[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Noling, Slip Opinion No. 2016-Ohio-8252.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-8252
              THE STATE OF OHIO, APPELLEE v. NOLING, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Noling, Slip Opinion No. 2016-Ohio-8252.]
Criminal      law—R.C.         2953.73—Postconviction            DNA       testing—Appellate
        jurisdiction—R.C. 2953.73(E)(1), which denies appeals of right from
        rejections of applications for DNA testing in cases in which the death
        penalty is imposed, is unconstitutional—Unconstitutional portions of R.C.
        2953.73 are severed—After severance, R.C. 2953.73 entitles capital
        offenders to appeals of right to this court.
   (No. 2014-1377—Submitted May 31, 2016—Decided December 21, 2016.)
 APPEAL from the Court of Common Pleas of Portage County, No. 1995-CR-220.
                                    ________________
        O’CONNOR, C.J.
                             RELEVANT BACKGROUND
        {¶ 1} A jury found Tyrone Noling guilty of the April 1990 aggravated
murders of Bearnhardt and Cora Hartig in Portage County, Ohio. The trial court
                            SUPREME COURT OF OHIO




sentenced him to death. On direct appeal, the court of appeals and this court
affirmed the convictions and death sentences. State v. Noling, 98 Ohio St.3d 44,
2002-Ohio-7044, 781 N.E.2d 88 (“Noling I”).
       {¶ 2} Noling has made numerous applications for postconviction relief.
This appeal arises from the Portage County Common Pleas Court’s denial of his
2013 amended application for postconviction DNA testing pursuant to Ohio’s
statutory scheme, R.C. 2953.71 through 2953.84. Noling filed an appeal with the
11th District Court of Appeals and sought a discretionary jurisdictional appeal with
this court. The court of appeals dismissed Noling’s appeal pursuant to R.C.
2953.73(E)(1), which grants appellate review of the denial of DNA applications
from capital offenders to the Supreme Court of Ohio exclusively.
       {¶ 3} We accepted Noling’s jurisdictional appeal from the court of common
pleas on the following proposition of law:


               Ohio Revised Code 2953.73(E)(1) violates both the Eighth
       and Fourteenth Amendments of the United States Constitution as it:
       (1) discriminates between capital and non-capital criminal
       defendants, (2) fails to provide appellate review, and (3) results in
       the arbitrary and capricious application of the death penalty.
       Fourteenth Amendment to the United States Constitution and
       Section 16, Article I of the Ohio Constitution.


143 Ohio St.3d 1477, 2015-Ohio-3958, 38 N.E.3d 899.
       {¶ 4} Although the parties’ briefs go into detail concerning the merits of the
application for DNA testing, the question before us is a constitutional one
concerning the statutory procedure for appealing the denial of an application for
postconviction DNA testing, not the merits of Noling’s application itself.




                                         2
                                January Term, 2016




       {¶ 5} The challenged statute, R.C. 2953.73(E)(1), sets forth the procedure
by which an offender sentenced to death may appeal the trial court’s denial of an
application for postconviction DNA testing. According to the statute, the capital
offender “may seek leave of the supreme court to appeal the rejection to the
supreme court.” Id. The statute departs from typical appellate procedure by
skipping the court of appeals altogether. And it is also distinct from the procedure
in the initial appeal of a capital sentence, which comes straight to this court on a
direct, not a discretionary, appeal.          Article IV, Section 2(B)(2)(c), Ohio
Constitution.
       {¶ 6} To “seek leave,” the capital offender must file a notice of appeal and
memorandum in support of jurisdiction with this court. R.C. 2953.73(E)(1). At
least four justices must vote to accept jurisdiction before an appeal may proceed.
Article IV, Section 2(A), Ohio Constitution; S.Ct.Prac.R. 7.08(B). If a majority of
justices declines to assert jurisdiction over the claim, the decision of the common
pleas court will stand. After the denial of a postconviction DNA application,
however, R.C. 2953.73(E)(2) provides a noncapital offender the right to appeal that
determination in the court of appeals. The appellate court has no discretion to
decline to consider the case and must hear the appeal.
       {¶ 7} Noling argues that because the statutory scheme denies appeals of
right to those sentenced to death while guaranteeing appeals to noncapital
offenders, the scheme denies capital offenders their fundamental rights—
specifically, their state and federal constitutional rights to due process and equal
protection and the federal constitution’s prohibition of cruel and unusual
punishment. The state counters that postconviction relief is civil in nature, not
criminal, and thus, no fundamental right to appeal exists. The state further contends
that the scheme is constitutionally permissible because the state has a rational basis
for the statute’s different appeal paths and because the Eighth Amendment to the




                                          3
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United States Constitution does not require a specific appellate process for
postconviction DNA-testing denials.
       {¶ 8} We agree that R.C. 2953.73(E)(1) violates the equal protection right
guaranteed by the United States and Ohio Constitutions. Because we can decide
this case on equal protection grounds, we do not consider Noling’s due-process
claims. But we also hold that the unconstitutional portion of the statute can be
excised to create a constitutionally sound procedure that provides capital offenders
an appeal of right to this court. We therefore apply the severance remedy, strike
the unconstitutional portions of the statute, and permit the remainder of R.C.
2953.73(E) to stand. We find that our constitutional analysis applies equally to a
related section of the statutory scheme, R.C. 2953.72(A)(8), that summarizes the
procedure for appealing a denial of postconviction DNA testing, and apply the
severance remedy to that section as well. In accordance with our holding and
remedy, Noling will be permitted an appeal of right to this court from the trial
court’s denial of his amended application for postconviction DNA testing.
                                    ANALYSIS
                                 Standard of review
       {¶ 9} We begin with the premise that statutes are presumed constitutional.
R.C. 1.47.
       {¶ 10} To find a statute unconstitutional, we must determine “beyond a
reasonable doubt that the legislation and constitutional provisions are clearly
incompatible.” State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d
59 (1955), paragraph one of the syllabus. “[D]oubts regarding the validity of
a legislative enactment are to be resolved in favor of the statute.” State v. Smith, 80
Ohio St.3d 89, 99-100, 684 N.E.2d 668 (1997), citing State v. Gill, 63 Ohio St.3d
53, 55, 584 N.E.2d 1200 (1992).
       {¶ 11} Because the Equal Protection Clause of the Ohio Constitution is
coextensive with, or stronger than, that of the federal Constitution, we cite both




                                          4
                                January Term, 2016




throughout this opinion. E.g., State v. Mole, ___ Ohio St.3d __, 2016-Ohio-5124,
___ N.E.3d ___, ¶ 14-23 (Article I, Section 2 of Ohio’s Constitution, the Equal
Protection Clause, provides equal or greater protections when compared to those
arising from the United States Constitution’s Fourteenth Amendment); Am. Assn.
of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d
55, 60, 717 N.E.2d 286 (1999) (“the federal and Ohio Equal Protection Clauses are
to be construed and analyzed identically”).
                                 Equal protection
       {¶ 12} The federal Equal Protection Clause mandates that the state may not
“deny to any person within its jurisdiction the equal protection of the laws.”
Fourteenth Amendment to the U.S. Constitution, Section 1. Similarly, the Ohio
Constitution, Article I, Section 2 guarantees that “[a]ll political power is inherent
in the people. Government is instituted for their equal protection and benefit.” But
these admonishments shall “not deny to [the] State the power to treat different
classes of persons in different ways.” Eisenstadt v. Baird, 405 U.S. 438, 446-447,
92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), citing Barbier v. Connolly, 113 U.S. 27, 5
S.Ct. 357, 28 L.Ed. 923 (1885). Legislative power is not boundless, however.
       {¶ 13} “The Constitution’s guarantee of equality ‘must at the very least
mean that a bare congressional desire to harm a politically unpopular group cannot’
justify disparate treatment of that group.” United States. v. Windsor, __ U.S. __,
133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013), citing Dept. of Agriculture v.
Moreno, 413 U.S. 528, 534-535, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In other
words, equal protection prohibits treating similar groups differently based on
criteria that are unrelated to the purpose of the law. Johnson v. Robison, 415 U.S.
361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). “[A]ll persons similarly situated
should be treated alike,” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105
S.Ct. 3249, 87 L.Ed.2d 313 (1985), and “a legislative classification must be
reasonable, not arbitrary, and must bear a rational relationship to a permissible




                                         5
                             SUPREME COURT OF OHIO




governmental objective,” Felske v. Daugherty, 64 Ohio St.2d 89, 92, 413 N.E.2d
809 (1980). See also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct.1910, 100 L.Ed.2d
465 (1988). While the challenging party has the burden to negate “any reasonably
conceivable state of facts that could provide a rational basis for the classification,”
Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313,
113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), the state must offer some “rational
speculation” to support it. Id. at 315.
                               Statute’s classification
       {¶ 14} “In considering whether state legislation violates the Equal
Protection Clause of the Fourteenth Amendment * * * [courts] apply different
levels of scrutiny to different types of classifications. At a minimum, a statutory
classification must be rationally related to a legitimate governmental purpose.”
Clark at 461.
       {¶ 15} While asserting that R.C. 2953.73(E)(1) cannot survive even this
rational-basis scrutiny, Noling urges us to apply strict scrutiny to the statute, the
most stringent level of analysis, asserting that the law impedes access to the courts,
a fundamental right. But that argument is unsound.
       {¶ 16} This court has established that “a postconviction proceeding is not
an appeal of a criminal conviction but rather, is a collateral, civil attack on a
criminal judgment.” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51
N.E.3d 620, ¶ 28, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67
(1994). And “[t]he right to file a postconviction petition is a statutory right, not a
constitutional right.” Id. See also Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct.
2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct.
1990, 95 L.Ed.2d 539 (1987); Steffen at 410. Because an appeal of the denial of
postconviction DNA testing does not implicate a fundamental constitutional right,
we do not apply strict scrutiny.




                                          6
                                January Term, 2016




       {¶ 17} Noling has offered no evidence that intermediate scrutiny, the next
level of deference in equal-protection law, State v. Thompson, 95 Ohio St.3d 264,
2002-Ohio-2124, 767 N.E.2d 251, ¶ 13, should be applied in this case. Because
this case is not entitled to elevated scrutiny, we apply the rational-basis test, the
standard most deferential to the legislature. Pickaway Cty. Skilled Gaming, L.L.C.
v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32.
       {¶ 18} Before we proceed to apply the test, we note that the attorney
general, as amicus curiae, advances the argument that the rational-basis test is not
applicable because capital and noncapital offenders are not similarly situated. As
an initial matter, this court has previously held that “amici curiae are not parties to
an action and may not, therefore, interject issues and claims not raised by parties.”
State ex rel. Citizen Action for a Livable Montgomery v. Hamilton Cty. Bd. of
Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, ¶ 26, citing
Lakewood v. State Emp. Relations Bd., 66 Ohio App.3d 387, 394, 584 N.E.2d 70
(8th Dist.1990). Although the state notes that this court has previously reasoned
that “ ‘the reality is that capital and noncapital defendants were not treated
similarly,’ ” quoting Smith, 80 Ohio St.3d at 100, 684 N.E.2d 668, it does not
directly argue that the rational-basis test is inapplicable. But even considering the
attorney general’s claims, we would still find capital and noncapital offenders
similarly situated here.
       {¶ 19} The case law and statutes cited by the attorney general are inapposite
because they are focused on imposition of a sentence. The cases discuss capital
sentencing, and the statutes set forth procedures for cases in which an accused is
defending against a capital charge. In contrast, the statutory scheme relevant here
concerns applications for postconviction DNA testing. It is unrelated to sentencing.
That certain applicants are sentenced to death and others to prison terms is nearly
irrelevant under the statute. And we do not agree with the attorney general that the
two classes are dissimilar merely because the description of what testing is




                                          7
                             SUPREME COURT OF OHIO




“outcome determinative” is slightly broader for capital offenders. R.C. 2953.71(L).
Under the statute, capital and noncapital offenders follow the same application
process for DNA testing, R.C. 2953.72, and the application is subject to the same
level of scrutiny in the trial court, R.C. 2953.73(D).
       {¶ 20} Moving to application of the rational-basis test, the Equal Protection
Clause is satisfied if “there is a plausible policy reason for the classification.”
Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). We
may find a statute unconstitutional only if “the General Assembly’s action lacked
all rational relation to the legitimate state interest.” Arbino v. Johnson & Johnson,
116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 72. Under this test, the
Equal Protection Clause is satisfied if “there is a plausible policy reason for the
classification.” Nordlinger at 11.
       {¶ 21} In this case, we consider whether there exists a legitimate
governmental purpose in affording noncapital defendants an appeal of right of the
denial of their postconviction DNA-testing application, but affording capital
defendants only a discretionary appeal of the same denial. Although we apply the
rational-basis test and give all due deference to the legislature, we are mindful that
this case involves a person sentenced to death, and “the finality of the [death]
sentence imposed warrants protections that may or may not be required in other
cases.” Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985) (Burger, C.J., concurring).
                         Legitimate governmental purpose
       {¶ 22} In its merit brief, the state offers the following purpose: “ensuring
that the final judgments of its courts are expeditiously enforced.” Are we to take
this to mean that expeditious enforcement of the death penalty is the guiding factor
and goal? Are we to value speed over certainty? Of all cases that cry out for
certainty, it is cases that result in the extinguishing of a human life. If, however,
the generic expeditious enforcement is the basis of the state’s argument, even a




                                          8
                                 January Term, 2016




cursory investigation reveals that this rationale is faulty. See State ex rel. Nyitray
v. Indus. Comm., 2 Ohio St.3d 173, 176, 443 N.E.2d 962 (1983).                  Indeed,
expedience is subverted by the statutory scheme.
       {¶ 23} Requiring the parties to draft memos in support of and in opposition
to jurisdiction takes the parties additional time. The court rules grant the appellant
45 days from the entry of the lower court’s judgment to file a notice of appeal and
a memorandum in support of jurisdiction. S.Ct.Prac.R. 7.01(A)(1). After that
filing, the appellee has 30 days to file a response to the memorandum in support of
jurisdiction. S.Ct.Prac.R. 7.03(A)(1). After the time for filing a response passes,
the court must review the filings and decide whether to accept jurisdiction.
S.Ct.Prac.R. 7.08(B). If the court agrees to accept jurisdiction, it will issue an order
to the clerk of the common pleas court to certify and submit the case record to the
clerk of the Supreme Court within 20 days of the issuance of the order. S.Ct.Prac.R.
15.03(A). After the clerk files the record, the appellant has 40 days to file a merit
brief. S.Ct.Prac.R. 16.02(A)(2). If each filing and submission takes the maximum
amount of time, this process will last at least 135 days before a merit brief is ever
filed. That number is conservative because it does not include any time for the
justices to consider the appeal, deliberate, vote, and release a decision.
       {¶ 24} In contrast, an appeal as of right from a case originating in the court
of appeals (the most similar appeal currently covered by the Supreme Court Rules
of Practice) goes from judgment entry to merit briefing faster. For appeals of right
from courts of appeals, an appellant must file a notice of appeal within 45 days of
the entry of judgment, S.Ct.Prac.R. 6.01, and must file a merit brief within 40 days
of the clerk’s submission of the record, S.Ct.Prac.R. 16.02. Although the rules do
not specify a time limit for filing the record, assuming it takes the 20 days permitted
in a discretionary appeal, this court would still have a merit brief in 105 days in an
appeal of right, at least a month faster than one would even potentially be filed in a
discretionary appeal. If the state’s legitimate interest is in expeditious enforcement




                                           9
                             SUPREME COURT OF OHIO




of judgments, that interest is better advanced by permitting capital offenders an
appeal of right. We find that providing only a discretionary appeal is not rationally
related to the governmental purpose of expeditiously enforcing final judgments
and, accordingly, the law does not meet the rational-basis test and violates both the
federal and state equal-protection clauses.
                     Attorney general’s rational-basis claims
       {¶ 25} As with the attorney general’s claim that capital and noncapital
offenders are not similarly situated, we need not address the attorney general’s
suggestions of additional legitimate government purposes underlying R.C.
2953.73(E)(1). However, we will briefly explain why these suggestions are not a
rational basis for providing a discretionary appeal.
       {¶ 26} First, the attorney general suggests that the appellate process in R.C.
2953.73(E)(1) parallels the process for appealing an initial death-penalty sentence.
But this is not true. While both processes bypass the court of appeals, an offender
appealing a death sentence is entitled to an appeal of right to this court. Here, the
capital offender is offered only a discretionary appeal.
       {¶ 27} Second, the attorney general suggests that the General Assembly
drafted the process to accord with ambiguous constitutional text that requires
Supreme Court review “in cases in which the death penalty has been imposed.”
Ohio Constitution, Article IV, Section 2(B)(2)(c). But the full text of that section
requires Supreme Court review “as a matter of right,” not discretionary review,
which is the only avenue R.C. 2953.73(E)(1) provides.
       {¶ 28} Third, the attorney general suggests that distinct review paths are
appropriate because capital offenders have broader access to testing. Capital
offenders are permitted to seek postconviction DNA testing related to the offense
itself or to aggravating circumstances supporting the capital sentence, while
noncapital offenders are limited to the former. R.C. 2953.71(L). The attorney
general notes that “broader access to testing logically results in more appeals in




                                         10
                                January Term, 2016




each case, and so justifies discretionary appellate review.” The state fails to clarify
how the presence of more appeals is a rational basis for discretionary review. The
“logical” cause and effect analysis is also faulty. In the nearly 13 years since this
law has been in effect, only three capital offenders have sought review from this
court. And the General Assembly was aware of this fact, as evidenced by an Ohio
Legislative Service Commission (“LSC”) report that there would be few capital
appeals, given the relatively small number of death-row offenders and the fact that
many of them would have no bases for postconviction DNA testing under the law.
Fiscal Note and Local Impact Statement for 2003 Sub.S.B. No. 11 (“S.B. 11”), 150
Ohio Laws, Part IV, 6498-6526.
       {¶ 29} Fourth, the attorney general suggests that the discretionary-appeal
process is less susceptible to delay. We have already concluded that discretionary
review significantly increases the average amount of time a case is pending before
disposition as compared to an appeal of right, so this rationale is faulty.
       {¶ 30} Finally, the attorney general suggests that the single-tier system of
review promotes consistency, given that the Supreme Court is responsible for
handling direct appeals of death-penalty cases. We agree, but we identify the
relevant disparate treatment not to be the lack of an appeal to the court of appeals,
but instead to the denial of direct appeal to the Supreme Court for capital offenders.
We see no means by which discretionary review promotes consistency, given that
we do not have discretion to reject a challenge to a conviction imposing the death
sentence.
       {¶ 31} Finding no legitimate purpose in a two-track appellate process that
discriminates between capital and noncapital offenders, we hold that R.C.
2953.73(E)(1) is unconstitutional in violation of both state and federal principles of
equal protection.




                                          11
                             SUPREME COURT OF OHIO




                                Eighth Amendment
       {¶ 32} The United States Supreme Court has ruled that the Eighth
Amendment prohibition against cruel and unusual punishment is not violated when
a capital offender has no opportunity for postconviction relief. Specifically, in
finding no Eighth Amendment violation, the court noted that “[s]tate collateral
proceedings are not constitutionally required as an adjunct to the state criminal
proceedings.” Murray, 492 U.S. at 10, 109 S.Ct. 2765, 106 L.Ed.2d 1. Even here,
where we have determined that capital offenders have a state-created liberty interest
in postconviction DNA testing, we cannot find that the interest broadens the
protections of the Eighth Amendment beyond the bounds set by the Supreme Court.
Because the high court has held that imposition of the death penalty is not arbitrary
and egregious, even without the option of postconviction relief, we likewise hold
that a statute that provides for postconviction relief, even without effective
opportunity for appeal, is not arbitrary and egregious.
                                      Remedy
       {¶ 33} As discussed above, we do not hold that the entire postconviction
DNA-testing statute is unconstitutional. Our holding is limited to the portion of the
statute that affords capital offenders a discretionary appeal instead of an appeal as
of right. R.C. 1.50 provides that when only a portion of a statute is “invalid,” that
portion may be severed: “the invalidity does not affect other provisions or
applications of the section or related sections which can be given effect without the
invalid provision, and to this end, the provisions are severable.”
       {¶ 34} Ohio law establishes a three-part test to determine whether an invalid
portion of a statute can be severed or the entire law must be struck down:


       “(1) Are the constitutional and the unconstitutional parts capable of
       separation so that each may be read and may stand by itself? (2) Is
       the unconstitutional part so connected with the general scope of the




                                         12
                                January Term, 2016




       whole as to make it impossible to give effect to the apparent
       intention of the Legislature if the clause or part is stricken out? (3)
       Is the insertion of words or terms necessary in order to separate the
       constitutional part from the unconstitutional part, and to give effect
       to the former only?”


Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927), quoting State v.
Bickford, 28 N.D. 36, 147 N.W. 407, 409 (1913).
       {¶ 35} A portion of a statute can be excised only when the answer to the
first question is yes and the answers to the second and third questions are no. State
v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 16 (severance
was not appropriate because the severance of the requested word would still make
the statute overbroad and unconstitutional). See also Cleveland v. State, 138 Ohio
St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 20-22 (severance was appropriate
because each sentence of the statute could stand by itself, the general intent of the
legislature was still given effect by the portions not severed, and no words needed
to be added to separate the constitutional part from the unconstitutional part).
       {¶ 36} In this case, we conclude that severance of the offending portion of
the statute is proper under Geiger.
Severance of R.C. 2953.73(E)
       {¶ 37} The first question requires us to determine whether the constitutional
parts of the statute may be read and stand by themselves following the severance.
State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 523, 644 N.E.2d 369 (1994).
       {¶ 38} The sentence at issue is found in R.C. 2953.73(E)(1) and states, “If
the offender was sentenced to death for the offense for which the offender claims
to be an eligible offender and is requesting DNA testing, the offender may seek
leave of the supreme court to appeal the rejection to the supreme court * * *.” By
severing the phrase “seek leave of the supreme court to,” we remove the offending




                                         13
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discretionary-review process. The statute then permissibly reads, “If the offender
was sentenced to death for the offense for which the offender claims to be an
eligible offender and is requesting DNA testing, the offender may appeal the
rejection to the supreme court.”
       {¶ 39} Removing the unconstitutional language concerning a discretionary
appeal simply leaves capital offenders with an appeal of right, and the severed
statute is readily comprehensible. The answer to the first Geiger question is yes.
       {¶ 40} As to the second question, we conclude that the unconstitutional part
of the statute is not so connected with the general scope of the whole as to make it
impossible to give effect to the apparent intent of the legislature if the clause is
stricken. The purpose of the statute is to outline the procedure for postconviction
DNA testing, and the purpose of this specific section is to describe appellate rights.
       {¶ 41} The right to an appeal was apparently very important to the
legislature, such that it added an appeal provision prior to passage of the law. As
introduced, S.B. 11 provided that “[a] judgment of a court entered under division
(E) of this section is final and is not appealable by any person to any court.” But at
hearings before the Senate Judiciary on Criminal Justice Committee, a witness for
the Ohio Common Pleas Judges Association testified that the lack of an appeal
process would leave the prosecuting attorney as a “gatekeeper.” Notes, Hannah
Capitol Collection (Mar. 19, 2003). When the committee voted the bill out of
conference, it contained the appeal process set forth in the enacted statute—
affording capital offenders a discretionary appeal to this court and noncapital
offenders an appeal of right to a district court of appeals, with both classes of
offenders subject to strict limitations on the claims that may be made on appeal.
R.C. 2953.72(A)(8).
       {¶ 42} The severance we perform modifies the appeal process for a very
limited number of eligible offenders. It does not impact the statute’s overall goal
of setting forth a scheme for postconviction DNA testing or the provision’s specific




                                         14
                                 January Term, 2016




goal of providing a limited appellate process for offenders. The answer to the
second Geiger question is no.
        {¶ 43} The third question queries whether it is necessary to insert any words
or terms to give effect to the constitutional part of the statute. In this case, only
severance is necessary to render the statute constitutional and, as discussed in
relation to the first question, the remaining clause is coherent and effective in its
own right. The answer to the third Geiger question is no.
Constitutionality of severed R.C. 2953.73(E)
        {¶ 44} Having excised the offending language in accordance with Geiger,
we conclude that the statute is rendered constitutional. By providing an appeal of
right to capital offenders, the revised statute avoids equal-protection violations by
providing both capital and noncapital offenders the right to an appellate review and
permits the state to achieve its objective of efficient enforcements of judgments by
removing an often lengthy jurisdictional review period. For the reasons that we
articulated in Smith, 80 Ohio St.3d at 100-102, 684 N.E.2d 668, we reiterate that
providing those convicted of capital crimes with a single appeal of right while
granting those convicted of noncapital crimes an appeal of right and a possible
discretionary appeal is not unconstitutional.
        {¶ 45} Relying on our opinion in State v. Davis, 131 Ohio St.3d 1, 2011-
Ohio-5028, 959 N.E.2d 516, the dissent states that “[t]he duty to review error
allegedly occurring in postconviction proceedings in death-penalty cases belongs
in the first instance to the appellate courts of this state.” Dissenting opinion at ¶ 79.
In dicta, Davis states that “[a] holding that the Supreme Court has exclusive
jurisdiction over all matters relating to a death-penalty case would be contrary” to
the constitution. (Emphasis sic.) Id. at ¶ 22. Our holding today is not contrary to
Davis. Indeed, we have already considered the narrower question of whether R.C.
2953.73(E) conflicts with the Ohio Constitution’s jurisdictional provisions and held
that it does not. State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d




                                           15
                             SUPREME COURT OF OHIO




1095, ¶ 20 (“Noling II”) In that case, the first time we considered a postconviction-
DNA-testing appeal from Noling, we held that “this court has concurrent appellate
jurisdiction with courts of appeals to review postconviction judgments and final
orders in cases in which the death penalty has been imposed.” Id.
The remedy is sound
       {¶ 46} The dissent makes two related objections to this reasonable, limited
remedy: that the remedy rewrites the statute and that the remedy is contrary to the
court’s previous use of the severance remedy. The dissent also rejects the notion
that in applying the severance remedy, we should, whenever possible, respect the
role of the legislature by limiting our severance to only those unconstitutional
portions of the statute in order to most effectively preserve the General Assembly’s
goal. We address these arguments in turn.
       {¶ 47} Foremost, the remedy does not rewrite the statute. The dissent
disputes that we can sever only a portion of R.C. 2953.73(E) because “the authority
to sever the unconstitutional part of a statute does not give this court license to
rewrite it by selectively deleting words to change the meaning of the language that
the legislature enacted.” Dissenting opinion at ¶ 70. But our remedy requires no
rewriting. It severs unlawful provisions according to the Geiger test and leaves
behind words already written by the General Assembly.
       {¶ 48} The dissent cites dicta in State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470, ¶ 100-102, abrogated in part on other grounds by
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), and states that
“we should resist the temptation to reconfigure by judicial fiat” the statute.
Dissenting opinion at ¶ 84. But the dissent’s words again belie our actions. Just as
our remedy requires no rewriting, it also requires no reconfiguring. Consistent with
Geiger, the remedy deletes the words of the unconstitutional provision but neither
adds words to nor removes words from the constitutional portions. The General




                                         16
                               January Term, 2016




Assembly’s original words remain, and in their original order. We have merely
excised text, pursuant to the guidance of Geiger.
       {¶ 49} Next, the remedy is in accordance with our precedent. The dissent
recognizes, dissenting opinion at ¶ 71, that the court has severed portions of a
statute on a number of occasions. State ex rel. Sunset Estate Properties, L.L.C. v.
Lodi, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, ¶ 18; Cleveland v. State,
138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 20-21; Norwood v. Horney,
110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 127; State v.
Hochhausler, 76 Ohio St.3d 455, 464, 668 N.E.2d 457 (1996); Hausman v. Dayton,
73 Ohio St.3d 671, 679, 653 N.E.2d 1190 (1995); Maurer, 71 Ohio St.3d at 523-
524, 644 N.E.2d 369; State ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115,
122, 543 N.E.2d 1169 (1989).
       {¶ 50} The dissent notes that in some cases, the court “deleted whole
sentences” and in others it “struck individual words,” but offers no explanation of
how striking words is different from the remedy we advance here. Dissenting
opinion at ¶ 71. Particularly, in both Doersam and Maurer, the remedy was similar
to the one in this case. In Doersam, the court struck only that provision that was
“violative of the mandate that no person shall be denied equal protection of the
laws” and accordingly deleted the words “if the death is due to injury received or
occupational disease first diagnosed.” Id. at 122. Despite the dissent’s novel
interpretation of Doersam, dissenting opinion at ¶ 75, the case is good law and has
been for more than 25 years. The dissent’s reference to an opinion concurring in
part and dissenting in part in that case does not change the majority’s holding or
remedy. In Maurer, the court excised all references to commutations and reprieves
in a statute, including the phrase “commutation of sentence, or reprieve.” Id. at
523-524. In order to excise all the unlawful provisions related to commutations or
reprieves, the court had to sever ancillary words, not merely “one or more terms in
a series that were unconstitutional,” as the dissent claims. Dissenting opinion at




                                        17
                             SUPREME COURT OF OHIO




¶ 71. Thus, our own precedent in severing language in Doersam and Maurer further
establishes that the severance remedy we employ in this case is permissible.
       {¶ 51} Finally, R.C. 1.50 and our case law support our limited severance
remedy. The Geiger test prohibits severance if the unconstitutional part of the
statute is “so connected with the general scope of the whole as to make it impossible
to give effect to the apparent intention of the Legislature if the clause or part is
stricken out.” Geiger, 117 Ohio St. at 466, 160 N.E. 28. In other words, if it is
impossible to excise the unconstitutional language and still achieve the General
Assembly’s intent, then severance is not an option, and we must find the entire
statute unconstitutional.
       {¶ 52} We have reiterated the primacy of preserving the legislature’s intent
on a number of occasions. In Doersam, we recognized “our obligation to preserve
as much of the General Assembly's handiwork as is constitutionally permissible.”
Id. at 121. And in Foster, we emphasized that goal on at least three occasions.
First, we recognized that “[e]xcising the unconstitutional provisions does not
detract from the overriding objectives of the General Assembly * * *.” Id., 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at ¶ 98.              Next, we noted,
“Significantly, the severance remedy preserves ‘truth in sentencing,’ a fundamental
element of S.B. 2.” Id. at ¶ 101. And finally, we admired the remedy:


       Severance also is the remedy that will best preserve the paramount
       goals of community safety and appropriate punishment and the
       major elements of our sentencing code. Removing presumptive
       terms and preserving the remainder of the sentencing provisions of
       the code will most effectively preserve the General Assembly’s goal
       of truth in sentencing.




                                         18
                                 January Term, 2016




Id. at ¶ 102. Just as the court attempted to apply the severance remedy in Foster in
a way that preserved the General Assembly’s intent, we endeavor to give effect to
the legislature’s intent by carefully excising only those provisions of the statute that
are unconstitutional and can be severed.
        {¶ 53} Conversely, the dissent’s proposed severance of R.C. 2953.73(E) in
its entirety would violate Geiger by “chang[ing] the meaning of the language the
legislature enacted”—just what the dissent forswears. Dissenting opinion at ¶ 80.
Most obviously, the dissent seeks to reject the legislature’s intent altogether by
removing the entire statutory section by which the General Assembly provided
eligible capital offenders an appeal to the Supreme Court. Indeed, the dissent
makes this intent clear:      “The duty to review error allegedly occurring in
postconviction proceedings in death-penalty cases belongs in the first instance to
the appellate courts of this state.” Dissenting opinion at ¶ 79. Additionally, R.C.
2953.73(E) currently provides a right of appeal only to offenders, but wholly
severing (E), could open up the right of appeal to the state.
        {¶ 54} As the Eighth District Court of Appeals explained in State v.
Montgomery:


        The first sentence of R.C. 2953.73 makes it clear that R.C. 2953.71
        to 2953.84 govern the appealability of orders entered in such
        proceedings: “A judgment and order of a court entered under
        division (D) of this section [concerning a court's determination to
        accept or reject an application for DNA testing] is appealable only
        as provided in this section.” * * * [W]e find that only the defendant
        whose application for DNA testing has been rejected is permitted to
        appeal. R.C. 2953.73(E) provides that if the trial court rejects an
        application for DNA testing, the defendant can appeal by leave of
        court to the supreme court in a death penalty case; in any other case,




                                           19
                               SUPREME COURT OF OHIO




          the defendant can appeal as of right to the relevant court of appeals.
          There is no provision for an appeal by the state.


(Brackets sic.) 8th Dist. Cuyahoga No. 97143, 2012-Ohio-1640, ¶ 12-13.
          {¶ 55} By entirely severing (E), the dissent ensures that the only means of
appealing a decision concerning a postconviction DNA testing application is R.C.
2505.03(A), which provides, “Every final order, judgment, or decree of a court
* * * may be reviewed on appeal by a court of common pleas, a court of appeals,
or the supreme court, whichever has jurisdiction.” Unlike the language in (E) that
the dissent would sever, R.C. 2505.03 does not restrict the state’s right to file an
appeal.
          {¶ 56} The dissent posits that the state’s right to appeal would arise in R.C.
2945.67(A), but that law applies specifically to criminal cases. It is well settled
that postconviction relief is civil in nature, so R.C. 2945.67 is inapplicable. Broom,
146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, citing Steffen, 70 Ohio
St.3d 399, 410, 639 N.E.2d 67 (1994). But even if R.C. 2945.67 did govern
postconviction appeals, it still allows the state to appeal with the court’s permission,
while the legislature clearly intended to eliminate the state’s appellate right when it
drafted R.C. 2953.73 and gave appellate rights only to offenders.
          {¶ 57} Because the dissent’s remedy fails to satisfy the second part of the
Geiger test, it is unworkable. The dissent’s strict adherence to its own faulty
interpretation of the Geiger test would render it necessary for us to strike down the
entire postconviction DNA-testing statute. See State ex rel. Whitehead v. Sandusky
Cty. Bd. of Commrs., 133 Ohio St.3d 561, 2012-Ohio-4837, 979 N.E.2d 1193,
¶ 40-41.
Severance of R.C. 2953.72(A)(8)
          {¶ 58} Because we sever the challenged portion of the postconviction law,
we must consider a related section, R.C. 2953.72(A)(8), which delineates the




                                           20
                                January Term, 2016




requirements that the offender must acknowledge and submit on a form provided
by the attorney general with the offender’s application for DNA testing.
       {¶ 59} Pursuant to this section, the offender acknowledges that “the
offender may seek leave of the supreme court to appeal the rejection to that court if
the offender was sentenced to death for the offense for which the offender is
requesting the DNA testing and, if the offender was not sentenced to death for that
offense, may appeal the rejection to the court of appeals * * *.”               R.C.
2953.72(A)(8). This section is unconstitutional for the same reasons that R.C.
2953.73(E) is invalid. But we can save the section by excising text from this portion
in a way that passes the Geiger test and results in a constitutional statute.
       {¶ 60} Specifically, by severing the text that reads “seek leave of the
supreme court to,” “that court if the offender was sentenced to death for the offense
for which the offender is requesting the DNA testing and, if the offender was not
sentenced to death for that offense, may appeal the rejection to,” and “to the court
of appeals,” the section is left with the direction that “the offender may appeal the
rejection.” The revised R.C. 2953.72(A)(8) has meaning, can be read alone without
the addition of any new language, comports with the revised R.C. 2953.73(E)(1),
and continues to give effect to the General Assembly’s intent (in this case providing
a summary of the right of appeal set forth in R.C. 295.73).             Because R.C.
2953.72(A)(8) refers applicants back to R.C. 2953.71 through 2953.81, we are not
concerned that the statute’s instructions for appeal are now less detailed. R.C.
2953.72(A)(8) is meant to provide only a summary of the statutory scheme for
postconviction DNA testing, and it still achieves that goal.
       {¶ 61} Without undertaking a Geiger analysis, the dissent states that it
would sever all of R.C. 2953.72(A)(8) and 2953.72 (A)(9). But entirely excising
both of these sections would violate the Geiger test by failing to give effect to the
intention of the legislature, and create another unworkable remedy. Once again,
the dissent’s proposed remedy fails by significantly expanding the scope of appeal.




                                          21
                             SUPREME COURT OF OHIO




       {¶ 62} R.C. 2953.72(A)(8) specifies:


       [T]he court of common pleas has the sole discretion subject to an
       appeal as described in this division to determine whether an offender
       is an eligible offender and whether an eligible offender’s application
       for DNA testing satisfies the acceptance criteria described in
       division (A)(4) of this section and whether the application should be
       accepted or rejected [and] no determination otherwise made by the
       court of common pleas in the exercise of its discretion regarding the
       eligibility of an offender or regarding postconviction DNA testing
       under those provisions is reviewable by or appealable to any court.


R.C. 2953.72(A)(9) emphasizes:


       [A]n offender who participates in any phase of the mechanism
       contained in [R.C. 2953.71 to 2953.81], including, but not limited
       to, applying for DNA testing and being rejected, having an
       application for DNA testing accepted and not receiving the test, or
       having DNA testing conducted and receiving unfavorable results,
       does not gain as a result of the participation any constitutional right
       to challenge, or, except as provided in division (A)(8) of this section,
       any right to any review or appeal of, the manner in which those
       provisions are carried out.


       {¶ 63} Sections (A)(8) and (A)(9) closely circumscribe the issues that an
offender may raise on appeal. The dissent, by excising (A)(8) and (A)(9), and
therefore implicitly seating the appellate right in R.C. 2505.03, would broadly
expand the rights of offenders to appeal any final order or judgment of the court in




                                         22
                                January Term, 2016




relation to their application for postconviction DNA testing and to seek review of
any element of the decision with which the offender disagrees. The legislature
plainly intended, through (A)(8) and (A)(9), to limit what findings a court could
review on appeal. The dissent’s remedy would frustrate that intent, violating
Geiger and the dissent’s own admonition. Because we can lawfully sever the
unconstitutional portions of Ohio’s postconviction DNA testing law under the rules
set forth in Geiger, we conclude that severance is the appropriate remedy.
Accordingly, we hold that the unconstitutional and void provisions of the law are
severed, as described above.
                                  CONCLUSION
       {¶ 64} We hold that R.C. 2953.73(E)(1) violates the right to equal
protection under the United States and Ohio Constitutions. We further hold that
the unconstitutional portions of the statutory scheme can be excised to create a
lawful procedure that provides an appeal of right to this court for capital offenders.
Consistent with our constitutional duty to preserve the constitutional portions of a
statute, we apply the severance remedy to the legislatively created appellate process
for capital offenders seeking postconviction DNA testing pursuant to R.C.
2953.73(E)(1). Noling and other eligible capital offenders are now entitled to an
appeal of right to the Ohio Supreme Court. This appeal is sua sponte converted to
an appeal as of right, and the parties shall proceed in accordance with S.Ct.Prac.R.
16.01 to 16.08. Noling shall file his brief addressing the merits of the trial court’s
judgment denying his application for postconviction DNA testing within 40 days
from the issuance of this decision.
                                                              Judgment accordingly.
       PFEIFER, LANZINGER, and MOORE, JJ., concur.
       O’DONNELL, J., dissents, with an opinion joined by KENNEDY and FRENCH,
JJ.




                                         23
                            SUPREME COURT OF OHIO




       CARLA D. MOORE, of the Ninth District Court of Appeals, sitting for
O’NEILL, J.
                               _________________
       O’DONNELL, J., dissenting.
       {¶ 65} Respectfully, I dissent.
       {¶ 66} At issue here are the provisions of R.C. 2953.73(E), which purport
to vest this court with exclusive appellate jurisdiction to review the trial court’s
denial of postconviction DNA testing pursuant to R.C. 2953.71 et seq.
       {¶ 67} R.C. 2953.73(E) provides:


               A judgment and order of a court entered under division (D)
       of this section is appealable only as provided in this division. If an
       eligible offender submits an application for DNA testing under
       section 2953.73 of the Revised Code and the court of common pleas
       rejects the application under division (D) of this section, one of the
       following applies:
               (1) If the offender was sentenced to death for the offense for
       which the offender claims to be an eligible offender and is
       requesting DNA testing, the offender may seek leave of the supreme
       court to appeal the rejection to the supreme court. Courts of appeals
       do not have jurisdiction to review any rejection if the offender was
       sentenced to death for the offense for which the offender claims to
       be an eligible offender and is requesting DNA testing.
               (2) If the offender was not sentenced to death for the offense
       for which the offender claims to be an eligible offender and is
       requesting DNA testing, the rejection is a final appealable order, and
       the offender may appeal it to the court of appeals of the district in
       which is located that court of common pleas.




                                         24
                                 January Term, 2016




        {¶ 68} I agree with the majority that this statute is unconstitutional because
it creates different appellate remedies for capital and noncapital offenders: capital
offenders may seek leave to appeal to the Ohio Supreme Court, but noncapital
offenders may appeal to a district court of appeals as of right. However, I dissent
from the remedy imposed by the majority to selectively sever words, not provisions,
from the statute, changing the discretionary appeal to the supreme court intended
by the General Assembly into a direct appeal to this court.
                                      Severance
        {¶ 69} R.C. 1.50 permits courts to sever unconstitutional provisions of a
statute in order to preserve its constitutional provisions:


                If any provision of a section of the Revised Code or the
        application thereof to any person or circumstance is held invalid, the
        invalidity does not affect other provisions or applications of the
        section or related sections which can be given effect without the
        invalid provision or application, and to this end the provisions are
        severable.


Thus, our role in applying the severance remedy is to determine whether we can
give effect to the statute “without the invalid provision.”
        {¶ 70} But the authority to sever the unconstitutional part of a statute does
not give this court license to rewrite it by selectively deleting words to change the
meaning of the language that the legislature enacted. Rather, we are to consider
whether the unconstitutional provision is capable of separation from the remaining
parts of the statute.
        {¶ 71} The majority notes that “the court has partially severed portions of a
statute on a number of occasions.” Majority opinion at ¶ 49. That may be true, but




                                          25
                                SUPREME COURT OF OHIO




that does not justify selectively deleting words to rewrite the statute that the
legislature enacted. Notably, the court in State ex rel. Sunset Estate Properties,
L.L.C. v. Lodi, 142 Ohio St.3d 351, 2015-Ohio-790, 30 N.E.3d 934, ¶ 18, Cleveland
v. State, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, ¶ 20-21, Norwood v.
Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 127, and State
v. Hochhausler, 76 Ohio St.3d 455, 464, 668 N.E.2d 457 (1996), deleted whole
sentences from the statute. And while the court in Hausman v. Dayton, 73 Ohio
St.3d 671, 679, 653 N.E.2d 1190 (1995), and State ex rel. Maurer v. Sheward, 71
Ohio St.3d 513, 523-524, 644 N.E.2d 369 (1994), struck words, it did so to
eliminate one or more terms in a series that were unconstitutional while allowing
the valid provisions to remain. In each of these cases, the court struck the invalid
provisions in their entirety.
        {¶ 72} The majority, however, now asserts that in applying the severance
remedy, the court must, “whenever possible,” respect the role of the legislature to
create laws by saving as much of a statutory scheme as possible through severing
what is unconstitutional and allowing what is not to remain. Majority opinion at
¶ 46. That test, however, has never been part of our jurisprudence until today.
        {¶ 73} In Cleveland v. State, for example, the court invalidated a provision
of R.C. 4921.25, which at that time provided:


                Any person, firm, copartnership, voluntary association,
        joint-stock association, company, or corporation, wherever
        organized or incorporated, that is engaged in the towing of motor
        vehicles is subject to regulation by the public utilities commission
        as a for-hire motor carrier under this chapter. Such an entity is not
        subject to any ordinance, rule, or resolution of a municipal
        corporation, county, or township that provides for the licensing,
        registering, or regulation of entities that tow motor vehicles.




                                          26
                                  January Term, 2016




2012 Am.Sub.H.B. No. 487.
          {¶ 74} We held that the first sentence of the statute was constitutional but
that the second sentence was not, because it “unconstitutionally limits municipal
home-rule authority.” Cleveland at ¶ 17. Applying the majority’s novel severance
remedy advanced today, we could have saved as much of a statutory scheme as
possible by simply deleting the word “not” from the second sentence of former R.C.
4921.25. We did not, because doing so would have usurped the role of the General
Assembly. Rather, because the second sentence of former R.C. 4921.25 created an
unconstitutional limitation on municipal home rule, we severed it in its entirety.
          {¶ 75} The majority points to a case supporting its novel position, State ex
rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 543 N.E.2d 1169 (1989). In
Doersam, the court held that an amendment to R.C. 4123.59(B) violated equal
protection by creating two classes of claimants who may receive workers’
compensation death benefits and providing greater benefits “ ‘if the death is due to
injury received or occupational disease first diagnosed after January 1, 1976.’ ”
(Emphasis omitted.)        Doersam at 117, quoting former R.C. 4123.59(B),
Am.Sub.H.B. No. 545, 136 Ohio Laws, Part I, 1075, 1167. Although the court
initially struck the amendment in its entirety with the effect of eliminating increased
benefits for all claimants, id. at 121 fn. 1, on reconsideration a majority of the court
decided to strike the phrase “if the death is due to injury received or occupational
disease first diagnosed,” resulting in all claimants receiving increased benefits, id.
at 122.
          {¶ 76} Doersam was wrongly decided and represents a blatant exercise of
judicial activism.     As Justice Wright indicated in his separate opinion, the
majority’s approach, “well meaning though it may be,” id. at 124 (Wright, J.,
concurring in part and dissenting in part), failed to recognize the difference between
severing a part of a statute—leaving any remedy to the wisdom of elected




                                           27
                              SUPREME COURT OF OHIO




lawmakers—and amending it by judicial fiat. In his view, “the entire [provision]
must be stricken rather than the court picking and choosing words to delete.” Id. at
123. And because it was the entire amendment that violated equal protection, it
was the entire amendment that had to be severed.
        {¶ 77} In this case, the invalid provision to be severed is the entirety of R.C.
2953.73(E), because that provision denies capital offenders equal protection of law
by providing different appellate remedies for capital and noncapital offenders. The
majority, by selectively striking words from within this provision—deleting only
the phrase “seek leave of the supreme court to”—has not severed an invalid
statutory provision but rather has engaged in judicially legislating from the bench,
because it transforms a capital offender’s discretionary appeal into a direct appeal
to this court.
        {¶ 78} Thus, contrary to its claim to the contrary, it is the majority’s remedy
that fails the severance test established in Geiger v. Geiger, 117 Ohio St. 451, 466,
160 N.E. 28 (1927). The threshold question in that test is, “ ‘Are the constitutional
and the unconstitutional parts capable of separation so that each may be read and
may stand by itself?’ ” (Emphasis added.) Id., quoting State v. Bickford, 28 N.D.
36, 147 N.W. 407, 409 (1913). The point of the first prong of the Geiger test is to
ensure that a court severs the invalid provision in its entirety rather than selectively
deleting a few words from within it, and here, it is manifest that the phrase “seek
leave of the supreme court to” cannot be read and stand by itself.
        {¶ 79} Further, severance is appropriate only if it serves and effectuates
legislative intent.   The majority, however, only speculates that the General
Assembly, if it had foreseen our decision today, would have provided a direct
appeal as of right to our court rather than a direct appeal to the courts of appeals,
which the legislature has afforded to all other offenders requesting DNA testing as
well as all those seeking postconviction relief. The duty to review error allegedly
occurring in postconviction proceedings in death-penalty cases belongs in the first




                                          28
                                January Term, 2016




instance to the appellate courts of this state. See generally State v. Davis, 131 Ohio
St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516.
       {¶ 80} The majority claims that severing R.C. 2953.73(E) in its entirely
changes the meaning of the statute as enacted by granting the state a right to a direct
appeal not provided by the statute. However, the state’s right to appeal in a criminal
case is provided by R.C. 2945.67(A), not R.C. 2505.03, and thus, severance of R.C.
2953.73(E) would potentially allow the state an appeal by leave of the appellate
court, not an appeal as of right. This results not from rewriting the statute but
because generally applicable law—here, R.C. 2945.67(A)—fills the gap left by the
severed invalid provisions.
       {¶ 81} There is a difference between a severance that makes preexisting law
applicable and a severance that rewrites a statute by selectively deleting its words
to reach a specific result, and that distinction is respected by our case precedent.
       {¶ 82} For instance, the majority cites State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, as an example of the court’s respecting “the role
of the legislature to create laws by saving as much of a statutory scheme as possible
through severing what is unconstitutional and allowing what is not to remain.”
Majority opinion at ¶ 46. But in Foster, we concluded that various provisions of
S.B. 2 violated the Sixth Amendment right to a jury trial and held that these
“sections are severed and excised in their entirety.” (Emphasis added.) Foster at
¶ 97. The Foster remedy similarly reinstated preexisting law, such as the common
law presumption that multiple sentences run consecutively, filling the gaps left
when we severed the invalid provisions of S.B. 2. See State v. Bates, 118 Ohio
St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 16, 18.
       {¶ 83} In applying the severance remedy in Foster, we explicitly sought to
uphold the legislative intent of the General Assembly in enacting S.B. 2, and we
decided that “[r]emoving presumptive terms and preserving the remainder of the
sentencing provisions of the code will most effectively preserve the General




                                          29
                             SUPREME COURT OF OHIO




Assembly’s goal of truth in sentencing.”      Foster at ¶ 102. And although we
recognized that severance arguably “vitiates S.B. 2’s goals,” id. at ¶ 100, we
nonetheless explained that “we are constrained by the principles of separation of
powers and cannot rewrite the statutes,” id., emphasizing that “[h]owever tempting
it may be for this court to reconfigure the sentencing code to cause the least impact
on our criminal-justice system, we must adhere to our traditional judicial role,” id.
at ¶ 102.
       {¶ 84} In my view, R.C. 2953.73(E) is unconstitutional, and as in Foster,
we should resist the temptation to reconfigure by judicial fiat the invalid appellate
process that the legislature enacted. Severing R.C. 2953.73(E) from the statute and
severing R.C. 2953.72(A)(8) and (9)—which require the form for requesting DNA
testing to provide notice of the offender’s appellate rights as provided in R.C.
2953.73(E)—is in line with our precedent and permits this court to give effect to
the remaining provisions of R.C. 2953.71 et seq., clarifying that an offender denied
DNA testing may bring a direct appeal to the court of appeals pursuant to the law
governing appeals in other postconviction proceedings, in accord with our holding
in Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, in which we stated:


               A holding that the Supreme Court has exclusive jurisdiction
       over all matters relating to a death-penalty case would be contrary
       to the language of the constitutional amendments and the statute and
       would have the effect of delaying the review of future cases, a
       scenario that the voters expressly rejected in passing the
       constitutional amendments. We see no reason why the courts of
       appeals may not currently entertain all appeals from the denial of
       postjudgment motions in which the death penalty was previously
       imposed.




                                         30
                                 January Term, 2016




(Emphasis sic and footnote omitted.) Id. at ¶ 22.
       {¶ 85} For these reasons, I would sever the provisions of R.C. 2953.73(E)
and 2953.72(A)(8) and (9) and transfer this appeal to the Eleventh District Court of
Appeals for its consideration of this matter in the first instance.
       KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
                                _________________
       Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela
Holder, Assistant Prosecuting Attorney, for appellee.
       Ohio Innocence Project and Mark Godsey; and Timothy Young, Ohio
Public Defender, and Carrie Wood, Assistant State Public Defender, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Peter
T. Reed, Deputy Solicitor, and Thomas E. Madden, Senior Assistant Attorney
General, urging affirmance for amicus curiae, Ohio Attorney General Michael
DeWine.
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