[Cite as State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764.]




             THE STATE OF OHIO, APPELLEE, v. NOLING, APPELLANT.
          [Cite as State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764.]
Criminal      law—R.C.        2953.73—Postconviction             DNA   testing—Appellate
        jurisdiction—R.C. 2953.73(E)(1), which grants exclusive jurisdiction to
        the Supreme Court of Ohio to review rejections of applications for DNA
        testing in cases in which the death penalty is imposed, is constitutional—
        Before dismissing a subsequent application for postconviction DNA
        testing under R.C. 2953.72(A)(7), a trial court must apply the definition of
        “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C.
        2953.74.
      (No. 2011-0778—Submitted January 8, 2013—Decided May 2, 2013.)
  APPEAL from the Court of Common Pleas of Portage County, No. 95 CR 220.
                                  __________________
                               SYLLABUS OF THE COURT
 1. R.C. 2953.73(E)(1), which grants exclusive jurisdiction to the Supreme Court
        of Ohio to review rejections of applications for DNA testing in cases in
        which the death penalty is imposed, is constitutional.
 2. Before dismissing a subsequent application for postconviction DNA testing
        under R.C. 2953.72(A)(7), a trial court must apply the definition of
        “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C.
        2953.74.
                                  __________________
        LANZINGER, J.
        {¶ 1} Tyrone Noling, the defendant-appellant in this capital case, has
appealed from an order of the Court of Common Pleas of Portage County
rejecting his second application for postconviction DNA testing. Two issues are
                            SUPREME COURT OF OHIO




presented: (1) whether R.C. 2953.73(E)(1) is constitutional in conferring appellate
jurisdiction upon this court from a trial court’s denial of postconviction DNA
testing in a case in which the death penalty was imposed and (2) whether R.C.
2953.72(A) bars a subsequent application for postconviction DNA testing when a
prior application was rejected under previous versions of the DNA-testing
statutes.
        {¶ 2} We hold that R.C. 2953.73(E)(1) is constitutional. We also hold
that before dismissing a subsequent application for postconviction DNA testing
under R.C. 2953.72(A)(7), a trial court must apply the definition of “definitive
DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74.
                             I. Factual Background
        {¶ 3} Noling was found guilty of the April 1990 aggravated murders of
Bearnhardt and Cora Hartig in Portage County, Ohio. He was sentenced to death
on two counts. Both 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. Although this case has an extensive postconviction history, the only
issue now before us is Noling’s request for postconviction DNA testing under
R.C. 2953.71 to 2953.81.
        {¶ 4} In his first postconviction application on September 25, 2008,
Noling sought DNA testing of a cigarette butt found on the driveway of the Hartig
home. Noting that a DNA test conducted before trial had already excluded
Noling as well as each codefendant as the person who had smoked the cigarette,
the trial court rejected Noling’s application because it found the earlier DNA test
to be definitive.
        {¶ 5} On April 10, 2009, Noling appealed the entry rejecting his
application to the Eleventh District Court of Appeals. The court of appeals
dismissed the appeal for lack of jurisdiction under R.C. 2953.73(E)(1). State v.
Noling, 11th Dist. No. 2009-P-0025, 2009-Ohio-3789, ¶ 9. Noling also filed a




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                                January Term, 2013




notice of appeal of the trial court’s rejection of his DNA application with this
court while his appeal was pending in the Eleventh District. On September 29,
2010, we declined to accept Noling’s appeal of the trial court’s decision. State v.
Noling, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934 N.E.2d 355.
        {¶ 6} On December 28, 2010, Noling filed a second application for DNA
testing of the cigarette butt based on newly discovered evidence that he asserted
identifies other suspects in the Hartig murders. First, Noling alleged that the
prosecution had failed to disclose a statement made by Nathan Chesley that
inculpated his foster brother, Daniel Wilson, in the Hartig murders. Chesley, in
an affidavit supporting the application, described Wilson as a heavy drinker and a
violent person who had committed thefts and broken into homes at the time of the
Hartig murders. He also stated that Wilson drove a blue Dodge Omni—a dark
blue, midsize car was seen by another witness near the Hartig residence on the
day of the murders. According to Noling, previous analysis of the cigarette butt
and of Wilson’s saliva did not exclude Wilson as the source of the DNA on the
cigarette.   Second, Noling’s application alleged that documents that were
previously undisclosed by the state identified other possible suspects, including
the Hartigs’ insurance agent, who had borrowed money from the Hartigs but had
defaulted on the loan. Noling also claimed that because of advances in DNA
technology, it is now possible to positively identify the individual whose DNA is
on the cigarette butt and that DNA identification of one of the previously
undisclosed suspects would be “outcome determinative,” because it would
identify the true killer.
        {¶ 7} On March 28, 2011, the trial court denied Noling’s second
application, stating:


                Revised Code 2953.72(A)(7) states that “If the court rejects
        an eligible offender’s application for DNA testing because the




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                            SUPREME COURT OF OHIO




       offender does not satisfy the acceptance criteria described in
       Division (A)(4) of this section, the court will not accept or consider
       subsequent applications.”
              In this case Defendant Tyrone Noling submitted a properly
       filed application for post conviction testing on September 25th
       2008, the Court rejected that application and the Defendant
       appealed to the Supreme Court. Therefore, as this is a statutory
       action, the Court must reject Defendant’s second filing of the
       application for DNA testing based on Ohio Revised Code
       §2953.72(A)(7).


       {¶ 8} We accepted jurisdiction of Noling’s appeal on October 19, 2011,
on the following proposition of law: “Whether an application for post-conviction
DNA testing rejected under the old acceptance criteria set by the Legislature must
be considered under the Legislature’s new acceptance criteria rather than be
procedurally barred by R.C. 2953.72(A)(7).” 129 Ohio St.3d 1503, 2011-Ohio-
5358, 955 N.E.2d 386. Later, in light of State v. Davis, 131 Ohio St.3d 1, 2011-
Ohio-5028, 959 N.E.2d 516, we ordered the parties to address the
constitutionality of R.C. 2953.73(E)(1), which confers exclusive jurisdiction upon
this court to consider Noling’s appeal. 131 Ohio St.3d 1471, 2012-Ohio-896, 962
N.E.2d 802.
       {¶ 9} The threshold question in this case is whether we have jurisdiction
to consider Noling’s direct appeal of the trial court’s rejection of his second
application for DNA testing.
                                   II. Analysis
       A. Appellate Jurisdiction in Death-Penalty Cases
       {¶ 10} As we recently stated, “Subject-matter jurisdiction cannot be
waived and is properly raised by this court sua sponte. State v. Lomax, 96 Ohio




                                         4
                                 January Term, 2013




St.3d 318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17.” Davis, 131 Ohio St.3d 1,
2011-Ohio-5028, 959 N.E.2d 516, ¶ 11.
       {¶ 11} On November 8, 1994, Ohio voters approved amendments to the
Ohio Constitution that give this court appellate jurisdiction in direct appeals from
courts of common pleas in cases in which the death penalty has been imposed.
Ohio Constitution, Article IV, Section 2(B)(2)(c). Before the amendments, a trial
court’s judgment could be appealed—as in any criminal case—to a district court
of appeals. A second appeal as of right could then be filed in this court. The
amendments eliminated review by the courts of appeals of judgments that
sentenced a defendant to death for a crime that occurred on or after January 1,
1995. Ohio Constitution, Article IV, Section 3(B)(2). According to the joint
resolution that placed the issue on the ballot, the amendments to Article IV,
Sections 2 and 3 of the Ohio Constitution were intended “to give the Supreme
Court jurisdiction in direct appeals in death penalty cases as a matter of right, thus
removing the jurisdiction of the courts of appeals on direct review in death
penalty cases.” Sub.H.J.Res. No. 15, 145 Ohio Laws, Part IV, 7811.
       {¶ 12} The Ohio Constitution, Article IV, Section 2(B)(2)(c) now
provides: “The supreme court shall have appellate jurisdiction as follows: * * *
In direct appeals from the courts of common pleas or other courts of record
inferior to the court of appeals as a matter of right in cases in which the death
penalty has been imposed.” The following section, Article IV, Section 3(B)(2),
which relates to the jurisdiction of the courts of appeals, states:


               Courts of appeals shall have such jurisdiction as may be
       provided by law to review and affirm, modify, or reverse
       judgments or final orders of the courts of record inferior to the
       court of appeals within the district, except that courts of appeals




                                           5
                             SUPREME COURT OF OHIO




       shall not have jurisdiction to review on direct appeal a judgment
       that imposes a sentence of death.


Thus, courts of appeals were excluded from the direct appellate review of death
sentences.
       {¶ 13} We first addressed the 1994 amendments in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668 (1997). In Smith, this court upheld the constitutionality
of the amendments and also held that we have jurisdiction over both the capital
and noncapital aspects of a case:


       [T]he plain language of the amendments speaks of “cases in which
       the death penalty has been imposed” and “judgment that imposes
       the sentence of death.” * * * Section 2(B)(2)(c), Article IV and
       Section 3(B)(2), Article IV, Ohio Constitution. Thus the Supreme
       Court has jurisdiction over the whole case, instead of counts,
       charges, or sentences.


(Emphasis deleted.) Id. at 104.
       {¶ 14} Next, we considered whether the constitutional provision granting
this court appellate jurisdiction over cases in which the death penalty was
imposed precludes a court of appeals’ review of a trial court’s ruling on
postconviction motions. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d
516. We rejected the argument that this court “has exclusive jurisdiction over all
matters relating to a death-penalty case” and held that “a court of appeals has
jurisdiction to consider a trial court’s denial of a motion for leave to file a motion
for new trial based on newly discovered evidence in a case in which the death
penalty was previously imposed.” (Emphasis sic.) Id. at ¶ 22. We recognized
that the constitutional amendments prohibited a court of appeals from reviewing a




                                           6
                                January Term, 2013




judgment imposing a sentence of death. Ohio Constitution, Article IV, Section
3(B)(2). But the amendments did not prohibit a court of appeals from exercising
jurisdiction in other aspects of death-penalty cases.
       {¶ 15} Davis involved a motion for new trial. Therefore, we focused on
whether the courts of appeals retained any jurisdiction in cases in which the death
penalty had been imposed because the constitutional amendments had removed
the courts of appeals’ jurisdiction over the direct appeal of a death sentence. We
held that they did. Id. at ¶ 22. Now, the question is whether the General
Assembly may limit the courts of appeals’ jurisdiction in a statute that specifies
that this court has exclusive jurisdiction to hear appeals of the rejection of DNA
testing in cases in which the death penalty has been imposed. We hold that it
may.
       {¶ 16} Under the Ohio Constitution, in cases in which the death penalty
has been imposed, our jurisdiction overlaps with that of the courts of appeals.
Article IV, Section 2(B)(2)(c) provides that we have appellate jurisdiction over
direct appeals from the courts of common pleas “in cases in which the death
penalty has been imposed.” (Emphasis added.) In contrast, Article IV, Section
3(B)(2) states that courts of appeals have jurisdiction “as may be provided by
law” over all judgments and final orders but then continues with the specific
exception that those courts do not have jurisdiction “to review on direct appeal a
judgment that imposes a sentence of death.”
       {¶ 17} The dissent contends that the Ohio Constitution limits the
jurisdiction of this court in death-penalty cases to review only the appeal of a
judgment imposing a sentence of death.         In support of this interpretation, it
repeatedly cites a single sentence from our decision in Davis: “The foregoing
language limits the jurisdiction of the Supreme Court to the appeal of a judgment
sentencing a defendant to death.” (Emphasis added.) Davis at ¶ 15. The dissent
attributes the phrase “The foregoing language” solely to Article IV, Section




                                          7
                             SUPREME COURT OF OHIO




2(B)(2)(c) of the Ohio Constitution.          This is incorrect.      The paragraph
immediately before the sentence in Davis quoted R.C. 2953.02 rather than the
Ohio Constitution. Although this statute was amended to reflect the changes to
Sections 2(B)(2)(c) and 3(B)(2), it does not mirror the language of the
Constitution. R.C. 2953.02 provides, “In a capital case in which a sentence of
death is imposed * * *, the judgment or final order may be appealed from the trial
court directly to the supreme court as a matter of right.” (Emphasis added.) In
contrast, Article IV, Section 2(B)(2)(c) states that we have appellate jurisdiction
in “direct appeals from the courts of common pleas or other courts of record
inferior to the court of appeals as a matter of right in cases in which the death
penalty has been imposed.” (Emphasis added.) To the extent that the statute
appears to limit our review solely to the actual judgment entry imposing death
rather than to all final orders or judgment entries in capital cases, it conflicts with
the Constitution, and the Constitution will control.
       {¶ 18} Even if Davis were read to mean that “foregoing language”
referred to all previous 14 paragraphs, Davis addressed the court of appeals’
jurisdiction, not this court’s jurisdiction, over an appeal of an order denying a
motion for new trial. The dissent’s interpretation that our jurisdiction is limited to
reviewing judgments of death on direct appeal from the trial court rests on dicta.
       {¶ 19} The dissent’s interpretation is not consistent with the intent behind
the amendments to the Ohio Constitution. “It is a generally accepted premise that
courts must interpret the Constitution broadly in order to accomplish the manifest
purpose of an amendment.” State ex rel. Swetland v. Kinney, 69 Ohio St.2d 567,
570, 433 N.E.2d 217 (1982). The general public’s dissatisfaction with the long
delays that pervaded the death-penalty system was the background for the
constitutional change. See Smith, 80 Ohio St.3d at 95, 684 N.E.2d 668. The
constitutional amendments to grant the Supreme Court jurisdiction over direct




                                          8
                                January Term, 2013




appeals from the trial court in cases in which the death penalty was imposed was
the solution adopted by Ohio voters to eliminate that delay.
        {¶ 20} Therefore, when reading Article IV, Sections 2(B)(2)(c) and
3(B)(2) of the Ohio Constitution in pari materia, we conclude four things. First,
the Ohio Constitution grants the Supreme Court exclusive appellate jurisdiction
for direct review of judgments in which the sentence of death is imposed.
Second, the Constitution specifically excludes the courts of appeals from the
direct review of those same judgments. Third, 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. Fourth, because
grants of jurisdiction to the courts of appeals in death-penalty cases are only “as
provided by law,” the General Assembly may limit the court of appeals’
jurisdiction.
        {¶ 21} We have previously interpreted Article IV, Section 3(B)(2) to
mean that “the state has no absolute right of appeal in a criminal matter unless [it
has been] specifically granted such right by statute.” (Emphasis added.) State v.
Fisher, 35 Ohio St.3d 22, 24, 517 N.E.2d 911 (1988). For example, the state’s
right to appeal in criminal cases is governed by R.C. 2945.67(A):


                A prosecuting attorney * * * may appeal as a matter of
        right any decision of a trial court in a criminal case * * *, which
        decision grants a motion to dismiss all or any part of an indictment,
        complaint, or information, a motion to suppress evidence, or a
        motion for the return of seized property or grants post conviction
        relief pursuant to sections 2953.21 to 2953.24 of the Revised Code,
        and may appeal by leave of the court to which the appeal is taken
        any other decision, except the final verdict, of the trial court in a
        criminal case * * *.




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                             SUPREME COURT OF OHIO




Because the state has no statutory right to appeal a final verdict, a court of appeals
does not have subject-matter jurisdiction to entertain appeals from not-guilty
verdicts. See State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774 N.E.2d
249. We have also issued a writ of prohibition to prevent a court of appeals from
exercising jurisdiction over the state’s claimed appeal as of right of the grant of a
motion for a new penalty-phase trial. See State ex rel. Steffen v. Court of Appeals,
First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906. We
concluded that the court of appeals lacked jurisdiction because the state did not
have an appeal as of right and its request for leave to appeal was untimely filed.
Id. at ¶ 35.
        {¶ 22} R.C. 2953.08(D)(1) is another example of a statutory limit on a
court of appeals’ jurisdiction to hear an appeal. That section provides that “[a]
sentence imposed upon a defendant is not subject to review under this section if
the sentence is authorized by law, has been recommended jointly by the defendant
and the prosecution in the case, and is imposed by a sentencing judge.”
        B. Constitutionality of R.C. 2953.73(E)(1)
        {¶ 23} R.C. 2953.73(E)(1) governs the appellate procedure for a death-
row inmate to seek leave of this court to appeal the rejection of an application for
DNA testing and excludes the court of appeals from hearing those appeals.
        {¶ 24} R.C. 2953.73(E) states:


               A judgment and order of a court * * * 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 * * *,
        one of the following applies:




                                          10
                                 January Term, 2013




                  (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.


       {¶ 25} Statutes are presumed to be constitutional. State v. Hoover, 123
Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 8; State v. Collier, 62 Ohio
St.3d 267, 269, 581 N.E.2d 552 (1991). A statute will be upheld unless the
challenger meets the burden of establishing beyond a reasonable doubt that the
statute is unconstitutional. State v. Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698,
872 N.E.2d 894, ¶ 29; Collier at 269.
       {¶ 26} “ ‘It is a well-established principle of constitutional law that when
the jurisdiction of a particular court is constitutionally defined, the legislature
cannot by statute restrict or enlarge that jurisdiction unless authorized to do so by
the constitution.’ ” ProgressOhio.org v. Kasich, 129 Ohio St.3d 449, 2011-Ohio-
4101, 953 N.E.2d 329, ¶ 3, quoting Smith v. State, 289 N.C. 303, 328, 222 S.E.2d
412 (1976). “[N]either statute nor rule of court can expand our jurisdiction
beyond the constitutional grant.” Scott v. Bank One Trust Co., N.A., 62 Ohio
St.3d 39, 41, 577 N.E.2d 1077 (1991).




                                          11
                                SUPREME COURT OF OHIO




        {¶ 27} As discussed earlier, the 1994 amendment to Article IV, Section
2(B)(2)(c) of the Ohio Constitution granted this court jurisdiction over the direct
appeal of cases in which the death penalty is imposed.                   Thus, the General
Assembly’s provision in R.C. 2953.73(E)(1) that we have direct appellate review
of the denial of an application for postconviction DNA testing in cases where the
offender was sentenced to death is within the constitutionally defined jurisdiction
of this court. Nor is there a problem with the statute’s exclusive grant of authority
in such cases to review DNA-testing applications. Because courts of appeals have
such jurisdiction only “as may be provided by law,” the General Assembly may
limit that jurisdiction in cases in which the death penalty is imposed. The General
Assembly acted within its authority when it limited a court of appeals’ review to
the denial of DNA-testing applications in cases in which the death penalty was
not imposed. We therefore hold that R.C. 2953.73(E)(1) is constitutional.
        {¶ 28} The       dissent    also    contends      that   R.C.     2953.73(E)(1)       is
unconstitutional because it appears to violate basic guarantees of due process and
equal protection. Yet neither party raised this issue,1 and in Smith, we held that
the direct appeal from the trial court in cases in which the death penalty is
imposed did not violate the Equal Protection and Due Process Clauses of the
United States Constitution. Smith, 80 Ohio St.3d at 100-102, 684 N.E.2d 668.
        C. Postconviction DNA testing
        {¶ 29} In 2003, the General Assembly passed Sub.S.B. No. 11 (“S.B.
11”), 150 Ohio Laws, Part IV, 6498, “to establish a mechanism and procedures
for the DNA testing of certain inmates serving a prison term for a felony or under
a sentence of death.” The original DNA-testing statutes were only a temporary
measure. Eligible inmates had one year after the effective date of S.B. 11 to


1. Noling argued merely that if R.C. 2953.73(E)(1) is severed from the remainder of the statute,
but R.C. 2953.73(E)(2) is left intact, that subsection would then violate the United States
Constitution’s Equal Protection Clause.




                                              12
                               January Term, 2013




submit applications for DNA testing. Former R.C. 2953.73(A), 150 Ohio Laws at
6512. That deadline was later extended by one year. Sub.H.B. No. 525, 150 Ohio
Laws, Part IV, 6262, 6278. In 2006, the General Assembly made the DNA-
testing program permanent with the passage of Sub.S.B. No. 262 (“S.B. 262”),
151 Ohio Laws, Part I, 1716. An application for postconviction DNA testing
could be submitted by an eligible inmate without any time restriction.
       {¶ 30} Noling’s first application for DNA testing of the cigarette butt was
filed when S.B. 262 was in effect. R.C. 2953.74 at that time provided:


               (A) If an eligible inmate submits an application for DNA
       testing under section 2953.73 of the Revised Code and a prior
       definitive DNA test has been conducted regarding the same
       biological evidence that the inmate seeks to have tested, the court
       shall reject the inmate’s application. If an eligible inmate files an
       application for DNA testing and a prior inconclusive DNA test has
       been conducted regarding the same biological evidence that the
       inmate seeks to have tested, the court shall review the application
       and has the discretion, on a case-by-case basis, to either accept or
       reject the application. The court may direct a testing authority to
       provide the court with information that the court may use in
       determining whether prior DNA test results were definitive or
       inconclusive and whether to accept or reject an application in
       relation to which there were prior inconclusive DNA test results.
               (B) If an eligible inmate submits an application for DNA
       testing under section 2953.73 of the Revised Code, the court may
       accept the application only if one of the following applies:
               ***




                                        13
                            SUPREME COURT OF OHIO




               (2) The inmate had a DNA test taken at the trial stage in the
       case in which the inmate was convicted of the offense for which
       the inmate is an eligible inmate and is requesting the DNA testing
       regarding the same biological evidence that the inmate seeks to
       have tested, the test was not a prior definitive DNA test that is
       subject to division (A) of this section, and the inmate shows that
       DNA exclusion when analyzed in the context of and upon
       consideration of all available admissible evidence related to the
       subject inmate’s case as described in division (D) of this section
       would have been outcome determinative at the trial stage in that
       case.


151 Ohio Laws, Part I, at 1732-1733. Thus, Noling’s first application could be
accepted only if there was no prior definitive DNA test and if he showed that the
test results from the cigarette butt would have been outcome-determinative at
trial. The term “definitive DNA test” was not defined in S.B. 262. The trial court
denied Noling’s application, holding that the DNA test prior to his trial was
definitive because the analysis had excluded Noling and his codefendants as the
source of the DNA on the cigarette butt.
       D. Interpretation of R.C. 2953.72(A)(7)
       {¶ 31} The DNA-testing statutes were amended for a fourth time when
2010 Sub.S.B. No. 77 (“S.B. 77”) was enacted on July 6, 2010.            The term
“definitive DNA test” was defined in this amendment. R.C. 2953.71(U) now
provides:


               “Definitive DNA test” means a DNA test that clearly
       establishes that biological material from the perpetrator of the
       crime was recovered from the crime scene and also clearly




                                           14
                               January Term, 2013




       establishes whether or not the biological material is that of the
       eligible offender. A prior DNA test is not definitive if the eligible
       offender proves by a preponderance of the evidence that because
       of advances in DNA technology there is a possibility of discovering
       new biological material from the perpetrator that the prior DNA
       test may have failed to discover. Prior testing may have been a
       prior “definitive DNA test” as to some biological evidence but may
       not have been a prior “definitive DNA test” as to other biological
       evidence.


(Emphasis added.)
       {¶ 32} Noling’s second application for DNA testing of the cigarette butt
was submitted after S.B. 77 was enacted. The trial court denied the application
under R.C. 2953.72(A)(7), which provides, “[I]f the court rejects an eligible
offender’s application for DNA testing because the offender does not satisfy the
acceptance criteria described in division (A)(4) of this section, the court will not
accept or consider subsequent applications.”
       {¶ 33} Noling argues that the trial court failed to consider the legislative
changes that defined “definitive DNA testing” before it denied his second
application under R.C. 2953.72(A)(7). Noling contends that R.C. 2953.71(U)
significantly changed and expanded the criteria for permitting further DNA
testing. We agree.
       {¶ 34} The trial court rejected Noling’s second application for testing on
grounds that R.C. 2953.72(A)(7) required rejection of the second application
because his first application had been denied. But a subsequent application is
barred under R.C. 2953.72(A)(7) if a previous application was rejected because
the offender did not satisfy the acceptance criteria described in R.C.
2953.72(A)(4). Division (A)(4) refers to the criteria established in R.C. 2953.74




                                        15
                              SUPREME COURT OF OHIO




to determine whether to accept or reject the application. The threshold criterion
requires a court to reject the application if a prior definitive DNA test has been
conducted. R.C. 2953.74(A). Therefore, the new definition of “definitive DNA
test” is relevant in determining whether Noling’s previous application was
properly denied.
          {¶ 35} The trial court found that the earlier DNA testing was definitive
because it had excluded Noling and his codefendants as smokers of the cigarette.
Under R.C. 2953.71(U), however, a prior test is not definitive and Noling would
be entitled to further testing of the DNA if he could show “by a preponderance of
the evidence that because of advances in DNA technology there is a possibility of
discovering new biological material from the perpetrator that the prior DNA test
may have failed to discover.” Thus, the trial court could not reject without further
inquiry Noling’s second application solely because he and his codefendants were
excluded as smokers of the cigarette.         The DNA-testing statutes now permit
testing to positively identify the DNA’s source. R.C. 2953.74(E) allows the trial
court to order biological material from the crime scene to be compared to the
combined DNA index system maintained by the Federal Bureau of Investigation
or compared to any identified person to determine whether that person is the DNA
source.
          {¶ 36} In support of his second application for DNA testing, Noling had
submitted evidence that Wilson and other individuals were alternative suspects in
the Hartig murders. But neither Wilson’s DNA, nor that of any of the other
suspects, was compared to the DNA on the cigarette. The trial court failed to
consider Noling’s application in the context of the new statutory requirements—
whether there is a possibility of discovering new biological material that is
potentially from the perpetrator that the prior DNA test may have failed to
discover. Therefore, the court erred by failing to apply the definition set forth in
R.C. 2953.71(U) before dismissing Noling’s second application under R.C.




                                         16
                               January Term, 2013




2953.72(A)(7). We reverse and remand to the trial court for consideration of the
second application under the current versions of the statutes.
       E. State’s Remaining Arguments
       {¶ 37} The state argues that by enacting R.C. 2953.72(A)(7), the General
Assembly exercised its legislative prerogative in establishing a procedural bar that
prohibits subsequent DNA applications. The state asserts that the doctrine of the
separation of powers precludes the trial court from accepting Noling’s second
application for DNA testing unless the legislature deems fit to revisit the language
of R.C. 2953.72(A)(7).
       {¶ 38} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, ¶ 48, we discussed the doctrine of the separation of powers and the
interaction between the legislative and judicial branch:


       [T]he doctrine * * * recognizes that our government is composed
       of equal branches that must work collectively toward a common
       cause. And in doing so, the Constitution permits each branch to
       have some influence over the other branches in the development of
       the law. For example, the legislative branch plays an important
       and meaningful role in the criminal law by defining offenses and
       assigning punishment, while the judicial branch has its equally
       important role in interpreting those laws.


       {¶ 39} The resolution of the issues in this case does not encroach on the
legislature’s policy choices. Amendments to the DNA-testing statutes expanded
the criteria for permitting DNA testing. The primary issue in the present case is
whether the trial court correctly applied R.C. 2953.72(A)(7) to deny Noling’s
second application after these amendments were passed. This is a matter of




                                         17
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statutory interpretation, which is a responsibility of the judicial branch. Thus, the
state’s separation-of-powers argument lacks merit.
        {¶ 40} The state also argues that Noling’s second application for DNA
testing should be denied because he cannot demonstrate that DNA retesting would
be outcome-determinative. The trial court, however, did not consider whether
DNA testing would be outcome-determinative because the court had summarily
rejected Noling’s second application on the basis of R.C. 2953.72(A)(7). On
remand, this will be a matter for the trial court to determine in the first instance.
        {¶ 41} This decision is also consistent with our holding in State v. Prade,
126 Ohio St.3d 27, 2010-Ohio-1842, 930 N.E.2d 287. Although Prade was
decided after S.B. 77 was enacted, we did not consider the recent amendments to
the DNA-testing statutes in that opinion, because that appeal predated the passage
of S.B. 77. Id. at ¶ 9, fn. 1. In Prade, we held that the trial court erred in
rejecting a second application on the ground that the trial-stage DNA test was
definitive. Id. at ¶ 30. The test excluded the defendant as a contributor to the
DNA found on evidence from the crime scene only in the sense that the victim’s
DNA had overwhelmed the killer’s DNA—because of the limitations of 1998
testing methods. Id. at ¶ 19. In Prade, we concluded:


        [N]ew DNA testing methods are now able to provide new
        information that was not able to be detected at the time of
        defendant’s trial. We hold that a prior DNA test is not “definitive”
        within the meaning of R.C. 2953.74(A) when a new DNA testing
        method can detect information that could not be detected by the
        prior DNA test.


Id. at ¶ 23.




                                          18
                               January Term, 2013




       {¶ 42} The state argues that unlike the situation in Prade, the prior DNA
testing in this case provided “meaningful information,” id. at ¶ 29, by excluding
Noling and his codefendants as smokers of the cigarette.          Noling’s second
application, however, sought to identify Wilson or other named suspects as the
actual perpetrator. Therefore, the trial court must consider whether the evidence
regarding Wilson or the other suspects and the advances in DNA testing
submitted in support of Noling’s second application show by a preponderance of
the evidence that there is a possibility of discovering new biological material from
the perpetrator that the prior DNA test may have failed to discover.
                                 III. Conclusion
       {¶ 43} Because the Ohio Constitution, Article IV, Section 2(B)(2)(c)
grants this court appellate jurisdiction over direct appeals from the court of
common pleas in cases in which the death penalty has been imposed, we hold that
R.C. 2953.73(E)(1), which grants exclusive jurisdiction to the Supreme Court of
Ohio to review rejections of applications for DNA testing in cases in which the
death penalty is imposed, is constitutional. We also hold that before dismissing a
subsequent application for postconviction DNA testing under R.C. 2953.72(A)(7),
a trial court must apply the definition of “definitive DNA test” set forth in R.C.
2953.71(U) and the criteria of R.C. 2953.74.
       {¶ 44} The judgment of the trial court is reversed, and the cause is
remanded for the trial court to consider whether prior definitive DNA testing, as
defined in R.C. 2953.71(U), precludes Noling’s second application. If not, the
trial court should consider whether new DNA testing would be outcome-
determinative.
                                                                Judgment reversed
                                                              and cause remanded.
       O’CONNOR, C.J., and PFEIFER, KENNEDY, and KLATT, JJ., concur.
       O’DONNELL and FRENCH, JJ., dissent.




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                             SUPREME COURT OF OHIO




        WILLIAM A. KLATT, J., of the Tenth Appellate District, sitting for
O’NEILL, J.
                              __________________
        O’DONNELL, J., dissenting.
        {¶ 45} Respectfully, I dissent.
        {¶ 46} In my view, the Ohio Constitution mandates that in cases in which
the death penalty has been imposed, the Supreme Court has appellate jurisdiction
only over a direct appeal from the judgment imposing the sentence of death. And,
because the Ohio Constitution vests jurisdiction in courts of appeals to review the
final judgments of courts inferior to a court of appeals, the General Assembly
does not have authority to grant that jurisdiction to this court to review a direct
appeal from a trial court’s denial of postconviction DNA testing sought by an
offender who has been sentenced to death.         Thus, R.C. 2953.73(E), which
purports to grant authority to this court to review a direct appeal from the denial
of postconviction DNA testing, is unconstitutional.
        {¶ 47} As we recently indicated in State v. Davis, 131 Ohio St.3d 1, 2011-
Ohio-5028, 959 N.E.2d 516, ¶ 15, Article IV, Section 2(B)(2)(c) of the Ohio
Constitution “limits the jurisdiction of the Supreme Court to the appeal of a
judgment sentencing a defendant to death.”         Because the legislature lacks
authority to enlarge or modify that jurisdiction through a statute that provides for
direct appeals to this court from postconviction judgments in death-penalty cases,
I am unable to join the majority in today’s holding, which expands the jurisdiction
of this court.
                 Appeals of Judgments Imposing the Death Penalty
        {¶ 48} In 1994, Ohio voters approved an amendment to the Ohio
Constitution that eliminated the two-tiered review of judgments imposing the
death penalty that previously afforded direct appeals as of right first to the court




                                          20
                                  January Term, 2013




of appeals and then to this court. State v. Smith, 80 Ohio St.3d 89, 95, 684 N.E.2d
668 (1997).
           {¶ 49} The amendment modified Article IV, Section 2(B)(2)(c) of the
Ohio Constitution, which now provides: “The supreme court shall have appellate
jurisdiction as follows: * * * In direct appeals from the courts of common pleas or
other courts of record inferior to the court of appeals as a matter of right in cases
in which the death penalty has been imposed.” (Emphasis added.)
           {¶ 50} In Davis, we rejected the argument that “every judgment in a case
in which the death penalty was imposed must be appealed directly to the Supreme
Court of Ohio.” 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, at ¶ 18. We
explained that such a holding “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.” Id. at ¶ 22.
           {¶ 51} Thus, recognizing that the Ohio Constitution “limits the
jurisdiction of the Supreme Court to the appeal of a judgment sentencing a
defendant to death,” id. at ¶ 15, we held that the courts of appeals retain
jurisdiction to “entertain all appeals from the denial of postjudgment motions in
which the death penalty was previously imposed,” id. at ¶ 22.
                             Postconviction DNA Testing
           {¶ 52} R.C. 2953.71 et seq. authorize eligible offenders to apply for
postconviction DNA testing, and R.C. 2953.73(D) sets out the process by which
common pleas courts are to determine whether an application should be accepted.
           {¶ 53} At issue here is R.C. 2953.73(E), which purports to vest this court
with exclusive appellate jurisdiction to review the denial of postconviction DNA
testing:




                                           21
                              SUPREME COURT OF OHIO




                  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.


       {¶ 54} The difficulty for me with this statute is that the denial of
postconviction DNA testing by the common pleas court is not a judgment
sentencing a defendant to death.        Our jurisdiction in death-penalty cases is
established in the Ohio Constitution, and the General Assembly cannot enlarge,
modify, or diminish it. See ProgressOhio.org v. Kasich, 129 Ohio St.3d 449,
2011-Ohio-4101, 953 N.E.2d 329, at ¶ 3, quoting Smith v. State, 289 N.C. 303,
328, 222 S.E.2d 412 (1976) (“ ‘It is a well-established principle of constitutional
law that when the jurisdiction of a particular court is constitutionally defined, the




                                          22
                                January Term, 2013




legislature cannot by statute restrict or enlarge that jurisdiction unless authorized
to do so by the constitution’ ”). The state concedes in its supplemental brief that
“the Davis Court's narrow interpretation of the appellate jurisdiction provided in
Sections 2(B)(2)(c) and 3(B)(2), Article IV of the Ohio Constitution renders R.C.
2953.73(E)(1), unconstitutional.”
       {¶ 55} The majority takes issue with this view of Davis, asserting that it is
R.C. 2953.02—not the Constitution—that “limits the jurisdiction of the Supreme
Court to the appeal of a judgment sentencing a defendant to death.” Davis, 131
Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, at ¶ 15. However, the problem
with this assertion is that the legislature lacks authority to limit our jurisdiction
when it has been expressly established by the Constitution. The majority also
makes much of this dissent’s reference to ¶ 15 of Davis, which begins with the
phrase “[t]he foregoing language.”      Notably, that phrase is preceded by two
paragraphs of quoted material, one referring to Article IV, Sections 2(B)(2)(c)
and 3(B)(2) of the Ohio Constitution and the other to R.C. 2953.02. Hence, the
phrase necessarily refers to each provision.
       {¶ 56} The majority’s author, who also authored Davis, now suggests that
the language in Davis meant that R.C. 2953.02 unconstitutionally limits our
jurisdiction. Majority opinion at ¶ 17. No such language appears in Davis, and in
fact the court applied the constitutional amendments and the statute in harmony.
See Davis at ¶ 22. The majority’s reasoning is, in any case, unpersuasive, because
it is premised on the mistaken belief that R.C. 2953.02 “does not mirror the
language of the constitution.” Majority opinion at ¶ 17. A comparison of these
two provisions, however, reveals no material differences. Article IV, Section
2(B)(2)(c) of the Ohio Constitution states,       “The supreme court shall have
appellate jurisdiction as follows: * * * In direct appeals from the courts of
common pleas or other courts of record inferior to the court of appeals as a matter
of right in cases in which the death penalty has been imposed.” (Emphasis




                                         23
                              SUPREME COURT OF OHIO




added.) R.C. 2953.02 similarly provides, “In a capital case in which a sentence
of death is imposed for an offense committed on or after January 1, 1995, the
judgment or final order may be appealed from the trial court directly to the
Supreme Court as a matter of right.” (Emphasis added.) Both provisions apply
to cases in which the death penalty has been imposed. Although the majority
concedes that “the statute appears to limit our review solely to the actual
judgment entry imposing death rather than to all final orders or judgment entries
in capital cases,” majority opinion at ¶ 17, it fails to recognize that because there
are no substantive differences between the statutory and constitutional language,
both necessarily have the same meaning.
       {¶ 57} The majority also erroneously maintains that language in Davis
stating that our jurisdiction is limited in these circumstances is dicta. But setting
forth the limits of our jurisdiction in death-penalty cases was necessary to resolve
a legal issue framed by the court: “whether the constitutional requirement that we
review all direct appeals of cases in which the death penalty was imposed
includes review of appeals from a trial court’s order denying a defendant’s motion
for a new trial.” Davis at ¶ 16. Notably, the court explained that “[w]e 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.” (Emphasis added.) Id. at ¶ 22. The conclusion in Davis that the courts
of appeals may “entertain all appeals from the denial of postjudgment motions”
follows from the holding that the jurisdiction of this court is limited in death-
penalty cases to direct appeals of the sentence. Rather than being dicta, this
holding is essential to the resolution of the case.
       {¶ 58} The majority then falls back on the assertion that this interpretation
is “not consistent with the intent behind the amendments to the Ohio
Constitution.” Majority opinion at ¶ 19. Yet in Davis, the author of today’s
majority opinion expressly relied on the intent of the electorate and the policy of




                                          24
                                January Term, 2013




accelerating review of capital cases in deciding that the courts of appeals do have
jurisdiction over appeals from the denial of postjudgment motions in death-
penalty cases. Notably, the court reasoned in Davis that “[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.” (Emphasis sic.) Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959
N.E.2d 516, at ¶ 22.
       {¶ 59} In addition, R.C. 2953.73(E)(1) purports to vest this court with
discretion to accept or deny the direct appeal from a denial of postconviction
DNA testing, stating that the offender “may seek leave of the supreme court to
appeal the rejection to the supreme court.” Article IV, Section 2(B)(2)(c) of the
Ohio Constitution, however, provides that the appeal from the common pleas
court to this court in death-penalty cases is “as a matter of right.” And because
the General Assembly cannot enlarge, modify, or diminish our jurisdiction in
death-penalty cases, it necessarily lacks authority to grant this court discretion to
deny an appeal that the Ohio Constitution allows as of right.
       {¶ 60} R.C. 2953.73(E) also raises significant concerns regarding due
process and equal protection in that it divides offenders who are similarly situated
into two different classes: offenders who have been sentenced to death may seek
leave to appeal the denial of postconviction DNA testing directly to this court
while all other offenders may appeal as of right to the court of appeals and then
seek discretionary review in this court if the appellate court affirms denial of the
testing. Thus, the General Assembly has denied offenders sentenced to death—
and only those offenders—an appeal as of right from the denial of postconviction
DNA testing.




                                         25
                             SUPREME COURT OF OHIO




       {¶ 61} As the Supreme Court observed in California v. Ramos, 463 U.S.
992, 998-999, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), “the qualitative difference
of death from all other punishments requires a correspondingly greater degree of
scrutiny of the capital sentencing determination.” Thus, I would assert that those
sentenced to death should receive at least the same procedural protections
afforded to all other offenders.
       {¶ 62} The majority’s citation of State v. Smith, 80 Ohio St.3d 89, 684
N.E.2d 668 (1997), for the proposition that R.C. 2953.73(E)(1) does not violate
either due process or equal protection requires little response; aside from the fact
that this statute had not been enacted at the time we decided Smith, that case did
not consider a situation in which a statute creates two classes of similarly situated
offenders and gives one, but not the other, an appeal as of right from the denial of
DNA testing. Smith simply has no application in this regard.
       {¶ 63} After today’s decision, every postconviction judgment entered in
cases in which the death penalty is imposed is potentially subject to a direct
appeal to this court, notwithstanding Davis. But we are not an error-correcting
court; rather, our role as the court of last resort is to clarify confusing
constitutional questions, resolve uncertainties in the law, and address issues of
public or great general interest. The duty to review error allegedly occurring in
postconviction proceedings in death-penalty cases, in my view, belongs in the
first instance to the appellate courts of this state. Significantly, appellate courts
consider assignments of error, while this court considers propositions of law. The
two are materially and substantively different.
                                    Conclusion
       {¶ 64} The Ohio Constitution, Article IV, Section 2(B)(2)(c) establishes
the appellate jurisdiction of this court “[i]n direct appeals from the courts of
common pleas * * * as a matter of right in cases in which the death penalty has
been imposed.” R.C. 2953.73(E) purports to enlarge the constitutionally defined




                                         26
                                January Term, 2013




jurisdiction of this court, and because the legislature lacks authority to amend the
Constitution, I would hold that this statute is unconstitutional.
       FRENCH, J., concurs in the foregoing opinion.
                               __________________
       Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J.
Holder, Assistant Prosecuting Attorney, for appellee.
       Ohio Innocence Project, Mark A. Godsey, and Carrie Wood; and Timothy
Young, Ohio Public Defender, and Jennifer A. Prillo, Assistant Public Defender,
for appellant.
                            ______________________




                                          27
