[Cite as In re M.M., 135 Ohio St.3d 375, 2013-Ohio-1495.] 

IN RE M.M.

[Cite as In re M.M., 135 Ohio St.3d 375, 2013-Ohio-1495.] 

Appellate procedure—State’s right to appeal after acquittal—R.C. 2945.67(A)—

Juvenile cases—State may not pursue discretionary appeal when it fails to 

take an appeal as of right in accordance with applicable rules of 

procedure.

(No. 2012-0250—Submitted February 5, 2013—Decided April 17, 2013.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 96776, 2011-Ohio-6758. 

__________________ 

SYLLABUS OF THE COURT

In juvenile cases, the state is not authorized to pursue a discretionary appeal when 

it fails to take an appeal as of right in accordance with the applicable rules 

of procedure. 

__________________ 

 O’CONNOR, C.J. 

{¶ 1} This appeal presents an important issue of public interest, that is, 

the scope of the state’s right to appeal in juvenile cases. For the reasons 

explained, we hold that in juvenile cases, the state is not authorized to pursue a 

discretionary appeal when it fails to take an appeal as of right in accordance with 

the applicable rules of procedure. 

{¶ 2} The Eighth District reached the correct result in this case, but it did 

so by relying on a dissent in State v. Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284 

(1986). In contrast, appellant, the state of Ohio, relies on our majority opinion in 

Arnett, as well as our later decision in State v. Bistricky, 51 Ohio St.3d 157, 555 

N.E.2d 644 (1990), which cited Arnett with approval. Id. at 159. This opinion 
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will affirm the judgment of the court of appeals, limit Arnett to its facts, and 

explain the scope of Bistricky, thereby providing clarity to a somewhat confusing 

area. 

FACTS AND PROCEDURAL HISTORY

The charges 

{¶ 3} On September 29, 2009, the state filed seven complaints against 

appellee, M.M., a juvenile, alleging that he was delinquent for engaging in 

conduct that, if he had been an adult, would have constituted rape and gross 

sexual imposition. The alleged victims were siblings, M.J., A.R., K.R., and C.R. 

The complaints each charged that the conduct had occurred between October 

2008 and January 2009, when M.M. was 12 years old and the alleged victims 

were 8, 6, 4, and 2, respectively. 

Pretrial proceedings 

{¶ 4} On April 22, 2010, the state filed a notice of its intention to 

introduce statements that M.J. and A.R. made to Lauren Krol, a social worker for 

the Cleveland Police Department Sex Crimes and Child Abuse Unit. The state 

argued that the statements are admissible under Evid.R. 807,1

 which permits 

 

1. Evid.R. 807(A) provides: 

An out-of-court statement made by a child who is under twelve years of 

age at the time of trial or hearing describing any sexual act performed by, with, 

or on the child or describing any act of physical violence directed against the 

child is not excluded as hearsay under Evid.R. 802 if all of the following apply: 

(1) The court finds that the totality of the circumstances surrounding 

the making of the statement provides particularized guarantees of 

trustworthiness that make the statement at least as reliable as statements 

admitted pursuant to Evid.R. 803 and 804. The circumstances must establish that 

the child was particularly likely to be telling the truth when the statement was 

made and that the test of cross-examination would add little to the reliability of 

the statement. In making its determination of the reliability of the statement, the 

court shall consider all of the circumstances surrounding the making of the 

statement, including but not limited to spontaneity, the internal consistency of 

the statement, the mental state of the child, the child's motive or lack of motive 

to fabricate, the child's use of terminology unexpected of a child of similar age, 
January Term, 2013 

3 

admission of certain hearsay statements made by child victims about physical or 

sexual abuse. Id. 

{¶ 5} On October 28, 2010, a magistrate held an evidentiary hearing on a 

motion in limine filed by M.M., which sought exclusion of all out-of-court 

statements made by any of the alleged victims. 

{¶ 6} The magistrate determined that M.J., A.R., and K.R. were 

competent to testify at trial but that C.R., who was two years old at the time of the 

alleged conduct, was not competent to testify. The magistrate further concluded 

that because M.J. and A.R. were competent to testify at trial, Evid.R. 807 does not 

permit admission of their statements, as the rule excludes such statements as 

hearsay when the child’s testimony is reasonably obtainable. Evid.R. 807(A)(2). 

For that reason, the magistrate determined that the state was precluded from 

introducing at trial “any statements by the alleged victims.” 

{¶ 7} The state did not move to set aside the magistrate’s decision even 

though it had the right to do so no later than ten days after the adverse order was 

issued. Juv.R. 40(D)(2)(b). The state also failed to perfect an interlocutory appeal 

 

the means by which the statement was elicited, and the lapse of time between 

the act and the statement. In making this determination, the court shall not 

consider whether there is independent proof of the sexual act or act of physical 

violence. 

(2) The child's testimony is not reasonably obtainable by the proponent 

of the statement. 

(3) There is independent proof of the sexual act or act of physical 

violence. 

(4) At least ten days before the trial or hearing, a proponent of the 

statement has notified all other parties in writing of the content of the statement, 

the time and place at which the statement was made, the identity of the witness 

who is to testify about the statement, and the circumstances surrounding the 

statement that are claimed to indicate its trustworthiness. 
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as of right to the Eighth District, pursuant to Juv.R. 22(F). Instead, the case 

proceeded to trial. 

The trial 

{¶ 8} At trial, the state’s primary witnesses were M.J., A.R., K.R., their 

mother, S.H.,2 and the social worker, Krol. 

{¶ 9} S.H. testified that she was dating M.M.’s older brother, and from 

October 2008 to January 2009, she and her children lived with M.M., M.M.’s 

older brother, and their mother. In January 2009, S.H., who was pregnant, 

developed a kidney infection. S.H. testified that while she was lying sick on the 

kitchen floor in need of medical assistance, M.M.’s mother accused her of 

fabricating the pregnancy and illness and “literally walked over [her] body.” As a 

result, S.H. realized that she was not welcome at the house and that she and her 

children needed to move out. S.H. left the house by ambulance; however, her 

children remained. After she was released from the hospital, she went back to the 

home only to collect her children and her belongings. 

{¶ 10} S.H. testified that thereafter, the children disclosed to an adult 

cousin that M.M. had sexually abused them. The cousin told S.H. and she, in 

turn, reported the abuse to the police. As a result, in March 2009, Krol contacted 

S.H. and arranged to interview the children about the allegations. 

{¶ 11} Krol is an intake sex-abuse social worker who investigates 

referrals from the child-abuse hotline, 696-KIDS. She testified that in her 

professional capacity, she investigates allegations of sexual abuse, makes 

referrals, ensures the safety of children, and provides services to the children’s 

families. In response to a defense objection to a question about what the children 

said in the interview, the prosecuting attorney argued that Evid.R. 803(4),3 which 

 

2. S.H. is an adult, but we use her initials in order to protect the identity of her children. 

3. Evid.R. 803 provides: 
January Term, 2013 

5 

provides for admission of statements made for the purpose of medical treatment, 

justified the admission of Krol’s testimony about statements that M.J. and A.R. 

made to her. The trial court overruled the objection and admitted the evidence 

under Evid.R. 803(4), but in doing so, ruled that the statements were admissible 

only to explain Krol’s subsequent actions on behalf of the children. The trial 

court did not consider the children’s out-of-court statements as substantive 

evidence of M.M.’s alleged conduct, thereby adhering to the pretrial ruling with 

regard to admissibility of the statements under Evid.R. 807. Thus, the state’s only 

direct evidence of M.M.’s alleged conduct came from the testimony of the alleged 

victims at trial. 

{¶ 12} But the state’s efforts to elicit coherent testimony from the children 

about the alleged abuse by M.M. were unavailing. The children’s answers on the 

stand were confused and unfocused. 

{¶ 13} M.J. testified that M.M. did “inappropriate things” to his sisters 

and to him, but he could not remember what those things were. A.R. testified that 

M.M. had requested that she do something that she did not want to do, but she 

also testified that she did not know how to describe what M.M. had requested that 

she do. A.R. further testified that she saw M.M. “laying on” M.J., but she was 

unable to describe what M.M. was doing to him. When asked if she saw anything 

 

The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness: 

* * * 

(4) Statements for purposes of medical diagnosis or treatment. 

Statements made for purposes of medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or sensations, or the 

inception or general character of the cause or external source thereof insofar as 

reasonably pertinent to diagnosis or treatment. 
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happen to her sister C.R. while they were living with M.M., K.R. testified that she 

had, but she was not asked any further questions. 

{¶ 14} At the close of the state’s case, the prosecuting attorney renewed 

her argument that the children’s out-of-court statements were admissible under 

Evid.R. 807, contending that even though they were competent to testify, their 

failure to provide answers in court made their testimony “not reasonably 

obtainable” within the meaning of the rule. The trial court was not persuaded and 

did not allow the out-of-court statements into evidence. At that point, the defense 

moved for dismissal pursuant to Juv.R. 29. The court granted the motion, 

dismissing all counts. 

The appeal 

{¶ 15} The state sought leave to file a discretionary appeal, pursuant to 

R.C. 2945.67(A). In doing so, it argued that appellate review of the trial court’s 

exclusion of evidence was permissible under our decision in State v. Bistricky, 51 

Ohio St.3d 157, 555 N.E.2d 644. 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. In re 

M.M., 8th Dist. No. 96776, 2011-Ohio-6758. 

{¶ 16} In so holding, the Eighth District explained that Bistricky permits 

courts of appeals in cases of acquittal to address substantive issues that are 

capable of repetition yet evading review. Id. at ¶ 9. But because an adequate 

interlocutory remedy provided the state with “the means to correct any perceived 

error before the adjudicatory hearing,” the court of appeals concluded that the 

evidentiary issues will not escape future review. Id., citing State v. Arnett, 22 

Ohio St.3d at 188-191, 489 N.E.2d 284 (Celebrezze, C.J., dissenting). 

{¶ 17} We accepted review of the state’s discretionary appeal. In re 

M.M., 131 Ohio St.3d 1539, 2012-Ohio-2025, 966 N.E.2d 893. 

 
January Term, 2013 

7 

QUESTION PRESENTED

{¶ 18} The sole proposition of law before us asserts: 

The right to file an appeal pursuant to State v. Bistricky, 51 

Ohio St.3d 157, 555 N.E.2d 644 (1990), is not waived if the state 

does not pursue an interlocutory remedy under Crim.R. 12(K)4 and 

Juv.R. 22(F). The existence of interlocutory remedies does not 

preclude the state from appealing substantive legal issues involving 

the suppression or exclusion of evidence pursuant to Bistricky. 

{¶ 19} We reject the state’s proposition because it both lacks statutory 

support and ignores a governing rule of procedure. 

ANALYSIS

{¶ 20} As a threshold issue, we must explain that the state’s proposition 

contains a red herring. Contrary to the state’s framing of the issue, Bistricky

cannot and does not answer the question before us, because only a statute, not a 

decision of this court, can imbue the state with a substantive right to appeal. We 

will fully explain the proper place for Bistricky, but first we turn our attention to a 

discussion of the controlling law. 

R.C. 2945.67(A) 

{¶ 21} 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. Ohio Constitution, Article IV, Section 3(B)(2); Cincinnati Polyclinic 

v. Balch, 92 Ohio St. 415, 111 N.E. 159 (1915), paragraph one of the syllabus. 

 

4. Although Crim.R. 12(K) is similar to Juv.R. 22(F), it differs in some respects. Because Juv.R. 

22(F) is the only rule that applies in this case, we disregard the state’s reference to Crim.R. 12(K) 

because any discussion of it would be advisory. 
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But the General Assembly—and the General Assembly alone—has the authority 

to provide by law the method of exercising that jurisdiction. Id. 

{¶ 22} 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. State v. Davidson, 17 Ohio St.3d 132, 134, 477 N.E.2d 1141 

(1985); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 30. 

Absent R.C. 2945.67, the state has no substantive right to appeal trial-court 

decisions in criminal cases.5 See Davidson. 

{¶ 23} 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. 

{¶ 24} The state’s right to appeal certain decisions as of right originates in 

the first clause of R.C. 2945.67(A). Davidson at 134; see also State v. Wallace, 

43 Ohio St.2d 1, 2, 330 N.E.2d 697 (1975). The state’s right to appeal “any other 

decision” by leave of court originates in the second. 

{¶ 25} Notably, the right to appeal by leave of court is defined by 

reference to the right to appeal as a matter of right. First, the General Assembly 

defined the class of rulings of which the state may, without leave of court, obtain 

 

5. We recognize that R.C. 2953.08(B) authorizes the state to appeal felony sentences under limited 

circumstances and that R.C. 2953.14 authorizes the state to appeal adverse decisions from the 

courts of appeals and from this court. Neither of those statutes, however, is implicated here. 
January Term, 2013 

9 

appellate review. This class includes a decision that grants a motion to suppress, 

as here. 

{¶ 26} 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. 

{¶ 27} We reject the state’s unsound position, which would result in the 

state having an option to seek leave to appeal pursuant to R.C. 2945.67(A) 

regarding a suppression ruling either immediately upon the ruling or later after the 

delinquency adjudication. Such a position ignores the General Assembly’s use of 

the word “other” in the statute. State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 

2007-Ohio-2882, 868 N.E.2d 270, ¶ 23 (in construing a statute, a court may not 

delete or add words). Indeed, the proposition implicitly asserts that the state has 

the right to seek leave to appeal “any decision,” including a decision regarding the 

suppression of evidence that is clearly referred to in the first clause of the statute 

as a decision that is appealable by the state “as a matter of right.” Given the 

limited nature of the state’s appellate rights, that assertion cannot be true. 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. We also reject any argument that the word “other” modifies 

the phrase “except the final verdict” because that construction renders the word 

“other” superfluous. 

{¶ 28} So, there 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. Having explained the 

state’s substantive rights to an appeal without seeking leave, we turn our attention 

to the procedure that the state must follow in exercising that right. 
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Juv.R. 22(F) 

{¶ 29} In order to exercise its substantive right to appeal, the state must 

comply with the relevant rules of procedure. Wallace, 43 Ohio St.2d at 2-3, 330 

N.E.2d 697. 

{¶ 30} In Wallace, the state filed a criminal complaint against the 

defendant, charging him with failure to plug unproductive wells in violation of 

R.C. 1509.12. Wallace successfully sought dismissal on the ground that R.C. 

1509.12 was unconstitutional. The state filed a notice of appeal pursuant to 

App.R. 4(B), but failed to comply with the requirement contained in R.C. 2945.67 

to obtain leave to appeal. The court of appeals dismissed the appeal because the 

state’s failure to comply with the statute deprived it of jurisdiction. We affirmed. 

{¶ 31} In so doing, we explained that the state’s substantive right to 

appeal originates only in a legislative grant of authority. Id. at 2. And “the grant 

apparent in R.C. 2945.67 * * * was dependent upon an application for leave to 

appeal being allowed by the appellate court.” Id. Therefore, the statutory 

requirement of obtaining leave, rather than governing procedure, constituted a 

condition precedent necessary to trigger a substantive right. Id. 

{¶ 32} Because the state failed to comply with the statutory requirement 

to seek leave to appeal in Wallace, we held that the court of appeals correctly 

dismissed the appeal for lack of jurisdiction. But we also explained that “[i]n all 

other respects” the procedures outlined by the statute are superseded by the 

requirements of the Appellate Rules. Id. at 2-3. 

{¶ 33} Here too, the state must comply with the controlling procedural 

rule. 

{¶ 34} Juv.R. 22(F) provides: 

In delinquency proceedings the state may take an appeal as 

of right from the granting of a motion to suppress evidence if, in 
January Term, 2013 

11 

addition to filing a notice of appeal, the prosecuting attorney 

certifies that (1) the appeal is not taken for the purpose of delay 

and (2) the granting of the motion has rendered proof available to 

the state so weak in its entirety that any reasonable possibility of 

proving the complaint's allegations has been destroyed. 

Such appeal shall not be allowed unless the notice of appeal 

and the certification by the prosecuting attorney are filed with the 

clerk of the juvenile court within seven days after the date of the 

entry of the judgment or order granting the motion. Any appeal 

which may be taken under this rule shall be diligently prosecuted. 

{¶ 35} Juv.R. 22(F) plainly requires the state to file an interlocutory 

appeal if it wishes to seek review of an adverse decision that suppresses evidence. 

And it must do so, if at all, within seven days of the adverse decision. It further 

requires the prosecutor to certify that the appeal is not taken for purposes of delay 

and that the exclusion of the evidence seriously jeopardizes the state’s case. The 

importance of the certification requirement is obvious, as the proceedings are to 

be halted until the issues of admissibility of evidence are decided on appeal. The 

existence of an interlocutory appeal is necessary to ensure a fair trial for both the 

defendant and the state. It also serves judicial economy. We need not quibble 

over “waiver” or “forfeiture.” We simply hold that the state failed to follow the 

mandatory procedure set forth in Juv.R. 22(F), and it therefore failed to exercise 

its substantive right to appeal. 

Bistricky is inapposite

{¶ 36} The state makes a colorable (but meritless) argument that Bistricky

recognizes an alternative right to appeal. There is undeniable confusion that 

stems from our decisions in Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644; State v. 
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Keeton, 18 Ohio St.3d 379, 481 N.E.2d 629 (1985); and State v. Arnett, 22 Ohio 

St.3d 186, 489 N.E.2d 284. 

{¶ 37} In Bistricky, the state charged five police officers with drug 

trafficking. After the state’s case in chief, the trial court entered a verdict in favor 

of the officers on the basis that they were exempt from prosecution under R.C. 

3719.14(B) (police officer is exempt from drug laws when offer to sell is 

necessary for performance of job-related duty). The state sought leave to appeal 

the exemption determination. In doing so, it expressly conceded that doublejeopardy principles prohibited the retrial of defendants, but asserted that the court 

of appeals could grant leave to appeal the legal basis of the ruling granting 

acquittal. The court of appeals dismissed the appeal for lack of jurisdiction. We 

accepted the state’s discretionary appeal. 

{¶ 38} We construed R.C. 2945.67(A)’s language “any other decision, 

except the final verdict.” Id. at 159. In doing so, we held that this second clause 

of R.C. 2945.67(A) authorizes a court of appeals to review substantive legal 

rulings when such rulings result in a judgment of acquittal, as long as the state 

does not appeal the verdict. Id. at 160. Accordingly, we remanded the case for 

the court of appeals to exercise its discretion to decide whether it would accept the 

state’s appeal. Id. 

{¶ 39} Bistricky simply reaffirmed what we had already held, that “even 

in a case resulting in a judgment of acquittal, the prosecution may appeal from 

evidentiary rulings, such as admissibility of evidence * * *.” Id. at 159, citing

Keeton and Arnett. And we emphasized that Keeton and Arnett expressly 

permitted discretionary appeals of evidentiary rulings on the authority of the “any 

other decision” clause of R.C. 2945.67(A). Bistricky at 159. 

{¶ 40} Because we could discern no distinction between evidentiary 

rulings and rulings on substantive issues of law, we extended Keeton and Arnett

and held that the state also had the right to seek discretionary review of 
January Term, 2013 

13 

nonevidentiary, substantive rulings under the authority of the “any other decision” 

clause of R.C. 2945.67(A). Bistricky at 159-160. 

{¶ 41} But as we will explain, a salient point of Keeton has been lost. 

{¶ 42} In Keeton, three defendants were indicted for robbery in 

connection with their alleged attempt to lure a truck driver into a gambling 

scheme. When the truck driver refused to participate, the defendants allegedly 

stole his money and fled. Police pursued, detained, and searched the three men. 

As a result, an officer removed a roll of four $20 bills from Keeton’s pocket. 

After the defendants were transported to the police department, the officer 

removed additional sums of money from the defendants’ pockets. 

{¶ 43} Because the officer’s trial testimony concerning his custody of the 

money conflicted with his testimony at a preliminary hearing, the trial court 

excluded the money from evidence. As a result, the trial court directed a 

judgment of acquittal, pursuant to Crim.R. 29. The state sought leave to appeal, 

but the court of appeals held that it lacked jurisdiction. We reversed. 

{¶ 44} We held that the appeal was reviewable under the “any other 

decision” clause of R.C. 2945.67(A). 18 Ohio St.3d at 381, 481 N.E.2d 629. But 

we emphasized that “the evidentiary rulings in this case, while they do not fall 

within the provisions of R.C. 2945.67(A) granting an appeal as of right, do fall 

within the language of ‘any other decision, except the final verdict * * *’ in R.C. 

2945.67(A) which permits an appeal to the court of appeals after leave has first 

been obtained.” Id. 

{¶ 45} Moreover, we expressly cautioned that the state must comply with 

the procedural requirements explained in Wallace. Id. Keeton, unlike this case, 

did not involve review of a decision listed in the first clause of R.C. 2945.67(A). 

And Keeton, unlike this case, did not involve a mandatory rule of procedure. Less 

than one year later, we glossed over that important distinction in Arnett, thereby 
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creating precedent for the state’s ill-conceived proposition in this case. And as we 

have already explained, we compounded the problem in Bistricky. 

{¶ 46} In Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284, the defendant was 

charged with murder but claimed self-defense. At trial, over the state’s objection, 

he supported his claim with the expert testimony of a psychiatrist and a 

psychologist, who testified that they had used sodium amytal and hypnosis, 

respectively, to interview Arnett about his mental state during the shooting. Both 

testified that in their opinions, Arnett was intensely fearful. After the jury 

acquitted Arnett, the state sought leave to appeal the admission of the expert 

testimony. The court of appeals dismissed the appeal, holding that the acquittal 

precluded review of the evidentiary rulings. 

{¶ 47} In a brief opinion, composed mostly of Keeton excerpts, we 

reversed. Arnett at 188. The majority explained only that a “comparable situation 

was presented to this court in Keeton.” Arnett at 187. And we used broad 

language in our syllabus: “Pursuant to R.C. 2945.67(A), a court of appeals has 

jurisdiction to grant the state leave to appeal from a decision of the trial court on 

the admissibility of evidence, notwithstanding the acquittal of the defendant.” 

{¶ 48} The decisions in Keeton, Arnett, and Bistricky have caused some 

confusion. Keeton and Bistricky involved appeals under the “any other decision” 

clause of R.C. 2945.67(A), i.e., the state had no absolute right to pursue an 

immediate interlocutory appeal, but had to seek leave from the appellate court. 

Arnett did not make clear which clause of R.C. 2945.67(A) was being applied. 

Bistricky’s discussion of “substantive” versus “evidentiary” rulings and Arnett’s 

lack of clarity made it possible for the state to argue here that this court has

granted the state a right to seek a discretionary appeal even in cases involving the 

first clause of R.C. 2945.67(A). That is not correct. Only the legislature—not a 

court—can imbue a party with a right to appeal, discretionary or otherwise. The 

state’s reference to its “right to file an appeal pursuant to Bistricky” is mistaken, 
January Term, 2013 

15 

as is its discussion of waiver. 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. 

Thus, the state in this case is limited to an immediate interlocutory appeal. 

{¶ 49} Tellingly, the Eighth District in this case cites not Arnett, but its 

dissent. 

{¶ 50} That is why we seize this opportunity to limit Arnett to its facts and 

make clear that a discretionary Bistricky appeal does not exist when the state fails 

to perfect an appeal as a matter of right in accordance with the applicable rules of 

procedure. To hold otherwise would render meaningless the importance of 

procedural compliance when invoking the jurisdiction of the courts of appeal. 

CONCLUSION

{¶ 51} In juvenile cases, the state is not authorized to pursue a 

discretionary appeal when it fails to take an appeal as of right in accordance with 

the applicable rules of procedure. For that reason, the Eighth District Court of 

Appeals properly determined that it lacked jurisdiction to decide the merits of the 

state’s appeal. Accordingly, the court of appeals’ judgment is affirmed. 

Judgment affirmed. 

LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., concur. 

PFEIFER and O’DONNELL, JJ., dissent and would dismiss the appeal as 

having been improvidently accepted. 

__________________ 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Daniel 

T. Van, Assistant Prosecuting Attorney, for appellant. 

Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, 

Assistant Public Defender, for appellee. 
SUPREME COURT OF OHIO

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 Timothy Young, Ohio Public Defender, and Jason Macke, Assistant 

Public Defender, urging affirmance for amicus curiae, Ohio Public Defender. 

_____________________