As Introduced

136th General Assembly

Regular Session H. B. No. 177

2025-2026

A BILL

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;

(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;

(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 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.

(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 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 (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 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 rights~~trial 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;

(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 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.

(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 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 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 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.

(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 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.

(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 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 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 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 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.

(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 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 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 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 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 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 ~~(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 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 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 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.