[Cite as In re G.W., 2020-Ohio-300.]




                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 IN RE: G.W.                                 :    Appellate Court Case No. 28580
                                             :
                                             :
                                             :    Trial Court Case No. A-2019-003569
                                             :
                                             :
                                             :    [Civil Appeal from Juvenile Court]
                                             :



                            DECISION AND FINAL JUDGMENT ENTRY
                                      January 23, 2020

PER CURIAM:

                The State of Ohio, through the prosecuting attorney, seeks leave to appeal.

 The State asks this court to review the juvenile court’s order denying its motion to access

 recordings of phone calls by G.W. while in a juvenile detention center. Because the appeal

 was not properly instituted, we lack jurisdiction to consider it.

                The State filed a timely notice of appeal from the juvenile court’s order on

 October 17, 2019. Four days later, on October 21, 2019, the State filed a motion for leave

 to appeal. Because the notice and motion were not filed “concurrently” as required by

 App.R. 5(C) to invoke our jurisdiction, we ordered the parties to brief the issue. The State
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filed a response on December 6, 2019. Appellee, G.W., did not file a response to our order

or to the State’s motion for leave.

             The State here is seeking a discretionary appeal under R.C. 2945.67. “In this

context, the state has a limited right to appeal and must seek leave to appeal.” State ex

rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147 Ohio St.3d 25, 2016-Ohio-1601,

59 N.E.3d 1260, ¶ 12. Discretionary appeals are governed by App.R. 5(C), which provides:

      When leave is sought by the prosecution from the court of appeals to appeal

      an order of the trial court, a motion for leave to appeal shall be filed with the

      court of appeals within thirty days from the entry of the order sought to be

      appealed (or, if that order is not a final order, within thirty days of the final order

      into which it merges) and shall set forth the errors that the movant claims

      occurred in the proceedings of the trial court. The motion shall be

      accompanied by affidavits, or by the parts of the record upon which the movant

      relies, to show the probability that the errors claimed did in fact occur, and by

      a brief or memorandum of law in support of the movant's claims. Concurrently

      with the filing of the motion, the movant shall file with the clerk of the trial court

      a notice of appeal in the form prescribed by App. R. 3 and file a copy of the

      notice of appeal in the court of appeals.

(Emphasis added). App.R. 5(C).

             Here, the State’s appeal does not satisfy App.R. 5(C), in that the motion and

the notice of appeal were not filed concurrently. See State v. Mitchell, 6th Dist. Lucas No.

L-03-1270, 2004-Ohio-2460, ¶ 9, citing State v. Fisher, 35 Ohio St.3d 22, 25, 517 N.E.2d

911 (1988) (the State’s motion for leave to appeal “must be filed concurrently with the notice
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of appeal”). The Supreme Court of Ohio has held that “[t]he state is strictly held to the

requirements of App.R. 5 when appealing by leave of court.” T.L.M. at ¶ 12. Where “the

state [does] not comply with the requirements of App.R. 5, the court of appeals patently and

unambiguously lack[s] jurisdiction over the state’s appeal.” State ex rel. Steffen v. Court of

Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 28.

            In its response, the State acknowledges the error, but asks this court to

nonetheless grant leave to appeal. The State asserts that the four day “delay between the

two filings was reasonable” and they should be considered concurrent. The State argues

that it “sufficiently complied with the requirements of App.R. 5(C).”

            As to the requirement of concurrency, the State asserts that it could not file the

notice of appeal and the motion for leave at the same time in the literal sense, because a

notice of appeal is filed with the trial court clerk, and a motion for leave is filed with this

court’s clerk, and these clerks’ offices are in different buildings. The State asserts that

“some reasonable period of time must be allowed for.” We disagree that a “reasonable

period of time” is the appropriate standard.

            This court considers the concurrency requirement of App.R. 5(C) satisfied

when the notice of appeal and motion for leave are filed on the same day. See, e.g., State

v. Powell, 2d Dist. Montgomery No. 28108 (Oct. 10, 2018) (accepting State’s discretionary

appeal where notice of appeal and motion for leave were filed on the same day, at 1:53

p.m. and 3:50 p.m., respectively); see also State v. Ways, 2d Dist. Montgomery No. 25214,

2013-Ohio-293, ¶ 17-18 (discussing “concurrent” sentences as starting/ending “on the

same day”). We are unaware of any cases that require the two documents to be filed at

the same instant, or, conversely, that allow them to be filed within a reasonable time of each
                                                                                               4



other. We decline to adopt what would be an unworkable “reasonable time” rule for the

filing of these jurisdictional documents.

             We also decline to adopt a “sufficient compliance” standard for App.R. 5(C).

As noted above, “[t]he state is strictly held to the requirements of App.R. 5 when appealing

by leave of court.” (Emphasis added.) T.L.M. at ¶ 12. Strict compliance is required

because of the nature of appeals by the State. The Supreme Court of Ohio “has long

observed that ‘[u]nless permitted by statute, the weight of authority in this country is against

the right of the government to bring error in a criminal case.’ ” State v. Arnett, 22 Ohio St.3d

186, 188, 489 N.E.2d 284 (1986) (Celebrezze, C.J., dissenting), quoting State v. Simmons,

49 Ohio St. 305, 307, 31 N.E. 34 (1892). R.C. 2945.67, enacted to permit such appeals

under certain circumstances, is an exception to that rule. Id. Such exceptions must be

strictly construed. State v. Powers, 10th Dist. Franklin No. 15AP-422, 2015-Ohio-5124, ¶

9, citing State v. Bassham, 94 Ohio St.3d 269, 271, 762 N.E.2d 963 (2002) and State v.

Caltrider, 43 Ohio St.2d 157, 331 N.E.2d 710 (1975), paragraph one of the syllabus.

             We therefore strictly construe the requirements of App.R. 5(C) and will require

the State to satisfy each requirement when seeking leave to appeal. Here, the State did

not file the notice of appeal and motion for leave concurrently, and has not satisfied that

requirement. As a result, our jurisdiction has not been properly invoked. State v. Jones,

2017-Ohio-5758, 94 N.E.3d 971, ¶ 6 (2d Dist.), citing T.L.M. at ¶ 12, 14 (“Strict compliance

with App.R. 5(C) is a jurisdictional prerequisite for a State’s appeal by leave of court”).

              We OVERRULE and DISMISS the State’s motion for leave to appeal. T.L.M.

at ¶ 14 (“the court of appeals never obtained jurisdiction to decide whether the state could

appeal, because the state did not strictly adhere to the requirements of App.R. 5”). This
                                                                                       5



matter, Montgomery Appellate Case No. 28580, is DISMISSED. See Mitchell at ¶ 9

(“Absent full compliance the appeal must be dismissed”).

              Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the

Montgomery County Court of Appeals shall immediately serve notice of this judgment upon

all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R.

24.

      SO ORDERED.

                                             MARY E. DONOVAN, Judge




                                             MICHAEL T. HALL, Judge




                                             JEFFREY M. WELBAUM, Judge


Copies to:

Andrew French
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Appellant, State of Ohio

Bradley Baldwin
854 E. Franklin Street
Dayton, Ohio 45459
Attorney for Appellee, G.W.

Kimberly Melchor
214 W. Monument Avenue
Dayton, Ohio 45402
Guardian ad litem
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Hon. Anthony Capizzi
Montgomery County Juvenile Court
380 W. Second Street
Dayton, Ohio 45422
CA3/KY
