The Ohio Supreme Court ruled today that part of the state law that limits the appeals of capital offenders seeking DNA testing after a conviction is unconstitutional.

The statute violates constitutional rights to equal protection because it creates a different appellate process for capital and noncapital offenders by giving offenders sentenced to death only the possibility, rather than the right, to have their appeal heard, Chief Justice Maureen O’Connor explained in the 4-3 decision. The statute has no rational basis for this distinction, the Court held.

To fix the unconstitutional provision, the Court severed part of the statute, and the law now gives eligible capital offenders an appeal of right to the Ohio Supreme Court when challenging a trial court’s denial of a request for post-conviction DNA testing.

With this ruling, Tyrone Noling, who was convicted of the 1990 murders of a Portage County couple, is entitled to have his post-conviction DNA testing appeal heard by the Supreme Court. He has 45 days to file a brief arguing the merits of his case.

Justice Terrence O’Donnell agreed with the majority that the different appeals processes are unconstitutional, but dissented from the remedy. He would sever the relevant statute, R.C. 2953.73(E), in its entirety.

Noling Asks for Additional DNA Testing
An appellate court and the Ohio Supreme Court each upheld Noling’s convictions and death sentence for the murders of Bearnhardt and Cora Hartig. Noling later applied for post-conviction DNA testing, but the Portage County Common Pleas Court denied his request in 2013.

On appeal, the Supreme Court agreed to consider Noling’s claim that R.C. 2953.73(E)(1), which defines the appeals process for capital offenders seeking such testing, is unconstitutional.

No Legitimate Basis for Distinction Between Capital and Noncapital Offenders
According to R.C. 2953.73(E)(1), when a trial court rejects a DNA testing request, an eligible capital offender asking for the test “may seek leave of the supreme court to appeal the rejection to the supreme court.”

Chief Justice O’Connor rejected an argument by the Portage County prosecutor that the separate appellate paths for capital and noncapital offenders provide for the expeditious enforcement of court judgments. The Court reviewed the timeframes for filing appropriate paperwork and briefs with the Supreme Court in a discretionary appeal and an appeal of right and found that an appeal of right reaches the merits stage more quickly than the discretionary appeal currently afforded to capital offenders.

“We find that providing only a discretionary appeal is not rationally related to the governmental purpose of expeditiously enforcing final judgments and, accordingly, the law does not meet the rational-basis test and violates both the federal and state equal-protection clauses,” Chief Justice O’Connor wrote.

Other claims that discretionary appeals for capital offenders serve a legitimate government interest also failed before the Court.

“Finding no legitimate purpose in a two-track appellate process that discriminates between capital and noncapital offenders, we hold that R.C. 2953.73(E)(1) is unconstitutional in violation of both state and federal principles of equal protection,” the chief justice wrote.

Court Severs Problematic Language
After determining that the removal of some of the language in R.C. 2953.73(E)(1) would meet the requirements of a three-part test spelled out in a 1927 Ohio Supreme Court decision (Geiger v. Geiger), Chief Justice O’Connor explained the Court’s remedy.

“By severing the phrase ‘seek leave of the supreme court to,’ we remove the offending discretionary-review process,” she wrote. “The statute then permissibly reads, ‘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 appeal the rejection to the supreme court.’”

“Having excised the offending language in accordance with Geiger, we conclude that the statute is rendered constitutional,” she added. “By providing an appeal of right to capital offenders, the revised statute avoids equal-protection violations by providing both capital and noncapital offenders the right to an appellate review and permits the state to achieve its objective of efficient enforcements of judgments by removing an often lengthy jurisdictional review period.”

The Court also found that its constitutional analysis affects another, related section – R.C. 2953.72(A)(8) – which gives only a summary of the post-conviction DNA testing appeals procedure. Applying the severance remedy to that section as well, the law now states that either type of offender “may appeal the rejection” of a request for DNA testing.

Severing Specific Language Has Precedent
Contrary to the dissent’s assertion that the majority has rewritten the statute, the Court maintained that severing some of the law’s language does not rewrite the statute, but instead removes words from the unconstitutional provision allowing the constitutional part to remain. Chief Justice O’Connor cited earlier case law in which the Court severed portions of a statute as it did here.

The Court noted that it has preserved the legislature’s intent by carefully removing only the provisions of the statute that are unconstitutional and can properly be severed. The dissent’s remedy, however, would eliminate the entire section, which would move capital offenders’ appeals from the Supreme Court to the courts of appeals and possibly give the state a new right to appeal in these cases. The Court concluded that the dissent’s approach is unworkable.

Justices Paul E. Pfeifer and Judith Ann Lanzinger and Judge Carla D. Moore of the Ninth District Court of Appeals joined the chief justice’s opinion. Judge Moore served in place of Justice William M. O’Neill, who recused himself from the case.

Dissent Argues Whole Provision Must Be Removed
In his dissent, Justice O’Donnell agreed the statute is unconstitutional, but disagreed with the majority’s decision to selectively sever words from the law.

Justice O’Donnell maintained that R.C. 1.50 permits the Court to sever unconstitutional “provisions” from a statute in order to preserve the constitutional elements of the law.

“But the authority to sever the unconstitutional part of a statute does not give this court license to rewrite it by selectively deleting words to change the meaning of the language that the legislature enacted,” he wrote.

According to Justice O’Donnell, the majority did not sever an invalid provision when it deleted the phrase “seek leave of the supreme court to,” because that phrase could not be read and stand alone if severed, as required by the Geiger test; instead, the majority “engaged in judicially legislating from the bench” by transforming “a capital offender’s discretionary appeal into a direct appeal to this court.”

He would find all of R.C. 2953.73(E) unconstitutional, which would have the effect of treating capital and noncapital offenders seeking DNA testing the same. Severing that entire provision from the statute would ensure that all offenders denied DNA testing have the same right to appeal that ruling to a state court of appeals in accord with the Court’s holding in State v. Davis (2011), where the Court said:  “We see no reason why the courts of appeals may not currently entertain all appeals from the denial of postjudgment motions in which the death penalty was previously imposed.”

Justices Sharon L. Kennedy and Judith L. French joined his dissent.

2014-1377. State v. Noling, Slip Opinion No. 2016-Ohio-8252.

View oral argument video of this case.

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