      [Cite as State v. Conner, 2020-Ohio-3720.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

      STATE OF OHIO,                               :

                       Plaintiff-Appellee,         :
                                                             No. 108885
                       v.                          :

      ANTHONY CONNER,                              :

                       Defendant-Appellant. :


                                 JOURNAL ENTRY AND OPINION

                       JUDGMENT: DISMISSED
                       RELEASED AND JOURNALIZED: July 16, 2020


           Criminal Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-12-566159-A


                                              Appearances:

              Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
              and Daniel Van and Katherine Mullin, Assistant Prosecuting
              Attorneys, for appellee.

              Donald R. Caster, for appellant.


MICHELLE J. SHEEHAN, J.:

                Defendant-appellant Anthony Conner appeals from the trial court’s

decision denying his application for DNA testing. After reviewing the facts of the
case and all relevant case law, we dismiss the appeal for lack of a final appealable

order.

              In September 2012, Conner was charged in a multiple count

indictment for a shooting that occurred outside of a local nightclub and resulted in

an individual’s death. In January 2013, a jury convicted Conner of aggravated

murder, murder, felonious assault, and discharge of a firearm on or near prohibited

premises. The trial court found him guilty on the bifurcated charge of having

weapons while under disability. Subsequently, the court sentenced Conner to

39½ years in prison. This court affirmed his conviction on direct appeal in State v.

Conner, 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601.

              In May 2019, Conner filed an application for DNA testing. In his

application, Conner requested the court (1) order the upload of the DNA profile

already developed from the murder weapon to the Combined Index DNA System

(“CODIS”); (2) order the testing of the shell casings collected at the crime scene for

DNA, the development of DNA profiles from such evidence, and the upload of any

profiles developed to CODIS; and provide the complete results, including underlying

bench notes and electropherograms, of all testing to defense counsel and counsel for

the state. In July 2019, the state opposed Conner’s application.

              On July 26, 2019, the trial court denied the application. The journal

entry stated in its entirety, “Defendant’s motion for application of DNA testing filed

5/02/19 is denied.”
              On August 9, 2019, Conner appealed the trial court’s denial of his

application for DNA testing, raising two assignments of error for our review: (1) the

trial court erred in denying Appellant’s application for postconviction DNA testing;

and (2) the trial court erred when it failed to explain the reasons for its decision. In

support of his first assignment of error, Conner argued that prior testing was not

definitive, biological material that was collected from the crime scene still exists, the

sample is suitable for DNA testing and upload to CODIS, there was no physical

evidence linking Conner to the victim’s death, and a CODIS match would be

outcome determinative. In his second assignment of error, Conner argued that

because the trial court failed to state its reasons for denying his application, as

mandated by R.C. 2953.73(D), this court should, “at a minimum,” remand the case

with instructions for the trial court to comply with the statute.

              On January 31, 2020, this court issued an order to show cause why this

appeal should not be dismissed for lack of a final appealable order. The order

instructed the parties to address the trial court’s lack of reasoning delineated in the

trial court’s July 2019 entry “as required by R.C. 2953.73(D),” as well as this court’s

opinions in State v. Newell, 8th Dist. Cuyahoga No. 85280, 2005-Ohio-2853, and

State v. Smith, 8th Dist. Cuyahoga No. 87937, 2007-Ohio-2369

              In response to the court’s show cause order, Conner urged this court

to follow the “sounder legal approach to appellate jurisdiction” in Smith and find

this court has jurisdiction in this case. Conner argues that under R.C. 2505.02(B),

an order that denies postconviction DNA testing is final and appealable because it
affects a “substantial right” in a special proceeding and it determines the action,

regardless of the trial court’s failure to state its reasons for the denial. Conner

further argues that even if this court finds Newell controlling and concludes the trial

court’s order is not final, we can presume the trial court denied the testing based on

a conclusion that the testing would not have been outcome determinative, because

“that was the only issue before it.” The state agrees with Conner that this court could

infer the trial court’s reasons “even without findings from the trial court.” The state

also agrees that “this court should look to R.C. 2505.02 in determining whether a

final order exists” and the trial court’s order in this case satisfies the statutory

definition of a final appealable order.

              R.C. 2953.71 through 2953.83 governs postconviction DNA testing for

eligible inmates. R.C. 2953.73(D) provides as follows:

      If an eligible inmate 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. * * * 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.

              In addressing the statutory mandate that a trial court provide its

“reasons for the acceptance or rejection” of the application for DNA testing, Ohio

courts have distinguished between journal entries that provide no reasons for

denying an application and journal entries that provide insufficient reasons for

denying an application.
               Where a trial court provides no reasons for denying an application for

DNA testing in its journal entry, Ohio appellate courts have found they have no

jurisdiction to review the matter. In Newell, 8th Dist. Cuyahoga No. 85280,

2005-Ohio-2853, the trial court denied the defendant’s application for DNA testing,

stating in its journal entry, in its entirety, “Defendant’s motion for DNA testing

hereby is denied.” Id. at ¶ 3. We dismissed the appeal for lack of final appealable

order, finding that the court’s failure to provide reasons for denying the application

contravened the mandates of R.C. 2953.73(D).1               Id. at ¶ 6; see also State v.

Henderson, 8th Dist. Cuyahoga No. 86933, 2006-Ohio-2876, ¶ 5. In support, this

court cited to State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982), in which

the Ohio Supreme Court held that a judgment entry that does not include statutorily

mandated findings does not constitute a final appealable order. The Supreme Court

explained in Mapson that “[t]he existence of findings and conclusions are essential




       1  In State v. King, 8th Dist. Cuyahoga Nos. 103947, 103948, and 103949,
2017-Ohio-181, this court analyzed the substance of the appellant’s application for DNA
testing without first addressing the apparent deficiency of the trial court’s journal entry
denying the application. The dissent in King notes that the trial court’s journal entry
failed to delineate any reasons for denying the appellant’s application, and because the
entry failed to include the trial court’s reasons for denying the application, the trial court’s
entry is not a final appealable order. Id. at ¶ 25-27 (Celebrezze, J., dissenting) (citing to
this court’s decision in Newell, 8th Dist. Cuyahoga No. 85280, 2005-Ohio-2853, and the
Ninth District’s decision in State v. Hickman, 9th Dist. Summit No. 22279, 2005-Ohio-
472). To the extent that the majority in King did not address the law in this district that
the failure to provide reasons for denying an application for DNA testing as mandated by
R.C. 2953.73(D) divests this court of jurisdiction on that issue, we find King to be an
aberration and decline to follow it.
in order to prosecute an appeal. Without them, a petitioner knows no more than he

lost and hence is effectively precluded from making a reasoned appeal.” Id. at 219.

              Several other appellate districts have reached the same conclusion.

See State v. Nieves, 9th Dist. Lorain No. 15CA010763, 2016-Ohio-5090, ¶ 8, citing

State v. Hickman, 9th Dist. Summit No. 22279, 2005-Ohio-472, ¶ 5 (dismissing the

defendant’s application for DNA testing for lack of a final appealable order where

the judgment entry stated “upon due consideration of this court, it is hereby ordered

that the defendant’s motion is denied,” finding the entry failed to provide reasons

for the denial and failed to enable the appellate court to properly entertain the

appeal on the merits); State v. Bunch, 7th Dist. Mahoning No. 14 MA 141,

2014-Ohio-4921, ¶ 7 (dismissing the defendant’s application for DNA testing for lack

of final appealable order where the judgment entry stated “Defendant’s Pro-se

‘Application for DNA Testing’ is overruled,” finding the trial court offered no reasons

in support of its decision to deny DNA testing); State v. Long, 1st Dist. Hamilton

No. C-110139, 2011-Ohio-6381, ¶ 6 (dismissing the defendant’s application for DNA

testing for lack of final appealable order where the judgment entry stated the

defendant’s “motion” was “not well taken,” finding the entry “did not conform with

R.C. 2953.73(D)’s mandate that the entry include the court’s reasons for the

rejection”); State v. Lemons, 11th Dist. Trumbull No. 2010-T-0008, 2010-

Ohio-1445, ¶ 3 (dismissing the defendant’s application for DNA testing for lack of a

final appealable order where the judgment entry stated “the application is not well
taken,” finding the entry failed to provide “any reasons for its denial” and therefore

failed to provide “a basis for review”).

               Where, in denying an application for DNA testing, the trial court

includes some explanation for its decision in its journal entry, albeit insufficient,

appellate courts have concluded they have jurisdiction to remand the matter for

further explanation. In Smith, 8th Dist. Cuyahoga No. 87937, 2007-Ohio-2369, the

defendant appealed from the trial court’s decision denying his application for DNA

testing in an entry providing, “The court hereby finds the defendant has failed to

demonstrate that DNA testing in this matter would prove to be outcome

determinative as defined by R.C. 2953.71(L). Accordingly, Defendant’s application

for DNA testing is denied.” Id. at ¶ 5. Upon review, we explained that when a trial

court’s judgment entry does not provide sufficient reasons — rather than failing to

state any reasons — for denying an application for DNA testing, this court has

jurisdiction to remand the matter to the trial court for further explanation. Id. at

¶ 10. In sustaining the assignment of error, we concluded that

      [b]ecause the trial court neglected to explain the analysis which led to
      its conclusion, the order denying the application provides no basis for
      this court to review its decision and * * * we are [therefore] unable to
      assess the appropriateness of the trial court’s denial of the DNA
      application on grounds that the results would not be outcome
      determinative.

Id. at ¶ 9; see also State v. Rawls, 2016-Ohio-7962, 76 N.E.3d 674 (8th Dist.); State

v. Richard, 8th Dist. Cuyahoga No. 99449, 2013-Ohio-3918; State v. Smith, 12th
Dist. Fayette No. CA2015-12-024, 2016-Ohio-5668; Nieves; State v. Price, 165 Ohio

App.3d 198, 2006-Ohio-180, 845 N.E.2d 559 (1st Dist.).

              Because the entry in this case did not include any explanation for the

trial court’s denial of Conner’s application for DNA testing, we are bound by Newell,

8th Dist. Cuyahoga No. 85280, 2005-Ohio-2853, and its progeny. The parties urge

this court to find the trial court’s entry to be a final appealable order under

R.C. 2505.02, suggesting that Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 — the Ohio

Supreme Court case upon which this court in Newell relies — involved a petition for

postconviction relief pertaining to constitutional rights rather than statutory criteria

of R.C. 2953.73. Like the Newell Court, however, we find Mapson persuasive

support.

              We therefore find the trial court’s entry in this case is not a final

appealable order and we lack jurisdiction to review the matter. We decline to

presume the trial court’s reasons for its denial, because established precedent

mandates dismissal of the appeal. Moreover, even where the trial court’s entry

includes some explanation, albeit insufficient or improper, appellate courts have

repeatedly remanded to the trial court for further explanation, declining to infer the

trial court’s reasons.   Accordingly, we dismiss this appeal for lack of a final

appealable order.

              Appeal dismissed.

      It is ordered that appellee recover of appellant costs herein taxed.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



____________________________
MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
