State v. Jones and the “Probability of Error” Standard under App.R. 5(C)

State v. Jones and the “Probability of Error” Standard under App.R. 5(C)

I. Introduction

In State v. Jones, 2025-Ohio-5389, the Supreme Court of Ohio clarified the meaning and operation of App.R. 5(C) when the prosecution seeks leave to appeal a trial court’s order granting a new trial. The decision does not resolve whether Elwood Jones is entitled to a new trial on the merits, nor does it determine whether the trial court erred in finding Brady violations or in crediting newly discovered scientific evidence. Instead, the case squarely addresses how courts of appeals must evaluate a prosecutor’s motion for leave to appeal under App.R. 5(C).

The central holding: when the State seeks leave to appeal under R.C. 2945.67(A) and App.R. 5(C), the court of appeals must:

  • recognize that the State’s burden is to claim specified trial-court errors; and
  • evaluate whether the State’s motion and supporting materials show “the probability that the errors claimed did in fact occur.”

A court of appeals abuses its discretion if it denies leave to appeal without engaging this “probability of error” inquiry and instead relies solely on a futility rationale—such as concluding that an appeal is pointless because one independent ground for the trial court’s judgment was not challenged.

This commentary examines the factual and procedural background of State v. Jones, summarizes the court’s holdings, analyzes the majority and dissenting opinions, situates the ruling within existing precedent, and explores the broader implications of this new clarification of App.R. 5(C).

II. Factual and Procedural Background

A. The Underlying Crime and Conviction

More than three decades ago, Rhoda Nathan was robbed and murdered in a Hamilton County hotel. The State charged Elwood Jones, a maintenance worker at the hotel, with aggravated felony murder, aggravated burglary, and aggravated robbery. Key trial evidence included:

  • A missing, allegedly one-of-a-kind pendant belonging to Nathan, and a similar pendant found in a toolbox in Jones’s vehicle.
  • Jones’s hand injury on the day of the murder.
  • Medical evidence that the wound became infected with Eikenella corrodens, a bacterium associated with fist-to-mouth or human-bite injuries.
  • Evidence that one of Nathan’s teeth had been knocked out during the assault.

A Hamilton County jury convicted Jones and recommended the death penalty, which the trial court imposed. The First District Court of Appeals affirmed, and the Supreme Court of Ohio affirmed on direct review. See State v. Jones, 2000-Ohio-187 (“Jones I”).

B. Postconviction and Federal Habeas Proceedings

Jones pursued extensive postconviction litigation, including:

  • A state postconviction petition alleging, among other things, Brady violations (suppression of exculpatory or impeachment evidence). The trial court denied relief, and the First District affirmed. The Supreme Court of Ohio declined discretionary review. See State v. Jones, 2000 WL 1886307 (1st Dist.); State v. Jones, 91 Ohio St.3d 1510 (2001).
  • A federal habeas corpus petition, again invoking Brady. The federal district court denied the writ, and the Sixth Circuit affirmed. See Jones v. Bagley, 2010 WL 654287 (S.D. Ohio Feb. 19, 2010) (“Jones II”); Jones v. Bagley, 696 F.3d 475 (6th Cir. 2012) (“Jones III”).

C. Motion for New Trial Based on Newly Discovered Evidence and Brady

In 2019, Jones sought leave to file a motion for new trial based on:

  • Alleged newly discovered evidence; and
  • Prosecutorial misconduct, primarily in the form of Brady violations.

After granting leave, the trial court held an evidentiary hearing at which Jones presented, among other things:

  1. Alternate-suspect evidence: Witness Delores Suggs testified that she had told police that a woman named Linda Reed said her husband had confessed to killing Nathan.
  2. Pendant evidence: Evidence that the State knew Nathan’s pendant was not truly one-of-a-kind, undermining a key link between Jones and the crime.
  3. Hepatitis B evidence: Evidence that Nathan was Hepatitis B positive at the time of her death and that Jones is not. Jones argued that if his hand wound had been caused by contact with Nathan’s mouth, he likely would have contracted Hepatitis B.
  4. Scientific evidence about Eikenella corrodens: Expert testimony from Dr. Steven Burdette contradicting the State’s original expert (Dr. McDonough). Dr. Burdette testified that:
    • Eikenella corrodens is not as rare as previously described.
    • It is not almost exclusively associated with dental plaque.
    • Jones could have acquired the infection by putting his own mouth on his wound, not only by punching someone in the mouth.

D. Trial Court’s Order Granting a New Trial

In December 2022, the Hamilton County Court of Common Pleas granted Jones a new trial. The court identified two separate and independent bases for its ruling:

  1. Brady Violations (suppression of material evidence):
    • The alternate-suspect tip (Suggs/Reed/husband confession).
    • Information that Nathan’s pendant was not a custom, one-of-a-kind piece and that the engagement ring believed by some family members to be incorporated into the pendant was actually in a family member’s possession.
    • Evidence that Nathan had Hepatitis B and that Jones did not.

    The trial court deemed this material under Brady v. Maryland, 373 U.S. 83 (1963), entitling Jones to a new trial.

  2. Newly Discovered Scientific Evidence:

    The court held that Dr. Burdette’s testimony about Eikenella corrodens satisfied the criteria for newly discovered evidence under State v. Petro, 148 Ohio St. 505 (1947), and independently warranted a new trial.

E. The State’s Motion for Leave to Appeal and the First District’s Denial

Relying on R.C. 2945.67(A) and App.R. 5(C), the State sought leave in the First District Court of Appeals to appeal the new-trial order. The State asserted two assignments of error, both focused on the Brady issues:

  1. That the trial court erred as a matter of law in finding the double-hearsay alternate-suspect evidence material under Brady.
  2. That the trial court erred as a matter of law by “re-litigating” Brady claims that federal courts had already rejected in prior habeas litigation.

Critically, the State did not specifically challenge the trial court’s separate conclusion that the new scientific evidence under Petro independently justified a new trial.

The First District denied the State’s motion for leave. It reasoned that because the State did not challenge both independent grounds for the new-trial order, any appeal would be futile: even if the appellate court agreed that the trial court erred on the Brady issues, the new trial would still stand under the unchallenged Petro basis.

The State sought reconsideration, arguing that:

  • The Petro issue was not genuinely at issue in the trial court or was subsumed within the second assignment of error; and
  • Reversal of the Brady finding would, as a practical matter, undermine the new-trial order.

The First District denied reconsideration, holding that the State was raising new arguments not made in the original motion for leave.

F. Supreme Court Review

The Supreme Court of Ohio accepted jurisdiction on the following proposition of law:

“An appellate court abuses its discretion by denying leave to appeal the grant of a new trial in a 26 year old capital case where the State complies with App.R. 5(C)'s requirements, timely sets forth errors for review and shows it has evidentiary support for the claimed errors.”

The Supreme Court’s task was not to decide Jones’s entitlement to a new trial, but to determine whether the First District applied the correct legal framework in denying the State leave to appeal.

III. Summary of the Opinion

A. The Majority Opinion (Kennedy, C.J.)

The majority, per Chief Justice Kennedy, held that the First District abused its discretion by:

  • Failing to assess whether the State had shown the requisite “probability” that the claimed errors occurred, as required by App.R. 5(C); and
  • Denying leave based solely on a “futility” rationale tied to the State’s failure to challenge one separate ground for the trial court’s new-trial order.

Interpreting App.R. 5(C), the majority emphasized two key features:

  1. The State’s obligation to “claim” that errors occurred in the trial court proceedings; and
  2. The requirement that the motion, supported by affidavits or record excerpts, show “the probability that the errors claimed did in fact occur.”

The court construed this probability requirement as imposing a burden that is “not an onerous one”; the State must show how likely it is that its claimed errors occurred, but need not establish that it will actually succeed on appeal.

Because the First District did not discuss or apply this probability standard at all—its decision did not even use the word “probability”—it applied an incorrect legal standard and thereby abused its discretion. The Supreme Court reversed and remanded so that the First District could reconsider the State’s motion under the correct framework.

B. The Dissent (Fischer, J., joined by Brunner, J.)

Justice Fischer, joined by Justice Brunner, dissented. The dissent argued that:

  • App.R. 5(C) does not set a standard of review for courts of appeals; it merely establishes filing requirements for the State’s motion.
  • Once those minimal requirements are met, the appellate court has broad discretion—under State v. Fisher, 35 Ohio St.3d 22 (1988)—to grant or deny the motion for any reasonable reason, including futility.
  • The First District did not misinterpret App.R. 5(C) or commit any legal error; it simply exercised its discretion by declining to grant leave where the State had failed to challenge a critical, independent ground (the Petro basis) for the new-trial order.

The dissent criticized the majority for effectively narrowing appellate discretion and for misreading the “judgments, not reasons” principle from Article IV, Section 3(B)(2) of the Ohio Constitution.

IV. Detailed Analysis

A. The Statutory and Rule Framework for State Appeals

1. R.C. 2945.67(A)

R.C. 2945.67(A) governs the State’s ability to appeal in criminal and juvenile-delinquency cases. It draws an important distinction between:

  • Appeals as of right—the State may appeal certain orders without leave, including:
    • Orders dismissing all or part of a criminal/delinquency case,
    • Orders suppressing evidence,
    • Orders returning seized property,
    • Orders granting postconviction relief under R.C. 2953.21–2953.24, and
    • Orders imposing a felony sentence.
  • Appeals by leave—for “any other decision, except the final verdict,” the State may appeal “by leave of the court to which the appeal is taken.”

A trial court’s order granting a defendant a new trial is not one of the categories appealable as of right. In State v. Matthews, 1998-Ohio-433, the Supreme Court held that the State must seek leave to appeal such an order. Jones reaffirms this framework.

2. App.R. 5(C)

App.R. 5(C) specifies what the State’s motion must contain when it seeks leave to appeal “an order of the trial court”:

  • The motion must “set forth the errors that the movant claims occurred in the proceedings of the trial court.”
  • The motion must 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.”
  • The motion must include a brief or memorandum of law in support.

The core of Jones lies in interpreting this “probability” requirement and in determining how it constrains appellate discretion.

B. Interpreting App.R. 5(C): “Claim” and “Probability”

1. “Claim” vs. Ultimate Merit

The majority draws attention to the verb “claims” in App.R. 5(C). A “claim” is merely an assertion that may or may not be true. From this, the court emphasizes that the State’s burden at the leave stage is not to prove that an error definitely occurred; it is to identify alleged errors with sufficient specificity and to support them with record material or affidavits.

This reinforces an important conceptual distinction:

  • Leave stage (App.R. 5(C)): threshold showing that there is a meaningful probability that the alleged errors occurred.
  • Merits stage (after leave is granted): full appellate review to determine whether reversible error actually occurred.

2. “The Probability that the Errors Claimed Did in Fact Occur”

The majority then parses the term “probability” in an unusually close linguistic way:

  • It distinguishes between “a probability” (something more likely than not – akin to a preponderance of the evidence) and “the probability” (the degree, on a continuum, to which something might be true—e.g., a 40% chance of rain).
  • Because App.R. 5(C) speaks of “the probability” that the errors occurred, the court reads the rule as requiring the movant to demonstrate some nonzero likelihood that the claimed errors occurred, not necessarily that they are more likely than not.

The majority explicitly notes that the “probability of something can therefore be more or less than a preponderance.” It concludes:

“[T]he State’s burden in seeking leave to appeal is therefore not an onerous one. Under App.R. 5(C), the State must claim that errors occurred in the trial-court proceedings and it must show how likely it is that those errors did in fact occur.” (¶ 18)

In other words, the rule creates a calibrated gatekeeping function: the appellate court does not decide the case but does evaluate whether the claimed errors are sufficiently supported to warrant discretionary review.

C. Appellate Discretion and Abuse of Discretion

1. General Rule: Broad Discretion to Grant or Deny Leave

In State v. Fisher, 35 Ohio St.3d 22 (1988), the Supreme Court held in paragraph two of the syllabus that the decision to grant or deny a motion for leave to appeal in a criminal case is “solely within the discretion of the court of appeals.” That principle is reaffirmed in Jones.

Review of such decisions is for abuse of discretion. Under State v. Adams, 62 Ohio St.2d 151 (1980), and State v. White, 2008-Ohio-1623, an abuse of discretion implies that the lower court’s attitude is “unreasonable, arbitrary or unconscionable.”

2. Legal Errors as Abuses of Discretion

However, a line of cases, including Johnson v. Abdullah, 2021-Ohio-3304, and State v. Bunch, 2022-Ohio-4723, holds that courts “lack the discretion to make errors of law,” and that applying the wrong legal standard is reversible error even under an abuse-of-discretion review.

In Jones, the majority applies this principle to the First District’s handling of App.R. 5(C). Because the appellate court:

  • Did not mention or apply the “probability” requirement; and
  • Denied leave solely based on a futility rationale (unchallenged alternate ground),

the Supreme Court concluded that the First District failed to apply the legal standard built into App.R. 5(C) and therefore abused its discretion.

The key point: while courts of appeals retain discretion to grant or deny leave, that discretion must be exercised within the contours of App.R. 5(C). They must evaluate whether the State has shown “the probability” that the claimed errors occurred; they cannot ignore that inquiry altogether.

D. The Futility Rationale and Independent Grounds for the Judgment

1. The First District’s Reasoning

The First District found the appeal “futile” because:

  • The trial court granted a new trial on two independent bases: (a) Brady violations and (b) newly discovered scientific evidence under Petro.
  • The State’s proposed appeal challenged only the Brady findings, not the Petro finding.

Consequently, even if the State prevailed on all its assignments of error, the new-trial order would stand on the unchallenged Petro ground. In the First District’s view, granting leave for an appeal that could not affect the judgment would waste judicial resources and serve no purpose.

2. The Majority’s Response: Judgments vs. Reasons

The majority responds in two main ways:

  1. Appeals are from judgments, not reasons:

    Citing Article IV, Section 3(B)(2) of the Ohio Constitution, the majority notes that courts of appeals “review and affirm, modify, or reverse judgments or final orders,” not the trial court’s reasons. This principle means that at the leave stage the court should focus on whether there is a probability of error in the challenged aspects of the judgment, not on whether the State has attacked every possible rationale the trial court offered.

  2. Leave stage vs. outcome certainty:

    The majority stresses that the State “did not have to prove that it would actually succeed in reversing the trial court’s decision” at the leave stage. It only needed to show “the probability that the errors claimed…did in fact occur.”

    Thus, dismissing a motion for leave solely because one independent ground was not challenged conflates:

    • the threshold question of whether potential errors merit appellate scrutiny; and
    • the ultimate question of whether those errors warrant reversal of the judgment as a whole.

On this view, the First District improperly bypassed the App.R. 5(C) probability analysis and decided, in effect, that because reversal of the judgment seemed unlikely, there was no need even to consider whether the claimed errors merited discretionary review.

3. The Dissent’s Counterpoint: Appellate Discretion and Assigned Errors

The dissent reads the situation differently:

  • It accepts that courts of appeals review judgments, not reasons, but stresses that appellants are still responsible for assigning specific errors for review. App.R. 12(A)(2) and App.R. 16(A) authorize courts of appeals to disregard unassigned or inadequately argued errors.
  • It emphasizes that while appellate courts may consider unassigned errors (per Hungler v. Cincinnati, 25 Ohio St.3d 338 (1986) and C. Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298 (1974)), they are not required to do so.
  • From this perspective, the First District acted within its discretion by concluding that, since the State did not challenge the Petro basis, any appeal would not disturb the judgment and thus would be futile.

In the dissent’s view, nothing in App.R. 5(C) requires a court of appeals to overlook an obviously incomplete appellate strategy or to consider grounds not raised by the State.

E. Precedents and Authorities Cited

1. Internal Case History: Jones I–III

  • Jones I, 2000-Ohio-187: The Supreme Court of Ohio affirmed Jones’s convictions and death sentence on direct appeal.
  • Jones II, 2010 WL 654287 (S.D. Ohio): The federal district court denied habeas relief, including Brady-based claims.
  • Jones III, 696 F.3d 475 (6th Cir. 2012): The Sixth Circuit affirmed the denial of habeas relief.

These cases show the long, complex history of litigation over Jones’s conviction, but they are mainly background. The 2025 decision in Jones does not revisit the substance of the Brady claims or the scientific evidence; it strictly concerns appellate procedure.

2. Brady v. Maryland

Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose material exculpatory and impeachment evidence to the defense. The trial court’s new-trial order in Jones relied heavily on alleged Brady violations.

However, the Supreme Court of Ohio in this opinion does not decide whether Brady was violated. Brady enters only as:

  • The subject of the trial court’s decision; and
  • The focus of the State’s proposed assignments of error in its motion for leave.

3. State v. Petro – Newly Discovered Evidence

State v. Petro, 148 Ohio St. 505 (1947), articulates the classic standard for granting a new trial based on newly discovered evidence. Although the opinion in Jones does not reproduce the Petro test in full, Petro generally requires that the evidence:

  • Be newly discovered and could not have been discovered with due diligence before trial;
  • Be material and not merely cumulative;
  • Not simply impeach or contradict former evidence; and
  • Be likely to produce a different result at a new trial.

The trial court held that Dr. Burdette’s Eikenella corrodens testimony met Petro’s criteria. That unchallenged holding became central to the First District’s futility reasoning and, in turn, to the Supreme Court’s procedural analysis.

4. Fisher, White, Adams, Johnson, Bunch – Discretion and Legal Error

  • State v. Fisher, 35 Ohio St.3d 22 (1988): Establishes that granting or denying leave to appeal is within the court of appeals’ discretion.
  • State v. Adams, 62 Ohio St.2d 151 (1980): Classic formulation of abuse-of-discretion review.
  • State v. White, 2008-Ohio-1623: Reaffirms Adams’s definition of abuse of discretion.
  • Johnson v. Abdullah, 2021-Ohio-3304: Courts “lack the discretion to make errors of law,” especially when contrary to the plain language of a statute or rule.
  • State v. Bunch, 2022-Ohio-4723: Applying the wrong legal standard constitutes reversible error under abuse-of-discretion review.

These authorities underpin the majority’s approach: although appellate courts have discretion over whether to grant leave, they must exercise that discretion using the proper legal yardstick—here, App.R. 5(C)’s probability-of-error requirement.

5. Lozier, Hungler, and C. Miller Chevrolet – Judgments vs. Reasons and Unassigned Error

  • State v. Lozier, 2004-Ohio-732: Appellate courts review judgments, not reasons; a correct judgment will not be reversed merely because the rationale was wrong.
  • Hungler v. Cincinnati, 25 Ohio St.3d 338 (1986): Explains that App.R. 12(A) sets parameters for review, and appellate courts need not consider errors not assigned or argued, though they may do so.
  • C. Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298 (1974): Confirms that appellate courts may, in their discretion, address unassigned error.

The majority uses the “judgments, not reasons” principle to downplay the significance of the unchallenged Petro ground at the leave stage, while the dissent relies on App.R. 12(A) and related case law to support the First District’s decision to treat an appeal as futile when a ground for the judgment was left unchallenged.

F. Impact and Implications

1. For Prosecutors Seeking Leave Under App.R. 5(C)

Jones provides concrete guidance for how the State should structure a motion for leave:

  • Clearly articulate “claimed” errors in the trial court’s order, framed as legal or factual mistakes in the proceedings.
  • Attach targeted record excerpts or affidavits that demonstrate a real, non-trivial likelihood that the claimed errors occurred.
  • Consider challenging all independent grounds for a trial court’s order, especially when the order rests on multiple self-sufficient bases (e.g., both Brady and newly discovered evidence). While Jones prevents a court of appeals from denying leave solely on a futility rationale without engaging App.R. 5(C), an unchallenged ground could still influence the appellate court’s exercise of discretion once the probability standard has been considered.

2. For Courts of Appeals

After Jones, courts of appeals must:

  • Explicitly attend to the App.R. 5(C) standard in their rulings on motions for leave, at least to the point of considering whether the State has shown “the probability” that the claimed errors occurred.
  • Avoid using “futility” as a complete substitute for that analysis. They may still consider whether an appeal would be effective, but they cannot ignore the rule’s probability requirement.
  • Document their reasoning sufficiently to demonstrate that the correct legal standard was applied, especially in capital cases or other high-stakes matters.

3. For Criminal Defendants

The ruling has mixed implications for defendants:

  • It may make it somewhat easier for the State to obtain appellate review of orders granting new trials, because the Supreme Court characterizes the State’s threshold burden as “not an onerous one.”
  • However, by insisting that courts apply App.R. 5(C) faithfully, it provides transparency and structure to decisions about whether a prosecutor may appeal a new trial, which can in turn promote more predictable, rule-bound adjudication.

4. System-Level Effects

On a broader level, Jones:

  • Moves Ohio practice closer to a formalized “probability of error” screening mechanism for prosecutorial appeals, analogous (conceptually, though not identically) to discretionary review standards in other settings (e.g., certiorari, discretionary review under App.R. 26(B), etc.).
  • Signals to lower courts that procedural rules have substantive force; ignoring their textual requirements can be an abuse of discretion.
  • Highlights tension between judicial economy (avoiding futile appeals) and access to appellate oversight (ensuring that plausible claims of error receive at least threshold review).

V. Simplifying the Key Legal Concepts

A. What Is a “Brady Violation”?

A Brady violation occurs when the prosecution:

  1. Suppresses evidence (intentionally or inadvertently),
  2. The evidence is favorable to the accused (either exculpatory or impeaching), and
  3. The evidence is material, meaning there is a reasonable probability that, had it been disclosed, the result of the proceeding would have been different.

In Jones’s case, the trial court believed that the State failed to disclose:

  • The alternate-suspect tip,
  • Information undermining the “one-of-a-kind pendant” narrative, and
  • Medical information about Hepatitis B status.

Whether those omissions truly amount to Brady violations is a substantive question that the Supreme Court did not reach in this appeal.

B. Newly Discovered Evidence Under Petro

New trials on the basis of newly discovered evidence are disfavored, but permitted when strict conditions are met. Under State v. Petro, courts ask, in essence:

  • Did the defendant discover the evidence after trial?
  • Could the evidence, with reasonable diligence, have been discovered earlier?
  • Is the evidence material and not cumulative?
  • Is it more than mere impeachment or contradiction of prior evidence?
  • Would it probably change the outcome at a new trial?

The trial court held that Dr. Burdette’s testimony on Eikenella corrodens satisfied this test and independently justified a new trial. Jones (2025) does not examine that conclusion; it simply treats it as a second, independent basis for the trial court’s order.

C. “Abuse of Discretion” Explained

When a higher court reviews a lower court’s decision for “abuse of discretion,” it asks whether the decision was:

  • Unreasonable (no sound factual or legal basis),
  • Arbitrary (based on whim rather than reason), or
  • Unconscionable (shocking to the sense of justice).

In modern practice, a separate but related principle is that a court cannot use its discretion to commit legal error. If a lower court misreads a statute or rule or applies the wrong legal standard, that is automatically beyond its discretionary authority, even if the result might have been acceptable under the correct law.

D. “Probability” in App.R. 5(C)

“Probability” here does not mean absolute certainty or even more-likely-than-not certainty. It means:

  • The State must show that there is a real, nontrivial chance that its claimed errors occurred, supported by the record or affidavits.
  • The court of appeals must consider this showing in deciding whether to grant leave, though it still has discretion to deny leave if, for example, the likelihood of error is minimal or the errors are clearly harmless.

The majority’s focus on “the probability” suggests that the bar for the State is relatively low but not illusory.

E. “Judgments, Not Reasons”

Appellate courts review the end result (the judgment or order) of a trial court, not every rationale the trial judge articulated. This has two implications:

  • If a trial court reaches the right outcome for the wrong reason, the appellate court may still affirm.
  • Appellate courts are not required to comb through every possible legal theory; they generally limit themselves to the errors assigned by the appellant, though they may, at their discretion, address others.

In Jones, this principle is invoked differently by the majority and dissent, illustrating its flexibility and the importance of context.

VI. Conclusion

State v. Jones, 2025-Ohio-5389, marks an important clarification of App.R. 5(C)’s role in prosecutorial appeals from trial-court orders granting new trials. The Supreme Court of Ohio establishes that:

  • The State’s motion for leave must not only identify claimed errors but must also be supported by materials demonstrating “the probability that the errors claimed did in fact occur.”
  • This “probability” need not rise to a full preponderance but must be real and supported, and the appellate court must engage with this inquiry.
  • A court of appeals abuses its discretion if it denies leave without applying this standard and instead relies solely on a doctrine of futility grounded in an unchallenged alternate basis of the trial court’s ruling.

At the same time, the court underscores the limited nature of its holding: it does not resolve whether Jones is entitled to a new trial, nor does it invalidate appellate discretion to deny leave even where some probability of error is shown. Rather, it insists that such discretion must be exercised within the framework mandated by App.R. 5(C).

The dissent warns that the decision risks constraining appellate courts’ ability to manage their dockets and assess futility, and it characterizes App.R. 5(C) as a filing rule rather than a substantive standard. That tension will likely shape future practice as courts and litigants adapt to this refined understanding of “probability of error” in the leave-to-appeal context.

For practitioners, Jones serves as both a caution and a guide: a reminder to fully brief all material bases for a trial court’s ruling when seeking leave to appeal, and a signal that appellate courts must transparently justify denial of leave in terms that respect the text and function of App.R. 5(C).

Case Details

Year: 2025
Court: Supreme Court of Ohio

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