| Section 1. That sections 120.01, 120.03, 120.04, 120.06, | 31 |
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120.08, 120.13, 120.14, 120.15, 120.16, 120.18, 120.23, 120.33, | 32 |
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120.34, 120.35, 120.36, 120.40, 307.441, 2941.51, 2945.37, | 33 |
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2945.40, and 2953.21 of the Revised Code be amended to read as | 34 |
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follows: | 35 |
| Sec. 120.01. There is hereby created the Ohio public | 36 |
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defender commission to provide, supervise, and coordinate legal | 37 |
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representation at state expense for indigent and other persons. | 38 |
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The commission shall consist of nine members, one of whom shall be | 39 |
chairmanchairperson. The chairmanchairperson shall be appointed | 40 |
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by the governor with the advice and consent of the senate. Four | 41 |
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members shall be appointed by the governor, two of whom shall be | 42 |
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from each of the two major political parties. The first | 43 |
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appointment by the governor after the effective date of this | 44 |
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amendment shall be selected from a list of up to five nominees | 45 |
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submitted to the governor by the county commissioners association | 46 |
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of Ohio. Four members shall be appointed by the supreme court, two | 47 |
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of whom shall be from each of the two major political parties. The | 48 |
chairmanchairperson, and not less than two of the members | 49 |
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appointed by the governor, and not less than two of the members | 50 |
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appointed by the supreme court shall be attorneys admitted to the | 51 |
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practice of law in this state. | 52 |
Within thirty days after the effective date of this section | 53 |
| January 13, 1976, the governor and the supreme court shall make | 54 |
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initial appointments to the commission. Of the initial | 55 |
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appointments made to the commission by the governor, the | 56 |
appointment of the
chairmanchairperson shall be for a term of two | 57 |
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years. Of the other four appointments, one shall be for a term | 58 |
ending one year after the effective date of this sectionJanuary | 59 |
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13, 1976, one shall be for a term ending two years after that | 60 |
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date, one shall be for a term ending three years after that date, | 61 |
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and one shall be for a term ending four years after that date. Of | 62 |
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the initial appointments made to the commission by the supreme | 63 |
court, one shall be for a term ending one year after the effective | 64 |
date of this sectionJanuary 13, 1976, one shall be for a term | 65 |
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ending two years after that date, one shall be for a term ending | 66 |
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three years after that date, and one shall be for a term ending | 67 |
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four years after that date. Thereafter, terms of office shall be | 68 |
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for four years, each term ending on the same day of the same month | 69 |
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of the year as did the term which it succeeds. Any member | 70 |
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appointed to fill a vacancy occurring prior to the expiration of | 71 |
the term for which histhe member's predecessor was appointed | 72 |
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shall hold office for the remainder of such term. Any member shall | 73 |
continue in office subsequent to the expiration date of histhe | 74 |
member's term until hisa successor takes office or until a period | 75 |
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of sixty days has elapsed, whichever occurs first. | 76 |
| (2) Subject to division (E) of section 120.06 of the Revised | 162 |
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Code, the attorney general shall represent or provide for the | 163 |
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representation of attorneys described in division (C) of section | 164 |
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120.41 of the Revised Code in malpractice or other civil actions | 165 |
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or proceedings that arise from alleged actions or omissions | 166 |
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related to responsibilities derived pursuant to this chapter, or | 167 |
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in civil actions that are based upon alleged violations of the | 168 |
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constitution or statutes of the United States, including section | 169 |
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1983 of Title 42 of the United States Code, 93 Stat. 1284 (1979), | 170 |
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42 U.S.C.A. 1983, as amended, and that arise from alleged actions | 171 |
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or omissions related to responsibilities derived pursuant to this | 172 |
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chapter. For purposes of the representation, sections 109.361 to | 173 |
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109.366 of the Revised Code shall apply to an attorney described | 174 |
in division (C) of section 120.41 of the Revised Code as if hethe | 175 |
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attorney were an officer or employee, as defined in section 109.36 | 176 |
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of the Revised Code, and the Ohio public defender commission or | 177 |
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the state public defender, whichever contracted with the attorney, | 178 |
shall be considered histhe attorney's employer. | 179 |
| (4) Keep and maintain financial records of all cases handled | 203 |
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and develop records for use in the calculation of direct and | 204 |
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indirect costs, in the operation of the office, and report | 205 |
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periodically, but not less than annually, to the commission on all | 206 |
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relevant data on the operations of the office, costs, projected | 207 |
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needs, and recommendations for legislation or amendments to court | 208 |
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rules, as may be appropriate to improve the criminal justice | 209 |
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system; | 210 |
| (5) Collect all moneys due the state for reimbursement for | 211 |
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legal services under this chapter and under section 2941.51 of the | 212 |
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Revised Code and institute any actions in court on behalf of the | 213 |
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state for the collection of such sums that the state public | 214 |
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defender considers advisable. Except as provided otherwise in | 215 |
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division (D) of section 120.06 of the Revised Code, all moneys | 216 |
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collected by the state public defender under this chapter and | 217 |
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section 2941.51 of the Revised Code shall be deposited in the | 218 |
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state treasury to the credit of the client payment fund, which is | 219 |
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hereby created. All moneys credited to the fund shall be used by | 220 |
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the state public defender to appoint assistant state public | 221 |
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defenders and to provide other personnel, equipment, and | 222 |
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facilities necessary for the operation of the state public | 223 |
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defender office, to reimburse counties for the operation of county | 224 |
public defender offices, joint county public defender offices, and | 225 |
county appointed counsel systems pursuant to sections 120.18, | 226 |
120.28, and 120.33 of the Revised Code, or to provide assistance | 227 |
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to counties in the operation of county indigent defense systems. | 228 |
(11)(10) Administer the program established pursuant to | 248 |
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sections 120.51 to 120.55 of the Revised Code for the charitable | 249 |
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public purpose of providing financial assistance to legal aid | 250 |
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societies. Neither the state public defender nor any of the state | 251 |
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public defender's employees who is responsible in any way for the | 252 |
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administration of that program and who performs those | 253 |
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administrative responsibilities in good faith is in any manner | 254 |
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liable if a legal aid society that is provided financial | 255 |
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assistance under the program uses the financial assistance other | 256 |
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than in accordance with sections 120.51 to 120.55 of the Revised | 257 |
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Code or fails to comply with the requirements of those sections. | 258 |
(7) Contract with a county public defender commission or a | 301 |
joint county public defender commission to provide all or any part | 302 |
of the services that a county public defender or joint county | 303 |
public defender is required or permitted to provide by this | 304 |
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chapter, or contract with a board of county commissioners of a | 305 |
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county that is not served by a county public defender commission | 306 |
or a joint county public defender commission for the provision of | 307 |
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services in accordance with section 120.33 of the Revised Code or | 308 |
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contract with a municipal corporation for the provision of legal | 309 |
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representation in cases in which a violation of an ordinance of a | 310 |
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municipal corporation is alleged. All money received by the state | 311 |
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public defender pursuant to such a contract shall be credited to | 312 |
either the
multi-countymulticounty: county share fund or, if | 313 |
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received as a result of a contract with Trumbull county, the | 314 |
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Trumbull county: county share fund. | 315 |
(5) The state public defender, when designatedappointed by | 364 |
the court or requested by a county public defender, joint county | 365 |
public defender, or the director of rehabilitation and correction, | 366 |
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shall provide legal representation in parole and probation | 367 |
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revocation matters or matters relating to the revocation of | 368 |
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community control or post-release control under a community | 369 |
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control sanction or post-release control sanction, unless the | 370 |
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state public defender finds that the alleged parole or probation | 371 |
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violator or alleged violator of a community control sanction or | 372 |
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post-release control sanction has the financial capacity to retain | 373 |
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the alleged violator's own counsel. | 374 |
| (C) A court may appoint counsel or allow an indigent person | 386 |
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to select the indigent's own personal counsel to assist the state | 387 |
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public defender as co-counsel when the interests of justice so | 388 |
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require. When co-counsel is appointed to assist the state public | 389 |
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defender, the co-counsel shall receive any compensation that the | 390 |
court may approve, not to exceed the amounts provided for in | 391 |
| accordance with the hourly rates and per case maximums established | 392 |
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by the state public defender pursuant to division (B)(14) of | 393 |
section 2941.51120.04 of the Revised Code. | 394 |
(D)(1) When the state public defender is designatedappointed | 395 |
by the court or requested by a county public defender or joint | 396 |
county public defender to provide legal representation for an | 397 |
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indigent person in any case, other than pursuant to a contract | 398 |
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entered into under authority of division (C)(7) of section 120.04 | 399 |
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of the Revised Code, the state public defender shall send to the | 400 |
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county in which the case is filed a bill detailing the actual cost | 401 |
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of the representation that separately itemizes legal fees and | 402 |
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expenses. The county, upon receipt of an itemized bill from the | 403 |
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state public defender pursuant to this division, shall pay the | 404 |
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state public defender each of the following amounts: | 405 |
| (3) When the state public defender provides investigation or | 418 |
mitigation services to private appointed counsel or to a county or | 419 |
joint county public defender as approved by the appointing court, | 420 |
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other than pursuant to a contract entered into under authority of | 421 |
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division (C)(7) of section 120.04 of the Revised Code, the state | 422 |
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public defender shall send to the county in which the case is | 423 |
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filed a bill itemizing the actual cost of the services provided. | 424 |
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The county, upon receipt of an itemized bill from the state public | 425 |
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defender pursuant to this division, shall pay one hundred per cent | 426 |
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of the amount as set forth in the itemized bill. Upon payment of | 427 |
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the itemized bill received pursuant to this division, the county | 428 |
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may submit the cost of the investigation and mitigation services | 429 |
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to the state public defender for reimbursement pursuant to section | 430 |
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120.33 of the Revised Code. | 431 |
| (4) There is hereby created in the state treasury the county | 432 |
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representation fund for the deposit of moneys received from | 433 |
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counties under this division. All moneys credited to the fund | 434 |
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shall be used by the state public defender to provide legal | 435 |
representation for indigent persons when designatedappointed by | 436 |
the court or requested by a county or joint county public defender | 437 |
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or to provide investigation or mitigation services, including | 438 |
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investigation or mitigation services to private appointed counsel | 439 |
or a county or joint county public defender, as approved by the | 440 |
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court. | 441 |
| (E)(1) Notwithstanding any contrary provision of sections | 442 |
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109.02, 109.07, 109.361 to 109.366, and 120.03 of the Revised Code | 443 |
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that pertains to representation by the attorney general, an | 444 |
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assistant attorney general, or special counsel of an officer or | 445 |
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employee, as defined in section 109.36 of the Revised Code, or of | 446 |
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an entity of state government, the state public defender may elect | 447 |
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to contract with, and to have the state pay pursuant to division | 448 |
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(E)(2) of this section for the services of, private legal counsel | 449 |
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to represent the Ohio public defender commission, the state public | 450 |
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defender, assistant state public defenders, other employees of the | 451 |
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commission or the state public defender, and attorneys described | 452 |
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in division (C) of section 120.41 of the Revised Code in a | 453 |
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malpractice or other civil action or proceeding that arises from | 454 |
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alleged actions or omissions related to responsibilities derived | 455 |
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pursuant to this chapter, or in a civil action that is based upon | 456 |
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alleged violations of the constitution or statutes of the United | 457 |
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States, including section 1983 of Title 42 of the United States | 458 |
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Code, 93 Stat. 1284 (1979), 42 U.S.C.A. 1983, as amended, and that | 459 |
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arises from alleged actions or omissions related to | 460 |
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responsibilities derived pursuant to this chapter, if the state | 461 |
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public defender determines, in good faith, that the defendant in | 462 |
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the civil action or proceeding did not act manifestly outside the | 463 |
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scope of the defendant's employment or official responsibilities, | 464 |
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with malicious purpose, in bad faith, or in a wanton or reckless | 465 |
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manner. If the state public defender elects not to contract | 466 |
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pursuant to this division for private legal counsel in a civil | 467 |
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action or proceeding, then, in accordance with sections 109.02, | 468 |
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109.07, 109.361 to 109.366, and 120.03 of the Revised Code, the | 469 |
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attorney general shall represent or provide for the representation | 470 |
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of the Ohio public defender commission, the state public defender, | 471 |
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assistant state public defenders, other employees of the | 472 |
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commission or the state public defender, or attorneys described in | 473 |
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division (C) of section 120.41 of the Revised Code in the civil | 474 |
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action or proceeding. | 475 |
| (i) The private legal counsel shall file with the attorney | 481 |
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general a copy of the contract; a request for an award of legal | 482 |
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fees, court costs, and expenses earned or incurred in connection | 483 |
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with the defense of the Ohio public defender commission, the state | 484 |
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public defender, an assistant state public defender, an employee, | 485 |
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or an attorney in a specified civil action or proceeding; a | 486 |
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written itemization of those fees, costs, and expenses, including | 487 |
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the signature of the state public defender and the state public | 488 |
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defender's attestation that the fees, costs, and expenses were | 489 |
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earned or incurred pursuant to division (E)(1) of this section to | 490 |
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the best of the state public defender's knowledge and information; | 491 |
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a written statement whether the fees, costs, and expenses are for | 492 |
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all legal services to be rendered in connection with that defense, | 493 |
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are only for legal services rendered to the date of the request | 494 |
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and additional legal services likely will have to be provided in | 495 |
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connection with that defense, or are for the final legal services | 496 |
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rendered in connection with that defense; a written statement | 497 |
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indicating whether the private legal counsel previously submitted | 498 |
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a request for an award under division (E)(2) of this section in | 499 |
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connection with that defense and, if so, the date and the amount | 500 |
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of each award granted; and, if the fees, costs, and expenses are | 501 |
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for all legal services to be rendered in connection with that | 502 |
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defense or are for the final legal services rendered in connection | 503 |
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with that defense, a certified copy of any judgment entry in the | 504 |
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civil action or proceeding or a signed copy of any settlement | 505 |
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agreement entered into between the parties to the civil action or | 506 |
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proceeding. | 507 |
| (ii) Upon receipt of a request for an award of legal fees, | 508 |
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court costs, and expenses and the requisite supportive | 509 |
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documentation described in division (E)(2)(a)(i) of this section, | 510 |
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the attorney general shall review the request and documentation; | 511 |
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determine whether any of the limitations specified in division | 512 |
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(E)(2)(b) of this section apply to the request; and, if an award | 513 |
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of legal fees, court costs, or expenses is permissible after | 514 |
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applying the limitations, prepare a document awarding legal fees, | 515 |
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court costs, or expenses to the private legal counsel. The | 516 |
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document shall name the private legal counsel as the recipient of | 517 |
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the award; specify the total amount of the award as determined by | 518 |
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the attorney general; itemize the portions of the award that | 519 |
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represent legal fees, court costs, and expenses; specify any | 520 |
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limitation applied pursuant to division (E)(2)(b) of this section | 521 |
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to reduce the amount of the award sought by the private legal | 522 |
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counsel; state that the award is payable from the state treasury | 523 |
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pursuant to division (E)(2)(a)(iii) of this section; and be | 524 |
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approved by the inclusion of the signatures of the attorney | 525 |
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general, the state public defender, and the private legal counsel. | 526 |
| (iii) The attorney general shall forward a copy of the | 527 |
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document prepared pursuant to division (E)(2)(a)(ii) of this | 528 |
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section to the director of budget and management. The award of | 529 |
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legal fees, court costs, or expenses shall be paid out of the | 530 |
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state public defender's appropriations, to the extent there is a | 531 |
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sufficient available balance in those appropriations. If the state | 532 |
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public defender does not have a sufficient available balance in | 533 |
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the state public defender's appropriations to pay the entire award | 534 |
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of legal fees, court costs, or expenses, the director shall make | 535 |
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application for a transfer of appropriations out of the emergency | 536 |
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purposes account or any other appropriation for emergencies or | 537 |
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contingencies in an amount equal to the portion of the award that | 538 |
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exceeds the sufficient available balance in the state public | 539 |
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defender's appropriations. A transfer of appropriations out of the | 540 |
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emergency purposes account or any other appropriation for | 541 |
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emergencies or contingencies shall be authorized if there are | 542 |
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sufficient moneys greater than the sum total of then pending | 543 |
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emergency purposes account requests, or requests for releases from | 544 |
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the other appropriation. If a transfer of appropriations out of | 545 |
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the emergency purposes account or other appropriation for | 546 |
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emergencies or contingencies is made to pay an amount equal to the | 547 |
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portion of the award that exceeds the sufficient available balance | 548 |
|
in the state public defender's appropriations, the director shall | 549 |
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cause the payment to be made to the private legal counsel. If | 550 |
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sufficient moneys do not exist in the emergency purposes account | 551 |
|
or other appropriation for emergencies or contingencies to pay an | 552 |
|
amount equal to the portion of the award that exceeds the | 553 |
|
sufficient available balance in the state public defender's | 554 |
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appropriations, the private legal counsel shall request the | 555 |
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general assembly to make an appropriation sufficient to pay an | 556 |
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amount equal to the portion of the award that exceeds the | 557 |
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sufficient available balance in the state public defender's | 558 |
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appropriations, and no payment in that amount shall be made until | 559 |
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the appropriation has been made. The private legal counsel shall | 560 |
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make the request during the current biennium and during each | 561 |
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succeeding biennium until a sufficient appropriation is made. | 562 |
| (d) If, pursuant to division (E)(2)(c) of this section, a | 589 |
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private legal counsel receives a denial of an award notification | 590 |
|
or if a private legal counsel refuses to approve a document under | 591 |
|
division (E)(2)(a)(ii) of this section because of the proposed | 592 |
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application of a limitation specified in division (E)(2)(b) of | 593 |
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this section, the private legal counsel may commence a civil | 594 |
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action against the attorney general in the court of claims to | 595 |
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prove the private legal counsel's entitlement to the award sought, | 596 |
|
to prove that division (E)(2)(b) of this section does not prohibit | 597 |
|
or otherwise limit the award sought, and to recover a judgment for | 598 |
|
the amount of the award sought. A civil action under division | 599 |
|
(E)(2)(d) of this section shall be commenced no later than two | 600 |
|
years after receipt of a denial of award notification or, if the | 601 |
|
private legal counsel refused to approve a document under division | 602 |
|
(E)(2)(a)(ii) of this section because of the proposed application | 603 |
|
of a limitation specified in division (E)(2)(b) of this section, | 604 |
|
no later than two years after the refusal. Any judgment of the | 605 |
|
court of claims in favor of the private legal counsel shall be | 606 |
|
paid from the state treasury in accordance with division (E)(2)(a) | 607 |
|
of this section. | 608 |
| (F) If a court appoints the office of the state public | 609 |
|
defender to represent a petitioner in a postconviction relief | 610 |
|
proceeding under section 2953.21 of the Revised Code, the | 611 |
|
petitioner has received a sentence of death, and the proceeding | 612 |
|
relates to that sentence, all of the attorneys who represent the | 613 |
|
petitioner in the proceeding pursuant to the appointment, whether | 614 |
|
an assistant state public defender, the state public defender, or | 615 |
|
another attorney, shall be certified under Rule 20 of the Rules of | 616 |
|
Superintendence for the Courts of Ohio to represent indigent | 617 |
|
defendants charged with or convicted of an offense for which the | 618 |
|
death penalty can be or has been imposed. | 619 |
| Sec. 120.08. There is hereby created in the state treasury | 625 |
|
the indigent defense support fund, consisting of money paid into | 626 |
|
the fund pursuant to sections 4507.45, 4509.101, 4510.22, and | 627 |
|
4511.19 of the Revised Code and pursuant to sections 2937.22, | 628 |
|
2949.091, and 2949.094 of the Revised Code out of the additional | 629 |
|
court costs imposed under those sections. The state public | 630 |
|
defender shall use at least eighty-eight per cent of the money in | 631 |
|
the fund for the purposes of reimbursing county governments for | 632 |
expenses incurred pursuant to sections 120.18, 120.28, and 120.33 | 633 |
|
of the Revised Code and operating its system pursuant to division | 634 |
|
(C)(7) of section 120.04 of the Revised Code and division (B) of | 635 |
|
section 120.33 of the Revised Code. Disbursements from the fund to | 636 |
county governments shall be made at least once per year and shall | 637 |
|
be allocated proportionately so that each county receives an equal | 638 |
|
percentage of its total cost for operating its county public | 639 |
|
defender system, its joint county public defender system, its | 640 |
|
county appointed counsel system, or its system operated under | 641 |
|
division (C)(7) of section 120.04 of the Revised Code and division | 642 |
|
(B) of section 120.33 of the Revised Code. The state public | 643 |
|
defender may use not more than twelve per cent of the money in the | 644 |
|
fund for the purposes of appointing assistant state public | 645 |
|
defenders, providing other personnel, equipment, and facilities | 646 |
|
necessary for the operation of the state public defender office, | 647 |
|
and providing training, developing and implementing electronic | 648 |
|
forms, or establishing and maintaining an information technology | 649 |
|
system used for the uniform operation of this chapter. | 650 |
Sec. 120.13. (A) TheUpon approval of the state public | 651 |
|
defender, the county commissioners in any county may establish or | 652 |
|
maintain a county public defender commission. The commission shall | 653 |
|
have five members, three of whom shall be appointed by the board | 654 |
|
of county commissioners, and two by the judge, or the presiding | 655 |
|
judge if there is one, of the court of common pleas of the county. | 656 |
|
At least one member appointed by each of these appointing bodies | 657 |
|
shall be an attorney admitted to the practice of law in this | 658 |
|
state. | 659 |
| (C) Of the initial appointments made to the county public | 664 |
|
defender commission, two appointments by the county commissioners | 665 |
|
and one appointment by the court shall be for a term of two years | 666 |
|
ending two years after the date the commission is established, and | 667 |
|
one appointment by each of the appointing bodies shall be for a | 668 |
|
term ending four years after the date the commission is | 669 |
|
established. Thereafter, terms of office shall be for four years, | 670 |
|
each term ending on the same day of the same month of the year as | 671 |
|
did the term which it succeeds. Each member shall hold office from | 672 |
|
the date of appointment until the end of the term for which the | 673 |
|
member was appointed. Any member appointed to fill a vacancy | 674 |
|
occurring prior to the expiration of the term for which the | 675 |
|
member's predecessor was appointed shall hold office for the | 676 |
|
remainder of such term. Any member shall continue in office | 677 |
|
subsequent to the expiration date of the member's term until a | 678 |
|
successor takes office, or until a period of sixty days has | 679 |
|
elapsed, whichever occurs first. | 680 |
| (D) The members of the commission shall choose as chairperson | 681 |
|
one of the commission members, who shall serve as chairperson for | 682 |
|
two years. Meetings shall be held at least quarterly and at such | 683 |
|
other times as called by the chairperson or by request of the | 684 |
|
county public defender. Members of the commission may receive an | 685 |
|
amount fixed by the county commissioners, but not in excess of the | 686 |
|
amounts set for the members of the Ohio public defender commission | 687 |
|
pursuant to section 124.14 of the Revised Code per diem for every | 688 |
|
meeting of the board they attend, and necessary expenses including | 689 |
|
mileage for each mile necessarily traveled. | 690 |
| (F) A county public defender commission, with the approval of | 750 |
|
the board of county commissioners regarding all provisions that | 751 |
|
pertain to the financing of defense counsel for indigent persons, | 752 |
|
may contract with the state public defender or with any nonprofit | 753 |
|
organization, the primary purpose of which is to provide legal | 754 |
|
representation to indigent persons, for the state public defender | 755 |
|
or the organization to provide all or any part of the services | 756 |
|
that a county public defender is required or permitted to provide | 757 |
|
by this chapter. A contract entered into pursuant to this division | 758 |
|
may provide for payment for the services provided on a per case, | 759 |
|
hourly, or fixed contract basis. The state public defender and any | 760 |
|
nonprofit organization that contracts with a county public | 761 |
|
defender commission pursuant to this division shall do all of the | 762 |
|
following: | 763 |
| (2) Keep and maintain financial records of all cases handled | 782 |
|
and develop records for use in the calculation of direct and | 783 |
|
indirect costs in the operation of the office and report monthly | 784 |
|
pursuant to the rules of the Ohio public defender commission to | 785 |
|
the county public defender commission and to the Ohio public | 786 |
|
defender commission on all relevant data on the operations of the | 787 |
|
office, costs, projected needs, and recommendations for | 788 |
|
legislation or amendments to court rules, as may be appropriate to | 789 |
|
improve the criminal justice system; | 790 |
(E) Nothing in this section shall prevent a court from | 846 |
appointing counsel other than the county public defender or from | 847 |
allowing an indigent person to select the indigent person's own | 848 |
personal counsel to represent the indigent person. A court may | 849 |
also appoint counsel or allow an indigent person to select the | 850 |
indigent person's own personal counsel to assist the county public | 851 |
defender as co-counsel when the interests of justice so requireA | 852 |
|
court may appoint counsel other than the county public defender | 853 |
|
when the county public defender cannot provide representation due | 854 |
|
to a conflict of interest or when, according to rules established | 855 |
|
by the Ohio public defender commission, the workload of the county | 856 |
|
public defender is of such size or complexity as to threaten the | 857 |
|
quality of representation of the client by the county public | 858 |
|
defender. | 859 |
| (G) If a court appoints the office of the county public | 864 |
|
defender to represent a petitioner in a postconviction relief | 865 |
|
proceeding under section 2953.21 of the Revised Code, the | 866 |
|
petitioner has received a sentence of death, and the proceeding | 867 |
|
relates to that sentence, all of the attorneys who represent the | 868 |
|
petitioner in the proceeding pursuant to the appointment, whether | 869 |
|
an assistant county public defender or the county public defender, | 870 |
|
shall be certified under Rule 20 of the Rules of Superintendence | 871 |
|
for the Courts of Ohio to represent indigent defendants charged | 872 |
|
with or convicted of an offense for which the death penalty can be | 873 |
|
or has been imposed. | 874 |
| Sec. 120.18. (A) The county public defender commission's | 880 |
|
report to the board of county commissioners shall be audited by | 881 |
|
the county auditor. The board of county commissioners, after | 882 |
|
review and approval of the audited report, may then certify it to | 883 |
|
the state public defender for reimbursement. If a request for the | 884 |
|
reimbursement of any operating expenditure incurred by a county | 885 |
|
public defender office is not received by the state public | 886 |
|
defender within sixty days after the end of the calendar month in | 887 |
|
which the expenditure is incurred, the state public defender shall | 888 |
|
not pay the requested reimbursement, unless the county has | 889 |
|
requested, and the state public defender has granted, an extension | 890 |
|
of the sixty-day time limit. Each request for reimbursement shall | 891 |
|
include a certification by the county public defender that the | 892 |
|
persons provided representation by the county public defender's | 893 |
|
office during the period covered by the report were indigent and, | 894 |
|
for each person provided representation during that period, a | 895 |
|
financial disclosure form completed by the person on a form | 896 |
|
prescribed by the state public defender. The state public defender | 897 |
|
shall also review the report and, in accordance with the | 898 |
|
standards, guidelines, and maximums established pursuant to | 899 |
|
divisions (B)(7) and (8) of section 120.04 of the Revised Code, | 900 |
prepare a voucher for fifty per centa percentage defined in | 901 |
|
division (C) of this section of the total cost of each county | 902 |
|
public defender's office for the period of time covered by the | 903 |
certified report and a voucher for fifty per centa percentage | 904 |
|
defined in division (C) of this section of the costs and expenses | 905 |
|
that are reimbursable under section 120.35 of the Revised Code, if | 906 |
any, or, if the amount of money appropriated by the general | 907 |
assembly to reimburse counties for the operation of county public | 908 |
defender offices, joint county public defender offices, and county | 909 |
appointed counsel systems is not sufficient to pay fifty per cent | 910 |
of the total cost of all of the offices and systems, for the | 911 |
lesser amount required by section 120.34 of the Revised Code. For | 912 |
|
the purposes of this section, "total cost" means total expenses | 913 |
|
minus costs and expenses reimbursable under section 120.35 of the | 914 |
|
Revised Code and any funds received by the county public defender | 915 |
|
commission pursuant to a contract, except a contract entered into | 916 |
|
with a municipal corporation pursuant to division (E) of section | 917 |
|
120.14 of the Revised Code, gift, or grant. | 918 |
| (B) If the county public defender fails to maintain the | 919 |
|
standards for the conduct of the office established by rules of | 920 |
|
the Ohio public defender commission pursuant to divisions (B) and | 921 |
|
(C) of section 120.03 or the standards established by the state | 922 |
|
public defender pursuant to division (B)(7) of section 120.04 of | 923 |
|
the Revised Code, the Ohio public defender commission shall notify | 924 |
|
the county public defender commission and the board of county | 925 |
|
commissioners of the county that the county public defender has | 926 |
|
failed to comply with its rules or the standards of the state | 927 |
|
public defender. Unless the county public defender commission or | 928 |
|
the county public defender corrects the conduct of the county | 929 |
|
public defender's office to comply with the rules and standards | 930 |
|
within ninety days after the date of the notice, the state public | 931 |
|
defender may deny payment of all or part of the county's | 932 |
|
reimbursement from the state provided for in division (A) of this | 933 |
|
section. | 934 |
Sec. 120.23. (A) The boards of county commissioners in two | 968 |
or more adjoining or neighboring counties may form themselves into | 969 |
a joint board and proceed to organize a district for the | 970 |
establishment of a joint county public defender commission. The | 971 |
commission shall have three members from each county, who shall be | 972 |
appointed by the board of county commissioners of the countyThere | 973 |
|
shall be a regional director for each regional state public | 974 |
|
defender office established by the state public defender. The | 975 |
|
state public defender shall appoint each regional director from a | 976 |
|
list of not less than six nominees. In each region that consists | 977 |
|
of one or two counties, the legislative authority of each county | 978 |
|
shall nominate three persons, and the judges of the court of | 979 |
|
common pleas of each county collectively shall nominate three | 980 |
|
persons. In each region that consists of three or more counties, | 981 |
|
the legislative authority of each county shall nominate one | 982 |
|
person, and the judges of the court of common pleas of each county | 983 |
|
collectively shall nominate one person. The regional director | 984 |
|
shall serve at the pleasure of the state public defender. No | 985 |
|
person who has been discharged for cause as a regional director by | 986 |
|
the state public defender may be nominated to be a regional | 987 |
|
director. | 988 |
(C) Of the initial appointments made by each county to the | 998 |
joint county public defender commission, one appointment shall be | 999 |
for a term of one year ending one year after the date the | 1000 |
commission is established, one appointment shall be for a term of | 1001 |
two years ending two years after the date the commission is | 1002 |
established, and one appointment shall be for a period of three | 1003 |
years, ending three years after the date the commission is | 1004 |
established. Thereafter, terms of office shall be for three years, | 1005 |
each term ending on the same day of the same month of the year as | 1006 |
did the term which it succeeds. Each member shall hold office from | 1007 |
the date of appointment until the end of the term for which the | 1008 |
member was appointed. Any member appointed to fill a vacancy | 1009 |
occurring prior to the expiration of the term for which the | 1010 |
member's predecessor was appointed shall hold office for the | 1011 |
remainder of the term. Any member shall continue in office | 1012 |
subsequent to the expiration date of the member's term until a | 1013 |
successor takes office, or until a period of sixty days has | 1014 |
elapsed, whichever occurs firstIn any county where a regional or | 1015 |
|
district office has been established, the state public defender | 1016 |
|
shall calculate total costs for providing such services within the | 1017 |
|
county and shall send to the county in which the services are | 1018 |
|
rendered a bill detailing the actual cost of the representation | 1019 |
|
and operations. The county, upon receipt of a bill from the state | 1020 |
|
public defender pursuant to this division, shall pay the state | 1021 |
|
public defender one hundred per cent of the amount identified less | 1022 |
|
the state reimbursement rate pursuant to section 120.18 of the | 1023 |
|
Revised Code. | 1024 |
(D) The members of the commission shall choose as chairperson | 1025 |
one of the commission members, who shall serve as chairperson for | 1026 |
two years. Meetings shall be held at least quarterly and at such | 1027 |
other times as called by the chairperson or by request of the | 1028 |
joint county public defender. Members of the commission may | 1029 |
receive an amount fixed by the agreement of the boards of | 1030 |
commissioners of the counties in the district, but not in excess | 1031 |
of the amount set for the members of the Ohio public defender | 1032 |
commission pursuant to section 124.14 of the Revised Code per diem | 1033 |
for every meeting of the commission they attend, and necessary | 1034 |
expenses including mileage for each mile necessarily traveled. | 1035 |
(H) The board of county commissioners of any county within a | 1058 |
joint county public defender commission district may withdraw from | 1059 |
the district. Such withdrawal shall not be effective until at | 1060 |
least ninety days after the board has notified the Ohio public | 1061 |
defender commission, the joint county public defender commission | 1062 |
of the district, and each board of county commissioners in the | 1063 |
district, in writing of the termination date. The failure of a | 1064 |
board of county commissioners to approve an annual operating | 1065 |
budget for the office of the joint county public defender as | 1066 |
provided in division (C)(1) of section 120.24 of the Revised Code | 1067 |
constitutes a notice of withdrawal by the county from the | 1068 |
district, effective on the ninetieth day after commencement of the | 1069 |
next fiscal year. Upon the termination date, all joint county | 1070 |
public defender matters relating to the withdrawing county shall | 1071 |
be transferred to the state public defender, a county public | 1072 |
defender, or appointed counsel. | 1073 |
| Sec. 120.33. (A) In lieu of using a county public defender | 1089 |
or joint county public defender to represent indigent persons in | 1090 |
|
the proceedings set forth in division (A) of section 120.16 of the | 1091 |
|
Revised Code and upon approval of the state public defender, the | 1092 |
|
board of county commissioners of any county may adopt a resolution | 1093 |
|
to pay counsel who are either personally selected by the indigent | 1094 |
|
person or appointed by the court. The resolution shall include | 1095 |
|
those provisions the board of county commissioners considers | 1096 |
|
necessary to provide effective representation of indigent persons | 1097 |
|
in any proceeding for which counsel is provided under this | 1098 |
|
section. The resolution shall include provisions for contracts | 1099 |
|
with any municipal corporation under which the municipal | 1100 |
|
corporation shall reimburse the county for counsel appointed to | 1101 |
|
represent indigent persons charged with violations of the | 1102 |
|
ordinances of the municipal corporation. Counsel appointed by any | 1103 |
|
court shall be paid in accordance with the hourly rates and per | 1104 |
|
case maximums established by the Ohio public defender commission | 1105 |
|
pursuant to division (B)(14) of section 120.04 of the Revised | 1106 |
|
Code. | 1107 |
(4) Counsel selected by the indigent person or appointed by | 1135 |
|
the court at the request of an indigent person in a county that | 1136 |
|
adopts a resolution to pay counsel, except for counsel appointed | 1137 |
|
to represent a person charged with any violation of an ordinance | 1138 |
|
of a municipal corporation that has not contracted with the county | 1139 |
|
commissioners for the payment of appointed counsel, shall be paid | 1140 |
|
by the county and shall receive the compensation and expenses the | 1141 |
|
court approves. Each request for payment shall be accompanied by a | 1142 |
financial disclosure form and an affidavit of indigency that are | 1143 |
|
completed by the indigent person on forms prescribed by the state | 1144 |
public defender.
Compensation and expenses shall not exceed the | 1145 |
amounts fixed by the board of county commissioners in the schedule | 1146 |
adopted pursuant to division (A)(3) of this section. No court | 1147 |
|
shall approve compensation and expenses that exceed the amount | 1148 |
fixed pursuant to division (A)(3)(B)(14) of this section 120.04 of | 1149 |
|
the Revised Code. | 1150 |
| The fees and expenses approved by the court shall not be | 1151 |
|
taxed as part of the costs and shall be paid by the county. | 1152 |
|
However, if the person represented has, or may reasonably be | 1153 |
|
expected to have, the means to meet some part of the cost of the | 1154 |
|
services rendered to the person, the person shall pay the county | 1155 |
|
an amount that the person reasonably can be expected to pay. | 1156 |
|
Pursuant to section 120.04 of the Revised Code, the county shall | 1157 |
|
pay to the state public defender a percentage of the payment | 1158 |
|
received from the person in an amount proportionate to the | 1159 |
|
percentage of the costs of the person's case that were paid to the | 1160 |
|
county by the state public defender pursuant to this section. The | 1161 |
|
money paid to the state public defender shall be credited to the | 1162 |
|
client payment fund created pursuant to division (B)(5) of section | 1163 |
|
120.04 of the Revised Code. | 1164 |
| The county auditor shall draw a warrant on the county | 1165 |
|
treasurer for the payment of counsel in the amount fixed by the | 1166 |
|
court, plus the expenses the court fixes and certifies to the | 1167 |
|
auditor. The county auditor shall report periodically, but not | 1168 |
|
less than annually, to the board of county commissioners and to | 1169 |
|
the state public defender the amounts paid out pursuant to the | 1170 |
|
approval of the court. The board of county commissioners, after | 1171 |
|
review and approval of the auditor's report, or the county | 1172 |
|
auditor, with permission from and notice to the board of county | 1173 |
|
commissioners, may then certify it to the state public defender | 1174 |
|
for reimbursement. The state public defender may pay a requested | 1175 |
|
reimbursement only if the request for reimbursement is accompanied | 1176 |
by a financial disclosure form
and an affidavit of indigency | 1177 |
|
completed by the indigent person on forms prescribed by the state | 1178 |
|
public defender or if the court certifies by electronic signature | 1179 |
|
as prescribed by the state public defender that a financial | 1180 |
disclosure form and affidavit of indigency havehas been completed | 1181 |
|
by the indigent person and are available for inspection. If a | 1182 |
|
request for the reimbursement of the cost of counsel in any case | 1183 |
|
is not received by the state public defender within ninety days | 1184 |
|
after the end of the calendar month in which the case is finally | 1185 |
|
disposed of by the court, unless the county has requested and the | 1186 |
|
state public defender has granted an extension of the ninety-day | 1187 |
|
limit, the state public defender shall not pay the requested | 1188 |
|
reimbursement. The state public defender shall also review the | 1189 |
|
report and, in accordance with the standards, guidelines, and | 1190 |
|
maximums established pursuant to divisions (B)(7) and (8) of | 1191 |
section 120.04 of the Revised Code, prepare a voucher for fifty | 1192 |
per centa percentage defined in division (A)(4) of this section | 1193 |
|
of the total cost of each county appointed counsel system in the | 1194 |
|
period of time covered by the certified report and a voucher for | 1195 |
fifty per centa percentage defined in division (A)(4) of this | 1196 |
|
section of the costs and expenses that are reimbursable under | 1197 |
section 120.35 of the Revised Code, if any, or, if the amount of | 1198 |
money appropriated by the general assembly to reimburse counties | 1199 |
for the operation of county public defender offices, joint county | 1200 |
public defender offices, and county appointed counsel systems is | 1201 |
not sufficient to pay fifty per cent of the total cost of all of | 1202 |
the offices and systems other than costs and expenses that are | 1203 |
reimbursable under section 120.35 of the Revised Code, for the | 1204 |
lesser amount required by section 120.34 of the Revised Code. | 1205 |
| (5) If any county appointed counsel system fails to maintain | 1239 |
|
the standards for the conduct of the system established by the | 1240 |
|
rules of the Ohio public defender commission pursuant to divisions | 1241 |
|
(B) and (C) of section 120.03 or the standards established by the | 1242 |
|
state public defender pursuant to division (B)(7) of section | 1243 |
|
120.04 of the Revised Code, the Ohio public defender commission | 1244 |
|
shall notify the board of county commissioners of the county that | 1245 |
|
the county appointed counsel system has failed to comply with its | 1246 |
|
rules or the standards of the state public defender. Unless the | 1247 |
|
board of county commissioners corrects the conduct of its | 1248 |
|
appointed counsel system to comply with the rules and standards | 1249 |
|
within ninety days after the date of the notice, the state public | 1250 |
|
defender may deny all or part of the county's reimbursement from | 1251 |
the state provided for in division (A)(4)(3) of this section. | 1252 |
(B) In lieu of using a county public defender or joint county | 1253 |
public defender to represent indigent persons in the proceedings | 1254 |
|
set forth in division (A) of section 120.16 of the Revised Code, | 1255 |
|
and in lieu of adopting the resolution and following the procedure | 1256 |
|
described in division (A) of this section, the board of county | 1257 |
|
commissioners of any county may contract with the state public | 1258 |
|
defender for the state public defender's legal representation of | 1259 |
|
indigent persons. A contract entered into pursuant to this | 1260 |
|
division may provide for payment for the services provided on a | 1261 |
|
per case, hourly, or fixed contract basis. | 1262 |
| (C) If a court appoints an attorney pursuant to this section | 1263 |
|
to represent a petitioner in a postconviction relief proceeding | 1264 |
|
under section 2953.21 of the Revised Code, the petitioner has | 1265 |
|
received a sentence of death, and the proceeding relates to that | 1266 |
|
sentence, the attorney who represents the petitioner in the | 1267 |
|
proceeding pursuant to the appointment shall be certified under | 1268 |
|
Rule 20 of the Rules of Superintendence for the Courts of Ohio to | 1269 |
|
represent indigent defendants charged with or convicted of an | 1270 |
|
offense for which the death penalty can be or has been imposed. | 1271 |
Sec. 120.34. The total amount of money paid to all counties | 1272 |
in any fiscal year pursuant to sections 120.18, 120.28, and 120.33 | 1273 |
of the Revised Code for the reimbursement of a percentage of the | 1274 |
counties' cost of operating county public defender offices, joint | 1275 |
county public defender offices, and county appointed counsel | 1276 |
systems shall not exceed the total amount appropriated for that | 1277 |
fiscal year by the general assembly for the reimbursement of the | 1278 |
counties for the operation of the offices and systems. If the | 1279 |
amount appropriated by the general assembly in any fiscal year is | 1280 |
insufficient to pay fifty per cent of the total cost in the fiscal | 1281 |
year of all county public defender offices, all joint county | 1282 |
public defender offices, and all county appointed counsel systems, | 1283 |
the amount of money paid in that fiscal year pursuant to sections | 1284 |
120.18, 120.28, and 120.33 of the Revised Code to each county for | 1285 |
the fiscal year shall be reduced proportionately so that each | 1286 |
county is paid an equal percentage of its total cost in the fiscal | 1287 |
year for operating its county public defender system, its joint | 1288 |
county public defender system, and its county appointed counsel | 1289 |
system. | 1290 |
The total amount of money paid to all counties in any fiscal | 1291 |
year pursuant to section 120.35 of the Revised Code for the | 1292 |
reimbursement of a percentage of the counties' costs and expenses | 1293 |
of conducting the defense in capital cases shall not exceed the | 1294 |
total amount appropriated for that fiscal year by the general | 1295 |
assembly for the reimbursement of the counties for conducting the | 1296 |
defense in capital cases. If the amount appropriated by the | 1297 |
general assembly in any fiscal year is insufficient to pay fifty | 1298 |
per cent of the counties' total costs and expenses of conducting | 1299 |
the defense in capital cases in the fiscal year, the amount of | 1300 |
money paid in that fiscal year pursuant to section 120.35 of the | 1301 |
Revised Code to each county for the fiscal year shall be reduced | 1302 |
proportionately so that each county is paid an equal percentage of | 1303 |
its costs and expenses of conducting the defense in capital cases | 1304 |
in the fiscal year. | 1305 |
| Sec. 120.36. (A)(1) Subject to division (A)(2), (3), (4), | 1328 |
|
(5), or (6) of this section, if a person who is a defendant in a | 1329 |
|
criminal case or a party in a case in juvenile court requests or | 1330 |
is provided a state public defender, a county or joint county | 1331 |
|
public defender, or any other counsel appointed by the court, the | 1332 |
|
court in which the criminal case is initially filed or the | 1333 |
|
juvenile court, whichever is applicable, shall assess, unless the | 1334 |
|
application fee is waived or reduced, a non-refundable application | 1335 |
|
fee of twenty-five dollars. | 1336 |
| The court shall direct the person to pay the application fee | 1337 |
|
to the clerk of court. The person shall pay the application fee to | 1338 |
the clerk of court at the time the person files an affidavit of | 1339 |
indigency or a financial disclosure form with the court, a state | 1340 |
public defender, a county or joint county public defender, or any | 1341 |
|
other counsel appointed by the court or within seven days of that | 1342 |
|
date. If the person does not pay the application fee within that | 1343 |
|
seven-day period, the court shall assess the application fee at | 1344 |
|
sentencing or at the final disposition of the case. | 1345 |
| (7) The court shall assess an application fee pursuant to | 1374 |
|
this section one time per case. For purposes of assessing the | 1375 |
|
application fee, a case means one complete proceeding or trial | 1376 |
|
held in one court for a person on an indictment, information, | 1377 |
|
complaint, petition, citation, writ, motion, or other document | 1378 |
|
initiating a case that arises out of a single incident or a series | 1379 |
|
of related incidents, or when one individual is charged with two | 1380 |
|
or more offenses that the court handles simultaneously. The court | 1381 |
|
may waive or reduce the fee for a specific person in a specific | 1382 |
|
case upon a finding that the person lacks financial resources that | 1383 |
|
are sufficient to pay the fee or that payment of the fee would | 1384 |
|
result in an undue hardship. | 1385 |
| (D) The clerk of the court that assessed the fees shall | 1398 |
|
forward all application fees collected pursuant to this section to | 1399 |
|
the county treasurer for deposit in the county treasury. The | 1400 |
|
county shall retain eighty per cent of the application fees so | 1401 |
|
collected to offset the costs of providing legal representation to | 1402 |
|
indigent persons. Not later than the last day of each month, the | 1403 |
|
county auditor shall remit twenty per cent of the application fees | 1404 |
|
so collected in the previous month to the state public defender. | 1405 |
|
The state public defender shall deposit the remitted fees into the | 1406 |
|
state treasury to the credit of the client payment fund created | 1407 |
|
pursuant to division (B)(5) of section 120.04 of the Revised Code. | 1408 |
|
The state public defender may use that money in accordance with | 1409 |
|
that section. | 1410 |
| (H) The board of county commissioners of each county may | 1486 |
|
procure a policy or policies of insurance insuring the county | 1487 |
|
public defender and the members of the county public defender | 1488 |
|
commission against liability arising from the performance of their | 1489 |
official duties. A joint board of county commissioners formed | 1490 |
pursuant to section 120.23 of the Revised Code may, in accordance | 1491 |
with the agreement of the participating boards of county | 1492 |
commissioners, procure a policy or policies of insurance insuring | 1493 |
the joint county public defender and the members of the joint | 1494 |
county public defender commission against liability arising from | 1495 |
the performance of their official duties. | 1496 |
| Sec. 2941.51. (A) Counsel appointed to a case or selected by | 1502 |
an indigent person under division (E) of section 120.16 or | 1503 |
division (E) of section 120.26 of the Revised Code, or otherwise | 1504 |
appointed by the court, except for counsel appointed by the court | 1505 |
to provide legal representation for a person charged with a | 1506 |
violation of an ordinance of a municipal corporation, shall be | 1507 |
paid for their services by the county the compensation and | 1508 |
|
expenses that the trial court approves. Compensation and expenses | 1509 |
|
shall comply with the hourly rates and per case maximums | 1510 |
|
established by the state public defender pursuant to division | 1511 |
|
(B)(14) of section 120.04 of the Revised Code. Each request for | 1512 |
payment shall be accompanied by a financial disclosure form and an | 1513 |
affidavit of indigency that areis completed by the indigent | 1514 |
|
person on forms prescribed by the state public defender. | 1515 |
Compensation and expenses shall not exceed the amounts fixed by | 1516 |
the board of county commissioners pursuant to division (B) of this | 1517 |
section. | 1518 |
(D)(C) The fees and expenses approved by the court under this | 1530 |
|
section shall not be taxed as part of the costs and shall be paid | 1531 |
|
by the county. However, if the person represented has, or | 1532 |
|
reasonably may be expected to have, the means to meet some part of | 1533 |
|
the cost of the services rendered to the person, the person shall | 1534 |
|
pay the county an amount that the person reasonably can be | 1535 |
|
expected to pay. Pursuant to section 120.04 of the Revised Code, | 1536 |
|
the county shall pay to the state public defender a percentage of | 1537 |
|
the payment received from the person in an amount proportionate to | 1538 |
|
the percentage of the costs of the person's case that were paid to | 1539 |
|
the county by the state public defender pursuant to this section. | 1540 |
|
The money paid to the state public defender shall be credited to | 1541 |
|
the client payment fund created pursuant to division (B)(5) of | 1542 |
|
section 120.04 of the Revised Code. | 1543 |
(E)(D) The county auditor shall draw a warrant on the county | 1544 |
|
treasurer for the payment of such counsel in the amount fixed by | 1545 |
|
the court, plus the expenses that the court fixes and certifies to | 1546 |
|
the auditor. The county auditor shall report periodically, but not | 1547 |
|
less than annually, to the board of county commissioners and to | 1548 |
|
the Ohio public defender commission the amounts paid out pursuant | 1549 |
|
to the approval of the court under this section, separately | 1550 |
|
stating costs and expenses that are reimbursable under section | 1551 |
|
120.35 of the Revised Code. The board, after review and approval | 1552 |
|
of the auditor's report, may then certify it to the state public | 1553 |
|
defender for reimbursement. The request for reimbursement shall be | 1554 |
|
accompanied by a financial disclosure form completed by each | 1555 |
|
indigent person for whom counsel was provided on a form prescribed | 1556 |
|
by the state public defender. The state public defender shall | 1557 |
|
review the report and, in accordance with the standards, | 1558 |
|
guidelines, and maximums established pursuant to divisions (B)(7) | 1559 |
and (8) of section 120.04 of the Revised Code, pay fifty per cent | 1560 |
| a percentage in accordance with division (A)(4) of section 120.33 | 1561 |
|
of the Revised Code of the total cost, other than costs and | 1562 |
|
expenses that are reimbursable under section 120.35 of the Revised | 1563 |
|
Code, if any, of paying appointed counsel in each county and pay | 1564 |
|
fifty per cent of costs and expenses that are reimbursable under | 1565 |
|
section 120.35 of the Revised Code, if any, to the board. | 1566 |
(F)(E) If any county system for paying appointed counsel | 1567 |
|
fails to maintain the standards for the conduct of the system | 1568 |
|
established by the rules of the Ohio public defender commission | 1569 |
|
pursuant to divisions (B) and (C) of section 120.03 of the Revised | 1570 |
|
Code or the standards established by the state public defender | 1571 |
|
pursuant to division (B)(7) of section 120.04 of the Revised Code, | 1572 |
|
the commission shall notify the board of county commissioners of | 1573 |
|
the county that the county system for paying appointed counsel has | 1574 |
|
failed to comply with its rules. Unless the board corrects the | 1575 |
|
conduct of its appointed counsel system to comply with the rules | 1576 |
|
within ninety days after the date of the notice, the state public | 1577 |
|
defender may deny all or part of the county's reimbursement from | 1578 |
|
the state provided for in this section. | 1579 |
| (6) "Conditional release" means a commitment status under | 1614 |
|
which the trial court at any time may revoke a person's | 1615 |
|
conditional release and order the rehospitalization or | 1616 |
|
reinstitutionalization of the person as described in division (A) | 1617 |
|
of section 2945.402 of the Revised Code and pursuant to which a | 1618 |
|
person who is found incompetent to stand trial or a person who is | 1619 |
|
found not guilty by reason of insanity lives and receives | 1620 |
|
treatment in the community for a period of time that does not | 1621 |
|
exceed the maximum prison term or term of imprisonment that the | 1622 |
|
person could have received for the offense in question had the | 1623 |
|
person been convicted of the offense instead of being found | 1624 |
|
incompetent to stand trial on the charge of the offense or being | 1625 |
|
found not guilty by reason of insanity relative to the offense. | 1626 |
| (B) In a criminal action in a court of common pleas, a county | 1633 |
|
court, or a municipal court, the court, prosecutor, or defense may | 1634 |
|
raise the issue of the defendant's competence to stand trial. If | 1635 |
|
the issue is raised before the trial has commenced, the court | 1636 |
|
shall hold a hearing on the issue as provided in this section. If | 1637 |
|
the issue is raised after the trial has commenced, the court shall | 1638 |
|
hold a hearing on the issue only for good cause shown or on the | 1639 |
|
court's own motion. | 1640 |
| (C) The court shall conduct the hearing required or | 1641 |
|
authorized under division (B) of this section within thirty days | 1642 |
|
after the issue is raised, unless the defendant has been referred | 1643 |
|
for evaluation in which case the court shall conduct the hearing | 1644 |
|
within ten days after the filing of the report of the evaluation | 1645 |
|
or, in the case of a defendant who is ordered by the court | 1646 |
|
pursuant to division (H) of section 2945.371 of the Revised Code | 1647 |
|
to undergo a separate mental retardation evaluation conducted by a | 1648 |
|
psychologist designated by the director of developmental | 1649 |
|
disabilities, within ten days after the filing of the report of | 1650 |
|
the separate mental retardation evaluation under that division. A | 1651 |
|
hearing may be continued for good cause. | 1652 |
| (G) A defendant is presumed to be competent to stand trial. | 1675 |
|
If, after a hearing, the court finds by a preponderance of the | 1676 |
|
evidence that, because of the defendant's present mental | 1677 |
|
condition, the defendant is incapable of understanding the nature | 1678 |
|
and objective of the proceedings against the defendant or of | 1679 |
|
assisting in the defendant's defense, the court shall find the | 1680 |
|
defendant incompetent to stand trial and shall enter an order | 1681 |
|
authorized by section 2945.38 of the Revised Code. | 1682 |
| (H) Municipal courts shall follow the procedures set forth in | 1683 |
|
sections 2945.37 to 2945.402 of the Revised Code. Except as | 1684 |
|
provided in section 2945.371 of the Revised Code, a municipal | 1685 |
|
court shall not order an evaluation of the defendant's competence | 1686 |
|
to stand trial or the defendant's mental condition at the time of | 1687 |
|
the commission of the offense to be conducted at any hospital | 1688 |
|
operated by the department of mental health. Those evaluations | 1689 |
|
shall be performed through community resources including, but not | 1690 |
|
limited to, certified forensic centers, court probation | 1691 |
|
departments, and community mental health agencies. All expenses of | 1692 |
|
the evaluations shall be borne by the legislative authority of the | 1693 |
|
municipal court, as defined in section 1901.03 of the Revised | 1694 |
|
Code, and shall be taxed as costs in the case. If a defendant is | 1695 |
|
found incompetent to stand trial or not guilty by reason of | 1696 |
|
insanity, a municipal court may commit the defendant as provided | 1697 |
|
in sections 2945.38 to 2945.402 of the Revised Code. | 1698 |
| Sec. 2945.40. (A) If a person is found not guilty by reason | 1699 |
|
of insanity, the verdict shall state that finding, and the trial | 1700 |
|
court shall conduct a full hearing to determine whether the person | 1701 |
|
is a mentally ill person subject to hospitalization by court order | 1702 |
|
or a mentally retarded person subject to institutionalization by | 1703 |
|
court order. Prior to the hearing, if the trial judge believes | 1704 |
|
that there is probable cause that the person found not guilty by | 1705 |
|
reason of insanity is a mentally ill person subject to | 1706 |
|
hospitalization by court order or mentally retarded person subject | 1707 |
|
to institutionalization by court order, the trial judge may issue | 1708 |
|
a temporary order of detention for that person to remain in effect | 1709 |
|
for ten court days or until the hearing, whichever occurs first. | 1710 |
| (B) The court shall hold the hearing under division (A) of | 1715 |
|
this section to determine whether the person found not guilty by | 1716 |
|
reason of insanity is a mentally ill person subject to | 1717 |
|
hospitalization by court order or a mentally retarded person | 1718 |
|
subject to institutionalization by court order within ten court | 1719 |
|
days after the finding of not guilty by reason of insanity. | 1720 |
|
Failure to conduct the hearing within the ten-day period shall | 1721 |
|
cause the immediate discharge of the respondent, unless the judge | 1722 |
|
grants a continuance for not longer than ten court days for good | 1723 |
|
cause shown or for any period of time upon motion of the | 1724 |
|
respondent. | 1725 |
| (D) The hearing under division (A) of this section shall be | 1751 |
|
open to the public, and the court shall conduct the hearing in | 1752 |
|
accordance with the Rules of Civil Procedure. The court shall make | 1753 |
|
and maintain a full transcript and record of the hearing | 1754 |
|
proceedings. The court may consider all relevant evidence, | 1755 |
|
including, but not limited to, any relevant psychiatric, | 1756 |
|
psychological, or medical testimony or reports, the acts | 1757 |
|
constituting the offense in relation to which the person was found | 1758 |
|
not guilty by reason of insanity, and any history of the person | 1759 |
|
that is relevant to the person's ability to conform to the law. | 1760 |
| (F) If, at the hearing under division (A) of this section, | 1769 |
|
the court finds by clear and convincing evidence that the person | 1770 |
|
is a mentally ill person subject to hospitalization by court | 1771 |
|
order, the court shall commit the person either to the department | 1772 |
|
of mental health for treatment in a hospital, facility, or agency | 1773 |
|
as determined clinically appropriate by the department of mental | 1774 |
|
health or to another medical or psychiatric facility, as | 1775 |
|
appropriate. Prior to placing the defendant, the department of | 1776 |
|
mental health shall obtain court approval for that placement. If, | 1777 |
|
at the hearing under division (A) of this section, the court | 1778 |
|
determines by clear and convincing evidence that the person | 1779 |
|
requires treatment for mental retardation, it shall commit the | 1780 |
|
person to a facility operated by the department of developmental | 1781 |
|
disabilities or another facility, as appropriate. Further | 1782 |
|
proceedings shall be in accordance with sections 2945.401 and | 1783 |
|
2945.402 of the Revised Code. In determining the place of | 1784 |
|
commitment, the court shall consider the extent to which the | 1785 |
|
person is a danger to the person and to others, the need for | 1786 |
|
security, and the type of crime involved and shall order the least | 1787 |
|
restrictive alternative available that is consistent with public | 1788 |
|
safety and the welfare of the person. In weighing these factors, | 1789 |
|
the court shall give preference to protecting public safety. | 1790 |
| (G) If a court makes a commitment of a person under division | 1791 |
|
(F) of this section, the prosecutor shall send to the hospital, | 1792 |
|
facility, or agency where the person is placed by the department | 1793 |
|
of mental health or to the defendant's place of commitment all | 1794 |
|
reports of the person's current mental condition, and, except as | 1795 |
|
otherwise provided in this division, any other relevant | 1796 |
|
information, including, but not limited to, a transcript of the | 1797 |
|
hearing held pursuant to division (A) of this section, copies of | 1798 |
|
relevant police reports, and copies of any prior arrest and | 1799 |
|
conviction records that pertain to the person and that the | 1800 |
|
prosecutor possesses. The prosecutor shall send the reports of the | 1801 |
|
person's current mental condition in every case of commitment, | 1802 |
|
and, unless the prosecutor determines that the release of any of | 1803 |
|
the other relevant information to unauthorized persons would | 1804 |
|
interfere with the effective prosecution of any person or would | 1805 |
|
create a substantial risk of harm to any person, the prosecutor | 1806 |
|
also shall send the other relevant information. Upon admission of | 1807 |
|
a person committed under division (F) of this section, the place | 1808 |
|
of commitment shall send to the board of alcohol, drug addiction, | 1809 |
|
and mental health services or the community mental health board | 1810 |
|
serving the county in which the charges against the person were | 1811 |
|
filed a copy of all reports of the person's current mental | 1812 |
|
condition and a copy of the other relevant information provided by | 1813 |
|
the prosecutor under this division, including, if provided, a | 1814 |
|
transcript of the hearing held pursuant to division (A) of this | 1815 |
|
section, the relevant police reports, and the prior arrest and | 1816 |
|
conviction records that pertain to the person and that the | 1817 |
|
prosecutor possesses. | 1818 |
| Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 1823 |
|
a criminal offense or adjudicated a delinquent child and who | 1824 |
|
claims that there was such a denial or infringement of the | 1825 |
|
person's rights as to render the judgment void or voidable under | 1826 |
|
the Ohio Constitution or the Constitution of the United States, | 1827 |
|
and any person who has been convicted of a criminal offense that | 1828 |
|
is a felony and who is an offender for whom DNA testing that was | 1829 |
|
performed under sections 2953.71 to 2953.81 of the Revised Code or | 1830 |
|
under former section 2953.82 of the Revised Code and analyzed in | 1831 |
|
the context of and upon consideration of all available admissible | 1832 |
|
evidence related to the person's case as described in division (D) | 1833 |
|
of section 2953.74 of the Revised Code provided results that | 1834 |
|
establish, by clear and convincing evidence, actual innocence of | 1835 |
|
that felony offense or, if the person was sentenced to death, | 1836 |
|
establish, by clear and convincing evidence, actual innocence of | 1837 |
|
the aggravating circumstance or circumstances the person was found | 1838 |
|
guilty of committing and that is or are the basis of that sentence | 1839 |
|
of death, may file a petition in the court that imposed sentence, | 1840 |
|
stating the grounds for relief relied upon, and asking the court | 1841 |
|
to vacate or set aside the judgment or sentence or to grant other | 1842 |
|
appropriate relief. The petitioner may file a supporting affidavit | 1843 |
|
and other documentary evidence in support of the claim for relief. | 1844 |
| (b) As used in division (A)(1)(a) of this section, "actual | 1845 |
|
innocence" means that, had the results of the DNA testing | 1846 |
|
conducted under sections 2953.71 to 2953.81 of the Revised Code or | 1847 |
|
under former section 2953.82 of the Revised Code been presented at | 1848 |
|
trial, and had those results been analyzed in the context of and | 1849 |
|
upon consideration of all available admissible evidence related to | 1850 |
|
the person's case as described in division (D) of section 2953.74 | 1851 |
|
of the Revised Code, no reasonable factfinder would have found the | 1852 |
|
petitioner guilty of the offense of which the petitioner was | 1853 |
|
convicted, or, if the person was sentenced to death, no reasonable | 1854 |
|
factfinder would have found the petitioner guilty of the | 1855 |
|
aggravating circumstance or circumstances the petitioner was found | 1856 |
|
guilty of committing and that is or are the basis of that sentence | 1857 |
|
of death. | 1858 |
| (2) Except as otherwise provided in section 2953.23 of the | 1863 |
|
Revised Code, a petition under division (A)(1) of this section | 1864 |
|
shall be filed no later than one hundred eighty days after the | 1865 |
|
date on which the trial transcript is filed in the court of | 1866 |
|
appeals in the direct appeal of the judgment of conviction or | 1867 |
|
adjudication or, if the direct appeal involves a sentence of | 1868 |
|
death, the date on which the trial transcript is filed in the | 1869 |
|
supreme court. If no appeal is taken, except as otherwise provided | 1870 |
|
in section 2953.23 of the Revised Code, the petition shall be | 1871 |
|
filed no later than one hundred eighty days after the expiration | 1872 |
|
of the time for filing the appeal. | 1873 |
| (5) If the petitioner in a petition filed under division (A) | 1884 |
|
of this section was convicted of or pleaded guilty to a felony, | 1885 |
|
the petition may include a claim that the petitioner was denied | 1886 |
|
the equal protection of the laws in violation of the Ohio | 1887 |
|
Constitution or the United States Constitution because the | 1888 |
|
sentence imposed upon the petitioner for the felony was part of a | 1889 |
|
consistent pattern of disparity in sentencing by the judge who | 1890 |
|
imposed the sentence, with regard to the petitioner's race, | 1891 |
|
gender, ethnic background, or religion. If the supreme court | 1892 |
|
adopts a rule requiring a court of common pleas to maintain | 1893 |
|
information with regard to an offender's race, gender, ethnic | 1894 |
|
background, or religion, the supporting evidence for the petition | 1895 |
|
shall include, but shall not be limited to, a copy of that type of | 1896 |
|
information relative to the petitioner's sentence and copies of | 1897 |
|
that type of information relative to sentences that the same judge | 1898 |
|
imposed upon other persons. | 1899 |
| (C) The court shall consider a petition that is timely filed | 1905 |
|
under division (A)(2) of this section even if a direct appeal of | 1906 |
|
the judgment is pending. Before granting a hearing on a petition | 1907 |
|
filed under division (A) of this section, the court shall | 1908 |
|
determine whether there are substantive grounds for relief. In | 1909 |
|
making such a determination, the court shall consider, in addition | 1910 |
|
to the petition, the supporting affidavits, and the documentary | 1911 |
|
evidence, all the files and records pertaining to the proceedings | 1912 |
|
against the petitioner, including, but not limited to, the | 1913 |
|
indictment, the court's journal entries, the journalized records | 1914 |
|
of the clerk of the court, and the court reporter's transcript. | 1915 |
|
The court reporter's transcript, if ordered and certified by the | 1916 |
|
court, shall be taxed as court costs. If the court dismisses the | 1917 |
|
petition, it shall make and file findings of fact and conclusions | 1918 |
|
of law with respect to such dismissal. | 1919 |
| (G) If the court does not find grounds for granting relief, | 1937 |
|
it shall make and file findings of fact and conclusions of law and | 1938 |
|
shall enter judgment denying relief on the petition. If no direct | 1939 |
|
appeal of the case is pending and the court finds grounds for | 1940 |
|
relief or if a pending direct appeal of the case has been remanded | 1941 |
|
to the court pursuant to a request made pursuant to division (E) | 1942 |
|
of this section and the court finds grounds for granting relief, | 1943 |
|
it shall make and file findings of fact and conclusions of law and | 1944 |
|
shall enter a judgment that vacates and sets aside the judgment in | 1945 |
|
question, and, in the case of a petitioner who is a prisoner in | 1946 |
|
custody, shall discharge or resentence the petitioner or grant a | 1947 |
|
new trial as the court determines appropriate. The court also may | 1948 |
|
make supplementary orders to the relief granted, concerning such | 1949 |
|
matters as rearraignment, retrial, custody, and bail. If the trial | 1950 |
|
court's order granting the petition is reversed on appeal and if | 1951 |
|
the direct appeal of the case has been remanded from an appellate | 1952 |
|
court pursuant to a request under division (E) of this section, | 1953 |
|
the appellate court reversing the order granting the petition | 1954 |
|
shall notify the appellate court in which the direct appeal of the | 1955 |
|
case was pending at the time of the remand of the reversal and | 1956 |
|
remand of the trial court's order. Upon the reversal and remand of | 1957 |
|
the trial court's order granting the petition, regardless of | 1958 |
|
whether notice is sent or received, the direct appeal of the case | 1959 |
|
that was remanded is reinstated. | 1960 |
| (I)(1) If a person sentenced to death intends to file a | 1964 |
|
petition under this section, the court shall appoint counsel to | 1965 |
|
represent the person upon a finding that the person is indigent | 1966 |
|
and that the person either accepts the appointment of counsel or | 1967 |
|
is unable to make a competent decision whether to accept or reject | 1968 |
|
the appointment of counsel. The court may decline to appoint | 1969 |
|
counsel for the person only upon a finding, after a hearing if | 1970 |
|
necessary, that the person rejects the appointment of counsel and | 1971 |
|
understands the legal consequences of that decision or upon a | 1972 |
|
finding that the person is not indigent. | 1973 |
| (2) The court shall not appoint as counsel under division | 1974 |
|
(I)(1) of this section an attorney who represented the petitioner | 1975 |
|
at trial in the case to which the petition relates unless the | 1976 |
|
person and the attorney expressly request the appointment. The | 1977 |
|
court shall appoint as counsel under division (I)(1) of this | 1978 |
|
section only an attorney who is certified under Rule 20 of the | 1979 |
|
Rules of Superintendence for the Courts of Ohio to represent | 1980 |
|
indigent defendants charged with or convicted of an offense for | 1981 |
|
which the death penalty can be or has been imposed. The | 1982 |
|
ineffectiveness or incompetence of counsel during proceedings | 1983 |
|
under this section does not constitute grounds for relief in a | 1984 |
|
proceeding under this section, in an appeal of any action under | 1985 |
|
this section, or in an application to reopen a direct appeal. | 1986 |
| (3) Division (I) of this section does not preclude attorneys | 1987 |
|
who represent the state of Ohio from invoking the provisions of 28 | 1988 |
|
U.S.C. 154 with respect to capital cases that were pending in | 1989 |
|
federal habeas corpus proceedings prior to July 1, 1996, insofar | 1990 |
|
as the petitioners in those cases were represented in proceedings | 1991 |
|
under this section by one or more counsel appointed by the court | 1992 |
under this section or, section 120.06, 120.16, 120.26, or 120.33, | 1993 |
|
or former section 120.26 of the Revised Code and those appointed | 1994 |
|
counsel meet the requirements of division (I)(2) of this section. | 1995 |
| Section 2. That existing sections 120.01, 120.03, 120.04, | 2004 |
|
120.06, 120.08, 120.13, 120.14, 120.15, 120.16, 120.18, 120.23, | 2005 |
|
120.33, 120.34, 120.35, 120.36, 120.40, 307.441, 2941.51, 2945.37, | 2006 |
|
2945.40, and 2953.21 and sections 120.24, 120.25, 120.26, 120.27, | 2007 |
|
and 120.28 of the Revised Code are hereby repealed. | 2008 |
