State v. Noling

• Decision Date: 02 May 2013
• Docket Number: No. 2011–0778.,2011–0778.
• Citation: 136 Ohio St.3d 163,992 N.E.2d 1095
• Parties: The STATE of Ohio, Appellee, v. NOLING, Appellant.
• Court: Ohio Supreme Court

136 Ohio St.3d 163

992 N.E.2d 1095

The STATE of Ohio, Appellee,

v.NOLING, Appellant.

No. 2011–0778.

Supreme Court of Ohio.

Submitted Jan. 8, 2013.

Decided May 2, 2013.

Syllabus of the Court

1. R.C. 2953.73(E)(1), which grants exclusive jurisdiction to the Supreme Court of Ohio to review rejections of applications for DNA testing in cases in which the death penalty is imposed, is constitutional.

2. Before dismissing a subsequent application for postconviction DNA testing under R.C. 2953.72(A)(7), a trial court must apply the definition of “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74.

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

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

LANZINGER, J.

[Ohio St.3d 163]{¶ 1} Tyrone Noling, the defendant-appellant in this capital case, has appealed from an order of the Court of Common Pleas of Portage County rejecting his second application for postconviction DNA testing. Two issues are presented: (1) whether R.C. 2953.73(E)(1) is constitutional in conferring appellate jurisdiction upon this court from a trial court's denial of postconviction DNA testing in a case in which the death penalty was imposed and (2) whether R.C. 2953.72(A) bars a subsequent application for postconviction DNA testing when a prior application was rejected under previous versions of the DNA-testing statutes.

{¶ 2} We hold that R.C. 2953.73(E)(1) is constitutional. We also hold that before dismissing a subsequent application for postconviction DNA testing under [Ohio St.3d 164]R.C. 2953.72(A)(7), a trial court must apply the definition of “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74.

I. Factual Background

{¶ 3} Noling was found guilty of the April 1990 aggravated murders of Bearnhardt and Cora Hartig in Portage County, Ohio. He was sentenced to death on two counts. Both 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. Although this case has an extensive postconviction history, the only issue now before us is Noling's request for postconviction DNA testing under R.C. 2953.71 to 2953.81.

{¶ 4} In his first postconviction application on September 25, 2008, Noling sought DNA testing of a cigarette butt found on the driveway of the Hartig home. Noting that a DNA test conducted before trial had already excluded Noling as well as each codefendant as the person who had smoked the cigarette, the trial court rejected Noling's application because it found the earlier DNA test to be definitive.

{¶ 5} On April 10, 2009, Noling appealed the entry rejecting his application to the Eleventh District Court of Appeals. The court of appeals dismissed the appeal for lack of jurisdiction under R.C. 2953.73(E)(1). State v. Noling, 11th Dist. No. 2009–P–0025, 2009-Ohio-3789, 2009 WL 2356799, ¶ 9. Noling also filed a notice of appeal of the trial court's rejection of his DNA application with this court while his appeal was pending in the Eleventh District. On September 29, 2010, we declined to accept Noling's appeal of the trial court's decision. State v. Noling, 126 Ohio St.3d 1582, 2010-Ohio-4542, 934 N.E.2d 355.

{¶ 6} On December 28, 2010, Noling filed a second application for DNA testing of the cigarette butt based on newly discovered evidence that he asserted identifies other suspects in the Hartig murders. First, Noling alleged that the prosecution had failed to disclose a statement made by Nathan Chesley that inculpated his foster brother, Daniel Wilson, in the Hartig murders. Chesley, in an affidavit supporting the application, described Wilson as a heavy drinker and a violent person who had committed thefts and broken into homes at the time of the Hartig murders. He also stated that Wilson drove a blue Dodge Omni—a dark blue, midsize car was seen by another witness near the Hartig residence on the day of the murders. According to Noling, previous analysis of the cigarette butt and of Wilson's saliva did not exclude Wilson as the source of the DNA on the cigarette. Second, Noling's application alleged that documents that were previously undisclosed by the state identified other possible suspects, including the Hartigs' insurance agent, who had borrowed money from the Hartigs but had defaulted on the loan. Noling also claimed that because of advances in DNA technology, it is now possible to positively identify the individual whose DNA is [Ohio St.3d 165]on the cigarette butt and that DNA identification of one of the previously undisclosed suspects would be “outcome determinative,” because it would identify the true killer.

{¶ 7} On March 28, 2011, the trial court denied Noling's second application, stating:

Revised Code 2953.72(A)(7) states that “If the court rejects an eligible offender's application for DNA testing because the offender does not satisfy the acceptance criteria described in Division (A)(4) of this section, the court will not accept or consider subsequent applications.”

In this case Defendant Tyrone Noling submitted a properly filed application for post conviction testing on September 25th 2008, the Court rejected that application and the Defendant appealed to the Supreme Court. Therefore, as this is a statutory action, the Court must reject Defendant's second filing of the application for DNA testing based on Ohio Revised Code § 2953.72(A)(7).

{¶ 8} We accepted jurisdiction of Noling's appeal on October 19, 2011, on the following proposition of law: “Whether an application for post-conviction DNA testing rejected under the old acceptance criteria set by the Legislature must be considered under the Legislature's new acceptance criteria rather than be procedurally barred by R.C. 2953.72(A)(7).” 129 Ohio St.3d 1503, 2011-Ohio-5358, 955 N.E.2d 386. Later, in light of State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, we ordered the parties to address the constitutionality of R.C. 2953.73(E)(1), which confers exclusive jurisdiction upon this court to consider Noling's appeal. 131 Ohio St.3d 1471, 2012-Ohio-896, 962 N.E.2d 802.

{¶ 9} The threshold question in this case is whether we have jurisdiction to consider Noling's direct appeal of the trial court's rejection of his second application for DNA testing.

II. Analysis

A. Appellate Jurisdiction in Death–Penalty Cases

{¶ 10} As we recently stated, “Subject-matter jurisdiction cannot be waived and is properly raised by this court sua sponte. State v. Lomax, 96 Ohio St.3d 318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17.” Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 11.

{¶ 11} On November 8, 1994, Ohio voters approved amendments to the Ohio Constitution that give this court appellate jurisdiction in direct appeals from courts of common pleas in cases in which the death penalty has been imposed. [Ohio St.3d 166]Ohio Constitution, Article IV, Section 2(B)(2)(c). Before the amendments, a trial court's judgment could be appealed—as in any criminal case—to a district court of appeals. A second appeal as of right could then be filed in this court. The amendments eliminated review by the courts of appeals of judgments that sentenced a defendant to death for a crime that occurred on or after January 1, 1995. Ohio Constitution, Article IV, Section 3(B)(2). According to the joint resolution that placed the issue on the ballot, the amendments to Article IV, Sections 2 and 3 of the Ohio Constitution were intended “to give the Supreme Court jurisdiction in direct appeals in death penalty cases as a matter of right, thus removing the jurisdiction of the courts of appeals on direct review in death penalty cases.” Sub.H.J.Res. No. 15, 145 Ohio Laws, Part IV, 7811.

{¶ 12} The Ohio Constitution, Article IV, Section 2(B)(2)(c) now provides: “The supreme court shall have appellate jurisdiction as follows: * * * In direct appeals from the courts of common pleas or other courts of record inferior to the court of appeals as a matter of right in cases in which the death penalty has been imposed.” The following section, Article IV, Section 3(B)(2), which relates to the jurisdiction of the courts of appeals, states:

Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death.

Thus, courts of appeals were excluded from the direct appellate review of death sentences.

{¶ 13} We first addressed the 1994 amendments in State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). In Smith, this court upheld the constitutionality of the amendments and also held that we have jurisdiction over both the capital and noncapital aspects of a case:

[T]he plain language of the amendments speaks of “cases in which the death penalty has been imposed” and “judgment that imposes the sentence of death.” * * * Section 2(B)(2)(c), Article IV and Section 3(B)(2), Article IV, Ohio Constitution. Thus the Supreme Court has jurisdiction over the whole case, instead of counts, charges, or sentences.

(Emphasis deleted.) Id. at 104, 684 N.E.2d 668.

{¶ 14} Next, we considered whether the constitutional provision granting this court appellate jurisdiction over cases in which the death penalty was imposed [Ohio St.3d 167]precludes a court of appeals' review of a trial court's ruling on postconviction motions. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516. We rejected the argument that this court “has exclusive jurisdiction over all matters relating to a death-penalty case” and held that “a court of appeals has jurisdiction...