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As Introduced
136th
General Assembly
Regular
Session
H. B. No. 490
2025-2026
Representatives Schmidt, Williams
To
amend sections 2953.21 and 2953.23 of the Revised Code
to
expand the availability of postconviction relief based on DNA testing
showing actual innocence.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section
1.
That
sections 2953.21 and 2953.23 of the Revised Code be amended to read
as follows:
Sec.
2953.21.
(A)(1)(a)
A person in any of the following categories may file a petition in
the court that imposed sentence, stating the grounds for relief
relied upon, and asking the court to vacate or set aside the judgment
or sentence or to grant other appropriate relief:
(i)
Any person who has been convicted of a criminal offense or
adjudicated a delinquent child and who claims that there was such a
denial or infringement of the person's rights as to render the
judgment void or voidable under the Ohio Constitution or the
Constitution of the United States;
(ii)
Any person who has been convicted of a criminal offense and sentenced
to death and who claims that there was a denial or infringement of
the person's rights under either of those Constitutions that creates
a reasonable probability of an altered verdict;
(iii)
Any person who has been convicted of a criminal offense that is a
felony and
who
is an offender for whom
whose
petition is based on qualifying
DNA
testing
that
was performed under sections 2953.71 to 2953.81 of the Revised Code
or under former section 2953.82 of the Revised Code and analyzed in
the context of and upon consideration of all available admissible
evidence related to the person's case as described in division (D) of
section 2953.74 of the Revised Code
that
provided
results that establish, by clear and convincing evidence, actual
innocence of that felony offense or, if the person was sentenced to
death, establish, by clear and convincing evidence, actual innocence
of the aggravating circumstance or circumstances the person was found
guilty of committing and that is or are the basis of that sentence of
death;
(iv)
Any person who has been convicted of aggravated murder and sentenced
to death for the offense and who claims that the person had a serious
mental illness at the time of the commission of the offense and that
as a result the court should render void the sentence of death, with
the filing of the petition constituting the waiver described in
division (A)(3)(b) of this section.
(b)
A petitioner under division (A)(1)(a) of this section may file a
supporting affidavit and other documentary evidence in support of the
claim for relief.
(c)
As used in division (A)(1)(a) of this section:
(i)
"Qualifying
DNA testing" means either of the following:
(I)
DNA testing that was performed under sections 2953.71 to 2953.81 of
the Revised Code or under former section 2953.82 of the Revised Code;
(II)
DNA testing that was performed on or after the effective date of this
amendment at the request or on behalf of the state or the prosecuting
attorney of the county in which the offender was convicted.
(ii)
"Actual
innocence" means that, had the results of the DNA testing
conducted
under
sections 2953.71 to 2953.81 of the Revised Code or under former
section 2953.82 of the Revised Code
in
a context described in division (A)(1)(c)(i) of this section
been
presented at trial, and had those results been analyzed in the
context of and upon consideration of all available admissible
evidence related to the person's case
as described in division (D) of section 2953.74 of the Revised Code
,
no reasonable factfinder would have found the petitioner guilty of
the offense of which the petitioner was convicted, or, if the person
was sentenced to death, no reasonable factfinder would have found the
petitioner guilty of the aggravating circumstance or circumstances
the petitioner was found guilty of committing and that is or are the
basis of that sentence of death.
(ii)
(iii)
"Serious mental illness" has the same meaning as in section
2929.025 of the Revised Code.
(d)
As used in divisions (A)(1)(a) and (c) of this section, "former
section 2953.82 of the Revised Code" means section 2953.82 of
the Revised Code as it existed prior to July 6, 2010.
(e)
At any time in conjunction with the filing of a petition for
postconviction relief under division (A) of this section by a person
who has been sentenced to death, or with the litigation of a petition
so filed, the court, for good cause shown, may authorize the
petitioner in seeking the postconviction relief and the prosecuting
attorney of the county served by the court in defending the
proceeding, to take depositions and to issue subpoenas and subpoenas
duces tecum in accordance with divisions (A)(1)(e), (A)(1)(f), and
(C) of this section, and to any other form of discovery as in a civil
action that the court in its discretion permits. The court may limit
the extent of discovery under this division. In addition to discovery
that is relevant to the claim and was available under Criminal Rule
16 through conclusion of the original criminal trial, the court, for
good cause shown, may authorize the petitioner or prosecuting
attorney to take depositions and issue subpoenas and subpoenas duces
tecum in either of the following circumstances:
(i)
For any witness who testified at trial or who was disclosed by the
state prior to trial, except as otherwise provided in this division,
the petitioner or prosecuting attorney shows clear and convincing
evidence that the witness is material and that a deposition of the
witness or the issuing of a subpoena or subpoena duces tecum is of
assistance in order to substantiate or refute the petitioner's claim
that there is a reasonable probability of an altered verdict. This
division does not apply if the witness was unavailable for trial or
would not voluntarily be interviewed by the defendant or prosecuting
attorney.
(ii)
For any witness with respect to whom division (A)(1)(e)(i) of this
section does not apply, the petitioner or prosecuting attorney shows
good cause that the witness is material and that a deposition of the
witness or the issuing of a subpoena or subpoena duces tecum is of
assistance in order to substantiate or refute the petitioner's claim
that there is a reasonable probability of an altered verdict.
(f)
If a person who has been sentenced to death and who files a petition
for postconviction relief under division (A) of this section requests
postconviction discovery as described in division (A)(1)(e) of this
section or if the prosecuting attorney of the county served by the
court requests postconviction discovery as described in that
division, within ten days after the docketing of the request, or
within any other time that the court sets for good cause shown, the
prosecuting attorney shall respond by answer or motion to the
petitioner's request or the petitioner shall respond by answer or
motion to the prosecuting attorney's request, whichever is
applicable.
(g)
If a person who has been sentenced to death and who files a petition
for postconviction relief under division (A) of this section requests
postconviction discovery as described in division (A)(1)(e) of this
section or if the prosecuting attorney of the county served by the
court requests postconviction discovery as described in that
division, upon motion by the petitioner, the prosecuting attorney, or
the person from whom discovery is sought, and for good cause shown,
the court in which the action is pending may make any order that
justice requires to protect a party or person from oppression or
undue burden or expense, including but not limited to the orders
described in divisions (A)(1)(h)(i) to (viii) of this section. The
court also may make any such order if, in its discretion, it
determines that the discovery sought would be irrelevant to the
claims made in the petition; and if the court makes any such order on
that basis, it shall explain in the order the reasons why the
discovery would be irrelevant.
(h)
If a petitioner, prosecuting attorney, or person from whom discovery
is sought makes a motion for an order under division (A)(1)(g) of
this section and the order is denied in whole or in part, the court,
on terms and conditions as are just, may order that any party or
person provide or permit discovery as described in division (A)(1)(e)
of this section. The provisions of Civil Rule 37(A)(4) apply to the
award of expenses incurred in relation to the motion, except that in
no case shall a court require a petitioner who is indigent to pay
expenses under those provisions.
Before
any person moves for an order under division (A)(1)(g) of this
section, that person shall make a reasonable effort to resolve the
matter through discussion with the petitioner or prosecuting attorney
seeking discovery. A motion for an order under division (A)(1)(g) of
this section shall be accompanied by a statement reciting the effort
made to resolve the matter in accordance with this paragraph.
The
orders that may be made under division (A)(1)(g) of this section
include, but are not limited to, any of the following:
(i)
That the discovery not be had;
(ii)
That the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(iii)
That the discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
(iv)
That certain matters not be inquired into or that the scope of the
discovery be limited to certain matters;
(v)
That discovery be conducted with no one present except persons
designated by the court;
(vi)
That a deposition after being sealed be opened only by order of the
court;
(vii)
That a trade secret or other confidential research, development, or
commercial information not be disclosed or be disclosed only in a
designated way;
(viii)
That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the court.
(i)
Any postconviction discovery authorized under division (A)(1)(e) of
this section shall be completed not later than eighteen months after
the start of the discovery proceedings unless, for good cause shown,
the court extends that period for completing the discovery.
(j)
Nothing in division (A)(1)(e) of this section authorizes, or shall be
construed as authorizing, the relitigation, or discovery in support
of relitigation, of any matter barred by the doctrine of res
judicata.
(k)
Division (A)(1) of this section does not apply to any person who has
been convicted of a criminal offense and sentenced to death and who
has unsuccessfully raised the same claims in a petition for
postconviction relief
,
provided that this division does not limit or preclude a person from
filing a second or successive petition for postconviction relief when
authorized under section 2953.23 of the Revised Code
.
(2)(a)
Except as otherwise provided in section 2953.23 of the Revised Code,
a petition under division (A)(1)(a)(i), (ii), or (iii) of this
section shall be filed no later than three hundred sixty-five days
after the date on which the trial transcript is filed in the court of
appeals in the direct appeal of the judgment of conviction or
adjudication or, if the direct appeal involves a sentence of death,
the date on which the trial transcript is filed in the supreme court.
If no appeal is taken, except as otherwise provided in section
2953.23 of the Revised Code, the petition shall be filed no later
than three hundred sixty-five days after the expiration of the time
for filing the appeal.
(b)
Except as otherwise provided in section 2953.23 of the Revised Code,
a petition under division (A)(1)(a)(iv) of this section shall be
filed not later than three hundred sixty-five days after
the effective date of this amendment
April 12, 2021.
(3)(a)
In a petition filed under division (A)(1)(a)(i), (ii), or (iii) of
this section, a person who has been sentenced to death may ask the
court to render void or voidable the judgment with respect to the
conviction of aggravated murder or the specification of an
aggravating circumstance or the sentence of death.
(b)
A person sentenced to death who files a petition under division
(A)(1)(a)(iv) of this section may ask the court to render void the
sentence of death and to order the resentencing of the person under
division (A) of section 2929.06 of the Revised Code. If a person
sentenced to death files such a petition and asks the court to render
void the sentence of death and to order the resentencing of the
person under division (A) of section 2929.06 of the Revised Code, the
act of filing the petition constitutes a waiver of any right to be
sentenced under the law that existed at the time the offense was
committed and constitutes consent to be sentenced to life
imprisonment without parole under division (A) of section 2929.06 of
the Revised Code.
(4)
A petitioner shall state in the original or amended petition filed
under division (A) of this section all grounds for relief claimed by
the petitioner. Except as provided in section 2953.23 of the Revised
Code, any ground for relief that is not so stated in the petition is
waived.
(5)
If the petitioner in a petition filed under division (A)(1)(a)(i),
(ii), or (iii) of this section was convicted of or pleaded guilty to
a felony, the petition may include a claim that the petitioner was
denied the equal protection of the laws in violation of the Ohio
Constitution or the United States Constitution because the sentence
imposed upon the petitioner for the felony was part of a consistent
pattern of disparity in sentencing by the judge who imposed the
sentence, with regard to the petitioner's race, gender, ethnic
background, or religion. If the supreme court adopts a rule requiring
a court of common pleas to maintain information with regard to an
offender's race, gender, ethnic background, or religion, the
supporting evidence for the petition shall include, but shall not be
limited to, a copy of that type of information relative to the
petitioner's sentence and copies of that type of information relative
to sentences that the same judge imposed upon other persons.
(6)
Notwithstanding any law or court rule to the contrary, there is no
limit on the number of pages in, or on the length of, a petition
filed under division (A)(1)(a)(i), (ii), (iii), or (iv) of this
section by a person who has been sentenced to death. If any court
rule specifies a limit on the number of pages in, or on the length
of, a petition filed under division (A)(1)(a)(i), (ii), (iii), or
(iv) of this section or on a prosecuting attorney's response to such
a petition by answer or motion and a person who has been sentenced to
death files a petition that exceeds the limit specified for the
petition, the prosecuting attorney may respond by an answer or motion
that exceeds the limit specified for the response.
(B)
The clerk of the court in which the petition for postconviction
relief and, if applicable, a request for postconviction discovery
described in division (A)(1)(e) of this section is filed shall docket
the petition and the request and bring them promptly to the attention
of the court. The clerk of the court in which the petition for
postconviction relief and, if applicable, a request for
postconviction discovery described in division (A)(1)(e) of this
section is filed immediately shall forward a copy of the petition and
a copy of the request if filed by the petitioner to the prosecuting
attorney of the county served by the court. If the request for
postconviction discovery is filed by the prosecuting attorney, the
clerk of the court immediately shall forward a copy of the request to
the petitioner or the petitioner's counsel.
(C)
If a person who has been sentenced to death and who files a petition
for postconviction relief under division (A)(1)(a)(i), (ii), (iii),
or (iv) of this section requests a deposition or the prosecuting
attorney in the case requests a deposition, and if the court grants
the request under division (A)(1)(e) of this section, the court shall
notify the petitioner or the petitioner's counsel and the prosecuting
attorney. The deposition shall be conducted pursuant to divisions
(B), (D), and (E) of Criminal Rule 15. Notwithstanding division (C)
of Criminal Rule 15, the petitioner is not entitled to attend the
deposition. The prosecuting attorney shall be permitted to attend and
participate in any deposition.
(D)
The court shall consider a petition that is timely filed within the
period specified in division (A)(2) of this section even if a direct
appeal of the judgment is pending. Before granting a hearing on a
petition filed under division (A)(1)(a)(i), (ii), (iii), or (iv) of
this section, the court shall determine whether there are substantive
grounds for relief. In making such a determination, the court shall
consider, in addition to the petition, the supporting affidavits, and
the documentary evidence, all the files and records pertaining to the
proceedings against the petitioner, including, but not limited to,
the indictment, the court's journal entries, the journalized records
of the clerk of the court, and the court reporter's transcript. The
court reporter's transcript, if ordered and certified by the court,
shall be taxed as court costs. If the court dismisses the petition,
it shall make and file findings of fact and conclusions of law with
respect to such dismissal. If the petition was filed by a person who
has been sentenced to death, the findings of fact and conclusions of
law shall state specifically the reasons for the dismissal of the
petition and of each claim it contains.
(E)
Within ten days after the docketing of the petition, or within any
further time that the court may fix for good cause shown, the
prosecuting attorney shall respond by answer or motion. Division
(A)(6) of this section applies with respect to the prosecuting
attorney's response. Within twenty days from the date the issues are
raised, either party may move for summary judgment. The right to
summary judgment shall appear on the face of the record.
(F)
Unless the petition and the files and records of the case show the
petitioner is not entitled to relief, the court shall proceed to a
prompt hearing on the issues even if a direct appeal of the case is
pending. If the court notifies the parties that it has found grounds
for granting relief, either party may request an appellate court in
which a direct appeal of the judgment is pending to remand the
pending case to the court.
With
respect to a petition filed under division (A)(1)(a)(iv) of this
section, the procedures and rules regarding introduction of evidence
and burden of proof at the pretrial hearing that are set forth in
divisions (C), (D), and (F) of section 2929.025 of the Revised Code
apply in considering the petition. With respect to such a petition,
the grounds for granting relief are that the person has been
diagnosed with one or more of the conditions set forth in division
(A)(1)(a) of section 2929.025 of the Revised Code and that, at the
time of the aggravated murder that was the basis of the sentence of
death, the condition or conditions significantly impaired the
person's capacity in a manner described in division (A)(1)(b) of that
section.
(G)
A petitioner who files a petition under division (A)(1)(a)(i), (ii),
(iii), or (iv) of this section may amend the petition as follows:
(1)
If the petition was filed by a person who has been sentenced to
death, at any time that is not later than one hundred eighty days
after the petition is filed, the petitioner may amend the petition
with or without leave or prejudice to the proceedings.
(2)
If division (G)(1) of this section does not apply, at any time before
the answer or motion is filed, the petitioner may amend the petition
with or without leave or prejudice to the proceedings.
(3)
The petitioner may amend the petition with leave of court at any time
after the expiration of the applicable period specified in division
(G)(1) or (2) of this section.
(H)
If the court does not find grounds for granting relief, it shall make
and file findings of fact and conclusions of law and shall enter
judgment denying relief on the petition. If the petition was filed by
a person who has been sentenced to death, the findings of fact and
conclusions of law shall state specifically the reasons for the
denial of relief on the petition and of each claim it contains. If no
direct appeal of the case is pending and the court finds grounds for
relief or if a pending direct appeal of the case has been remanded to
the court pursuant to a request made pursuant to division (F) of this
section and the court finds grounds for granting relief, it shall
make and file findings of fact and conclusions of law and shall enter
a judgment that vacates and sets aside the judgment in question, and,
in the case of a petitioner who is a prisoner in custody, except as
otherwise described in this division, shall discharge or resentence
the petitioner or grant a new trial as the court determines
appropriate. If the court finds grounds for relief in the case of a
petitioner who filed a petition under division (A)(1)(a)(iv) of this
section, the court shall render void the sentence of death and order
the resentencing of the offender under division (A) of section
2929.06 of the Revised Code. If the petitioner has been sentenced to
death, the findings of fact and conclusions of law shall state
specifically the reasons for the finding of grounds for granting the
relief, with respect to each claim contained in the petition. The
court also may make supplementary orders to the relief granted,
concerning such matters as rearraignment, retrial, custody, and bail.
If the trial court's order granting the petition is reversed on
appeal and if the direct appeal of the case has been remanded from an
appellate court pursuant to a request under division (F) of this
section, the appellate court reversing the order granting the
petition shall notify the appellate court in which the direct appeal
of the case was pending at the time of the remand of the reversal and
remand of the trial court's order. Upon the reversal and remand of
the trial court's order granting the petition, regardless of whether
notice is sent or received, the direct appeal of the case that was
remanded is reinstated.
(I)
Upon the filing of a petition pursuant to division (A)(1)(a)(i),
(ii), (iii), or (iv) of this section by a person sentenced to death,
only the supreme court may stay execution of the sentence of death.
(J)(1)
If a person sentenced to death intends to file a petition under this
section, the court shall appoint counsel to represent the person upon
a finding that the person is indigent and that the person either
accepts the appointment of counsel or is unable to make a competent
decision whether to accept or reject the appointment of counsel. The
court may decline to appoint counsel for the person only upon a
finding, after a hearing if necessary, that the person rejects the
appointment of counsel and understands the legal consequences of that
decision or upon a finding that the person is not indigent.
(2)
The court shall not appoint as counsel under division (J)(1) of this
section an attorney who represented the petitioner at trial in the
case to which the petition relates unless the person and the attorney
expressly request the appointment. The court shall appoint as counsel
under division (J)(1) of this section only an attorney who is
certified under Rule 20 of the Rules of Superintendence for the
Courts of Ohio to represent indigent defendants charged with or
convicted of an offense for which the death penalty can be or has
been imposed. The ineffectiveness or incompetence of counsel during
proceedings under this section does not constitute grounds for relief
in a proceeding under this section, in an appeal of any action under
this section, or in an application to reopen a direct appeal.
(3)
Division (J) of this section does not preclude attorneys who
represent the state of Ohio from invoking the provisions of 28 U.S.C.
154 with respect to capital cases that were pending in federal habeas
corpus proceedings prior to July 1, 1996, insofar as the petitioners
in those cases were represented in proceedings under this section by
one or more counsel appointed by the court under this section or
section 120.06, 120.16, 120.26, or 120.33 of the Revised Code and
those appointed counsel meet the requirements of division (J)(2) of
this section.
(K)
Subject to the appeal of a sentence for a felony that is authorized
by section 2953.08 of the Revised Code, the remedy set forth in this
section is the exclusive remedy by which a person may bring a
collateral challenge to the validity of a conviction or sentence in a
criminal case or to the validity of an adjudication of a child as a
delinquent child for the commission of an act that would be a
criminal offense if committed by an adult or the validity of a
related order of disposition.
Sec.
2953.23.
(A)
Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a
petition filed after the expiration of the period prescribed in
division (A) of that section or a second petition or successive
petitions for similar relief on behalf of a petitioner unless
division (A)(1) or (2) of this section applies:
(1)
Both of the following apply:
(a)
Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code
or to the filing of an earlier petition, the United States Supreme
Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation, and the
petition asserts a claim based on that right.
(b)
The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner
was convicted or, if the claim challenges a sentence of death that,
but for constitutional error at the sentencing hearing, no reasonable
factfinder would have found the petitioner eligible for the death
sentence.
(2)
All
of the following apply:
(a)
The
petitioner was convicted of a felony
,
the petitioner is an offender for whom
.
(b)
The petitioner's petition is based on qualifying
DNA testing
was performed under sections 2953.71 to 2953.81 of the Revised Code
or under former section 2953.82 of the Revised Code and analyzed in
the context of and upon consideration of all available admissible
evidence related to the inmate's case as described in division (D) of
section 2953.74 of the Revised Code, and the
.
(c)
The
results of the
qualifying
DNA
testing establish, by clear and convincing evidence, actual innocence
of that felony offense or, if the person was sentenced to death,
establish, by clear and convincing evidence, actual innocence of the
aggravating circumstance or circumstances the person was found guilty
of committing and that is or are the basis of that sentence of death.
As
used in this division, "actual innocence" has the same
meaning as in division (A)(1)(c) of section 2953.21 of the Revised
Code, and "former section 2953.82 of the Revised Code" has
the same meaning as in division (A)(1)(d) of section 2953.21 of the
Revised Code.
(B)
An order awarding or denying relief sought in a petition filed
pursuant to section 2953.21 of the Revised Code is a final judgment
and may be appealed pursuant to Chapter 2953. of the Revised Code.
If
a petition filed pursuant to section 2953.21 of the Revised Code by a
person who has been sentenced to death is denied and the person
appeals the judgment, notwithstanding any law or court rule to the
contrary, there is no limit on the number of pages in, or on the
length of, a notice of appeal or briefs related to an appeal filed by
the person. If any court rule specifies a limit on the number of
pages in, or on the length of, a notice of appeal or briefs described
in this division or on a prosecuting attorney's response or briefs
with respect to such an appeal and a person who has been sentenced to
death files a notice of appeal or briefs that exceed the limit
specified for the petition, the prosecuting attorney may file a
response or briefs that exceed the limit specified for the answer or
briefs.
(C)
As used in division (A)(2) of this section, "actual innocence"
and "qualifying DNA testing" have the same meanings as in
division (A)(1)(c) of section 2953.21 of the Revised Code.
Section
2.
That
existing sections 2953.21 and 2953.23 of the Revised Code are hereby
repealed.