[Cite as State v. Carley , 2023

- Ohio

- 4646.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff

- Appell ee

, :

No. 112393

v. :

RICHARD E. CARLEY

, :

Defendant

- Appell ant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: December 21, 2023

C ivil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 97

- 355976

- B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Kristen Hatcher, Assistant Prosecuting

Attorney

, for a

ppellee

.

Kimberly Kendall Corral

, for a ppellant

.

LISA B. FORBES , J.:

Richard E. Carley (“ Carley ”) appeals the trial court’s journal entry

denying his motion for DNA testing pursuant to R.C. 2953.72. After reviewing the

facts of the case and pertinent law, we affirm the trial court’s decision.I. Facts and Procedural History

Following a jury trial, Carley was found guilty of multiple counts

including, aggravated murder w ith firearm, felony

- murder, and mass

- murder

specifications and aggravated robbe ry with firearm specifications. P rior to

senten cing, with the agreement of the prosecutor, Carley withdrew his former not

guilty plea . The indictment against Carley was amended to assert two counts of

murder. Carley entered a plea of guilty to two counts of murder, felonies of the first

degree , in violation of R.C. 2903.02 with fir earm specification s on each

. Carley was

sentenced to an aggregate prison sentence of 33 years to life.

Carley appealed arguing his plea was invalid because his counsel was

ineffective . This court affirmed his conviction and sentence finding that the trial

court complied with Crim.R. 11 when taking his plea and that Carley had not

demonstrated that he was inappropriately induced or coerced into entering his

guilty plea. State v. Carley , 8th Dist. Cuyahoga No. 81001, 2004

- Ohio

- 1901, ¶ 14.

O n June 30, 2022 , Carley filed a motion for post conviction DNA

testing pursuant to R.C. 2953.72. The trial court denied Carley’s motion, finding

that he was “not an ‘eligible offender’ as defined in R.C. 2953.72(C)(2).”

It is from this order that Carley appeals

, raising the following

assignment of error: “ [t] he trial court erred when it ruled that Richard Carley is an

ineligible offender under ORC 2953.72(C)(2) because Richard Carley was found

guilty of a felony offense by a jury. ”II. Law and Analysis

An offender is eligible to request DNA testing under R.C. 2953.71 to

2953.81, if

(a) The offense for which the offender claims to be an eligible offender

is a felony, and the offender was convicted by a judge or jury of that

offense.

R.C. 2953.72(C)(1).

An offender is ineligible for post conviction DNA testing “ regarding

any offense to which the offender pleaded guilty or no contest. ” R.C. 2953.72(C)(2)

We acknowledge that a jury originally found Carley guilty of

aggravated murder and aggravated robbery. P rior to being sentenced, Carley pled

guilty to two counts of murder , along with firearm specifications

. Carley is presently

serving a prison sentence for th ose two felonies to which he pled guilty.

B y seeking DNA testing under R.C. 2953.72(C)(1), Carley seeks to call

into question his conviction s for murder and the sentence he is currently serving

.

Therefore, the offenses for which Carley claims to be an eligible offender are the two

counts of murder . Because Carley pled guilty to both murder counts, he is ineligible

for DNA testing pursuant to R.C. 2953.72(C)(2).

Carley’s sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.It is ordered that a special mand ate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES , JUDGE

FRANK DANIEL CELEBREZZE, III

, P. J., and

MICHAEL JOHN RYAN , J., CONCUR