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S. B. No. 262 As Introduced
As Introduced
126th General Assembly | Regular Session | 2005-2006 |
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Senators Goodman, Stivers, Clancy, Jacobson, Gardner, Padgett, Schuler, Fedor, Fingerhut, Miller
A BILL
To amend sections 2953.72, 2953.73, and 2953.82 of the Revised Code to eliminate the former two-year window for applications for post-conviction DNA testing and instead allow an eligible inmate to request post-conviction DNA testing at any time if specified criteria are met.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2953.72, 2953.73, and 2953.82 of the Revised Code be amended to read as follows:
Sec. 2953.72. (A) Any eligible inmate who wishes to
request
DNA testing under sections 2953.71 to 2953.81 of the
Revised Code
shall
submit an application for the testing to the court of common
pleas specified in section 2953.73 of the Revised Code, on a form
prescribed
by the
attorney general for this purpose. The eligible
inmate
shall submit the application within the period of time, and
in
accordance with the procedures, set forth in section 2953.73 of
the Revised Code. The eligible inmate shall specify on the
application the offense or offenses for which the inmate is an
eligible inmate and is requesting the DNA testing. Along with the
application, the
eligible inmate shall submit an
acknowledgment
that is
on a form prescribed by the attorney
general for this
purpose and
that is signed by the inmate.
The acknowledgment
shall set forth
all of the following: (1) That sections 2953.71 to 2953.81 of the Revised Code
contemplate applications for DNA testing of eligible
inmates
at a
stage of a prosecution or case after the inmate has
been
sentenced to a prison term or a sentence of death, that any
exclusion or inclusion
result of DNA testing rendered pursuant to
those sections may be used by a
party in any proceeding
as described in section 2953.81 of the Revised Code, and that all
requests for any DNA
testing made at trial will continue to be
handled by the prosecuting
attorney in the case;
(2) That the process of conducting postconviction DNA
testing for an eligible inmate under sections 2953.71 to
2953.81
of
the Revised Code begins when the inmate submits
an application
under section 2953.73 of the Revised Code and the
acknowledgment
described in this section; (3) That the eligible inmate must submit the
application
and
acknowledgment to the court of common pleas that heard the
case in
which the inmate was convicted of the offense for which
the inmate
is an eligible offender and is requesting the DNA
testing; (4) That the state has established a set of criteria set
forth in section 2953.74 of the Revised Code by which eligible
inmate applications for DNA testing will be screened and that
a
judge of a court of common pleas upon receipt of a
properly filed
application and accompanying acknowledgment will
apply those
criteria to determine
whether to accept
or reject the application; (5) That the results of DNA testing conducted under sections
2953.71 to 2953.81 of the Revised Code will be provided as
described in section 2953.81 of the Revised Code to all parties in
the postconviction proceedings and will be reported to various
courts;
(6) That, if DNA testing is conducted with respect to an
inmate under sections 2953.71 to 2953.81 of the Revised
Code, the
state will not offer the inmate a retest if an inclusion
result is
achieved relative to the testing and that, if the state
were to
offer a retest after an inclusion result, the policy would
create
an atmosphere in which endless testing could occur and in
which
postconviction proceedings could be stalled for many years; (7) That, if the court rejects an eligible
inmate's
application for DNA testing because the
inmate
does not
satisfy
the acceptance criteria described in
division
(A)(4) of
this
section, the court will not accept or
consider
subsequent
applications; (8) That the acknowledgment memorializes the provisions of
sections 2953.71 to 2953.81 of the Revised Code with respect to
the application of postconviction DNA testing to inmates, that
those
provisions do not give any inmate any additional
constitutional
right that the inmate did not already have prior to the
effective date of
those provisions, that the court has no duty or
obligation to
provide postconviction DNA testing to inmates,
that the court of
common pleas has the
sole
discretion subject to an appeal as described in this division to determine whether an
inmate is an eligible inmate
and whether an
eligible inmate's
application for DNA testing
satisfies
the acceptance criteria
described in division (A)(4) of
this
section and whether the
application should be accepted or
rejected, that if the court of common
pleas rejects an eligible inmate's application, the inmate may seek leave of the supreme court to appeal the rejection to that court if the inmate was sentenced to death for the offense for which the inmate is requesting the DNA testing and, if the inmate was not sentenced to death for that offense, may appeal the rejection to the court of appeals, and that no
determination otherwise made
by
the court of common pleas in the
exercise
of its discretion
regarding the
eligibility of an
inmate or regarding postconviction DNA testing
under those provisions
is reviewable by or appealable to any
court; (9) That the manner in which sections 2953.71 to 2953.81 of
the Revised Code with respect to the offering of postconviction
DNA testing to inmates are carried out does not confer any
constitutional right upon any inmate, that the state has
established guidelines and procedures relative to those provisions
to ensure that they are carried out with both justice and
efficiency in mind, and that an inmate who participates in
any
phase of the mechanism contained in those provisions,
including,
but not limited to, applying for DNA testing and being
rejected,
having an application for DNA testing accepted and not
receiving
the test, or having DNA testing conducted and receiving
unfavorable results, does not gain as a result of the
participation any constitutional right to challenge, or, except as provided in division (A)(8) of this section, any right
to any review or appeal of, the manner in
which those provisions
are carried out; (10) That the most basic aspect of sections 2953.71 to
2953.81 of the Revised Code is that, in order for DNA testing to
occur, there must be an inmate sample against which other evidence
may be compared, that, if an eligible inmate's
application
is
accepted but the inmate subsequently refuses to
submit
to the
collection of the sample of biological material from
the
inmate
or hinders the state from obtaining a sample of
biological
material from the inmate, the goal of those
provisions
will be
frustrated, and that an inmate's refusal
or
hindrance shall cause the court to rescind its prior acceptance of the application for
DNA testing for
the inmate and deny the application; (11) That, if the inmate is an inmate who pleaded guilty or no contest to a felony offense and who is using the application and acknowledgment to request DNA testing under section 2953.82 of the Revised Code, all references in the acknowledgment to an "eligible inmate" are considered to be references to, and apply to, the inmate and all references in the acknowledgment to "sections 2953.71 to 2953.81 of the Revised Code" are considered to be references to "section 2953.82 of the Revised Code"." (B) The attorney general shall prescribe a form to be used
to make an application for DNA testing under division (A) of this
section and section 2953.73 of the Revised Code and a form to be
used to provide the acknowledgment described in division (A) of
this section. The forms shall include all information described in
division (A) of this section, spaces for an inmate to insert all
information necessary to complete the forms, including, but not
limited to, specifying the offense or offenses for which the
inmate is an eligible inmate and is requesting the DNA testing or for which the inmate is requesting the DNA testing under section 2953.82 of the Revised Code,
and any other information or material the attorney general
determines is necessary or relevant. The forms also shall be used to make an application requesting DNA testing under section 2953.82 of the Revised Code, and the attorney general shall ensure that they are sufficient for that type of use, and that they include all information and spaces necessary for that type of use. The attorney general shall
distribute copies of the
prescribed forms to the department of
rehabilitation and
correction, the department shall ensure that
each
prison in which inmates are housed has a
supply of
copies of
the forms, and the department shall ensure
that copies
of the
forms are provided free of charge to any
inmate who
requests
them. (C)(1) An inmate is eligible to request DNA testing to be
conducted under sections 2953.71 to 2953.81 of the Revised Code
only if all of the following apply:
(a) The offense for which the inmate claims to be an
eligible inmate is a felony that was committed prior to the
effective date of this section, and the inmate was convicted by a
judge or jury of that offense.
(b) The inmate was sentenced to a prison term or sentence
of death for the felony described in division (C)(1)(a) of this
section and, on the effective date of this section, is in prison
serving that prison term or under that sentence of death.
(c) On the date on which the application is filed, the inmate has
at least one year remaining on the prison term described in
division (C)(1)(b) of this section, or the inmate is in prison
under a sentence of death as described in that division. (2) An inmate is not an eligible inmate under division
(C)(1) of this section regarding any offense to which the inmate
pleaded guilty or no contest.
Sec. 2953.73. (A) An eligible inmate who wishes to
request DNA testing to be conducted under sections 2953.71 to
2953.81 of the Revised Code shall submit an application for
DNA
testing on a form prescribed by the attorney general for this
purpose and shall submit the form to the court of common pleas
that sentenced the inmate for the
offense for which the inmate is an eligible inmate and is
requesting DNA testing.
The
eligible inmate shall submit the
application to that court of common pleas not
later
than
two years after October 29, 2003. No court of common pleas shall accept an application
under this section after the expiration of the period of time
specified
in this division. (B) If an eligible inmate submits an application for DNA
testing under division (A) of this section, upon the submission of
the application, all of the following apply: (1) The eligible inmate shall serve a copy of the application on the prosecuting attorney and the
attorney general. (2) The application shall be assigned to the judge of that
court of common pleas who was the trial judge in the case in which the eligible inmate was convicted of the offense for which the inmate is requesting DNA testing, or, if that judge no longer is a judge of that court, it shall be assigned according to court rules. The judge to whom the application is
assigned shall decide the application. The application shall become part of the file in the case. (C) If an eligible inmate submits an application for DNA
testing under division (A) of this section, regardless of whether the inmate has commenced any federal habeas corpus proceeding relative to the
case in which the inmate was convicted of the offense for which
the inmate is an eligible inmate and is requesting DNA testing,
any response to the application by the prosecuting attorney or the attorney general shall be filed not later than forty-five days after the date on which the eligible inmate submits the application. The prosecuting attorney or
the attorney general, or both, may, but are not required to, file a response
to the application. If the prosecuting attorney or the attorney general files a response under this division, the prosecuting attorney or attorney general, whoever filed the response, shall serve a copy of the response on the eligible inmate. (D) If an eligible inmate submits an application for DNA
testing under division (A) of this section, the court
shall make
the determination as to whether the
application should be accepted
or rejected. The court shall expedite its review of
the application. The
court shall make the determination in accordance with the
criteria
and procedures set forth in sections 2953.74 to 2953.81
of the
Revised Code and, in making the determination, shall
consider the
application, the supporting affidavits, and the documentary evidence and, in addition to those materials, shall consider all the files and records pertaining to the proceedings against the applicant, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript and all responses to the application
filed under
division (C) of this section by a prosecuting attorney
or the
attorney general, unless the application and the files and records show the applicant is not entitled to DNA testing, in which case the application may be denied. The court is not required to conduct an evidentiary hearing in conducting its review of, and in making its determination as to whether to accept or reject, the application. Upon making its determination, the
court shall
enter a judgment and order that either accepts or
rejects the application and that includes
within the judgment and order the
reasons for the acceptance or rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code. The court shall send a copy of the
judgment and order to the eligible
inmate who filed it, the prosecuting
attorney, and the attorney
general. (E) A judgment and order of a court entered under
division (D) of this
section is appealable only as provided in this division. If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and the court of common pleas rejects the application under division (D) of this section, one of the following applies: (1) If the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the inmate may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the inmate was sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing. (2) If the inmate was not sentenced to death for the offense for which the inmate claims to be an eligible inmate and is requesting DNA testing, the rejection is a final appealable order, and the inmate may appeal it to the court of appeals of the district in which is located that court of common pleas. (F) Notwithstanding any provision of law regarding fees and
costs, no filing fee shall be required of, and no court costs
shall be assessed against, an eligible offender who is indigent
and who submits an application under this section. (G) If a court rejects an eligible inmate's application for DNA testing under division (D) of this section, unless the rejection is overturned on appeal, no court shall require the state to administer a DNA test under sections 2953.71 to 2953.81 of the Revised Code on the eligible inmate.
Sec. 2953.82. (A) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to October 29, 2003 may request DNA testing under this section regarding that offense if all of the following apply:
(1) The inmate was sentenced to a prison term or sentence of death for that felony and, on October 29, 2003, is in prison serving that prison term or under that sentence of death.
(2) On the date on which the inmate files the application requesting the testing with the court as described in division (B) of this section, the inmate has at least one year remaining on the prison term described in division (A)(1) of this section, or the inmate is in prison under a sentence of death as described in that division.
(B) An inmate who pleaded guilty or no contest to a felony offense that was committed prior to October 29, 2003, who satisfies the criteria set forth in division (A) of this section, and who wishes to request DNA testing under this section shall submit, in accordance with this division, an application for the testing to the court of common pleas and. Upon submitting the application to the court, the inmate shall serve a copy on the prosecuting attorney. The inmate shall specify on the application the offense or offenses for which the inmate is requesting the DNA testing under this section. Along with the application, the inmate shall submit an acknowledgment that is signed by the inmate. The application and acknowledgment required under this division shall be the same application and acknowledgment as are used by eligible inmates who request DNA testing under sections 2953.71 to 2953.81 of the Revised Code. The inmate shall file the application with the court of common pleas not later than two years after October 29, 2003. Upon filing the application, the inmate shall serve a copy on the prosecuting attorney.
(C) Within forty-five days after the filing of an application for DNA testing under division (B) of this section, the prosecuting attorney shall file a statement with the court that indicates whether the prosecuting attorney agrees or disagrees that the inmate should be permitted to obtain DNA testing under this section. If the prosecuting attorney agrees that the inmate should be permitted to obtain DNA testing under this section, all of the following apply:
(1) The application and the written statement shall be considered for all purposes as if they were an application for DNA testing filed under section 2953.73 of the Revised Code that the court accepted, and the court, the prosecuting attorney, the attorney general, the inmate, law enforcement personnel, and all other involved persons shall proceed regarding DNA testing for the inmate pursuant to sections 2953.77 to 2953.81 of the Revised Code, in the same manner as if the inmate was an eligible inmate for whom an application for DNA testing had been accepted.
(2) Upon completion of the DNA testing, section 2953.81 of the Revised Code applies.
(D) If the prosecuting attorney disagrees that the inmate should be permitted to obtain DNA testing under this section, the prosecuting attorney's disagreement is final and is not appealable by any person to any court, and no court shall have authority, without agreement of the prosecuting attorney, to order DNA testing regarding that inmate and the offense or offenses for which the inmate requested DNA testing in the application. (E) If the prosecuting attorney fails to file a statement of agreement or disagreement within the time provided in division (C) of this section, the court may order the prosecuting attorney to file a statement of that nature within fifteen days of the date of the order.
Section 2. That existing sections 2953.72, 2953.73, and 2953.82 of the Revised Code are hereby repealed.
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