| Section 1. That sections 109.573, 2953.21, and 2953.23 be | 7 |
| amended and
sections 2953.71, 2953.72, 2953.73, 2953.74, 2953.75, | 8 |
| 2953.76,
2953.77, 2953.78, 2953.79, 2953.80, 2953.81, 2953.82, and | 9 |
| 2953.83 of the
Revised
Code be enacted to read as follows: | 10 |
| (a) If a person has disappeared and has been
continuously | 70 |
|
absent from the person's place of last domicile for
a thirty-day | 71 |
|
or longer period of time without being heard from during the | 72 |
|
period, persons related by consanguinity of the first
degree to | 73 |
|
the missing person may submit to the
bureau a DNA specimen, the | 74 |
|
bureau may include the
DNA record of the specimen
in the relatives | 75 |
|
of missing persons database,
and, if the bureau does not include | 76 |
|
the DNA record of the
specimen in the relatives of missing persons | 77 |
|
database, the bureau shall retain
the DNA record for future | 78 |
|
reference and
inclusion as appropriate in that database. | 79 |
| (c)
If the DNA specimen submitted pursuant to division | 82 |
|
(B)(3)(a) of this section is collected by withdrawing blood from | 83 |
|
the person or a similarly invasive procedure, a physician, | 84 |
|
registered nurse, licensed practical nurse,
duly licensed
clinical | 85 |
|
laboratory technician, or other qualified
medical practitioner | 86 |
|
shall
conduct the collection procedure for
the DNA specimen | 87 |
|
submitted
pursuant to division
(B)(3)(a) of this
section and shall | 88 |
|
collect the
DNA specimen in a medically
approved
manner.
If the | 89 |
|
DNA specimen is collected by swabbing for buccal cells or a | 90 |
|
similarly noninvasive procedure, division (B)(3)(c) of this | 91 |
|
section does not require that the DNA specimen be collected by a | 92 |
|
qualified medical practitioner of that nature. No later than | 93 |
|
fifteen days after the date of
the
collection of the DNA
specimen, | 94 |
|
the person conducting the
DNA
specimen collection
procedure shall | 95 |
|
cause the DNA
specimen to be
forwarded to the bureau of criminal | 96 |
|
identification and
investigation in accordance with procedures | 97 |
|
established by the
superintendent of the bureau under division
(H) | 98 |
|
of this section.
The bureau
may provide the specimen vials, | 99 |
|
mailing tubes, labels,
postage, and instruction needed for the | 100 |
|
collection and
forwarding
of the DNA specimen
to the bureau. | 101 |
| (4) If the bureau of criminal identification and | 105 |
|
investigation establishes and maintains an unidentified person | 106 |
|
database and if the superintendent of the bureau
identifies a | 107 |
|
matching DNA record for the DNA record of a
person or deceased | 108 |
|
person whose
DNA record is contained in the
unidentified person | 109 |
|
database, the superintendent shall inform
the coroner who | 110 |
|
submitted or the law enforcement agency that submitted the
DNA | 111 |
|
specimen to the bureau of
the match and, if possible, of the | 112 |
|
identity of the unidentified person. | 113 |
| (5) The bureau of criminal identification and investigation | 114 |
|
may enter into a contract with a qualified public or private | 115 |
|
laboratory to
perform DNA analyses, DNA specimen maintenance, | 116 |
|
preservation, and storage, DNA record keeping, and other duties | 117 |
|
required of the bureau under this section. A public or private | 118 |
|
laboratory
under contract with the bureau shall follow quality | 119 |
|
assurance and privacy
requirements established by the | 120 |
|
superintendent of the bureau. | 121 |
| (D) When a DNA record is derived from a DNA
specimen
provided | 129 |
| pursuant to section 2152.74 or 2901.07 of the Revised
Code,
the | 130 |
| bureau of
criminal identification and investigation
shall attach | 131 |
| to the DNA
record personal identification information
that | 132 |
| identifies the person from
whom the DNA specimen was taken.
The | 133 |
| personal identification
information may include the subject | 134 |
|
person's fingerprints and any other
information the bureau | 135 |
|
determines necessary. The DNA
record and personal identification | 136 |
|
information attached to it shall be used
only for the purpose of | 137 |
|
personal identification or for a purpose specified in
this | 138 |
|
section. | 139 |
| (E) DNA records, DNA specimens,
fingerprints, and
photographs | 140 |
| that the bureau of criminal
identification and
investigation | 141 |
| receives pursuant to this section and sections
313.08, 2152.74, | 142 |
| and 2901.07 of the Revised
Code and personal
identification | 143 |
| information attached to a
DNA record are not public
records under | 144 |
| section 149.43 of the
Revised Code. | 145 |
| (G)(1) No person who because of the person's employment or | 150 |
|
official
position has access to a DNA specimen, a DNA record, or | 151 |
|
other information contained in the DNA database that identifies an | 152 |
|
individual shall knowingly disclose that specimen, record, or | 153 |
|
information to
any person or agency not entitled to receive it or | 154 |
|
otherwise
shall misuse that specimen, record, or information. | 155 |
| Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 194 |
| a
criminal offense
or adjudicated a delinquent child and who | 195 |
| claims
that there was such a denial
or infringement of the | 196 |
| person's
rights as to render the judgment void or
voidable under | 197 |
|
the Ohio
Constitution or the Constitution of the United States, | 198 |
| and any
person who has been convicted of a criminal offense that | 199 |
| is a
felony, who is an inmate, and for whom DNA testing that
was | 200 |
| performed under sections 2953.71 to 2953.81 of the Revised
Code or | 201 |
| under section 2953.82 of the Revised Code provided results that | 202 |
| establish, by clear and convincing evidence, actual innocence of | 203 |
| that felony offense or, if the person was
sentenced to death, | 204 |
| establish, by clear and convincing evidence, actual innocence of | 205 |
| the aggravating circumstance or circumstances the person was found | 206 |
|
guilty of committing and that is or are the basis of that sentence | 207 |
| of
death, may file a
petition in the court that imposed sentence, | 208 |
| stating the grounds
for relief
relied upon, and asking the court | 209 |
| to vacate or set
aside the judgment or
sentence or to grant other | 210 |
| appropriate
relief. The petitioner may file a
supporting affidavit | 211 |
| and other
documentary evidence in support of the claim
for relief. | 212 |
| (b) As used in division (A)(1)(a) of this section, "actual | 213 |
| innocence" means that, had the results of the DNA testing | 214 |
| conducted under sections 2953.71 to 2953.81 of the Revised Code or | 215 |
| under section 2953.82 of the Revised Code been presented at trial, | 216 |
| no reasonable factfinder would have found the petitioner guilty of | 217 |
| the offense of which the petitioner was convicted, or, if the | 218 |
| person was sentenced to death, no reasonable factfinder would have | 219 |
| found the petitioner guilty of the aggravating circumstance or | 220 |
| circumstances the petitioner was found guilty of committing and | 221 |
| that is or are the basis of that sentence of death. | 222 |
(2) AExcept as otherwise provided in section 2953.23 of the | 223 |
| Revised Code, a petition under division (A)(1) of this section | 224 |
| shall
be filed no later
than one hundred eighty days after the | 225 |
| date on
which the trial transcript is
filed in the court of | 226 |
| appeals in the
direct appeal of the
judgment of conviction or | 227 |
| adjudication or, if
the direct appeal involves a
sentence of | 228 |
| death, the date on which
the trial transcript is filed in the | 229 |
|
supreme court. If no appeal
is taken, except as otherwise provided | 230 |
| in section 2953.23 of the Revised Code, the petition shall be | 231 |
| filed no later
than one hundred
eighty days after the expiration | 232 |
| of the time for filing the
appeal. | 233 |
| (5) If the petitioner in a petition filed under division (A) | 245 |
|
of this section
was convicted of or pleaded guilty to a felony, | 246 |
|
the petition
may include a claim that the petitioner was denied | 247 |
|
the equal protection
of the laws in violation of the Ohio | 248 |
|
Constitution or the
United States Constitution because the | 249 |
|
sentence
imposed upon the petitioner for the felony was part of a | 250 |
|
consistent pattern of
disparity in sentencing by the judge who | 251 |
|
imposed the sentence, with regard to
the petitioner's race, | 252 |
|
gender, ethnic background, or religion. If the supreme
court | 253 |
|
adopts a rule requiring a court of common pleas to
maintain | 254 |
|
information with regard to an offender's race, gender,
ethnic | 255 |
|
background, or religion, the supporting evidence for the petition | 256 |
|
shall
include, but shall not be limited to, a copy of that type of | 257 |
|
information
relative to the petitioner's sentence and copies of | 258 |
|
that type of information
relative to sentences that the same judge | 259 |
|
imposed upon other persons. | 260 |
| (C) The court shall consider a petition that is timely filed | 267 |
|
under division
(A)(2) of this section even if a direct appeal of | 268 |
|
the judgment is pending.
Before granting a hearing on a petition | 269 |
|
filed under division (A) of this
section, the court shall | 270 |
|
determine whether there are
substantive grounds for relief. In | 271 |
|
making such
a determination, the court shall consider, in addition | 272 |
|
to the
petition, the supporting affidavits, and the documentary | 273 |
|
evidence, all the
files and records
pertaining to the proceedings | 274 |
|
against the petitioner, including,
but not limited to, the | 275 |
|
indictment, the court's journal entries,
the journalized records | 276 |
|
of the clerk of the court, and the court
reporter's transcript. | 277 |
|
The court reporter's transcript, if
ordered and certified by the | 278 |
|
court, shall be taxed as court
costs. If the court dismisses the | 279 |
|
petition, it shall make and
file findings of fact and conclusions | 280 |
|
of law with respect to such
dismissal. | 281 |
| (E) Unless the petition and the files and records of the
case | 288 |
| show the petitioner is not entitled to relief, the court
shall | 289 |
| proceed to a prompt hearing on the issues even if a direct
appeal | 290 |
| of the case is pending. If the
court notifies the parties
that it | 291 |
| has found grounds for
granting relief, either party may
request an | 292 |
| appellate court in which a direct
appeal of the
judgment is | 293 |
| pending to remand the
pending case to the court. | 294 |
| (G) If the court does not find grounds for granting relief, | 299 |
|
it shall make and
file findings of fact and conclusions of law and | 300 |
|
shall enter judgment denying
relief on the petition. If no direct | 301 |
|
appeal of the case is pending and the
court finds grounds for | 302 |
|
relief or if a pending direct appeal of the case has
been remanded | 303 |
|
to the court pursuant to a request made pursuant to division (E) | 304 |
|
of this section and the court finds grounds for granting relief, | 305 |
|
it shall make
and file findings of fact and conclusions of law
and | 306 |
|
shall enter a judgment that vacates and sets aside the judgment in | 307 |
|
question, and, in the case of a petitioner who is a prisoner in | 308 |
|
custody, shall discharge or resentence the petitioner or grant
a | 309 |
|
new trial as the court determines appropriate. The court also may | 310 |
|
make
supplementary orders to the
relief granted, concerning such | 311 |
|
matters as rearraignment,
retrial, custody, and bail. If the
trial | 312 |
| court's order
granting the petition is reversed on appeal
and if | 313 |
| the direct appeal of the
case has been remanded from an
appellate | 314 |
| court pursuant to a request under
division (E) of this
section, | 315 |
| the appellate court reversing the order granting
the
petition | 316 |
| shall
notify the appellate court in which the direct
appeal of the | 317 |
|
case was pending at the time of the remand of the
reversal and | 318 |
|
remand of the trial court's order. Upon the reversal
and remand
of | 319 |
| the trial court's order granting the petition,
regardless of | 320 |
|
whether notice is sent or received, the direct
appeal of the
case | 321 |
| that was remanded is reinstated. | 322 |
(I)(1) If a person who has received the death penalty | 328 |
| sentenced to death intends to file a
petition under this section, | 329 |
| the court shall
appoint counsel to represent the
person upon a | 330 |
| finding that the
person is indigent and that the person either | 331 |
|
accepts the
appointment of counsel or is unable to make a | 332 |
| competent decision
whether to accept or reject the appointment of | 333 |
| counsel. The court
may decline
to appoint counsel for the person | 334 |
| only upon a finding,
after a hearing if
necessary, that the person | 335 |
| rejects the
appointment of counsel and understands
the legal | 336 |
| consequences of
that decision or upon a finding that the person is | 337 |
|
not indigent. | 338 |
| (2) The court shall not appoint as counsel under division | 339 |
|
(I)(1) of this section an attorney who
represented the petitioner | 340 |
|
at trial in the case to which the petition relates
unless the | 341 |
|
person and the attorney expressly request the appointment. The | 342 |
|
court shall appoint as counsel under division
(I)(1) of this | 343 |
|
section only an attorney who is
certified under Rule
20 of the | 344 |
|
Rules of
Superintendence for
the Courts of
Ohio to
represent | 345 |
|
indigent defendants charged with or convicted of an
offense for | 346 |
|
which the death penalty can be or has been imposed.
The | 347 |
|
ineffectiveness or incompetence of counsel during proceedings | 348 |
|
under this
section does not constitute grounds for relief in a | 349 |
|
proceeding under this
section, in an appeal of any action under | 350 |
|
this section, or in an application
to reopen a direct appeal. | 351 |
| (3) Division (I) of this section does not preclude attorneys | 352 |
|
who represent
the state of Ohio from invoking the provisions of 28 | 353 |
|
U.S.C. 154
with respect to capital cases that were pending in | 354 |
|
federal habeas corpus
proceedings prior to the effective date of | 355 |
|
this amendment insofar as the
petitioners in those cases were | 356 |
|
represented in proceedings under this section
by one or more | 357 |
|
counsel appointed by the court under this section or section | 358 |
|
120.06, 120.16, 120.26, or 120.33 of the Revised Code and
those | 359 |
|
appointed counsel meet the requirements of division (I)(2) of
this | 360 |
|
section. | 361 |
| (J) Subject to the appeal of a sentence for a felony that is | 362 |
|
authorized by
section 2953.08 of the Revised Code, the remedy set | 363 |
|
forth in this section is
the exclusive remedy by which a person | 364 |
|
may bring a collateral challenge to the
validity of a conviction | 365 |
|
or sentence in a criminal case or to the validity of
an | 366 |
|
adjudication of a child as a delinquent child for the commission | 367 |
|
of an act
that would be a criminal offense if committed by an | 368 |
|
adult or the validity of a
related order of disposition. | 369 |
(2)(b) The petitioner shows by clear and convincing evidence | 388 |
|
that, but for constitutional error at trial, no reasonable | 389 |
|
factfinder would have found the petitioner guilty of the offense | 390 |
|
of which the
petitioner was convicted or, if the claim challenges | 391 |
|
a sentence of death that,
but for constitutional error at the | 392 |
|
sentencing
hearing, no reasonable factfinder would have found the | 393 |
|
petitioner eligible for
the death sentence. | 394 |
| (2) The petitioner was convicted of a felony, the petitioner | 395 |
|
is an inmate for whom DNA testing was
performed under sections | 396 |
|
2953.71 to 2953.81 of the Revised Code or under section 2953.82 of | 397 |
| the Revised Code,
and the results of the DNA
testing establish, by | 398 |
| clear and convincing evidence, actual innocence of
that felony | 399 |
| offense or, if the person was sentenced to death, establish, by | 400 |
| clear and convincing evidence, actual innocence of the
aggravating | 401 |
| circumstance or circumstances the person was found guilty of | 402 |
| committing
and that is or are the basis of that sentence of death. | 403 |
| (C) "Chain of custody" means a record or other evidence that | 425 |
| tracks a subject
sample of biological material from the time the | 426 |
| biological
material was first obtained until the time it currently | 427 |
| exists in
its place of storage and, in relation to a DNA sample, a | 428 |
| record or other evidence
that tracks the DNA sample from the time | 429 |
| it was first obtained
until it currently exists in its place of | 430 |
| storage. For purposes
of this division, examples of when | 431 |
| biological material or a DNA
sample is first
obtained include, but | 432 |
| are not limited to,
obtaining the material or sample
at the scene | 433 |
| of a crime, from a
victim, from an inmate, or in any
other manner | 434 |
| or time as is
appropriate in the facts and
circumstances present. | 435 |
| (G) "Exclusion" or "exclusion result" means a result of DNA | 444 |
|
testing that
scientifically precludes or forecloses the subject | 445 |
|
inmate
as a contributor of biological material recovered
from the | 446 |
|
crime
scene or victim in question, in relation to the
offense for | 447 |
|
which the inmate is an eligible inmate and for which the sentence | 448 |
|
of death
or prison term was imposed upon the
inmate or, regarding | 449 |
| a request for DNA testing made under section 2953.82 of the | 450 |
| Revised Code, in relation to the offense for which the inmate made | 451 |
| the request and for which the sentence of death or prison term was | 452 |
| imposed upon the inmate. | 453 |
| (I) "Inclusion" or "inclusion result" means a result of DNA | 458 |
|
testing that
scientifically cannot exclude, or that holds | 459 |
|
accountable, the
subject inmate as a contributor of
biological | 460 |
|
material
recovered from the crime scene or victim in
question, in | 461 |
|
relation
to the offense for which the inmate is an eligible inmate | 462 |
|
and for which the sentence of
death or prison term was imposed | 463 |
|
upon the inmate or, regarding a request for DNA testing made under | 464 |
| section 2953.82 of the Revised Code, in relation to the offense | 465 |
| for which the inmate made the request and for which the sentence | 466 |
| of death or prison term was imposed upon the inmate. | 467 |
| (L) "Outcome determinative" means that had the results of
DNA | 473 |
|
testing been presented at the trial
of the subject inmate | 474 |
| requesting DNA testing and been found relevant and admissible with | 475 |
| respect to the felony
offense for which the inmate is an eligible | 476 |
| inmate and
is
requesting the DNA testing or for which the inmate | 477 |
| is requesting the DNA testing under section 2953.82 of the Revised | 478 |
| Code, no reasonable factfinder would have
found the inmate guilty | 479 |
| of that offense or, if the inmate was
sentenced to death relative | 480 |
| to that offense, would have found the
inmate guilty of the | 481 |
| aggravating circumstance or circumstances the inmate was
found | 482 |
|
guilty of committing and that is or are the basis of that sentence | 483 |
|
of
death. | 484 |
| Sec. 2953.72. (A) Any eligible inmate who wishes to
request | 509 |
|
DNA testing under sections 2953.71 to 2953.81 of the
Revised Code | 510 |
|
shall
submit an application for the testing to the court of common | 511 |
|
pleas specified in section 2953.73 of the Revised Code, on a form | 512 |
|
prescribed
by the
attorney general for this purpose. The eligible | 513 |
|
inmate
shall submit the application within the period of time, and | 514 |
|
in
accordance with the procedures, set forth in section 2953.73 of | 515 |
|
the Revised Code. The eligible inmate shall specify on the | 516 |
|
application the offense or offenses for which the inmate is an | 517 |
|
eligible inmate and is requesting the DNA testing. Along with the | 518 |
|
application, the
eligible inmate shall submit an
acknowledgment | 519 |
|
that is
on a form prescribed by the attorney
general for this | 520 |
|
purpose and
that is signed by the inmate.
The acknowledgment
shall | 521 |
| set forth
all of the following: | 522 |
| (1) That sections 2953.71 to 2953.81 of the Revised Code | 523 |
|
contemplate applications for DNA testing of eligible
inmates
at a | 524 |
|
stage of a prosecution or case after the inmate has
been
sentenced | 525 |
| to a prison term or a sentence of death, that any
exclusion or | 526 |
| inclusion
result of DNA testing rendered pursuant to
those | 527 |
| sections may be used by a
party in any proceeding
as described in | 528 |
| section 2953.81 of the Revised Code, and that all
requests for any | 529 |
| DNA
testing made at trial will continue to be
handled by the | 530 |
| prosecuting
attorney in the case; | 531 |
| (6) That, if DNA testing is conducted with respect to an | 552 |
|
inmate under sections 2953.71 to 2953.81 of the Revised
Code, the | 553 |
|
state will not offer the inmate a retest if an inclusion
result is | 554 |
|
achieved relative to the testing and that, if the state
were to | 555 |
|
offer a retest after an inclusion result, the policy would
create | 556 |
|
an atmosphere in which endless testing could occur and in
which | 557 |
|
postconviction proceedings could be stalled for many years; | 558 |
| (8) That the acknowledgment memorializes the provisions of | 564 |
|
sections 2953.71 to 2953.81 of the Revised Code with respect to | 565 |
|
the application of postconviction DNA testing to inmates, that | 566 |
|
those
provisions do not give any inmate any additional | 567 |
|
constitutional
right that the inmate did not have prior to the | 568 |
|
effective date of
those provisions, that the court has no duty or | 569 |
|
obligation to
provide postconviction DNA testing to inmates,
that | 570 |
| the court of
common pleas has the
sole
discretion subject to an | 571 |
| appeal as described in this division to determine whether an | 572 |
|
inmate is an eligible inmate
and whether an
eligible inmate's | 573 |
|
application for DNA testing
satisfies
the acceptance criteria | 574 |
|
described in division (A)(4) of
this
section and whether the | 575 |
|
application should be accepted or
rejected, that if the court of | 576 |
| common
pleas rejects an eligible inmate's application, the inmate | 577 |
| may seek leave of the supreme court to appeal the rejection to | 578 |
| that court if the inmate was sentenced to death for the offense | 579 |
| for which the inmate is requesting the DNA testing and, if the | 580 |
| inmate was not sentenced to death for that offense, may appeal the | 581 |
| rejection to the court of appeals, and that no
determination | 582 |
| otherwise made
by
the court of common pleas in the
exercise
of its | 583 |
| discretion
regarding the
eligibility of an
inmate or regarding | 584 |
| postconviction DNA testing
under those provisions
is reviewable by | 585 |
| or appealable to any
court; | 586 |
| (9) That the manner in which sections 2953.71 to 2953.81 of | 587 |
|
the Revised Code with respect to the offering of postconviction | 588 |
|
DNA testing to inmates are carried out does not confer any | 589 |
|
constitutional right upon any inmate, that the state has | 590 |
|
established guidelines and procedures relative to those provisions | 591 |
|
to ensure that they are carried out with both justice and | 592 |
|
efficiency in mind, and that an inmate who participates in
any | 593 |
|
phase of the mechanism contained in those provisions,
including, | 594 |
|
but not limited to, applying for DNA testing and being
rejected, | 595 |
|
having an application for DNA testing accepted and not
receiving | 596 |
|
the test, or having DNA testing conducted and receiving | 597 |
|
unfavorable results, does not gain as a result of the | 598 |
|
participation any constitutional right to challenge, or, except as | 599 |
| provided in division (A)(8) of this section, any right
to any | 600 |
| review or appeal of, the manner in
which those provisions
are | 601 |
| carried out; | 602 |
| (10) That the most basic aspect of sections 2953.71 to | 603 |
|
2953.81 of the Revised Code is that, in order for DNA testing to | 604 |
|
occur, there must be an inmate sample against which other evidence | 605 |
|
may be compared, that, if an eligible inmate's
application
is | 606 |
|
accepted but the inmate subsequently refuses to
submit
to the | 607 |
|
collection of the sample of biological material from
the
inmate
or | 608 |
| hinders the state from obtaining a sample of
biological
material | 609 |
| from the inmate, the goal of those
provisions
will be
frustrated, | 610 |
| and that an inmate's refusal
or
hindrance shall cause the court to | 611 |
| rescind its prior acceptance of the application for
DNA testing | 612 |
| for
the inmate and deny the application; | 613 |
| (11) That, if the inmate is an inmate who pleaded guilty or | 614 |
| no contest to a felony offense and who is using the application | 615 |
| and acknowledgment to request DNA testing under section 2953.82 of | 616 |
| the Revised Code, all references in the acknowledgment to an | 617 |
| "eligible inmate" are considered to be references to, and apply | 618 |
| to, the inmate and all references in the acknowledgment to | 619 |
| "sections 2953.71 to 2953.81 of the Revised Code" are considered | 620 |
| to be references to "section 2953.82 of the Revised Code". | 621 |
| (B) The attorney general shall prescribe a form to be used
to | 622 |
| make an application for DNA testing under division (A) of this | 623 |
|
section and section 2953.73 of the Revised Code and a form to be | 624 |
|
used to provide the acknowledgment described in division (A) of | 625 |
|
this section. The forms shall include all information described in | 626 |
|
division (A) of this section, spaces for an inmate to insert all | 627 |
|
information necessary to complete the forms, including, but not | 628 |
|
limited to, specifying the offense or offenses for which the | 629 |
|
inmate is an eligible inmate and is requesting the DNA testing or | 630 |
| for which the inmate is requesting the DNA testing under section | 631 |
| 2953.82 of the Revised Code,
and any other information or material | 632 |
| the attorney general
determines is necessary or relevant. The | 633 |
| forms also shall be used to make an application requesting DNA | 634 |
| testing under section 2953.82 of the Revised Code, and the | 635 |
| attorney general shall ensure that they are sufficient for that | 636 |
| type of use, and that they include all information and spaces | 637 |
| necessary for that type of use. The attorney general shall | 638 |
|
distribute copies of the
prescribed forms to the department of | 639 |
|
rehabilitation and
correction, the department shall ensure that | 640 |
|
each
prison in which inmates are housed has a
supply of
copies of | 641 |
|
the forms, and the department shall ensure
that copies
of the | 642 |
|
forms are provided free of charge to any
inmate who
requests
them. | 643 |
| Sec. 2953.73. (A) An eligible inmate who wishes to
request | 662 |
| DNA testing to be conducted under sections 2953.71 to
2953.81 of | 663 |
| the Revised Code shall submit an application for
DNA
testing on a | 664 |
| form prescribed by the attorney general for this
purpose and shall | 665 |
| submit the form to the court of common pleas
that sentenced the | 666 |
| inmate for the
offense for which the inmate is an eligible inmate | 667 |
| and is
requesting DNA testing.
The
eligible inmate shall submit | 668 |
| the
application to that court of common pleas not
later
than
one | 669 |
| year after the effective date of this section. No court of common | 670 |
| pleas shall accept an application
under this section after the | 671 |
| expiration of the period of time
specified
in this division. | 672 |
| (2) The application shall be assigned to the judge of that | 678 |
|
court of common pleas who was the trial judge in the case in which | 679 |
| the eligible inmate was convicted of the offense for which the | 680 |
| inmate is requesting DNA testing, or, if that judge no longer is a | 681 |
| judge of that court, it shall be assigned according to court | 682 |
| rules. The judge to whom the application is
assigned shall decide | 683 |
| the application. The application shall become part of the file in | 684 |
| the case. | 685 |
| (C) If an eligible inmate submits an application for DNA | 686 |
|
testing under division (A) of this section, regardless of whether | 687 |
| the inmate has commenced any federal habeas corpus proceeding | 688 |
| relative to the
case in which the inmate was convicted of the | 689 |
| offense for which
the inmate is an eligible inmate and is | 690 |
| requesting DNA testing,
any response to the application by the | 691 |
| prosecuting attorney or the attorney general shall be filed not | 692 |
| later than forty-five days after the date on which the eligible | 693 |
| inmate submits the application. The prosecuting attorney or
the | 694 |
| attorney general, or both, may, but are not required to, file a | 695 |
| response
to the application. If the prosecuting attorney or the | 696 |
| attorney general files a response under this division, the | 697 |
| prosecuting attorney or attorney general, whoever filed the | 698 |
| response, shall serve a copy of the response on the eligible | 699 |
| inmate. | 700 |
| (D) If an eligible inmate submits an application for DNA | 701 |
|
testing under division (A) of this section, the court
shall make | 702 |
|
the determination as to whether the
application should be accepted | 703 |
|
or rejected. The court shall expedite its review of
the | 704 |
| application. The
court shall make the determination in accordance | 705 |
| with the
criteria
and procedures set forth in sections 2953.74 to | 706 |
| 2953.81
of the
Revised Code and, in making the determination, | 707 |
| shall
consider the
application, the supporting affidavits, and the | 708 |
| documentary evidence and, in addition to those materials, shall | 709 |
| consider all the files and records pertaining to the proceedings | 710 |
| against the applicant, including, but not limited to, the | 711 |
| indictment, the court's journal entries, the journalized records | 712 |
| of the clerk of the court, and the court reporter's transcript and | 713 |
| all responses to the application
filed under
division (C) of this | 714 |
| section by a prosecuting attorney
or the
attorney general, unless | 715 |
| the application and the files and records show the applicant is | 716 |
| not entitled to DNA testing, in which case the application may be | 717 |
| denied. The court is not required to conduct an evidentiary | 718 |
| hearing in conducting its review of, and in making its | 719 |
| determination as to whether to accept or reject, the application. | 720 |
| Upon making its determination, the
court shall
enter a judgment | 721 |
| and order that either accepts or
rejects the application and that | 722 |
| includes
within the judgment and order the
reasons for the | 723 |
| acceptance or rejection as applied to the criteria and procedures | 724 |
| set forth in sections 2953.71 to 2953.81 of the Revised Code. The | 725 |
| court shall send a copy of the
judgment and order to the eligible | 726 |
|
inmate who filed it, the prosecuting
attorney, and the attorney | 727 |
|
general. | 728 |
| Sec. 2953.74. (A) If an eligible inmate submits an | 756 |
| application
for
DNA
testing under section 2953.73 of the Revised | 757 |
| Code and a prior
definitive DNA test has been conducted
regarding | 758 |
| the same
biological evidence that the inmate seeks to
have tested, | 759 |
|
the
court shall reject the inmate's
application. If an
eligible | 760 |
|
inmate files an application
for DNA
testing and a prior | 761 |
|
inconclusive DNA test has been
conducted
regarding the same | 762 |
|
biological evidence that the
inmate seeks to
have tested, the | 763 |
|
court shall review
the application
and has the
discretion, on a | 764 |
|
case-by-case basis,
to either accept
or reject
the application. | 765 |
|
The court may direct a
testing authority to provide the court with | 766 |
| information that the court may use in determining
whether prior | 767 |
| DNA test
results
were definitive or inconclusive and
whether to | 768 |
| accept or
reject an
application in relation to which
there were | 769 |
| prior
inconclusive DNA
test results. | 770 |
| (1) The inmate did not have a DNA test taken at the
trial | 774 |
|
stage in the case in which the inmate was convicted of the offense | 775 |
|
for which the inmate is an eligible inmate and is requesting the | 776 |
|
DNA testing regarding the same
biological evidence
that the
inmate | 777 |
|
seeks to have tested,
the inmate shows that DNA
exclusion
would | 778 |
|
have been
outcome determinative at that trial stage
in that
case, | 779 |
|
and,
at the
time of the trial stage in that case, DNA
testing
was | 780 |
|
not generally
accepted, the results of DNA testing
were not | 781 |
|
generally admissible
in evidence, or DNA testing was not
yet | 782 |
|
available. | 783 |
| (2) The inmate had a DNA test taken at the trial
stage in
the | 784 |
| case in which the inmate was convicted of the offense for
which | 785 |
| the inmate is an eligible inmate and is requesting the DNA
testing | 786 |
| regarding the same biological
evidence that the inmate
seeks to | 787 |
| have tested, the test
was not a prior definitive DNA test
that is | 788 |
|
subject to division (A) of
this section, and the inmate
shows that | 789 |
|
DNA exclusion
would have been outcome determinative at
the trial | 790 |
|
stage in that
case. | 791 |
| (b) The parent sample of the biological material so
collected | 809 |
|
is not so minute or fragile as to
risk destruction of
the parent | 810 |
| sample by the extraction described
in division
(D)(2)(a) of this | 811 |
| section; provided that the court
may determine
in its discretion, | 812 |
| on a case-by-case
basis, that,
even if the
parent
sample of the | 813 |
| biological material
so collected
is so minute
or
fragile as to | 814 |
| risk destruction of the
parent
sample by the
extraction, the | 815 |
| application should not be
rejected
solely on the
basis of that | 816 |
| risk. | 817 |
| (6) The court determines pursuant to section
2953.76 of
the | 836 |
|
Revised Code from the chain of custody of
the
parent
sample of
the | 837 |
| biological material to be tested and of
any
test
sample
extracted | 838 |
| from the parent sample, and from the
totality of
circumstances | 839 |
| involved, that the parent sample and the
extracted
test sample are | 840 |
| the same sample as collected and that
there is no
reason to | 841 |
| believe that they have been out of state
custody or have
been | 842 |
| tampered with or contaminated since they were
collected. | 843 |
| Sec. 2953.75. (A) If an eligible inmate submits an | 844 |
|
application
for DNA testing under section 2953.73 of the Revised | 845 |
|
Code, the
court shall require the prosecuting attorney to use | 846 |
|
reasonable diligence to
determine
whether
biological material was | 847 |
|
collected from the crime
scene or
victim
of the offense for which | 848 |
| the inmate is an eligible inmate
and is
requesting the DNA testing | 849 |
| against which a sample
from the
inmate
can
be compared and whether | 850 |
| the parent sample of
that
biological
material still exists at that | 851 |
| point in time. In
using
reasonable
diligence to make those | 852 |
| determinations, the
prosecuting attorney
shall rely upon
all | 853 |
| relevant sources,
including, but not
limited
to, all of the | 854 |
|
following: | 855 |
| Sec. 2953.76. If an eligible inmate submits an
application | 875 |
|
for DNA testing under section 2953.73 of the Revised
Code, the | 876 |
|
court shall require the prosecuting attorney to consult with the | 877 |
|
testing authority and to prepare findings
regarding the quantity | 878 |
|
and quality of the parent
sample of the
biological material | 879 |
|
collected from the crime scene
or victim of
the offense for which | 880 |
| the inmate is an eligible
inmate and is
requesting the DNA testing | 881 |
| and that is to be
tested, and
of the
chain of custody and | 882 |
| reliability
regarding that
parent sample, as
follows: | 883 |
| (A) The testing authority shall determine whether there is
a | 884 |
| scientifically sufficient quantity of the parent sample to test | 885 |
|
and whether the parent sample is so minute or fragile that there | 886 |
|
is a substantial risk that the parent sample could be destroyed in | 887 |
|
testing. The testing authority may determine that there is not a | 888 |
|
sufficient quantity to test in order to preserve the state's | 889 |
|
ability to present in the future the original evidence presented | 890 |
|
at trial, if another trial is required. Upon making its | 891 |
|
determination under this division, the testing authority shall | 892 |
|
prepare a written document
that contains
its
determination and the | 893 |
|
reasoning and rationale
for that
determination and shall provide a | 894 |
| copy to the court, the eligible inmate, the prosecuting attorney, | 895 |
| and the attorney general. The court may determine in
its | 896 |
|
discretion, on a
case-by-case
basis, that, even if the parent | 897 |
|
sample of the
biological material
so collected is so minute or | 898 |
|
fragile as to
risk destruction of the
parent sample by the | 899 |
|
extraction, the
application should not be
rejected solely on the | 900 |
|
basis of that
risk. | 901 |
| (B) The testing authority shall determine whether the
parent | 902 |
| sample has degraded or been contaminated to the extent that
it has | 903 |
| become scientifically unsuitable for testing and whether
the | 904 |
| parent sample otherwise has been preserved, and remains, in a | 905 |
|
condition that is suitable for testing. Upon making its | 906 |
|
determination under this division, the testing authority shall | 907 |
|
prepare a written document
that contains
its
determination and the | 908 |
|
reasoning and rationale
for that
determination and shall provide a | 909 |
| copy to the court, the eligible inmate, the prosecuting attorney, | 910 |
| and the attorney general. | 911 |
| (C) The court shall determine, from the chain of
custody of | 912 |
| the parent sample of the biological
material
to be
tested and of | 913 |
| any test sample extracted from the
parent
sample and
from the | 914 |
| totality of circumstances involved,
whether the parent
sample and | 915 |
| the extracted test sample are the
same sample as
collected and | 916 |
| whether there is any reason to
believe that they
have been out of | 917 |
| state custody or have been
tampered with or
contaminated since | 918 |
| they were collected. Upon
making its
determination under this | 919 |
| division, the
court shall prepare and
retain a written document | 920 |
|
that
contains its determination and the
reasoning and rationale | 921 |
|
for
that determination. | 922 |
| Sec. 2953.77. (A) If an eligible inmate submits an | 923 |
|
application for DNA testing under section 2953.73 of the Revised | 924 |
|
Code and if the application is accepted and
DNA testing is to be | 925 |
|
performed, the court shall require that the chain of custody | 926 |
| remain intact and that all of the
applicable following precautions | 927 |
| are satisfied to
ensure that the parent sample
of the biological | 928 |
| material collected from the crime scene or the
victim of the | 929 |
| offense for which the inmate is an eligible inmate
and requested | 930 |
| the DNA testing, and the
test sample of the parent
sample that is | 931 |
| extracted and actually is
to be tested, are not
contaminated | 932 |
| during transport or the testing
process: | 933 |
| (2) The court, the testing authority, and the
law
enforcement | 939 |
| and prosecutorial personnel involved in the
process,
or any | 940 |
| combination of those entities and persons, shall
coordinate
the | 941 |
| transport of the parent sample and
the test sample
actually to
be | 942 |
| tested between their place of
storage and the place
where the
DNA | 943 |
| testing will be performed, and
the court
and testing authority | 944 |
|
shall document the
transport
procedures so
used. | 945 |
|
(5) After the DNA testing, the court, the
testing
authority, | 953 |
| and the original custodial agency of the parent
sample,
or any | 954 |
| combination of those entities, shall coordinate the
return
of the | 955 |
| remaining parent sample
back to its place of storage
with
the | 956 |
| original custodial agency or
to any other place
determined in | 957 |
|
accordance with this division and section 2953.81
of
the Revised | 958 |
|
Code. The court shall determine, in consultation with the testing | 959 |
| authority, the custodial agency to
maintain any newly created, | 960 |
|
extracted, or collected DNA material
resulting from the testing. | 961 |
|
The court and testing
authority shall document the return | 962 |
|
procedures for original
materials and for any newly created, | 963 |
|
extracted, or collected DNA
material resulting from the testing, | 964 |
|
and also the custodial agency
to which those materials should be | 965 |
|
taken. | 966 |
| Sec. 2953.78. (A) If an eligible inmate submits an | 970 |
|
application for DNA testing under section 2953.73 of the Revised | 971 |
|
Code and if the application is accepted and
DNA testing is to be | 972 |
|
performed, the court shall select the
testing
authority to
be used | 973 |
|
for the testing. A court
shall
not select or
use a testing | 974 |
|
authority for DNA
testing
unless the
attorney general
approves or | 975 |
|
designates the testing
authority
pursuant to
division (C) of this | 976 |
|
section
and unless the
testing authority satisfies
the criteria | 977 |
|
set forth in section
2953.80
of the Revised Code. | 978 |
| (B) If a court
selects a testing authority
pursuant to | 979 |
|
division (A) of this
section and the eligible inmate
for whom the | 980 |
|
test is to be
performed objects to the use of the
selected testing | 981 |
|
authority,
the court shall rescind its prior acceptance of the | 982 |
| application for
DNA
testing
for the inmate and deny the | 983 |
| application. An objection as
described in this
division, and
the | 984 |
| resulting rescission and denial, do
not preclude
a court
from | 985 |
| accepting in the court's
discretion,
a
subsequent application by | 986 |
| the
same eligible inmate
requesting
DNA
testing. | 987 |
| (C) The attorney general shall approve or designate testing | 988 |
|
authorities that may be selected and used to conduct DNA
testing, | 989 |
| shall prepare a list of the approved or designated
testing | 990 |
|
authorities, and shall provide copies of the list to all
courts of | 991 |
| common pleas. The attorney general shall update the
list
as | 992 |
| appropriate to reflect changes in the approved or
designated | 993 |
|
testing authorities and shall provide copies of the
updated list | 994 |
|
to all courts of common pleas. The attorney general
shall not | 995 |
|
approve or designate a testing authority under this
division | 996 |
|
unless the testing authority satisfies the criteria set
forth in | 997 |
|
section 2953.80 of the Revised Code. | 998 |
| (D) The attorney general's approval or designation of
testing | 999 |
| authorities under division (C) of this section, and the
selection | 1000 |
| and use of any approved or designated testing authority,
do not | 1001 |
| afford an inmate any right to subsequently challenge the
approval, | 1002 |
| designation, selection, or use, and an inmate may not
appeal to | 1003 |
| any court the approval, designation, selection, or use
of a | 1004 |
| testing authority. | 1005 |
| Sec. 2953.79. (A) If an eligible inmate submits an | 1006 |
|
application for DNA testing under section 2953.73 of the Revised | 1007 |
|
Code and if the application is accepted and
DNA testing is to be | 1008 |
|
performed, a sample of biological material
shall be obtained from | 1009 |
|
the inmate in accordance with this section,
to be compared
with | 1010 |
|
the parent sample of biological material collected from the crime | 1011 |
|
scene or the victim of the offense for which the inmate is an | 1012 |
|
eligible inmate and requested the DNA testing. The
inmate's
filing | 1013 |
| of the application constitutes the
inmate's
consent to the | 1014 |
|
obtaining of the sample of biological
material from
the inmate. | 1015 |
|
The testing authority shall
obtain the sample of
biological | 1016 |
|
material from the inmate
in accordance with medically
accepted | 1017 |
|
procedures. | 1018 |
| (B) If DNA testing is to be performed for an inmate
as | 1019 |
|
described in division (A) of this section, the court
shall require | 1020 |
| the state to coordinate with
the department of rehabilitation and | 1021 |
|
correction as to the time and
place at
which the sample of | 1022 |
| biological material
will be obtained
from the
inmate. The sample | 1023 |
| of biological material shall be obtained from the inmate at
the | 1024 |
| facility in which the inmate is housed, and
the department shall | 1025 |
| make
the inmate
available at the
specified time. The
court shall | 1026 |
| require the state to provide
notice to
the inmate and to the
| 1027 |
| inmate's
counsel of the date
on
which, and the time and place at | 1028 |
|
which, the
sample will be so
obtained. | 1029 |
| (C)(1) If DNA testing is to be performed for an inmate
as | 1033 |
|
described in division (A) of this section, and the
inmate refuses | 1034 |
|
to submit to the collection of the sample of
biological material | 1035 |
|
from the inmate or hinders the state
from
obtaining a sample of | 1036 |
|
biological material from the
inmate, the court shall rescind its | 1037 |
| prior acceptance of the application for DNA testing
for the inmate | 1038 |
| and deny the application. | 1039 |
| (D) The extracting personnel shall make the determination
as | 1050 |
| to whether an eligible inmate for whom DNA testing is
to
be | 1051 |
|
performed is refusing to submit to the collection of a
sample
of | 1052 |
|
biological material from the inmate or is hindering the
state
from | 1053 |
| obtaining a sample of biological material from the
inmate at
the | 1054 |
| time and date of the scheduled collection of
the
sample. If
the | 1055 |
| extracting personnel determine that an
inmate is
refusing to | 1056 |
|
submit to the collection of a sample or is
hindering
the state | 1057 |
|
from obtaining a sample, the extracting
personnel shall
document | 1058 |
|
in writing the conditions that constitute
the refusal or | 1059 |
|
hindrance, maintain the documentation, and notify the court of the | 1060 |
| inmate's refusal or hindrance. | 1061 |
| (A) The court or a
designee of the court shall require the | 1089 |
| state to
maintain the
results of the testing and to
maintain and | 1090 |
|
preserve
both the
parent sample of the biological
material used | 1091 |
|
and the
inmate
sample of the biological material
used. The
testing | 1092 |
|
authority may
be designated as the person to
maintain the
results | 1093 |
|
of the testing
or to maintain and preserve
some or all of
the | 1094 |
|
samples, or both.
The results of the testing
remain
state's | 1095 |
|
evidence. The
samples
shall be preserved during
the
entire period | 1096 |
|
of time for
which the
inmate is imprisoned
relative
to the prison | 1097 |
|
term or sentence of
death
in question and,
if that
prison term | 1098 |
|
expires or the inmate
is executed under
that
sentence
of death, | 1099 |
|
for a reasonable period
of time of not less
than
twenty-four | 1100 |
|
months after the term expires
or the inmate is
executed. The
court | 1101 |
| shall determine the
period
of
time
that is
reasonable for purposes | 1102 |
| of this division,
provided
that
the period
shall not be less than | 1103 |
| twenty-four months
after
the
term expires or the inmate is | 1104 |
|
executed. | 1105 |
| (D) If the postconviction proceeding in question is pending | 1110 |
|
at that time in a court of this state, the court of common pleas | 1111 |
|
that decided the DNA application or
the testing authority shall | 1112 |
|
provide a copy of the results of the
testing to any court of this | 1113 |
|
state, and, if it is pending in a
federal court, the court of | 1114 |
|
common pleas that decided the DNA application or the testing | 1115 |
|
authority
shall provide a copy of the results of the testing to | 1116 |
|
that federal
court. | 1117 |
| (B) An inmate who pleaded guilty or no contest to a felony | 1137 |
| offense that was committed prior to the effective date of this | 1138 |
| section, who satisfies the criteria set forth in division (A) of | 1139 |
| this section, and who wishes to request DNA testing under this | 1140 |
| section shall submit, in accordance with this division, an | 1141 |
| application for the testing to the court of common pleas and the | 1142 |
| prosecuting attorney. The inmate shall specify on the application | 1143 |
| the offense or offenses for which the inmate is requesting the DNA | 1144 |
| testing under this section. Along with the application, the inmate | 1145 |
| shall submit an acknowledgment that is signed by the inmate. The | 1146 |
| application and acknowledgment required under this division shall | 1147 |
| be the same application and acknowledgment as are used by eligible | 1148 |
| inmates who request DNA testing under sections 2953.71 to 2953.81 | 1149 |
| of the Revised Code. | 1150 |
| (C) Within forty-five days after the filing of an application | 1155 |
| for DNA testing under division (B) of this section, the | 1156 |
| prosecuting attorney shall file a statement with the court that | 1157 |
| indicates whether the prosecuting attorney agrees or disagrees | 1158 |
| that the inmate should be permitted to obtain DNA testing under | 1159 |
| this section. If the prosecuting attorney agrees that the inmate | 1160 |
| should be permitted to obtain DNA testing under this section, all | 1161 |
| of the following apply: | 1162 |
| (1) The application and the written statement shall be | 1163 |
| considered for all purposes as if they were an application for DNA | 1164 |
| testing filed under section 2953.73 of the Revised Code that the | 1165 |
| court accepted, and the court, the prosecuting attorney, the | 1166 |
| attorney general, the inmate, law enforcement personnel, and all | 1167 |
| other involved persons shall proceed regarding DNA testing for the | 1168 |
| inmate pursuant to sections 2953.77 to 2953.81 of the Revised | 1169 |
| Code, in the same manner as if the inmate was an eligible inmate | 1170 |
| for whom an application for DNA testing had been accepted. | 1171 |
| (D) If the prosecuting attorney disagrees that the inmate | 1174 |
| should be permitted to obtain DNA testing under this section, the | 1175 |
| prosecuting attorney's disagreement is final and is not appealable | 1176 |
| by any person to any court, and no court shall have authority, | 1177 |
| without agreement of the prosecuting attorney, to order DNA | 1178 |
| testing regarding that inmate and the offense or offenses for | 1179 |
| which the inmate requested DNA testing in the application. | 1180 |