[Cite as State v. Richard, 2013-Ohio-3918.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99449



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 DONALD L. RICHARD
                                                    DEFENDANT-APPELLANT




                                  JUDGMENT:
                               AFFIRMED IN PART,
                          REVERSED IN PART, REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-215283

        BEFORE: E.T. Gallagher, J., Stewart, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED: September 12, 2013
FOR APPELLANT

Donald L. Richard, pro se
Inmate #197-168
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Donald L. Richard (“Richard”), appeals the denial of

his postconviction request for DNA testing. Finding some merit to the appeal, we affirm

in part, reverse in part, and remand the case to the trial court for further proceedings.

       {¶2} In 1987, a jury convicted Richard of murder with gun specifications and

having a weapon while under disability with gun specifications. The case arose from the

shooting death of Neil Baldwin (“Baldwin”) outside of Wanda’s Bar at 4515 Clark

Avenue in Cleveland, Ohio, on January 24, 1987. The court sentenced Richard to 15

years to life for murder, two three-year mandatory prison terms for gun specifications to

run concurrently, and three to five years for having weapons while under disability, to be

served consecutively. This court affirmed Richard’s convictions on direct appeal. State

v. Richard, 8th Dist. Cuyahoga No. 54228, 1988 Ohio App. LEXIS 4242 (Oct. 20, 1988).

       {¶3}   In November 2012, Richard filed an application for DNA testing. He

asserted that DNA testing would prove that the sole eyewitness at trial was involved in a

civil conspiracy against him and gave false testimony identifying him as the shooter.

Richard also filed motions requesting court-appointed counsel and for the trial court

judge to recuse himself from this case. The trial court denied both motions as well as the

application for DNA testing. Richard now appeals and raises two assignments of error.

                               Application for DNA Testing
      {¶4} In his first assignment of error, Richard argues the trial court erred in denying

his application for DNA testing because the trial court failed to provide its reasons for

denying the application in violation of R.C. 2953.73(D). He also asserts that the results

of DNA testing would be “outcome determinative” as defined by R.C. 2953.71(L).

      {¶5} We review the trial court’s decision to accept or reject an eligible inmate’s

application for DNA testing for an abuse of discretion. R.C. 2953.74(A). State v.

Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654 (8th Dist.), ¶ 12. A trial

court abuses its discretion where its decision is clearly erroneous and based on either a

disregard for the law or a misapplication of the law to undisputed facts. Ohio Civ. Rights

Comm. v. Case W. Res. Univ., 76 Ohio St.3d 168, 666 N.E.2d 1376 (1996), citing

Alexander v. Mt. Carmel Med. Ctr., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978).

      {¶6} R.C. 2953.71 et seq. establishes a statutory scheme that allows eligible prison

inmates to petition their respective trial courts to conduct DNA testing. Pursuant to

R.C. 2953.74, the trial court may “accept” an eligible inmate’s application for DNA

testing only if certain factors are present, including a finding that “if DNA testing is

conducted and an exclusion result is obtained, the results of the testing would be outcome

determinative.” Ayers at ¶ 28, citing R.C. 2953.74(B) and (C); and State v. Emerick, 170

Ohio App.3d 647, 650, 2007-Ohio-1334, 868 N.E.2d 742 (2d Dist.).

      {¶7} In addition, R.C. 2953.73(D) states:

      If an eligible offender submits an application for DNA testing under
      division (A) of this section, the court shall make the determination as to
      whether the application should be accepted or rejected. * * * The court shall
      make the determination in accordance with the criteria and procedures set
      forth in sections 2953.74 to 2953.81 of the Revised Code and, in making
      the determination, shall consider the application, the supporting affidavits,
      and the documentary evidence and, in addition to those materials, shall
      consider all the files and records pertaining to the proceedings against the
      applicant, including, but not limited to, the indictment, the court’s journal
      entries, the journalized records of the clerk of the court, and the court
      reporter’s transcript and all responses to the application filed under division
      (C) of this section by a prosecuting attorney or the attorney general. * * *
      Upon making its determination, the court shall enter a judgment and order
      that either accepts or rejects the application and that includes within the
      judgment and order the reasons for the acceptance or rejection as applied
      to the criteria and procedures set forth in sections 2953.71 to 2953.81 of
      the Revised Code. (Emphasis added.)1

      {¶8} R.C. 2953.71(L) states that the results of DNA testing are “outcome

determinative” when, “in the context of and upon consideration of all available evidence

related to the offender’s case * * * there is a strong probability that no reasonable

factfinder would have found the offender guilty” of the offense.           Thus, the term

“outcome determinative” is a conclusion based upon consideration of all the available

evidence. It is not a reason in and of itself. Therefore, the court is bound by R.C.

2953.73(D) to provide reasons explaining how the court reached the “outcome

determinative” conclusion.     See State v. Smith, 8th Dist. Cuyahoga No. 87937,

2007-Ohio-2369, ¶ 8.

      {¶9} The trial court’s journal entry denying Richard’s application states:

“Defendant’s application for DNA testing filed November 26, 2012, is denied, as it does



      1  R.C. 2953.71 defines terms including the words “outcome determinative.”
R.C. 2953.81 governs the maintenance of DNA test results. Neither section affects
the court’s obligation to state its reasons for the acceptance or rejection of an
application.
not fulfill the requirement of the statute as to being ‘outcome determinative.’” It does

not provide any reasons explaining how the court reached this conclusion. Therefore, the

court’s judgment denying Richard’s application for DNA testing is contrary to law and

constitutes an abuse of discretion.

       {¶10} The first assignment of error is sustained.

                             Recusal and Appointed Counsel

       {¶11} In the second assignment of error, Richard argues the trial court violated his

constitutional rights when it denied his requests for the court to recuse itself and to

appoint counsel to litigate his application for DNA testing. The trial court never ruled on

these motions. Nevertheless, a trial court’s failure to rule on a motion is presumed to be

a denial of that motion for purposes of appellate review. State ex rel. Cassels v. Dayton

City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994).

       {¶12} There is no federal constitutional right to a postconviction review process,

and an indigent petitioner has neither a state nor a federal constitutional right to be

represented by an attorney in a postconviction proceeding. State v. Crowder, 60 Ohio

St.3d 151, 152, 573 N.E.2d 652 (1991), citing Pennsylvania v. Finley, 481 U.S. 551, 107

S.Ct. 1990, 95 L.Ed. 539 (1987). However, “[p]ursuant to R.C. 120.16(A)(1) and (D), an

indigent petitioner is statutorily entitled to representation by a public defender at an

evidentiary hearing on a postconviction petition if the public defender concludes that the

issues raised by the petitioner have arguable merit.”      State v. Chandler, 10th Dist.

Franklin No. 07AP-269, 2007-Ohio-5579, ¶ 8, citing Crowder at 153.
       {¶13} In Crowder, the Ohio Supreme Court held that “R.C. 120.16(A)(1) and (D)

implicitly require the trial court, upon concluding that the petitioner in a postconviction

proceeding is entitled to an evidentiary hearing pursuant to R.C. 2953.21(C) and (E), to

promptly notify the public defender of the pending hearing.” Id. at 153. However, an

evidentiary hearing is not automatically required on every petition. State v. Williams, 8th

Dist. Cuyahoga No. 99357, 2013-Ohio-2706, ¶ 14. A trial court may deny a defendant’s

petition for postconviction relief without an evidentiary hearing if the petition, supporting

affidavits, documentary evidence, and trial record do not demonstrate sufficient operative

facts to establish substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279,

714 N.E.2d 905 (1999), paragraph two of the syllabus. Thus, the petitioner is statutorily

entitled to appointed counsel only if the trial court determines that the petitioner is

entitled to an evidentiary hearing on his postconviction petition, and the public defender

concludes that the petition has merit.

       {¶14} In this case, the trial court failed to provide its reasons for finding that DNA

testing would not be outcome determinative, and we are unable to properly review the

basis for the court’s decision and whether the court should have held an evidentiary

hearing. We therefore have no basis for reviewing Richard’s argument that the court

erroneously denied him his statutory right to counsel. Therefore, this part of the second

assignment of error is premature and moot.
        {¶15} Richard also argues the judge violated his constitutional rights when he

failed to recuse himself from this case. In his motion for recusal, Richard asserts the trial

court was prejudiced against him.

        {¶16} However, an appellate court lacks jurisdiction to determine whether the trial

court judge should have recused himself from a case. State v. McFarland, 7th Dist.

Jefferson No. 12 JE 4, 2013-Ohio-2268, ¶ 32, citing State v. Ramos, 88 Ohio App.3d

394, 398, 623 N.E.2d 1336 (9th Dist.1993). Pursuant to R.C. 2701.03(A), the Ohio

Supreme Court has exclusive jurisdiction to determine a claim that a judge is biased or

prejudiced. Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995),

citing Article IV, Section 5(C), Ohio Constitution. R.C. 2701.03(A), states in relevant

part:

        If a judge of the court of common pleas allegedly * * * has a bias or
        prejudice * * * against a party to a proceeding pending before the court or a
        party’s counsel, * * * any party to the proceeding * * * may file an
        affidavit of disqualification with the clerk of the supreme court in
        accordance with division (B) of this section.

If Richard believed the trial court judge should have been removed from his case due to

bias or prejudice, his exclusive remedy was to file an affidavit of disqualification with the

Ohio Supreme Court pursuant to R.C. 2701.03.

        {¶17} The second assignment of error is overruled.

        {¶18} Judgment affirmed in part and reversed in part. Case is remanded to the

trial court to state its reasons for finding that DNA testing would not be outcome

determinative.
       It is ordered that appellee and appellant share costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCUR
