The STATE of Ohio, Appellee, v. BUEHLER, Appellant, 164 Ohio App. 3d 209

Colleen Conway Cooney, Judge. {¶ 1} In 1985, a jury convicted appellant, Paul Buehler, of aggravated murder and aggravated robbery. He was sentenced to life imprisonment on the murder charge, a sentence to run consecutively to an indefinite term of ten to 25 years on the robbery. We affirmed the conviction. The Ohio Supreme Court denied his motion for leave to appeal. This court then denied his application to reopen his appeal. State v. Buehler (Mar. 27, 1998), Cuyahoga App. No. 51522, 1998 WL 158866. In 2004, Buehler filed an application for DNA testing. The state filed a brief in opposition to his application.

The trial court subsequently denied Buehler’s application. Buehler now appeals, raising three assignments of error; the first and second assignments will be discussed together. Finding merit to the appeal, we reverse and remand for further proceedings. {¶ 2} In his first assignment of error, Buehler argues that the trial court’s denial of his application is contrary to law because the court failed to comply with the requirements of R.C. 2953.73(D). We agree, but our decision is based on different grounds.

In his second assignment of error, Buehler contends that the trial court erred when it denied his application without complying with R.C. 2953.75(

A) and (B). We agree and also find that by failing to comply with R.C. 2953.74, the trial court did not comply with R.C. 2953.73(D). {¶ 3} In his first assignment of error, Buehler argues that this court should dismiss the appeal for lack of a final appealable order, reinstate his application for DNA testing, and remand the case to the trial court. We disagree. {¶ 4} R.C. 2953.72(C)(1) allows an inmate to request DNA testing if all of the following apply: (

a) The offense for which the inmate claims to be an eligible inmate is a felony that was committed prior to the effective date of this section, and the inmate was convicted by a judge or jury of that offense. (

b) The inmate was sentenced to a prison term or sentence of death for [a] felony * * * and * * * is in prison serving that prison term * * *. (

c) On the date on which the application is filed, the inmate has at least one year remaining on the prison term * * *. {¶ 5} The state concedes that Buehler is eligible to request DNA testing. After an eligible inmate submits an application for DNA testing, the trial court has the jurisdiction to accept or reject the application. R.C. 2953.73(

D) provides: The court shall expedite its review of the application. The court shall make the determination in accordance with the criteria and procedures set forth in sections 2953.74 to 2953.81 of the Revised Code and, in making the determination, shall consider the application, the supporting affidavits, and the documentary evidence and, in addition to those materials, shall consider all the files and records pertaining to the proceedings against the applicant, including, but not limited to, the indictment, * * * the journalized records of the clerk of the court, and the court reporter’s transcript and all responses to the application filed under division (

C) of this

section by a prosecuting attorney or the attorney general, unless the application and the files and records show the applicant is not entitled to DNA testing, in which case the application may be denied. * * * Upon making its determination, the court shall enter a judgment and order that either accepts or rejects the application and that includes within the judgment and order the reasons for the acceptance or rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code * * *. {¶ 6} Buehler argues that the court failed to make the required finding in its journal entry.

The subject journal entry states: Application for DNA testing is denied. DNA evidence that might indicate only biological material of Hedrick on deceased person would be consistent with the State’s theory and evidence in the case, and thus not outcome determinative. {¶ 7} In State v. Newell, Cuyahoga App. No. 85280, 2005-Ohio-2853, 2005 WL 1364836, this court dismissed an appeal for lack of a final appealable order because the trial court failed to set forth any reasons why the appellant’s application was denied.

In the instant case, the trial court found that if only Hendrick’s DNA were found under the victim’s fingernails, that finding would be consistent with the state’s theory and the evidence. The journal entry sufficiently apprises Buehler of the reason the court denied his application. Furthermore, the journal entry enables this court to properly review Buehler’s appeal on the merits.

The trial court found that an exclusionary result would not determine the outcome of the case, allowing this court to review whether the trial court erred. {¶ 8} Therefore, we hold that the trial court’s decision is a final appealable order and proceed to the merits of the case. {¶ 9} The trial court did not comply with R.C. 2953.73(D), not for lack of a final appealable order, but because it failed to comply with the requirements outlined in R.C. 2953.74 and 2953.75. {¶ 10} R.C. 2953.75 provides: If an eligible inmate submits an application for DNA testing under

section 2953.73 of the Revised Code, the court shall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected from the crime scene or victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing against which a sample from the inmate can be compared and whether the parent sample of that biological material still exists at that point in time. {¶ 11} R.C. 2953.75(

B) requires the state to prepare a report regarding the availability of DNA samples and to file it with the court. We agree with Buehler that the duties described in R.C. 2953.75 are not conditioned upon the court’s granting the application, but rather are mandated upon the submission of the application. {¶ 12} Moreover, R.C. 2953.74 further restricts the trial court’s ability to accept applications for DNA testing by detailing what the trial court must consider in accepting or rejecting an inmate’s application. State v. Hayden, Montgomery App. No. 20747, 2005-Ohio-4025, 2005 WL 1846521. R.C. 2953.74(

C) provides that the court may accept the inmate’s application only if it first finds that all the following apply:

(1) The court determines pursuant to

section 2953.75 of the Revised Code that biological material was collected from the crime scene or the victim of the offense for which the inmate is an eligible inmate and is requesting the DNA testing and that the parent sample of that biological material against which a sample from the inmate can be compared still exists at that point in time.

(2) The testing authority determines all of the following pursuant to

section 2953.76 of the Revised Code regarding the parent sample of the biological material described in division (C)(1) of this section: (

a) The parent sample of the biological material so collected contains scientifically sufficient material to extract a test sample. (

b) The parent sample of the biological material so collected is not so minute or fragile as to risk destruction of the parent sample by the extraction described in division (D)(2)(

a) of this section; provided that the court may determine in its discretion, on a case-by-case basis, that, even if the parent sample of the biological material so collected is so minute or fragile as to risk destruction of the parent sample by the extraction, the application should not be rejected solely on the basis of that risk. (

c) The parent sample of the biological material so collected has not degraded or been contaminated to the extent that it has become scientifically unsuitable for testing, and the parent sample otherwise has been preserved, and remains, in a condition that is scientifically suitable for testing.

(3) The court determines that, at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing, the identity of the person who committed the offense was an issue.

(4) The court determines that one or more of the defense theories asserted by the inmate at the trial stage in the case described in division (C)(3) of this

section or in a retrial of that case in a court of this state was of such a nature that, if DNA testing is conducted and an exclusion result is obtained, the exclusion result will be outcome determinative.

(5) The court determines that, if DNA testing is conducted and an exclusion result is obtained, the results of the testing will be outcome determinative regarding that inmate.

(6) The court determines pursuant to

section 2953.76 of the Revised Code from the chain of custody of the parent sample of the biological material to be tested and of any test sample extracted from the parent sample, and from the totality of circumstances involved, that the parent sample and the extracted test sample are the same sample as collected and that there is no reason to believe that they have been out of state custody or have been tampered with or contaminated since they were collected. {¶ 13} R.C. 2953.74 governs those situations where a prior DNA test has been performed; however, it applies to all applications including those without prior testing.

Hayden, 2005-Ohio-4025, ¶ 19. Further, if any of the factors in R.C. 2953.74 are not satisfied, the court is precluded from accepting the application. Id. {¶ 14} R.C. 2953.74(C)(1) requires the court to consider whether there are any comparison samples pursuant to R.C. 2953.75. The trial court cannot make that determination if it has not received nor reviewed the state’s report. {¶ 15} This court recently addressed a similar issue in State v. Hightower, Cuyahoga App.

Nos. 84248 & 84398, 2005-Ohio-3857, 2005 WL 1793522, and found that because the trial court did not follow the mandates of R.C. 2953.76, it did,not comply with 2953.73(D). R.C. 2953.76 mandates that the court require the prosecuting attorney to prepare a report detailing the quality, quantity, chain of custody, and reliability of any pertinent DNA samples. This court held that the trial court’s denial of the defendant’s application for DNA testing was premature because the court rendered its decision prior to the state’s filing its report. Id. at ¶ 8.

Likewise, R.C. 2953.75 mandates that the court require the state to file a report regarding the availability of DNA samples prior to the court’s ruling on an inmate’s application. {¶ 16} A review of the record in this case reveals that the state did not file a report pursuant to R.C. 2953.75. In its brief in opposition to Buehler’s motion, the state indicated that it would file its report after the court made a ruling on the application. Pursuant to R.C. 2953.74(C), the court is precluded from making its determination without the state’s report. {¶ 17} Therefore, we hold that R.C. 2953.74(

C) requires the court to follow the mandates of R.C. 2953.75 prior to making its decision on an inmate’s application. Failure to do so results in a violation of R.C. 2953.73(

D) and is reversible error. {¶ 18} Accordingly, because the trial court did not adhere to- the mandates of R.C. 2953.74, 2953.75, and 2953.76, the first and second assignments of error are sustained. {¶ 19} In his third assignment of error, Buehler argues that the denial was contrary to law because if a DNA test excluded Buehler as the source of biological matter found under the victim’s fingernails, the outcome of the case would be different.

Because we hold that the trial court prematurely denied Buehler’s application, we find that this issue is not ripe for our review. {¶ 20} Therefore, we sustain the first and second assignments of error and overrule the third assignment of error. Judgment reversed and cause remanded. Blackmon, A.J., concurs. Corrigan, J., dissents. . Interestingly, Buehler filed the within appeal, which he now requests we dismiss.

We note that if we dismissed this case for lack of a final appealable order, we would be precluded from ordering that his application be reinstated or remanding the case to the trial court for further action. If this court dismisses a case for lack of a final appealable order, we can issue no further orders directing the trial court. State v. Wells (Oct. 22, 1998), Cuyahoga App. No. 73481, 1998 WL 741930. . Rodney Hedrick was Buehler’s codefendant. He pleaded guilty and testified against Buehler at trial. .

We also note that the trial court in the instant case did not order the state to file a report pursuant to R.C. 2953.76.