(B)(1) ARegardless of when the conviction occurred or the | 26 |
guilty plea was entered, a person who has been convicted of, is | 27 |
convicted of, has pleaded guilty to, or pleads
guilty to a
felony | 28 |
offense and who is
sentenced to a prison term or to a community | 29 |
residential sanction
in a jail
or community-based correctional | 30 |
facility for that offense pursuant to
section 2929.16 of the | 31 |
Revised Code, and
a person who has been convicted of, is convicted | 32 |
of, has pleaded guilty to, or pleads guilty to a misdemeanor | 33 |
offense listed
in division
(D) of this section and who is | 34 |
sentenced to a term of
imprisonment
for that offense shall submit | 35 |
to a
DNA specimen collection
procedure administered
by the | 36 |
director of rehabilitation and
correction or the chief | 37 |
administrative officer of the jail or other
detention facility in | 38 |
which the person is serving the
term of imprisonment. If the | 39 |
person serves the prison
term in a state correctional institution, | 40 |
the
director of rehabilitation and correction shall cause the
DNA | 41 |
specimen to be collected from the person during the intake
process | 42 |
at the reception
facility designated by the director. If the | 43 |
person serves the
community residential sanction or term of | 44 |
imprisonment in a jail, a
community-based correctional facility, | 45 |
or another county, multicounty,
municipal,
municipal-county, or | 46 |
multicounty-municipal detention facility, the chief
administrative | 47 |
officer of the jail,
community-based correctional facility, or | 48 |
detention
facility shall cause the
DNA specimen to be collected | 49 |
from the person during the intake
process at the jail, | 50 |
community-based correctional facility, or
detention facility. The | 51 |
DNA specimen shall be
collected in
accordance with division (C) of | 52 |
this section. | 53 |
(2) IfRegardless of when the conviction occurred or the | 54 |
guilty plea was entered, if a person has been convicted of, is | 55 |
convicted of, has pleaded guilty to, or pleads guilty to
a felony | 56 |
offense or a misdemeanor
offense listed in division (D) of this | 57 |
section, is
serving
a
prison term, community residential sanction, | 58 |
or term of
imprisonment
for that offense, and does not provide a | 59 |
DNA
specimen
pursuant to division (B)(1) of this section, prior to | 60 |
the person's
release from the prison term, community residential | 61 |
sanction, or
imprisonment, the
person shall submit to, and the | 62 |
director of
rehabilitation and
correction or the chief | 63 |
administrative officer
of the jail, community-based
correctional | 64 |
facility, or detention
facility in which the person is serving
the | 65 |
prison term, community
residential sanction, or term of | 66 |
imprisonment
shall administer, a
DNA specimen collection
procedure | 67 |
at the state correctional
institution, jail, community-based | 68 |
correctional facility, or
detention facility in which the person | 69 |
is serving
the prison term,
community
residential sanction, or | 70 |
term of imprisonment. The
DNA specimen shall be
collected in | 71 |
accordance with division (C)
of this section. | 72 |
(3)(a) IfRegardless of when the conviction occurred or the | 73 |
guilty plea was entered, if a person has been convicted of,
is | 74 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 75 |
offense or a misdemeanor
offense listed in division (D) of this | 76 |
section and the person is on
probation,
released on parole,
under | 77 |
transitional
control, on community control, on
post-release | 78 |
control,
or under any other type of supervised release
under
the | 79 |
supervision of
a probation
department or
the
adult parole | 80 |
authority for that offense, the person shall submit to a DNA | 81 |
specimen collection procedure administered by the chief | 82 |
administrative officer of the probation department or the adult | 83 |
parole authority. The DNA specimen shall be collected in | 84 |
accordance with division (C) of this section. If the person | 85 |
refuses to submit to a DNA specimen collection procedure as | 86 |
provided in this division, the person may be subject to the | 87 |
provisions of section 2967.15 of the Revised Code. | 88 |
(b) If thea person to whom division (B)(3)(a) of this | 89 |
section applies is
sent to
jail or is
returned to a jail, | 90 |
community-based
correctional
facility, or
state correctional | 91 |
institution for a violation
of
the
terms and
conditions of the | 92 |
probation,
parole,
transitional
control, other
release, or | 93 |
post-release
control, if the person was
or will be
serving
a
term | 94 |
of imprisonment, prison term, or
community
residential
sanction | 95 |
for
committing a felony offense or for committing a misdemeanor | 96 |
offense listed in
division
(D) of this section,
and if the person | 97 |
did
not provide a
DNA
specimen
pursuant to
division (B)(1),
(2) or | 98 |
(3)(a) of this section,
the
person shall submit
to, and the | 99 |
director of rehabilitation and
correction or the chief | 100 |
administrative
officer of the jail or
community-based correctional | 101 |
facility shall
administer, a DNA
specimen collection
procedure at | 102 |
the jail, community-based
correctional facility, or state | 103 |
correctional institution in which
the person is serving
the
term | 104 |
of imprisonment, prison term, or
community residential
sanction.
| 105 |
The
DNA specimen shall be
collected from the
person in accordance | 106 |
with
division
(C) of this
section. | 107 |
(4) IfRegardless of when the conviction occurred or the | 108 |
guilty plea was entered, if a person has been convicted of, is | 109 |
convicted of, has pleaded guilty to, or pleads guilty to a felony | 110 |
offense or a misdemeanor offense listed in division (D) of this | 111 |
section, the person is not sentenced to a prison term, a community | 112 |
residential sanction in a jail or community-based correctional | 113 |
facility, a term of imprisonment, or any type of supervised | 114 |
release under the supervision of a probation department or the | 115 |
adult parole authority, and the person does not provide a DNA | 116 |
specimen pursuant to division (B)(1), (2), (3)(a), or (3)(b) of | 117 |
this section, the sentencing court shall order the person to | 118 |
report to the county probation department immediately after | 119 |
sentencing to submit to a DNA specimen collection procedure | 120 |
administered by the chief administrative officer of the county | 121 |
probation office. If the person is incarcerated at the time of | 122 |
sentencing, the person shall submit to a DNA specimen collection | 123 |
procedure administered by the director of rehabilitation and | 124 |
correction or the chief administrative officer of the jail or | 125 |
other detention facility in which the person is incarcerated. The | 126 |
DNA specimen shall be collected in accordance with division (C) of | 127 |
this section. | 128 |
(C)
If the DNA specimen is collected by withdrawing blood | 129 |
from the person or a similarly invasive procedure, a physician, | 130 |
registered
nurse, licensed practical nurse,
duly licensed clinical | 131 |
laboratory technician,
or other qualified
medical practitioner | 132 |
shall collect in a medically approved
manner
the DNA specimen | 133 |
required to be collected pursuant to division
(B)
of this section. | 134 |
If the DNA specimen is collected by swabbing for buccal cells or a | 135 |
similarly noninvasive procedure, this section does not require | 136 |
that the DNA specimen be collected by a qualified medical | 137 |
practitioner of that nature. No later than fifteen days after the | 138 |
date of
the
collection of the DNA specimen, the director of | 139 |
rehabilitation
and
correction or the chief administrative officer | 140 |
of the jail,
community-based correctional facility, or other | 141 |
county,
multicounty,
municipal, municipal-county, or | 142 |
multicounty-municipal
detention facility,
in which the person is | 143 |
serving the prison
term,
community residential sanction, or term | 144 |
of imprisonment
shall cause the DNA specimen to be forwarded to | 145 |
the bureau of
criminal identification and investigation in | 146 |
accordance with
procedures
established by the superintendent
of | 147 |
the bureau under
division (H) of section 109.573 of the
Revised | 148 |
Code. The bureau
shall provide the
specimen vials, mailing tubes, | 149 |
labels, postage,
and instructions needed for
the collection and | 150 |
forwarding of the
DNA specimen to the bureau. | 151 |
(D) The director of rehabilitation and correction, the
chief | 152 |
administrative officer of the jail, community-based
correctional | 153 |
facility,
or other county, multicounty, municipal, | 154 |
municipal-county, or multicounty-municipal detention facility, or | 155 |
the chief administrative officer of a county probation department | 156 |
or the adult parole authority
shall cause a
DNA specimen to be | 157 |
collected in
accordance
with
divisions (B) and (C) of this section | 158 |
from a person in
its custody or under its supervision
who has been | 159 |
convicted of, is convicted of, has pleaded guilty to, or pleads | 160 |
guilty to
any felony offense or to any of the
following | 161 |
misdemeanor
offenses: | 162 |
(2) A misdemeanor
violation of any law that arose out of the | 166 |
same
facts
and
circumstances and
same act as did a charge against | 167 |
the
person
of a violation of section
2903.01,
2903.02,
2905.01, | 168 |
2907.02,
2907.03, 2907.04, 2907.05,
or
2911.11 of the
Revised Code | 169 |
that
previously was
dismissed or
amended or as did a charge | 170 |
against the
person of a
violation of
section 2907.12 of the | 171 |
Revised Code
as it
existed
prior to
September 3,
1996, that | 172 |
previously was dismissed
or
amended; | 173 |
(4) A sexually oriented offense or a child-victim oriented | 178 |
offense, both as defined in section
2950.01 of the
Revised Code, | 179 |
that is a misdemeanor, if, in relation to that offense, the | 180 |
offender
has been adjudicated a sexual predator, child-victim | 181 |
predator, habitual sex offender, or habitual child-victim | 182 |
offender, all as
defined in
section 2950.01 of the Revised Code. | 183 |
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 191 |
a
criminal offense
or adjudicated a delinquent child and who | 192 |
claims
that there was such a denial
or infringement of the | 193 |
person's
rights as to render the judgment void or
voidable under | 194 |
the Ohio
Constitution or the Constitution of the United States, | 195 |
and any
person who has been convicted of a criminal offense that | 196 |
is a
felony, who is an inmate, and for whom DNA testing that
was | 197 |
performed under sections 2953.71 to 2953.81 of the Revised
Code or | 198 |
under section 2953.82 of the Revised Code and analyzed in the | 199 |
context of and upon consideration of all available admissible | 200 |
evidence related to the inmate's case as described in division (D) | 201 |
of section 2953.74 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 |
and had those results been analyzed in the context of and upon | 217 |
consideration of all available admissible evidence related to the | 218 |
inmate's case as described in division (D) of section 2953.74 of | 219 |
the Revised Code, no reasonable factfinder would have found the | 220 |
petitioner guilty of the offense of which the petitioner was | 221 |
convicted, or, if the person was sentenced to death, no reasonable | 222 |
factfinder would have found the petitioner guilty of the | 223 |
aggravating circumstance or circumstances the petitioner was found | 224 |
guilty of committing and that is or are the basis of that sentence | 225 |
of death. | 226 |
(2) Except as otherwise provided in section 2953.23 of the | 227 |
Revised Code, a petition under division (A)(1) of this section | 228 |
shall
be filed no later
than one hundred eighty days after the | 229 |
date on
which the trial transcript is
filed in the court of | 230 |
appeals in the
direct appeal of the
judgment of conviction or | 231 |
adjudication or, if
the direct appeal involves a
sentence of | 232 |
death, the date on which
the trial transcript is filed in the | 233 |
supreme court. If no appeal
is taken, except as otherwise provided | 234 |
in section 2953.23 of the Revised Code, the petition shall be | 235 |
filed no later
than one hundred
eighty days after the expiration | 236 |
of the time for filing the
appeal. | 237 |
(5) If the petitioner in a petition filed under division (A) | 248 |
of this section
was convicted of or pleaded guilty to a felony, | 249 |
the petition
may include a claim that the petitioner was denied | 250 |
the equal protection
of the laws in violation of the Ohio | 251 |
Constitution or the
United States Constitution because the | 252 |
sentence
imposed upon the petitioner for the felony was part of a | 253 |
consistent pattern of
disparity in sentencing by the judge who | 254 |
imposed the sentence, with regard to
the petitioner's race, | 255 |
gender, ethnic background, or religion. If the supreme
court | 256 |
adopts a rule requiring a court of common pleas to
maintain | 257 |
information with regard to an offender's race, gender,
ethnic | 258 |
background, or religion, the supporting evidence for the petition | 259 |
shall
include, but shall not be limited to, a copy of that type of | 260 |
information
relative to the petitioner's sentence and copies of | 261 |
that type of information
relative to sentences that the same judge | 262 |
imposed upon other persons. | 263 |
(C) The court shall consider a petition that is timely filed | 269 |
under division
(A)(2) of this section even if a direct appeal of | 270 |
the judgment is pending.
Before granting a hearing on a petition | 271 |
filed under division (A) of this
section, the court shall | 272 |
determine whether there are
substantive grounds for relief. In | 273 |
making such
a determination, the court shall consider, in addition | 274 |
to the
petition, the supporting affidavits, and the documentary | 275 |
evidence, all the
files and records
pertaining to the proceedings | 276 |
against the petitioner, including,
but not limited to, the | 277 |
indictment, the court's journal entries,
the journalized records | 278 |
of the clerk of the court, and the court
reporter's transcript. | 279 |
The court reporter's transcript, if
ordered and certified by the | 280 |
court, shall be taxed as court
costs. If the court dismisses the | 281 |
petition, it shall make and
file findings of fact and conclusions | 282 |
of law with respect to such
dismissal. | 283 |
(E) Unless the petition and the files and records of the
case | 290 |
show the petitioner is not entitled to relief, the court
shall | 291 |
proceed to a prompt hearing on the issues even if a direct
appeal | 292 |
of the case is pending. If the
court notifies the parties
that it | 293 |
has found grounds for
granting relief, either party may
request an | 294 |
appellate court in which a direct
appeal of the
judgment is | 295 |
pending to remand the
pending case to the court. | 296 |
(G) If the court does not find grounds for granting relief, | 301 |
it shall make and
file findings of fact and conclusions of law and | 302 |
shall enter judgment denying
relief on the petition. If no direct | 303 |
appeal of the case is pending and the
court finds grounds for | 304 |
relief or if a pending direct appeal of the case has
been remanded | 305 |
to the court pursuant to a request made pursuant to division (E) | 306 |
of this section and the court finds grounds for granting relief, | 307 |
it shall make
and file findings of fact and conclusions of law
and | 308 |
shall enter a judgment that vacates and sets aside the judgment in | 309 |
question, and, in the case of a petitioner who is a prisoner in | 310 |
custody, shall discharge or resentence the petitioner or grant
a | 311 |
new trial as the court determines appropriate. The court also may | 312 |
make
supplementary orders to the
relief granted, concerning such | 313 |
matters as rearraignment,
retrial, custody, and bail. If the
trial | 314 |
court's order
granting the petition is reversed on appeal
and if | 315 |
the direct appeal of the
case has been remanded from an
appellate | 316 |
court pursuant to a request under
division (E) of this
section, | 317 |
the appellate court reversing the order granting
the
petition | 318 |
shall
notify the appellate court in which the direct
appeal of the | 319 |
case was pending at the time of the remand of the
reversal and | 320 |
remand of the trial court's order. Upon the reversal
and remand
of | 321 |
the trial court's order granting the petition,
regardless of | 322 |
whether notice is sent or received, the direct
appeal of the
case | 323 |
that was remanded is reinstated. | 324 |
(I)(1) If a person
sentenced to death intends to file a | 328 |
petition under this section, the court shall
appoint counsel to | 329 |
represent the
person upon a finding that the
person is indigent | 330 |
and that the person either
accepts the
appointment of counsel or | 331 |
is unable to make a competent decision
whether to accept or reject | 332 |
the appointment of counsel. The court
may decline
to appoint | 333 |
counsel for the person only upon a finding,
after a hearing if | 334 |
necessary, that the person rejects the
appointment of counsel and | 335 |
understands
the legal consequences of
that decision or upon a | 336 |
finding that the person is
not indigent. | 337 |
(2) The court shall not appoint as counsel under division | 338 |
(I)(1) of this section an attorney who
represented the petitioner | 339 |
at trial in the case to which the petition relates
unless the | 340 |
person and the attorney expressly request the appointment. The | 341 |
court shall appoint as counsel under division
(I)(1) of this | 342 |
section only an attorney who is
certified under Rule
20 of the | 343 |
Rules of
Superintendence for
the Courts of
Ohio to
represent | 344 |
indigent defendants charged with or convicted of an
offense for | 345 |
which the death penalty can be or has been imposed.
The | 346 |
ineffectiveness or incompetence of counsel during proceedings | 347 |
under this
section does not constitute grounds for relief in a | 348 |
proceeding under this
section, in an appeal of any action under | 349 |
this section, or in an application
to reopen a direct appeal. | 350 |
(3) Division (I) of this section does not preclude attorneys | 351 |
who represent
the state of Ohio from invoking the provisions of 28 | 352 |
U.S.C. 154
with respect to capital cases that were pending in | 353 |
federal habeas corpus
proceedings prior to the effective date of | 354 |
this amendmentJuly 1, 1996, insofar as the
petitioners in those | 355 |
cases were
represented in proceedings under this section
by one or | 356 |
more
counsel appointed by the court under this section or section | 357 |
120.06, 120.16, 120.26, or 120.33 of the Revised Code and
those | 358 |
appointed counsel meet the requirements of division (I)(2) of
this | 359 |
section. | 360 |
(J) Subject to the appeal of a sentence for a felony that is | 361 |
authorized by
section 2953.08 of the Revised Code, the remedy set | 362 |
forth in this section is
the exclusive remedy by which a person | 363 |
may bring a collateral challenge to the
validity of a conviction | 364 |
or sentence in a criminal case or to the validity of
an | 365 |
adjudication of a child as a delinquent child for the commission | 366 |
of an act
that would be a criminal offense if committed by an | 367 |
adult or the validity of a
related order of disposition. | 368 |
(C) "Chain of custody" means a record or other evidence that | 383 |
tracks a subject
sample of biological material from the time the | 384 |
biological
material was first obtained until the time it currently | 385 |
exists in
its place of storage and, in relation to a DNA sample, a | 386 |
record or other evidence
that tracks the DNA sample from the time | 387 |
it was first obtained
until it currently exists in its place of | 388 |
storage. For purposes
of this division, examples of when | 389 |
biological material or a DNA
sample is first
obtained include, but | 390 |
are not limited to,
obtaining the material or sample
at the scene | 391 |
of a crime, from a
victim, from an inmate, or in any
other manner | 392 |
or time as is
appropriate in the facts and
circumstances present. | 393 |
(G) "Exclusion" or "exclusion result" means a result of DNA | 402 |
testing that
scientifically precludes or forecloses the subject | 403 |
inmate
as a contributor of biological material recovered
from the | 404 |
crime
scene or victim in question, in relation to the
offense for | 405 |
which the inmate is an eligible inmate and for which the sentence | 406 |
of death
or prison term was imposed upon the
inmate or, regarding | 407 |
a request for DNA testing made under section 2953.82 of the | 408 |
Revised Code, in relation to the offense for which the inmate made | 409 |
the request and for which the sentence of death or prison term was | 410 |
imposed upon the inmate. | 411 |
(I) "Inclusion" or "inclusion result" means a result of DNA | 416 |
testing that
scientifically cannot exclude, or that holds | 417 |
accountable, the
subject inmate as a contributor of
biological | 418 |
material
recovered from the crime scene or victim in
question, in | 419 |
relation
to the offense for which the inmate is an eligible inmate | 420 |
and for which the sentence of
death or prison term was imposed | 421 |
upon the inmate or, regarding a request for DNA testing made under | 422 |
section 2953.82 of the Revised Code, in relation to the offense | 423 |
for which the inmate made the request and for which the sentence | 424 |
of death or prison term was imposed upon the inmate. | 425 |
(L) "Outcome determinative" means that had the results of
DNA | 431 |
testing of the subject inmate been presented at the trial
of the | 432 |
subject inmate requesting DNA testing and been found relevant and | 433 |
admissible with respect to the felony
offense for which the inmate | 434 |
is an eligible inmate and
is
requesting the DNA testing or for | 435 |
which the inmate is requesting the DNA testing under section | 436 |
2953.82 of the Revised Code, and had those results been analyzed | 437 |
in the context of and upon consideration of all available | 438 |
admissible evidence related to the inmate's case as described in | 439 |
division (D) of section 2953.74 of the Revised Code, no reasonable | 440 |
factfinder would have
found the inmate guilty of that offense or, | 441 |
if the inmate was
sentenced to death relative to that offense, | 442 |
would have found the
inmate guilty of the aggravating circumstance | 443 |
or circumstances the inmate was
found
guilty of committing and | 444 |
that is or are the basis of that sentence
of
death. | 445 |
Sec. 2953.72. (A) Any eligible inmate who wishes to
request | 470 |
DNA testing under sections 2953.71 to 2953.81 of the
Revised Code | 471 |
shall
submit an application for the testing to the court of common | 472 |
pleas specified in section 2953.73 of the Revised Code, on a form | 473 |
prescribed
by the
attorney general for this purpose. The eligible | 474 |
inmate
shall submit the application within the period of time, and | 475 |
in
accordance with the procedures, set forth in section 2953.73 of | 476 |
the Revised Code. The eligible inmate shall specify on the | 477 |
application the offense or offenses for which the inmate is an | 478 |
eligible inmate and is requesting the DNA testing. Along with the | 479 |
application, the
eligible inmate shall submit an
acknowledgment | 480 |
that is
on a form prescribed by the attorney
general for this | 481 |
purpose and
that is signed by the inmate.
The acknowledgment
shall | 482 |
set forth
all of the following: | 483 |
(1) That sections 2953.71 to 2953.81 of the Revised Code | 484 |
contemplate applications for DNA testing of eligible
inmates
at a | 485 |
stage of a prosecution or case after the inmate has
been
sentenced | 486 |
to a prison term or a sentence of death, that any
exclusion or | 487 |
inclusion
result of DNA testing rendered pursuant to
those | 488 |
sections may be used by a
party in any proceeding
as described in | 489 |
section 2953.81 of the Revised Code, and that all
requests for any | 490 |
DNA
testing made at trial will continue to be
handled by the | 491 |
prosecuting
attorney in the case; | 492 |
(6) That, if DNA testing is conducted with respect to an | 513 |
inmate under sections 2953.71 to 2953.81 of the Revised
Code, the | 514 |
state will not offer the inmate a retest if an inclusion
result is | 515 |
achieved relative to the testing and that, if the state
were to | 516 |
offer a retest after an inclusion result, the policy would
create | 517 |
an atmosphere in which endless testing could occur and in
which | 518 |
postconviction proceedings could be stalled for many years; | 519 |
(8) That the acknowledgment memorializes the provisions of | 525 |
sections 2953.71 to 2953.81 of the Revised Code with respect to | 526 |
the application of postconviction DNA testing to inmates, that | 527 |
those
provisions do not give any inmate any additional | 528 |
constitutional
right that the inmate did not already have prior to | 529 |
the
effective date of
those provisions, that the court has no duty | 530 |
or
obligation to
provide postconviction DNA testing to inmates, | 531 |
that the court of
common pleas has the
sole
discretion subject to | 532 |
an appeal as described in this division to determine whether an | 533 |
inmate is an eligible inmate
and whether an
eligible inmate's | 534 |
application for DNA testing
satisfies
the acceptance criteria | 535 |
described in division (A)(4) of
this
section and whether the | 536 |
application should be accepted or
rejected, that if the court of | 537 |
common
pleas rejects an eligible inmate's application, the inmate | 538 |
may seek leave of the supreme court to appeal the rejection to | 539 |
that court if the inmate was sentenced to death for the offense | 540 |
for which the inmate is requesting the DNA testing and, if the | 541 |
inmate was not sentenced to death for that offense, may appeal the | 542 |
rejection to the court of appeals, and that no
determination | 543 |
otherwise made
by
the court of common pleas in the
exercise
of its | 544 |
discretion
regarding the
eligibility of an
inmate or regarding | 545 |
postconviction DNA testing
under those provisions
is reviewable by | 546 |
or appealable to any
court; | 547 |
(9) That the manner in which sections 2953.71 to 2953.81 of | 548 |
the Revised Code with respect to the offering of postconviction | 549 |
DNA testing to inmates are carried out does not confer any | 550 |
constitutional right upon any inmate, that the state has | 551 |
established guidelines and procedures relative to those provisions | 552 |
to ensure that they are carried out with both justice and | 553 |
efficiency in mind, and that an inmate who participates in
any | 554 |
phase of the mechanism contained in those provisions,
including, | 555 |
but not limited to, applying for DNA testing and being
rejected, | 556 |
having an application for DNA testing accepted and not
receiving | 557 |
the test, or having DNA testing conducted and receiving | 558 |
unfavorable results, does not gain as a result of the | 559 |
participation any constitutional right to challenge, or, except as | 560 |
provided in division (A)(8) of this section, any right
to any | 561 |
review or appeal of, the manner in
which those provisions
are | 562 |
carried out; | 563 |
(10) That the most basic aspect of sections 2953.71 to | 564 |
2953.81 of the Revised Code is that, in order for DNA testing to | 565 |
occur, there must be an inmate sample against which other evidence | 566 |
may be compared, that, if an eligible inmate's
application
is | 567 |
accepted but the inmate subsequently refuses to
submit
to the | 568 |
collection of the sample of biological material from
the
inmate
or | 569 |
hinders the state from obtaining a sample of
biological
material | 570 |
from the inmate, the goal of those
provisions
will be
frustrated, | 571 |
and that an inmate's refusal
or
hindrance shall cause the court to | 572 |
rescind its prior acceptance of the application for
DNA testing | 573 |
for
the inmate and deny the application; | 574 |
(11) That, if the inmate is an inmate who pleaded guilty or | 575 |
no contest to a felony offense and who is using the application | 576 |
and acknowledgment to request DNA testing under section 2953.82 of | 577 |
the Revised Code, all references in the acknowledgment to an | 578 |
"eligible inmate" are considered to be references to, and apply | 579 |
to, the inmate and all references in the acknowledgment to | 580 |
"sections 2953.71 to 2953.81 of the Revised Code" are considered | 581 |
to be references to "section 2953.82 of the Revised Code"." | 582 |
(B) The attorney general shall prescribe a form to be used
to | 583 |
make an application for DNA testing under division (A) of this | 584 |
section and section 2953.73 of the Revised Code and a form to be | 585 |
used to provide the acknowledgment described in division (A) of | 586 |
this section. The forms shall include all information described in | 587 |
division (A) of this section, spaces for an inmate to insert all | 588 |
information necessary to complete the forms, including, but not | 589 |
limited to, specifying the offense or offenses for which the | 590 |
inmate is an eligible inmate and is requesting the DNA testing or | 591 |
for which the inmate is requesting the DNA testing under section | 592 |
2953.82 of the Revised Code,
and any other information or material | 593 |
the attorney general
determines is necessary or relevant. The | 594 |
forms also shall be used to make an application requesting DNA | 595 |
testing under section 2953.82 of the Revised Code, and the | 596 |
attorney general shall ensure that they are sufficient for that | 597 |
type of use, and that they include all information and spaces | 598 |
necessary for that type of use. The attorney general shall | 599 |
distribute copies of the
prescribed forms to the department of | 600 |
rehabilitation and
correction, the department shall ensure that | 601 |
each
prison in which inmates are housed has a
supply of
copies of | 602 |
the forms, and the department shall ensure
that copies
of the | 603 |
forms are provided free of charge to any
inmate who
requests
them. | 604 |
Sec. 2953.73. (A) An eligible inmate who wishes to
request | 623 |
DNA testing to be conducted under sections 2953.71 to
2953.81 of | 624 |
the Revised Code shall submit an application for
DNA
testing on a | 625 |
form prescribed by the attorney general for this
purpose and shall | 626 |
submit the form to the court of common pleas
that sentenced the | 627 |
inmate for the
offense for which the inmate is an eligible inmate | 628 |
and is
requesting DNA testing.
The
eligible inmate shall submit | 629 |
the
application to that court of common pleas not
later
than
two | 630 |
years after October 29, 2003. No court of common pleas shall | 631 |
accept an application
under this section after the expiration of | 632 |
the period of time
specified
in this division. | 633 |
(2) The application shall be assigned to the judge of that | 639 |
court of common pleas who was the trial judge in the case in which | 640 |
the eligible inmate was convicted of the offense for which the | 641 |
inmate is requesting DNA testing, or, if that judge no longer is a | 642 |
judge of that court, it shall be assigned according to court | 643 |
rules. The judge to whom the application is
assigned shall decide | 644 |
the application. The application shall become part of the file in | 645 |
the case. | 646 |
(C) If an eligible inmate submits an application for DNA | 647 |
testing under division (A) of this section, regardless of whether | 648 |
the inmate has commenced any federal habeas corpus proceeding | 649 |
relative to the
case in which the inmate was convicted of the | 650 |
offense for which
the inmate is an eligible inmate and is | 651 |
requesting DNA testing,
any response to the application by the | 652 |
prosecuting attorney or the attorney general shall be filed not | 653 |
later than forty-five days after the date on which the eligible | 654 |
inmate submits the application. The prosecuting attorney or
the | 655 |
attorney general, or both, may, but are not required to, file a | 656 |
response
to the application. If the prosecuting attorney or the | 657 |
attorney general files a response under this division, the | 658 |
prosecuting attorney or attorney general, whoever filed the | 659 |
response, shall serve a copy of the response on the eligible | 660 |
inmate. | 661 |
(D) If an eligible inmate submits an application for DNA | 662 |
testing under division (A) of this section, the court
shall make | 663 |
the determination as to whether the
application should be accepted | 664 |
or rejected. The court shall expedite its review of
the | 665 |
application. The
court shall make the determination in accordance | 666 |
with the
criteria
and procedures set forth in sections 2953.74 to | 667 |
2953.81
of the
Revised Code and, in making the determination, | 668 |
shall
consider the
application, the supporting affidavits, and the | 669 |
documentary evidence and, in addition to those materials, shall | 670 |
consider all the files and records pertaining to the proceedings | 671 |
against the applicant, including, but not limited to, the | 672 |
indictment, the court's journal entries, the journalized records | 673 |
of the clerk of the court, and the court reporter's transcript and | 674 |
all responses to the application
filed under
division (C) of this | 675 |
section by a prosecuting attorney
or the
attorney general, unless | 676 |
the application and the files and records show the applicant is | 677 |
not entitled to DNA testing, in which case the application may be | 678 |
denied. The court is not required to conduct an evidentiary | 679 |
hearing in conducting its review of, and in making its | 680 |
determination as to whether to accept or reject, the application. | 681 |
Upon making its determination, the
court shall
enter a judgment | 682 |
and order that either accepts or
rejects the application and that | 683 |
includes
within the judgment and order the
reasons for the | 684 |
acceptance or rejection as applied to the criteria and procedures | 685 |
set forth in sections 2953.71 to 2953.81 of the Revised Code. The | 686 |
court shall send a copy of the
judgment and order to the eligible | 687 |
inmate who filed it, the prosecuting
attorney, and the attorney | 688 |
general. | 689 |
Sec. 2953.74. (A) If an eligible inmate submits an | 717 |
application
for
DNA
testing under section 2953.73 of the Revised | 718 |
Code and a prior
definitive DNA test has been conducted
regarding | 719 |
the same
biological evidence that the inmate seeks to
have tested, | 720 |
the
court shall reject the inmate's
application. If an
eligible | 721 |
inmate files an application
for DNA
testing and a prior | 722 |
inconclusive DNA test has been
conducted
regarding the same | 723 |
biological evidence that the
inmate seeks to
have tested, the | 724 |
court shall review
the application
and has the
discretion, on a | 725 |
case-by-case basis,
to either accept
or reject
the application. | 726 |
The court may direct a
testing authority to provide the court with | 727 |
information that the court may use in determining
whether prior | 728 |
DNA test
results
were definitive or inconclusive and
whether to | 729 |
accept or
reject an
application in relation to which
there were | 730 |
prior
inconclusive DNA
test results. | 731 |
(1) The inmate did not have a DNA test taken at the
trial | 735 |
stage in the case in which the inmate was convicted of the offense | 736 |
for which the inmate is an eligible inmate and is requesting the | 737 |
DNA testing regarding the same
biological evidence
that the
inmate | 738 |
seeks to have tested,
the inmate shows that DNA
exclusion when | 739 |
analyzed in the context of and upon consideration of all available | 740 |
admissible evidence related to the subject inmate's case as | 741 |
described in division (D) of this section
would
have been
outcome | 742 |
determinative at that trial stage
in that
case,
and,
at the
time | 743 |
of the trial stage in that case, DNA
testing
was
not generally | 744 |
accepted, the results of DNA testing
were not
generally admissible | 745 |
in evidence, or DNA testing was not
yet
available. | 746 |
(2) The inmate had a DNA test taken at the trial
stage in
the | 747 |
case in which the inmate was convicted of the offense for
which | 748 |
the inmate is an eligible inmate and is requesting the DNA
testing | 749 |
regarding the same biological
evidence that the inmate
seeks to | 750 |
have tested, the test
was not a prior definitive DNA test
that is | 751 |
subject to division (A) of
this section, and the inmate
shows that | 752 |
DNA exclusion when analyzed in the context of and upon | 753 |
consideration of all available admissible evidence related to the | 754 |
subject inmate's case as described in division (D) of this section | 755 |
would have been outcome determinative at
the trial
stage in that | 756 |
case. | 757 |
(b) The parent sample of the biological material so
collected | 775 |
is not so minute or fragile as to
risk destruction of
the parent | 776 |
sample by the extraction described
in division
(D)(2)(a) of this | 777 |
section; provided that the court
may determine
in its discretion, | 778 |
on a case-by-case
basis, that,
even if the
parent
sample of the | 779 |
biological material
so collected
is so minute
or
fragile as to | 780 |
risk destruction of the
parent
sample by the
extraction, the | 781 |
application should not be
rejected
solely on the
basis of that | 782 |
risk. | 783 |
(6) The court determines pursuant to section
2953.76 of
the | 802 |
Revised Code from the chain of custody of
the
parent
sample of
the | 803 |
biological material to be tested and of
any
test
sample
extracted | 804 |
from the parent sample, and from the
totality of
circumstances | 805 |
involved, that the parent sample and the
extracted
test sample are | 806 |
the same sample as collected and that
there is no
reason to | 807 |
believe that they have been out of state
custody or have
been | 808 |
tampered with or contaminated since they were
collected. | 809 |
(B) An inmate who pleaded guilty or no contest to a felony | 829 |
offense that was committed prior to October 29, 2003, who | 830 |
satisfies the criteria set forth in division (A) of this section, | 831 |
and who wishes to request DNA testing under this section shall | 832 |
submit, in accordance with this division, an application for the | 833 |
testing to the court of common pleas and. Upon submitting the | 834 |
application to the court, the inmate shall serve a copy on the | 835 |
prosecuting attorney. The inmate shall specify on the application | 836 |
the offense or offenses for which the inmate is requesting the DNA | 837 |
testing under this section. Along with the application, the inmate | 838 |
shall submit an acknowledgment that is signed by the inmate. The | 839 |
application and acknowledgment required under this division shall | 840 |
be the same application and acknowledgment as are used by eligible | 841 |
inmates who request DNA testing under sections 2953.71 to 2953.81 | 842 |
of the Revised Code. | 843 |
(C) Within forty-five days after the filing of an application | 848 |
for DNA testing under division (B) of this section, the | 849 |
prosecuting attorney shall file a statement with the court that | 850 |
indicates whether the prosecuting attorney agrees or disagrees | 851 |
that the inmate should be permitted to obtain DNA testing under | 852 |
this section. If the prosecuting attorney agrees that the inmate | 853 |
should be permitted to obtain DNA testing under this section, all | 854 |
of the following apply: | 855 |
(1) The application and the written statement shall be | 856 |
considered for all purposes as if they were an application for DNA | 857 |
testing filed under section 2953.73 of the Revised Code that the | 858 |
court accepted, and the court, the prosecuting attorney, the | 859 |
attorney general, the inmate, law enforcement personnel, and all | 860 |
other involved persons shall proceed regarding DNA testing for the | 861 |
inmate pursuant to sections 2953.77 to 2953.81 of the Revised | 862 |
Code, in the same manner as if the inmate was an eligible inmate | 863 |
for whom an application for DNA testing had been accepted. | 864 |
(D) If the prosecuting attorney disagrees that the inmate | 867 |
should be permitted to obtain DNA testing under this section, the | 868 |
prosecuting attorney's disagreement is final and is not appealable | 869 |
by any person to any court, and no court shall have authority, | 870 |
without agreement of the prosecuting attorney, to order DNA | 871 |
testing regarding that inmate and the offense or offenses for | 872 |
which the inmate requested DNA testing in the application. | 873 |
Section 3. (A) The General Assembly hereby declares that its | 882 |
purpose in amending section 2901.07 of the Revised Code in | 883 |
Sections 1 and 2 of this act is to reaffirm that it is the General | 884 |
Assembly's intent that, under that section as it existed prior to | 885 |
the effective date of this act, a person who is in any of the | 886 |
categories of offenders described in division (B)(1), (2), (3), or | 887 |
(4) of that section in relation to a conviction of or plea of | 888 |
guilty to a felony offense or a misdemeanor offense listed in | 889 |
division (D) of that section is subject to the DNA specimen | 890 |
collection provisions of divisions (B) and (C) of that section | 891 |
regardless of whether the conviction of or plea of guilty to the | 892 |
felony offense or the misdemeanor offense occurred or was entered | 893 |
prior to the effective date of this act or occurs or is entered on | 894 |
or after the effective date of this act. | 895 |
(B) The General Assembly declares that it believes that the | 896 |
amendments to section 2901.07 of the Revised Code made in Sections | 897 |
1 and 2 of this act are not substantive in nature and merely | 898 |
clarify that divisions (B)(1), (2), (3), and (4) and (C) of that | 899 |
section operate as described in division (A) of this Section, and | 900 |
that the amendments to section 2901.07 of the Revised Code made in | 901 |
Sections 1 and 2 of this act thus are remedial in nature. The | 902 |
General Assembly declares that it intends that the clarifying, | 903 |
remedial amendments to section 2901.07 of the Revised Code made in | 904 |
Sections 1 and 2 of this act apply to all convicted offenders | 905 |
described in division (A) of this Section, regardless of whether | 906 |
they were convicted of or pleaded guilty to the felony or the | 907 |
specified misdemeanor prior to the effective date of this act, or | 908 |
are convicted of or plead guilty to the felony or the specified | 909 |
misdemeanor on or after the effective date of this act. | 910 |
Section 4. This act is hereby declared to be an emergency | 911 |
measure necessary for the immediate preservation of the public | 912 |
peace, health, and safety. The reason for such necessity is that | 913 |
the amendments made in Sections 1 and 2 of this act to section | 914 |
2901.07 of the Revised Code are crucially needed to protect the | 915 |
residents of this state from the consequences that might result if | 916 |
crimes go unsolved because the DNA specimen collection provisions | 917 |
of that section are not applied to all persons who have been | 918 |
convicted of or pleaded guilty to a felony offense or a | 919 |
misdemeanor offense listed in division (D) of that section and are | 920 |
in any of the categories of offenders described in division | 921 |
(B)(1), (2), (3), or (4) of that section. Therefore, this act | 922 |
shall go into immediate effect. | 923 |