[Cite as State v. Lucas, 2012-Ohio-2826.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.     11CA100050

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DELUCAS E. LUCAS                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   98CR052578

                                 DECISION AND JOURNAL ENTRY

Dated: June 25, 2012



        BELFANCE, Judge.

        {¶1}     Defendant-Appellant DeLucas Lucas has appealed from the Lorain County Court

of Common Pleas’ entry denying his application for DNA testing. For the reasons set forth

below, we affirm.

                                                 I.

        {¶2}     On October 14, 1998, Mr. Lucas was indicted for two counts of felonious assault,

two counts of aggravated robbery, and one count each of aggravated burglary, attempted rape,

burglary, robbery, and attempted murder. Additionally, the indictment contained two sexually

violent predator specifications. In February 2000, Mr. Lucas pleaded guilty to the indictment;

however, the sexually violent predator specifications were dismissed. The trial court sentenced

Mr. Lucas to a total of 13 years in prison and classified him as a sexually oriented offender. Mr.

Lucas did not file a direct appeal.
                                                 2


       {¶3}    In 2004, Mr. Lucas filed a pro se application for DNA testing, which was

subsequently denied by the trial court. On July 30, 2010, Mr. Lucas, through counsel, filed

another application for DNA testing. The State responded in opposition. Ultimately, the trial

court denied Mr. Lucas’ application, concluding that DNA testing would not be outcome

determinative. Mr. Lucas has appealed from that entry, raising a single assignment of error for

our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED DELUCAS LUCAS’
       APPLICATION FOR DNA TESTING ON THE GROUND THAT TESTING
       WOULD NOT BE OUTCOME DETERMINATIVE.

       {¶4}    Mr. Lucas asserts in his sole assignment of error that the trial court erred in

denying his application for DNA testing. We do not agree.

       {¶5}    Mr. Lucas filed an application for postconviction DNA testing pursuant to R.C.

2953.71 et seq. Specifically, Mr. Lucas asserted in his memorandum in support that, pursuant to

R.C. 2953.82(A), his guilty plea did not make him ineligible and that he satisfied the

requirements of R.C. 2953.74.

       {¶6}    “We begin by noting that our standard of review as to the legal conclusions of the

trial court is de novo.” (Internal quotations and citations omitted.) State v. Ingram, 9th Dist. No.

25843, 2012-Ohio-333, ¶ 7.

       {¶7}    Because of the nature of this appeal, it is important to briefly discuss the history

of the statutory scheme set forth in Chapter 2953 of the Ohio Revised Code:

       In 2003[,] the General Assembly enacted legislation to establish mechanisms and
       procedures for the DNA testing of certain inmates serving a prison term for a
       felony or under a sentence of death. The statute established two distinct
       mechanisms: one for inmates who pleaded not guilty to the felony and another for
                                                3


       inmates who pleaded guilty or no contest to the felony. These provisions were
       originally effective for a limited period but were made permanent in 2006. In
       2010[,] the statute was amended to broaden the eligibility to apply for DNA
       testing to convicted offenders who are not currently serving a prison term but are
       subject to other restrictions such as parole or reporting requirements, but at the
       same time the mechanism applicable to inmates who pleaded guilty or no contest
       to the offense in question was removed.

Katz, Martin, Lipton, & Crocker, Baldwin’s Ohio Practice Criminal Law, Section 81:15 (2011).

R.C. 2953.82 was the section that authorized an inmate who pleaded guilty or no contest to a

felony the ability to request DNA testing pursuant to that Chapter. On July 6, 2010, 2010

Am.Sub.S.B. No. 77 became effective and operated to repeal R.C. 2953.82. There is no dispute

that Mr. Lucas filed his application on July 30, 2010, after R.C. 2953.82 had already been

repealed. Thus, R.C. 2953.82 cannot support Mr. Lucas’ request for DNA testing. See State v.

Broadnax, 2d Dist. No. 24121, 2011-Ohio-2182, ¶ 17. We, therefore, turn to examining the

remainder of R.C. 2953.71 et seq. to determine whether the trial court erred in denying Mr.

Lucas’ application.

       {¶8}    R.C. 2953.72(A) states that “[a]ny eligible offender who wishes to request DNA

testing under sections 2953.71 to 2953.81 of the Revised Code shall submit an application for the

testing to the court of common pleas specified in section 2953.73 of the Revised Code, on a form

prescribed by the attorney general for this purpose.”       (Emphasis added.)     See also R.C.

2953.73(A). R.C. 2953.73(D) states that, “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.”        (Emphasis added.)     Thus, an inherent

prerequisite to obtaining DNA testing pursuant to R.C. 2953.71 et seq. is that the applicant be an

eligible offender. “‘Eligible offender’ means an offender who is eligible under division (C) of

section 2953.72 of the Revised Code to request DNA testing to be conducted under sections
                                                  4


2953.71 to 2953.81 of the Revised Code.” R.C. 2953.71(F). R.C. 2953.72(C)(2) provides that

“[a]n offender is not an eligible offender under division (C)(1) of this section regarding any

offense to which the offender pleaded guilty or no contest.”            Thus, because Mr. Lucas’

application involved only offenses for which Mr. Lucas pleaded guilty, Mr. Lucas was not an

eligible offender as that term is defined by the statute. See R.C. 2953.72(C)(2); Broadnax, 2011-

Ohio-2182, ¶ 16 (“In fact, R.C. 2953.72(C)(2) specifically states that an offender is not eligible

to apply under sections 2953.71 to 2953.81 regarding any offense to which he pled guilty or no

contest.”); State v. Constant, 11th Dist. No. 2008-L-100, 2009-Ohio-3936, ¶ 13-18 (applying

former R.C. 2953.72(C)(1) to conclude that the defendant was not eligible for testing under the

statute because he was out on parole).

       {¶9}    It is true that R.C. 2953.84 specifically states that:

        [t]he provisions of sections 2953.71 to 2953.81 of the Revised Code by which an
       offender may obtain postconviction DNA testing are not the exclusive means by
       which an offender may obtain postconviction DNA testing, and the provisions of
       those sections do not limit or affect any other means by which an offender may
       obtain postconviction DNA testing.

Nonetheless, the application that Mr. Lucas filed specifically sought relief pursuant to R.C.

2953.71 et seq. and did not seek relief pursuant to any other provisions. As Mr. Lucas was not

an eligible offender with respect to his application for DNA testing pursuant to R.C. 2953.71 et

seq. and because R.C. 2953.82 was repealed at the time Mr. Lucas filed his application, the trial

court could not grant Mr. Lucas’ application.

                                                 III.

       {¶10} In light of the foregoing, we overrule Mr. Lucas’ assignment of error and affirm

the judgment of the Lorain County Court of Common Pleas.

                                                                               Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MARK GODSEY and JENNIFER PASCHEN BERGERON, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and PETER GAUTHIER, Assistant Prosecuting
Attorney, for Appellee.
