2011-Ohio-6758.  Judgment affirmed.
O’Connor, C.J., and Lanzinger, Kennedy, French, and O’Neill, JJ., concur.
Pfeifer and O’Donnell, JJ., dissent and would dismiss the appeal as having been improvidently accepted.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-1495.pdf

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