State v. Noling

Decision Date21 December 2016
Docket NumberNo. 2014–1377.,2014–1377.
Citation2016 Ohio 8252,75 N.E.3d 141,149 Ohio St.3d 327
Parties The STATE of Ohio, Appellee v. NOLING, Appellant.
CourtOhio Supreme Court

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela Holder, Assistant Prosecuting Attorney, for appellee.

Ohio Innocence Project and Mark Godsey; and Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant Public Defender, for appellant.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Peter T. Reed, Deputy Solicitor, and Thomas E. Madden, Senior Assistant Attorney General, urging affirmance for amicus curiae, Ohio Attorney General Michael DeWine.

O'CONNOR, C.J.

RELEVANT BACKGROUND

{¶ 1} A jury found appellant, Tyrone Noling guilty of the April 1990 aggravated murders of Bearnhardt and Cora Hartig in Portage County, Ohio. The trial court sentenced him to death. On direct appeal, the court of appeals and this court affirmed the convictions and death sentences. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88.

{¶ 2} Noling has made numerous applications for postconviction relief. This appeal arises from the Portage County Common Pleas Court's denial of his 2013 amended application for postconviction DNA testing pursuant to Ohio's statutory scheme, R.C. 2953.71 through 2953.84. Noling filed an appeal with the Eleventh District Court of Appeals and sought a discretionary jurisdictional appeal with this court. The court of appeals dismissed Noling's appeal pursuant to R.C. 2953.73(E)(1), which grants appellate review of the denial of DNA applications from capital offenders to the Supreme Court of Ohio exclusively.

{¶ 3} We accepted Noling's jurisdictional appeal from the judgment of the court of common pleas on the following proposition of law:

Ohio Revised Code 2953.73(E)(1) violates both the Eighth and Fourteenth Amendments of the United States Constitution as it: (1) discriminates between capital and non-capital criminal defendants, (2) fails to provide appellate review, and (3) results in the arbitrary and capricious application of the death penalty. Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.

143 Ohio St.3d 1477, 2015-Ohio-3958, 38 N.E.3d 899.

{¶ 4} Although the parties' briefs go into detail concerning the merits of the application for DNA testing, the question before us is a constitutional one concerning the statutory procedure for appealing the denial of an application for postconviction DNA testing, not the merits of Noling's application itself.

{¶ 5} The challenged statute, R.C. 2953.73(E)(1), sets forth the procedure by which an offender sentenced to death may appeal the trial court's denial of an application for postconviction DNA testing. According to the statute, the capital offender "may seek leave of the supreme court to appeal the rejection to the supreme court." Id. The statute departs from typical appellate procedure by skipping the court of appeals altogether. And it is also distinct from the procedure in the initial appeal of a capital sentence, which comes straight to this court on a direct, not a discretionary, appeal. Article IV, Section 2(B)(2)(c), Ohio Constitution.

{¶ 6} To "seek leave," the capital offender must file a notice of appeal and memorandum in support of jurisdiction with this court. R.C. 2953.73(E)(1). At least four justices must vote to accept jurisdiction before an appeal may proceed. Article IV, Section 2(A), Ohio Constitution ; S.Ct.Prac.R. 7.08(B). If a majority of justices declines to assert jurisdiction over the claim, the decision of the common pleas court will stand. After the denial of a postconviction DNA application, however, R.C. 2953.73(E)(2) provides a noncapital offender the right to appeal that determination in the court of appeals. The appellate court has no discretion to decline to consider the case and must hear the appeal.

{¶ 7} Noling argues that because the statutory scheme denies appeals of right to those sentenced to death while guaranteeing appeals to noncapital offenders, the scheme denies capital offenders their fundamental rights—specifically, their state and federal constitutional rights to due process and equal protection and the federal Constitution's prohibition against cruel and unusual punishment. The state counters that postconviction relief is civil in nature, not criminal, and thus, no fundamental right to appeal exists. The state further contends that the scheme is constitutionally permissible because the state has a rational basis for the statute's different appeal paths and because the Eighth Amendment to the United States Constitution does not require a specific appellate process for postconviction DNA-testing denials.

{¶ 8} We agree that R.C. 2953.73(E)(1) violates the equal-protection right guaranteed by the United States and Ohio Constitutions. Because we can decide this case on equal-protection grounds, we do not consider Noling's due-process claims. But we also hold that the unconstitutional portion of the statute can be excised to create a constitutionally sound procedure that provides capital offenders an appeal of right to this court. We therefore apply the severance remedy, strike the unconstitutional portions of the statute, and permit the remainder of R.C. 2953.73(E) to stand. We find that our constitutional analysis applies equally to a related section of the statutory scheme, R.C. 2953.72(A)(8), that summarizes the procedure for appealing a denial of postconviction DNA testing, and we apply the severance remedy to that section as well. In accordance with our holding and remedy, Noling will be permitted an appeal of right to this court from the trial court's denial of his amended application for postconviction DNA testing.

ANALYSIS

Standard of review

{¶ 9} We begin with the premise that statutes are presumed constitutional. R.C. 1.47.

{¶ 10} To find a statute unconstitutional, we must determine "beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. "[D]oubts regarding the validity of a legislative enactment are to be resolved in favor of the statute."

State v. Smith, 80 Ohio St.3d 89, 99–100, 684 N.E.2d 668 (1997), citing State v. Gill, 63 Ohio St.3d 53, 55, 584 N.E.2d 1200 (1992).

{¶ 11} Because the Equal Protection Clause of the Ohio Constitution is coextensive with, or stronger than, that of the federal Constitution, we cite both throughout this opinion. E.g., State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14–23 (plurality opinion) (Article I, Section 2 of Ohio's Constitution, the Equal Protection Clause, provides equal or greater protections when compared to those arising from the U.S. Constitution's Fourteenth Amendment); Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) ("the federal and Ohio Equal Protection Clauses are to be construed and analyzed identically").

Equal protection

{¶ 12} The federal Equal Protection Clause mandates that the state may not "deny to any person within its jurisdiction the equal protection of the laws." Fourteenth Amendment to the U.S. Constitution, Section 1. Similarly, the Ohio Constitution, Article I, Section 2 guarantees that "[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit." But these admonishments shall "not deny to [the] State the power to treat different classes of persons in different ways." Eisenstadt v. Baird, 405 U.S. 438, 446–447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), citing Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885). Legislative power is not boundless, however.

{¶ 13} "The Constitution's guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group." United States. v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2693, 186 L.Ed.2d 808 (2013), citing Dept. of Agriculture v. Moreno, 413 U.S. 528, 534–535, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). In other words, equal protection prohibits treating similar groups differently based on criteria that are unrelated to the purpose of the law. Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). "[A]ll persons similarly situated should be treated alike," Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and "a legislative classification must be reasonable, not arbitrary, and must bear a rational relationship to a permissible governmental objective," Felske v. Daugherty, 64 Ohio St.2d 89, 92, 413 N.E.2d 809 (1980). See also Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). While the challenging party has the burden to negate "any reasonably conceivable state of facts that could provide a rational basis for the classification," Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), the state must offer some "rational speculation" to support it. Id. at 315, 113 S.Ct. 2096.

Statute's classification

{¶ 14} "In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment * * * [courts] apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose." Clark at 461, 108 S.Ct. 1910.

{¶ 15} While asserting that R.C. 2953.73(E)(1) cannot survive even this rational-basis scrutiny, Noling urges us to apply strict scrutiny to the statute, the most stringent level of analysis, asserting that the law impedes access to the courts, a fundamental right. But that argument is unsound.

{¶ 16} This court has established that "a postconviction...

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