State v. Noling (Slip Opinion) , 153 Ohio St. 3d 108 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Noling, Slip Opinion No. 2018-Ohio-795.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-795THE STATE OF OHIO, APPELLEE, v. NOLING, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Noling, Slip Opinion No. 2018-Ohio-795.]
Criminal law—Postconviction DNA testing—An appellate court has jurisdiction
over a claim raised by an offender who has requested postconviction DNA
testing if the claim challenges any of the three discretionary decisions
specifically listed as appealable in R.C. 2953.72(A)(8) or if the claim is that
the trial court failed to fulfill a mandatory duty—R.C. 2953.81(C)’s
requirement that the testing authority provide the subject offender with “the
results of the testing” mandates that the offender be provided only the DNA
profile created for the purpose of a comparison with the DNA profiles in
the Combined DNA Index System.
(No. 2014-1377—Submitted June 20, 2017—Decided March 6, 2018.)
APPEAL from the Court of Common Pleas of Portage County,
No. 1995 CR 220.
FISCHER, J.
{¶ 1} In this direct appeal as of right, Tyrone Noling, a capital defendant,
has appealed from several rulings of the Court of Common Pleas of Portage County
relating to his second application for postconviction DNA testing. For the reasons
below, we affirm the lower court’s judgment in part and reverse it in part.
I. RELEVANT BACKGROUND
{¶ 2} Noling was found guilty of aggravated murder and was sentenced to
death for killing Bearnhardt and Cora Hartig in Portage County in 1990. The court
of appeals and this court affirmed Noling’s convictions and death sentence. State
v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88 (“Noling I”). Noling
also filed a petition seeking a federal writ of habeas corpus, which was denied, and
he has filed numerous applications for state postconviction relief.
{¶ 3} The only issues presently before this court relate to Noling’s request
for postconviction DNA testing under R.C. 2953.71 through 2953.81.
A. Noling filed an application for DNA testing of a cigarette butt
{¶ 4} Noling filed his first application for DNA testing in 2008, seeking
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 and his codefendants
as the source of the DNA on the cigarette butt, the trial court rejected Noling’s
application, because it found that the earlier DNA test was definitive. State v.
Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 4 (“Noling II”).
B. Noling filed a second application for DNA testing
{¶ 5} In 2010, Noling filed a second application for DNA testing of the
cigarette butt, arguing that testing was warranted because newly discovered
evidence pointed to other suspects in the murders. Id. at ¶ 6.
{¶ 6} First, Noling alleged that the prosecution had failed to disclose a
statement made by Nathan Chesley that inculpated Chesley’s foster brother, Daniel
Wilson, in the Hartig murders. In an affidavit submitted in support of the
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application, Chesley described Wilson to police 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—this is possibly
significant because another witness saw a dark blue, midsize car 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 butt. Id.
{¶ 7} Second, Noling alleged that previously undisclosed documents
identified other possible suspects, including the Hartigs’ insurance agent, who had
defaulted on a loan from the Hartigs. Noling claimed that because of advances in
DNA technology, it would now be 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 that person as the killer. Id., 136 Ohio St.3d 163, 2013-Ohio-1764,
992 N.E.2d 1095, at ¶ 6. The trial court again denied Noling’s application. Id. at
¶ 7.
C. This court remanded for consideration of further testing
{¶ 8} On appeal from the denial of Noling’s second application for DNA
testing, we held that R.C. 2953.73(E)(1) is constitutional. Noling II at paragraph
one of the syllabus. We also held that “[b]efore 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.” Id. at paragraph two of the syllabus.
{¶ 9} We reversed and remanded for the trial court to “consider whether the
evidence regarding Wilson or the other suspects * * * show[s] 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.” Id. at
¶ 42.
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D. Noling filed a motion to amend his second application
{¶ 10} After we decided Noling II, Noling filed a motion in October 2013
to amend his second application for DNA testing. He requested testing of the shell
casings collected from the Hartigs’ kitchen and the ring boxes collected from their
bedroom. He also requested submission of the shell casings and projectiles from
the crime scene to the FBI’s National Integrated Ballistic Information Network
(“NIBIN”) for a possible match with the missing murder weapon.
{¶ 11} The state objected to Noling’s motion, arguing that the shell casings
and ring boxes had been contaminated and were not suitable for DNA testing. The
state pointed out that this evidence was collected and examined before exacting
standards for handling evidence to preserve uncontaminated DNA for testing were
in place. The state also objected to submitting the shell casings to NIBIN, because
that request was unrelated to Noling’s motion to amend his DNA application.
{¶ 12} The trial court granted Noling’s motion to amend his application.
The court overruled Noling’s request to submit the shell casings to NIBIN, because
no statutory procedure exists to make such a request.
E. BCI tested the cigarette butt
{¶ 13} In December 2013, the trial court ordered the Ohio Bureau of
Criminal Investigation (“BCI”) to collect DNA evidence from the cigarette butt and
compare the DNA profile created from that evidence with the DNA profiles in the
Combined DNA Index System (“CODIS”), a database of DNA profiles created by
law-enforcement agencies. The comparison revealed that the DNA was from “an
unknown male.” BCI also reported that the DNA profile was compared with
profiles in the local, state, and national levels of the CODIS database “without a
hit.” Additionally, BCI confirmed that Wilson’s DNA profile was in a database
that was searched.
{¶ 14} The state provided Noling with a one-page report. The report
included a statement that “DNA profiling was performed using the polymerase
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chain reaction at the short tandem repeat loci” and listed the loci that were
identified. The report did not include the DNA profile that was created as a result
of this process but did include the statement that “[t]he DNA profile from the
cutting from the cigarette butt (Item 1.1.1) is from an unknown male.”
F. Noling filed a motion for a “Copy of Complete DNA Test Results”
{¶ 15} After receiving BCI’s results, Noling filed a motion requesting a
“Copy of Complete DNA Test Results,” including laboratory notes, allelic charts,
electropherograms, and quantification measurements that BCI generated. He
argued that the single-page report provided to the defense reflected only the testing
authority’s conclusions about the DNA results and that the report did not include
all the results of the testing. The state objected, citing the absence of a statutory
requirement to release additional information. See R.C. 2953.81(C). The trial court
denied the motion.
G. The trial court ordered BCI to determine the quantity and quality of
biological material on the ring boxes and shell casings
{¶ 16} On December 19, 2013, the trial court ordered the prosecutor and
BCI to prepare findings regarding the quantity and quality of the parent sample of
the ring boxes and shell casings (“the December 19 order”). The court directed the
“testing authority” to determine whether there is “a scientifically sufficient quantity
of the parent sample to test, [and] whether the parent sample is so minute or fragile
that there is a substantial risk that the parent sample could be destroyed.”
H. Noling requested Cellmark as the testing authority
{¶ 17} On December 26, 2013, Noling moved the court to stay the
December 19 order, and on December 30, he moved the court to amend that order
to select Orchid Cellmark Laboratories (“Cellmark”) as the testing authority for the
ring boxes and shell casings. Noling argued that Cellmark was best equipped to
answer the trial court’s question regarding the quantity and quality of biological
material on the evidence, because it used more advanced DNA technology. Noling
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also argued that advanced testing was needed to resolve the state’s claim that the
evidence was contaminated.
{¶ 18} At a subsequent hearing, the defense presented Dr. Rich Staub, an
expert in DNA and forensic testing, to explain why Cellmark was the better choice
to conduct testing on the shell casings and ring boxes. He stated that advanced
DNA-testing capabilities were necessary to identify DNA on evidence handled by
multiple persons. Staub testified that Cellmark used a commercial kit for DNA
analysis that was more sensitive and “less susceptible to inhibitors” than those used
by BCI.
{¶ 19} The state presented the affidavit of Dr. Lewis Maddox, the DNA
technical leader at BCI. Maddox stated that in the 1990s, BCI laboratory, latent-
print, and firearms analysts did not follow sterile procedures to minimize low-level
contamination. He stated that the “use of current-or-future DNA tests on evidence
which has been clearly subject to contamination, followed by the assertion that the
presence of unattributable partial results are evidence of alternative subjects does
not shed light on who may have touched the casings or jewelry box during the crime
in 1990.” He stated that he could “think of no way to rule out contamination from
years of mishandling.”
{¶ 20} Maddox stated that BCI does not conduct DNA testing on fired
casings unless the forensic question is related to handling after firing. Maddox
added that “BCI cannot upload DNA profiles for [a] CODIS search from a kit that
it has not validated.” He also stated that BCI uses “the Identifiler kit and cannot
assume ownership of data from vendor laboratories that use other kits such as
MiniFiler, Identifiler Plus, or PowerPlex 16HS for CODIS upload.”
I. The trial court ordered BCI to conduct quantity and quality evaluations of
the shell casings and ring boxes
{¶ 21} Noling objected to the trial court’s designation of BCI as the testing
authority for the quantity and quality evaluation. Noling quoted R.C. 2953.78(B)
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and argued that his objection required the trial court to “rescind its prior acceptance
of the application for DNA testing.”
{¶ 22} Noling also stated that testing of the cigarette butt was intertwined
with the testing of the shell casings and ring boxes, because the profiles from all of
those items would have to be compared with each other. Accordingly, Noling
argued that the trial court was required to deny his own amended application in its
entirety, including further testing of the cigarette butt and any remaining DNA
extracts from earlier testing of the cigarette butt.
{¶ 23} On May 2, 2014, the trial court, sua sponte, vacated the December
19 order and issued an order requiring the state and BCI to prepare specific findings
about the quantity and quality of the evidence for testing. In its order, the court
made clear that it needed this information to determine whether Noling’s
application satisfied the necessary criteria for a DNA-testing application under R.C.
2953.74(C). The court explained that it still had “to determine whether to accept
[Noling’s] amended application for DNA testing.”
J. BCI determined that the shell casings and ring boxes were contaminated
{¶ 24} On June 10, 2014, BCI reported that the shell casings and ring boxes
were contaminated and “scientifically unsuitable for testing.” BCI stated that
“[v]isual examination” showed that case information had been written on the
casings with a presumed nonsterile pen and that the ring boxes were packaged in a
sealed bag in contact with each other.
{¶ 25} BCI also stated that these “touch DNA samples were processed
previously by latent print and firearms disciplines in a manner that would not
minimize contamination.” BCI noted that the latent-print examination included
“superglue fuming and dusting with non-sterile powder and brushes.”
K. Noling’s amended application for DNA testing was dismissed
{¶ 26} On June 27, 2014, the trial court dismissed Noling’s amended
application, finding that the items submitted for testing did not comply with R.C.
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2953.74(C)(2)(c) because BCI had found them “contaminated” and “scientifically
unsuitable for testing.”
L. This court determined that Noling has an appeal of right
{¶ 27} On August 11, 2014, Noling sought discretionary review from this
court of the trial court’s rulings on DNA testing following the remand we ordered
in Noling II. We accepted jurisdiction to review Noling’s constitutional challenge
to R.C. 2953.73(E)(1), which set forth the procedure by which an offender
sentenced to death could appeal the trial court’s denial of an application for
postconviction DNA testing. R.C. 2953.73(E)(1) provided that a capital offender
could “seek leave of the supreme court to appeal the rejection to the supreme court,”
while R.C. 2953.73(E)(2) affords an appeal of right to the court of appeals for
noncapital offenders appealing the denial of DNA-testing applications.
{¶ 28} In State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d
141 (“Noling III”), we held that R.C. 2953.73(E)(1) denied equal protection under
the United States and Ohio Constitutions. We excised the unconstitutional
provisions of the statute to create a procedure that provides an appeal of right to
this court for capital offenders. Noling III at ¶ 64. We converted Noling’s appeal
to an appeal of right. Id.II. ISSUES ON APPEAL
{¶ 29} Noling argues that the state was required to provide him with all
documentation relating to the DNA testing of the cigarette butt—including, but not
limited to, the DNA profile itself, electropherograms, and laboratory notes
(proposition of law No. I). Noling also argues that the trial court should have
granted his request that the shell casings be submitted to NIBIN (proposition of law
No. II) and that his objections relating to BCI’s selection as the testing authority
and to its preliminary determination as to the scientific suitability for DNA testing
of the shell casings and ring boxes should have been upheld (proposition of law
Nos. III, IV, and V). We address these claims out of order.
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A. The scope of the appeal
{¶ 30} As a threshold issue, we must determine if this court has jurisdiction
to rule on Noling’s claims. The right to appeal the trial court’s decisions made
pursuant to R.C. 2953.71 through 2953.81 is not unlimited. See Noling III at ¶ 63.
Further, the state argues that we should not consider some of Noling’s claims
because they do not relate to the trial court’s denial of Noling’s amended
application for DNA testing.
{¶ 31} R.C. 2953.72(A)(8) provides that when requesting DNA testing
pursuant to R.C. 2953.71 through 2953.81, an eligible offender must submit an
acknowledgment form stating that
the court of common pleas has the sole discretion subject to an
appeal as described in this division to determine whether an offender
is an eligible offender and whether an eligible offender’s application
for DNA testing satisfies the acceptance criteria described in
division (A)(4) of this section and whether the application should be
accepted or rejected, that if the court of common pleas rejects an
eligible offender’s application, the offender may appeal the
rejection, and that no determination otherwise made by the court of
common pleas in the exercise of its discretion regarding the
eligibility of an offender or regarding postconviction DNA testing
under [sections 2953.71 through 2953.81 of the Revised Code] is
reviewable by or appealable to any court.
(Emphasis added; language severed as unconstitutional omitted, see Noling III, 149
Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 60.)
{¶ 32} The text of R.C. 2953.72(A)(8) specifically notes that three of the
trial court’s discretionary decisions regarding DNA testing are appealable: (1)
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whether Noling is an eligible offender, (2) whether Noling’s application satisfied
the acceptance criteria, and (3) whether Noling’s application should have been
accepted or rejected. As a result, appellate courts do not have jurisdiction to hear
Noling’s claims that appeal discretionary decisions made by the trial court that do
not relate to one of these three specifically listed exceptions. R.C. 2953.72 (A)(8)
does not recognize any limits as to an applicant’s right to appeal a court’s failure to
fulfill a mandatory duty; in fact, the division is entirely silent on that issue.
{¶ 33} Had the legislature intended to place limits on the appealability of
the trial court’s failure to fulfill mandatory duties, the legislature would not have
included the phrase “in the exercise of its discretion” in R.C. 2953.72(A)(8). To
rule that R.C. 2953.72(A)(8) limits the rights of an applicant to appeal the
mandatory duties of the trial court, this court would have to delete those words from
the statute. “ ‘It is the duty of this court to give effect to the words used [in a
statute], not to delete words used or to insert words not used.’ ” (Emphasis omitted;
brackets added in Bernardini.) Bernardini v. Conneaut Area City School Dist. Bd.
of Edn., 58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban
Coach Lines v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).
{¶ 34} R.C. 2953.72(A)(9) provides that offenders must acknowledge that
an offender who participates in any phase of the mechanism
contained in [R.C. 2953.71 through 2953.81] * * * does not gain as
a result of the participation any constitutional right to challenge, or,
except as provided in division (A)(8) of this section, any right to any
review or appeal of, the manner in which those provisions are
carried out.
(Emphasis added).
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{¶ 35} The plain text of R.C. 2953.72(A)(9) focuses on appeals of the
manner in which R.C 2953.71 through 2953.81 are carried out. “Manner” means
“the mode or method in which something is done or happens.” Webster’s Third
New International Dictionary (2002). Obviously, not carrying out a task is not a
mode or method of carrying out that task. Thus, giving effect to the plain text of
the statute, R.C. 2953.72(A)(9) recognizes limits to the review on appeal of the
manner in which a provision has been carried out but does not denote any limits to
the review on appeal of whether a provision has been carried out.
{¶ 36} To rule otherwise would violate the canon of statutory construction
that “[n]o part [of a statute] should be treated as superfluous unless that is
manifestly required, and the court should avoid that construction which renders a
provision meaningless or inoperative.” State ex rel. Myers v. Spencer Twp. Rural
School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917); see also In re
Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered
with Delinquent Tax Liens, 140 Ohio St.3d 346, 2014-Ohio-3656, 18 N.E.3d 1151,
¶ 12. To decide that this court has jurisdiction to rule on only the three discretionary
appealable issues listed in R.C. 2953.72(A)(8) would render R.C. 2953.72(A)(9)’s
language “the manner in which those provisions are carried out” superfluous. In
fact, such a ruling would essentially delete that language altogether. As noted
above, the court should not delete words from a statute; it should give effect to all
the words used. Bernardini, 58 Ohio St.2d at 4, 387 N.E.2d 1222, citing Columbus-
Suburban Coach Lines, 20 Ohio St.2d at 127, 254 N.E.2d 8.
{¶ 37} Examining the limits explained in R.C. 2953.72(A)(8) and (A)(9) in
conjunction, it is clear that an appellate court has jurisdiction over a claim raised
by an offender who requests DNA testing if the claim challenges any of the three
discretionary decisions specifically listed as appealable in R.C. 2953.72(A)(8) or if
the claim is that the trial court failed to fulfill a mandatory duty. Appellate courts
do not have jurisdiction over claims that the trial court made incorrect discretionary
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decisions—other than the three specifically listed appealable issues—or claims
asserting that the trial court performed a mandatory duty but that the manner in
which that duty was performed was improper.
{¶ 38} As noted above, in Noling III, we held that R.C. 2953.73(E)(1)
denied equal protection under the United States and Ohio Constitutions as it denied
capital defendants a right of appeal conferred upon noncapital defendants when the
defendant’s application for DNA testing was rejected. Noling III, 149 Ohio St.3d
327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 64. We excised the unconstitutional
provisions of the statute, thus providing an appeal of right to this court for capital
offenders. Id. We also noted that R.C. 2953.72(A) is meant to provide a summary
of the statutory scheme and excised the same offending language from R.C.
2953.72(A)(8) that we excised from R.C. 2953.73(E)(1). Noling III at ¶ 60.
{¶ 39} In Noling III, the majority held that R.C. 2953.72(A)(8) and (A)(9)
should not be struck in their entirety. The court reasoned that doing so would
broadly expand the appellate rights provided to petitioners by the statutes. Noling
III at ¶ 63. Here, we do not expand the appellate rights provided by the statutes as
warned against in Noling III. Instead, we interpret the statutes to determine which
appellate rights applicants are entitled to under the statutory scheme.
B. Request for NIBIN testing of the shell casings (proposition of law No. II)
{¶ 40} Noling argues that the trial court erred by denying the defense’s
request to send the shell casings to NIBIN for testing.
{¶ 41} Noling’s motion to amend his second application sought submission
of the shell casings and bullets to NIBIN for a possible match with the missing
murder weapon. The state objected on grounds that the request was unrelated to
Noling’s motion to amend his application for DNA testing. The trial court denied
the request, because “there is no Ohio statutory procedure to submit the shell
casings to NIBIN for comparison.”
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{¶ 42} There is no provision in the DNA-testing statutes—or in any other
statute—that would require the court to order that the shell casings be tested by
NIBIN. Thus, the trial court’s decision whether to order the testing was, at most,
discretionary; ordering NIBIN testing was certainly not a mandatory duty. That
discretionary decision is not included as one of the three discretionary decisions
that are appealable pursuant to R.C.2953.72(A)(8). This court does not have
jurisdiction to review the claim, and we dismiss proposition of law No. II
accordingly.
C. Selection of the testing authority (proposition of law No. III)
{¶ 43} Noling argues that the trial court erred in directing BCI to examine
the shell casings and ring boxes after he objected to BCI as the testing authority
pursuant to R.C. 2953.78(B).
1. Background
{¶ 44} Following Noling’s request to test the shell casings and ring boxes,
the trial court issued the December 19 order instructing the prosecutor and BCI to
prepare findings regarding the “the quantity and quality of the parent sample of
biological material, found at the crime scene.” See R.C. 2953.76 (after an
application for DNA testing is submitted, prosecutor shall consult with the testing
authority and prepare findings regarding the quantity and quality of the parent
sample requested for testing).
{¶ 45} Noling moved to stay the trial court’s order, arguing that Cellmark,
not BCI, should be designated as the testing authority. Noling argued that BCI
lacked “the most advanced scientific technologies capable of providing this Court
with the best quantity and quality of information.”
{¶ 46} Following a hearing, Noling invoked R.C. 2953.78(B) and requested
that the trial court “withdraw its decision to grant DNA testing of the shell casings
and the ring boxes and enter an order denying [his] Amended DNA Application in
its entirety.”
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{¶ 47} R.C. 2953.78 specifies:
(A) If an eligible offender submits an application for DNA
testing under [R.C. 2953.73] and if the application is accepted and
DNA testing is to be performed, the court shall select the testing
authority to be used for the testing. A court shall not select or use a
testing authority for DNA testing unless the attorney general
approves or designates the testing authority pursuant to division (C)
of this section and unless the testing authority satisfies the criteria
set forth in [R.C. 2953.80].
(B) If a court selects a testing authority pursuant to division
(A) of this section and the eligible offender for whom the test is to
be performed objects to the use of the selected testing authority, the
court shall rescind its prior acceptance of the application for DNA
testing for the offender and deny the application.
***
(D) The attorney general’s approval or designation of testing
authorities * * * do[es] not afford an offender any right to
subsequently challenge the approval, designation, selection, or use,
and an offender may not appeal to any court the approval,
designation, selection, or use of a testing authority.
(Emphasis added.)
{¶ 48} The state contended that Noling’s request was premature, because
the trial court had not accepted the amended application for DNA testing.
{¶ 49} Thereafter, the trial court vacated the December 19 order and issued
the following order:
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In order to determine whether to accept the Defendant’s
amended application for DNA testing, the Court must determine the
six criteria set forth in [R.C.] 2953.74(C). To determine these items
it’s * * * ordered, pursuant to [R.C.] 2953.76, that the Prosecuting
Attorney and Bureau of Criminal Identification shall prepare
findings regarding:
1. The quantity and quality of the parent sample of biological
material found at the crime scene in this case;
2. Whether there is a scientifically sufficient quantity of the
parent sample to test;
3. Whether the parent sample is so minute or fragile that
there’s a substantial risk that the parent sample could be destroyed;
4. Whether the parent sample has been degraded or
contaminated to the extent that it has become scientifically
unsuitable for testing.
It is further ordered that no DNA sample is to be consumed.
(Emphasis added.) Subsequently, BCI reported that it “determined that the samples
* * * are contaminated to the extent that they have become scientifically unsuitable
for testing.” The trial court stated that Noling’s amended application could not be
accepted and dismissed it.
2. Analysis
{¶ 50} Noling argues that the trial court erred by ordering BCI to conduct
testing on the shell casings and ring boxes after he objected to BCI as the testing
authority. In response, the state argues that R.C. 2953.78(D) does not allow Noling
to appeal the trial court’s selection of BCI as the testing authority. However, R.C.
2953.78(D) is inapplicable because it applies only to the selection of the testing
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authority after an offender’s DNA application has been accepted, and has no effect
on the process for determining whether the application should be granted.
{¶ 51} After Noling submitted his amended application, R.C. 2953.76
instructed the trial court to require the prosecuting attorney to consult with a testing
authority to make the preliminary determination regarding the quantity and quality
of biological material on the shell casings and ring boxes. And under R.C.
2953.74(C)(2), the trial court could accept Noling’s application only if the testing
authority made certain findings as to the quantity and quality of the sample to be
tested (e.g., that there was scientifically sufficient material to extract, that the
sample was not so minute or fragile as to risk destruction of the sample, and that
the sample was not degraded or contaminated).
{¶ 52} Nothing in the statutory scheme limited the trial court’s authority to
appoint BCI to make those preliminary findings. Only after these preliminary
findings have been made and after a trial court has accepted an application for DNA
testing can an applicant object to the testing authority selected to complete that
testing and require the court to rescind its prior acceptance of the application. See
R.C. 2953.78(B).
{¶ 53} Noling asserts that the trial court decided that DNA testing was
necessary and ordered the process to begin. This assertion is not supported by the
record: the trial court issued an order dismissing Noling’s amended application on
June 27, 2014.
{¶ 54} Under R.C. 2953.76, the court had a mandatory duty to require the
prosecuting attorney to consult with the testing authority to determine if the sample
could be tested. Noling does not argue that the court failed to fulfill that duty.
Noling does claim that the trial court erred in not rescinding its order requiring BCI
to examine the shell casings and ring boxes to determine the quantity and quality
of biological material available after he objected to BCI as the testing authority.
The trial court did not have a mandatory duty to rescind its order; at best, the trial
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court had the discretion to rescind the order. Because Noling’s claim challenges a
discretionary decision by the trial court and that discretionary decision is not one
of the three specifically listed discretionary decisions that can be appealed under
R.C. 2953.72(A)(8), this court does not have jurisdiction to rule on Noling’s third
proposition of law, and the claim is dismissed accordingly.
D. Reasons for selection of the testing authority (proposition of law No. V)
{¶ 55} Noling argues that because he contested the selection of BCI as the
testing authority, the trial court was required to articulate its reasons for selecting
BCI. Noling contends that the trial court’s findings should have included the
following factors: (1) the technology available at the laboratory, (2) the length of
time the technology has been in use at the laboratory, (3) whether the laboratory
works on postconviction or cold cases, (4) the laboratory’s experience obtaining
results from the type of evidence involved in this case, and (5) the laboratory’s
experience with the use of a particular type of DNA technology.
{¶ 56} Nothing in the DNA-testing statutes requires the trial court to
articulate the basis for its selection on the record. The statutes “vest considerable
and wide latitude with the judiciary” upon the filing of an application for DNA
testing. State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124,
¶ 31. Thus, the trial court did not have a mandatory duty to justify its selection of
the testing authority and the court’s choice is not an appealable discretionary
decision. Noling’s fifth proposition of law presents an unappealable claim, and the
claim is dismissed accordingly.
E. Testing authority’s determination that shell casings and ring boxes were
contaminated (proposition of law No. IV)
{¶ 57} Noling argues that BCI failed to conduct scientific testing and
review the chain of custody before determining that the shell casings and ring boxes
were contaminated and unsuitable for further DNA testing. This proposition of law
is best read as a challenge to the court’s rejection of Noling’s application for failure
17
to satisfy the acceptance criteria of R.C. 2953.72(A)(4) and 2953.74(C)(2)(c). R.C.
2953.72(A)(8) specifically identifies this challenge to the trial court’s discretionary
decision as appealable.
1. Background
{¶ 58} As discussed above in relation to proposition of law No. III, the trial
court ordered BCI to examine the shell casings and ring boxes and prepare findings
regarding the suitability of the evidence for testing.
{¶ 59} Subsequently, BCI reported that “[w]ith regards to [R.C.] 2953.76,
BCI has determined that the samples * * * are contaminated to the extent that they
have become scientifically unsuitable for testing.” BCI stated:
Visual examination of the [shell casings and ring boxes]
showed that case information had been written on the small surface
area on the individual casings with a presumed non-sterile pen
resulting in a potential source of common DNA contamination on
multiple casings. The ring boxes are packaged in a sealed plastic
bag in contact with each other. These touch DNA samples were
processed previously by latent print and firearms disciplines in a
manner that would not minimize contamination. In the latent print
section at BCI, superglue fuming and dusting with non-sterile
powder and brushes was performed. Non-sterile cotton gloves
would have been used to place the casings and ring boxes into the
chamber prior to superglue adhesion which is another source of
potential contamination * * *. * * * During firearms analysis of the
casings after latent print processing, each casing would be handled
by the analyst without wearing gloves and held in place on a
microscope with non-sterile clay used across many cases.
18
2. Analysis
{¶ 60} Noling argues that BCI was required to conduct scientific testing of
the shell casings and ring boxes before determining that they were contaminated
and that BCI’s visual examination was inadequate.
{¶ 61} R.C. 2953.76 describes the testing requirements regarding the
“quantity and quality of the parent sample of the biological material collected from
the crime scene * * * for which the offender * * * is requesting the DNA testing
and that is to be tested.” R.C. 2953.76(A) and (B) describe the manner of testing
that must be performed:
(A) The testing authority shall determine whether there is a
scientifically sufficient quantity of the parent sample to test and
whether the parent sample is so minute or fragile that there is a
substantial risk that the parent sample could be destroyed in testing.
The testing authority may determine that there is not a sufficient
quantity to test in order to preserve the state’s ability to present in
the future the original evidence presented at trial, if another trial is
required. * * *.
(B) The testing authority shall determine whether the parent
sample has degraded or been contaminated to the extent that it has
become scientifically unsuitable for testing and whether the parent
sample otherwise has been preserved, and remains, in a condition
that is suitable for testing. Upon making its determination under this
division, the testing authority shall prepare a written document that
contains its determination and the reasoning and rationale for that
determination * * *.
19
{¶ 62} Nothing in R.C. 2953.76(A) and (B) dictates the manner in which
the testing authority must determine whether the material is of a sufficient quantity
and quality to permit further testing. The appropriate method for making that
determination is left to the testing authority. Thus, it was sufficient for BCI to use
a visual examination to determine that the shell casings and ring boxes were
contaminated and not suitable for further DNA testing. Additionally, BCI’s
determinations were well supported: the shell casings and ring boxes had been
examined previously by latent-print and firearms examiners who had not taken
precautions to minimize contamination. Accordingly, we reject Noling’s claim that
the trial court should have ordered BCI to conduct a scientific examination of the
shell casings and ring boxes. Based on the foregoing, we reject proposition of law
No. IV.
F. Disclosure of “the results of the [DNA] testing” (proposition of law No. I)
{¶ 63} Noling argues that the trial court failed to provide him with “the
results of the testing” as required under R.C. 2953.81(C). Noling urges us to
broadly interpret the meaning of “the results of the testing” such that he should be
provided all documentation relating to the DNA testing of the cigarette butt.
1. Appealability of the issue
{¶ 64} R.C. 2953.81(C) provides that “[t]he court or the testing authority
shall provide a copy of the results of the testing to the prosecuting attorney, the
attorney general, and the subject offender.” (Emphasis added.) “ ‘Shall’ means
must.” Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242,
¶ 13, citing Application of Braden, 105 Ohio App. 285, 286, 148 N.E.2d 83 (1st
Dist.1957). “[W]e repeatedly have recognized that use of the term ‘shall’ in a
statute connotes a mandatory obligation unless other language evidences a clear
and unequivocal intent to the contrary.” Id. at ¶ 13, citing State ex rel. Cincinnati
Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28.
20
{¶ 65} There is no indication that the word “shall” in R.C. 2953.81(C)
means anything other than “must.” The use of the word “shall” demonstrates,
therefore, that the subject offender is entitled to “the results of the testing” and that
the trial court does not have discretion to deny the subject offender those results.
Thus, any limit recognized in R.C. 2953.72(A)(8) on Noling’s right to appeal the
trial court’s discretionary rulings has no effect on his right to appeal if he is denied
“the results of the testing.” Moreover, the language of R.C. 2953.72(A)(9) does
not apply, because Noling’s claim is that the court failed to provide him “the results
of the testing” as required by R.C. 2953.81(C), not that the manner in which the
court provided him the results was improper. Had Noling argued, for example, that
he was provided “the results” but that he wanted them provided in a different
format, the language of R.C. 2953.72(A)(9) may come in to play. As Noling is not
appealing the manner in which the provision was carried out, but whether the
provision was carried out, this court has jurisdiction to hear the claim.
2. The meaning of “the results of the testing”
{¶ 66} Under R.C. 2953.81(C), Noling must be provided the results of the
DNA testing ordered by the trial court. The state provided Noling a “Laboratory
Report” that included a “Results” section that informed Noling that the DNA
sample on the cigarette butt came from an unknown male. Noling argues that this
is insufficient to meet the statutory requirement and requests many additional pieces
of information. Noling is correct but only to the limited extent that he is entitled to
just one of the many additional pieces of information he requests.
{¶ 67} When read in pari materia, the statutory scheme makes clear that
R.C. 2953.81(C) mandates that Noling must be provided only the DNA profile that
was created by testing the DNA sample from the cigarette butt. Under R.C.
2953.74(E), Noling must be provided the identity of any individual identified as the
source of the DNA after “comparing the test results” to the DNA profiles in CODIS.
It is illogical to read R.C. 2953.81(C) as requiring the state merely to identify any
21
individuals whose DNA profiles matched the sample, as the state argues, because
such a reading would require us to conclude that the state must provide Noling with
the same information twice. R.C. 2953.74(E) provides that “the results of DNA
testing” must be compared to the DNA profiles in CODIS. The only data that can
be compared to any DNA profile in CODIS is another DNA profile. R.C. 2953.71
through 2953.81 use the phrases “the results of DNA testing” or “results of the
testing” multiple times. Reading R.C. 2953.81(C) as the state suggests would
require substantially different definitions of the phrases “the results of DNA
testing” and “the results of the testing” for different provisions in the same statutory
scheme.
a. Background
{¶ 68} R.C. 2953.81 provides:
If an eligible offender submits an application for DNA
testing under section 2953.73 of the Revised Code and if DNA
testing is performed based on that application, upon completion of
the testing, all of the following apply:
***
(C) The court or the testing authority shall provide a copy of
the results of the testing to the prosecuting attorney, the attorney
general, and the subject offender.
(E) The testing authority shall provide a copy of the results
of the testing to the court of common pleas that decided the DNA
application.
(Emphasis added.)
{¶ 69} BCI provided Noling with a copy of its “Laboratory Report.” The
laboratory report did not include the DNA profile that was created as a result of the
22
testing process. The “results” section of that report included the statement that
“DNA profiling was performed using the polymerase chain reaction at the short
tandem repeat loci” and listed the identified loci. The stated conclusion was that
“[t]he DNA profile from the cutting from the cigarette butt (Item 1.1.1.) is from an
unknown male.” This conclusion informs Noling that there were no hits when the
DNA profile created from the sample was run through CODIS.
{¶ 70} Noling argues that R.C. 2953.81(C)’s use of the phrase “the results
of the testing” means that he is entitled to more information than was included in
the conclusory laboratory report that BCI provided him. He asserts that “the results
of the testing” necessarily include everything that is actually obtained by
calculation and investigation during the DNA-testing process, including the DNA
profile itself, electropherograms, and laboratory notes. In response, the state argues
that the court should apply the plain meaning of the word “results” and offers a
dictionary definition: “[T]hat which results, outcome, consequence, effect,” citing
Webster’s Encyclopedic Unabridged Dictionary 1223 (1996). Based upon this, the
state argues that Noling received everything to which he was entitled under the
statute and that his request for further information should be denied.
b. Analysis
{¶ 71} The phrase “the results of the testing” is not defined in R.C. 2953.81
or elsewhere within the statutes addressing applications for DNA testing. When a
statute is unclear and relates to the same subject matter as another statute, we
construe them in pari materia “to discover and carry out legislative intent.” Sheet
Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrig., Heating &
Air Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444,
¶ 38, citing State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224,
2007-Ohio-4920, 874 N.E.2d 780, ¶ 13. Construing R.C. 2953.71 through 2953.81
in pari materia provides a clear meaning for the phrase “the results of the testing.”
23
i. “Results of the testing” means the same as “results of DNA testing”
{¶ 72} R.C. 2953.74(E) provides:
If an eligible offender submits an application for DNA
testing under section 2953.73 of the Revised Code and the court
accepts the application, the eligible offender may request the court
to order, or the court on its own initiative may order, the bureau of
criminal identification and investigation to compare the results of
DNA testing of biological material from an unidentified person other
than the offender that was obtained from the crime scene or from a
victim of the offense for which the offender has been approved for
DNA testing to the combined DNA index system maintained by the
federal bureau of investigation.
If the bureau, upon comparing the test results to the
combined DNA index system, determines the identity of the person
who is the contributor of the biological material, the bureau shall
provide that information to the court that accepted the application,
the offender, and the prosecuting attorney.
If the bureau, upon comparing the test results to the
combined DNA index system, is unable to determine the identity of
the person who is the contributor of the biological material, the
bureau may compare the test results to other previously obtained and
acceptable DNA test results of any person whose identity is known
other than the eligible offender. If the bureau, upon comparing the
test results to the DNA test results of any person whose identity is
known, determines that the person whose identity is known is the
contributor of the biological material, the bureau shall provide that
information to the court that accepted the application, the offender,
24
and the prosecuting attorney. The offender or the state may use the
information for any lawful purpose.
(Emphasis added.)
{¶ 73} R.C. 2953.74(E) demonstrates that the terms “DNA test” and “the
test” appear in conjunction and are used interchangeably in R.C. 2953.71 through
2953.81. Indeed, other statutes within the DNA-testing scheme also use “the test”
or “the testing” to refer to a DNA test. See, e.g., R.C. 2953.72(A) (“Any 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 * * *” [emphasis added]). Most importantly, the statute at issue, R.C.
2953.81, uses both terms to refer to the same test: “If an eligible offender submits
an application for DNA testing under section 2953.73 of the Revised Code and if
DNA testing is performed based on that application, upon completion of the testing,
all of the following apply * * *.” (Emphasis added.) Therefore, the two phrases,
“results of DNA testing” and “results of the testing,” refer to the same test results.
{¶ 74} Arguments that the two slightly-different phrases have different
meanings are unpersuasive; the presumption of consistent usage “readily yields” to
context. See Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 574, 127
S.Ct. 1423, 167 L.Ed.2d 295 (2007). Reading R.C. 2953.71 through 2953.81 in
context supports our conclusion that the two phrases refer to the same test “results.”
ii. A statute should not be read in a way that makes provisions superfluous
{¶ 75} No part of a statute should be treated as superfluous. In re
Foreclosure of Liens for Delinquent Land Taxes, 140 Ohio St.3d 346, 2014-Ohio-
3656, 18 N.E.3d 1151, at ¶ 12. We also must avoid “absurd results” when
construing a statute. State ex rel. Asti v. Dept. of Youth Servs., 107 Ohio St.3d 262,
2005-Ohio-6432, 838 N.E.2d 658, ¶ 28.
25
{¶ 76} R.C. 2953.81(E) states that “[t]he testing authority shall provide a
copy of the results of the testing to the court of common pleas that decided the DNA
application.” R.C. 2953.81(C) states that “[t]he court or the testing authority shall
provide a copy of the results of the testing to the prosecuting attorney, the attorney
general, and the subject offender.”
{¶ 77} R.C. 2953.74(E) separately states that if the comparison of the test
results with the profiles in CODIS yields the identity of the contributor of the
sample DNA, “the bureau shall provide [the identity of the contributor] to the court
that accepted the application, the offender, and the prosecuting attorney.” (Because
R.C. 2953.74(E) mandates that the identity of any individual in CODIS whose DNA
matches the sample be provided to the court, the offender, and the prosecutor, if
BCI does not provide the identity of a CODIS match, the profile from the DNA
sample logically must be that of an unknown person.)
{¶ 78} R.C. 2953.74(E) would be superfluous if R.C. 2953.81’s references
to providing “the results of the testing” mean providing only a notification of
whether the DNA profile from the sample matched a profile in CODIS; two
separate statutory provisions would mandate production of the same information.
Equally, it is an “absurd result” to read R.C. 2953.74(E) to mandate that the court
and the offender be provided the identity of any individual whose DNA profile in
CODIS matched the DNA sample’s profile when that information was already
necessarily provided under R.C. 2953.81(C) and (E).
iii. R.C. 2953.74(E) is workable only if “the results of DNA testing” can be
compared to the DNA profiles maintained in CODIS
{¶ 79} R.C. 2953.74(E) provides that “the results of DNA testing” will be
run through CODIS for purposes of a comparison. The only “results” that can be
compared to the DNA profiles in CODIS are other DNA profiles. In other words,
the specific text of R.C. 2953.74(E) compels the conclusion that “the results of
DNA testing” means the DNA profile created by the testing process for purposes
26
of running a comparison in CODIS. Any other definition of “the results of DNA
testing” renders R.C. 2953.74(E) unworkable.
iv. Each section of R.C 2953.71 through 2953.81 is workable if “results of the
testing” means the DNA profile created for purposes of a comparison with
CODIS
{¶ 80} Phrases such as “results of DNA testing” and “results of the testing”
are used throughout R.C. 2953.71 through 2953.81. Each use of such a term is
consistent with reading the phrase “the results of the testing” to mean the DNA
profile created for purposes of a comparison with CODIS. See, e.g., R.C.
2953.71(G), (I), (J), and (L); R.C. 2953.72(A)(5), (6), and (9); R.C. 2953.74(A),
(B)(1), (C)(4), (C)(5), and (E); R.C. 2953.81(A) through (F).
c. Conclusion regarding proposition of law No. I
{¶ 81} For these reasons, we reject Noling’s argument that R.C. 2953.81(C)
entitles him to all of the additional documentation that he has requested. Similarly,
we reject the state’s argument that R.C. 2953.81(C) requires that the trial court or
BCI provide Noling only with the conclusory information that the sample came
from an “unknown male.” Reading the statutory scheme in pari materia, R.C.
2953.81(C) mandates that the trial court or BCI provide Noling with only a copy of
the DNA profile created using the DNA sample taken from the cigarette butt. Thus,
and only to this limited extent, we agree with the arguments raised in Noling’s
proposition of law No I and hold that R.C. 2953.81(C) mandates that a subject
offender be provided only the DNA profile created for the purpose of a comparison
with the DNA profiles in CODIS. To the extent that Noling seeks other additional
documents, proposition of law No. I is rejected.
III. CONCLUSION
{¶ 82} The judgment of the trial court is affirmed in part and reversed in
part. We remand this case to the trial court for it to ensure that Noling is provided
only the DNA profile created by BCI for purposes of running a comparison with
27
CODIS, that is, to ensure that Noling is provided “the results of the testing” under
R.C. 2953.81(C). Aside from this one limited exception, we affirm the judgment
of the trial court.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and O’DONNELL, FRENCH, and KLATT, JJ., concur.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY, J.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for
O’NEILL, J.
_________________
DEWINE, J., concurring in part and dissenting in part.
{¶ 83} I write separately because I disagree with the majority’s decision that
Tyrone Noling may appeal the trial court’s determination of what constitutes “the
results” of the DNA testing.
{¶ 84} This case involves a legislatively created procedure under which an
offender may obtain postconviction DNA testing by order of the trial court in
limited circumstances. Because of the special nature of this procedure, there is no
general grant of appellate jurisdiction to challenge a trial court’s determination.
Rather, the only right to appeal is that which is set forth specifically in the statute
at issue, R.C. 2953.72(A)(8). That provision allows an offender to appeal only
certain trial-court determinations. Noling claims the trial court provided him with
testing results that were more narrow in scope than those R.C. 2953.81(C) entitles
him to, but the court’s decision about what constitutes “the results of the testing”
does not fall within the limited number of trial-court determinations from which the
legislature has authorized an appeal. As a consequence, this court lacks jurisdiction
to consider Noling’s appeal on that issue.
28
{¶ 85} I therefore dissent from the majority’s holding ordering the trial
court to provide Noling with additional testing results. I concur in the majority’s
disposition of the other issues raised by Noling.
The right to appeal is limited by R.C. 2953.72(A)(8) and (A)(9)
{¶ 86} “The right to file a postconviction petition is a statutory right, not a
constitutional right,” State v. Broom, 146 Ohio St.3d 60, 2016-Ohio-1028, 51
N.E.3d 620, ¶ 28, and “a petitioner receives no more rights than those granted by
the statute,” State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Any
right of appeal must emanate from the statutory scheme created by the General
Assembly. The specific trial-court determinations subject to appeal are set forth in
R.C. 2953.72(A)(8). That statute provides that
the court of common pleas has the sole discretion subject to an
appeal as described in this division to determine whether an
offender is an eligible offender and whether an eligible offender’s
application for DNA testing satisfies the acceptance criteria
described in division (A)(4) of this section and whether the
application should be accepted or rejected, that if the court of
common pleas rejects an eligible offender’s application, the
offender may seek leave of the supreme court to appeal the rejection
to that court if the offender was sentenced to death for the offense
for which the offender is requesting the DNA testing and, if the
offender was not sentenced to death for that offense, may appeal the
rejection to the court of appeals, and that no determination otherwise
made by the court of common pleas in the exercise of its discretion
regarding the eligibility of an offender or regarding postconviction
DNA testing under [R.C. 2953.71 to 2953.81] is reviewable by or
appealable to any court.
29
(Emphasis added; struck-through portions excised from the statute by this court in
State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 60 (“Noling
III”).)
{¶ 87} R.C. 2953.72(A)(9) makes clear that the grant of the right to appeal
comes exclusively from R.C. 2953.72(A)(8):
[A]n offender who participates in any phase of the mechanism
contained in [R.C. 2953.71 to 2953.81] * * * does not gain as a result
of the participation any constitutional right to challenge, or, except
as provided in division (A)(8) of this section, any right to any review
or appeal of, the manner in which those provisions are carried out.
(Emphasis added.)
{¶ 88} Thus, R.C. 2953.72(A)(8) grants to the common pleas court the “sole
discretion” to make three determinations—(1) “whether an offender is an eligible
offender,” (2) whether an application “satisfies the acceptance criteria,” and (3)
“whether the application should be accepted or rejected”—and makes those
determinations “subject to an appeal as described in this division.”
{¶ 89} The right of appeal is “described” later in R.C. 2953.72(A)(8); in
setting forth what is subject to appeal, R.C. 2953.72(A)(8) states that “if the court
of common pleas rejects an eligible offender’s application, the offender may * * *
appeal the rejection.” Thus, if the offender’s application is rejected, he may appeal
the three discretionary determinations set forth above. Those are the only
determinations subject to appeal, and they can be appealed only when the
application is rejected.
{¶ 90} After setting forth what may be appealed, the statute sets forth a
further limitation on the grant: “[N]o determination otherwise made by the court of
30
common pleas in the exercise of its discretion regarding the eligibility of an
offender or regarding postconviction DNA testing under those provisions is
reviewable by or appealable to any court.” Id. The statute thus ordains that
determinations other than those that result in a rejection of an offender’s application
are not appealable. In other words, if in the exercise of its discretion, the court
determines that the offender is an “eligible offender,” that the offender’s application
meets the acceptance criteria, or that the application should be accepted, the state
has no right of appeal regarding those determinations. This construction is
consistent with our recognition in Noling III, 149 Ohio St.3d 327, 2016-Ohio-8252,
75 N.E.3d 141, at ¶ 56, that “the legislature clearly intended to eliminate the state’s
appellate right when it drafted R.C. 2953.73 and gave appellate rights only to
offenders.” (We held in Noling III that R.C. 2953.73(E) grants the appellant the
right to appeal the court’s rejection of an application pursuant to its determination
under R.C. 2953.73(D). Noling III at ¶ 64.)
The majority minimizes the limited grant of appealability
{¶ 91} Here is where the majority goes wrong: it minimizes the grant of
appealability (the identification of the only three determinations that may be
appealed) and skips right to the limitation. It takes the limitation’s description of
what’s not appealable—“no determination otherwise made by the court of common
pleas in the exercise of its discretion regarding the eligibility of an offender or
regarding postconviction DNA testing”—and transforms that language into the
grant of additional appealable issues. That’s not how the statute works.
{¶ 92} In the majority’s view, the words “in the exercise of its discretion”
are controlling. So it reads the statute as allowing the appeal of any decision of the
common pleas court regarding DNA testing that does not call for an exercise of
discretion. That is, an applicant may appeal anything that involves the failure of
the trial court to fulfill a mandatory duty. But the statute doesn’t say that. Read in
its entirety, the statute makes clear that the only determinations that are appealable
31
are the three enumerated in R.C. 2953.72(A)(8) and that those determinations are
appealable only when they result in the rejection of an application. A determination
“otherwise made by the court,” i.e., other than rejection, is not appealable even
when it involves the court’s discretion.
{¶ 93} The fact that the statute illustrates what is not appealable does not
expand what is appealable beyond the three enumerated issues. Saying that
something is not appealable does not, in effect, make everything else appealable.
But that is how the majority reads the statute.
{¶ 94} The majority makes the same mistake construing R.C.
2953.72(A)(9)’s admonition that “except as provided in division (A)(8),” an
offender has no right to appeal the “the manner” in which the provisions of R.C.
2953.71 to 2953.81 are carried out. Under a plain reading, the sentence simply
serves as a reiteration of the statutory scheme’s limits on appealability: there is no
right to appeal the manner in which a provision is carried out other than regarding
the three appealable determinations identified in R.C. 2953.72(A)(8). The
majority, however, twists this limitation into a license to appeal anything that does
not have to do with the manner in which a provision is carried out. What the
majority fails to explain is how saying someone has no right to appeal one thing
can be read as a grant of the right to appeal everything else. Indeed, the majority is
unable to point to any provision in the statutory scheme that states an offender may
appeal the court’s failure to perform a mandatory duty. That’s because the statute
provides no such right of appeal.
Mandamus provides eligible offenders an avenue of relief from a court’s failure to
perform mandatory duties
{¶ 95} This is not to say that an offender would have no relief in cases in
which the court refused to perform a statutory duty. “[A] writ of mandamus may
require an inferior tribunal to exercise its judgment or to proceed to the discharge
of its function.” State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 119, 515 N.E.2d
32914 (1987); accord R.C. 2731.03. Thus, if a common pleas court failed to exercise
its judgment or discharge a function under the statutory scheme, an eligible offender
could seek relief in mandamus.
Noling III recognizes the limited scope of review
{¶ 96} Remarkably, the majority’s broad reading of R.C. 2953.72(A)(8)
and (A)(9) is directly contrary to what this court said just over a year ago in Noling
III. There, rejecting the dissent’s assertion that R.C. 2953.72(A)(8) and (A)(9)
should be severed from the statutory scheme, the majority wrote:
R.C. 2953.72(A)(8) and (A)(9) closely circumscribe the
issues that an offender may raise on appeal. The dissent, by excising
(A)(8) and (A)(9), and therefore implicitly seating the appellate right
in R.C. 2505.03, would broadly expand the rights of offenders to
appeal any final order or judgment of the court in relation to their
application for postconviction DNA testing and to seek review of
any element of the decision with which the offender disagrees. The
legislature plainly intended, through R.C. 2953.72(A)(8) and (A)(9),
to limit what findings a court could review on appeal. The dissent’s
remedy would frustrate that intent, violating [this court’s severance
test set forth in] Geiger [v. Geiger, 117 Ohio St. 451, 160 N.E. 28(1927)] and the dissent’s own admonition.
Noling III, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 63.
{¶ 97} Today, the majority does what this court said it would not do in
Noling III. It ignores what “[t]he legislature plainly intended” and “broadly
expand[s]” the ability of an offender “to seek review of any element of the decision
with which the offender disagrees,” id., as long as it does not involve the exercise
of the court’s discretion.
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The resolution of this appeal
{¶ 98} A proper construction of the statutes makes this case an easy one. I
concur with the majority’s conclusion that Noling’s second, third, and fifth
propositions of law all assert issues that may not be appealed. That is, they do not
concern (1) whether Noling is an eligible offender, (2) whether Noling’s application
satisfied the acceptance criteria, or (3) whether Noling’s application should have
been accepted or rejected. I would hold that Noling’s first proposition likewise
does not fit into that narrow categories of appealable issues and would dismiss that
proposition of law also.
{¶ 99} Finally, I concur in the majority’s judgment with respect to Noling’s
fourth proposition of law. Unlike the issues raised in his other propositions, the
determinations regarding whether his application failed to satisfy the acceptance
criteria and whether his application should have been rejected are both appealable
under R.C. 2953.72(A)(8). Like the majority, I would affirm the judgment of the
court of appeals on those issues.
KENNEDY, 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, Brain Howe, and Mark A. Godsey; and Timothy
Young, Ohio Public Defender, and Carrie Wood, Assistant Public Defender, for
appellant.
_________________
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