As Introduced

127th General Assembly
Regular Session
2007-2008
H. B. No. 218


Representative Chandler 


A BILL
To amend sections 109.573, 2953.21, 2953.23, 2953.71, 1
2953.72, 2953.73, 2953.74, 2953.75, 2953.83, and 2
2953.84 and to repeal section 2953.82 of the 3
Revised Code to provide that an inmate who pleaded 4
guilty or no contest to a felony, was sentenced to 5
a prison term or death, and is eligible to apply 6
for postconviction DNA testing may apply for such 7
DNA testing under the same procedures as the 8
application for postconviction DNA testing of an 9
eligible inmate who was convicted of a felony 10
offense and sentenced to a prison term or death.11


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 109.573, 2953.21, 2953.23, 2953.71, 12
2953.72, 2953.73, 2953.74, 2953.75, 2953.83, and 2953.84 of the 13
Revised Code be amended to read as follows:14

       Sec. 109.573.  (A) As used in this section:15

       (1) "DNA" means human deoxyribonucleic acid.16

       (2) "DNA analysis" means a laboratory analysis of a DNA17
specimen to identify DNA characteristics and to create a DNA18
record.19

       (3) "DNA database" means a collection of DNA records from20
forensic casework or from crime scenes, specimens from anonymous21
and unidentified sources, and records collected pursuant to22
sections 2152.74 and 2901.07 of the Revised Code and a population23
statistics database for determining the frequency of occurrence of24
characteristics in DNA records.25

       (4) "DNA record" means the objective result of a DNA analysis 26
of a DNA specimen, including representations of DNA fragment 27
lengths, digital images of autoradiographs, discrete allele 28
assignment numbers, and other DNA specimen characteristics that 29
aid in establishing the identity of an individual.30

       (5) "DNA specimen" includes human blood cells or31
physiological tissues or body fluids.32

       (6) "Unidentified person database" means a collection of DNA33
records, and, on and after May 21, 1998, of fingerprint and34
photograph records, of unidentified human corpses, human remains,35
or living individuals.36

       (7) "Relatives of missing persons database" means a37
collection of DNA records of persons related by consanguinity to a 38
missing person.39

       (8) "Law enforcement agency" means a police department, the40
office of a sheriff, the state highway patrol, a county41
prosecuting attorney, or a federal, state, or local governmental42
body that enforces criminal laws and that has employees who have a43
statutory power of arrest.44

       (9) "Administration of criminal justice" means the 45
performance of detection, apprehension, detention, pretrial 46
release, post-trial release, prosecution, adjudication, 47
correctional supervision, or rehabilitation of accused persons or 48
criminal offenders. "Administration of criminal justice" also 49
includes criminal identification activities and the collection, 50
storage, and dissemination of criminal history record information.51

       (B)(1) The superintendent of the bureau of criminal52
identification and investigation may do all of the following:53

       (a) Establish and maintain a state DNA laboratory to perform54
DNA analyses of DNA specimens;55

       (b) Establish and maintain a DNA database;56

       (c) Establish and maintain an unidentified person database to 57
aid in the establishment of the identity of unknown human corpses,58
human remains, or living individuals;59

       (d) Establish and maintain a relatives of missing persons60
database for comparison with the unidentified person database to61
aid in the establishment of the identity of unknown human corpses,62
human remains, and living individuals.63

       (2) If the bureau of criminal identification and64
investigation establishes and maintains a DNA laboratory and a DNA65
database, the bureau may use or disclose information regarding DNA66
records for the following purposes:67

       (a) The bureau may disclose information to a law enforcement68
agency for the administration of criminal justice.69

       (b) The bureau shall disclose pursuant to a court order70
issued under section 3111.09 of the Revised Code any information71
necessary to determine the existence of a parent and child72
relationship in an action brought under sections 3111.01 to73
3111.18 of the Revised Code.74

       (c) The bureau may use or disclose information from the75
population statistics database, for identification research and76
protocol development, or for quality control purposes.77

       (3) If the bureau of criminal identification and78
investigation establishes and maintains a relatives of missing79
persons database, all of the following apply:80

       (a) If a person has disappeared and has been continuously81
absent from the person's place of last domicile for a thirty-day82
or longer period of time without being heard from during the83
period, persons related by consanguinity to the missing person may 84
submit to the bureau a DNA specimen, the bureau may include the85
DNA record of the specimen in the relatives of missing persons 86
database, and, if the bureau does not include the DNA record of 87
the specimen in the relatives of missing persons database, the 88
bureau shall retain the DNA record for future reference and89
inclusion as appropriate in that database.90

       (b) The bureau shall not charge a fee for the submission of a 91
DNA specimen pursuant to division (B)(3)(a) of this section.92

       (c) If the DNA specimen submitted pursuant to division93
(B)(3)(a) of this section is collected by withdrawing blood from94
the person or a similarly invasive procedure, a physician,95
registered nurse, licensed practical nurse, duly licensed clinical96
laboratory technician, or other qualified medical practitioner97
shall conduct the collection procedure for the DNA specimen98
submitted pursuant to division (B)(3)(a) of this section and shall99
collect the DNA specimen in a medically approved manner. If the100
DNA specimen is collected by swabbing for buccal cells or a101
similarly noninvasive procedure, division (B)(3)(c) of this102
section does not require that the DNA specimen be collected by a103
qualified medical practitioner of that nature. No later than104
fifteen days after the date of the collection of the DNA specimen,105
the person conducting the DNA specimen collection procedure shall106
cause the DNA specimen to be forwarded to the bureau of criminal107
identification and investigation in accordance with procedures108
established by the superintendent of the bureau under division (H)109
of this section. The bureau may provide the specimen vials,110
mailing tubes, labels, postage, and instruction needed for the111
collection and forwarding of the DNA specimen to the bureau.112

       (d) The superintendent, in the superintendent's discretion,113
may compare DNA records in the relatives of missing persons114
database with the DNA records in the unidentified person database.115

       (4) If the bureau of criminal identification and116
investigation establishes and maintains an unidentified person117
database and if the superintendent of the bureau identifies a118
matching DNA record for the DNA record of a person or deceased119
person whose DNA record is contained in the unidentified person120
database, the superintendent shall inform the coroner who121
submitted or the law enforcement agency that submitted the DNA122
specimen to the bureau of the match and, if possible, of the123
identity of the unidentified person.124

       (5) The bureau of criminal identification and investigation125
may enter into a contract with a qualified public or private126
laboratory to perform DNA analyses, DNA specimen maintenance,127
preservation, and storage, DNA record keeping, and other duties128
required of the bureau under this section. A public or private129
laboratory under contract with the bureau shall follow quality130
assurance and privacy requirements established by the131
superintendent of the bureau.132

       (C) The superintendent of the bureau of criminal133
identification and investigation shall establish procedures for134
entering into the DNA database the DNA records submitted pursuant135
to sections 2152.74 and 2901.07 of the Revised Code and for136
determining an order of priority for entry of the DNA records137
based on the types of offenses committed by the persons whose138
records are submitted and the available resources of the bureau.139

       (D) When a DNA record is derived from a DNA specimen provided 140
pursuant to section 2152.74 or 2901.07 of the Revised Code, the 141
bureau of criminal identification and investigation shall attach 142
to the DNA record personal identification information that 143
identifies the person from whom the DNA specimen was taken. The 144
personal identification information may include the subject145
person's fingerprints and any other information the bureau146
determines necessary. The DNA record and personal identification147
information attached to it shall be used only for the purpose of148
personal identification or for a purpose specified in this149
section.150

       (E) DNA records, DNA specimens, fingerprints, and photographs 151
that the bureau of criminal identification and investigation 152
receives pursuant to this section and sections 313.08, 2152.74, 153
and 2901.07 of the Revised Code and personal identification 154
information attached to a DNA record are not public records under 155
section 149.43 of the Revised Code.156

       (F) The bureau of criminal identification and investigation157
may charge a reasonable fee for providing information pursuant to158
this section to any law enforcement agency located in another159
state.160

       (G)(1) No person who because of the person's employment or161
official position has access to a DNA specimen, a DNA record, or162
other information contained in the DNA database that identifies an163
individual shall knowingly disclose that specimen, record, or164
information to any person or agency not entitled to receive it or165
otherwise shall misuse that specimen, record, or information.166

       (2) No person without authorization or privilege to obtain167
information contained in the DNA database that identifies an168
individual person shall purposely obtain that information.169

       (H) The superintendent of the bureau of criminal170
identification and investigation shall establish procedures for171
all of the following:172

       (1) The forwarding to the bureau of DNA specimens collected173
pursuant to division (H) of this section and sections 313.08,174
2152.74, and 2901.07 of the Revised Code and of fingerprints and175
photographs collected pursuant to section 313.08 of the Revised176
Code;177

       (2) The collection, maintenance, preservation, and analysis178
of DNA specimens;179

       (3) The creation, maintenance, and operation of the DNA180
database;181

       (4) The use and dissemination of information from the DNA182
database;183

       (5) The creation, maintenance, and operation of the184
unidentified person database;185

       (6) The use and dissemination of information from the186
unidentified person database;187

       (7) The creation, maintenance, and operation of the relatives 188
of missing persons database;189

       (8) The use and dissemination of information from the190
relatives of missing persons database;191

       (9) The verification of entities requesting DNA records and192
other DNA information from the bureau and the authority of the193
entity to receive the information;194

       (10) The operation of the bureau and responsibilities of195
employees of the bureau with respect to the activities described196
in this section.197

       (I) In conducting DNA analyses of DNA specimens, the state 198
DNA laboratory and any laboratory with which the bureau has 199
entered into a contract pursuant to division (B)(5) of this 200
section shall give DNA analyses of DNA specimens that relate to 201
ongoing criminal investigations or prosecutions priority over DNA 202
analyses of DNA specimens that relate to applications made 203
pursuant to section 2953.73 or 2953.82 of the Revised Code.204

       Sec. 2953.21.  (A)(1)(a) Any person who has been convicted of 205
a criminal offense or adjudicated a delinquent child and who 206
claims that there was such a denial or infringement of the 207
person's rights as to render the judgment void or voidable under208
the Ohio Constitution or the Constitution of the United States, 209
and any person who has been convicted of, pleaded guilty to, or 210
pleaded no contest to a criminal offense that is a felony, who is 211
an inmate, and for whom DNA testing that was performed under 212
sections 2953.71 to 2953.81 of the Revised Code or under section 213
2953.82 of the Revised Code and analyzed in the context of and 214
upon consideration of all available admissible evidence related to 215
the inmate's case as described in division (D) of section 2953.74 216
of the Revised Code provided results that establish, by clear and 217
convincing evidence, actual innocence of that felony offense or, 218
if the person was sentenced to death, establish, by clear and 219
convincing evidence, actual innocence of the aggravating 220
circumstance or circumstances the person was found guilty of 221
committing and that is or are the basis of that sentence of death, 222
may file a petition in the court that imposed sentence, stating 223
the grounds for relief relied upon, and asking the court to vacate 224
or set aside the judgment or sentence or to grant other 225
appropriate relief. The petitioner may file a supporting affidavit 226
and other documentary evidence in support of the claim for relief.227

       (b) As used in division (A)(1)(a) of this section, "actual 228
innocence" means that, had the results of the DNA testing 229
conducted under sections 2953.71 to 2953.81 of the Revised Code or 230
under section 2953.82 of the Revised Code been presented at trial, 231
and had those results been analyzed in the context of and upon 232
consideration of all available admissible evidence related to the 233
inmate's case as described in division (D) of section 2953.74 of 234
the Revised Code, no reasonable factfinder would have found the 235
petitioner guilty of the offense of which the petitioner was 236
convicted or to which the petitioner pleaded guilty or no contest, 237
or, if the person was sentenced to death, no reasonable factfinder 238
would have found the petitioner guilty of the aggravating 239
circumstance or circumstances the petitioner was found guilty of 240
committing and that is or are the basis of that sentence of death.241

       (2) Except as otherwise provided in section 2953.23 of the 242
Revised Code, a petition under division (A)(1) of this section 243
shall be filed no later than one hundred eighty days after the 244
date on which the trial transcript is filed in the court of 245
appeals in the direct appeal of the judgment of conviction or 246
adjudication or, if the direct appeal involves a sentence of 247
death, the date on which the trial transcript is filed in the248
supreme court. If no appeal is taken, except as otherwise provided 249
in section 2953.23 of the Revised Code, the petition shall be 250
filed no later than one hundred eighty days after the expiration 251
of the time for filing the appeal.252

       (3) In a petition filed under division (A) of this section, a253
person who has been sentenced to death may ask the court to render 254
void or voidable the judgment with respect to the conviction of255
aggravated murder or the specification of an aggravating256
circumstance or the sentence of death.257

       (4) A petitioner shall state in the original or amended258
petition filed under division (A) of this section all grounds for259
relief claimed by the petitioner. Except as provided in section260
2953.23 of the Revised Code, any ground for relief that is not so261
stated in the petition is waived.262

       (5) If the petitioner in a petition filed under division (A)263
of this section was convicted of or pleaded guilty to a felony,264
the petition may include a claim that the petitioner was denied265
the equal protection of the laws in violation of the Ohio266
Constitution or the United States Constitution because the267
sentence imposed upon the petitioner for the felony was part of a268
consistent pattern of disparity in sentencing by the judge who269
imposed the sentence, with regard to the petitioner's race,270
gender, ethnic background, or religion. If the supreme court271
adopts a rule requiring a court of common pleas to maintain272
information with regard to an offender's race, gender, ethnic273
background, or religion, the supporting evidence for the petition274
shall include, but shall not be limited to, a copy of that type of275
information relative to the petitioner's sentence and copies of276
that type of information relative to sentences that the same judge277
imposed upon other persons.278

       (B) The clerk of the court in which the petition is filed279
shall docket the petition and bring it promptly to the attention280
of the court. The clerk of the court in which the petition is 281
filed immediately shall forward a copy of the petition to the 282
prosecuting attorney of that county.283

       (C) The court shall consider a petition that is timely filed284
under division (A)(2) of this section even if a direct appeal of285
the judgment is pending. Before granting a hearing on a petition286
filed under division (A) of this section, the court shall287
determine whether there are substantive grounds for relief. In288
making such a determination, the court shall consider, in addition289
to the petition, the supporting affidavits, and the documentary290
evidence, all the files and records pertaining to the proceedings291
against the petitioner, including, but not limited to, the292
indictment, the court's journal entries, the journalized records293
of the clerk of the court, and the court reporter's transcript.294
The court reporter's transcript, if ordered and certified by the295
court, shall be taxed as court costs. If the court dismisses the296
petition, it shall make and file findings of fact and conclusions297
of law with respect to such dismissal.298

       (D) Within ten days after the docketing of the petition, or299
within any further time that the court may fix for good cause300
shown, the prosecuting attorney shall respond by answer or motion.301
Within twenty days from the date the issues are raised, either302
party may move for summary judgment. The right to summary judgment303
shall appear on the face of the record.304

       (E) Unless the petition and the files and records of the case 305
show the petitioner is not entitled to relief, the court shall 306
proceed to a prompt hearing on the issues even if a direct appeal 307
of the case is pending. If the court notifies the parties that it 308
has found grounds for granting relief, either party may request an 309
appellate court in which a direct appeal of the judgment is 310
pending to remand the pending case to the court.311

       (F) At any time before the answer or motion is filed, the312
petitioner may amend the petition with or without leave or313
prejudice to the proceedings. The petitioner may amend the314
petition with leave of court at any time thereafter.315

       (G) If the court does not find grounds for granting relief,316
it shall make and file findings of fact and conclusions of law and317
shall enter judgment denying relief on the petition. If no direct318
appeal of the case is pending and the court finds grounds for319
relief or if a pending direct appeal of the case has been remanded320
to the court pursuant to a request made pursuant to division (E)321
of this section and the court finds grounds for granting relief,322
it shall make and file findings of fact and conclusions of law and323
shall enter a judgment that vacates and sets aside the judgment in324
question, and, in the case of a petitioner who is a prisoner in325
custody, shall discharge or resentence the petitioner or grant a326
new trial as the court determines appropriate. The court also may327
make supplementary orders to the relief granted, concerning such328
matters as rearraignment, retrial, custody, and bail. If the trial 329
court's order granting the petition is reversed on appeal and if 330
the direct appeal of the case has been remanded from an appellate 331
court pursuant to a request under division (E) of this section, 332
the appellate court reversing the order granting the petition 333
shall notify the appellate court in which the direct appeal of the334
case was pending at the time of the remand of the reversal and335
remand of the trial court's order. Upon the reversal and remand of 336
the trial court's order granting the petition, regardless of337
whether notice is sent or received, the direct appeal of the case 338
that was remanded is reinstated.339

       (H) Upon the filing of a petition pursuant to division (A) of 340
this section by a person sentenced to death, only the supreme 341
court may stay execution of the sentence of death.342

       (I)(1) If a person sentenced to death intends to file a343
petition under this section, the court shall appoint counsel to 344
represent the person upon a finding that the person is indigent 345
and that the person either accepts the appointment of counsel or 346
is unable to make a competent decision whether to accept or reject 347
the appointment of counsel. The court may decline to appoint 348
counsel for the person only upon a finding, after a hearing if349
necessary, that the person rejects the appointment of counsel and 350
understands the legal consequences of that decision or upon a 351
finding that the person is not indigent.352

       (2) The court shall not appoint as counsel under division353
(I)(1) of this section an attorney who represented the petitioner354
at trial in the case to which the petition relates unless the355
person and the attorney expressly request the appointment. The356
court shall appoint as counsel under division (I)(1) of this357
section only an attorney who is certified under Rule 20 of the358
Rules of Superintendence for the Courts of Ohio to represent359
indigent defendants charged with or convicted of an offense for360
which the death penalty can be or has been imposed. The361
ineffectiveness or incompetence of counsel during proceedings362
under this section does not constitute grounds for relief in a363
proceeding under this section, in an appeal of any action under364
this section, or in an application to reopen a direct appeal.365

       (3) Division (I) of this section does not preclude attorneys366
who represent the state of Ohio from invoking the provisions of 28367
U.S.C. 154 with respect to capital cases that were pending in368
federal habeas corpus proceedings prior to July 1, 1996, insofar 369
as the petitioners in those cases were represented in proceedings 370
under this section by one or more counsel appointed by the court 371
under this section or section 120.06, 120.16, 120.26, or 120.33 of 372
the Revised Code and those appointed counsel meet the requirements 373
of division (I)(2) of this section.374

       (J) Subject to the appeal of a sentence for a felony that is375
authorized by section 2953.08 of the Revised Code, the remedy set376
forth in this section is the exclusive remedy by which a person377
may bring a collateral challenge to the validity of a conviction378
or sentence in a criminal case or to the validity of an379
adjudication of a child as a delinquent child for the commission380
of an act that would be a criminal offense if committed by an381
adult or the validity of a related order of disposition.382

       Sec. 2953.23.  (A) Whether a hearing is or is not held on a383
petition filed pursuant to section 2953.21 of the Revised Code, a384
court may not entertain a petition filed after the expiration of385
the period prescribed in division (A) of that section or a second386
petition or successive petitions for similar relief on behalf of a387
petitioner unless division (A)(1) or (2) of this section applies:388

       (1) Both of the following apply:389

       (a) Either the petitioner shows that the petitioner was390
unavoidably prevented from discovery of the facts upon which the391
petitioner must rely to present the claim for relief, or, 392
subsequent to the period prescribed in division (A)(2) of section 393
2953.21 of the Revised Code or to the filing of an earlier 394
petition, the United States Supreme Court recognized a new federal 395
or state right that applies retroactively to persons in the 396
petitioner's situation, and the petition asserts a claim based on 397
that right.398

       (b) The petitioner shows by clear and convincing evidence399
that, but for constitutional error at trial, no reasonable400
factfinder would have found the petitioner guilty of the offense401
of which the petitioner was convicted or, if the claim challenges402
a sentence of death that, but for constitutional error at the403
sentencing hearing, no reasonable factfinder would have found the404
petitioner eligible for the death sentence.405

       (2) The petitioner was convicted of, pleaded guilty to, or 406
pleaded no contest to a felony, the petitioner is an inmate for 407
whom DNA testing was performed under sections 2953.71 to 2953.81 408
of the Revised Code or under section 2953.82 of the Revised Code409
and analyzed in the context of and upon consideration of all 410
available admissible evidence related to the inmate's case as 411
described in division (D) of section 2953.74 of the Revised Code,412
and the results of the DNA testing establish, by clear and 413
convincing evidence, actual innocence of that felony offense or, 414
if the person was sentenced to death, establish, by clear and 415
convincing evidence, actual innocence of the aggravating 416
circumstance or circumstances the person was found guilty of 417
committing and that is or are the basis of that sentence of death.418

       As used in this division, "actual innocence" has the same 419
meaning as in division (A)(1)(b) of section 2953.21 of the Revised 420
Code.421

       (B) An order awarding or denying relief sought in a petition422
filed pursuant to section 2953.21 of the Revised Code is a final423
judgment and may be appealed pursuant to Chapter 2953. of the424
Revised Code.425

       Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the426
Revised Code:427

       (A) "Application" or "application for DNA testing" means a 428
request through postconviction relief for the state to do DNA429
testing on biological material from whichever of the following is 430
applicable:431

       (1) Thethe case in which the inmate was convicted of, 432
pleaded guilty to, or pleaded no contest to the offense for which 433
the inmate is an eligible inmate and is requesting the DNA testing 434
under sections 2953.71 to 2953.81 of the Revised Code;435

       (2) The case in which the inmate pleaded guilty or no contest 436
to the offense for which the inmate is requesting the DNA testing 437
under section 2953.82 of the Revised Code.438

        (B) "Biological material" means any product of a human body 439
containing DNA.440

       (C) "Chain of custody" means a record or other evidence that 441
tracks a subject sample of biological material from the time the 442
biological material was first obtained until the time it currently 443
exists in its place of storage and, in relation to a DNA sample, a 444
record or other evidence that tracks the DNA sample from the time 445
it was first obtained until it currently exists in its place of 446
storage. For purposes of this division, examples of when 447
biological material or a DNA sample is first obtained include, but 448
are not limited to, obtaining the material or sample at the scene 449
of a crime, from a victim, from an inmate, or in any other manner 450
or time as is appropriate in the facts and circumstances present.451

        (D) "Custodial agency" means the group or entity that has the 452
responsibility to maintain biological material in question.453

       (E) "Custodian" means the person who is the primary454
representative of a custodial agency.455

       (F) "Eligible inmate" means an inmate who is eligible under456
division (C) of section 2953.72 of the Revised Code to request DNA457
testing to be conducted under sections 2953.71 to 2953.81 of the458
Revised Code.459

        (G) "Exclusion" or "exclusion result" means a result of DNA460
testing that scientifically precludes or forecloses the subject461
inmate as a contributor of biological material recovered from the462
crime scene or victim in question, in relation to the offense for463
which the inmate is an eligible inmate and for which the sentence464
of death or prison term was imposed upon the inmate or, regarding 465
a request for DNA testing made under section 2953.82 of the 466
Revised Code, in relation to the offense for which the inmate made 467
the request and for which the sentence of death or prison term was 468
imposed upon the inmate.469

       (H) "Extracting personnel" means medically approved personnel 470
who are employed to physically obtain an inmate DNA specimen for 471
purposes of DNA testing under sections 2953.71 to 2953.81 or 472
section 2953.82 of the Revised Code.473

       (I) "Inclusion" or "inclusion result" means a result of DNA474
testing that scientifically cannot exclude, or that holds475
accountable, the subject inmate as a contributor of biological476
material recovered from the crime scene or victim in question, in477
relation to the offense for which the inmate is an eligible inmate478
and for which the sentence of death or prison term was imposed479
upon the inmate or, regarding a request for DNA testing made under 480
section 2953.82 of the Revised Code, in relation to the offense 481
for which the inmate made the request and for which the sentence 482
of death or prison term was imposed upon the inmate.483

       (J) "Inconclusive" or "inconclusive result" means a result484
of DNA testing that is rendered when a scientifically appropriate485
and definitive DNA analysis or result, or both, cannot be486
determined.487

       (K) "Inmate" means an inmate in a prison who was sentenced by 488
a court, or by a jury and a court, of this state.489

       (L) "Outcome determinative" means that had the results of DNA490
testing of the subject inmate been presented at the trial of the 491
subject inmate requesting DNA testing and been found relevant and 492
admissible with respect to the felony offense for which the inmate 493
is an eligible inmate and is requesting the DNA testing or for 494
which the inmate is requesting the DNA testing under section 495
2953.82 of the Revised Code, and had those results been analyzed 496
in the context of and upon consideration of all available 497
admissible evidence related to the inmate's case as described in 498
division (D) of section 2953.74 of the Revised Code, there is a 499
strong probability that no reasonable factfinder would have found 500
the inmate guilty of that offense or, if the inmate was sentenced 501
to death relative to that offense, would have found the inmate 502
guilty of the aggravating circumstance or circumstances the inmate 503
was found guilty of committing and that is or are the basis of 504
that sentence of death.505

       (M) "Parent sample" means the biological material first506
obtained from a crime scene or a victim of an offense for which an507
inmate is an eligible inmate or for which the inmate is requesting 508
the DNA testing under section 2953.82 of the Revised Code, and 509
from which a sample will be presently taken to do a DNA comparison 510
to the DNA of the subject inmate under sections 2953.71 to 2953.81 511
or section 2953.82 of the Revised Code.512

       (N) "Prison" has the same meaning as in section 2929.01 of513
the Revised Code.514

       (O) "Prosecuting attorney" means the prosecuting attorney515
who, or whose office, prosecuted the case in which the subject516
inmate was convicted of the offense for which the inmate is an517
eligible inmate and is requesting the DNA testing or for which the 518
inmate is requesting the DNA testing under section 2953.82 of the 519
Revised Code.520

       (P) "Prosecuting authority" means the prosecuting attorney or 521
the attorney general.522

       (Q) "Reasonable diligence" means a degree of diligence that523
is comparable to the diligence a reasonable person would employ in524
searching for information regarding an important matter in the525
person's own life.526

       (R) "Testing authority" means a laboratory at which DNA527
testing will be conducted under sections 2953.71 to 2953.81 or 528
section 2953.82 of the Revised Code.529

       Sec. 2953.72. (A) Any eligible inmate who wishes to request530
DNA testing under sections 2953.71 to 2953.81 of the Revised Code531
shall submit an application for the testing to the court of common532
pleas specified in section 2953.73 of the Revised Code, on a form533
prescribed by the attorney general for this purpose. The eligible534
inmate shall submit the application in accordance with the 535
procedures set forth in section 2953.73 of the Revised Code. The 536
eligible inmate shall specify on the application the offense or 537
offenses for which the inmate is an eligible inmate and is 538
requesting the DNA testing. Along with the application, the539
eligible inmate shall submit an acknowledgment that is on a form 540
prescribed by the attorney general for this purpose and that is 541
signed by the inmate. The acknowledgment shall set forth all of 542
the following:543

       (1) That sections 2953.71 to 2953.81 of the Revised Code544
contemplate applications for DNA testing of eligible inmates at a545
stage of a prosecution or case after the inmate has been sentenced 546
to a prison term or a sentence of death, that any exclusion or 547
inclusion result of DNA testing rendered pursuant to those 548
sections may be used by a party in any proceeding as described in 549
section 2953.81 of the Revised Code, and that all requests for any 550
DNA testing made at trial will continue to be handled by the 551
prosecuting attorney in the case;552

        (2) That the process of conducting postconviction DNA testing 553
for an eligible inmate under sections 2953.71 to 2953.81 of the 554
Revised Code begins when the inmate submits an application under 555
section 2953.73 of the Revised Code and the acknowledgment556
described in this section;557

       (3) That the eligible inmate must submit the application and558
acknowledgment to the court of common pleas that heard the case in559
which the inmate was convicted of, pleaded guilty to, or pleaded 560
no contest to the offense for which the inmate is an eligible 561
offender and is requesting the DNA testing;562

       (4) That the state has established a set of criteria set563
forth in section 2953.74 of the Revised Code by which eligible564
inmate applications for DNA testing will be screened and that a565
judge of a court of common pleas upon receipt of a properly filed566
application and accompanying acknowledgment will apply those567
criteria to determine whether to accept or reject the application;568

       (5) That the results of DNA testing conducted under sections569
2953.71 to 2953.81 of the Revised Code will be provided as570
described in section 2953.81 of the Revised Code to all parties in571
the postconviction proceedings and will be reported to various572
courts;573

        (6) That, if DNA testing is conducted with respect to an574
inmate under sections 2953.71 to 2953.81 of the Revised Code, the575
state will not offer the inmate a retest if an inclusion result is576
achieved relative to the testing and that, if the state were to577
offer a retest after an inclusion result, the policy would create578
an atmosphere in which endless testing could occur and in which579
postconviction proceedings could be stalled for many years;580

       (7) That, if the court rejects an eligible inmate's581
application for DNA testing because the inmate does not satisfy582
the acceptance criteria described in division (A)(4) of this583
section, the court will not accept or consider subsequent584
applications;585

       (8) That the acknowledgment memorializes the provisions of586
sections 2953.71 to 2953.81 of the Revised Code with respect to587
the application of postconviction DNA testing to inmates, that588
those provisions do not give any inmate any additional589
constitutional right that the inmate did not already have, that 590
the court has no duty or obligation to provide postconviction DNA 591
testing to inmates, that the court of common pleas has the sole592
discretion subject to an appeal as described in this division to 593
determine whether an inmate is an eligible inmate and whether an594
eligible inmate's application for DNA testing satisfies the 595
acceptance criteria described in division (A)(4) of this section 596
and whether the application should be accepted or rejected, that 597
if the court of common pleas rejects an eligible inmate's 598
application, the inmate may seek leave of the supreme court to 599
appeal the rejection to that court if the inmate was sentenced to 600
death for the offense for which the inmate is requesting the DNA 601
testing and, if the inmate was not sentenced to death for that 602
offense, may appeal the rejection to the court of appeals, and 603
that no determination otherwise made by the court of common pleas 604
in the exercise of its discretion regarding the eligibility of an605
inmate or regarding postconviction DNA testing under those 606
provisions is reviewable by or appealable to any court;607

       (9) That the manner in which sections 2953.71 to 2953.81 of608
the Revised Code with respect to the offering of postconviction609
DNA testing to inmates are carried out does not confer any610
constitutional right upon any inmate, that the state has611
established guidelines and procedures relative to those provisions612
to ensure that they are carried out with both justice and613
efficiency in mind, and that an inmate who participates in any614
phase of the mechanism contained in those provisions, including,615
but not limited to, applying for DNA testing and being rejected,616
having an application for DNA testing accepted and not receiving617
the test, or having DNA testing conducted and receiving618
unfavorable results, does not gain as a result of the619
participation any constitutional right to challenge, or, except as 620
provided in division (A)(8) of this section, any right to any 621
review or appeal of, the manner in which those provisions are 622
carried out;623

       (10) That the most basic aspect of sections 2953.71 to624
2953.81 of the Revised Code is that, in order for DNA testing to625
occur, there must be an inmate sample against which other evidence626
may be compared, that, if an eligible inmate's application is627
accepted but the inmate subsequently refuses to submit to the628
collection of the sample of biological material from the inmate or 629
hinders the state from obtaining a sample of biological material 630
from the inmate, the goal of those provisions will be frustrated, 631
and that an inmate's refusal or hindrance shall cause the court to 632
rescind its prior acceptance of the application for DNA testing 633
for the inmate and deny the application;634

       (11) That, if the inmate is an inmate who pleaded guilty or 635
no contest to a felony offense and who is using the application 636
and acknowledgment to request DNA testing under section 2953.82 of 637
the Revised Code, all references in the acknowledgment to an 638
"eligible inmate" are considered to be references to, and apply 639
to, the inmate and all references in the acknowledgment to 640
"sections 2953.71 to 2953.81 of the Revised Code" are considered 641
to be references to "section 2953.82 of the Revised Code."642

       (B) The attorney general shall prescribe a form to be used to 643
make an application for DNA testing under division (A) of this644
section and section 2953.73 of the Revised Code and a form to be645
used to provide the acknowledgment described in division (A) of646
this section. The forms shall include all information described in647
division (A) of this section, spaces for an inmate to insert all648
information necessary to complete the forms, including, but not649
limited to, specifying the offense or offenses for which the650
inmate is an eligible inmate and is requesting the DNA testing or 651
for which the inmate is requesting the DNA testing under section 652
2953.82 of the Revised Code, and any other information or material 653
the attorney general determines is necessary or relevant. The 654
forms also shall be used to make an application requesting DNA 655
testing under section 2953.82 of the Revised Code, and the 656
attorney general shall ensure that they are sufficient for that 657
type of use, and that they include all information and spaces 658
necessary for that type of use. The attorney general shall659
distribute copies of the prescribed forms to the department of660
rehabilitation and correction, the department shall ensure that661
each prison in which inmates are housed has a supply of copies of662
the forms, and the department shall ensure that copies of the663
forms are provided free of charge to any inmate who requests them.664

       (C)(1) An inmate is eligible to request DNA testing to be665
conducted under sections 2953.71 to 2953.81 of the Revised Code666
only if all of the following apply:667

       (a)(1) The offense for which the inmate claims to be an668
eligible inmate is a felony, and the inmate was convicted by a669
judge or jury of that offense or the inmate pleaded guilty or no 670
contest to that offense.671

       (b)(2) The inmate was sentenced to a prison term or sentence672
of death for the felony described in division (C)(1)(a) of this673
section and is in prison serving that prison term or under that 674
sentence of death.675

       (c)(3) On the date on which the application is filed, the 676
inmate has at least one year remaining on the prison term 677
described in division (C)(1)(b)(2) of this section, or the inmate 678
is in prison under a sentence of death as described in that 679
division.680

       (2) An inmate is not an eligible inmate under division (C)(1) 681
of this section regarding any offense to which the inmate pleaded 682
guilty or no contest.683

       Sec. 2953.73. (A) An eligible inmate who wishes to request 684
DNA testing to be conducted under sections 2953.71 to 2953.81 of 685
the Revised Code shall submit an application for DNA testing on a 686
form prescribed by the attorney general for this purpose and shall 687
submit the form to the court of common pleas that sentenced the 688
inmate for the offense for which the inmate is an eligible inmate 689
and is requesting DNA testing.690

       (B) If an eligible inmate submits an application for DNA691
testing under division (A) of this section, upon the submission of692
the application, all of the following apply:693

       (1) The eligible inmate shall serve a copy of the application 694
on the prosecuting attorney and the attorney general.695

       (2) The application shall be assigned to the judge of that696
court of common pleas who was the trial judge in the case in which 697
the eligible inmate was convicted of, pleaded guilty to, or 698
pleaded no contest to the offense for which the inmate is 699
requesting DNA testing, or, if that judge no longer is a judge of 700
that court, it shall be assigned according to court rules. The 701
judge to whom the application is assigned shall decide the 702
application. The application shall become part of the file in the 703
case.704

       (C) If an eligible inmate submits an application for DNA705
testing under division (A) of this section, regardless of whether 706
the inmate has commenced any federal habeas corpus proceeding 707
relative to the case in which the inmate was convicted of, pleaded 708
guilty to, or pleaded no contest to the offense for which the 709
inmate is an eligible inmate and is requesting DNA testing, any 710
response to the application by the prosecuting attorney or the 711
attorney general shall be filed not later than forty-five days 712
after the date on which the eligible inmate submits the 713
application. The prosecuting attorney or the attorney general, or 714
both, may, but are not required to, file a response to the 715
application. If the prosecuting attorney or the attorney general 716
files a response under this division, the prosecuting attorney or 717
attorney general, whoever filed the response, shall serve a copy 718
of the response on the eligible inmate.719

       (D) If an eligible inmate submits an application for DNA720
testing under division (A) of this section, the court shall make721
the determination as to whether the application should be accepted722
or rejected. The court shall expedite its review of the 723
application. The court shall make the determination in accordance 724
with the criteria and procedures set forth in sections 2953.74 to 725
2953.81 of the Revised Code and, in making the determination, 726
shall consider the application, the supporting affidavits, and the 727
documentary evidence and, in addition to those materials, shall 728
consider all the files and records pertaining to the proceedings 729
against the applicant, including, but not limited to, the 730
indictment, the court's journal entries, the journalized records 731
of the clerk of the court, and the court reporter's transcript and 732
all responses to the application filed under division (C) of this 733
section by a prosecuting attorney or the attorney general, unless 734
the application and the files and records show the applicant is 735
not entitled to DNA testing, in which case the application may be 736
denied. The court is not required to conduct an evidentiary 737
hearing in conducting its review of, and in making its 738
determination as to whether to accept or reject, the application. 739
Upon making its determination, the court shall enter a judgment 740
and order that either accepts or rejects the application and that 741
includes within the judgment and order the reasons for the 742
acceptance or rejection as applied to the criteria and procedures 743
set forth in sections 2953.71 to 2953.81 of the Revised Code. The 744
court shall send a copy of the judgment and order to the eligible745
inmate who filed it, the prosecuting attorney, and the attorney746
general.747

       (E) A judgment and order of a court entered under division 748
(D) of this section is appealable only as provided in this 749
division. If an eligible inmate submits an application for DNA 750
testing under section 2953.73 of the Revised Code and the court of 751
common pleas rejects the application under division (D) of this 752
section, one of the following applies:753

       (1) If the inmate was sentenced to death for the offense for 754
which the inmate claims to be an eligible inmate and is requesting 755
DNA testing, the inmate may seek leave of the supreme court to 756
appeal the rejection to the supreme court. Courts of appeals do 757
not have jurisdiction to review any rejection if the inmate was 758
sentenced to death for the offense for which the inmate claims to 759
be an eligible inmate and is requesting DNA testing.760

       (2) If the inmate was not sentenced to death for the offense 761
for which the inmate claims to be an eligible inmate and is 762
requesting DNA testing, the rejection is a final appealable order, 763
and the inmate may appeal it to the court of appeals of the 764
district in which is located that court of common pleas.765

       (F) Notwithstanding any provision of law regarding fees and766
costs, no filing fee shall be required of, and no court costs767
shall be assessed against, an eligible offender who is indigent768
and who submits an application under this section.769

       (G) If a court rejects an eligible inmate's application for 770
DNA testing under division (D) of this section, unless the 771
rejection is overturned on appeal, no court shall require the 772
state to administer a DNA test under sections 2953.71 to 2953.81 773
of the Revised Code on the eligible inmate.774

       Sec. 2953.74. (A) If an eligible inmate submits an 775
application for DNA testing under section 2953.73 of the Revised 776
Code and a prior definitive DNA test has been conducted regarding 777
the same biological evidence that the inmate seeks to have tested,778
the court shall reject the inmate's application. If an eligible779
inmate files an application for DNA testing and a prior780
inconclusive DNA test has been conducted regarding the same781
biological evidence that the inmate seeks to have tested, the782
court shall review the application and has the discretion, on a783
case-by-case basis, to either accept or reject the application.784
The court may direct a testing authority to provide the court with 785
information that the court may use in determining whether prior 786
DNA test results were definitive or inconclusive and whether to 787
accept or reject an application in relation to which there were 788
prior inconclusive DNA test results.789

        (B) If an eligible inmate submits an application for DNA790
testing under section 2953.73 of the Revised Code, the court may791
accept the application only if one of the following applies:792

        (1) The inmate did not have a DNA test taken at the trial793
stage in the case in which the inmate was convicted of, pleaded 794
guilty to, or pleaded no contest to the offense for which the 795
inmate is an eligible inmate and is requesting the DNA testing 796
regarding the same biological evidence that the inmate seeks to 797
have tested, the inmate shows that DNA exclusion when analyzed in 798
the context of and upon consideration of all available admissible 799
evidence related to the subject inmate's case as described in 800
division (D) of this section would have been outcome determinative 801
at that trial stage in that case, and, at the time of the trial 802
stage in that case, DNA testing was not generally accepted, the 803
results of DNA testing were not generally admissible in evidence, 804
or DNA testing was not yet available.805

        (2) The inmate had a DNA test taken at the trial stage in the 806
case in which the inmate was convicted of, pleaded guilty to, or 807
pleaded no contest to the offense for which the inmate is an 808
eligible inmate and is requesting the DNA testing regarding the 809
same biological evidence that the inmate seeks to have tested, the 810
test was not a prior definitive DNA test that is subject to 811
division (A) of this section, and the inmate shows that DNA 812
exclusion when analyzed in the context of and upon consideration 813
of all available admissible evidence related to the subject 814
inmate's case as described in division (D) of this section would 815
have been outcome determinative at the trial stage in that case.816

        (C) If an eligible inmate submits an application for DNA817
testing under section 2953.73 of the Revised Code, the court may818
accept the application only if all of the following apply:819

        (1) The court determines pursuant to section 2953.75 of the820
Revised Code that biological material was collected from the crime821
scene or the victim of the offense for which the inmate is an822
eligible inmate and is requesting the DNA testing and that the823
parent sample of that biological material against which a sample824
from the inmate can be compared still exists at that point in825
time.826

        (2) The testing authority determines all of the following827
pursuant to section 2953.76 of the Revised Code regarding the828
parent sample of the biological material described in division829
(C)(1) of this section:830

       (a) The parent sample of the biological material so collected 831
contains scientifically sufficient material to extract a test 832
sample.833

        (b) The parent sample of the biological material so collected834
is not so minute or fragile as to risk destruction of the parent 835
sample by the extraction described in division (C)(2)(a) of this 836
section; provided that the court may determine in its discretion, 837
on a case-by-case basis, that, even if the parent sample of the 838
biological material so collected is so minute or fragile as to 839
risk destruction of the parent sample by the extraction, the 840
application should not be rejected solely on the basis of that 841
risk.842

        (c) The parent sample of the biological material so collected843
has not degraded or been contaminated to the extent that it has 844
become scientifically unsuitable for testing, and the parent 845
sample otherwise has been preserved, and remains, in a condition 846
that is scientifically suitable for testing.847

        (3) The court determines that, at the trial stage in the case 848
in which the inmate was convicted of, pleaded guilty to, or 849
pleaded no contest to the offense for which the inmate is an 850
eligible inmate and is requesting the DNA testing, the identity of851
the person who committed the offense was an issue.852

        (4) The court determines that one or more of the defense853
theories asserted by the inmate at the trial stage in the case854
described in division (C)(3) of this section or in a retrial of855
that case in a court of this state was of such a nature that, if856
DNA testing is conducted and an exclusion result is obtained, the857
exclusion result will be outcome determinative.858

        (5) The court determines that, if DNA testing is conducted859
and an exclusion result is obtained, the results of the testing860
will be outcome determinative regarding that inmate.861

        (6) The court determines pursuant to section 2953.76 of the862
Revised Code from the chain of custody of the parent sample of the 863
biological material to be tested and of any test sample extracted 864
from the parent sample, and from the totality of circumstances 865
involved, that the parent sample and the extracted test sample are 866
the same sample as collected and that there is no reason to 867
believe that they have been out of state custody or have been 868
tampered with or contaminated since they were collected.869

       (D) If an eligible inmate submits an application for DNA 870
testing under section 2953.73 of the Revised Code, the court, in 871
determining whether the "outcome determinative" criterion 872
described in divisions (B)(1) and (2) of this section has been 873
satisfied, shall consider all available admissible evidence 874
related to the subject inmate's case.875

       (E) If an eligible inmate submits an application for DNA 876
testing under section 2953.73 of the Revised Code and the court 877
accepts the application, the eligible inmate may request the court 878
to order, or the court on its own initiative may order, the bureau 879
of criminal identification and investigation to compare the 880
results of DNA testing of biological material from an unidentified 881
person other than the inmate that was obtained from the crime 882
scene or from a victim of the offense for which the inmate has 883
been approved for DNA testing to the combined DNA index system 884
maintained by the federal bureau of investigation.885

       If the bureau, upon comparing the test results to the 886
combined DNA index system, determines the identity of the person 887
who is the contributor of the biological material, the bureau 888
shall provide that information to the court that accepted the 889
application, the inmate, and the prosecuting attorney. The inmate 890
or the state may use the information for any lawful purpose.891

       If the bureau, upon comparing the test results to the 892
combined DNA index system, is unable to determine the identity of 893
the person who is the contributor of the biological material, the 894
bureau may compare the test results to other previously obtained 895
and acceptable DNA test results of any person whose identity is 896
known other than the eligible inmate. If the bureau, upon 897
comparing the test results to the DNA test results of any person 898
whose identity is known, determines that the person whose identity 899
is known is the contributor of the biological material, the bureau 900
shall provide that information to the court that accepted the 901
application, the inmate, and the prosecuting attorney. The inmate 902
or the state may use the information for any lawful purpose.903

       Sec. 2953.75. (A) If an eligible inmate submits an904
application for DNA testing under section 2953.73 of the Revised905
Code, the court shall require the prosecuting attorney to use906
reasonable diligence to determine whether biological material was907
collected from the crime scene or victim of the offense for which 908
the inmate is an eligible inmate and is requesting the DNA testing 909
against which a sample from the inmate can be compared and whether 910
the parent sample of that biological material still exists at that 911
point in time. In using reasonable diligence to make those 912
determinations, the prosecuting attorney shall rely upon all 913
relevant sources, including, but not limited to, all of the914
following:915

        (1) All prosecuting authorities in the case in which the916
inmate was convicted of, pleaded guilty to, or pleaded no contest 917
to the offense for which the inmate is an eligible inmate and is 918
requesting the DNA testing and in the appeals of, and 919
postconviction proceedings related to, that case;920

       (2) All law enforcement authorities involved in the921
investigation of the offense for which the inmate is an eligible922
offender and is requesting the DNA testing;923

       (3) All custodial agencies involved at any time with the924
biological material in question;925

       (4) The custodian of all custodial agencies described in926
division (A)(3) of this section;927

       (5) All crime laboratories involved at any time with the928
biological material in question;929

        (6) All other reasonable sources.930

       (B) The prosecuting attorney shall prepare a report that 931
contains the prosecuting attorney's determinations made under 932
division (A) of this section and shall file a copy of the report 933
with the court and provide a copy to the eligible inmate and the 934
attorney general.935

       Sec. 2953.83.  In any court proceeding under sections 2953.71 936
to 2953.822953.81 of the Revised Code, the Rules of Criminal 937
Procedure apply, except to the extent that sections 2953.71 to 938
2953.822953.81 of the Revised Code provide a different procedure 939
or to the extent that the Rules would by their nature be clearly 940
inapplicable.941

       Sec. 2953.84.  The provisions of sections 2953.71 to 2953.82942
2953.81 of the Revised Code by which an inmate may obtain 943
postconviction DNA testing are not the exclusive means by which an 944
inmate may obtain postconviction DNA testing, and the provisions 945
of those sections do not limit or affect any other means by which 946
an inmate may obtain postconviction DNA testing.947

       Section 2.  That existing sections 109.573, 2953.21, 2953.23, 948
2953.71, 2953.72, 2953.73, 2953.74, 2953.75, 2953.83, and 2953.84 949
and section 2953.82 of the Revised Code are hereby repealed.950