State v. Roberts

[Cite as State v. Roberts, 2011-Ohio-4969.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff – Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
CLARENCE D. ROBERTS Case No. 10CA000047
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 97CR63
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN CLARENCE D. ROBERTS, PRO SE
139 West 8th Street Inmate No. 351-300
P.O. Box 640 P.O. Box 4501
Cambridge, OH 43725 Lima, OH 45802
Guernsey County, Case No. 10CA000047 2
Farmer, J.
{¶1} On June 30, 1997, the Guernsey County Grand Jury indicted appellant,
Clarence Roberts, on one count of aggravated robbery in violation of R.C. 2911.01 and
one count of aggravated murder in violation of R.C. 2903.01 with a death penalty
specification. Said charges arose from the robbery and stabbing death of Leo Sinnett
on May 17, 1997.
{¶2} A jury trial commenced on September 15, 1997. The jury found appellant
guilty as charged, but did not recommend the death penalty. The trial court sentenced
appellant to life imprisonment without parole. Appellant's convictions and sentence
were affirmed on appeal. See, State v. Roberts (November 24, 1998), Guernsey App.
No. 97CA29.
{¶3} On September 30, 2010, appellant filed a motion to order preservation and
listing of evidence regarding both physical and biological evidence from his case. By
entry filed November 30, 2010, the trial court denied the motion.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
ROBERTS' MOTION TO ORDER PRESERVATION OF EVIDENCE AND LISTING OF
EVIDENCE IN VIOLATION OF THE MANDATES OF SB 77 AND O.R.C. §2933.82."
Guernsey County, Case No. 10CA000047 3
I
{¶6} Appellant claims the trial court erred in denying his request pursuant to
R.C. 2933.82 for an inventory and preservation of evidence from his case. We
disagree.
{¶7} R.C. 2933.82 governs preservation of biological evidence. Subsections
(B)(1)(c), (B)(2), (B)(3), and (B)(4) state the following:
{¶8} "(B)(1) Each governmental evidence-retention entity that secures any
biological evidence in relation to an investigation or prosecution of a criminal offense or
delinquent act that is a violation of section 2903.01, 2903.02, or 2903.03, a violation of
section 2903.04 or 2903.06 that is a felony of the first or second degree, a violation of
section 2907.02 or 2907. 03 or division (A)(4) or (B) of section 2907.05 of the Revised
Code, or an attempt to commit a violation of section 2907.02 of the Revised Code shall
secure the biological evidence for whichever of the following periods of time is
applicable:
{¶9} "(c) If any person is convicted of or pleads guilty to the offense, or is
adjudicated a delinquent child for committing the delinquent act, for the earlier of the
following: (i) the expiration of the latest of the following periods of time that apply to the
person: the period of time that the person is incarcerated, is in a department of youth
services institution or other juvenile facility, is under a community control sanction for
that offense, is under any order of disposition for that act, is on probation or parole for
that offense, is under judicial release or supervised release for that act, is under post-
release control for that offense, is involved in civil litigation in connection with that
offense or act, or is subject to registration and other duties imposed for that offense or
Guernsey County, Case No. 10CA000047 4
act under sections 2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code or (ii)
thirty years. If after the period of thirty years the person remains incarcerated, then the
governmental evidence-retention entity shall secure the biological evidence until the
person is released from incarceration or dies.
{¶10} "(2) This section applies to evidence likely to contain biological material
that was in the possession of any governmental evidence-retention entity during the
investigation and prosecution of a criminal case or delinquent child case involving a
violation of section 2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or
2903.06 that is a felony of the first or second degree, a violation of section 2907.02 or
2907.03 or of division (A)(4) or (B) of section 2907.05 of the Revised Code, or an
attempt to commit a violation of section 2907.02 of the Revised Code.
{¶11} "(3) A governmental evidence-retention entity that possesses biological
evidence shall retain the biological evidence in the amount and manner sufficient to
develop a DNA profile from the biological material contained in or included on the
evidence.
{¶12} "(4) Upon written request by the defendant in a criminal case or the
alleged delinquent child in a delinquent child case involving a violation of section
2903.01, 2903.02, or 2903.03, a violation of section 2903.04 or 2903. 06 that is a felony
of the first or second degree, a violation of section 2907.02 or 2907.03 or of division
(A)(4) or (B) of section 2907.05 of the Revised Code, or an attempt to commit a violation
of section 2907.02 of the Revised Code, a governmental evidence-retention entity that
possesses biological evidence shall prepare an inventory of the biological evidence that
Guernsey County, Case No. 10CA000047 5
has been preserved in connection with the defendant's criminal case or the alleged
delinquent child's delinquent child case." (Emphasis added.)
{¶13} R.C. 2933.82 became effective on July 6, 2010. Appellant was charged,
tried, and convicted in 1997. In order for the statute to apply in appellant's case, it must
be applied retrospectively. Pursuant to R.C. 1.48, "[a] statute is presumed to be
prospective in its operation unless expressly made retrospective." "If there is no clear
indication of retroactive application, then the statute may only apply to cases which
arise subsequent to its enactment." Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262.
We note there is no express, clear provision in the statute for retrospective application.
{¶14} Appellant argues the use of the verb "was" in subsection (B)(2) implies
retroactive application. We disagree that the use of the past tense "was" expressly
makes the statute retroactive. Because the statute sets forth requirements involving the
preservation of evidence after conviction, the "was" refers to evidence in possession of
any governmental evidence-retention entity during the investigation and prosecution of
a criminal case after July 6, 2010. The state cannot do what it did not know it had to do
i.e., meet R.C. 2933.82 standards in cases prior to its effective date.
{¶15} The statute creates new rights and duties upon the state to preserve
biological evidence or to notify certain individuals in the event the evidence is to be
destroyed. As stated in the Ohio Legislative Service Commission Final Bill Analysis of
S.B. No. 77 as passed by the 128th General Assembly, effective July 6, 2010, R.C.
2933.82 "establishes within the Bureau of Criminal Identification and Investigation of the
AG's Office a Preservation of Biological Evidence Task Force." The analysis states in
relevant part:
Guernsey County, Case No. 10CA000047 6
{¶16} "The act requires the Task Force to establish a system regarding the
proper preservation of biological evidence in Ohio and specifies that, in establishing the
system, the Task Force must do all of the following: (1) devise standards regarding the
proper collection, retention, and cataloguing of biological evidence for ongoing
investigations and prosecutions, and (2) recommend practices, protocols, models, and
resources for the cataloguing and accessibility of preserved biological evidence already
in the possession of governmental evidence-retention entities.
{¶17} "The act provides that, in consultation with the Task Force, the Division of
Criminal Justice Services of the Department of Public Safety must administer and
conduct training programs for law enforcement officers and other relevant employees
who are charged with preserving and cataloguing biological evidence regarding the
methods and procedures referenced in the act's provisions described above that require
or relate to the preservation of biological evidence. (R.C. 109.561 and 2933.82(C).)."
{¶18} In his September 30, 2010 motion, appellant requested "the preservation
of all physical evidence in the above styled cause, including and specifically the clothing
of the victim herein." Appellant argues "recent advances in DNA technology known as
'touch DNA' which can conclusively establish the presence of epithelial cell matter on
objects touched by a person" could exonerate him. Appellant argues this technology
could prove that it was another individual who removed the victim's wallet from his
pocket and killed him. Because this item has not been preserved pursuant to the
practices and protocols under the new task force, appellant cannot now benefit from
retrospective application of the statute.
Guernsey County, Case No. 10CA000047 7
{¶19} Upon review, we find the provisions of R.C. 2933.82 are to be applied
prospective only.
{¶20} The sole assignment of error is denied.
{¶21} The judgment of the Court of Common Pleas of Guernsey County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Edwards, J. concur.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin___________________
_s/ Julie A. Edwards________________
JUDGES
SGF/sg 809
[Cite as State v. Roberts, 2011-Ohio-4969.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CLARENCE D. ROBERTS :
:
Defendant-Appellant : Case No. 10CA000047
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Guernsey County, Ohio is affirmed. Costs
to appellant.
_s/ Sheila G. Farmer_______________
s/ W. Scott Gwin___________________
_s/ Julie A. Edwards________________
JUDGES