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State v. Richard

Court of Appeals of Ohio, Eighth District

September 12, 2013


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-215283

FOR APPELLANT Donald L. Richard, pro se Inmate #197-168 Grafton Correctional Institution

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Mary H. McGrath Assistant Prosecuting Attorney The Justice Center

BEFORE: E.T. Gallagher, J., Stewart, A.J., and Rocco, J.



(¶ 1} Defendant-appellant, Donald L. Richard ("Richard"), appeals the denial of his postconviction request for DNA testing. Finding some merit to the appeal, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

(¶ 2} In 1987, a jury convicted Richard of murder with gun specifications and having a weapon while under disability with gun specifications. The case arose from the shooting death of Neil Baldwin ("Baldwin") outside of Wanda's Bar at 4515 Clark Avenue in Cleveland, Ohio, on January 24, 1987. The court sentenced Richard to 15 years to life for murder, two three-year mandatory prison terms for gun specifications to run concurrently, and three to five years for having weapons while under disability, to be served consecutively. This court affirmed Richard's convictions on direct appeal. State v. Richard, 8th Dist. Cuyahoga No. 54228, 1988 Ohio App. LEXIS 4242 (Oct. 20, 1988).

(¶ 3} In November 2012, Richard filed an application for DNA testing. He asserted that DNA testing would prove that the sole eyewitness at trial was involved in a civil conspiracy against him and gave false testimony identifying him as the shooter. Richard also filed motions requesting court-appointed counsel and for the trial court judge to recuse himself from this case. The trial court denied both motions as well as the application for DNA testing. Richard now appeals and raises two assignments of error.

Application for DNA Testing

(¶ 4} In his first assignment of error, Richard argues the trial court erred in denying his application for DNA testing because the trial court failed to provide its reasons for denying the application in violation of R.C. 2953.73(D). He also asserts that the results of DNA testing would be "outcome determinative" as defined by R.C. 2953.71(L).

(¶ 5} We review the trial court's decision to accept or reject an eligible inmate's application for DNA testing for an abuse of discretion. R.C. 2953.74(A). State v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654 (8th Dist), ¶12. A trial court abuses its discretion where its decision is clearly erroneous and based on either a disregard for the law or a misapplication of the law to undisputed facts. Ohio Civ. Rights Comm. v. Case W. Res. Univ., 76 Ohio St.3d 168, 666 N.E.2d 1376 (1996), citing Alexander v. Mt. CarmelMed. Or., 56 Ohio St.2d 155, 383 N.E.2d 564 (1978).

(¶ 6} R.C. 2953.71 et seq. establishes a statutory scheme that allows eligible prison inmates to petition their respective trial courts to conduct DNA testing. Pursuant to R.C. 2953.74, the trial court may "accept" an eligible inmate's application for DNA testing only if certain factors are present, including a finding that "if DNA testing is conducted and an exclusion result is obtained, the results of the testing would be outcome determinative." Ayers at ¶ 28, citing R.C. 2953.74(B) and (C); and State v. Emerick, 170 Ohio App.3d 647, 650, 2007-Ohio-1334, 868 N.E.2d 742 (2d Dist.).

(¶ 7} In addition, R.C. 2953.73(D) states:

If an eligible offender submits an application for DNA testing under division (A) of this section, the court shall make the determination as to whether the application should be accepted or rejected. * * * 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 court's journal entries, 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. * * * Upon making its determination, the court shall enter a judgment and order that either ...

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