Oral Argument Preview: How Many DNA Tests Can A Prisoner Get? State v. Tyrone Noling (Part II).

By Marianna Bettman on January 3, 2013

Update: On May 2, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here.

On January 8, 2013 the Supreme Court of Ohio will hear oral argument in the case of State v. Tyrone Noling, 2011-0778. The issue in this case is whether an application for post conviction DNA testing filed under an earlier statute with acceptance criteria that have been subsequently legislatively amended prevents a trial court from reviewing a later DNA testing application filed under the new statute with new acceptance criteria. Read the post on this part of the argument here.

Court’s Request for Supplemental Briefing

After the Court accepted jurisdiction in the case, it requested supplemental briefing on the following jurisdictional issue:

“In view of State v. Davis, 131, Ohio St.3d 1, whether R.C. 2953.73(E)(1), which confers jurisdiction on this court to consider Noling’s appeal, is constitutional.”

Text of R.C. 2953.73

(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 offender 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 offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender 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 offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing. (emphasis added)

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

State v. Davis, 131, Ohio St.3d 1 (2011)

In State v. Davis, the defendant was convicted of aggravated murder of an 86-year-old woman in her apartment. He filed a motion for a new trial based on newly discovered evidence. The state argued that every judgment in a case in which the death penalty is imposed must be appealed directly to the Supreme Court of Ohio. The Supreme Court disagreed, holding that the courts of appeals may entertain all appeals from the denial of postjudgment motions in which the death penalty was previously imposed. Thus, a court of appeals may review a trial court’s denial of a motion for leave to file a motion for new trial based on newly discovered evidence in a case where the death penalty was previously imposed.

What’s This All About, Anyway?

So in overly simplified fashion, here’s the problem in this case. In 1994, the voters approved an amendment to the Ohio Constitution eliminating intermediate appellate review in death penalty cases. Article IV Section 2(B)(2)(c) states that the Ohio Supreme Court has appellate jurisdiction over direct appeals in cases where the death penalty has been imposed. Article IV Section 3(B)(2) states that courts of appeals have jurisdiction over final orders except those judgments that impose a sentence of death. Prosecutors in Davis argued that this language means that every judgment in a case in which the death penalty is imposed must be appealed directly to the Supreme Court of Ohio. R.C. 2953.73 (E)(1) is written to be consistent with that interpretation of Ohio’s constitution. But in Davis the Court held that the Ohio Constitution’s language actually gives intermediate courts of appeals jurisdiction to hear lots of post conviction stuff arising from death penalty cases. Noling, following the appellate process laid out in the statute, did not appeal the denial of his second request for DNA testing to the 11^th district court of appeals in this case.

Warning! This is a Slog. Really

I admit I have trouble understanding the state’s non-constitutional arguments.

State’s position on jurisdiction

Deciding the Case on Non-Constitutional Grounds

Law of the Case Doctrine

The state argues that it is unnecessary to reach the constitutional question in Noling because of the law of the case doctrine. Noling raised the constitutionality of the R.C. 2953.73 appeals provision when he appealed the denial of his first DNA application, he raised it in a previous jurisdictional memo, which was not accepted for review, and he raised it in his appeal to the 11th District after the trial court’s denial of his first DNA application. Because he failed to challenge the 11th District’s dismissal of his appeal for lack of jurisdiction under R.C. 2953.73, the 11th District’s ruling on the jurisdictional issue is the law of the case.

Cause on Review Original Jurisdiction

The state’s second argument is that the Supreme Court’s cause on review original jurisdiction (Art IV § 2(A)(f) (allowing original jurisdiction in order to allow the Supreme Court to complete its determination in any cause on review) gives it original jurisdiction here. The gist of this argument is that the Supreme Court has reviewed this case before, made a determination, and now can issue another ruling in order to complete its earlier determination.

Reaching the Merits of the Constitutional Question

The state then argues that if the court reaches the merits of the constitutional issue, R.C. 2953.73(E)(1) is unconstitutional based on Davis. Davis held that courts of appeals may entertain all appeals from the denial of postjudgment motions in which the death penalty was previously imposed. The state also proposes severance of the offending portions of the statute. Finally, since this is an appeal from a denial of a post judgment motion in a death penalty case, the Court of Appeals has appellate jurisdiction, and this appeal should be dismissed as improvidentally accepted.

Noling’s Position

Noling appears to agree with the state on the merits of the constitutional issue. He argues that the statute violates Art. IV 2(B)(2)(c) and 3(B)(2) because under those provisions the case should have gone to the court of appeals first, because it is not a direct appeal from a judgment imposing a capital sentence.

Noling also argues that 2953.73(E)(2) standing alone violates the Equal Protection clause, because it treats similarly-situated death-sentenced and non-death-sentenced offenders disparately by giving the latter an appeal of right to the court of appeals while giving no appellate process to death-sentenced offender.

Noling also asks the Court to sever the unconstitutional portions of subsection (E) from R.C. §2953.73, and to send Noling’s appeal to the Eleventh District Court of Appeals to review the final appealable order denying his application for DNA testing.

Don’t Abandon All Hope! Agreement on Severance!

Both sides agree that the statute would need to be severed in this way to preserve its constitutionality:

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

Student Contributor: Greg Kendall