State v. Marshall

         [Cite as State v. Marshall, 

.]


                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO



 STATE OF OHIO,                                     :   APPEAL NO. C-230664
                                                        TRIAL NO. B-0506040A
         Plaintiff-Appellee,                        :

   vs.                                              :       O P I N I O N.

 JAMES MARSHALL,                                    :

     Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Cause Remanded

Date of Judgment Entry on Appeal: August 28, 2024



Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

James Marshall, pro se.
                    OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

       {¶1}      Defendant-appellant James Marshall appeals the Hamilton County

Common Pleas Court’s judgment denying his application for postconviction DNA

testing. Because the common pleas court’s entry failed to explain its reasons for

denying Marshall’s application as required by R.C. 2953.73(D), we must remand this

cause on that narrow basis.

       {¶2}      Following a jury trial, Marshall was convicted of murder in connection

with the shooting death of Junis Sublett. Eyewitnesses testified that someone in a

green car had fired a gun out of the front passenger-side window towards Sublett, who

was shot in the head and fell to the ground. The driver of the green car then drove off,

running over Sublett’s body. At trial, Marshall admitted that he had been sitting in the

front passenger seat of the green car but testified that the driver had been the one to

shoot Sublett.

       {¶3}      Marshall unsuccessfully challenged his murder conviction in his direct

appeal and in postconviction motions filed in 2006, 2010, and 2020.              State v.

Marshall, 

 (1st Dist.), appeal not allowed, 

; State v.

Marshall, No. C-080385 (1st Dist. Jan. 28, 2009); State v. Marshall, No. C-070054

(1st Dist. Dec. 19, 2009); State v. Marshall, No. C-110054 (1st Dist. Dec. 9, 2011); State

v. Marshall, 

 (1st Dist. Jun. 30, 2021), appeal not

accepted, 

.

       {¶4}      In May 2023, Marshall filed an application for postconviction DNA

testing of the shell casing found at the crime scene. In his application, Marshall

pointed out that the casing was admitted into evidence at trial but had not been tested

for DNA.      He explained that he has consistently maintained that he was not the

shooter, that no physical evidence tied him to the shooting, and that the shell casing

admitted into evidence was the same type of shells found at the apartment of the driver




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                   OHIO FIRST DISTRICT COURT OF APPEALS



of the green car. The trial court summarily denied the application “as not well taken.”

Marshall did not appeal.

       {¶5}    Shortly after his first application was denied, Marshall filed a new

application for postconviction DNA testing that again asked for DNA testing on the

shell casing found at the crime scene. The common pleas court summarily denied the

application as “not well-taken.”

       {¶6}    Marshall now appeals that judgment, asserting in a single assignment

of error that the common pleas court abused its discretion by not explaining why it

had denied his application. We review the denial of an eligible offender’s application

for postconviction DNA testing for an abuse of discretion. State v. Smith, 2021-Ohio-

1389 (1st Dist.), citing State v. Conner, 

 (8th Dist.), citing R.C.

2953.74(A).

       {¶7}    R.C. 2953.73(D) provides, in relevant part: “If an eligible offender

submits an application for DNA testing . . . the court shall make the determination as

to whether the application should be accepted or rejected.” Furthermore, “[u]pon

making its determination, the court shall enter a judgment . . . that includes . . . the

reasons for the acceptance or rejection . . ..” 

       {¶8}    In Smith, this court held that where an entry denying an application for

DNA testing provides no reasoning for the denial, then that “‘failure to provide an

explanation for rejecting a defendant’s application under R.C. 2953.73(D) is contrary

to law and constitutes an abuse of discretion.’” Smith at ¶ 7, quoting 

(citing cases); State v. Price, 

 (1st Dist.) (“Because it provided no

reasons, even though it was required to do so, we are unable to properly review the

trial court’s denial of [the defendant’s] application for DNA testing.”). In so holding,

we noted that R.C. 2953.73(D) does not require formal findings of fact and conclusions




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                  OHIO FIRST DISTRICT COURT OF APPEALS



of law but only requires the trial court to “set [forth] ‘the reasons’ as applied to the

statutory criteria, which are, for the most part, set forth in R.C. 2953.74(B) and (C).”

Smith at ¶ 6, citing State v. Price, 

, and State v. Scott, 2020-Ohio-

5302, ¶ 56 (2d Dist.).

       {¶9}   Here, because the common pleas court did not comply with the plain

terms of the statute and failed to state any reason for denying Marshall’s application

for DNA testing, we sustain his assignment of error.

       {¶10} The State, citing to State v. Long, 

 (1st Dist.), argues

that Marshall’s application should have been dismissed because it was a successive

application. But R.C. 2953.74(A) permits successive applications for DNA testing and

only directs a court to reject a successive application “when a prior definitive DNA test

has been conducted regarding the same biological evidence that the offender seeks to

have tested.” Otherwise, the statute directs courts to consider DNA-test requests on a

case-by-case basis.

       {¶11} In Long, this court affirmed the trial court’s denial of a successive

request for DNA testing where the lower court had considered a previous application

for DNA testing, determined that any testing would not be outcome determinative,

and rejected the application on that basis. But here, there has been no DNA testing yet

conducted on the shell casing and no determination by a court that DNA testing would

not be outcome determinative. Thus, we disagree with the State that the common pleas

court was required to dismiss Marshall’s most recent application for testing.

       {¶12} Having sustained Marshall’s assignment of error, we remand this cause to

the common pleas court with instructions to provide an explanation for its denial of

Marshall’s DNA-testing request.

                                                                       Cause remanded.

ZAYAS, P.J., and BERGERON, J., concur.



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                 OHIO FIRST DISTRICT COURT OF APPEALS




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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