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Convicted killer in 1990 Portage County case will be allowed to appeal

by Marc Kovac and Dave O'BrienCapital Bureau Chief and Record Courier Reporter Published: December 22, 2016 11:36 AM

Columbus -- A man convicted of killing an elderly Portage County couple 26 years ago will be permitted an additional appeal in his case, a split Ohio Supreme Court ruled Dec. 21.

Tyrone Noling, who says he did not commit the crime for which he has been sentenced to death, will be allowed to appeal to the state's high court a trial court's earlier denial of further DNA testing of evidence at the crime scene.

Noling challenged a state law that limits individuals convicted of capital crimes from appealing such decisions. In a 4-3 decision Wednesday, the Ohio Supreme Court ruled that the section of state code in question was unconstitutional, treating capital and non-capital offenders differently.

Chief Justice Maureen O'Connor, writing for the majority, added, "We further hold that the unconstitutional portions of the statutory scheme can be excised to create a lawful procedure that provides an appeal of right to this court for capital offenders. Consistent with our constitutional duty to preserve the constitutional portions of a statute, we apply the severance remedy to the legislatively created appellate process for capital offenders seeking post-conviction DNA testing Noling and other eligible capital offenders are now entitled to an appeal of right to the Ohio Supreme Court."

Carrie Wood, assistant state public defender and legal counsel for Noling, praised the decision in a released statement.

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"The Ohio Supreme Court took a much-needed step towards ensuring that all of Ohio's prisoners receive appellate review when their requests for DNA testing are denied. DNA testing has been responsible for 10 of Ohio's 56 exonerations and it is a critical tool for Tyrone Noling, who has already served over 20 years on death row for a crime he did not commit," she said. "Mr. Noling continues to seek DNA testing of key evidence, access to the national ballistics database, as well as results of DNA testing in his case which the state has refused to release. Our hope is Mr. Noling will be granted access to the information and testing needed to resolve his case fairly."

Prosecutors, however, said the proceedings serve only to delay of Noling's capital sentence.

"We will now argue (the case) to the Ohio Supreme Court, which we are more than willing to do, and are confident the trial court will once again be upheld, at it has been twice before," Portage County Prosecutor Victor Vigluicci said. "It's very frustrating how long it takes. These appeals are ongoing now 21 years after the verdict, and we are still seeking justice for Cora and Bearnhardt Hartig."°

Noling was convicted for the April 1990 murder of the Bearnhardt and Cora Hartig, who were found shot to death in the kitchen of their home in Atwater Township. He was twice indicted for the crime and convicted about five years later, based on testimony of three young men who were involved with him in a string of robberies in Alliance, according to documents.

Noling has maintained his innocence throughout the proceedings, arguing that there is evidence of other perpetrators. The conviction has been upheld, but the Ohio Supreme Court did remand the case several years ago to the trial level to consider DNA issues.

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DNA evidence from the scene did not match Noling or the other men involved in the case and did not identify any alternative suspects, according to documents. State investigators also determined that shell casings and ring boxes from the crime scene have been contaminated and are not suitable for DNA testing, according to documents.

Noling argued a number of errors were made in the DNA-related decisions. He wants his case remanded for a merit review on those issues, similar to what other non-capital defendants receive.

In non-capital cases, the appeals court reviews post-conviction DNA-related decisions, if appeals are sought by defendants. Capital cases are not afforded the same automatic appeals court review, however; they're directed to the Ohio Supreme Court, which has discretion on whether to take the cases.

A majority of justices ruled Wednesday that the setup in state law was unconstitutional. They also ruled Noling and other capital offenders can appeal post-conviction DNA testing issues to the Ohio Supreme Court.

Noling now has a little more than a month to submit briefs to the court countering the trial court's denial of post-conviction DNA testing, according to documents.

O'Connor was joined in the majority ruling by Justices Paul Pfeifer, Judith Ann Lanzinger and 9th District Appeals Court Judge Carla Moore, who sat in on oral arguments in place of Justice William O'Neill.

Justices Terrence O'Donnell, Sharon Kennedy and Judith French dissented. In a separate opinion, O'Donnell wrote that he would transfer the case to the appeals court for consideration.

"I agree with the majority that this statute is unconstitutional because it creates different appellate remedies for capital and noncapital offenders: Capital offenders may seek leave to appeal to the Ohio Supreme Court, but noncapital offenders may appeal to a district court of appeals as of right," O'Donnell wrote. "However, I dissent from the remedy imposed by the majority to selectively sever words, not provisions, from the statute, changing the discretionary appeal to the supreme court intended by the general assembly into a direct appeal to this court."

Marc Kovac is the Dix Capital Bureau Chief. Email him at mkovac@dixcom.com or on Twitter at OhioCapitalBlog.


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