Sec. 2953.72. (A) Any eligible inmate who wishes to
request | 9 |
DNA testing under sections 2953.71 to 2953.81 of the
Revised Code | 10 |
shall
submit an application for the testing to the court of common | 11 |
pleas specified in section 2953.73 of the Revised Code, on a form | 12 |
prescribed
by the
attorney general for this purpose. The eligible | 13 |
inmate
shall submit the application within the period of time, and | 14 |
in
accordance with the procedures, set forth in section 2953.73 of | 15 |
the Revised Code. The eligible inmate shall specify on the | 16 |
application the offense or offenses for which the inmate is an | 17 |
eligible inmate and is requesting the DNA testing. Along with the | 18 |
application, the
eligible inmate shall submit an
acknowledgment | 19 |
that is
on a form prescribed by the attorney
general for this | 20 |
purpose and
that is signed by the inmate.
The acknowledgment
shall | 21 |
set forth
all of the following: | 22 |
(1) That sections 2953.71 to 2953.81 of the Revised Code | 23 |
contemplate applications for DNA testing of eligible
inmates
at a | 24 |
stage of a prosecution or case after the inmate has
been
sentenced | 25 |
to a prison term or a sentence of death, that any
exclusion or | 26 |
inclusion
result of DNA testing rendered pursuant to
those | 27 |
sections may be used by a
party in any proceeding
as described in | 28 |
section 2953.81 of the Revised Code, and that all
requests for any | 29 |
DNA
testing made at trial will continue to be
handled by the | 30 |
prosecuting
attorney in the case; | 31 |
(6) That, if DNA testing is conducted with respect to an | 52 |
inmate under sections 2953.71 to 2953.81 of the Revised
Code, the | 53 |
state will not offer the inmate a retest if an inclusion
result is | 54 |
achieved relative to the testing and that, if the state
were to | 55 |
offer a retest after an inclusion result, the policy would
create | 56 |
an atmosphere in which endless testing could occur and in
which | 57 |
postconviction proceedings could be stalled for many years; | 58 |
(8) That the acknowledgment memorializes the provisions of | 64 |
sections 2953.71 to 2953.81 of the Revised Code with respect to | 65 |
the application of postconviction DNA testing to inmates, that | 66 |
those
provisions do not give any inmate any additional | 67 |
constitutional
right that the inmate did not already have prior to | 68 |
the
effective date of
those provisions, that the court has no duty | 69 |
or
obligation to
provide postconviction DNA testing to inmates, | 70 |
that the court of
common pleas has the
sole
discretion subject to | 71 |
an appeal as described in this division to determine whether an | 72 |
inmate is an eligible inmate
and whether an
eligible inmate's | 73 |
application for DNA testing
satisfies
the acceptance criteria | 74 |
described in division (A)(4) of
this
section and whether the | 75 |
application should be accepted or
rejected, that if the court of | 76 |
common
pleas rejects an eligible inmate's application, the inmate | 77 |
may seek leave of the supreme court to appeal the rejection to | 78 |
that court if the inmate was sentenced to death for the offense | 79 |
for which the inmate is requesting the DNA testing and, if the | 80 |
inmate was not sentenced to death for that offense, may appeal the | 81 |
rejection to the court of appeals, and that no
determination | 82 |
otherwise made
by
the court of common pleas in the
exercise
of its | 83 |
discretion
regarding the
eligibility of an
inmate or regarding | 84 |
postconviction DNA testing
under those provisions
is reviewable by | 85 |
or appealable to any
court; | 86 |
(9) That the manner in which sections 2953.71 to 2953.81 of | 87 |
the Revised Code with respect to the offering of postconviction | 88 |
DNA testing to inmates are carried out does not confer any | 89 |
constitutional right upon any inmate, that the state has | 90 |
established guidelines and procedures relative to those provisions | 91 |
to ensure that they are carried out with both justice and | 92 |
efficiency in mind, and that an inmate who participates in
any | 93 |
phase of the mechanism contained in those provisions,
including, | 94 |
but not limited to, applying for DNA testing and being
rejected, | 95 |
having an application for DNA testing accepted and not
receiving | 96 |
the test, or having DNA testing conducted and receiving | 97 |
unfavorable results, does not gain as a result of the | 98 |
participation any constitutional right to challenge, or, except as | 99 |
provided in division (A)(8) of this section, any right
to any | 100 |
review or appeal of, the manner in
which those provisions
are | 101 |
carried out; | 102 |
(10) That the most basic aspect of sections 2953.71 to | 103 |
2953.81 of the Revised Code is that, in order for DNA testing to | 104 |
occur, there must be an inmate sample against which other evidence | 105 |
may be compared, that, if an eligible inmate's
application
is | 106 |
accepted but the inmate subsequently refuses to
submit
to the | 107 |
collection of the sample of biological material from
the
inmate
or | 108 |
hinders the state from obtaining a sample of
biological
material | 109 |
from the inmate, the goal of those
provisions
will be
frustrated, | 110 |
and that an inmate's refusal
or
hindrance shall cause the court to | 111 |
rescind its prior acceptance of the application for
DNA testing | 112 |
for
the inmate and deny the application; | 113 |
(11) That, if the inmate is an inmate who pleaded guilty or | 114 |
no contest to a felony offense and who is using the application | 115 |
and acknowledgment to request DNA testing under section 2953.82 of | 116 |
the Revised Code, all references in the acknowledgment to an | 117 |
"eligible inmate" are considered to be references to, and apply | 118 |
to, the inmate and all references in the acknowledgment to | 119 |
"sections 2953.71 to 2953.81 of the Revised Code" are considered | 120 |
to be references to "section 2953.82 of the Revised Code"." | 121 |
(B) The attorney general shall prescribe a form to be used
to | 122 |
make an application for DNA testing under division (A) of this | 123 |
section and section 2953.73 of the Revised Code and a form to be | 124 |
used to provide the acknowledgment described in division (A) of | 125 |
this section. The forms shall include all information described in | 126 |
division (A) of this section, spaces for an inmate to insert all | 127 |
information necessary to complete the forms, including, but not | 128 |
limited to, specifying the offense or offenses for which the | 129 |
inmate is an eligible inmate and is requesting the DNA testing or | 130 |
for which the inmate is requesting the DNA testing under section | 131 |
2953.82 of the Revised Code,
and any other information or material | 132 |
the attorney general
determines is necessary or relevant. The | 133 |
forms also shall be used to make an application requesting DNA | 134 |
testing under section 2953.82 of the Revised Code, and the | 135 |
attorney general shall ensure that they are sufficient for that | 136 |
type of use, and that they include all information and spaces | 137 |
necessary for that type of use. The attorney general shall | 138 |
distribute copies of the
prescribed forms to the department of | 139 |
rehabilitation and
correction, the department shall ensure that | 140 |
each
prison in which inmates are housed has a
supply of
copies of | 141 |
the forms, and the department shall ensure
that copies
of the | 142 |
forms are provided free of charge to any
inmate who
requests
them. | 143 |
Sec. 2953.73. (A) An eligible inmate who wishes to
request | 162 |
DNA testing to be conducted under sections 2953.71 to
2953.81 of | 163 |
the Revised Code shall submit an application for
DNA
testing on a | 164 |
form prescribed by the attorney general for this
purpose and shall | 165 |
submit the form to the court of common pleas
that sentenced the | 166 |
inmate for the
offense for which the inmate is an eligible inmate | 167 |
and is
requesting DNA testing.
The
eligible inmate shall submit | 168 |
the
application to that court of common pleas not
later
than
two | 169 |
years after October 29, 2003. No court of common pleas shall | 170 |
accept an application
under this section after the expiration of | 171 |
the period of time
specified
in this division. | 172 |
(2) The application shall be assigned to the judge of that | 178 |
court of common pleas who was the trial judge in the case in which | 179 |
the eligible inmate was convicted of the offense for which the | 180 |
inmate is requesting DNA testing, or, if that judge no longer is a | 181 |
judge of that court, it shall be assigned according to court | 182 |
rules. The judge to whom the application is
assigned shall decide | 183 |
the application. The application shall become part of the file in | 184 |
the case. | 185 |
(C) If an eligible inmate submits an application for DNA | 186 |
testing under division (A) of this section, regardless of whether | 187 |
the inmate has commenced any federal habeas corpus proceeding | 188 |
relative to the
case in which the inmate was convicted of the | 189 |
offense for which
the inmate is an eligible inmate and is | 190 |
requesting DNA testing,
any response to the application by the | 191 |
prosecuting attorney or the attorney general shall be filed not | 192 |
later than forty-five days after the date on which the eligible | 193 |
inmate submits the application. The prosecuting attorney or
the | 194 |
attorney general, or both, may, but are not required to, file a | 195 |
response
to the application. If the prosecuting attorney or the | 196 |
attorney general files a response under this division, the | 197 |
prosecuting attorney or attorney general, whoever filed the | 198 |
response, shall serve a copy of the response on the eligible | 199 |
inmate. | 200 |
(D) If an eligible inmate submits an application for DNA | 201 |
testing under division (A) of this section, the court
shall make | 202 |
the determination as to whether the
application should be accepted | 203 |
or rejected. The court shall expedite its review of
the | 204 |
application. The
court shall make the determination in accordance | 205 |
with the
criteria
and procedures set forth in sections 2953.74 to | 206 |
2953.81
of the
Revised Code and, in making the determination, | 207 |
shall
consider the
application, the supporting affidavits, and the | 208 |
documentary evidence and, in addition to those materials, shall | 209 |
consider all the files and records pertaining to the proceedings | 210 |
against the applicant, including, but not limited to, the | 211 |
indictment, the court's journal entries, the journalized records | 212 |
of the clerk of the court, and the court reporter's transcript and | 213 |
all responses to the application
filed under
division (C) of this | 214 |
section by a prosecuting attorney
or the
attorney general, unless | 215 |
the application and the files and records show the applicant is | 216 |
not entitled to DNA testing, in which case the application may be | 217 |
denied. The court is not required to conduct an evidentiary | 218 |
hearing in conducting its review of, and in making its | 219 |
determination as to whether to accept or reject, the application. | 220 |
Upon making its determination, the
court shall
enter a judgment | 221 |
and order that either accepts or
rejects the application and that | 222 |
includes
within the judgment and order the
reasons for the | 223 |
acceptance or rejection as applied to the criteria and procedures | 224 |
set forth in sections 2953.71 to 2953.81 of the Revised Code. The | 225 |
court shall send a copy of the
judgment and order to the eligible | 226 |
inmate who filed it, the prosecuting
attorney, and the attorney | 227 |
general. | 228 |
(B) An inmate who pleaded guilty or no contest to a felony | 269 |
offense that was committed prior to October 29, 2003, who | 270 |
satisfies the criteria set forth in division (A) of this section, | 271 |
and who wishes to request DNA testing under this section shall | 272 |
submit, in accordance with this division, an application for the | 273 |
testing to the court of common pleas and. Upon submitting the | 274 |
application to the court, the inmate shall serve a copy on the | 275 |
prosecuting attorney. The inmate shall specify on the application | 276 |
the offense or offenses for which the inmate is requesting the DNA | 277 |
testing under this section. Along with the application, the inmate | 278 |
shall submit an acknowledgment that is signed by the inmate. The | 279 |
application and acknowledgment required under this division shall | 280 |
be the same application and acknowledgment as are used by eligible | 281 |
inmates who request DNA testing under sections 2953.71 to 2953.81 | 282 |
of the Revised Code. | 283 |
(C) Within forty-five days after the filing of an application | 288 |
for DNA testing under division (B) of this section, the | 289 |
prosecuting attorney shall file a statement with the court that | 290 |
indicates whether the prosecuting attorney agrees or disagrees | 291 |
that the inmate should be permitted to obtain DNA testing under | 292 |
this section. If the prosecuting attorney agrees that the inmate | 293 |
should be permitted to obtain DNA testing under this section, all | 294 |
of the following apply: | 295 |
(1) The application and the written statement shall be | 296 |
considered for all purposes as if they were an application for DNA | 297 |
testing filed under section 2953.73 of the Revised Code that the | 298 |
court accepted, and the court, the prosecuting attorney, the | 299 |
attorney general, the inmate, law enforcement personnel, and all | 300 |
other involved persons shall proceed regarding DNA testing for the | 301 |
inmate pursuant to sections 2953.77 to 2953.81 of the Revised | 302 |
Code, in the same manner as if the inmate was an eligible inmate | 303 |
for whom an application for DNA testing had been accepted. | 304 |
(D) If the prosecuting attorney disagrees that the inmate | 307 |
should be permitted to obtain DNA testing under this section, the | 308 |
prosecuting attorney's disagreement is final and is not appealable | 309 |
by any person to any court, and no court shall have authority, | 310 |
without agreement of the prosecuting attorney, to order DNA | 311 |
testing regarding that inmate and the offense or offenses for | 312 |
which the inmate requested DNA testing in the application. | 313 |