As Introduced
136th General Assembly
Regular Session H. B. No. 177
2025-2026
Representatives Williams, Tims
A B I L L
To amend sections 181.25, 2929.06, 2945.79,
2945.80, 2945.81, 2953.21, and 2953.23 and to
enact section 2945.811 of the Revised Code to
allow a person to file a motion for a new trial
or a petition for postconviction relief if the
person produces new evidence that would
establish a strong probability of a different
result at trial.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 181.25, 2929.06, 2945.79,
2945.80, 2945.81, 2953.21, and 2953.23 be amended and section
2945.811 of the Revised Code be enacted to read as follows:
Sec. 181.25. (A) If the comprehensive criminal sentencing
structure that it recommends to the general assembly pursuant to
section 181.24 of the Revised Code or any aspects of that
sentencing structure are enacted into law, the state criminal
sentencing commission shall do all of the following:
(1) Assist the general assembly in the implementation of
those aspects of the sentencing structure that are enacted into
law;
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(2) Monitor the operation of the aspects of the sentencing
structure that are enacted into law and report to the general
assembly no later than January 1, 1997, and biennially
thereafter, on all of the following matters:
(a) The impact of the sentencing structure in effect on
and after July 1, 1996, on political subdivisions and other
relevant aspects of local government in this state, including
all of the following information:
(i) The number and type of offenders who were being
imprisoned in a state correctional institution under the law in
effect prior to July 1, 1996, but who are being punished under a
community control sanction, as defined in section 2929.01 of the
Revised Code, under the law in effect on and after July 1, 1996;
(ii) The fiscal and other impact of the law in effect on
and after July 1, 1996, on political subdivisions and other
relevant aspects of local government in this state, including
law enforcement agencies, the court system, prosecutors, as
defined in section 2935.01 of the Revised Code, the public
defender and assigned counsel system, jails and workhouses,
probation departments, the drug and alcohol abuse intervention
and treatment system, and the mental health intervention and
treatment system.
(b) The impact of the sentencing structure in effect on
and after July 1, 1996, on the population of state correctional
institutions, including information regarding the number and
types of offenders who are being imprisoned under the law in
effect on and after July 1, 1996, and the amount of space in
state correctional institutions that is necessary to house those
offenders;
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(c) The impact of the sentencing structure and the
sentence appeal provisions in effect on and after July 1, 1996,
on the appellate courts of this state, including information
regarding the number of sentence-based appeals, the cost of
reviewing appeals of that nature, whether a special court should
be created to review sentences, and whether changes should be
made to ensure that sentence-based appeals are conducted
expeditiously.
(3) Review all bills that are introduced in the general
assembly that provide for new criminal offenses or that change
the penalty for any criminal offense, determine if those bills
are consistent with the sentencing policy adopted under division
(B) of section 181.23 of the Revised Code, determine the impact
of those bills upon the correctional resources of the state, and
recommend to the general assembly any necessary amendments to
those bills. When the commission recommends any amendment for a
bill before the general assembly, it shall do so in a manner
that is consistent with the requirements of section 181.24 of
the Revised Code.
(4) Study criminal sentencing structures in this state,
other states, and the federal government, recommend necessary
changes to the sentencing structure of the state, and determine
the costs and effects of any proposed changes in the sentencing
structure of the state;
(5) Collect and maintain data that pertains to the cost to
counties of the felony sentence appeal provisions set forth in
section 2953.08 of the Revised Code, of the postconviction
relief proceeding provisions set forth in division (A)(2) (B)(2)
of section 2953.21 of the Revised Code, and of appeals from
judgments entered in such postconviction relief proceedings. The
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data so collected and maintained shall include, but shall not be
limited to, the increase in expenses that counties experience as
a result of those provisions and those appeals and the number of
felony sentence appeals made, postconviction relief proceedings
filed, and appeals of postconviction relief proceeding judgments
made in each county under those provisions.
(B) In addition to its duties set forth in section 181.24
of the Revised Code and division (A) of this section, the state
criminal sentencing commission shall review all forfeiture
statutes in Titles XXIX and XLV of the Revised Code and, not
later than July 1, 2002, recommend to the general assembly any
necessary changes to those statutes.
Sec. 2929.06. (A)(1) If a sentence of death imposed upon
an offender is set aside, nullified, vacated, or voided for any
of the following reasons, the trial court that sentenced the
offender shall conduct a hearing to resentence the offender in
accordance with division (A)(2) of this section:
(a) The court of appeals, in a case in which a sentence of
death was imposed for an offense committed before January 1,
1995, or the supreme court, in a case in which the supreme court
reviews the sentence upon appeal, could not affirm the sentence
of death under the standards imposed by section 2929.05 of the
Revised Code.
(b) The sole reason that the statutory procedure for
imposing the sentence of death that is set forth in sections
2929.03 and 2929.04 of the Revised Code is unconstitutional.
(c) The sentence of death is set aside, nullified, or
vacated pursuant to division (C) of section 2929.05 of the
Revised Code.
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(d) A court has determined that the offender is a person
with an intellectual disability under standards set forth in
decisions of the supreme court of this state or the United
States supreme court.
(e) The sentence of death is voided by a court pursuant to
division (H) (I) of section 2953.21 of the Revised Code.
(2) At a resentencing hearing conducted under division (A)
(1) of this section, the court shall impose upon the offender a
sentence of life imprisonment or an indefinite term consisting
of a minimum term of thirty years and a maximum term of life
imprisonment that is determined as specified in this division.
If the sentence of death was voided by a court pursuant to
division (H) (I) of section 2953.21 of the Revised Code, the
offender has waived any right to be sentenced to any sentence
other than life imprisonment without parole as described in
division (A)(3)(b) of that section and the court shall impose a
sentence of life imprisonment without parole. If the immediately
preceding sentence does not apply and if division (D) of section
2929.03 of the Revised Code, at the time the offender committed
the aggravated murder for which the sentence of death was
imposed, required the imposition when a sentence of death was
not imposed of a sentence of life imprisonment without parole or
a sentence of an indefinite term consisting of a minimum term of
thirty years and a maximum term of life imprisonment to be
imposed pursuant to division (A) or (B)(3) of section 2971.03 of
the Revised Code and served pursuant to that section, except as
provided in division (F) of this section, the court shall impose
the sentence so required. In all other cases, except as provided
in division (F) of this section, the sentences of life
imprisonment that are available at the hearing, and from which
the court shall impose sentence, shall be the same sentences of
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life imprisonment that were available under division (D) of
section 2929.03 or under section 2909.24 of the Revised Code at
the time the offender committed the offense for which the
sentence of death was imposed. Nothing in this division
regarding the resentencing of an offender shall affect the
operation of section 2971.03 of the Revised Code.
(B) Whenever any court of this state or any federal court
sets aside, nullifies, or vacates a sentence of death imposed
upon an offender because of error that occurred in the
sentencing phase of the trial and if division (A) of this
section does not apply, the trial court that sentenced the
offender shall conduct a new hearing to resentence the offender.
If the offender was tried by a jury, the trial court shall
impanel a new jury for the hearing. If the offender was tried by
a panel of three judges, that panel or, if necessary, a new
panel of three judges shall conduct the hearing. At the hearing,
the court or panel shall follow the procedure set forth in
division (D) of section 2929.03 of the Revised Code in
determining whether to impose upon the offender a sentence of
death, a sentence of life imprisonment, or an indefinite term
consisting of a minimum term of thirty years and a maximum term
of life imprisonment. If, pursuant to that procedure, the court
or panel determines that it will impose a sentence other than a
sentence of death, except as provided in division (F) of this
section, the court or panel shall impose upon the offender one
of the sentences of life imprisonment that could have been
imposed at the time the offender committed the offense for which
the sentence of death was imposed, determined as specified in
this division, or an indefinite term consisting of a minimum
term of thirty years and a maximum term of life imprisonment
that is determined as specified in this division. If division
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(D) of section 2929.03 of the Revised Code, at the time the
offender committed the aggravated murder for which the sentence
of death was imposed, required the imposition when a sentence of
death was not imposed of a sentence of life imprisonment without
parole or a sentence of an indefinite term consisting of a
minimum term of thirty years and a maximum term of life
imprisonment to be imposed pursuant to division (A) or (B)(3) of
section 2971.03 of the Revised Code and served pursuant to that
section, except as provided in division (F) of this section, the
court or panel shall impose the sentence so required. In all
other cases, except as provided in division (F) of this section,
the sentences of life imprisonment that are available at the
hearing, and from which the court or panel shall impose
sentence, shall be the same sentences of life imprisonment that
were available under division (D) of section 2929.03 or under
section 2909.24 of the Revised Code at the time the offender
committed the offense for which the sentence of death was
imposed.
(C) If a sentence of life imprisonment without parole
imposed upon an offender pursuant to section 2929.021 or 2929.03
of the Revised Code is set aside, nullified, or vacated for the
sole reason that the statutory procedure for imposing the
sentence of life imprisonment without parole that is set forth
in sections 2929.03 and 2929.04 of the Revised Code is
unconstitutional, the trial court that sentenced the offender
shall conduct a hearing to resentence the offender to life
imprisonment with parole eligibility after serving twenty-five
full years of imprisonment or to life imprisonment with parole
eligibility after serving thirty full years of imprisonment.
(D) Nothing in this section limits or restricts the rights
of the state to appeal any order setting aside, nullifying, or
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vacating a conviction or sentence of death, when an appeal of
that nature otherwise would be available.
(E) This section, as amended by H.B. 184 of the 125th
general assembly, shall apply to all offenders who have been
sentenced to death for an aggravated murder that was committed
on or after October 19, 1981, or for terrorism that was
committed on or after May 15, 2002. This section, as amended by
H.B. 184 of the 125th general assembly, shall apply equally to
all such offenders sentenced to death prior to, on, or after
March 23, 2005, including offenders who, on March 23, 2005, are
challenging their sentence of death and offenders whose sentence
of death has been set aside, nullified, or vacated by any court
of this state or any federal court but who, as of March 23,
2005, have not yet been resentenced.
(F) A court shall not impose a sentence of life
imprisonment without parole on a person under division (A) or
(B) of this section for an offense that was committed when the
person was under eighteen years of age.
Sec. 2945.79. A new trial, after a verdict of conviction,
may be granted on the application of the defendant for any of
the following causes affecting that materially his affect the
fairness of the defendant's substantial rightstrial or that
demonstrate a miscarriage of justice :
(A) Irregularity in the proceedings of the court, jury,
prosecuting attorney, or the witnesses for the state, or for any
order of the court, or abuse of discretion by which the
defendant was prevented from having a fair trial;
(B) Misconduct of the jury, prosecuting attorney, or the
witnesses for the state;
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(C) Accident or surprise which ordinary prudence could not
have guarded against;
(D) That the verdict is not sustained by sufficient
evidence or is contrary to law; but if the evidence shows the
defendant is not guilty of the degree of crime for which he the
defendant was convicted, but guilty of a lesser degree thereof,
or of a lesser crime included therein, the court may modify the
verdict or finding accordingly, without granting or ordering a
new trial, and pass sentence on such verdict or finding as
modified, provided that this power extends to any court to which
the cause may be taken on appeal;
(E) Error of law occurring at the trial;
(F) When new evidence is discovered material to the
defendant, which he the defendant could not with reasonable
diligence have discovered and produced at the trial. When a
motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing
of said motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if
time is required by the defendant to procure such affidavits,
the court may postpone the hearing of the motion for such length
of time as under all the circumstances of the case is
reasonable. The prosecuting attorney may produce affidavits or
other evidence to impeach the affidavits of such witnesses .
(G) When new evidence is discovered that, were it to be
considered at a new trial, would establish a strong probability
of a different result at trial .
Sec. 2945.80. Application (A) Except as provided in
divisions (B) and (C) of this section, applications for a new
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trial shall be made by motion upon written grounds , and except
for the cause of newly discovered evidence material for the
person applying, which he could not with reasonable diligence
have discovered and produced at the trial, shall be filed within
three days after the verdict was rendered, or the decision of
the court where a trial by jury has been waived, unless it is
made to appear by clear and convincing proof that the defendant
was unavoidably prevented from filing his a motion for new trial
in which case it shall be filed within three days from the order
of the court finding that he the defendant was unavoidably
prevented from filing such motion within the time provided
herein.
(B) Motions for new trial on account of newly discovered
evidence under division (F) of section 2945.79 of the Revised
Code shall be filed within one hundred twenty days following the
day upon which the verdict was rendered, or the decision of the
court where trial by jury has been waived. If it is made to
appear by clear and convincing proof that the defendant was
unavoidably prevented from the discovery of the evidence upon
which he the defendant must rely, such motion shall be filed
within three days from an order of the court finding that he the
defendant was unavoidably prevented from discovering the
evidence within the one hundred twenty day period.
(C) Motions for new trial on account of newly discovered
evidence under division (G) of section 2945.79 of the Revised
Code shall be filed at any time after the verdict was rendered.
Sec. 2945.81. (A) The causes enumerated in divisions (B)
and (C) of section 2945.79 of the Revised Code must be sustained
by affidavit showing their truth, and may be controverted by
affidavits.
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(B) The causes enumerated in division (G) of section
2945.79 of the Revised Code must be sustained by affidavit
showing their truth, and may be controverted by affidavit and
other documentary evidence in support of the claim for relief.
Sec. 2945.811. (A) As used in this section, "patently
frivolous" means offering evidence that, even if true, would not
satisfy the standard in division (G) of section 2945.79 of the
Revised Code.
(B) A motion for new trial on account of newly discovered
evidence under division (G) of section 2945.79 of the Revised
Code shall include all of the following:
(1) Specific, nonconclusory facts identifying the newly
discovered evidence;
(2) An explanation of how the newly discovered evidence
entitles the defendant to relief;
(3) An explanation of why the newly discovered evidence
was not proffered at trial or at any pretrial proceedings in the
case;
(4) Any supporting evidence or documentation.
(C) Before granting a hearing on a motion for a new trial,
the court shall review, in addition to the motion and supporting
evidence or documentation described in division (B) of this
section, the supporting affidavits and the documentary evidence,
all the files and records pertaining to the proceedings against
the defendant, 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.
(D) If, after reviewing the materials described in
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division (C) of this section, the court finds that the motion
for a new trial is patently frivolous, the court shall dismiss
the motion.
(E) If the court does not dismiss the motion for a new
trial pursuant to division (D) of this section, the parties may
obtain discovery in accordance with the Ohio Rules of Civil
Procedure.
(F) After reviewing the materials described in division
(C) of this section and after discovery is completed pursuant to
division (D) of this section, the court shall promptly hold a
hearing on the motion for a new trial.
(G) If the court finds that the new evidence, were it to
be considered at a new trial, would establish a strong
probability of a different result at trial, the court shall
grant a new trial. If the court does not find that the new
evidence would establish a strong probability of a different
result at trial, the court shall not grant a new trial.
(H) The court may appoint counsel to represent a person
who files a motion for a new trial upon a finding that the
person is indigent, unless after reviewing the materials
described in division (C) of this section, the court finds that
the motion is patently frivolous.
Sec. 2953.21. (A)(1)(a) (A) As used in this section,
"patently frivolous" means offering evidence which, even if
true, would not satisfy the standard in division (B)(1)(a)(v) of
this section.
(B)(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
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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 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 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
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render void the sentence of death, with the filing of the
petition constituting the waiver described in division (A)(3)(b)
(B)(3)(b) of this section;
(v) Any person who produces newly discovered evidence
that, were it to be considered at a new trial, would establish a
strong probability of a different result at trial .
(b) A petitioner under division (A)(1)(a) (B)(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) (B)(1)(a) of this
section:
(i) "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
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) "Serious mental illness" has the same meaning as in
section 2929.025 of the Revised Code.
(d) As used in divisions (A)(1)(a) (B)(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
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6, 2010.
(e) At any time in conjunction with the filing of a
petition for postconviction relief under division (A) (B) 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)(B)(1)(e), (A)(1)(f)(B)(1)
(f), and (C) (D) 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.
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(ii) For any witness with respect to whom division (A)(1)
(e)(i) (B)(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)
(B) of this section requests postconviction discovery as
described in division (A)(1)(e) (B)(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)
(B) of this section requests postconviction discovery as
described in division (A)(1)(e) (B)(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) (B)(1)(h)(i) to (viii) of
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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) (B)(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) (B)(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) (B)(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) (B)(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) (B)
(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
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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) (B)(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) (B)(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) (B)(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.
(2)(a) Except as otherwise provided in section 2953.23 of
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the Revised Code, a petition under division (A)(1)(a)(i)(B)(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) (B)(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.
(c) A petition under division (B)(1)(a)(v) of this section
shall be filed at any time after the expiration of the time for
filing the appeal.
(3)(a) In a petition filed under division (A)(1)(a)(i)(B)
(1)(a)(i), (ii), or (iii), or (v) 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) (B)(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
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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) (B) 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)(B)(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.
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(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)(B)(1)(a)(i),
(ii), (iii), or (iv), or (v) 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)(B)(1)(a)(i), (ii), (iii), or (iv),
or (v) 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) (C) 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) (B)(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) (B)(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) (D) If a person who has been sentenced to death and
who files a petition for postconviction relief under division
(A)(1)(a)(i)(B)(1)(a)(i), (ii), (iii), or (iv), or (v) of this
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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) (B)(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) (E) The court shall consider a petition that is timely
filed within the period specified in division (A)(2) (B)(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)(B)(1)(a)(i), (ii), (iii), or (iv), or (v) 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) (F) Within ten days after the docketing of the
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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) (B)(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 (G) For a petition filed under division (B)(1)
(a)(i), (ii), (iii), or (iv) of this section, 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. For a petition filed under division (B)(1)(a)
(v) of this section, unless the petition and the files and
records of the case show that the petition is patently
frivolous, the court shall hold a hearing on the issues thirty
days after the prosecuting attorney is required to respond by
answer or motion as described in division (E) of this section
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) (B)(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
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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) (H) A petitioner who files a petition under division
(A)(1)(a)(i)(B)(1)(a)(i), (ii), (iii), or (iv), or (v) 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) (H)(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) (H)(1) or (2) of this section.
(H) (I) 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
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court pursuant to a request made pursuant to division (F) (G) 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) (B)(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) (G) 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) (J) Upon the filing of a petition pursuant to division
(A)(1)(a)(i)(B)(1)(a)(i), (ii), (iii), or (iv), or (v) of this
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As Introduced
section by a person sentenced to death, only the supreme court
may stay execution of the sentence of death.
(J)(1) If (K)(1)(a) Except as provided in division (J)(1)
(b) of this section, if a person sentenced to death intends to
file a petition under division (B)(1)(a)(i), (ii), (iii), or
(iv) of 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. If a person
sentenced to death intends to file a petition under division (B)
(1)(a)(v) of 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, unless the court finds that
the evidence is patently frivolous. 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.
(b) The court may appoint counsel to represent a person
who files a petition under division (B)(1)(a)(v) of this section
upon a finding that the person is indigent, unless the court
finds that the evidence is patently frivolous.
(2) The court shall not appoint as counsel under division
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As Introduced
(J)(1) (K)(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) (K)(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) (K) 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) (K)
(2) of this section.
(K) (L) 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
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As Introduced
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) (B) 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) (B)(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) The petitioner was convicted of a felony, the
petitioner is an offender for whom 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
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As Introduced
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 results of
the 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) (B)(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) (B)(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
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As Introduced
response or briefs that exceed the limit specified for the
answer or briefs.
Section 2. That existing sections 181.25, 2929.06,
2945.79, 2945.80, 2945.81, 2953.21, and 2953.23 of the Revised
Code are hereby repealed.
Section 3. Section 2929.06 of the Revised Code is
presented in this act as a composite of the section as amended
by both H.B. 136 and S.B. 256 of the 133rd General Assembly. The
General Assembly, applying the principle stated in division (B)
of section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation,
finds that the composite is the resulting version of the section
in effect prior to the effective date of the section as
presented in this act.
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