[Cite as State v. Cordell, 2011-Ohio-1735.]




               IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO. 2010 CA 19

v.                                                   :        T.C. NO.    09CR432

PHILLIP K. CORDELL                                   :        (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellant                    :

                                                     :

                                              ..........

                                              OPINION

                          Rendered on the      8th   day of    April     , 2011.

                                              ..........

STEPHANIE R. HAYDEN, Atty. Reg. No. 0009172, Assistant Prosecutor, 61 Greene
Street, Xenia, Ohio 45385
        Attorney for Plaintiff-Appellee

PHILLIP K. CORDELL, Atty. Reg. No. #608-591, Chillicothe Correctional Institute, P. O.
Box 5500, Chillicothe, Ohio 45601
      Defendant-Appellant

                                              ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Phillip K. Cordell, pro se, appeals a decision of the

Greene County Court of Common Pleas overruling his application for post-conviction

deoxyribonucleic acid (DNA) testing pursuant to R.C. 2953.71 through 2953.84. Cordell
                                                                                            2

filed his pro se memorandum in support of his application for post-conviction DNA testing

on January 4, 2010. On January 7, 2010, the State filed a motion to dismiss Cordell’s

application for DNA testing. The trial court filed its decision and entry overruling Cordell’s

application on January 27, 2010. Cordell filed a notice of appeal with this Court on March

18, 2010.

                                                  I

       {¶ 2} On July 13, 2009, Cordell pleaded guilty to one count of involuntary

manslaughter, in violation of 2903.04(B), in Case No. 2009 CR 0432. The trial court

sentenced Cordell to five years in prison. Cordell filed a timely notice of appeal with this

Court on August 7, 2009. Cordell’s appointed appellate counsel filed a brief pursuant to

Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Cordell filed a

pro se supplemental brief on August 27, 2010. In an opinion issued on October 29, 2010,

we affirmed Cordell’s conviction and sentence. State v. Cordell, Greene App. No. 2009 CA

57, 2010-Ohio-5277.

       {¶ 3} While his direct appeal was pending, Cordell filed a pro se application for

post-conviction DNA testing pursuant to R.C. 2953.71 through 2953.81. The State filed a

motion to dismiss in response to the application arguing that Cordell was ineligible for DNA

testing because he pled guilty to the underlying felony charge of involuntary manslaughter.

R.C. 2953.72(C)(2). In a brief judgment entry dismissing Cordell’s application, the trial

court simply found that he was “not an eligible inmate,” without offering any further

explanation for it decision.

       {¶ 4} It is from this decision that Cordell now appeals.
                                                                                               3

                                                   II

       {¶ 5} Although Cordell has filed a relatively lengthy brief, he has not complied

with several of the briefing requirements of App. R. 16(A). Cordell is responsible for

complying with the appellate rules notwithstanding his pro se status. Most notably, he had

failed to provide a statement of assignments of error. App. R. 16(A)(3). Nevertheless, we

understand Cordell to essentially claim that the trial court erred when it found that he was

not an eligible inmate and dismissed his application for post-conviction DNA testing.

Specifically, Cordell asserts that the trial court erred when it failed to apply R.C. 2953.82 in

order to determine the correct eligibility requirements for an inmate who files an application

for post-conviction DNA testing and who pled guilty or no contest to the underlying charge.

For the following reasons, we reverse the decision of the trial court.

       {¶ 6} R.C. 2953.82 sets forth the requirements regarding applications for DNA

testing submitted by an inmate who pled guilty or no contest to the offense for which he is

incarcerated. R.C. 2953.82(A).1 R.C. 2953.82 states in pertinent part:

       {¶ 7} “(A) An inmate who pleaded guilty or no contest to a felony offense may

request DNA testing under this section regarding that offense if all of the following apply:

       {¶ 8} “(1) The inmate was sentenced to a prison term *** for that felony, and is in

prison serving that prison term ***.

       {¶ 9} “(2) On the date on which the inmate files the application requesting the



          1
           On July 7, 2010, R.C. 2953.82 was repealed by the Ohio General
   Assembly. However, when Cordell filed his application for post-conviction DNA
   testing on January 7, 2010, R.C. 2953.82 was still in effect. As such, we apply
   the law that was in effect at the time the issue was decided.
                                                                                                4

testing ***, the inmate has at least one year remaining on the prison term described in

division (A)(1) of this section ***.”

       {¶ 10} In his brief, Cordell argues that the trial court erred when it analyzed his

application for DNA testing pursuant to R.C. 2953.72(C)(2). Rather, Cordell contends that

since he pled guilty to the underlying charge the court should have analyzed his application

pursuant to R.C. 2953.82.

       {¶ 11} After a thorough review of the record as well as the statutes involved in the

instant determination, we find that the trial court erred when it held that Cordell was

ineligible to apply for post-conviction DNA testing. As previously stated, Cordell pled

guilty to one count of involuntary manslaughter on July 13, 2009. Accordingly, R.C.

2953.82 was the statute that the trial court should have relied upon in order to determine

whether Cordell was eligible to file an application for DNA testing. Although the trial court

did not expressly state in its judgment entry which section of the Ohio Revised Code upon

which it relied in finding that Cordell was ineligible to apply for post-conviction DNA

testing, the State argued in its motion to dismiss that Cordell was not an eligible inmate

because he pled guilty to the underlying charge. R.C. 2953.72(C)(2). The State did not

mention or otherwise attempt to distinguish R.C. 2953.82 in it motion to dismiss. Thus, we

must infer, for purposes of the instant appeal, that the trial court relied upon R.C.

2953.72(C)(2), the incorrect section of the statute, when it dismissed Cordell’s application.

       {¶ 12} We note Cordell’s application for DNA testing initially states that it is being

filed pursuant to R.C. 2953.71 through 2953.81.           Despite this initial language, the

application specifically states the following regarding the inclusion of requests for
                                                                                             5

post-conviction DNA testing arising under R.C. 2953.82:

       {¶ 13} “(11) That, if the inmate is an inmate who pleaded guilty or no contest to a

felony offense and who is using the application and acknowledgment to request DNA testing

under section 2953.82 of the Revised Code, all references in the acknowledgment to an

‘eligible inmate’ are considered to be references to, and apply to, the inmate and all

references in the acknowledgment to ‘sections 2953.71 to 2953.81 of the Revised Code’ are

considered to be references to ‘section 2953.82 of the Revised Code.’”

       {¶ 14} The application is a standard document provided by the office of the Ohio

Attorney General for use in Ohio courts, and it contains spaces in which the applicant can

print or type the required information. The referenced language in the application also

corresponds to language in R.C. 2953.82(B) regarding the inmate’s status as a potentially

eligible offender who pled either guilty or no contest to the underlying offense and now

requests post-conviction DNA testing. Simply put, the application provided by the State

contained language that informed all of the parties that an inmate who previously pled guilty

or no contest was not restricted from applying for post-conviction DNA testing.

       {¶ 15} Had the trial court analyzed Cordell’s application pursuant to R.C. 2953.82, it

should have found that he was an eligible inmate. In light of the foregoing, we conclude

that the trial court erred when it failed to consider R.C. 2953.82 in determining whether

Cordell was eligible to file an application for post-conviction DNA testing. As a final note,

we must point out that our holding in the instant appeal is not determinative as to whether

Cordell’s application for DNA testing should ultimately be granted, only that he is eligible to
                                                                                          6

file an application pursuant to R.C. 2953.82.2

                                                 III

       {¶ 16} In light of the foregoing, the judgment of Greene County Court of Common

Pleas is reversed, and this matter is remanded for proceedings consistent with this opinion.



                                         ..........

GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Stephanie R. Hayden
Phillip K. Cordell
Hon. Stephen A. Wolaver




          2
           We also note that on May 2, 2007, the Ohio Supreme Court ruled that
   section (D) of R.C. 2953.82 was unconstitutional as it violated the separation of
   powers doctrine. State v. Sterling, 113 Ohio St.3d 255, 2007-Ohio-1790.
   Section (D) made final and unappealable to any court a prosecuting attorney’s
   disagreement with a prison inmate’s request for post-conviction DNA testing after
   a plea of guilty or no contest. Sterling further stated that the unconstitutional
   section was severable from the remainder of R.C. 2953.82, which stayed in
   effect until July 6, 2010, when the statute was repealed.
