source: Caselaw Access Project

author: DeWine, J.

license: Public Domain

text:
    The State ex rel. Kerns et al. v. Simmers, Chief, et al.
    No. 2016-1011
    Supreme Court of Ohio.
    Submitted October 18, 2017 Decided January 16, 2018
    Phillip J. Campanella, for relators.
    Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Samuel C. Peterson, Deputy Solicitor, and Brian J. Becker, Assistant Attorney General, for respondents.
    Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, Christopher J. Baronzzi, and Ryan T. Steele, Columbus, urging denial of the writ for amicus curiae American Petroleum Institute.
    Vorys, Sater, Seymour & Pease, L.L.P., Gregory D. Russell, John J. Kulewicz, and Ilya Batikov, Columbus, urging denial of the writ for amici curiae Ohio Oil and Gas Association, Southeastern Ohio Oil and Gas Association, Artex Energy Group, L.L.C., Ascent Resources-Utica, L.L.C., Carrizo (Utica), L.L.C., EnerVest Operating, L.L.C., and Hess Ohio Developments, L.L.C.
    McGinnis, Lochridge & Kilgore, L.L.P., and Bruce M. Kramer, urging denial of the writ for amicus curiae Bruce M. Kramer.

      Reporter's Note: This cause was decided on January 16, 2018, but was released to the public on January 30, 2018, subsequent to the resignation of Justice William M. O'Neill, who participated in the decision.

   DeWine, J.

{¶ 1} In this original mandamus action, a group of landowners ("the landowners") seeks an order compelling the Ohio Department of Natural Resources' Division of Oil and Gas Resources Management ("the division") and its chief, Richard Simmers, to commence appropriation proceedings to compensate the landowners for their land that was included in an oil-and-gas drilling unit. The chief issued an order requiring that a reservoir of oil and gas underlying multiple tracts of land be operated as a unit to recover the oil and gas. The landowners object to the order, claiming that it amounted to a taking of their property for which they must be compensated. But before we may consider their takings claim in mandamus, we must first determine that the landowners lacked an adequate remedy at law. Because we conclude that they had an adequate remedy by way of appeal to the Franklin County Court of Common Pleas, we deny their petition for a writ of mandamus.

Background

{¶ 2} Chesapeake Exploration, L.L.C., submitted an application to the division seeking a unitization order under R.C. 1509.28. Aimed at protecting property rights and preventing waste, unitization consolidates the mineral or leasehold interests in oil and gas underlying multiple tracts of land above a common reservoir. See Amoco Prod. Co. v. Heimann , 904 F.2d 1405, 1410-1411 (10th Cir.1990). According to R.C. 1509.28(A), the owner of at least 65 percent of the land above an underground reservoir may apply for a unitization order to "increase substantially the ultimate recovery of oil and gas." Chesapeake sought to aggregate tracts of land to form an approximately 593-acre unit to drill three horizontal wells and hydraulically fracture shale to recover oil and natural gas from an underground pool.

{¶ 3} The unitization order would allow Chesapeake to drill wells that would remove oil and gas from under the landowners' property. The landowners, whose property accounts for 120 acres of the proposed unit, objected to Chesapeake's application. Over the landowners' objection, the chief issued the unitization order and allocated royalty payments and net proceeds from production to the landowners. The landowners appealed the unitization order to the Ohio Oil and Gas Commission ("the commission"), alleging that the order was "unlawful or unreasonable."

Specifically, the landowners argued that Chesapeake had failed to negotiate meaningfully with them for the lease of their property and that the order directs a taking of the landowners' property without compensation in violation of the Ohio and United States Constitutions. The commission dismissed the appeal, concluding that it did not have jurisdiction to determine the constitutionality of the order or of R.C. 1509.28.

{¶ 4} Following the commission's dismissal of their appeal, the landowners filed the instant petition for a writ of mandamus. They again claim that the unitization effects an unconstitutional taking. And they request that we issue a writ of mandamus compelling respondents to commence appropriation proceedings pursuant to R.C. Chapter 163. But we cannot issue a writ of mandamus, because the landowners have not satisfied a requirement for this extraordinary remedy: they have not shown that they lack an adequate remedy at law.

Mandamus Requirements

{¶ 5} To be entitled to a writ of mandamus, the landowners need to show (1) that they have a clear legal right to appropriation proceedings, (2) that respondents have a clear legal duty to commence the proceedings, and (3) that the landowners have no plain and adequate legal remedy. See State ex rel. Berger v. McMonagle , 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). The absence of an adequate legal remedy goes to the heart of the extraordinary nature of the writ of mandamus. Early in our writ jurisprudence, we recognized that mandamus was not to be used as an alternative to another remedy. Rather, "[t]he writ of mandamus, at common law, was a prerogative writ, introduced to prevent discord from a failure of justice, and to be used on occasions where the law had established no specific remedy." Shelby v. Hoffman , 7 Ohio St. 450, 455 (1857). Put another way, "whatever can be done without the employment of that extraordinary remedy, may not be done with it." Ex parte Rowland , 104 U.S. 604, 617, 26 L.Ed. 861 (1881). Here, a remedy has been established for the landowners-appeal to the Franklin County Common Pleas Court.

Appeals under R.C. Chapter 1509 Provide an Adequate Remedy

{¶ 6} The General Assembly has provided a statutory framework for appealing orders issued under R.C. Chapter 1509. Under R.C. 1509.36, "[a]ny person adversely affected by an order" may appeal to the commission for a review to determine if the order is unreasonable or unlawful. If it is, the commission must vacate the order and make "the order that it finds the chief should have made." Id. The statute further provides that "[t]he order of the commission is final unless vacated by the court of common pleas of Franklin [C]ounty in an appeal as provided for in section 1509.37 of the Revised Code." Id.

{¶ 7} R.C. 1509.37 in turn provides for appeals to the Franklin County Common Pleas Court on "questions of law and fact." Like the commission's review under R.C. 1509.36, the court is to review the order to determine if it was "lawful and reasonable." R.C. 1509.37.

{¶ 8} The landowners appealed the chief's order to the commission under R.C. 1509.36. And following the commission's dismissal of their appeal, they could have appealed to the Franklin County Common Pleas Court. Had the common pleas court determined, as the landowners argued to the commission, that R.C. 1509.28 is unconstitutional because it allows for the taking of property without compensation, the court would have vacated the order. No taking would have occurred. But the landowners did not file an appeal with the common pleas court. They now claim that such an appeal would not have provided them an adequate remedy.

{¶ 9} The time for an appeal to the common pleas court has passed. See R.C. 1509.37 (notice of appeal shall be filed within 30 days after receipt of notice from commission). But the failure of the landowners to timely appeal to the common pleas court does not render the remedy inadequate. "If that were the case, this criterion for a writ of mandamus would be met whenever the opportunity to pursue another adequate remedy expired. Would-be appellants could thwart the appellate process simply by ignoring it."

State ex rel. Cartmell v. Dorrian , 11 Ohio St.3d 177, 178, 464 N.E.2d 556 (1984).

{¶ 10} An adequate remedy at law is one that is "complete, beneficial, and speedy." State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs. , 83 Ohio St.3d 179, 183, 699 N.E.2d 64 (1998). The landowners argue that an appeal under R.C. 1509.37 would have been neither a complete nor a speedy remedy. Neither argument is persuasive.

A complete remedy

{¶ 11} The landowners argue that even if the common pleas court had determined that R.C. 1509.28 is unconstitutional, they would not have been afforded a complete remedy. They point to State ex rel. Arnett v. Winemiller , 80 Ohio St.3d 255, 259, 685 N.E.2d 1219 (1997), in which we concluded that a declaratory-judgment action did not provide complete remedy when "ancillary extraordinary relief in the nature of a mandatory injunction" was also needed. In Arnett , the relators sought an order compelling a clerk to certify a petition to put an ordinance on the ballot. The clerk argued that the relators had an adequate remedy-a declaratory judgment. But we noted that a declaratory judgment alone would not provide a complete remedy. Instead, mandamus was needed to compel the clerk to place the ordinance on the ballot.

{¶ 12} Unlike in Arnett , no further injunctive action would have been required had the landowners succeeded in an appeal to the common pleas court. A finding that R.C. 1509.28 was unconstitutional would have invalidated the chief's order. No taking would have occurred, so there would have been no need for a writ compelling appropriation proceedings.

{¶ 13} Nonetheless, the landowners maintain that an appeal to the common pleas court would be inadequate because R.C. 1509.37 allows only for an appeal on the record, rather than a de novo appeal. It appears that the crux of the landowners' argument on this point is that on the record that was developed thus far, the trial court could not conduct an appropriation hearing and determine compensation. But had the landowners appealed to the common pleas court, the question of the statute's constitutionality would have been put before the court. Contrary to the landowners' assertion, the review would not have been limited to whether the order was "just and reasonable." That is the standard for the chief's initial decision to order unitization. See R.C. 1509.28(A). Instead, the court would have reviewed the order to determine whether it was "lawful and reasonable." R.C. 1509.37. And if the order did not meet constitutional requirements, the court could have invalidated the order as "unlawful." We conclude that the remedy provided by an appeal under R.C. 1509.37 was complete.

A speedy remedy

{¶ 14} The landowners also argue that appeal to the common pleas court was not sufficiently speedy. They note that in State ex rel. Shemo v. Mayfield Hts. , 93 Ohio St.3d 1, 5, 752 N.E.2d 854 (2001), we determined that mandamus was appropriate because the recourse available to the relators in trial court would not be speedy enough. But Shemo's facts are quite different from those in this case. There, after we had issued a decision invalidating zoning restrictions on the relators' land, the city continued to block the relators' development plans. At the time we considered the petition for a writ of mandamus, the city's delay tactics had deprived the relators of the legal use of their property for over nine years. Given the delay, we concluded that an action in the trial court to enforce the judgment would not be sufficiently speedy. Here, the landowners point to no other delays outside those normally attributed to appeals. "Where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law." State ex rel. Willis v. Sheboy , 6 Ohio St.3d 167, 451 N.E.2d 1200 (1983), paragraph one of the syllabus. Moreover, the statute emphasizes speedy resolution. Preference to a hearing under R.C. 1509.37 is to be given "over all other civil cases irrespective of the position of the proceedings on the calendar of the court." Conclusion

{¶ 15} The extraordinary writ of mandamus will not lie when there exists an adequate remedy at law. Here, the landowners had an adequate remedy by way of an appeal to the Franklin County Court of Common Pleas. We therefore deny the writ.

Writ denied.

O'Connor, C.J., and O'Donnell, French, O'Neill, and Fischer, JJ., concur.

Kennedy, J., concurs in judgment only.


author: Fischer, J. DeWine, J., concurring in part and dissenting in part.

text:
    The State of Ohio, Appellee, v. Noling, Appellant.
    No. 2014-1377
    Supreme Court of Ohio.
    Submitted June 20, 2017 Decided March 6, 2018
    Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee.
    Ohio Innocence Project, Brain Howe, and Mark A. Godsey; and Timothy Young, Ohio Public Defender, and Carrie Wood, Assistant Public Defender, for appellant.
   Fischer, J.

{¶ 1} In this direct appeal as of right, Tyrone Noling, a capital defendant, has appealed from several rulings of the Court of Common Pleas of Portage County relating to his second application for postconviction DNA testing. For the reasons below, we affirm the lower court's judgment in part and reverse it in part.

I. RELEVANT BACKGROUND

{¶ 2} Noling was found guilty of aggravated murder and was sentenced to death for killing Bearnhardt and Cora Hartig in Portage County in 1990. The court of appeals and this court affirmed Noling's convictions and death sentence. State v. Noling , 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88 (" Noling I "). Noling also filed a petition seeking a federal writ of habeas corpus, which was denied, and he has filed numerous applications for state postconviction relief.

{¶ 3} The only issues presently before this court relate to Noling's request for postconviction DNA testing under R.C. 2953.71 through 2953.81.

A. Noling filed an application for DNA testing of a cigarette butt

{¶ 4} Noling filed his first application for DNA testing in 2008, seeking 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 and his codefendants as the source of the DNA on the cigarette butt, the trial court rejected Noling's application, because it found that the earlier DNA test was definitive. State v. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 4 (" Noling II ").

B. Noling filed a second application for DNA testing

{¶ 5} In 2010, Noling filed a second application for DNA testing of the cigarette butt, arguing that testing was warranted because newly discovered evidence pointed to other suspects in the murders. Id. at ¶ 6.

{¶ 6} First, Noling alleged that the prosecution had failed to disclose a statement made by Nathan Chesley that inculpated Chesley's foster brother, Daniel Wilson, in the Hartig murders. In an affidavit submitted in support of the application, Chesley described Wilson to police 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-this is possibly significant because another witness saw a dark blue, midsize car 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 butt. Id.

{¶ 7} Second, Noling alleged that previously undisclosed documents identified other possible suspects, including the Hartigs' insurance agent, who had defaulted on a loan from the Hartigs. Noling claimed that because of advances in DNA technology, it would now be possible to positively identify the individual whose DNA is on the cigarette butt and that DNA identification of one of the previously undisclosed suspects would be "outcome determinative," because it would identify that person as the killer. Noling II , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 6. The trial court again denied Noling's application. Id. at ¶ 7.

C. This court remanded for consideration of further testing

{¶ 8} On appeal from the denial of Noling's second application for DNA testing, we held that R.C. 2953.73(E)(1) is constitutional. Noling II at paragraph one of the syllabus. We also held that "[b]efore 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." Id. at paragraph two of the syllabus.

{¶ 9} We reversed and remanded for the trial court to "consider whether the evidence regarding Wilson or the other suspects * * * show[s] by a preponderance of the evidence that there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover." Id. at ¶ 42.

D. Noling filed a motion to amend his second application

{¶ 10} After we decided Noling II , Noling filed a motion in October 2013 to amend his second application for DNA testing. He requested testing of the shell casings collected from the Hartigs' kitchen and the ring boxes collected from their bedroom. He also requested submission of the shell casings and projectiles from the crime scene to the FBI's National Integrated Ballistic Information Network ("NIBIN") for a possible match with the missing murder weapon.

{¶ 11} The state objected to Noling's motion, arguing that the shell casings and ring boxes had been contaminated and were not suitable for DNA testing. The state pointed out that this evidence was collected and examined before exacting standards for handling evidence to preserve uncontaminated DNA for testing were in place. The state also objected to submitting the shell casings to NIBIN, because that request was unrelated to Noling's motion to amend his DNA application.

{¶ 12} The trial court granted Noling's motion to amend his application. The court overruled Noling's request to submit the shell casings to NIBIN, because no statutory procedure exists to make such a request.

E. BCI tested the cigarette butt

{¶ 13} In December 2013, the trial court ordered the Ohio Bureau of Criminal Investigation ("BCI") to collect DNA evidence from the cigarette butt and compare the DNA profile created from that evidence with the DNA profiles in the Combined DNA Index System ("CODIS"), a database of DNA profiles created by law-enforcement agencies. The comparison revealed that the DNA was from "an unknown male." BCI also reported that the DNA profile was compared with profiles in the local, state, and national levels of the CODIS database "without a hit." Additionally, BCI confirmed that Wilson's DNA profile was in a database that was searched.

{¶ 14} The state provided Noling with a one-page report. The report included a statement that "DNA profiling was performed using the polymerase chain reaction at the short tandem repeat loci" and listed the loci that were identified. The report did not include the DNA profile that was created as a result of this process but did include the statement that "[t]he DNA profile from the cutting from the cigarette butt (Item 1.1.1) is from an unknown male."

F. Noling filed a motion for a "Copy of Complete DNA Test Results"

{¶ 15} After receiving BCI's results, Noling filed a motion requesting a "Copy of Complete DNA Test Results," including laboratory notes, allelic charts, electropherograms, and quantification measurements that BCI generated. He argued that the single-page report provided to the defense reflected only the testing authority's conclusions about the DNA results and that the report did not include all the results of the testing. The state objected, citing the absence of a statutory requirement to release additional information. See R.C. 2953.81(C). The trial court denied the motion.

G. The trial court ordered BCI to determine the quantity and quality of biological material on the ring boxes and shell casings

{¶ 16} On December 19, 2013, the trial court ordered the prosecutor and BCI to prepare findings regarding the quantity and quality of the parent sample of the ring boxes and shell casings ("the December 19 order"). The court directed the "testing authority" to determine whether there is "a scientifically sufficient quantity of the parent sample to test, [and] whether the parent sample is so minute or fragile that there is a substantial risk that the parent sample could be destroyed."

H. Noling requested Cellmark as the testing authority

{¶ 17} On December 26, 2013, Noling moved the court to stay the December 19 order, and on December 30, he moved the court to amend that order to select Orchid Cellmark Laboratories ("Cellmark") as the testing authority for the ring boxes and shell casings. Noling argued that Cellmark was best equipped to answer the trial court's question regarding the quantity and quality of biological material on the evidence, because it used more advanced DNA technology. Noling also argued that advanced testing was needed to resolve the state's claim that the evidence was contaminated.

{¶ 18} At a subsequent hearing, the defense presented Dr. Rich Staub, an expert in DNA and forensic testing, to explain why Cellmark was the better choice to conduct testing on the shell casings and ring boxes. He stated that advanced DNA-testing capabilities were necessary to identify DNA on evidence handled by multiple persons. Staub testified that Cellmark used a commercial kit for DNA analysis that was more sensitive and "less susceptible to inhibitors" than those used by BCI.

{¶ 19} The state presented the affidavit of Dr. Lewis Maddox, the DNA technical leader at BCI. Maddox stated that in the 1990s, BCI laboratory, latent-print, and firearms analysts did not follow sterile procedures to minimize low-level contamination. He stated that the "use of current-or-future DNA tests on evidence which has been clearly subject to contamination, followed by the assertion that the presence of unattributable partial results are evidence of alternative subjects does not shed light on who may have touched the casings or jewelry box during the crime in 1990." He stated that he could "think of no way to rule out contamination from years of mishandling."

{¶ 20} Maddox stated that BCI does not conduct DNA testing on fired casings unless the forensic question is related to handling after firing. Maddox added that "BCI cannot upload DNA profiles for [a] CODIS search from a kit that it has not validated." He also stated that BCI uses "the Identifiler kit and cannot assume ownership of data from vendor laboratories that use other kits such as MiniFiler, Identifiler Plus, or PowerPlex 16HS for CODIS upload."

I. The trial court ordered BCI to conduct quantity and quality evaluations of the shell casings and ring boxes

{¶ 21} Noling objected to the trial court's designation of BCI as the testing authority for the quantity and quality evaluation. Noling quoted R.C. 2953.78(B) and argued that his objection required the trial court to "rescind its prior acceptance of the application for DNA testing."

{¶ 22} Noling also stated that testing of the cigarette butt was intertwined with the testing of the shell casings and ring boxes, because the profiles from all of those items would have to be compared with each other. Accordingly, Noling argued that the trial court was required to deny his own amended application in its entirety, including further testing of the cigarette butt and any remaining DNA extracts from earlier testing of the cigarette butt.

{¶ 23} On May 2, 2014, the trial court, sua sponte, vacated the December 19 order and issued an order requiring the state and BCI to prepare specific findings about the quantity and quality of the evidence for testing. In its order, the court made clear that it needed this information to determine whether Noling's application satisfied the necessary criteria for a DNA-testing application under R.C. 2953.74(C). The court explained that it still had "to determine whether to accept [Noling's] amended application for DNA testing."

J. BCI determined that the shell casings and ring boxes were contaminated

{¶ 24} On June 10, 2014, BCI reported that the shell casings and ring boxes were contaminated and "scientifically unsuitable for testing." BCI stated that "[v]isual examination" showed that case information had been written on the casings with a presumed nonsterile pen and that the ring boxes were packaged in a sealed bag in contact with each other.

{¶ 25} BCI also stated that these "touch DNA samples were processed previously by latent print and firearms disciplines in a manner that would not minimize contamination." BCI noted that the latent-print examination included "superglue fuming and dusting with non-sterile powder and brushes."

K. Noling's amended application for DNA testing was dismissed

{¶ 26} On June 27, 2014, the trial court dismissed Noling's amended application, finding that the items submitted for testing did not comply with R.C. 2953.74(C)(2)(c) because BCI had found them "contaminated" and "scientifically unsuitable for testing."

L. This court determined that Noling has an appeal as of right

{¶ 27} On August 11, 2014, Noling sought discretionary review from this court of the trial court's rulings on DNA testing following the remand we ordered in Noling II . We accepted jurisdiction to review Noling's constitutional challenge to R.C. 2953.73(E)(1), which set forth the procedure by which an offender sentenced to death could appeal the trial court's denial of an application for postconviction DNA testing. R.C. 2953.73(E)(1) provided that a capital offender could "seek leave of the supreme court to appeal the rejection to the supreme court," while R.C. 2953.73(E)(2) affords an appeal of right to the court of appeals for noncapital offenders appealing the denial of DNA-testing applications.

{¶ 28} In State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141 (" Noling III "), we held that R.C. 2953.73(E)(1) denied equal protection under the United States and Ohio Constitutions. We excised the unconstitutional provisions of the statute to create a procedure that provides an appeal of right to this court for capital offenders. Noling III at ¶ 64. We converted Noling's appeal to an appeal of right. Id.

II. ISSUES ON APPEAL

{¶ 29} Noling argues that the state was required to provide him with all documentation relating to the DNA testing of the cigarette butt-including, but not limited to, the DNA profile itself, electropherograms, and laboratory notes (proposition of law No. I). Noling also argues that the trial court should have granted his request that the shell casings be submitted to NIBIN (proposition of law No. II) and that his objections relating to BCI's selection as the testing authority and to its preliminary determination as to the scientific suitability for DNA testing of the shell casings and ring boxes should have been upheld (proposition of law Nos. III, IV, and V). We address these claims out of order.

A. The scope of the appeal

{¶ 30} As a threshold issue, we must determine if this court has jurisdiction to rule on Noling's claims. The right to appeal the trial court's decisions made pursuant to R.C. 2953.71 through 2953.81 is not unlimited. See Noling III at ¶ 63. Further, the state argues that we should not consider some of Noling's claims because they do not relate to the trial court's denial of Noling's amended application for DNA testing.

{¶ 31} R.C. 2953.72(A)(8) provides that when requesting DNA testing pursuant to R.C. 2953.71 through 2953.81, an eligible offender must submit an acknowledgment form stating that

the court of common pleas has the sole discretion subject to an appeal as described in this division to determine whether an offender is an eligible offender and whether an eligible offender's application for DNA testing satisfies the acceptance criteria described in division (A)(4) of this section and whether the application should be accepted or rejected, that if the court of common pleas rejects an eligible offender's application, the offender may appeal the rejection, and that no determination otherwise made by the court of common pleas in the exercise of its discretion regarding the eligibility of an offender or regarding postconviction DNA
testing under [ sections 2953.71 through 2953.81 of the Revised Code ] is reviewable by or appealable to any court.

(Emphasis added; language severed as unconstitutional omitted, see Noling III , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 60.)

{¶ 32} The text of R.C. 2953.72(A)(8) specifically notes that three of the trial court's discretionary decisions regarding DNA testing are appealable: (1) whether Noling is an eligible offender, (2) whether Noling's application satisfied the acceptance criteria, and (3) whether Noling's application should have been accepted or rejected. As a result, appellate courts do not have jurisdiction to hear Noling's claims that appeal discretionary decisions made by the trial court that do not relate to one of these three specifically listed exceptions. R.C. 2953.72 (A)(8) does not recognize any limits as to an applicant's right to appeal a court's failure to fulfill a mandatory duty; in fact, the division is entirely silent on that issue.

{¶ 33} Had the legislature intended to place limits on the appealability of the trial court's failure to fulfill mandatory duties, the legislature would not have included the phrase "in the exercise of its discretion " in R.C. 2953.72(A)(8). To rule that R.C. 2953.72(A)(8) limits the rights of an applicant to appeal the mandatory duties of the trial court, this court would have to delete those words from the statute. " 'It is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.' " (Emphasis omitted; brackets sic.)

Bernardini v. Conneaut Area City School Dist. Bd. of Edn. , 58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm. , 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).

{¶ 34} R.C. 2953.72(A)(9) provides that offenders must acknowledge that

an offender who participates in any phase of the mechanism contained in [ R.C. 2953.71 through 2953.81 ] * * * does not gain as a result of the participation any constitutional right to challenge, or, except as provided in division (A)(8) of this section, any right to any review or appeal of, the manner in which those provisions are carried out.

(Emphasis added.)

{¶ 35} The plain text of R.C. 2953.72(A)(9) focuses on appeals of the manner in which R.C 2953.71 through 2953.81 are carried out. "Manner" means "the mode or method in which something is done or happens." Webster's Third New International Dictionary 1376 (2002). Obviously, not carrying out a task is not a mode or method of carrying out that task. Thus, giving effect to the plain text of the statute, R.C. 2953.72(A)(9) recognizes limits to the review on appeal of the manner in which a provision has been carried out but does not denote any limits to the review on appeal of whether a provision has been carried out.

{¶ 36} To rule otherwise would violate the canon of statutory construction that "[n]o part [of a statute] should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative." State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn. , 95 Ohio St. 367, 373, 116 N.E. 516 (1917) ; see also In re Foreclosure of Liens for Delinquent Land Taxes v. Parcels of Land Encumbered with Delinquent Tax Liens , 140 Ohio St.3d 346, 2014-Ohio-3656, 18 N.E.3d 1151, ¶ 12. To decide that this court has jurisdiction to rule on only the three discretionary appealable issues listed in R.C. 2953.72(A)(8) would render R.C. 2953.72(A)(9)'s language "the manner in which those provisions are carried out" superfluous. In fact, such a ruling would essentially delete that language altogether. As noted above, the court should not delete words from a statute; it should give effect to all the words used. Bernardini , 58 Ohio St.2d at 4, 387 N.E.2d 1222, citing Columbus-Suburban Coach Lines , 20 Ohio St.2d at 127, 254 N.E.2d 8.

{¶ 37} Examining the limits explained in R.C. 2953.72(A)(8) and (A)(9) in conjunction, it is clear that an appellate court has jurisdiction over a claim raised by an offender who requests DNA testing if the claim challenges any of the three discretionary decisions specifically listed as appealable in R.C. 2953.72(A)(8) or if the claim is that the trial court failed to fulfill a mandatory duty. Appellate courts do not have jurisdiction over claims that the trial court made incorrect discretionary decisions-other than the three specifically listed appealable issues-or claims asserting that the trial court performed a mandatory duty but that the manner in which that duty was performed was improper.

{¶ 38} As noted above, in Noling III , we held that R.C. 2953.73(E)(1) denied equal protection under the United States and Ohio Constitutions as it denied capital defendants a right of appeal conferred upon noncapital defendants when the defendant's application for DNA testing was rejected. 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 64. We excised the unconstitutional provisions of the statute, thus providing an appeal as of right to this court for capital offenders. Id. We also noted that R.C. 2953.72(A) is meant to provide a summary of the statutory scheme and excised the same offending language from R.C. 2953.72(A)(8) that we excised from R.C. 2953.73(E)(1). Noling III at ¶ 60.

{¶ 39} In Noling III , the majority held that R.C. 2953.72(A)(8) and (A)(9) should not be struck in their entirety. The court reasoned that doing so would broadly expand the appellate rights provided to petitioners by the statutes. Noling III at ¶ 63. Here, we do not expand the appellate rights provided by the statutes as warned against in Noling III . Instead, we interpret the statutes to determine which appellate rights applicants are entitled to under the statutory scheme.

B. Request for NIBIN testing of the shell casings (proposition of law No. II)

{¶ 40} Noling argues that the trial court erred by denying the defense's request to send the shell casings to NIBIN for testing.

{¶ 41} Noling's motion to amend his second application sought submission of the shell casings and bullets to NIBIN for a possible match with the missing murder weapon. The state objected on grounds that the request was unrelated to Noling's motion to amend his application for DNA testing. The trial court denied the request, because "there is no Ohio statutory procedure to submit the shell casings to NIBIN for comparison."

{¶ 42} There is no provision in the DNA-testing statutes-or in any other statute-that would require the court to order that the shell casings be tested by NIBIN. Thus, the trial court's decision whether to order the testing was, at most, discretionary; ordering NIBIN testing was certainly not a mandatory duty. That discretionary decision is not included as one of the three discretionary decisions that are appealable pursuant to R.C. 2953.72(A)(8). This court does not have jurisdiction to review the claim, and we dismiss proposition of law No. II accordingly.

C. Selection of the testing authority (proposition of law No. III)

{¶ 43} Noling argues that the trial court erred in directing BCI to examine the shell casings and ring boxes after he objected to BCI as the testing authority pursuant to R.C. 2953.78(B).

1. Background

{¶ 44} Following Noling's request to test the shell casings and ring boxes, the trial court issued the December 19 order instructing the prosecutor and BCI to prepare findings regarding the "the quantity and quality of the parent sample of biological material, found at the crime scene." See R.C. 2953.76 (after an application for DNA testing is submitted, prosecutor shall consult with the testing authority and prepare findings regarding the quantity and quality of the parent sample requested for testing).

{¶ 45} Noling moved to stay the trial court's order, arguing that Cellmark, not BCI, should be designated as the testing authority. Noling argued that BCI lacked "the most advanced scientific technologies capable of providing this Court with the best quantity and quality of information."

{¶ 46} Following a hearing, Noling invoked R.C. 2953.78(B) and requested that the trial court "withdraw its decision to grant DNA testing of the shell casings and the ring boxes and enter an order denying [his] Amended DNA Application in its entirety."

{¶ 47} R.C. 2953.78 specifies:

(A) If an eligible offender submits an application for DNA testing under [ R.C. 2953.73 ] and if the application is accepted and DNA testing is to be performed , the court shall select the testing authority to be used for the testing. A court shall not select or use a testing authority for DNA testing unless the attorney general approves or designates the testing authority pursuant to division (C) of this section and unless the testing authority satisfies the criteria set forth in [ R.C. 2953.80 ].
(B) If a court selects a testing authority pursuant to division (A) of this section and the eligible offender for whom the test is to be performed objects to the use of the selected testing authority, the court shall rescind its prior acceptance of the application for DNA testing for the offender and deny the application .
* * *
(D) The attorney general's approval or designation of testing authorities * * * do[es] not afford an offender any right to subsequently challenge the approval, designation, selection, or use, and an offender may not appeal to any court the approval, designation, selection, or use of a testing authority.

(Emphasis added.)

{¶ 48} The state contended that Noling's request was premature, because the trial court had not accepted the amended application for DNA testing.

{¶ 49} Thereafter, the trial court vacated the December 19 order and issued the following order:

In order to determine whether to accept the Defendant's amended application for DNA testing, the Court must determine the six criteria set forth in [R.C.] 2953.74(C). To determine these items it's * * * ordered, pursuant to [R.C.] 2953.76, that the Prosecuting Attorney and Bureau of Criminal Identification shall prepare findings regarding:
1. The quantity and quality of the parent sample of biological material found at the crime scene in this case;
2. Whether there is a scientifically sufficient quantity of the parent sample to test;
3. Whether the parent sample is so minute or fragile that there's a substantial risk that the parent sample could be destroyed;
4. Whether the parent sample has been degraded or contaminated to the extent that it has become scientifically unsuitable for testing.
It is further ordered that no DNA sample is to be consumed.

(Emphasis added.) Subsequently, BCI reported that it "determined that the samples * * * are contaminated to the extent that they have become scientifically unsuitable for testing." The trial court stated that Noling's amended application could not be accepted and dismissed it.

2. Analysis

{¶ 50} Noling argues that the trial court erred by ordering BCI to conduct testing on the shell casings and ring boxes after he objected to BCI as the testing authority. In response, the state argues that R.C. 2953.78(D) does not allow Noling to appeal the trial court's selection of BCI as the testing authority. However, R.C. 2953.78(D) is inapplicable because it applies only to the selection of the testing authority after an offender's DNA application has been accepted, and has no effect on the process for determining whether the application should be granted.

{¶ 51} After Noling submitted his amended application, R.C. 2953.76 instructed the trial court to require the prosecuting attorney to consult with a testing authority to make the preliminary determination regarding the quantity and quality of biological material on the shell casings and ring boxes. And under R.C. 2953.74(C)(2), the trial court could accept Noling's application only if the testing authority made certain findings as to the quantity and quality of the sample to be tested (e.g., that there was scientifically sufficient material to extract, that the sample was not so minute or fragile as to risk destruction of the sample, and that the sample was not degraded or contaminated).

{¶ 52} Nothing in the statutory scheme limited the trial court's authority to appoint BCI to make those preliminary findings. Only after these preliminary findings have been made and after a trial court has accepted an application for DNA testing can an applicant object to the testing authority selected to complete that testing and require the court to rescind its prior acceptance of the application. See R.C. 2953.78(B).

{¶ 53} Noling asserts that the trial court decided that DNA testing was necessary and ordered the process to begin. This assertion is not supported by the record: the trial court issued an order dismissing Noling's amended application on June 27, 2014.

{¶ 54} Under R.C. 2953.76, the court had a mandatory duty to require the prosecuting attorney to consult with the testing authority to determine if the sample could be tested. Noling does not argue that the court failed to fulfill that duty. Noling does claim that the trial court erred in not rescinding its order requiring BCI to examine the shell casings and ring boxes to determine the quantity and quality of biological material available after he objected to BCI as the testing authority. The trial court did not have a mandatory duty to rescind its order; at best, the trial court had the discretion to rescind the order. Because Noling's claim challenges a discretionary decision by the trial court and that discretionary decision is not one of the three specifically listed discretionary decisions that can be appealed under R.C. 2953.72(A)(8), this court does not have jurisdiction to rule on Noling's third proposition of law, and the claim is dismissed accordingly.

D. Reasons for selection of the testing authority (proposition of law No. V)

{¶ 55} Noling argues that because he contested the selection of BCI as the testing authority, the trial court was required to articulate its reasons for selecting BCI. Noling contends that the trial court's findings should have included the following factors: (1) the technology available at the laboratory, (2) the length of time the technology has been in use at the laboratory, (3) whether the laboratory works on postconviction or cold cases, (4) the laboratory's experience obtaining results from the type of evidence involved in this case, and (5) the laboratory's experience with the use of a particular type of DNA technology.

{¶ 56} Nothing in the DNA-testing statutes requires the trial court to articulate the basis for its selection on the record. The statutes "vest considerable and wide latitude with the judiciary" upon the filing of an application for DNA testing. State v. Buehler , 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, ¶ 31. Thus, the trial court did not have a mandatory duty to justify its selection of the testing authority and the court's choice is not an appealable discretionary decision. Noling's fifth proposition of law presents an unappealable claim, and the claim is dismissed accordingly.

E. Testing authority's determination that shell casings and ring boxes were contaminated (proposition of law No. IV)

{¶ 57} Noling argues that BCI failed to conduct scientific testing and review the chain of custody before determining that the shell casings and ring boxes were contaminated and unsuitable for further DNA testing. This proposition of law is best read as a challenge to the court's rejection of Noling's application for failure to satisfy the acceptance criteria of R.C. 2953.72(A)(4) and 2953.74(C)(2)(c). R.C. 2953.72(A)(8) specifically identifies this challenge to the trial court's discretionary decision as appealable.

1. Background

{¶ 58} As discussed above in relation to proposition of law No. III, the trial court ordered BCI to examine the shell casings and ring boxes and prepare findings regarding the suitability of the evidence for testing.

{¶ 59} Subsequently, BCI reported that "[w]ith regards to [R.C.] 2953.76, BCI has determined that the samples * * * are contaminated to the extent that they have become scientifically unsuitable for testing." BCI stated:

Visual examination of the [shell casings and ring boxes] showed that case information had been written on the small surface area on the individual casings with a presumed non-sterile pen resulting in a potential source of common DNA contamination on multiple casings. The ring boxes are packaged in a sealed plastic bag in contact with each other. These touch DNA samples were processed previously by latent print and firearms disciplines in a manner that would not minimize contamination. In the latent print section at BCI, superglue fuming and dusting with non-sterile powder and brushes was performed. Non-sterile cotton gloves would have been used to place the casings and ring boxes into the chamber prior to superglue adhesion which is another source of potential contamination * * *. * * * During firearms analysis of the casings after latent print processing, each casing would be handled by the analyst without wearing gloves and held in place on a microscope with non-sterile clay used across many cases.

2. Analysis

{¶ 60} Noling argues that BCI was required to conduct scientific testing of the shell casings and ring boxes before determining that they were contaminated and that BCI's visual examination was inadequate.

{¶ 61} R.C. 2953.76 describes the testing requirements regarding the "quantity and quality of the parent sample of the biological material collected from the crime scene * * * for which the offender * * * is requesting the DNA testing and that is to be tested." R.C. 2953.76(A) and (B) describe the manner of testing that must be performed:

(A) The testing authority shall determine whether there is a scientifically sufficient quantity of the parent sample to test and whether the parent sample is so minute or fragile that there is a substantial risk that the parent sample could be destroyed in testing. The testing authority may determine that there is not a sufficient quantity to test in order to preserve the state's ability to present in the future the original evidence presented at trial, if another trial is required. * * *
(B) The testing authority shall determine whether the parent sample has degraded or been contaminated to the extent that it has become scientifically unsuitable for testing and whether the parent sample otherwise has been preserved, and remains, in a condition that is suitable for testing. Upon making its determination under this division, the testing authority shall prepare a written document that contains its determination and the reasoning and rationale for that determination * * *.

{¶ 62} Nothing in R.C. 2953.76(A) and (B) dictates the manner in which the testing authority must determine whether the material is of a sufficient quantity and quality to permit further testing. The appropriate method for making that determination is left to the testing authority. Thus, it was sufficient for BCI to use a visual examination to determine that the shell casings and ring boxes were contaminated and not suitable for further DNA testing. Additionally, BCI's determinations were well supported: the shell casings and ring boxes had been examined previously by latent-print and firearms examiners who had not taken precautions to minimize contamination. Accordingly, we reject Noling's claim that the trial court should have ordered BCI to conduct a scientific examination of the shell casings and ring boxes. Based on the foregoing, we reject proposition of law No. IV.

F. Disclosure of "the results of the [DNA] testing" (proposition of law No. I)

{¶ 63} Noling argues that the trial court failed to provide him with "the results of the testing" as required under R.C. 2953.81(C). Noling urges us to broadly interpret the meaning of "the results of the testing" such that he should be provided all documentation relating to the DNA testing of the cigarette butt.

1. Appealability of the issue

{¶ 64} R.C. 2953.81(C) provides that "[t]he court or the testing authority shall provide a copy of the results of the testing to the prosecuting attorney, the attorney general, and the subject offender." (Emphasis added.) " 'Shall' means must." Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 13, citing Application of Braden , 105 Ohio App. 285, 286, 148 N.E.2d 83 (1st Dist.1957). "[W]e repeatedly have recognized that use of the term 'shall' in a statute connotes a mandatory obligation unless other language evidences a clear and unequivocal intent to the contrary." Id. at ¶ 13, citing State ex rel. Cincinnati Enquirer v. Lyons , 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28.

{¶ 65} There is no indication that the word "shall" in R.C. 2953.81(C) means anything other than "must." The use of the word "shall" demonstrates, therefore, that the subject offender is entitled to "the results of the testing" and that the trial court does not have discretion to deny the subject offender those results. Thus, any limit recognized in R.C. 2953.72(A)(8) on Noling's right to appeal the trial court's discretionary rulings has no effect on his right to appeal if he is denied "the results of the testing." Moreover, the language of R.C. 2953.72(A)(9) does not apply, because Noling's claim is that the court failed to provide him "the results of the testing" as required by R.C. 2953.81(C), not that the manner in which the court provided him the results was improper. Had Noling argued, for example, that he was provided "the results" but that he wanted them provided in a different format, the language of R.C. 2953.72(A)(9) may come in to play. As Noling is not appealing the manner in which the provision was carried out, but whether the provision was carried out, this court has jurisdiction to hear the claim.

2. The meaning of "the results of the testing"

{¶ 66} Under R.C. 2953.81(C), Noling must be provided the results of the DNA testing ordered by the trial court. The state provided Noling a "Laboratory Report" that included a "Results" section that informed Noling that the DNA sample on the cigarette butt came from an unknown male. Noling argues that this is insufficient to meet the statutory requirement and requests many additional pieces of information. Noling is correct but only to the limited extent that he is entitled to just one of the many additional pieces of information he requests.

{¶ 67} When read in pari materia, the statutory scheme makes clear that R.C. 2953.81(C) mandates that Noling must be provided only the DNA profile that was created by testing the DNA sample from the cigarette butt. Under R.C. 2953.74(E), Noling must be provided the identity of any individual identified as the source of the DNA after "comparing the test results" to the DNA profiles in CODIS. It is illogical to read R.C. 2953.81(C) as requiring the state merely to identify any individuals whose DNA profiles matched the sample, as the state argues, because such a reading would require us to conclude that the state must provide Noling with the same information twice. R.C. 2953.74(E) provides that "the results of DNA testing" must be compared to the DNA profiles in CODIS. The only data that can be compared to any DNA profile in CODIS is another DNA profile. R.C. 2953.71 through 2953.81 use the phrases "the results of DNA testing" or "results of the testing" multiple times. Reading R.C. 2953.81(C) as the state suggests would require substantially different definitions of the phrases "the results of DNA testing" and "the results of the testing" for different provisions in the same statutory scheme.

a. Background

{¶ 68} R.C. 2953.81 provides:

If an eligible offender submits an application for DNA testing under section 2953.73 of the Revised Code and if DNA testing is performed based on that application, upon completion of the testing, all of the following apply:
* * *
(C) The court or the testing authority shall provide a copy of the results of the testing to the prosecuting attorney, the attorney general, and the subject offender.
* * *
(E) The testing authority shall provide a copy of the results of the testing to the court of common pleas that decided the DNA application.

(Emphasis added.)

{¶ 69} BCI provided Noling with a copy of its "Laboratory Report." The laboratory report did not include the DNA profile that was created as a result of the testing process. The "results" section of that report included the statement that "DNA profiling was performed using the polymerase chain reaction at the short tandem repeat loci" and listed the identified loci. The stated conclusion was that "[t]he DNA profile from the cutting from the cigarette butt (Item 1.1.1.) is from an unknown male." This conclusion informs Noling that there were no hits when the DNA profile created from the sample was run through CODIS.

{¶ 70} Noling argues that R.C. 2953.81(C)'s use of the phrase "the results of the testing" means that he is entitled to more information than was included in the conclusory laboratory report that BCI provided him. He asserts that "the results of the testing" necessarily include everything that is actually obtained by calculation and investigation during the DNA-testing process, including the DNA profile itself, electropherograms, and laboratory notes. In response, the state argues that the court should apply the plain meaning of the word "results" and offers a dictionary definition: "[T]hat which results, outcome, consequence, effect," citing Webster's Encyclopedic Unabridged Dictionary 1223 (1996). Based upon this, the state argues that Noling received everything to which he was entitled under the statute and that his request for further information should be denied.

b. Analysis

{¶ 71} The phrase "the results of the testing" is not defined in R.C. 2953.81 or elsewhere within the statutes addressing applications for DNA testing. When a statute is unclear and relates to the same subject matter as another statute, we construe them in pari materia "to discover and carry out legislative intent." Sheet Metal Workers' Internatl. Assn., Local Union No. 33 v. Gene's Refrig., Heating & Air Conditioning, Inc. , 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 38, citing State ex rel. Ellis Super Valu, Inc. v. Indus. Comm. , 115 Ohio St.3d 224, 2007-Ohio-4920, 874 N.E.2d 780, ¶ 13. Construing R.C. 2953.71 through 2953.81 in pari materia provides a clear meaning for the phrase "the results of the testing."

i. "Results of the testing" means the same as "results of DNA testing"

{¶ 72} R.C. 2953.74(E) provides:

If an eligible offender submits an application for DNA testing under section 2953.73 of the Revised Code and the court accepts the application, the eligible offender may request the court to order, or the court on its own initiative may order, the bureau of criminal identification and investigation to compare the results of DNA testing of biological material from an unidentified person other than the offender that was obtained from the crime scene or from a victim of the offense for which the offender has been approved for DNA testing to the combined DNA index system maintained by the federal bureau of investigation.
If the bureau, upon comparing the test results to the combined DNA index system, determines the identity of the person who is the contributor of the biological material, the bureau shall provide that information to the court that accepted the application, the offender, and the prosecuting attorney.
If the bureau, upon comparing the test results to the combined DNA index system, is unable to determine the identity of the person who is the contributor of the biological material, the bureau may compare the test results to other previously obtained and acceptable DNA test results of any person whose identity is known other than the eligible offender. If the bureau, upon comparing the test results to the DNA test results of any person whose identity is known, determines that the person whose identity is known is the contributor of the biological material, the bureau shall provide that information to the court that accepted the application, the offender, and the prosecuting attorney. The offender or the state may use the information for any lawful purpose.

(Emphasis added.)

{¶ 73} R.C. 2953.74(E) demonstrates that the terms "DNA test" and "the test" appear in conjunction and are used interchangeably in R.C. 2953.71 through 2953.81. Indeed, other statutes within the DNA-testing scheme also use "the test" or "the testing" to refer to a DNA test. See, e.g. , R.C. 2953.72(A) ("Any eligible offender who wishes to request DNA testing under sections 2953.71 to 2953.81 of the Revised Code shall submit an application for the testing to the court of common pleas * * *" [emphasis added] ). Most importantly, the statute at issue, R.C. 2953.81, uses both terms to refer to the same test: "If an eligible offender submits an application for DNA testing under section 2953.73 of the Revised Code and if DNA testing is performed based on that application, upon completion of the testing , all of the following apply * * *." (Emphasis added.) Therefore, the two phrases, "results of DNA testing" and "results of the testing," refer to the same test results.

{¶ 74} Arguments that the two slightly different phrases have different meanings are unpersuasive; the presumption of consistent usage "readily yields" to context. See Environmental Defense v. Duke Energy Corp. , 549 U.S. 561, 574, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007). Reading R.C. 2953.71 through 2953.81 in context supports our conclusion that the two phrases refer to the same test "results."

ii. A statute should not be read in a way that makes provisions superfluous

{¶ 75} No part of a statute should be treated as superfluous. In re Foreclosure of Liens for Delinquent Land Taxes , 140 Ohio St.3d 346, 2014-Ohio-3656, 18 N.E.3d 1151, at ¶ 12. We also must avoid "absurd results" when construing a statute. State ex rel. Asti v. Dept. of Youth Servs. , 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 28.

{¶ 76} R.C. 2953.81(E) states that "[t]he testing authority shall provide a copy of the results of the testing to the court of common pleas that decided the DNA application." R.C. 2953.81(C) states that "[t]he court or the testing authority shall provide a copy of the results of the testing to the prosecuting attorney, the attorney general, and the subject offender."

{¶ 77} R.C. 2953.74(E) separately states that if the comparison of the test results with the profiles in CODIS yields the identity of the contributor of the sample DNA, "the bureau shall provide [the identity of the contributor] to the court that accepted the application, the offender, and the prosecuting attorney." (Because R.C. 2953.74(E) mandates that the identity of any individual in CODIS whose DNA matches the sample be provided to the court, the offender, and the prosecutor, if BCI does not provide the identity of a CODIS match, the profile from the DNA sample logically must be that of an unknown person.) {¶ 78} R.C. 2953.74(E) would be superfluous if R.C. 2953.81's references to providing "the results of the testing" mean providing only a notification of whether the DNA profile from the sample matched a profile in CODIS; two separate statutory provisions would mandate production of the same information. Equally, it is an "absurd result" to read R.C. 2953.74(E) to mandate that the court and the offender be provided the identity of any individual whose DNA profile in CODIS matched the DNA sample's profile when that information was already necessarily provided under R.C. 2953.81(C) and (E).

iii. R.C. 2953.74(E) is workable only if "the results of DNA testing" can be compared to the DNA profiles maintained in CODIS

{¶ 79} R.C. 2953.74(E) provides that "the results of DNA testing" will be run through CODIS for purposes of a comparison. The only "results" that can be compared to the DNA profiles in CODIS are other DNA profiles. In other words, the specific text of R.C. 2953.74(E) compels the conclusion that "the results of DNA testing" means the DNA profile created by the testing process for purposes of running a comparison in CODIS. Any other definition of "the results of DNA testing" renders R.C. 2953.74(E) unworkable.

iv. Each section of R.C 2953.71 through 2953.81 is workable if "results of the testing" means the DNA profile created for purposes of a comparison with CODIS

{¶ 80} Phrases such as "results of DNA testing" and "results of the testing" are used throughout R.C. 2953.71 through 2953.81. Each use of such a term is consistent with reading the phrase "the results of the testing" to mean the DNA profile created for purposes of a comparison with CODIS. See, e.g. , R.C. 2953.71(G), (I), (J), and (L) ; R.C. 2953.72(A)(5), (6), and (9) ; R.C. 2953.74(A), (B)(1), (C)(4), (C)(5), and (E) ; R.C. 2953.81(A) through (F).

c. Conclusion regarding proposition of law No. I

{¶ 81} For these reasons, we reject Noling's argument that R.C. 2953.81(C) entitles him to all of the additional documentation that he has requested. Similarly, we reject the state's argument that R.C. 2953.81(C) requires that the trial court or BCI provide Noling only with the conclusory information that the sample came from an "unknown male." Reading the statutory scheme in pari materia, R.C. 2953.81(C) mandates that the trial court or BCI provide Noling with only a copy of the DNA profile created using the DNA sample taken from the cigarette butt. Thus, and only to this limited extent, we agree with the arguments raised in Noling's proposition of law No. I and hold that R.C. 2953.81(C) mandates that a subject offender be provided only the DNA profile created for the purpose of a comparison with the DNA profiles in CODIS. To the extent that Noling seeks other additional documents, proposition of law No. I is rejected.

III. CONCLUSION

{¶ 82} The judgment of the trial court is affirmed in part and reversed in part. We remand this case to the trial court for it to ensure that Noling is provided only the DNA profile created by BCI for purposes of running a comparison with CODIS, that is, to ensure that Noling is provided "the results of the testing" under R.C. 2953.81(C). Aside from this one limited exception, we affirm the judgment of the trial court.

Judgment affirmed in part and reversed in part, and cause remanded.

O'Connor, C.J., and O'Donnell, French, and Klatt, JJ., concur.

DeWine, J., concurs in part and dissents in part, with an opinion joined by Kennedy, J.

William A. Klatt, J., of the Tenth District Court of Appeals, sitting for O'Neill, J.

DeWine, J., concurring in part and dissenting in part.

{¶ 83} I write separately because I disagree with the majority's decision that Tyrone Noling may appeal the trial court's determination of what constitutes "the results" of the DNA testing.

{¶ 84} This case involves a legislatively created procedure under which an offender may obtain postconviction DNA testing by order of the trial court in limited circumstances. Because of the special nature of this procedure, there is no general grant of appellate jurisdiction to challenge a trial court's determination. Rather, the only right to appeal is that which is set forth specifically in the statute at issue, R.C. 2953.72(A)(8). That provision allows an offender to appeal only certain trial-court determinations. Noling claims the trial court provided him with testing results that were more narrow in scope than those R.C. 2953.81(C) entitles him to, but the trial court's decision about what constitutes "the results of the testing" does not fall within the limited number of trial-court determinations from which the legislature has authorized an appeal. As a consequence, this court lacks jurisdiction to consider Noling's appeal on that issue.

{¶ 85} I therefore dissent from the majority's holding ordering the trial court to provide Noling with additional testing results. I concur in the majority's disposition of the other issues raised by Noling.

The right to appeal is limited by R.C. 2953.72(A)(8) and (A)(9)

{¶ 86} "The right to file a postconviction petition is a statutory right, not a constitutional right," State v. Broom , 146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, and "a petitioner receives no more rights than those granted by the statute," State v. Calhoun , 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Any right of appeal must emanate from the statutory scheme created by the General Assembly. The specific trial-court determinations subject to appeal are set forth in R.C. 2953.72(A)(8). That statute provides that

the court of common pleas has the sole discretion subject to an appeal as described in this division to determine whether an offender is an eligible offender and whether an eligible offender's application for DNA testing satisfies the acceptance criteria described in division (A)(4) of this section and whether the application should be accepted or rejected , that if the court of common pleas rejects an eligible offender's application, the offender may seek leave of the supreme court toappeal the rejection to that court if the offender was sentenced to death for the offense for which the offender is requesting the DNA testing and, if the offender was not sentenced to death for that offense, may appeal the rejection to the court of appeals, and that no determination otherwise made by the court of common pleas in the exercise of its discretion regarding the eligibility of an offender or regarding postconviction DNA testing under [ R.C. 2953.71 to 2953.81 ] is reviewable by or appealable to any court .

(Emphasis added; struck-through portions excised from the statute by this court in State v. Noling , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 60 (" Noling III ").)

{¶ 87} R.C. 2953.72(A)(9) makes clear that the grant of the right to appeal comes exclusively from R.C. 2953.72(A)(8) :

[A]n offender who participates in any phase of the mechanism contained in [ R.C. 2953.71 through 2953.81 ] * * * does not gain as a result of the participation any constitutional right to challenge, or, except as provided in division (A)(8) of this section , any right to any review or appeal of, the manner in which those provisions are carried out.

(Emphasis added.)

{¶ 88} Thus, R.C. 2953.72(A)(8) grants to the common pleas court the "sole discretion" to make three determinations-(1) "whether an offender is an eligible offender," (2) whether an application "satisfies the acceptance criteria," and (3) "whether the application should be accepted or rejected"-and makes those determinations "subject to an appeal as described in this division."

{¶ 89} The right of appeal is "described" later in R.C. 2953.72(A)(8) ; in setting forth what is subject to appeal, R.C. 2953.72(A)(8) states that "if the court of common pleas rejects an eligible offender's application, the offender may * * * appeal the rejection." Thus, if the offender's application is rejected, he may appeal the three discretionary determinations set forth above. Those are the only determinations subject to appeal, and they can be appealed only when the application is rejected.

{¶ 90} After setting forth what may be appealed, the statute sets forth a further limitation on the grant: "[N]o determination otherwise made by the court of common pleas in the exercise of its discretion regarding the eligibility of an offender or regarding postconviction DNA testing under those provisions is reviewable by or appealable to any court." Id. The statute thus ordains that determinations other than those that result in a rejection of an offender's application are not appealable. In other words, if in the exercise of its discretion, the court determines that the offender is an "eligible offender," that the offender's application meets the acceptance criteria, or that the application should be accepted, the state has no right of appeal regarding those determinations. This construction is consistent with our recognition in Noling III , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 56, that "the legislature clearly intended to eliminate the state's appellate right when it drafted R.C. 2953.73 and gave appellate rights only to offenders." (We held in Noling III that R.C. 2953.73(E) grants the appellant the right to appeal the court's rejection of an application pursuant to its determination under R.C. 2953.73(D). Noling III at ¶ 64.)

The majority minimizes the limited grant of appealability

{¶ 91} Here is where the majority goes wrong: it minimizes the grant of appealability (the identification of the only three determinations that may be appealed) and skips right to the limitation. It takes the limitation's description of what's not appealable-"no determination otherwise made by the court of common pleas in the exercise of its discretion regarding the eligibility of an offender or regarding postconviction DNA testing"-and transforms that language into the grant of additional appealable issues. That's not how the statute works.

{¶ 92} In the majority's view, the words "in the exercise of its discretion" are controlling. So it reads the statute as allowing the appeal of any decision of the common pleas court regarding DNA testing that does not call for an exercise of discretion. That is, an applicant may appeal anything that involves the failure of the trial court to fulfill a mandatory duty. But the statute doesn't say that. Read in its entirety, the statute makes clear that the only determinations that are appealable are the three enumerated in R.C. 2953.72(A)(8) and that those determinations are appealable only when they result in the rejection of an application. A determination "otherwise made by the court," i.e., other than rejection, is not appealable even when it involves the court's discretion.

{¶ 93} The fact that the statute illustrates what is not appealable does not expand what is appealable beyond the three enumerated issues. Saying that something is not appealable does not, in effect, make everything else appealable. But that is how the majority reads the statute.

{¶ 94} The majority makes the same mistake construing R.C. 2953.72(A)(9)'s admonition that "except as provided in division (A)(8)," an offender has no right to appeal the "the manner" in which the provisions of R.C. 2953.71 through 2953.81 are carried out. Under a plain reading, the sentence simply serves as a reiteration of the statutory scheme's limits on appealability: there is no right to appeal the manner in which a provision is carried out other than regarding the three appealable determinations identified in R.C. 2953.72(A)(8). The majority, however, twists this limitation into a license to appeal anything that does not have to do with the manner in which a provision is carried out. What the majority fails to explain is how saying someone has no right to appeal one thing can be read as a grant of the right to appeal everything else. Indeed, the majority is unable to point to any provision in the statutory scheme that states an offender may appeal the court's failure to perform a mandatory duty. That's because the statute provides no such right of appeal.

Mandamus provides eligible offenders an avenue of relief from a court's failure to perform mandatory duties

{¶ 95} This is not to say that an offender would have no relief in cases in which the court refused to perform a statutory duty. "[A] writ of mandamus may require an inferior tribunal to exercise its judgment or to proceed to the discharge of its function." State ex rel. Ney v. Niehaus , 33 Ohio St.3d 118, 119, 515 N.E.2d 914 (1987) ; accord R.C. 2731.03. Thus, if a common pleas court failed to exercise its judgment or discharge a function under the statutory scheme, an eligible offender could seek relief in mandamus.

Noling III recognizes the limited scope of review

{¶ 96} Remarkably, the majority's broad reading of R.C. 2953.72(A)(8) and (A)(9) is directly contrary to what this court said just over a year ago in Noling III . There, rejecting the dissent's assertion that R.C. 2953.72(A)(8) and (A)(9) should be severed from the statutory scheme, the majority wrote:

R.C. 2953.72(A)(8) and (A)(9) closely circumscribe the issues that an offender may raise on appeal. The dissent, by excising (A)(8) and (A)(9), and therefore implicitly seating the appellate right in R.C. 2505.03, would broadly expand the rights of offenders to appeal any final order or judgment of the court in relation to their application for postconviction DNA testing and to seek review of any element of the decision with which the offender disagrees. The legislature plainly intended, through R.C. 2953.72(A)(8) and (A)(9), to limit what findings a court could review on appeal. The dissent's remedy would frustrate that intent, violating [this court's severance test set forth in] Geiger [v. Geiger , 117 Ohio St. 451, 160 N.E. 28 (1927) ] and the dissent's own admonition.

Noling III , 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, at ¶ 63.

{¶ 97} Today, the majority does what this court said it would not do in Noling III . It ignores what "[t]he legislature plainly intended" and "broadly expand[s]" the ability of an offender "to seek review of any element of the decision with which the offender disagrees," id. , as long as it does not involve the exercise of the court's discretion.

The resolution of this appeal

{¶ 98} A proper construction of the statutes makes this case an easy one. I concur with the majority's conclusion that Noling's second, third, and fifth propositions of law all assert issues that may not be appealed. That is, they do not concern (1) whether Noling is an eligible offender, (2) whether Noling's application satisfied the acceptance criteria, or (3) whether Noling's application should have been accepted or rejected. I would hold that Noling's first proposition likewise does not fit into those narrow categories of appealable issues and would dismiss that proposition of law also.

{¶ 99} Finally, I concur in the majority's judgment with respect to Noling's fourth proposition of law. Unlike the issues raised in his other propositions, the determinations regarding whether his application failed to satisfy the acceptance criteria and whether his application should have been rejected are both appealable under R.C. 2953.72(A)(8). Like the majority, I would affirm the judgment of the court of appeals on those issues.

Kennedy, J., concurs in the foregoing opinion.


author: Per Curiam.

text:
    The STATE EX REL. PENSKE TRUCK LEASING COMPANY, L.P., Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellant;
    Fizer et al., Appellees.
    No. 2017-0636
    Supreme Court of Ohio.
    Submitted April 24, 2018 Decided June 6, 2018
    Scheuer, Mackin & Breslin, L.L.C., J. Kent Breslin, and Eric A. Rich, Hudson, for appellee Penske Truck Leasing Co., L.P.
    Boyd, Rummell, Carach, Curry, Kaufmann & Bins-Castronovo Co., L.P.A., and Randall Rummell, Youngstown, for appellee Deborah J. Fizer.
    Michael DeWine, Attorney General, and Natalie J. Tackett, Assistant Attorney General, for appellant.
   Per Curiam.

{¶ 1} Appellant, Industrial Commission, appeals the judgment of the Tenth District Court of Appeals granting a writ of mandamus ordering the commission to (1) vacate its order allocating the cost of a permanent-total-disability award between two different employers and (2) issue an amended order. For the reasons that follow, we affirm.

{¶ 2} Appellee Deborah J. Fizer filed an application for permanent-total-disability compensation based on three workers' compensation claims for work-related injuries she sustained while working as a truck driver for two different employers. In 2001, Fizer was injured while she was working for appellee Penske Truck Leasing Company, L.P. Her workers' compensation claim was allowed for cervical strain. She filed a claim in 2004 for a second injury she sustained while working for Penske, and that claim was allowed for "lumbosacral sprain /strain, left rotator cuff sprain/strain, [and] adhesive capsulitis left shoulder." In 2007, Fizer was injured while working for appellee TQ Logistics, and she filed a claim that was allowed for "sprain of neck, sprain left shoulder, disc bulge with compression at the C5 through C7 disc levels, [and] recurrent depressive psychosis-severe."

{¶ 3} A staff hearing officer granted the application based on the report of a commission specialist, Jess Bond, M.D., who evaluated Fizer's allowed medical conditions in all three claims. Based upon Dr. Bond's report and a report from Marian Chatterjee, Ph.D., the hearing officer apportioned the cost of the award among the three claims as follows: 9 percent to the 2001 claim, 13 percent to the 2004 claim, and 78 percent to the 2007 claim.

{¶ 4} The commission denied Penske's request for reconsideration.

{¶ 5} Penske filed this mandamus action in the Tenth District Court of Appeals challenging the commission's allocation of the cost of the award among the three claims. A magistrate in the court of appeals made the following findings: (1) the staff hearing officer abused his discretion by relying on Dr. Chatterjee's report in allocating the cost of the award when he did not rely on her report in awarding permanent-total-disability compensation, (2) there was no evidence to support allocating any of the cost of the award to the 2001 claim, and (3) there was some evidence to support allocating a portion of the cost of the award to the 2004 claim but no evidence to support the specific percentage the hearing officer allocated. The magistrate concluded that the court should grant a writ of mandamus ordering the commission to vacate the allocation portion of its order and to enter an amended order allocating the cost of the award in a manner consistent with the magistrate's decision.

{¶ 6} Both the commission and Penske objected to the magistrate's conclusion regarding the report of Dr. Chatterjee. The commission also objected to the magistrate's determinations regarding the hearing officer's allocation of some of the cost of the award to the 2001 and 2004 claims.

{¶ 7} The court of appeals sustained the objection regarding the report of Dr. Chatterjee, because no party had objected at the commission level to the inclusion of the report as evidence.

{¶ 8} The court of appeals overruled the commission's remaining two objections. The court agreed with the magistrate that there was no evidence supporting allocating any of the costs of the award to the 2001 claim. The court of appeals also agreed that there was some evidence to support allocating a portion of the cost of the award to the 2004 claim but that the order did not explain the reason for the 13 percent the hearing officer allocated to the 2004 claim. The court issued a writ of mandamus ordering the commission to vacate the portion of the hearing officer's order allocating the cost of the award and to enter an amended order with respect to allocation.

{¶ 9} This matter is before the court on the commission's appeal as of right.

{¶ 10} The commission argues that the court of appeals applied an improper standard of review and evidentiary requirement by requiring the commission to provide further explanation of the allocations beyond the "some evidence" standard. The commission maintains that it is not required to provide a mathematical explanation for the allocations.

{¶ 11} In support of upholding the court of appeals' judgment, Penske argues that the hearing officer gave no explanation for how he arrived at the allocation percentages and that it is entitled to mandamus relief when the evidence cited fails to support the commission's allocation of responsibility for a permanent-total-disability award when there are multiple claims and employers.

{¶ 12} Ohio Adm.Code 4121-3-34(D)(3)(h) provides that a hearing officer must prepare orders deciding permanent total disability "on a case by case basis" and that the orders must be "fact specific," must "contain the reasons explaining the decision," "must specifically state what evidence has been relied upon in reaching the conclusion," and must "explain the basis for the decision." This provision does not apply only to orders awarding or denying compensation. "All matters affecting the rights and obligations of a claimant or employer merit an explanation sufficient to inform the parties and potentially a reviewing court of the basis for the commission's decision." (Emphasis sic.) State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm ., 71 Ohio St.3d 139, 142, 642 N.E.2d 378 (1994).

{¶ 13} The commission is not required to explain its allocations with mathematical precision, but the allocations must be consistent with the evidence that the commission expressly relies upon. State ex rel. Cafaro Mgt. Co. v. Indus. Comm. , 10th Dist. Franklin No. 12AP-638, 2013-Ohio-5104, 2013 WL 6095879, ¶ 13-15. For example, in Yellow Freight , this court issued a writ of mandamus ordering the commission to reexamine its 100 percent allocation of the cost of a permanent-total-disability award because it had relied on a medical report in which the physician used the plural "claims."

{¶ 14} In State ex rel. Hay v. Indus. Comm. , 52 Ohio St.3d 99, 555 N.E.2d 965 (1990), the commission allocated 35 percent of the cost of the claimant's permanent-total-disability award to a 1971 workers' compensation claim and 65 percent to a 1975 claim based on two medical reports in the record. This court concluded that the evidence did not support the allocation, because both reports attributed the claimant's permanent total disability to only the 1975 injury. The court affirmed the court of appeals' judgment granting a writ of mandamus directing the commission to amend its order and allocate the entire cost of the award to the 1975 claim.

{¶ 15} In State ex rel. Erieview Metal Treating Co. v. Indus. Comm. , 109 Ohio St.3d 147, 2006-Ohio-2036, 846 N.E.2d 515, the commission's order allocated the entire cost of a permanent-total-disability award to the earlier of the injured worker's two claims. This court concluded that the fact that the benefits had all been paid from the earlier claim was sufficient evidence to support the commission's allocation of all the costs to that claim.

{¶ 16} The commission speaks only through its orders. Yellow Freight , 71 Ohio St.3d at 142, 642 N.E.2d 378. Thus, a court reviews for sufficiency the evidence identified in the order as the basis for the commission's decision; the court need not search the record for evidence that is not specified in the order as a basis for the commission's decision. Id.

{¶ 17} Here, the commission was required to explain the basis for the specific allocations of the award among the three claims. It did not do so. Dr. Bond reviewed Fizer's claims according to the injured body part and did not set forth impairments for each allowed condition. Because in some instances, Fizer's allowed conditions in one claim affected the same body part that was affected in an allowed condition in another claim, Dr. Bond's report fails to attribute impairment to each claim. The commission indicated that it relied on Dr. Bond's report to allocate the cost of the award among the three claims, but it failed to explain how it did so. This constituted an abuse of discretion.

{¶ 18} We affirm the judgment of the court of appeals.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, French, Fischer, DeWine, and DeGenaro, JJ., concur.

Kennedy, J., concurs in judgment only.


text:
    Disciplinary Counsel v. Thomas.
    No. 2018-0553
    Supreme Court of Ohio.
    Submitted April 18, 2018 Decided May 30, 2018
    {¶ 1} This cause is pending before the Supreme Court of Ohio in accordance with the reciprocal-discipline provisions of Gov.Bar R. V(20).
    {¶ 2} On April 18, 2018, relator, disciplinary counsel, filed with this court a certified copy of an order of the Supreme Court of Appeals of West Virginia entered August 30, 2017, in Lawyer Disciplinary Board v. Mark A. Thomas , in case No. 17-0131, disbarring respondent by consent. On April 20, 2018, this court ordered respondent to show cause why identical or comparable discipline should not be imposed in this state. No objections to said final report were filed, and this cause was considered by the court.
    {¶ 3} On consideration thereof, it is ordered and adjudged by this court that pursuant to Gov.Bar R. V(20)(B), respondent, Mark Alan Thomas, Attorney Registration No. 0037922, last known business address in St. Clairsville, Ohio, is suspended from the practice of law for a period of five years. It is further ordered that respondent will not be reinstated to the practice of law in Ohio until such time as respondent is reinstated to the practice of law in the state of West Virginia.
    {¶ 4} It is further ordered that respondent immediately cease and desist from the practice of law in any form and is forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency, or other public authority.
    {¶ 5} It is further ordered that respondent is forbidden to counsel, advise, or prepare legal instruments for others or in any manner perform legal services for others.
    {¶ 6} It is further ordered that respondent is divested of each, any, and all of the rights, privileges, and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.
    {¶ 7} It is further ordered that before entering into an employment, contractual, or consulting relationship with any attorney or law firm, respondent shall verify that the attorney or law firm has complied with the registration requirements of Gov.Bar R. V(23)(C). If employed pursuant to Gov.Bar R. V(23), respondent shall refrain from direct client contact except as provided in Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling any client trust funds or property.
    {¶ 8} It is further ordered that pursuant to Gov.Bar R. X(13), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(13), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the suspension.
    {¶ 9} It is further ordered by the court that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against respondent by the Lawyers' Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is further ordered by the court that if after the date of this order, the Lawyers' Fund for Client Protection awards any amount against respondent pursuant to Gov.Bar R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers' Fund for Client Protection within 90 days of the notice of that award.
    {¶ 10} It is further ordered that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio, (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio, (3) respondent files evidence with the clerk of this court and with disciplinary counsel demonstrating his reinstatement to the practice of law in West Virginia, (4) respondent complies with this and all other orders issued by this court, and (5) this court orders respondent reinstated.
    {¶ 11} It is further ordered that on or before 30 days from the date of this order, respondent shall do the following:
    {¶ 12} 1. Notify all clients being represented in pending matters and any co-counsel of respondent's suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in respondent's place;
    {¶ 13} 2. Regardless of any fees or expenses due, deliver to all clients being represented in pending matters any papers or other property pertaining to the client or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;
    {¶ 14} 3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;
    {¶ 15} 4. Notify opposing counsel or, in the absence of counsel, the adverse parties in pending litigation of respondent's disqualification to act as an attorney after the effective date of this order and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;
   {¶ 16} 5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

{¶ 17} 6. File with the clerk of this court and the disciplinary counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and

{¶ 18} 7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

{¶ 19} It is further ordered that until such time as respondent fully complies with this order, respondent shall keep the clerk and disciplinary counsel advised of any change of address where respondent may receive communications.

{¶ 20} It is further ordered that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings. All case documents are subject to Sup.R. 44 through 47, which govern access to court records.

{¶ 21} It is further ordered that service shall be deemed made on respondent by sending this order, and all other orders in this case, to respondent's last known address.

{¶ 22} It is further ordered that the clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be made as provided for in Gov.Bar R. V(17)(D)(2).

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and Degenaro, JJ., concur.


text:
    State v. Van Hook
    1987-1159
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's amended motion for stay of execution. Motion denied.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    HCP EMOH, L.L.C. v. Washington Cty. Bd. of Revision
    2016-1712
    Supreme Court of Ohio.
    July 3, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On joint motion for continuance of oral argument before a master commissioner. Motion granted.


text:
    Miller v. MetroHealth Med. Ctr.
    2018-0736
    Supreme Court of Ohio.
    July 3, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    On appellant's application for dismissal. Application granted. Cause dismissed.


text:
    State ex rel. Ames v. Reinbold
    2017-1483
    Supreme Court of Ohio.
    July 2, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Procedendo. On respondent's motion for appointment of special prosecutor. Motion denied as moot.


text:
    Administrative Actions
    Supreme Court of Ohio.
    July 2, 2018
    1. Amendments to the Supreme Court Rules for the Government of the Bar of Ohio (Gov.Bar R. Appendix I) were adopted June 12, 2018, and are effective September 1, 2018. The final version of the amendments will be published in the July 2, 2018 Ohio Official Reports advance sheet.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in adopting the amendments.
    2. Proposed amendments to the Supreme Court Rules for the Government of the Bar of Ohio (Gov.Bar R. X and Appendix I) will be published in the July 2, 2018 Ohio Official Reports advance sheet for a public-comment period ending August 15, 2018.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concurred in publishing the proposed amendments for comment.


text:
    State v. Alhweiti
    2018-0116
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Santiago
    2018-0532
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Koomar v. KeyBank
    2018-0545
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: DeGenaro, J., dissents.

text:
    State v. McDowell
    2018-0260
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., dissents.


text:
    State v. Curry
    2018-0551
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Burse
    2018-0522
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer and DeWine, JJ., not participating.


author: Kennedy, J., dissents.

text:
    Shilts v. Beardmore
    2018-0554
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    State v. Baugh
    2018-0523
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Fairport Real Estate, L.L.C. v. Nautical Ridge Condominium Owners' Assn., Inc.
    2018-0555
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Fischer, J., not participating.

text:
    Fulton RR. Co. Ltd. v. Cincinnati
    2018-0525
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and Kennedy, JJ., dissent
   Fischer, J., not participating.


author: French, J., not participating.

text:
    State v. Dibble
    2018-0552
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted on proposition of law No. I.
    Kennedy, Fischer, and DeWine, JJ., would accept the cause on all propositions of law.
    O'Donnell and DeGenaro, JJ., dissent.
   French, J., not participating.


text:
    State v. Isse
    2018-0557
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Paolucci v. Morgan
    2018-0560
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Lyons
    2018-0559
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: O'Connor, C.J., not participating.

text:
    State v. Wesson
    2018-0566
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Connor, C.J., not participating.


text:
    CitiMortgage, Inc. v. Nyamusevya
    2018-0561
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Cartwright v. Akron Gen. Med. Ctr.
    2018-0567
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for stay denied and motion to withdraw denied.
    O'Connor, C.J. and Fischer and DeWine, J., would grant the motion to withdraw as counsel.


text:
    State v. Ecker
    2018-0565
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Rarden v. Ewen
    2018-0569
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for order or relief denied.


text:
    Cleveland v. Bur. of Workers' Comp.
    2018-0572
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted and held for the decision in 2017-0179, Cirino v. Bur. Of Worker's Comp., and briefing schedule stayed.
   O'Connor, C.J., would accept the cause on proposition of law No. I only.

Kennedy, J., would not hold the cause or stay the briefing schedule.


text:
    Ruiz v. Brecksville
    2018-0192
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    In re D.C.
    2018-0508
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.

DeGenaro, J., not participating.


text:
    State v. Cutlip
    2018-0512
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Edwards
    2018-0517
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Speed
    2018-0518
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    Millican v. Albrechta & Coble, Ltd.
    2018-0528
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Steiner
    2018-0531
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    State v. Vance
    2018-0607
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Appellant's motion for appointment of counsel and for preparation of statements, praecipe, and notice denied as moot.


text:
    State v. Porter
    2018-0624
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: DeGenaro, J., not participating.

text:
    State v. Passafiume
    2018-0617
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and French, JJ., dissent.
   DeGenaro, J., not participating.


text:
    Blisswood Village Homeowners Assn. v. Genesis Real Estate Holdings Group, L.L.C.
    2018-0632
    Supreme Court of Ohio.
    July 5, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW