[Cite as State v. Roberts, 2011-Ohio-4969.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   JUDGES:
                                                Hon. W. Scott Gwin, P.J.
       Plaintiff – Appellee                     Hon. Sheila G. Farmer, J.
                                                Hon. Julie A. Edwards, J.
-vs-

CLARENCE D. ROBERTS                             Case No. 10CA000047

       Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 97CR63



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                          September 22, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

DANIEL G. PADDEN                                CLARENCE D. ROBERTS, PRO SE
139 West 8th Street                             Inmate No. 351-300
P.O. Box 640                                    P.O. Box 4501
Cambridge, OH 43725                             Lima, OH 45802
Guernsey County, Case No. 10CA000047                                                  2

Farmer, J.

      {¶1}    On June 30, 1997, the Guernsey County Grand Jury indicted appellant,

Clarence Roberts, on one count of aggravated robbery in violation of R.C. 2911.01 and

one count of aggravated murder in violation of R.C. 2903.01 with a death penalty

specification. Said charges arose from the robbery and stabbing death of Leo Sinnett

on May 17, 1997.

      {¶2}    A jury trial commenced on September 15, 1997. The jury found appellant

guilty as charged, but did not recommend the death penalty. The trial court sentenced

appellant to life imprisonment without parole.      Appellant's convictions and sentence

were affirmed on appeal. See, State v. Roberts (November 24, 1998), Guernsey App.

No. 97CA29.

      {¶3}    On September 30, 2010, appellant filed a motion to order preservation and

listing of evidence regarding both physical and biological evidence from his case. By

entry filed November 30, 2010, the trial court denied the motion.

      {¶4}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}    "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

ROBERTS' MOTION TO ORDER PRESERVATION OF EVIDENCE AND LISTING OF

EVIDENCE IN VIOLATION OF THE MANDATES OF SB 77 AND O.R.C. §2933.82."
Guernsey County, Case No. 10CA000047                                                        3


                                               I

       {¶6}   Appellant claims the trial court erred in denying his request pursuant to

R.C. 2933.82 for an inventory and preservation of evidence from his case.                 We

disagree.

       {¶7}   R.C. 2933.82 governs preservation of biological evidence. Subsections

(B)(1)(c), (B)(2), (B)(3), and (B)(4) state the following:

       {¶8}   "(B)(1) Each governmental evidence-retention entity that secures any

biological evidence in relation to an investigation or prosecution of a criminal offense or

delinquent act that is a violation of section 2903.01, 2903.02, or 2903.03, a violation of

section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of

section 2907.02 or 2907. 03 or division (A)(4) or (B) of section 2907.05 of the Revised

Code, or an attempt to commit a violation of section 2907.02 of the Revised Code shall

secure the biological evidence for whichever of the following periods of time is

applicable:

       {¶9}   "(c) If any person is convicted of or pleads guilty to the offense, or is

adjudicated a delinquent child for committing the delinquent act, for the earlier of the

following: (i) the expiration of the latest of the following periods of time that apply to the

person: the period of time that the person is incarcerated, is in a department of youth

services institution or other juvenile facility, is under a community control sanction for

that offense, is under any order of disposition for that act, is on probation or parole for

that offense, is under judicial release or supervised release for that act, is under post-

release control for that offense, is involved in civil litigation in connection with that

offense or act, or is subject to registration and other duties imposed for that offense or
Guernsey County, Case No. 10CA000047                                                     4


act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code or (ii)

thirty years. If after the period of thirty years the person remains incarcerated, then the

governmental evidence-retention entity shall secure the biological evidence until the

person is released from incarceration or dies.

      {¶10} "(2) This section applies to evidence likely to contain biological material

that was in the possession of any governmental evidence-retention entity during the

investigation and prosecution of a criminal case or delinquent child case involving a

violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or

2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or

2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an

attempt to commit a violation of section 2907.02 of the Revised Code.

      {¶11} "(3) A governmental evidence-retention entity that possesses biological

evidence shall retain the biological evidence in the amount and manner sufficient to

develop a DNA profile from the biological material contained in or included on the

evidence.

      {¶12} "(4) Upon written request by the defendant in a criminal case or the

alleged delinquent child in a delinquent child case involving a violation of section

2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903. 06 that is a felony

of the first or second degree, a violation of section 2907.02 or 2907.03 or of division

(A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation

of section 2907.02 of the Revised Code, a governmental evidence-retention entity that

possesses biological evidence shall prepare an inventory of the biological evidence that
Guernsey County, Case No. 10CA000047                                                         5


has been preserved in connection with the defendant's criminal case or the alleged

delinquent child's delinquent child case." (Emphasis added.)

       {¶13} R.C. 2933.82 became effective on July 6, 2010. Appellant was charged,

tried, and convicted in 1997. In order for the statute to apply in appellant's case, it must

be applied retrospectively.    Pursuant to R.C. 1.48, "[a] statute is presumed to be

prospective in its operation unless expressly made retrospective." "If there is no clear

indication of retroactive application, then the statute may only apply to cases which

arise subsequent to its enactment." Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262.

We note there is no express, clear provision in the statute for retrospective application.

       {¶14} Appellant argues the use of the verb "was" in subsection (B)(2) implies

retroactive application. We disagree that the use of the past tense "was" expressly

makes the statute retroactive. Because the statute sets forth requirements involving the

preservation of evidence after conviction, the "was" refers to evidence in possession of

any governmental evidence-retention entity during the investigation and prosecution of

a criminal case after July 6, 2010. The state cannot do what it did not know it had to do

i.e., meet R.C. 2933.82 standards in cases prior to its effective date.

       {¶15} The statute creates new rights and duties upon the state to preserve

biological evidence or to notify certain individuals in the event the evidence is to be

destroyed. As stated in the Ohio Legislative Service Commission Final Bill Analysis of

S.B. No. 77 as passed by the 128th General Assembly, effective July 6, 2010, R.C.

2933.82 "establishes within the Bureau of Criminal Identification and Investigation of the

AG's Office a Preservation of Biological Evidence Task Force." The analysis states in

relevant part:
Guernsey County, Case No. 10CA000047                                                     6


       {¶16} "The act requires the Task Force to establish a system regarding the

proper preservation of biological evidence in Ohio and specifies that, in establishing the

system, the Task Force must do all of the following: (1) devise standards regarding the

proper collection, retention, and cataloguing of biological evidence for ongoing

investigations and prosecutions, and (2) recommend practices, protocols, models, and

resources for the cataloguing and accessibility of preserved biological evidence already

in the possession of governmental evidence-retention entities.

       {¶17} "The act provides that, in consultation with the Task Force, the Division of

Criminal Justice Services of the Department of Public Safety must administer and

conduct training programs for law enforcement officers and other relevant employees

who are charged with preserving and cataloguing biological evidence regarding the

methods and procedures referenced in the act's provisions described above that require

or relate to the preservation of biological evidence. (R.C. 109.561 and 2933.82(C).)."

       {¶18} In his September 30, 2010 motion, appellant requested "the preservation

of all physical evidence in the above styled cause, including and specifically the clothing

of the victim herein." Appellant argues "recent advances in DNA technology known as

'touch DNA' which can conclusively establish the presence of epithelial cell matter on

objects touched by a person" could exonerate him. Appellant argues this technology

could prove that it was another individual who removed the victim's wallet from his

pocket and killed him.     Because this item has not been preserved pursuant to the

practices and protocols under the new task force, appellant cannot now benefit from

retrospective application of the statute.
Guernsey County, Case No. 10CA000047                                           7


      {¶19} Upon review, we find the provisions of R.C. 2933.82 are to be applied

prospective only.

      {¶20} The sole assignment of error is denied.

      {¶21} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                             _s/ Sheila G. Farmer_______________




                                             s/ W. Scott Gwin___________________




                                             _s/ Julie A. Edwards________________


                                                         JUDGES


SGF/sg 809
[Cite as State v. Roberts, 2011-Ohio-4969.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :          JUDGMENT ENTRY
                                                :
CLARENCE D. ROBERTS                             :
                                                :
        Defendant-Appellant                     :          Case No. 10CA000047




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed. Costs

to appellant.




                                                    _s/ Sheila G. Farmer_______________




                                                    s/ W. Scott Gwin___________________




                                                    _s/ Julie A. Edwards________________


                                                                JUDGES
