DocketNumber: No. 85796.
Citation Numbers: 841 N.E.2d 831, 164 Ohio App. 3d 209, 2005 Ohio 5717
Judges: COLLEEN CONWAY COONEY, Judge.
Filed Date: 10/27/2005
Status: Precedential
Modified Date: 1/13/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 211
{¶ 1} In 1985, a jury convicted appellant, Paul Buehler, of aggravated murder and aggravated robbery. He was sentenced to life imprisonment on the murder charge, a sentence to run consecutively to an indefinite term of ten to 25 years on the robbery. We affirmed the conviction. The Ohio Supreme Court denied his motion for leave to appeal. This court then denied his application to reopen his appeal. State v. Buehler (Mar. 27, 1998), Cuyahoga App. No. 51522,
{¶ 2} In his first assignment of error, Buehler argues that the trial court's denial of his application is contrary to law because the court failed to comply with the requirements of R.C.
{¶ 3} In his first assignment of error, Buehler argues that this court should dismiss the appeal for lack of a final appealable order, reinstate his *Page 212 application for DNA testing, and remand the case to the trial court. We disagree.1
{¶ 4} R.C.
(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 [a] felony * * * and * * * is in prison serving that prison term * * *.
(c) On the date on which the application is filed, the inmate has at least one year remaining on the prison term * * *.
{¶ 5} The state concedes that Buehler is eligible to request DNA testing. After an eligible inmate submits an application for DNA testing, the trial court has the jurisdiction to accept or reject the application. R.C.
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 to2953.81 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 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. * * * 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 sections2953.71 to2953.81 of the Revised Code * * *.
{¶ 6} Buehler argues that the court failed to make the required finding in its journal entry. The subject journal entry states: *Page 213
Application for DNA testing is denied. DNA evidence that might indicate only biological material of Hedrick2 on deceased person would be consistent with the State's theory and evidence in the case, and thus not outcome determinative.
{¶ 7} In State v. Newell, Cuyahoga App. No. 85280,
{¶ 8} Therefore, we hold that the trial court's decision is a final appealable order and proceed to the merits of the case.
{¶ 9} The trial court did not comply with R.C.
{¶ 10} R.C.
If an eligible inmate submits an application for DNA testing under section
2953.73 of the Revised Code, the court shall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected from the crime scene or victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing against which a sample from the inmate can be compared and whether the parent sample of that biological material still exists at that point in time.
{¶ 11} R.C.
{¶ 12} Moreover, R.C.
(1) The court determines pursuant to section
2953.75 of the Revised Code that biological material was collected from the crime scene or the victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing and that the parent sample of that biological material against which a sample from the inmate can be compared still exists at that point in time.(2) The testing authority determines all of the following pursuant to section
2953.76 of the Revised Code regarding the parent sample of the biological material described in division (C)(1) of this section:(a) The parent sample of the biological material so collected contains scientifically sufficient material to extract a test sample.
(b) The parent sample of the biological material so collected is not so minute or fragile as to risk destruction of the parent sample by the extraction described in division (D)(2)(a) of this section; provided that the court may determine in its discretion, on a case-by-case basis, that, even if the parent sample of the biological material so collected is so minute or fragile as to risk destruction of the parent sample by the extraction, the application should not be rejected solely on the basis of that risk.
(c) The parent sample of the biological material so collected has not degraded or been contaminated to the extent that it has become scientifically unsuitable for testing, and the parent sample otherwise has been preserved, and remains, in a condition that is scientifically suitable for testing.
(3) The court determines that, at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing, the identity of the person who committed the offense was an issue.
(4) The court determines that one or more of the defense theories asserted by the inmate at the trial stage in the case described in division (C)(3) of this section or in a retrial of that case in a court of this state was of such a nature that, if DNA testing is conducted and an exclusion result is obtained, the exclusion result will be outcome determinative.
(5) The court determines that, if DNA testing is conducted and an exclusion result is obtained, the results of the testing will be outcome determinative regarding that inmate.
(6) The court determines pursuant to section
2953.76 of the Revised Code from the chain of custody of the parent sample of the biological material to be tested and of any test sample extracted from the parent sample, and from the totality of circumstances involved, that the parent sample and the extracted *Page 215 test sample are the same sample as collected and that there is no reason to believe that they have been out of state custody or have been tampered with or contaminated since they were collected.
{¶ 13} R.C.
{¶ 14} R.C.
{¶ 15} This court recently addressed a similar issue inState v. Hightower, Cuyahoga App. Nos. 84248 84398,
{¶ 16} A review of the record in this case reveals that the state did not file a report pursuant to R.C.
{¶ 17} Therefore, we hold that R.C.
{¶ 18} Accordingly, because the trial court did not adhere to the mandates of R.C.
{¶ 19} In his third assignment of error, Buehler argues that the denial was contrary to law because if a DNA test excluded Buehler as the source of biological matter found under the victim's fingernails, the outcome of the case would be different. Because we hold that the trial court prematurely denied Buehler's application, we find that this issue is not ripe for our review.
{¶ 20} Therefore, we sustain the first and second assignments of error and overrule the third assignment of error.
Judgment reversed and cause remanded.
BLACKMON, A.J., concurs.
CORRIGAN, J., dissents.