| Section 1. That sections 120.03, 120.06, 120.14, 120.16, | 18 |
|
120.18, 120.24, 120.26, 120.28, 120.33, 120.34, 1901.183, 2152.13, | 19 |
|
2152.67, 2301.20, 2307.60, 2701.07, 2743.51, 2901.02, 2909.24, | 20 |
|
2929.02, 2929.13, 2929.14, 2941.021, 2941.14, 2941.148, 2941.401, | 21 |
|
2941.43, 2941.51, 2945.06, 2945.21, 2945.25, 2945.33, 2945.38, | 22 |
|
2949.02, 2949.03, 2953.02, 2953.07, 2953.08, 2953.09, 2953.10, | 23 |
|
2953.21, 2953.23, 2953.71, 2953.72, 2953.81, 2967.05, 2967.13, | 24 |
|
2967.193, 2971.03, 2971.07, 5120.113, 5120.61, and 5919.16 of the | 25 |
|
Revised Code be amended to read as follows: | 26 |
| (2) Subject to division (E) of section 120.06 of the Revised | 112 |
|
Code, the attorney general shall represent or provide for the | 113 |
|
representation of attorneys described in division (C) of section | 114 |
|
120.41 of the Revised Code in malpractice or other civil actions | 115 |
|
or proceedings that arise from alleged actions or omissions | 116 |
|
related to responsibilities derived pursuant to this chapter, or | 117 |
|
in civil actions that are based upon alleged violations of the | 118 |
|
constitution or statutes of the United States, including section | 119 |
|
1983 of Title 42 of the United States Code, 93 Stat. 1284 (1979), | 120 |
|
42 U.S.C.A. 1983, as amended, and that arise from alleged actions | 121 |
|
or omissions related to responsibilities derived pursuant to this | 122 |
|
chapter. For purposes of the representation, sections 109.361 to | 123 |
|
109.366 of the Revised Code shall apply to an attorney described | 124 |
in division (C) of section 120.41 of the Revised Code as if hethe | 125 |
|
attorney were an officer or employee, as defined in section 109.36 | 126 |
|
of the Revised Code, and the Ohio public defender commission or | 127 |
|
the state public defender, whichever contracted with the attorney, | 128 |
shall be considered histhe attorney's employer. | 129 |
| (5) The state public defender, when designated by the court | 151 |
|
or requested by a county public defender, joint county public | 152 |
|
defender, or the director of rehabilitation and correction, shall | 153 |
|
provide legal representation in parole and probation revocation | 154 |
|
matters or matters relating to the revocation of community control | 155 |
|
or post-release control under a community control sanction or | 156 |
|
post-release control sanction, unless the state public defender | 157 |
|
finds that the alleged parole or probation violator or alleged | 158 |
|
violator of a community control sanction or post-release control | 159 |
|
sanction has the financial capacity to retain the alleged | 160 |
|
violator's own counsel. | 161 |
| (D)(1) When the state public defender is designated by the | 180 |
|
court or requested by a county public defender or joint county | 181 |
|
public defender to provide legal representation for an indigent | 182 |
|
person in any case, other than pursuant to a contract entered into | 183 |
|
under authority of division (C)(7) of section 120.04 of the | 184 |
|
Revised Code, the state public defender shall send to the county | 185 |
|
in which the case is filed a bill detailing the actual cost of the | 186 |
|
representation that separately itemizes legal fees and expenses. | 187 |
|
The county, upon receipt of an itemized bill from the state public | 188 |
|
defender pursuant to this division, shall pay the state public | 189 |
|
defender each of the following amounts: | 190 |
| (3) When the state public defender provides investigation or | 202 |
|
mitigation services to private appointed counsel or to a county or | 203 |
|
joint county public defender as approved by the appointing court, | 204 |
|
other than pursuant to a contract entered into under authority of | 205 |
|
division (C)(7) of section 120.04 of the Revised Code, the state | 206 |
|
public defender shall send to the county in which the case is | 207 |
|
filed a bill itemizing the actual cost of the services provided. | 208 |
|
The county, upon receipt of an itemized bill from the state public | 209 |
|
defender pursuant to this division, shall pay one hundred per cent | 210 |
|
of the amount as set forth in the itemized bill. Upon payment of | 211 |
|
the itemized bill received pursuant to this division, the county | 212 |
|
may submit the cost of the investigation and mitigation services | 213 |
|
to the state public defender for reimbursement pursuant to section | 214 |
|
120.33 of the Revised Code. | 215 |
| (E)(1) Notwithstanding any contrary provision of sections | 226 |
|
109.02, 109.07, 109.361 to 109.366, and 120.03 of the Revised Code | 227 |
|
that pertains to representation by the attorney general, an | 228 |
|
assistant attorney general, or special counsel of an officer or | 229 |
|
employee, as defined in section 109.36 of the Revised Code, or of | 230 |
|
an entity of state government, the state public defender may elect | 231 |
|
to contract with, and to have the state pay pursuant to division | 232 |
|
(E)(2) of this section for the services of, private legal counsel | 233 |
|
to represent the Ohio public defender commission, the state public | 234 |
|
defender, assistant state public defenders, other employees of the | 235 |
|
commission or the state public defender, and attorneys described | 236 |
|
in division (C) of section 120.41 of the Revised Code in a | 237 |
|
malpractice or other civil action or proceeding that arises from | 238 |
|
alleged actions or omissions related to responsibilities derived | 239 |
|
pursuant to this chapter, or in a civil action that is based upon | 240 |
|
alleged violations of the constitution or statutes of the United | 241 |
|
States, including section 1983 of Title 42 of the United States | 242 |
|
Code, 93 Stat. 1284 (1979), 42 U.S.C.A. 1983, as amended, and that | 243 |
|
arises from alleged actions or omissions related to | 244 |
|
responsibilities derived pursuant to this chapter, if the state | 245 |
|
public defender determines, in good faith, that the defendant in | 246 |
|
the civil action or proceeding did not act manifestly outside the | 247 |
|
scope of the defendant's employment or official responsibilities, | 248 |
|
with malicious purpose, in bad faith, or in a wanton or reckless | 249 |
|
manner. If the state public defender elects not to contract | 250 |
|
pursuant to this division for private legal counsel in a civil | 251 |
|
action or proceeding, then, in accordance with sections 109.02, | 252 |
|
109.07, 109.361 to 109.366, and 120.03 of the Revised Code, the | 253 |
|
attorney general shall represent or provide for the representation | 254 |
|
of the Ohio public defender commission, the state public defender, | 255 |
|
assistant state public defenders, other employees of the | 256 |
|
commission or the state public defender, or attorneys described in | 257 |
|
division (C) of section 120.41 of the Revised Code in the civil | 258 |
|
action or proceeding. | 259 |
| (i) The private legal counsel shall file with the attorney | 265 |
|
general a copy of the contract; a request for an award of legal | 266 |
|
fees, court costs, and expenses earned or incurred in connection | 267 |
|
with the defense of the Ohio public defender commission, the state | 268 |
|
public defender, an assistant state public defender, an employee, | 269 |
|
or an attorney in a specified civil action or proceeding; a | 270 |
|
written itemization of those fees, costs, and expenses, including | 271 |
|
the signature of the state public defender and the state public | 272 |
|
defender's attestation that the fees, costs, and expenses were | 273 |
|
earned or incurred pursuant to division (E)(1) of this section to | 274 |
|
the best of the state public defender's knowledge and information; | 275 |
|
a written statement whether the fees, costs, and expenses are for | 276 |
|
all legal services to be rendered in connection with that defense, | 277 |
|
are only for legal services rendered to the date of the request | 278 |
|
and additional legal services likely will have to be provided in | 279 |
|
connection with that defense, or are for the final legal services | 280 |
|
rendered in connection with that defense; a written statement | 281 |
|
indicating whether the private legal counsel previously submitted | 282 |
|
a request for an award under division (E)(2) of this section in | 283 |
|
connection with that defense and, if so, the date and the amount | 284 |
|
of each award granted; and, if the fees, costs, and expenses are | 285 |
|
for all legal services to be rendered in connection with that | 286 |
|
defense or are for the final legal services rendered in connection | 287 |
|
with that defense, a certified copy of any judgment entry in the | 288 |
|
civil action or proceeding or a signed copy of any settlement | 289 |
|
agreement entered into between the parties to the civil action or | 290 |
|
proceeding. | 291 |
| (ii) Upon receipt of a request for an award of legal fees, | 292 |
|
court costs, and expenses and the requisite supportive | 293 |
|
documentation described in division (E)(2)(a)(i) of this section, | 294 |
|
the attorney general shall review the request and documentation; | 295 |
|
determine whether any of the limitations specified in division | 296 |
|
(E)(2)(b) of this section apply to the request; and, if an award | 297 |
|
of legal fees, court costs, or expenses is permissible after | 298 |
|
applying the limitations, prepare a document awarding legal fees, | 299 |
|
court costs, or expenses to the private legal counsel. The | 300 |
|
document shall name the private legal counsel as the recipient of | 301 |
|
the award; specify the total amount of the award as determined by | 302 |
|
the attorney general; itemize the portions of the award that | 303 |
|
represent legal fees, court costs, and expenses; specify any | 304 |
|
limitation applied pursuant to division (E)(2)(b) of this section | 305 |
|
to reduce the amount of the award sought by the private legal | 306 |
|
counsel; state that the award is payable from the state treasury | 307 |
|
pursuant to division (E)(2)(a)(iii) of this section; and be | 308 |
|
approved by the inclusion of the signatures of the attorney | 309 |
|
general, the state public defender, and the private legal counsel. | 310 |
| (iii) The attorney general shall forward a copy of the | 311 |
|
document prepared pursuant to division (E)(2)(a)(ii) of this | 312 |
|
section to the director of budget and management. The award of | 313 |
|
legal fees, court costs, or expenses shall be paid out of the | 314 |
|
state public defender's appropriations, to the extent there is a | 315 |
|
sufficient available balance in those appropriations. If the state | 316 |
|
public defender does not have a sufficient available balance in | 317 |
|
the state public defender's appropriations to pay the entire award | 318 |
|
of legal fees, court costs, or expenses, the director shall make | 319 |
|
application for a transfer of appropriations out of the emergency | 320 |
|
purposes account or any other appropriation for emergencies or | 321 |
|
contingencies in an amount equal to the portion of the award that | 322 |
|
exceeds the sufficient available balance in the state public | 323 |
|
defender's appropriations. A transfer of appropriations out of the | 324 |
|
emergency purposes account or any other appropriation for | 325 |
|
emergencies or contingencies shall be authorized if there are | 326 |
|
sufficient moneys greater than the sum total of then pending | 327 |
|
emergency purposes account requests, or requests for releases from | 328 |
|
the other appropriation. If a transfer of appropriations out of | 329 |
|
the emergency purposes account or other appropriation for | 330 |
|
emergencies or contingencies is made to pay an amount equal to the | 331 |
|
portion of the award that exceeds the sufficient available balance | 332 |
|
in the state public defender's appropriations, the director shall | 333 |
|
cause the payment to be made to the private legal counsel. If | 334 |
|
sufficient moneys do not exist in the emergency purposes account | 335 |
|
or other appropriation for emergencies or contingencies to pay an | 336 |
|
amount equal to the portion of the award that exceeds the | 337 |
|
sufficient available balance in the state public defender's | 338 |
|
appropriations, the private legal counsel shall request the | 339 |
|
general assembly to make an appropriation sufficient to pay an | 340 |
|
amount equal to the portion of the award that exceeds the | 341 |
|
sufficient available balance in the state public defender's | 342 |
|
appropriations, and no payment in that amount shall be made until | 343 |
|
the appropriation has been made. The private legal counsel shall | 344 |
|
make the request during the current biennium and during each | 345 |
|
succeeding biennium until a sufficient appropriation is made. | 346 |
| (d) If, pursuant to division (E)(2)(c) of this section, a | 373 |
|
private legal counsel receives a denial of an award notification | 374 |
|
or if a private legal counsel refuses to approve a document under | 375 |
|
division (E)(2)(a)(ii) of this section because of the proposed | 376 |
|
application of a limitation specified in division (E)(2)(b) of | 377 |
|
this section, the private legal counsel may commence a civil | 378 |
|
action against the attorney general in the court of claims to | 379 |
|
prove the private legal counsel's entitlement to the award sought, | 380 |
|
to prove that division (E)(2)(b) of this section does not prohibit | 381 |
|
or otherwise limit the award sought, and to recover a judgment for | 382 |
|
the amount of the award sought. A civil action under division | 383 |
|
(E)(2)(d) of this section shall be commenced no later than two | 384 |
|
years after receipt of a denial of award notification or, if the | 385 |
|
private legal counsel refused to approve a document under division | 386 |
|
(E)(2)(a)(ii) of this section because of the proposed application | 387 |
|
of a limitation specified in division (E)(2)(b) of this section, | 388 |
|
no later than two years after the refusal. Any judgment of the | 389 |
|
court of claims in favor of the private legal counsel shall be | 390 |
|
paid from the state treasury in accordance with division (E)(2)(a) | 391 |
|
of this section. | 392 |
(F) If a court appoints the office of the state public | 393 |
defender to represent a petitioner in a postconviction relief | 394 |
proceeding under section 2953.21 of the Revised Code, the | 395 |
petitioner has received a sentence of death, and the proceeding | 396 |
relates to that sentence, all of the attorneys who represent the | 397 |
petitioner in the proceeding pursuant to the appointment, whether | 398 |
an assistant state public defender, the state public defender, or | 399 |
another attorney, shall be certified under Rule 20 of the Rules of | 400 |
Superintendence for the Courts of Ohio to represent indigent | 401 |
defendants charged with or convicted of an offense for which the | 402 |
death penalty can be or has been imposed. | 403 |
| (F) A county public defender commission, with the approval of | 454 |
|
the board of county commissioners regarding all provisions that | 455 |
|
pertain to the financing of defense counsel for indigent persons, | 456 |
|
may contract with the state public defender or with any nonprofit | 457 |
|
organization, the primary purpose of which is to provide legal | 458 |
|
representation to indigent persons, for the state public defender | 459 |
|
or the organization to provide all or any part of the services | 460 |
|
that a county public defender is required or permitted to provide | 461 |
|
by this chapter. A contract entered into pursuant to this division | 462 |
|
may provide for payment for the services provided on a per case, | 463 |
|
hourly, or fixed contract basis. The state public defender and any | 464 |
|
nonprofit organization that contracts with a county public | 465 |
|
defender commission pursuant to this division shall do all of the | 466 |
|
following: | 467 |
(G) If a court appoints the office of the county public | 514 |
defender to represent a petitioner in a postconviction relief | 515 |
proceeding under section 2953.21 of the Revised Code, the | 516 |
petitioner has received a sentence of death, and the proceeding | 517 |
relates to that sentence, all of the attorneys who represent the | 518 |
petitioner in the proceeding pursuant to the appointment, whether | 519 |
an assistant county public defender or the county public defender, | 520 |
shall be certified under Rule 20 of the Rules of Superintendence | 521 |
for the Courts of Ohio to represent indigent defendants charged | 522 |
with or convicted of an offense for which the death penalty can be | 523 |
or has been imposed. | 524 |
| Sec. 120.18. (A) The county public defender commission's | 530 |
|
report to the board of county commissioners shall be audited by | 531 |
|
the county auditor. The board of county commissioners, after | 532 |
|
review and approval of the audited report, may then certify it to | 533 |
|
the state public defender for reimbursement. If a request for the | 534 |
|
reimbursement of any operating expenditure incurred by a county | 535 |
|
public defender office is not received by the state public | 536 |
|
defender within sixty days after the end of the calendar month in | 537 |
|
which the expenditure is incurred, the state public defender shall | 538 |
|
not pay the requested reimbursement, unless the county has | 539 |
|
requested, and the state public defender has granted, an extension | 540 |
|
of the sixty-day time limit. Each request for reimbursement shall | 541 |
|
include a certification by the county public defender that the | 542 |
|
persons provided representation by the county public defender's | 543 |
|
office during the period covered by the report were indigent and, | 544 |
|
for each person provided representation during that period, a | 545 |
|
financial disclosure form completed by the person on a form | 546 |
|
prescribed by the state public defender. The state public defender | 547 |
|
shall also review the report and, in accordance with the | 548 |
|
standards, guidelines, and maximums established pursuant to | 549 |
|
divisions (B)(7) and (8) of section 120.04 of the Revised Code, | 550 |
|
prepare a voucher for fifty per cent of the total cost of each | 551 |
|
county public defender's office for the period of time covered by | 552 |
the certified report and a voucher for fifty per cent of the costs | 553 |
and expenses that are reimbursable under section 120.35 of the | 554 |
Revised Code, if any, or, if the amount of money appropriated by | 555 |
|
the general assembly to reimburse counties for the operation of | 556 |
|
county public defender offices, joint county public defender | 557 |
|
offices, and county appointed counsel systems is not sufficient to | 558 |
|
pay fifty per cent of the total cost of all of the offices and | 559 |
|
systems, for the lesser amount required by section 120.34 of the | 560 |
|
Revised Code. For the purposes of this section, "total cost" means | 561 |
total expenses minus costs and expenses reimbursable under section | 562 |
120.35 of the Revised Code and any funds received by the county | 563 |
|
public defender commission pursuant to a contract, except a | 564 |
|
contract entered into with a municipal corporation pursuant to | 565 |
|
division (E) of section 120.14 of the Revised Code, gift, or | 566 |
|
grant. | 567 |
| (B) If the county public defender fails to maintain the | 568 |
|
standards for the conduct of the office established by rules of | 569 |
|
the Ohio public defender commission pursuant to divisions (B) and | 570 |
|
(C) of section 120.03 or the standards established by the state | 571 |
|
public defender pursuant to division (B)(7) of section 120.04 of | 572 |
|
the Revised Code, the Ohio public defender commission shall notify | 573 |
|
the county public defender commission and the board of county | 574 |
|
commissioners of the county that the county public defender has | 575 |
|
failed to comply with its rules or the standards of the state | 576 |
|
public defender. Unless the county public defender commission or | 577 |
|
the county public defender corrects the conduct of the county | 578 |
|
public defender's office to comply with the rules and standards | 579 |
|
within ninety days after the date of the notice, the state public | 580 |
|
defender may deny payment of all or part of the county's | 581 |
|
reimbursement from the state provided for in division (A) of this | 582 |
|
section. | 583 |
| (F) A joint county public defender commission, with the | 629 |
|
approval of each participating board of county commissioners | 630 |
|
regarding all provisions that pertain to the financing of defense | 631 |
|
counsel for indigent persons, may contract with the state public | 632 |
|
defender or with any nonprofit organization, the primary purpose | 633 |
|
of which is to provide legal representation to indigent persons, | 634 |
|
for the state public defender or the organization to provide all | 635 |
|
or any part of the services that a joint county public defender is | 636 |
|
required or permitted to provide by this chapter. A contract | 637 |
|
entered into pursuant to this division may provide for payment for | 638 |
|
the services provided on a per case, hourly, or fixed contract | 639 |
|
basis. The state public defender and any nonprofit organization | 640 |
|
that contracts with a joint county public defender commission | 641 |
|
pursuant to this division shall do all of the following: | 642 |
(G) If a court appoints the office of the joint county public | 691 |
defender to represent a petitioner in a postconviction relief | 692 |
proceeding under section 2953.21 of the Revised Code, the | 693 |
petitioner has received a sentence of death, and the proceeding | 694 |
relates to that sentence, all of the attorneys who represent the | 695 |
petitioner in the proceeding pursuant to the appointment, whether | 696 |
an assistant joint county defender or the joint county public | 697 |
defender, shall be certified under Rule 20 of the Rules of | 698 |
Superintendence for the Courts of Ohio to represent indigent | 699 |
defendants charged with or convicted of an offense for which the | 700 |
death penalty can be or has been imposed. | 701 |
| Sec. 120.28. (A) The joint county public defender | 707 |
|
commission's report to the joint board of county commissioners | 708 |
|
shall be audited by the fiscal officer of the district. The joint | 709 |
|
board of county commissioners, after review and approval of the | 710 |
|
audited report, may then certify it to the state public defender | 711 |
|
for reimbursement. If a request for the reimbursement of any | 712 |
|
operating expenditure incurred by a joint county public defender | 713 |
|
office is not received by the state public defender within sixty | 714 |
|
days after the end of the calendar month in which the expenditure | 715 |
|
is incurred, the state public defender shall not pay the requested | 716 |
|
reimbursement, unless the joint board of county commissioners has | 717 |
|
requested, and the state public defender has granted, an extension | 718 |
|
of the sixty-day time limit. Each request for reimbursement shall | 719 |
|
include a certification by the joint county public defender that | 720 |
|
all persons provided representation by the joint county public | 721 |
|
defender's office during the period covered by the request were | 722 |
|
indigent and, for each person provided representation during that | 723 |
|
period, a financial disclosure form completed by the person on a | 724 |
|
form prescribed by the state public defender. The state public | 725 |
|
defender shall also review the report and, in accordance with the | 726 |
|
standards, guidelines, and maximums established pursuant to | 727 |
|
divisions (B)(7) and (8) of section 120.04 of the Revised Code, | 728 |
|
prepare a voucher for fifty per cent of the total cost of each | 729 |
|
joint county public defender's office for the period of time | 730 |
covered by the certified report and a voucher for fifty per cent | 731 |
of the costs and expenses that are reimbursable under section | 732 |
120.35 of the Revised Code, if any, or, if the amount of money | 733 |
|
appropriated by the general assembly to reimburse counties for the | 734 |
|
operation of county public defender offices, joint county public | 735 |
|
defender offices, and county appointed counsel systems is not | 736 |
|
sufficient to pay fifty per cent of the total cost of all of the | 737 |
|
offices and systems, for the lesser amount required by section | 738 |
|
120.34 of the Revised Code. For purposes of this section, "total | 739 |
cost" means total expenses minus costs and expenses reimbursable | 740 |
under section 120.35 of the Revised Code and any funds received by | 741 |
|
the joint county public defender commission pursuant to a | 742 |
|
contract, except a contract entered into with a municipal | 743 |
|
corporation pursuant to division (E) of section 120.24 of the | 744 |
|
Revised Code, gift, or grant. Each county in the district shall be | 745 |
|
entitled to a share of such state reimbursement in proportion to | 746 |
|
the percentage of the total cost it has agreed to pay. | 747 |
| (B) If the joint county public defender fails to maintain the | 748 |
|
standards for the conduct of the office established by the rules | 749 |
|
of the Ohio public defender commission pursuant to divisions (B) | 750 |
|
and (C) of section 120.03 or the standards established by the | 751 |
|
state public defender pursuant to division (B)(7) of section | 752 |
|
120.04 of the Revised Code, the Ohio public defender commission | 753 |
|
shall notify the joint county public defender commission and the | 754 |
|
board of county commissioners of each county in the district that | 755 |
|
the joint county public defender has failed to comply with its | 756 |
|
rules or the standards of the state public defender. Unless the | 757 |
|
joint public defender commission or the joint county public | 758 |
|
defender corrects the conduct of the joint county public | 759 |
|
defender's office to comply with the rules and standards within | 760 |
|
ninety days after the date of the notice, the state public | 761 |
|
defender may deny all or part of the counties' reimbursement from | 762 |
|
the state provided for in division (A) of this section. | 763 |
| Sec. 120.33. (A) In lieu of using a county public defender | 764 |
|
or joint county public defender to represent indigent persons in | 765 |
|
the proceedings set forth in division (A) of section 120.16 of the | 766 |
|
Revised Code, the board of county commissioners of any county may | 767 |
|
adopt a resolution to pay counsel who are either personally | 768 |
|
selected by the indigent person or appointed by the court. The | 769 |
|
resolution shall include those provisions the board of county | 770 |
|
commissioners considers necessary to provide effective | 771 |
|
representation of indigent persons in any proceeding for which | 772 |
|
counsel is provided under this section. The resolution shall | 773 |
|
include provisions for contracts with any municipal corporation | 774 |
|
under which the municipal corporation shall reimburse the county | 775 |
|
for counsel appointed to represent indigent persons charged with | 776 |
|
violations of the ordinances of the municipal corporation. | 777 |
| (4) Counsel selected by the indigent person or appointed by | 805 |
|
the court at the request of an indigent person in a county that | 806 |
|
adopts a resolution to pay counsel, except for counsel appointed | 807 |
|
to represent a person charged with any violation of an ordinance | 808 |
|
of a municipal corporation that has not contracted with the county | 809 |
|
commissioners for the payment of appointed counsel, shall be paid | 810 |
|
by the county and shall receive the compensation and expenses the | 811 |
|
court approves. Each request for payment shall be accompanied by a | 812 |
|
financial disclosure form and an affidavit of indigency that are | 813 |
|
completed by the indigent person on forms prescribed by the state | 814 |
|
public defender. Compensation and expenses shall not exceed the | 815 |
|
amounts fixed by the board of county commissioners in the schedule | 816 |
|
adopted pursuant to division (A)(3) of this section. No court | 817 |
|
shall approve compensation and expenses that exceed the amount | 818 |
|
fixed pursuant to division (A)(3) of this section. | 819 |
| The fees and expenses approved by the court shall not be | 820 |
|
taxed as part of the costs and shall be paid by the county. | 821 |
|
However, if the person represented has, or may reasonably be | 822 |
|
expected to have, the means to meet some part of the cost of the | 823 |
|
services rendered to the person, the person shall pay the county | 824 |
|
an amount that the person reasonably can be expected to pay. | 825 |
|
Pursuant to section 120.04 of the Revised Code, the county shall | 826 |
|
pay to the state public defender a percentage of the payment | 827 |
|
received from the person in an amount proportionate to the | 828 |
|
percentage of the costs of the person's case that were paid to the | 829 |
|
county by the state public defender pursuant to this section. The | 830 |
|
money paid to the state public defender shall be credited to the | 831 |
|
client payment fund created pursuant to division (B)(5) of section | 832 |
|
120.04 of the Revised Code. | 833 |
| The county auditor shall draw a warrant on the county | 834 |
|
treasurer for the payment of counsel in the amount fixed by the | 835 |
|
court, plus the expenses the court fixes and certifies to the | 836 |
|
auditor. The county auditor shall report periodically, but not | 837 |
|
less than annually, to the board of county commissioners and to | 838 |
|
the state public defender the amounts paid out pursuant to the | 839 |
|
approval of the court. The board of county commissioners, after | 840 |
|
review and approval of the auditor's report, or the county | 841 |
|
auditor, with permission from and notice to the board of county | 842 |
|
commissioners, may then certify it to the state public defender | 843 |
|
for reimbursement. The state public defender may pay a requested | 844 |
|
reimbursement only if the request for reimbursement is accompanied | 845 |
|
by a financial disclosure form and an affidavit of indigency | 846 |
|
completed by the indigent person on forms prescribed by the state | 847 |
|
public defender or if the court certifies by electronic signature | 848 |
|
as prescribed by the state public defender that a financial | 849 |
|
disclosure form and affidavit of indigency have been completed by | 850 |
|
the indigent person and are available for inspection. If a request | 851 |
|
for the reimbursement of the cost of counsel in any case is not | 852 |
|
received by the state public defender within ninety days after the | 853 |
|
end of the calendar month in which the case is finally disposed of | 854 |
|
by the court, unless the county has requested and the state public | 855 |
|
defender has granted an extension of the ninety-day limit, the | 856 |
|
state public defender shall not pay the requested reimbursement. | 857 |
|
The state public defender shall also review the report and, in | 858 |
|
accordance with the standards, guidelines, and maximums | 859 |
|
established pursuant to divisions (B)(7) and (8) of section 120.04 | 860 |
|
of the Revised Code, prepare a voucher for fifty per cent of the | 861 |
|
total cost of each county appointed counsel system in the period | 862 |
of time covered by the certified report and a voucher for fifty | 863 |
per cent of the costs and expenses that are reimbursable under | 864 |
section 120.35 of the Revised Code, if any, or, if the amount of | 865 |
|
money appropriated by the general assembly to reimburse counties | 866 |
|
for the operation of county public defender offices, joint county | 867 |
|
public defender offices, and county appointed counsel systems is | 868 |
|
not sufficient to pay fifty per cent of the total cost of all of | 869 |
the offices and systems other than costs and expenses that are | 870 |
reimbursable under section 120.35 of the Revised Code, for the | 871 |
|
lesser amount required by section 120.34 of the Revised Code. | 872 |
| (5) If any county appointed counsel system fails to maintain | 873 |
|
the standards for the conduct of the system established by the | 874 |
|
rules of the Ohio public defender commission pursuant to divisions | 875 |
|
(B) and (C) of section 120.03 or the standards established by the | 876 |
|
state public defender pursuant to division (B)(7) of section | 877 |
|
120.04 of the Revised Code, the Ohio public defender commission | 878 |
|
shall notify the board of county commissioners of the county that | 879 |
|
the county appointed counsel system has failed to comply with its | 880 |
|
rules or the standards of the state public defender. Unless the | 881 |
|
board of county commissioners corrects the conduct of its | 882 |
|
appointed counsel system to comply with the rules and standards | 883 |
|
within ninety days after the date of the notice, the state public | 884 |
|
defender may deny all or part of the county's reimbursement from | 885 |
|
the state provided for in division (A)(4) of this section. | 886 |
| (B) In lieu of using a county public defender or joint county | 887 |
|
public defender to represent indigent persons in the proceedings | 888 |
|
set forth in division (A) of section 120.16 of the Revised Code, | 889 |
|
and in lieu of adopting the resolution and following the procedure | 890 |
|
described in division (A) of this section, the board of county | 891 |
|
commissioners of any county may contract with the state public | 892 |
|
defender for the state public defender's legal representation of | 893 |
|
indigent persons. A contract entered into pursuant to this | 894 |
|
division may provide for payment for the services provided on a | 895 |
|
per case, hourly, or fixed contract basis. | 896 |
(C) If a court appoints an attorney pursuant to this section | 897 |
to represent a petitioner in a postconviction relief proceeding | 898 |
under section 2953.21 of the Revised Code, the petitioner has | 899 |
received a sentence of death, and the proceeding relates to that | 900 |
sentence, the attorney who represents the petitioner in the | 901 |
proceeding pursuant to the appointment shall be certified under | 902 |
Rule 20 of the Rules of Superintendence for the Courts of Ohio to | 903 |
represent indigent defendants charged with or convicted of an | 904 |
offense for which the death penalty can be or has been imposed. | 905 |
| Sec. 120.34. The total amount of money paid to all counties | 906 |
|
in any fiscal year pursuant to sections 120.18, 120.28, and 120.33 | 907 |
|
of the Revised Code for the reimbursement of a percentage of the | 908 |
|
counties' cost of operating county public defender offices, joint | 909 |
|
county public defender offices, and county appointed counsel | 910 |
|
systems shall not exceed the total amount appropriated for that | 911 |
|
fiscal year by the general assembly for the reimbursement of the | 912 |
|
counties for the operation of the offices and systems. If the | 913 |
|
amount appropriated by the general assembly in any fiscal year is | 914 |
|
insufficient to pay fifty per cent of the total cost in the fiscal | 915 |
|
year of all county public defender offices, all joint county | 916 |
|
public defender offices, and all county appointed counsel systems, | 917 |
|
the amount of money paid in that fiscal year pursuant to sections | 918 |
|
120.18, 120.28, and 120.33 of the Revised Code to each county for | 919 |
|
the fiscal year shall be reduced proportionately so that each | 920 |
|
county is paid an equal percentage of its total cost in the fiscal | 921 |
|
year for operating its county public defender system, its joint | 922 |
|
county public defender system, and its county appointed counsel | 923 |
|
system. | 924 |
The total amount of money paid to all counties in any fiscal | 925 |
year pursuant to section 120.35 of the Revised Code for the | 926 |
reimbursement of a percentage of the counties' costs and expenses | 927 |
of conducting the defense in capital cases shall not exceed the | 928 |
total amount appropriated for that fiscal year by the general | 929 |
assembly for the reimbursement of the counties for conducting the | 930 |
defense in capital cases. If the amount appropriated by the | 931 |
general assembly in any fiscal year is insufficient to pay fifty | 932 |
per cent of the counties' total costs and expenses of conducting | 933 |
the defense in capital cases in the fiscal year, the amount of | 934 |
money paid in that fiscal year pursuant to section 120.35 of the | 935 |
Revised Code to each county for the fiscal year shall be reduced | 936 |
proportionately so that each county is paid an equal percentage of | 937 |
its costs and expenses of conducting the defense in capital cases | 938 |
in the fiscal year. | 939 |
| (A) Notwithstanding any monetary limitations in section | 969 |
|
1901.17 of the Revised Code, in all actions and proceedings for | 970 |
|
the sale of real or personal property under lien of a judgment of | 971 |
|
the environmental division of the municipal court, or a lien for | 972 |
|
machinery, material, fuel furnished, or labor performed, | 973 |
|
irrespective of amount, and, in those cases, the environmental | 974 |
|
division may proceed to foreclose and marshal all liens and all | 975 |
|
vested or contingent rights, to appoint a receiver, and to render | 976 |
|
personal judgment irrespective of amount in favor of any party; | 977 |
| (B) When in aid of execution of a judgment of the | 978 |
|
environmental division of the municipal court, in all actions for | 979 |
|
the foreclosure of a mortgage on real property given to secure the | 980 |
|
payment of money, or the enforcement of a specific lien for money | 981 |
|
or other encumbrance or charge on real property, when the real | 982 |
|
property is situated within the territory, and, in those cases, | 983 |
|
the environmental division may proceed to foreclose all liens and | 984 |
|
all vested and contingent rights and proceed to render judgments, | 985 |
|
and make findings and orders, between the parties, in the same | 986 |
|
manner and to the same extent as in similar cases in the court of | 987 |
|
common pleas; | 988 |
| (D) In all actions for injunction to prevent or terminate | 993 |
|
violations of the ordinances and regulations of any municipal | 994 |
|
corporation within its territory enacted or promulgated under the | 995 |
|
police power of that municipal corporation pursuant to Section 3 | 996 |
|
of Article XVIII, Ohio Constitution, over which the court of | 997 |
|
common pleas has or may have jurisdiction, and, in those cases, | 998 |
|
the environmental division of the municipal court may proceed to | 999 |
|
render judgments, and make findings and orders, in the same manner | 1000 |
|
and to the same extent as in similar cases in the court of common | 1001 |
|
pleas; | 1002 |
| (E) In all actions for injunction to prevent or terminate | 1003 |
|
violations of the resolutions and regulations of any political | 1004 |
|
subdivision within its territory enacted or promulgated under the | 1005 |
|
power of that political subdivision pursuant to Article X of the | 1006 |
|
Ohio Constitution, over which the court of common pleas has or may | 1007 |
|
have jurisdiction, and, in those cases, the environmental division | 1008 |
|
of the municipal court may proceed to render judgments, and make | 1009 |
|
findings and orders, in the same manner and to the same extent as | 1010 |
|
in similar cases in the court of common pleas; | 1011 |
| (F) In any civil action to enforce any provision of Chapter | 1012 |
|
3704., 3714., 3734., 3737., 3767., or 6111. of the Revised Code | 1013 |
|
over which the court of common pleas has or may have jurisdiction, | 1014 |
|
and, in those actions, the environmental division of the municipal | 1015 |
|
court may proceed to render judgments, and make findings and | 1016 |
|
orders, in the same manner and to the same extent as in similar | 1017 |
|
actions in the court of common pleas; | 1018 |
| (I) In any review or appeal of any final order of any | 1032 |
|
administrative officer, agency, board, department, tribunal, | 1033 |
|
commission, or other instrumentality that relates to a local | 1034 |
|
building, housing, air pollution, sanitation, health, fire, | 1035 |
|
zoning, or safety code, ordinance, or regulation, in the same | 1036 |
|
manner and to the same extent as in similar appeals in the court | 1037 |
|
of common pleas; | 1038 |
| (B) If an alleged delinquent child is not indicted or charged | 1081 |
|
by information as described in division (A)(1) or (2) of this | 1082 |
|
section and if a notice or complaint as described in division | 1083 |
|
(A)(3) or (4) of this section indicates that the prosecuting | 1084 |
|
attorney intends to pursue a serious youthful offender | 1085 |
|
dispositional sentence in the case, the juvenile court shall hold | 1086 |
|
a preliminary hearing to determine if there is probable cause that | 1087 |
|
the child committed the act charged and is by age eligible for, or | 1088 |
|
required to receive, a serious youthful offender dispositional | 1089 |
|
sentence. | 1090 |
| (2) If the child is detained awaiting adjudication, upon | 1114 |
|
indictment or being charged by information, the child has the same | 1115 |
|
right to bail as an adult charged with the offense the alleged | 1116 |
|
delinquent act would be if committed by an adult. Except as | 1117 |
|
provided in division (D) of section 2152.14 of the Revised Code, | 1118 |
|
all provisions of Title XXIX of the Revised Code and the Criminal | 1119 |
|
Rules shall apply in the case and to the child. The juvenile court | 1120 |
|
shall afford the child all rights afforded a person who is | 1121 |
|
prosecuted for committing a crime including the right to counsel | 1122 |
|
and the right to raise the issue of competency. The child may not | 1123 |
|
waive the right to counsel. | 1124 |
| (i) If the juvenile court on the record makes a finding that, | 1148 |
|
given the nature and circumstances of the violation and the | 1149 |
|
history of the child, the length of time, level of security, and | 1150 |
|
types of programming and resources available in the juvenile | 1151 |
|
system alone are not adequate to provide the juvenile court with a | 1152 |
|
reasonable expectation that the purposes set forth in section | 1153 |
|
2152.01 of the Revised Code will be met, the juvenile court may | 1154 |
|
impose upon the child a sentence available for the violation, as | 1155 |
|
if the child were an adult, under Chapter 2929. of the Revised | 1156 |
|
Code, except that the juvenile court shall not impose on the child | 1157 |
a sentence of death or life imprisonment without parole. | 1158 |
| Sec. 2152.67. Any adult who is arrested or charged under any | 1181 |
|
provision in this chapter and who is charged with a crime may | 1182 |
|
demand a trial by jury, or the juvenile judge upon the judge's own | 1183 |
|
motion may call a jury. A demand for a jury trial shall be made in | 1184 |
|
writing in not less than three days before the date set for trial, | 1185 |
|
or within three days after counsel has been retained, whichever is | 1186 |
|
later. Sections 2945.17 and 2945.23 to 2945.36 of the Revised | 1187 |
|
Code, relating to the drawing and impaneling of jurors in criminal | 1188 |
cases in the court of common pleas, other than in capital cases, | 1189 |
|
shall apply to a jury trial under this section. The compensation | 1190 |
|
of jurors and costs of the clerk and sheriff shall be taxed and | 1191 |
|
paid in the same manner as in criminal cases in the court of | 1192 |
|
common pleas. | 1193 |
| (2) A final judgment of a trial court that has not been | 1216 |
|
reversed on appeal or otherwise set aside, nullified, or vacated, | 1217 |
|
entered after a trial or upon a plea of guilty, but not upon a | 1218 |
|
plea of no contest or the equivalent plea from another | 1219 |
|
jurisdiction, that adjudges an offender guilty of an offense of | 1220 |
violence punishable by death or imprisonment in excess of one | 1221 |
|
year, when entered as evidence in any subsequent civil proceeding | 1222 |
|
based on the criminal act, shall preclude the offender from | 1223 |
|
denying in the subsequent civil proceeding any fact essential to | 1224 |
|
sustaining that judgment, unless the offender can demonstrate that | 1225 |
|
extraordinary circumstances prevented the offender from having a | 1226 |
|
full and fair opportunity to litigate the issue in the criminal | 1227 |
|
proceeding or other extraordinary circumstances justify affording | 1228 |
|
the offender an opportunity to relitigate the issue. The offender | 1229 |
|
may introduce evidence of the offender's pending appeal of the | 1230 |
|
final judgment of the trial court, if applicable, and the court | 1231 |
|
may consider that evidence in determining the liability of the | 1232 |
|
offender. | 1233 |
| (a) "Tort action" means a civil action for damages for | 1235 |
|
injury, death, or loss to person or property other than a civil | 1236 |
|
action for damages for a breach of contract or another agreement | 1237 |
|
between persons. "Tort action" includes, but is not limited to, a | 1238 |
|
product liability claim, as defined in section 2307.71 of the | 1239 |
|
Revised Code, and an asbestos claim, as defined in section 2307.91 | 1240 |
|
of the Revised Code, an action for wrongful death under Chapter | 1241 |
|
2125. of the Revised Code, and an action based on derivative | 1242 |
|
claims for relief. | 1243 |
| (b) The person engaged in conduct that, if prosecuted, would | 1253 |
|
constitute a felony, a misdemeanor that is an offense of violence, | 1254 |
|
an attempt to commit a felony, or an attempt to commit a | 1255 |
|
misdemeanor that is an offense of violence and that conduct was a | 1256 |
|
proximate cause of the injury or loss for which relief is claimed | 1257 |
|
in the tort action, regardless of whether the person has been | 1258 |
|
convicted of or pleaded guilty to or has been charged with | 1259 |
|
committing the felony, the misdemeanor, or the attempt to commit | 1260 |
|
the felony or misdemeanor. | 1261 |
| (c) The person suffered the injury or loss for which relief | 1262 |
|
is claimed in the tort action as a proximate result of the victim | 1263 |
|
of conduct that, if prosecuted, would constitute a felony, a | 1264 |
|
misdemeanor that is an offense of violence, an attempt to commit a | 1265 |
|
felony, or an attempt to commit a misdemeanor that is an offense | 1266 |
|
of violence acting against the person in self-defense, defense of | 1267 |
|
another, or defense of the victim's residence, regardless of | 1268 |
|
whether the person has been convicted of or pleaded guilty to or | 1269 |
|
has been charged with committing the felony, the misdemeanor, or | 1270 |
|
the attempt to commit the felony or misdemeanor. Division | 1271 |
|
(B)(2)(c) of this section does not apply if the person who | 1272 |
|
suffered the injury or loss, at the time of the victim's act of | 1273 |
|
self-defense, defense of another, or defense of residence, was an | 1274 |
|
innocent bystander who had no connection with the underlying | 1275 |
|
conduct that prompted the victim's exercise of self-defense, | 1276 |
|
defense of another, or defense of residence. | 1277 |
| (3) Recovery against a victim of conduct that, if prosecuted, | 1278 |
|
would constitute a felony, a misdemeanor that is an offense of | 1279 |
|
violence, an attempt to commit a felony, or an attempt to commit a | 1280 |
|
misdemeanor that is an offense of violence, on a claim for relief | 1281 |
|
in a tort action is barred to any person or the person's legal | 1282 |
|
representative if conduct the person engaged in against that | 1283 |
|
victim was a proximate cause of the injury or loss for which | 1284 |
|
relief is claimed in the tort action and that conduct, if | 1285 |
|
prosecuted, would constitute a felony, a misdemeanor that is an | 1286 |
|
offense of violence, an attempt to commit a felony, or an attempt | 1287 |
|
to commit a misdemeanor that is an offense of violence, regardless | 1288 |
|
of whether the person has been convicted of or pleaded guilty to | 1289 |
|
or has been charged with committing the felony, the misdemeanor, | 1290 |
|
or the attempt to commit the felony or misdemeanor. | 1291 |
| Sec. 2701.07. When, in the opinion of the court, the | 1300 |
|
business thereof so requires, each court of common pleas, court of | 1301 |
|
appeals, and, in counties having at the last or any future federal | 1302 |
|
census more than seventy thousand inhabitants, the probate court, | 1303 |
|
may appoint one or more constables to preserve order, attend the | 1304 |
|
assignment of cases in counties where more than two judges of the | 1305 |
|
court of common pleas regularly hold court at the same time, and | 1306 |
|
discharge such other duties as the court requires. When so | 1307 |
|
directed by the court, each constable has the same powers as | 1308 |
sheriffs to call and impanel jurors, except in capital cases. | 1309 |
| (1) For the purposes of any person described in division | 1414 |
|
(A)(1) of this section, any conduct that occurs or is attempted in | 1415 |
|
this state; poses a substantial threat of personal injury or | 1416 |
death; and is punishable by fine,or imprisonment, or death, or | 1417 |
|
would be so punishable but for the fact that the person engaging | 1418 |
|
in the conduct lacked capacity to commit the crime under the laws | 1419 |
|
of this state. Criminally injurious conduct does not include | 1420 |
|
conduct arising out of the ownership, maintenance, or use of a | 1421 |
|
motor vehicle, except when any of the following applies: | 1422 |
| (2) For the purposes of any person described in division | 1439 |
|
(A)(2) of this section, any conduct that occurs or is attempted in | 1440 |
|
another state, district, territory, or foreign country; poses a | 1441 |
|
substantial threat of personal injury or death; and is punishable | 1442 |
by fine,or imprisonment, or death, or would be so punishable but | 1443 |
|
for the fact that the person engaging in the conduct lacked | 1444 |
|
capacity to commit the crime under the laws of the state, | 1445 |
|
district, territory, or foreign country in which the conduct | 1446 |
|
occurred or was attempted. Criminally injurious conduct does not | 1447 |
|
include conduct arising out of the ownership, maintenance, or use | 1448 |
|
of a motor vehicle, except when any of the following applies: | 1449 |
| (E) "Economic loss" means economic detriment consisting only | 1478 |
|
of allowable expense, work loss, funeral expense, unemployment | 1479 |
|
benefits loss, replacement services loss, cost of crime scene | 1480 |
|
cleanup, and cost of evidence replacement. If criminally injurious | 1481 |
|
conduct causes death, economic loss includes a dependent's | 1482 |
|
economic loss and a dependent's replacement services loss. | 1483 |
|
Noneconomic detriment is not economic loss; however, economic loss | 1484 |
|
may be caused by pain and suffering or physical impairment. | 1485 |
| (F)(1) "Allowable expense" means reasonable charges incurred | 1486 |
|
for reasonably needed products, services, and accommodations, | 1487 |
|
including those for medical care, rehabilitation, rehabilitative | 1488 |
|
occupational training, and other remedial treatment and care and | 1489 |
|
including replacement costs for hearing aids; dentures, retainers, | 1490 |
|
and other dental appliances; canes, walkers, and other mobility | 1491 |
|
tools; and eyeglasses and other corrective lenses. It does not | 1492 |
|
include that portion of a charge for a room in a hospital, clinic, | 1493 |
|
convalescent home, nursing home, or any other institution engaged | 1494 |
|
in providing nursing care and related services in excess of a | 1495 |
|
reasonable and customary charge for semiprivate accommodations, | 1496 |
|
unless accommodations other than semiprivate accommodations are | 1497 |
|
medically required. | 1498 |
| (2) An immediate family member of a victim of criminally | 1499 |
|
injurious conduct that consists of a homicide, a sexual assault, | 1500 |
|
domestic violence, or a severe and permanent incapacitating injury | 1501 |
|
resulting in paraplegia or a similar life-altering condition, who | 1502 |
|
requires psychiatric care or counseling as a result of the | 1503 |
|
criminally injurious conduct, may be reimbursed for that care or | 1504 |
|
counseling as an allowable expense through the victim's | 1505 |
|
application. The cumulative allowable expense for care or | 1506 |
|
counseling of that nature shall not exceed two thousand five | 1507 |
|
hundred dollars for each immediate family member of a victim of | 1508 |
|
that type and seven thousand five hundred dollars in the aggregate | 1509 |
|
for all immediate family members of a victim of that type. | 1510 |
| (b) "Allowable expense" includes attorney's fees not | 1525 |
|
exceeding one thousand dollars, at a rate not exceeding one | 1526 |
|
hundred dollars per hour, incurred to successfully obtain a | 1527 |
|
restraining order, custody order, or other order to physically | 1528 |
|
separate a victim from an offender. Attorney's fees for the | 1529 |
|
services described in this division may include an amount for | 1530 |
|
reasonable travel time incurred to attend court hearings, not | 1531 |
|
exceeding three hours' round-trip for each court hearing, assessed | 1532 |
|
at a rate not exceeding thirty dollars per hour. | 1533 |
| (I) "Dependent's economic loss" means loss after a victim's | 1547 |
|
death of contributions of things of economic value to the victim's | 1548 |
|
dependents, not including services they would have received from | 1549 |
|
the victim if the victim had not suffered the fatal injury, less | 1550 |
|
expenses of the dependents avoided by reason of the victim's | 1551 |
|
death. If a minor child of a victim is adopted after the victim's | 1552 |
|
death, the minor child continues after the adoption to incur a | 1553 |
|
dependent's economic loss as a result of the victim's death. If | 1554 |
|
the surviving spouse of a victim remarries, the surviving spouse | 1555 |
|
continues after the remarriage to incur a dependent's economic | 1556 |
|
loss as a result of the victim's death. | 1557 |
| (J) "Dependent's replacement services loss" means loss | 1558 |
|
reasonably incurred by dependents after a victim's death in | 1559 |
|
obtaining ordinary and necessary services in lieu of those the | 1560 |
|
victim would have performed for their benefit if the victim had | 1561 |
|
not suffered the fatal injury, less expenses of the dependents | 1562 |
|
avoided by reason of the victim's death and not subtracted in | 1563 |
|
calculating the dependent's economic loss. If a minor child of a | 1564 |
|
victim is adopted after the victim's death, the minor child | 1565 |
|
continues after the adoption to incur a dependent's replacement | 1566 |
|
services loss as a result of the victim's death. If the surviving | 1567 |
|
spouse of a victim remarries, the surviving spouse continues after | 1568 |
|
the remarriage to incur a dependent's replacement services loss as | 1569 |
|
a result of the victim's death. | 1570 |
| (1) A violation of section 4511.19 of the Revised Code, of | 1608 |
|
any municipal ordinance prohibiting the operation of a vehicle | 1609 |
|
while under the influence of alcohol, a drug of abuse, or a | 1610 |
|
combination of them, or of any municipal ordinance prohibiting the | 1611 |
|
operation of a vehicle with a prohibited concentration of alcohol, | 1612 |
|
a controlled substance, or a metabolite of a controlled substance | 1613 |
|
in the whole blood, blood serum or plasma, breath, or urine; | 1614 |
| (4) For purposes of any person described in division (A)(2) | 1622 |
|
of this section, a violation of any law of the state, district, | 1623 |
|
territory, or foreign country in which the criminally injurious | 1624 |
|
conduct occurred, if that law is substantially similar to a | 1625 |
|
violation described in division (P)(1) or (2) of this section or | 1626 |
|
if that law is substantially similar to a violation described in | 1627 |
|
division (P)(3) of this section and the offender was under the | 1628 |
|
influence of alcohol, a drug of abuse, or a combination of them, | 1629 |
|
at the time of the commission of the offense. | 1630 |
Sec. 2929.02. (A) WhoeverExcept as otherwise provided in | 1739 |
|
division (C) of this section, whoever is convicted of or pleads | 1740 |
|
guilty to aggravated murder in violation of section 2903.01 of the | 1741 |
Revised Code shall
suffer death or be imprisoned for life, as | 1742 |
determined pursuant to sections 2929.022, 2929.03, and 2929.04 of | 1743 |
the Revised Code, except that no person who raises the matter of | 1744 |
age pursuant to section 2929.023 of the Revised Code and who is | 1745 |
not found to have been eighteen years of age or older at the time | 1746 |
of the commission of the offense shall suffer death. In addition, | 1747 |
the offender may be fined an amount fixed by the court, but not | 1748 |
more than twenty-five thousand dollarssentenced to life | 1749 |
|
imprisonment with parole eligibility after serving twenty full | 1750 |
|
years of imprisonment, life imprisonment with parole eligibility | 1751 |
|
after serving thirty full years of imprisonment, or life | 1752 |
|
imprisonment without parole. | 1753 |
(2)(C)(1) Except as otherwise provided in division | 1759 |
(B)(3)(C)(2) of this section, if a person is convicted of or | 1760 |
|
pleads guilty to aggravated murder in violation of section 2903.01 | 1761 |
|
of the Revised Code or to murder in violation of section 2903.02 | 1762 |
|
of the Revised Code, the victim of the offense was less than | 1763 |
|
thirteen years of age, and the offender also is convicted of or | 1764 |
|
pleads guilty to a sexual motivation specification that was | 1765 |
|
included in the indictment, count in the indictment, or | 1766 |
|
information charging the offense, the court shall impose an | 1767 |
|
indefinite prison term of thirty years to life pursuant to | 1768 |
|
division (B)(3) of section 2971.03 of the Revised Code. | 1769 |
(3)(2) If a person is convicted of or pleads guilty to | 1770 |
| aggravated murder in violation of section 2903.01 of the Revised | 1771 |
|
Code or to murder in violation of section 2903.02 of the Revised | 1772 |
|
Code and also is convicted of or pleads guilty to a sexual | 1773 |
|
motivation specification and a sexually violent predator | 1774 |
|
specification that were included in the indictment, count in the | 1775 |
|
indictment, or information that charged the murder, the court | 1776 |
|
shall impose upon the offender a term of life imprisonment without | 1777 |
|
parole that shall be served pursuant to section 2971.03 of the | 1778 |
|
Revised Code. | 1779 |
(D)(F)(1) In addition to any other sanctions imposed for a | 1791 |
|
violation of section 2903.01 or 2903.02 of the Revised Code, if | 1792 |
|
the offender used a motor vehicle as the means to commit the | 1793 |
|
violation, the court shall impose upon the offender a class two | 1794 |
|
suspension of the offender's driver's license, commercial driver's | 1795 |
|
license, temporary instruction permit, probationary license, or | 1796 |
|
nonresident operating privilege as specified in division (A)(2) of | 1797 |
|
section 4510.02 of the Revised Code. | 1798 |
| If the offender is eligible to be sentenced to community | 1809 |
|
control sanctions, the court shall consider the appropriateness of | 1810 |
|
imposing a financial sanction pursuant to section 2929.18 of the | 1811 |
|
Revised Code or a sanction of community service pursuant to | 1812 |
|
section 2929.17 of the Revised Code as the sole sanction for the | 1813 |
|
offense. Except as otherwise provided in this division, if the | 1814 |
|
court is required to impose a mandatory prison term for the | 1815 |
|
offense for which sentence is being imposed, the court also shall | 1816 |
|
impose any financial sanction pursuant to section 2929.18 of the | 1817 |
|
Revised Code that is required for the offense and may impose any | 1818 |
|
other financial sanction pursuant to that section but may not | 1819 |
|
impose any additional sanction or combination of sanctions under | 1820 |
|
section 2929.16 or 2929.17 of the Revised Code. | 1821 |
| (1) For a fourth degree felony OVI offense for which sentence | 1830 |
|
is imposed under division (G)(1) of this section, an additional | 1831 |
|
community control sanction or combination of community control | 1832 |
|
sanctions under section 2929.16 or 2929.17 of the Revised Code. If | 1833 |
|
the court imposes upon the offender a community control sanction | 1834 |
|
and the offender violates any condition of the community control | 1835 |
|
sanction, the court may take any action prescribed in division (B) | 1836 |
|
of section 2929.15 of the Revised Code relative to the offender, | 1837 |
|
including imposing a prison term on the offender pursuant to that | 1838 |
|
division. | 1839 |
| (c) If a court that is sentencing an offender who is | 1909 |
|
convicted of or pleads guilty to a felony of the fourth or fifth | 1910 |
|
degree that is not an offense of violence or that is a qualifying | 1911 |
|
assault offense believes that no community control sanctions are | 1912 |
|
available for its use that, if imposed on the offender, will | 1913 |
|
adequately fulfill the overriding principles and purposes of | 1914 |
|
sentencing, the court shall contact the department of | 1915 |
|
rehabilitation and correction and ask the department to provide | 1916 |
|
the court with the names of, contact information for, and program | 1917 |
|
details of one or more community control sanctions of at least one | 1918 |
|
year's duration that are available for persons sentenced by the | 1919 |
|
court. Not later than forty-five days after receipt of a request | 1920 |
|
from a court under this division, the department shall provide the | 1921 |
|
court with the names of, contact information for, and program | 1922 |
|
details of one or more community control sanctions of at least one | 1923 |
|
year's duration that are available for persons sentenced by the | 1924 |
|
court, if any. Upon making a request under this division that | 1925 |
|
relates to a particular offender, a court shall defer sentencing | 1926 |
|
of that offender until it receives from the department the names | 1927 |
|
of, contact information for, and program details of one or more | 1928 |
|
community control sanctions of at least one year's duration that | 1929 |
|
are available for persons sentenced by the court or for forty-five | 1930 |
|
days, whichever is the earlier. | 1931 |
| If the department provides the court with the names of, | 1932 |
|
contact information for, and program details of one or more | 1933 |
|
community control sanctions of at least one year's duration that | 1934 |
|
are available for persons sentenced by the court within the | 1935 |
|
forty-five-day period specified in this division, the court shall | 1936 |
|
impose upon the offender a community control sanction under | 1937 |
|
division (B)(1)(a) of this section, except that the court may | 1938 |
|
impose a prison term under division (B)(1)(b) of this section if a | 1939 |
|
factor described in division (B)(1)(b)(i) or (ii) of this section | 1940 |
|
applies. If the department does not provide the court with the | 1941 |
|
names of, contact information for, and program details of one or | 1942 |
|
more community control sanctions of at least one year's duration | 1943 |
|
that are available for persons sentenced by the court within the | 1944 |
|
forty-five-day period specified in this division, the court may | 1945 |
|
impose upon the offender a prison term under division | 1946 |
|
(B)(1)(b)(iv) of this section. | 1947 |
| (C) Except as provided in division (D), (E), (F), or (G) of | 1962 |
|
this section, in determining whether to impose a prison term as a | 1963 |
|
sanction for a felony of the third degree or a felony drug offense | 1964 |
|
that is a violation of a provision of Chapter 2925. of the Revised | 1965 |
|
Code and that is specified as being subject to this division for | 1966 |
|
purposes of sentencing, the sentencing court shall comply with the | 1967 |
|
purposes and principles of sentencing under section 2929.11 of the | 1968 |
|
Revised Code and with section 2929.12 of the Revised Code. | 1969 |
| (D)(1) Except as provided in division (E) or (F) of this | 1970 |
|
section, for a felony of the first or second degree, for a felony | 1971 |
|
drug offense that is a violation of any provision of Chapter | 1972 |
|
2925., 3719., or 4729. of the Revised Code for which a presumption | 1973 |
|
in favor of a prison term is specified as being applicable, and | 1974 |
|
for a violation of division (A)(4) or (B) of section 2907.05 of | 1975 |
|
the Revised Code for which a presumption in favor of a prison term | 1976 |
|
is specified as being applicable, it is presumed that a prison | 1977 |
|
term is necessary in order to comply with the purposes and | 1978 |
|
principles of sentencing under section 2929.11 of the Revised | 1979 |
|
Code. Division (D)(2) of this section does not apply to a | 1980 |
|
presumption established under this division for a violation of | 1981 |
|
division (A)(4) of section 2907.05 of the Revised Code. | 1982 |
| (2) Notwithstanding the presumption established under | 1983 |
|
division (D)(1) of this section for the offenses listed in that | 1984 |
|
division other than a violation of division (A)(4) or (B) of | 1985 |
|
section 2907.05 of the Revised Code, the sentencing court may | 1986 |
|
impose a community control sanction or a combination of community | 1987 |
|
control sanctions instead of a prison term on an offender for a | 1988 |
|
felony of the first or second degree or for a felony drug offense | 1989 |
|
that is a violation of any provision of Chapter 2925., 3719., or | 1990 |
|
4729. of the Revised Code for which a presumption in favor of a | 1991 |
|
prison term is specified as being applicable if it makes both of | 1992 |
|
the following findings: | 1993 |
| (E)(1) Except as provided in division (F) of this section, | 2008 |
|
for any drug offense that is a violation of any provision of | 2009 |
|
Chapter 2925. of the Revised Code and that is a felony of the | 2010 |
|
third, fourth, or fifth degree, the applicability of a presumption | 2011 |
|
under division (D) of this section in favor of a prison term or of | 2012 |
|
division (B) or (C) of this section in determining whether to | 2013 |
|
impose a prison term for the offense shall be determined as | 2014 |
|
specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, | 2015 |
|
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the | 2016 |
|
Revised Code, whichever is applicable regarding the violation. | 2017 |
| (3) A court that sentences an offender for a drug abuse | 2032 |
|
offense that is a felony of the third, fourth, or fifth degree may | 2033 |
|
require that the offender be assessed by a properly credentialed | 2034 |
|
professional within a specified period of time. The court shall | 2035 |
|
require the professional to file a written assessment of the | 2036 |
|
offender with the court. If the offender is eligible for a | 2037 |
|
community control sanction and after considering the written | 2038 |
|
assessment, the court may impose a community control sanction that | 2039 |
|
includes treatment and recovery support services authorized by | 2040 |
|
section 3793.02 of the Revised Code. If the court imposes | 2041 |
|
treatment and recovery support services as a community control | 2042 |
|
sanction, the court shall direct the level and type of treatment | 2043 |
|
and recovery support services after considering the assessment and | 2044 |
|
recommendation of treatment and recovery support services | 2045 |
|
providers. | 2046 |
| (F) Notwithstanding divisions (A) to (E) of this section, the | 2047 |
court shall impose a prison term or terms under sectionssection | 2048 |
2929.02
to 2929.06, section 2929.14, section 2929.142, or section | 2049 |
|
2971.03 of the Revised Code and except as specifically provided in | 2050 |
|
section 2929.20, divisions (C) to (I) of section 2967.19, or | 2051 |
|
section 2967.191 of the Revised Code or when parole is authorized | 2052 |
|
for the offense under section 2967.13 of the Revised Code shall | 2053 |
|
not reduce the term or terms pursuant to section 2929.20, section | 2054 |
|
2967.19, section 2967.193, or any other provision of Chapter 2967. | 2055 |
|
or Chapter 5120. of the Revised Code for any of the following | 2056 |
|
offenses: | 2057 |
| (5) A first, second, or third degree felony drug offense for | 2088 |
|
which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, | 2089 |
|
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or | 2090 |
|
4729.99 of the Revised Code, whichever is applicable regarding the | 2091 |
|
violation, requires the imposition of a mandatory prison term; | 2092 |
| (6) Any offense that is a first or second degree felony and | 2093 |
|
that is not set forth in division (F)(1), (2), (3), or (4) of this | 2094 |
|
section, if the offender previously was convicted of or pleaded | 2095 |
|
guilty to aggravated murder, murder, any first or second degree | 2096 |
|
felony, or an offense under an existing or former law of this | 2097 |
|
state, another state, or the United States that is or was | 2098 |
|
substantially equivalent to one of those offenses; | 2099 |
| (16) Kidnapping, abduction, compelling prostitution, | 2160 |
|
promoting prostitution, engaging in a pattern of corrupt activity, | 2161 |
|
illegal use of a minor in a nudity-oriented material or | 2162 |
|
performance in violation of division (A)(1) or (2) of section | 2163 |
|
2907.323 of the Revised Code, or endangering children in violation | 2164 |
|
of division (B)(1), (2), (3), (4), or (5) of section 2919.22 of | 2165 |
|
the Revised Code, if the offender is convicted of or pleads guilty | 2166 |
|
to a specification as described in section 2941.1422 of the | 2167 |
|
Revised Code that was included in the indictment, count in the | 2168 |
|
indictment, or information charging the offense; | 2169 |
| (1) If the offender is being sentenced for a fourth degree | 2185 |
|
felony OVI offense and if the offender has not been convicted of | 2186 |
|
and has not pleaded guilty to a specification of the type | 2187 |
|
described in section 2941.1413 of the Revised Code, the court may | 2188 |
|
impose upon the offender a mandatory term of local incarceration | 2189 |
|
of sixty days or one hundred twenty days as specified in division | 2190 |
|
(G)(1)(d) of section 4511.19 of the Revised Code. The court shall | 2191 |
|
not reduce the term pursuant to section 2929.20, 2967.193, or any | 2192 |
|
other provision of the Revised Code. The court that imposes a | 2193 |
|
mandatory term of local incarceration under this division shall | 2194 |
|
specify whether the term is to be served in a jail, a | 2195 |
|
community-based correctional facility, a halfway house, or an | 2196 |
|
alternative residential facility, and the offender shall serve the | 2197 |
|
term in the type of facility specified by the court. A mandatory | 2198 |
|
term of local incarceration imposed under division (G)(1) of this | 2199 |
|
section is not subject to any other Revised Code provision that | 2200 |
|
pertains to a prison term except as provided in division (A)(1) of | 2201 |
|
this section. | 2202 |
| (2) If the offender is being sentenced for a third degree | 2203 |
|
felony OVI offense, or if the offender is being sentenced for a | 2204 |
|
fourth degree felony OVI offense and the court does not impose a | 2205 |
|
mandatory term of local incarceration under division (G)(1) of | 2206 |
|
this section, the court shall impose upon the offender a mandatory | 2207 |
|
prison term of one, two, three, four, or five years if the | 2208 |
|
offender also is convicted of or also pleads guilty to a | 2209 |
|
specification of the type described in section 2941.1413 of the | 2210 |
|
Revised Code or shall impose upon the offender a mandatory prison | 2211 |
|
term of sixty days or one hundred twenty days as specified in | 2212 |
|
division (G)(1)(d) or (e) of section 4511.19 of the Revised Code | 2213 |
|
if the offender has not been convicted of and has not pleaded | 2214 |
|
guilty to a specification of that type. Subject to divisions (C) | 2215 |
|
to (I) of section 2967.19 of the Revised Code, the court shall not | 2216 |
|
reduce the term pursuant to section 2929.20, 2967.19, 2967.193, or | 2217 |
|
any other provision of the Revised Code. The offender shall serve | 2218 |
|
the one-, two-, three-, four-, or five-year mandatory prison term | 2219 |
|
consecutively to and prior to the prison term imposed for the | 2220 |
|
underlying offense and consecutively to any other mandatory prison | 2221 |
|
term imposed in relation to the offense. In no case shall an | 2222 |
|
offender who once has been sentenced to a mandatory term of local | 2223 |
|
incarceration pursuant to division (G)(1) of this section for a | 2224 |
|
fourth degree felony OVI offense be sentenced to another mandatory | 2225 |
|
term of local incarceration under that division for any violation | 2226 |
|
of division (A) of section 4511.19 of the Revised Code. In | 2227 |
|
addition to the mandatory prison term described in division (G)(2) | 2228 |
|
of this section, the court may sentence the offender to a | 2229 |
|
community control sanction under section 2929.16 or 2929.17 of the | 2230 |
|
Revised Code, but the offender shall serve the prison term prior | 2231 |
|
to serving the community control sanction. The department of | 2232 |
|
rehabilitation and correction may place an offender sentenced to a | 2233 |
|
mandatory prison term under this division in an intensive program | 2234 |
|
prison established pursuant to section 5120.033 of the Revised | 2235 |
|
Code if the department gave the sentencing judge prior notice of | 2236 |
|
its intent to place the offender in an intensive program prison | 2237 |
|
established under that section and if the judge did not notify the | 2238 |
|
department that the judge disapproved the placement. Upon the | 2239 |
|
establishment of the initial intensive program prison pursuant to | 2240 |
|
section 5120.033 of the Revised Code that is privately operated | 2241 |
|
and managed by a contractor pursuant to a contract entered into | 2242 |
|
under section 9.06 of the Revised Code, both of the following | 2243 |
|
apply: | 2244 |
| (I) If an offender is being sentenced for a sexually oriented | 2261 |
|
offense or a child-victim oriented offense committed on or after | 2262 |
|
January 1, 1997, the judge shall include in the sentence a summary | 2263 |
|
of the offender's duties imposed under sections 2950.04, 2950.041, | 2264 |
|
2950.05, and 2950.06 of the Revised Code and the duration of the | 2265 |
|
duties. The judge shall inform the offender, at the time of | 2266 |
|
sentencing, of those duties and of their duration. If required | 2267 |
|
under division (A)(2) of section 2950.03 of the Revised Code, the | 2268 |
|
judge shall perform the duties specified in that section, or, if | 2269 |
|
required under division (A)(6) of section 2950.03 of the Revised | 2270 |
|
Code, the judge shall perform the duties specified in that | 2271 |
|
division. | 2272 |
| (2) When considering sentencing factors under this section in | 2281 |
|
relation to an offender who is convicted of or pleads guilty to an | 2282 |
|
attempt to commit a drug abuse offense for which the penalty is | 2283 |
|
determined by the amount or number of unit doses of the controlled | 2284 |
|
substance involved in the drug abuse offense, the sentencing court | 2285 |
|
shall consider the factors applicable to the felony category that | 2286 |
|
the drug abuse offense attempted would be if that drug abuse | 2287 |
|
offense had been committed and had involved an amount or number of | 2288 |
|
unit doses of the controlled substance that is within the next | 2289 |
|
lower range of controlled substance amounts than was involved in | 2290 |
|
the attempt. | 2291 |
| (L) At the time of sentencing an offender for any sexually | 2298 |
|
oriented offense, if the offender is a tier III sex | 2299 |
|
offender/child-victim offender relative to that offense and the | 2300 |
|
offender does not serve a prison term or jail term, the court may | 2301 |
|
require that the offender be monitored by means of a global | 2302 |
|
positioning device. If the court requires such monitoring, the | 2303 |
|
cost of monitoring shall be borne by the offender. If the offender | 2304 |
|
is indigent, the cost of compliance shall be paid by the crime | 2305 |
|
victims reparations fund. | 2306 |
| Sec. 2929.14. (A) Except as provided in division (B)(1), | 2307 |
|
(B)(2), (B)(3), (B)(4), (B)(5), (B)(6), (B)(7), (B)(8), (E), (G), | 2308 |
|
(H), or (J) of this section or in division (D)(6) of section | 2309 |
|
2919.25 of the Revised Code and except in relation to an offense | 2310 |
for which a sentence of death or life imprisonment is to be | 2311 |
|
imposed, if the court imposing a sentence upon an offender for a | 2312 |
|
felony elects or is required to impose a prison term on the | 2313 |
|
offender pursuant to this chapter, the court shall impose a | 2314 |
|
definite prison term that shall be one of the following: | 2315 |
| (3)(a) For a felony of the third degree that is a violation | 2321 |
|
of section 2903.06, 2903.08, 2907.03, 2907.04, or 2907.05 of the | 2322 |
|
Revised Code or that is a violation of section 2911.02 or 2911.12 | 2323 |
|
of the Revised Code if the offender previously has been convicted | 2324 |
|
of or pleaded guilty in two or more separate proceedings to two or | 2325 |
|
more violations of section 2911.01, 2911.02, 2911.11, or 2911.12 | 2326 |
|
of the Revised Code, the prison term shall be twelve, eighteen, | 2327 |
|
twenty-four, thirty, thirty-six, forty-two, forty-eight, | 2328 |
|
fifty-four, or sixty months. | 2329 |
| (b) If a court imposes a prison term on an offender under | 2363 |
|
division (B)(1)(a) of this section, the prison term shall not be | 2364 |
|
reduced pursuant to section 2967.19, section 2929.20, section | 2365 |
|
2967.193, or any other provision of Chapter 2967. or Chapter 5120. | 2366 |
|
of the Revised Code. Except as provided in division (B)(1)(g) of | 2367 |
|
this section, a court shall not impose more than one prison term | 2368 |
|
on an offender under division (B)(1)(a) of this section for | 2369 |
|
felonies committed as part of the same act or transaction. | 2370 |
| (c) Except as provided in division (B)(1)(e) of this section, | 2371 |
|
if an offender who is convicted of or pleads guilty to a violation | 2372 |
|
of section 2923.161 of the Revised Code or to a felony that | 2373 |
|
includes, as an essential element, purposely or knowingly causing | 2374 |
|
or attempting to cause the death of or physical harm to another, | 2375 |
|
also is convicted of or pleads guilty to a specification of the | 2376 |
|
type described in section 2941.146 of the Revised Code that | 2377 |
|
charges the offender with committing the offense by discharging a | 2378 |
|
firearm from a motor vehicle other than a manufactured home, the | 2379 |
|
court, after imposing a prison term on the offender for the | 2380 |
|
violation of section 2923.161 of the Revised Code or for the other | 2381 |
|
felony offense under division (A), (B)(2), or (B)(3) of this | 2382 |
|
section, shall impose an additional prison term of five years upon | 2383 |
|
the offender that shall not be reduced pursuant to section | 2384 |
|
2929.20, section 2967.19, section 2967.193, or any other provision | 2385 |
|
of Chapter 2967. or Chapter 5120. of the Revised Code. A court | 2386 |
|
shall not impose more than one additional prison term on an | 2387 |
|
offender under division (B)(1)(c) of this section for felonies | 2388 |
|
committed as part of the same act or transaction. If a court | 2389 |
|
imposes an additional prison term on an offender under division | 2390 |
|
(B)(1)(c) of this section relative to an offense, the court also | 2391 |
|
shall impose a prison term under division (B)(1)(a) of this | 2392 |
|
section relative to the same offense, provided the criteria | 2393 |
|
specified in that division for imposing an additional prison term | 2394 |
|
are satisfied relative to the offender and the offense. | 2395 |
| (d) If an offender who is convicted of or pleads guilty to an | 2396 |
|
offense of violence that is a felony also is convicted of or | 2397 |
|
pleads guilty to a specification of the type described in section | 2398 |
|
2941.1411 of the Revised Code that charges the offender with | 2399 |
|
wearing or carrying body armor while committing the felony offense | 2400 |
|
of violence, the court shall impose on the offender a prison term | 2401 |
|
of two years. The prison term so imposed, subject to divisions (C) | 2402 |
|
to (I) of section 2967.19 of the Revised Code, shall not be | 2403 |
|
reduced pursuant to section 2929.20, section 2967.19, section | 2404 |
|
2967.193, or any other provision of Chapter 2967. or Chapter 5120. | 2405 |
|
of the Revised Code. A court shall not impose more than one prison | 2406 |
|
term on an offender under division (B)(1)(d) of this section for | 2407 |
|
felonies committed as part of the same act or transaction. If a | 2408 |
|
court imposes an additional prison term under division (B)(1)(a) | 2409 |
|
or (c) of this section, the court is not precluded from imposing | 2410 |
|
an additional prison term under division (B)(1)(d) of this | 2411 |
|
section. | 2412 |
| (e) The court shall not impose any of the prison terms | 2413 |
|
described in division (B)(1)(a) of this section or any of the | 2414 |
|
additional prison terms described in division (B)(1)(c) of this | 2415 |
|
section upon an offender for a violation of section 2923.12 or | 2416 |
|
2923.123 of the Revised Code. The court shall not impose any of | 2417 |
|
the prison terms described in division (B)(1)(a) or (b) of this | 2418 |
|
section upon an offender for a violation of section 2923.122 that | 2419 |
|
involves a deadly weapon that is a firearm other than a dangerous | 2420 |
|
ordnance, section 2923.16, or section 2923.121 of the Revised | 2421 |
|
Code. The court shall not impose any of the prison terms described | 2422 |
|
in division (B)(1)(a) of this section or any of the additional | 2423 |
|
prison terms described in division (B)(1)(c) of this section upon | 2424 |
|
an offender for a violation of section 2923.13 of the Revised Code | 2425 |
|
unless all of the following apply: | 2426 |
| (f) If an offender is convicted of or pleads guilty to a | 2432 |
|
felony that includes, as an essential element, causing or | 2433 |
|
attempting to cause the death of or physical harm to another and | 2434 |
|
also is convicted of or pleads guilty to a specification of the | 2435 |
|
type described in section 2941.1412 of the Revised Code that | 2436 |
|
charges the offender with committing the offense by discharging a | 2437 |
|
firearm at a peace officer as defined in section 2935.01 of the | 2438 |
|
Revised Code or a corrections officer, as defined in section | 2439 |
|
2941.1412 of the Revised Code, the court, after imposing a prison | 2440 |
|
term on the offender for the felony offense under division (A), | 2441 |
|
(B)(2), or (B)(3) of this section, shall impose an additional | 2442 |
|
prison term of seven years upon the offender that shall not be | 2443 |
|
reduced pursuant to section 2929.20, section 2967.19, section | 2444 |
|
2967.193, or any other provision of Chapter 2967. or Chapter 5120. | 2445 |
|
of the Revised Code. If an offender is convicted of or pleads | 2446 |
|
guilty to two or more felonies that include, as an essential | 2447 |
|
element, causing or attempting to cause the death or physical harm | 2448 |
|
to another and also is convicted of or pleads guilty to a | 2449 |
|
specification of the type described under division (B)(1)(f) of | 2450 |
|
this section in connection with two or more of the felonies of | 2451 |
|
which the offender is convicted or to which the offender pleads | 2452 |
|
guilty, the sentencing court shall impose on the offender the | 2453 |
|
prison term specified under division (B)(1)(f) of this section for | 2454 |
|
each of two of the specifications of which the offender is | 2455 |
|
convicted or to which the offender pleads guilty and, in its | 2456 |
|
discretion, also may impose on the offender the prison term | 2457 |
|
specified under that division for any or all of the remaining | 2458 |
|
specifications. If a court imposes an additional prison term on an | 2459 |
|
offender under division (B)(1)(f) of this section relative to an | 2460 |
|
offense, the court shall not impose a prison term under division | 2461 |
|
(B)(1)(a) or (c) of this section relative to the same offense. | 2462 |
| (g) If an offender is convicted of or pleads guilty to two or | 2463 |
|
more felonies, if one or more of those felonies are aggravated | 2464 |
|
murder, murder, attempted aggravated murder, attempted murder, | 2465 |
|
aggravated robbery, felonious assault, or rape, and if the | 2466 |
|
offender is convicted of or pleads guilty to a specification of | 2467 |
|
the type described under division (B)(1)(a) of this section in | 2468 |
|
connection with two or more of the felonies, the sentencing court | 2469 |
|
shall impose on the offender the prison term specified under | 2470 |
|
division (B)(1)(a) of this section for each of the two most | 2471 |
|
serious specifications of which the offender is convicted or to | 2472 |
|
which the offender pleads guilty and, in its discretion, also may | 2473 |
|
impose on the offender the prison term specified under that | 2474 |
|
division for any or all of the remaining specifications. | 2475 |
| (ii) The offense of which the offender currently is convicted | 2485 |
|
or to which the offender currently pleads guilty is aggravated | 2486 |
murder and the court does not impose a sentence of death or life | 2487 |
|
imprisonment without parole, murder, terrorism and the court does | 2488 |
|
not impose a sentence of life imprisonment without parole, any | 2489 |
|
felony of the first degree that is an offense of violence and the | 2490 |
|
court does not impose a sentence of life imprisonment without | 2491 |
|
parole, or any felony of the second degree that is an offense of | 2492 |
|
violence and the trier of fact finds that the offense involved an | 2493 |
|
attempt to cause or a threat to cause serious physical harm to a | 2494 |
|
person or resulted in serious physical harm to a person. | 2495 |
| (v) The court finds that the prison terms imposed pursuant to | 2506 |
|
division (B)(2)(a)(iii) of this section and, if applicable, | 2507 |
|
division (B)(1) or (3) of this section are demeaning to the | 2508 |
|
seriousness of the offense, because one or more of the factors | 2509 |
|
under section 2929.12 of the Revised Code indicating that the | 2510 |
|
offender's conduct is more serious than conduct normally | 2511 |
|
constituting the offense are present, and they outweigh the | 2512 |
|
applicable factors under that section indicating that the | 2513 |
|
offender's conduct is less serious than conduct normally | 2514 |
|
constituting the offense. | 2515 |
| (iii) The offense or offenses of which the offender currently | 2533 |
|
is convicted or to which the offender currently pleads guilty is | 2534 |
|
aggravated murder and the court does not impose a sentence of | 2535 |
death or life imprisonment without parole, murder, terrorism and | 2536 |
|
the court does not impose a sentence of life imprisonment without | 2537 |
|
parole, any felony of the first degree that is an offense of | 2538 |
|
violence and the court does not impose a sentence of life | 2539 |
|
imprisonment without parole, or any felony of the second degree | 2540 |
|
that is an offense of violence and the trier of fact finds that | 2541 |
|
the offense involved an attempt to cause or a threat to cause | 2542 |
|
serious physical harm to a person or resulted in serious physical | 2543 |
|
harm to a person. | 2544 |
| (3) Except when an offender commits a violation of section | 2559 |
|
2903.01 or 2907.02 of the Revised Code and the penalty imposed for | 2560 |
|
the violation is life imprisonment or commits a violation of | 2561 |
|
section 2903.02 of the Revised Code, if the offender commits a | 2562 |
|
violation of section 2925.03 or 2925.11 of the Revised Code and | 2563 |
|
that section classifies the offender as a major drug offender, if | 2564 |
|
the offender commits a felony violation of section 2925.02, | 2565 |
|
2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, | 2566 |
|
4729.37, or 4729.61, division (C) or (D) of section 3719.172, | 2567 |
|
division (C) of section 4729.51, or division (J) of section | 2568 |
|
4729.54 of the Revised Code that includes the sale, offer to sell, | 2569 |
|
or possession of a schedule I or II controlled substance, with the | 2570 |
|
exception of marihuana, and the court imposing sentence upon the | 2571 |
|
offender finds that the offender is guilty of a specification of | 2572 |
|
the type described in section 2941.1410 of the Revised Code | 2573 |
|
charging that the offender is a major drug offender, if the court | 2574 |
|
imposing sentence upon an offender for a felony finds that the | 2575 |
|
offender is guilty of corrupt activity with the most serious | 2576 |
|
offense in the pattern of corrupt activity being a felony of the | 2577 |
|
first degree, or if the offender is guilty of an attempted | 2578 |
|
violation of section 2907.02 of the Revised Code and, had the | 2579 |
|
offender completed the violation of section 2907.02 of the Revised | 2580 |
|
Code that was attempted, the offender would have been subject to a | 2581 |
|
sentence of life imprisonment or life imprisonment without parole | 2582 |
|
for the violation of section 2907.02 of the Revised Code, the | 2583 |
|
court shall impose upon the offender for the felony violation a | 2584 |
|
mandatory prison term of the maximum prison term prescribed for a | 2585 |
|
felony of the first degree that, subject to divisions (C) to (I) | 2586 |
|
of section 2967.19 of the Revised Code, cannot be reduced pursuant | 2587 |
|
to section 2929.20, section 2967.19, or any other provision of | 2588 |
|
Chapter 2967. or 5120. of the Revised Code. | 2589 |
| (4) If the offender is being sentenced for a third or fourth | 2590 |
|
degree felony OVI offense under division (G)(2) of section 2929.13 | 2591 |
|
of the Revised Code, the sentencing court shall impose upon the | 2592 |
|
offender a mandatory prison term in accordance with that division. | 2593 |
|
In addition to the mandatory prison term, if the offender is being | 2594 |
|
sentenced for a fourth degree felony OVI offense, the court, | 2595 |
|
notwithstanding division (A)(4) of this section, may sentence the | 2596 |
|
offender to a definite prison term of not less than six months and | 2597 |
|
not more than thirty months, and if the offender is being | 2598 |
|
sentenced for a third degree felony OVI offense, the sentencing | 2599 |
|
court may sentence the offender to an additional prison term of | 2600 |
|
any duration specified in division (A)(3) of this section. In | 2601 |
|
either case, the additional prison term imposed shall be reduced | 2602 |
|
by the sixty or one hundred twenty days imposed upon the offender | 2603 |
|
as the mandatory prison term. The total of the additional prison | 2604 |
|
term imposed under division (B)(4) of this section plus the sixty | 2605 |
|
or one hundred twenty days imposed as the mandatory prison term | 2606 |
|
shall equal a definite term in the range of six months to thirty | 2607 |
|
months for a fourth degree felony OVI offense and shall equal one | 2608 |
|
of the authorized prison terms specified in division (A)(3) of | 2609 |
|
this section for a third degree felony OVI offense. If the court | 2610 |
|
imposes an additional prison term under division (B)(4) of this | 2611 |
|
section, the offender shall serve the additional prison term after | 2612 |
|
the offender has served the mandatory prison term required for the | 2613 |
|
offense. In addition to the mandatory prison term or mandatory and | 2614 |
|
additional prison term imposed as described in division (B)(4) of | 2615 |
|
this section, the court also may sentence the offender to a | 2616 |
|
community control sanction under section 2929.16 or 2929.17 of the | 2617 |
|
Revised Code, but the offender shall serve all of the prison terms | 2618 |
|
so imposed prior to serving the community control sanction. | 2619 |
| (5) If an offender is convicted of or pleads guilty to a | 2625 |
|
violation of division (A)(1) or (2) of section 2903.06 of the | 2626 |
|
Revised Code and also is convicted of or pleads guilty to a | 2627 |
|
specification of the type described in section 2941.1414 of the | 2628 |
|
Revised Code that charges that the victim of the offense is a | 2629 |
|
peace officer, as defined in section 2935.01 of the Revised Code, | 2630 |
|
or an investigator of the bureau of criminal identification and | 2631 |
|
investigation, as defined in section 2903.11 of the Revised Code, | 2632 |
|
the court shall impose on the offender a prison term of five | 2633 |
|
years. If a court imposes a prison term on an offender under | 2634 |
|
division (B)(5) of this section, the prison term, subject to | 2635 |
|
divisions (C) to (I) of section 2967.19 of the Revised Code, shall | 2636 |
|
not be reduced pursuant to section 2929.20, section 2967.19, | 2637 |
|
section 2967.193, or any other provision of Chapter 2967. or | 2638 |
|
Chapter 5120. of the Revised Code. A court shall not impose more | 2639 |
|
than one prison term on an offender under division (B)(5) of this | 2640 |
|
section for felonies committed as part of the same act. | 2641 |
| (6) If an offender is convicted of or pleads guilty to a | 2642 |
|
violation of division (A)(1) or (2) of section 2903.06 of the | 2643 |
|
Revised Code and also is convicted of or pleads guilty to a | 2644 |
|
specification of the type described in section 2941.1415 of the | 2645 |
|
Revised Code that charges that the offender previously has been | 2646 |
|
convicted of or pleaded guilty to three or more violations of | 2647 |
|
division (A) or (B) of section 4511.19 of the Revised Code or an | 2648 |
|
equivalent offense, as defined in section 2941.1415 of the Revised | 2649 |
|
Code, or three or more violations of any combination of those | 2650 |
|
divisions and offenses, the court shall impose on the offender a | 2651 |
|
prison term of three years. If a court imposes a prison term on an | 2652 |
|
offender under division (B)(6) of this section, the prison term, | 2653 |
|
subject to divisions (C) to (I) of section 2967.19 of the Revised | 2654 |
|
Code, shall not be reduced pursuant to section 2929.20, section | 2655 |
|
2967.19, section 2967.193, or any other provision of Chapter 2967. | 2656 |
|
or Chapter 5120. of the Revised Code. A court shall not impose | 2657 |
|
more than one prison term on an offender under division (B)(6) of | 2658 |
|
this section for felonies committed as part of the same act. | 2659 |
| (7)(a) If an offender is convicted of or pleads guilty to a | 2660 |
|
felony violation of section 2905.01, 2905.02, 2907.21, 2907.22, or | 2661 |
|
2923.32, division (A)(1) or (2) of section 2907.323, or division | 2662 |
|
(B)(1), (2), (3), (4), or (5) of section 2919.22 of the Revised | 2663 |
|
Code and also is convicted of or pleads guilty to a specification | 2664 |
|
of the type described in section 2941.1422 of the Revised Code | 2665 |
|
that charges that the offender knowingly committed the offense in | 2666 |
|
furtherance of human trafficking, the court shall impose on the | 2667 |
|
offender a mandatory prison term that is one of the following: | 2668 |
| (8) If an offender is convicted of or pleads guilty to a | 2688 |
|
felony violation of section 2903.11, 2903.12, or 2903.13 of the | 2689 |
|
Revised Code and also is convicted of or pleads guilty to a | 2690 |
|
specification of the type described in section 2941.1423 of the | 2691 |
|
Revised Code that charges that the victim of the violation was a | 2692 |
|
woman whom the offender knew was pregnant at the time of the | 2693 |
|
violation, notwithstanding the range of prison terms prescribed in | 2694 |
|
division (A) of this section for felonies of the same degree as | 2695 |
|
the violation, the court shall impose on the offender a mandatory | 2696 |
|
prison term that is either a definite prison term of six months or | 2697 |
|
one of the prison terms prescribed in section 2929.14 of the | 2698 |
|
Revised Code for felonies of the same degree as the violation. | 2699 |
| (C)(1)(a) Subject to division (C)(1)(b) of this section, if a | 2700 |
|
mandatory prison term is imposed upon an offender pursuant to | 2701 |
|
division (B)(1)(a) of this section for having a firearm on or | 2702 |
|
about the offender's person or under the offender's control while | 2703 |
|
committing a felony, if a mandatory prison term is imposed upon an | 2704 |
|
offender pursuant to division (B)(1)(c) of this section for | 2705 |
|
committing a felony specified in that division by discharging a | 2706 |
|
firearm from a motor vehicle, or if both types of mandatory prison | 2707 |
|
terms are imposed, the offender shall serve any mandatory prison | 2708 |
|
term imposed under either division consecutively to any other | 2709 |
|
mandatory prison term imposed under either division or under | 2710 |
|
division (B)(1)(d) of this section, consecutively to and prior to | 2711 |
|
any prison term imposed for the underlying felony pursuant to | 2712 |
|
division (A), (B)(2), or (B)(3) of this section or any other | 2713 |
|
section of the Revised Code, and consecutively to any other prison | 2714 |
|
term or mandatory prison term previously or subsequently imposed | 2715 |
|
upon the offender. | 2716 |
| (b) If a mandatory prison term is imposed upon an offender | 2717 |
|
pursuant to division (B)(1)(d) of this section for wearing or | 2718 |
|
carrying body armor while committing an offense of violence that | 2719 |
|
is a felony, the offender shall serve the mandatory term so | 2720 |
|
imposed consecutively to any other mandatory prison term imposed | 2721 |
|
under that division or under division (B)(1)(a) or (c) of this | 2722 |
|
section, consecutively to and prior to any prison term imposed for | 2723 |
|
the underlying felony under division (A), (B)(2), or (B)(3) of | 2724 |
|
this section or any other section of the Revised Code, and | 2725 |
|
consecutively to any other prison term or mandatory prison term | 2726 |
|
previously or subsequently imposed upon the offender. | 2727 |
| (2) If an offender who is an inmate in a jail, prison, or | 2743 |
|
other residential detention facility violates section 2917.02, | 2744 |
|
2917.03, or 2921.35 of the Revised Code or division (A)(1) or (2) | 2745 |
|
of section 2921.34 of the Revised Code, if an offender who is | 2746 |
|
under detention at a detention facility commits a felony violation | 2747 |
|
of section 2923.131 of the Revised Code, or if an offender who is | 2748 |
|
an inmate in a jail, prison, or other residential detention | 2749 |
|
facility or is under detention at a detention facility commits | 2750 |
|
another felony while the offender is an escapee in violation of | 2751 |
|
division (A)(1) or (2) of section 2921.34 of the Revised Code, any | 2752 |
|
prison term imposed upon the offender for one of those violations | 2753 |
|
shall be served by the offender consecutively to the prison term | 2754 |
|
or term of imprisonment the offender was serving when the offender | 2755 |
|
committed that offense and to any other prison term previously or | 2756 |
|
subsequently imposed upon the offender. | 2757 |
| (5) If a mandatory prison term is imposed upon an offender | 2788 |
|
pursuant to division (B)(5) or (6) of this section, the offender | 2789 |
|
shall serve the mandatory prison term consecutively to and prior | 2790 |
|
to any prison term imposed for the underlying violation of | 2791 |
|
division (A)(1) or (2) of section 2903.06 of the Revised Code | 2792 |
|
pursuant to division (A) of this section or section 2929.142 of | 2793 |
|
the Revised Code. If a mandatory prison term is imposed upon an | 2794 |
|
offender pursuant to division (B)(5) of this section, and if a | 2795 |
|
mandatory prison term also is imposed upon the offender pursuant | 2796 |
|
to division (B)(6) of this section in relation to the same | 2797 |
|
violation, the offender shall serve the mandatory prison term | 2798 |
|
imposed pursuant to division (B)(5) of this section consecutively | 2799 |
|
to and prior to the mandatory prison term imposed pursuant to | 2800 |
|
division (B)(6) of this section and consecutively to and prior to | 2801 |
|
any prison term imposed for the underlying violation of division | 2802 |
|
(A)(1) or (2) of section 2903.06 of the Revised Code pursuant to | 2803 |
|
division (A) of this section or section 2929.142 of the Revised | 2804 |
|
Code. | 2805 |
| (D)(1) If a court imposes a prison term for a felony of the | 2810 |
|
first degree, for a felony of the second degree, for a felony sex | 2811 |
|
offense, or for a felony of the third degree that is not a felony | 2812 |
|
sex offense and in the commission of which the offender caused or | 2813 |
|
threatened to cause physical harm to a person, it shall include in | 2814 |
|
the sentence a requirement that the offender be subject to a | 2815 |
|
period of post-release control after the offender's release from | 2816 |
|
imprisonment, in accordance with that division. If a court imposes | 2817 |
|
a sentence including a prison term of a type described in this | 2818 |
|
division on or after July 11, 2006, the failure of a court to | 2819 |
|
include a post-release control requirement in the sentence | 2820 |
|
pursuant to this division does not negate, limit, or otherwise | 2821 |
|
affect the mandatory period of post-release control that is | 2822 |
|
required for the offender under division (B) of section 2967.28 of | 2823 |
|
the Revised Code. Section 2929.191 of the Revised Code applies if, | 2824 |
|
prior to July 11, 2006, a court imposed a sentence including a | 2825 |
|
prison term of a type described in this division and failed to | 2826 |
|
include in the sentence pursuant to this division a statement | 2827 |
|
regarding post-release control. | 2828 |
| (2) If a court imposes a prison term for a felony of the | 2829 |
|
third, fourth, or fifth degree that is not subject to division | 2830 |
|
(D)(1) of this section, it shall include in the sentence a | 2831 |
|
requirement that the offender be subject to a period of | 2832 |
|
post-release control after the offender's release from | 2833 |
|
imprisonment, in accordance with that division, if the parole | 2834 |
|
board determines that a period of post-release control is | 2835 |
|
necessary. Section 2929.191 of the Revised Code applies if, prior | 2836 |
|
to July 11, 2006, a court imposed a sentence including a prison | 2837 |
|
term of a type described in this division and failed to include in | 2838 |
|
the sentence pursuant to this division a statement regarding | 2839 |
|
post-release control. | 2840 |
| (5) A person is convicted of or pleads guilty to aggravated | 2867 |
|
murder committed on or after January 1, 2008, and division | 2868 |
(A)(2)(b)(ii) of section 2929.022, division (A)(1)(e), | 2869 |
(C)(1)(a)(v), (C)(2)(a)(ii), (D)(2)(b), (D)(3)(a)(iv), or | 2870 |
(E)(1)(d) of section 2929.03, or division (A) or (B)(C) of section | 2871 |
2929.062929.02 of the Revised Code requires the court to sentence | 2872 |
|
the offender pursuant to division (B)(3) of section 2971.03 of the | 2873 |
|
Revised Code. | 2874 |
| (H)(1) If an offender who is convicted of or pleads guilty to | 2894 |
|
aggravated murder, murder, or a felony of the first, second, or | 2895 |
|
third degree that is an offense of violence also is convicted of | 2896 |
|
or pleads guilty to a specification of the type described in | 2897 |
|
section 2941.143 of the Revised Code that charges the offender | 2898 |
|
with having committed the offense in a school safety zone or | 2899 |
|
towards a person in a school safety zone, the court shall impose | 2900 |
|
upon the offender an additional prison term of two years. The | 2901 |
|
offender shall serve the additional two years consecutively to and | 2902 |
|
prior to the prison term imposed for the underlying offense. | 2903 |
| (ii) If the offender previously has been convicted of or | 2913 |
|
pleaded guilty to one or more felony or misdemeanor violations of | 2914 |
|
section 2907.22, 2907.23, 2907.24, 2907.241, or 2907.25 of the | 2915 |
|
Revised Code and also was convicted of or pleaded guilty to a | 2916 |
|
specification of the type described in section 2941.1421 of the | 2917 |
|
Revised Code regarding one or more of those violations, an | 2918 |
|
additional prison term of one, two, three, four, five, six, seven, | 2919 |
|
eight, nine, ten, eleven, or twelve months. | 2920 |
| (b) In lieu of imposing an additional prison term under | 2921 |
|
division (H)(2)(a) of this section, the court may directly impose | 2922 |
|
on the offender a sanction that requires the offender to wear a | 2923 |
|
real-time processing, continual tracking electronic monitoring | 2924 |
|
device during the period of time specified by the court. The | 2925 |
|
period of time specified by the court shall equal the duration of | 2926 |
|
an additional prison term that the court could have imposed upon | 2927 |
|
the offender under division (H)(2)(a) of this section. A sanction | 2928 |
|
imposed under this division shall commence on the date specified | 2929 |
|
by the court, provided that the sanction shall not commence until | 2930 |
|
after the offender has served the prison term imposed for the | 2931 |
|
felony violation of section 2907.22, 2907.24, 2907.241, or 2907.25 | 2932 |
|
of the Revised Code and any residential sanction imposed for the | 2933 |
|
violation under section 2929.16 of the Revised Code. A sanction | 2934 |
|
imposed under this division shall be considered to be a community | 2935 |
|
control sanction for purposes of section 2929.15 of the Revised | 2936 |
|
Code, and all provisions of the Revised Code that pertain to | 2937 |
|
community control sanctions shall apply to a sanction imposed | 2938 |
|
under this division, except to the extent that they would by their | 2939 |
|
nature be clearly inapplicable. The offender shall pay all costs | 2940 |
|
associated with a sanction imposed under this division, including | 2941 |
|
the cost of the use of the monitoring device. | 2942 |
| (I) At the time of sentencing, the court may recommend the | 2943 |
|
offender for placement in a program of shock incarceration under | 2944 |
|
section 5120.031 of the Revised Code or for placement in an | 2945 |
|
intensive program prison under section 5120.032 of the Revised | 2946 |
|
Code, disapprove placement of the offender in a program of shock | 2947 |
|
incarceration or an intensive program prison of that nature, or | 2948 |
|
make no recommendation on placement of the offender. In no case | 2949 |
|
shall the department of rehabilitation and correction place the | 2950 |
|
offender in a program or prison of that nature unless the | 2951 |
|
department determines as specified in section 5120.031 or 5120.032 | 2952 |
|
of the Revised Code, whichever is applicable, that the offender is | 2953 |
|
eligible for the placement. | 2954 |
| If the court does not make a recommendation under this | 2971 |
|
division with respect to an offender and if the department | 2972 |
|
determines as specified in section 5120.031 or 5120.032 of the | 2973 |
|
Revised Code, whichever is applicable, that the offender is | 2974 |
|
eligible for placement in a program or prison of that nature, the | 2975 |
|
department shall screen the offender and determine if there is an | 2976 |
|
available program of shock incarceration or an intensive program | 2977 |
|
prison for which the offender is suited. If there is an available | 2978 |
|
program of shock incarceration or an intensive program prison for | 2979 |
|
which the offender is suited, the department shall notify the | 2980 |
|
court of the proposed placement of the offender as specified in | 2981 |
|
section 5120.031 or 5120.032 of the Revised Code and shall include | 2982 |
|
with the notice a brief description of the placement. The court | 2983 |
|
shall have ten days from receipt of the notice to disapprove the | 2984 |
|
placement. | 2985 |
Sec. 2941.021. Any criminal offense whichthat is not | 2991 |
punishable by death or life imprisonment may be prosecuted by | 2992 |
|
information filed in the common pleas court by the prosecuting | 2993 |
attorney if the defendant, after he hashaving been advised by the | 2994 |
court of the nature of the charge against himthe defendant and of | 2995 |
histhe defendant's rights under the constitution, is represented | 2996 |
|
by counsel or has affirmatively waived counsel by waiver in | 2997 |
|
writing and in open court, waives in writing and in open court | 2998 |
|
prosecution by indictment. | 2999 |
(B) Imposition of the death penalty for aggravated murder is | 3004 |
precluded unless the indictment or count in the indictment | 3005 |
charging the offense specifies one or more of the aggravating | 3006 |
circumstances listed in division (A) of section 2929.04 of the | 3007 |
Revised Code. If more than one aggravating circumstance is | 3008 |
specified to an indictment or count, each shall be in a separately | 3009 |
numbered specification, and if an aggravating circumstance is | 3010 |
specified to a count in an indictment containing more than one | 3011 |
count, such specification shall be identified as to the count to | 3012 |
which it applies. | 3013 |
| (a) The offender is charged with a violent sex offense, and | 3028 |
|
the indictment, count in the indictment, or information charging | 3029 |
|
the violent sex offense also includes a specification that the | 3030 |
|
offender is a sexually violent predator, or the offender is | 3031 |
|
charged with a designated homicide, assault, or kidnapping | 3032 |
|
offense, and the indictment, count in the indictment, or | 3033 |
|
information charging the designated homicide, assault, or | 3034 |
|
kidnapping offense also includes both a specification of the type | 3035 |
|
described in section 2941.147 of the Revised Code and a | 3036 |
|
specification that the offender is a sexually violent predator. | 3037 |
| (e) The offender is convicted of or pleads guilty to | 3054 |
|
aggravated murder and to a specification of the type described in | 3055 |
section 2941.147 of the Revised Code, and division (A)(2)(b)(ii) | 3056 |
of section 2929.022, division (A)(1)(e), (C)(1)(a)(v), | 3057 |
(C)(2)(a)(ii), (D)(2)(b), (D)(3)(a)(iv), or (E)(1)(d) of section | 3058 |
2929.03, or division (A) or (B)(C)(1) of section 2929.062929.02 | 3059 |
|
of the Revised Code requires a court to sentence the offender | 3060 |
|
pursuant to division (B)(3) of section 2971.03 of the Revised | 3061 |
|
Code. | 3062 |
| Sec. 2941.401. When a person has entered upon a term of | 3087 |
|
imprisonment in a correctional institution of this state, and when | 3088 |
|
during the continuance of the term of imprisonment there is | 3089 |
|
pending in this state any untried indictment, information, or | 3090 |
complaint against the prisoner, hethe prisoner shall be brought | 3091 |
to trial within one hundred eighty days after
hethe prisoner | 3092 |
|
causes to be delivered to the prosecuting attorney and the | 3093 |
|
appropriate court in which the matter is pending, written notice | 3094 |
of the place of histhe prisoner's imprisonment and a request for | 3095 |
|
a final disposition to be made of the matter, except that for good | 3096 |
cause shown in open court, with the prisoner or histhe prisoner's | 3097 |
|
counsel present, the court may grant any necessary or reasonable | 3098 |
|
continuance. The request of the prisoner shall be accompanied by a | 3099 |
|
certificate of the warden or superintendent having custody of the | 3100 |
|
prisoner, stating the term of commitment under which the prisoner | 3101 |
|
is being held, the time served and remaining to be served on the | 3102 |
|
sentence, the amount of good time earned, the time of parole | 3103 |
|
eligibility of the prisoner, and any decisions of the adult parole | 3104 |
|
authority relating to the prisoner. | 3105 |
| Sec. 2941.43. If the convict referred to in section 2941.40 | 3128 |
of the Revised Code is acquitted,
hethe convict shall
be | 3129 |
|
forthwith returned by the sheriff to the state correctional | 3130 |
institution to serve out the remainder of
histhe convict's | 3131 |
sentence. If
hethe convict is sentenced to imprisonment in a | 3132 |
state correctional institution,
hethe convict shall be returned | 3133 |
to the state correctional institution by the sheriff to serve
his | 3134 |
newthe convict's term. If he is sentenced to death, the death | 3135 |
sentence shall be executed as if he were not under sentence of | 3136 |
imprisonment in a state correctional institution. | 3137 |
| Sec. 2941.51. (A) Counsel appointed to a case or selected by | 3138 |
|
an indigent person under division (E) of section 120.16 or | 3139 |
|
division (E) of section 120.26 of the Revised Code, or otherwise | 3140 |
|
appointed by the court, except for counsel appointed by the court | 3141 |
|
to provide legal representation for a person charged with a | 3142 |
|
violation of an ordinance of a municipal corporation, shall be | 3143 |
|
paid for their services by the county the compensation and | 3144 |
|
expenses that the trial court approves. Each request for payment | 3145 |
|
shall be accompanied by a financial disclosure form and an | 3146 |
|
affidavit of indigency that are completed by the indigent person | 3147 |
|
on forms prescribed by the state public defender. Compensation and | 3148 |
|
expenses shall not exceed the amounts fixed by the board of county | 3149 |
|
commissioners pursuant to division (B) of this section. | 3150 |
| (D) The fees and expenses approved by the court under this | 3162 |
|
section shall not be taxed as part of the costs and shall be paid | 3163 |
|
by the county. However, if the person represented has, or | 3164 |
|
reasonably may be expected to have, the means to meet some part of | 3165 |
|
the cost of the services rendered to the person, the person shall | 3166 |
|
pay the county an amount that the person reasonably can be | 3167 |
|
expected to pay. Pursuant to section 120.04 of the Revised Code, | 3168 |
|
the county shall pay to the state public defender a percentage of | 3169 |
|
the payment received from the person in an amount proportionate to | 3170 |
|
the percentage of the costs of the person's case that were paid to | 3171 |
|
the county by the state public defender pursuant to this section. | 3172 |
|
The money paid to the state public defender shall be credited to | 3173 |
|
the client payment fund created pursuant to division (B)(5) of | 3174 |
|
section 120.04 of the Revised Code. | 3175 |
| (E) The county auditor shall draw a warrant on the county | 3176 |
|
treasurer for the payment of such counsel in the amount fixed by | 3177 |
|
the court, plus the expenses that the court fixes and certifies to | 3178 |
|
the auditor. The county auditor shall report periodically, but not | 3179 |
|
less than annually, to the board of county commissioners and to | 3180 |
|
the Ohio public defender commission the amounts paid out pursuant | 3181 |
to the approval of the court under this section, separately | 3182 |
stating costs and expenses that are reimbursable under section | 3183 |
120.35 of the Revised Code. The board, after review and approval | 3184 |
|
of the auditor's report, may then certify it to the state public | 3185 |
|
defender for reimbursement. The request for reimbursement shall be | 3186 |
|
accompanied by a financial disclosure form completed by each | 3187 |
|
indigent person for whom counsel was provided on a form prescribed | 3188 |
|
by the state public defender. The state public defender shall | 3189 |
|
review the report and, in accordance with the standards, | 3190 |
|
guidelines, and maximums established pursuant to divisions (B)(7) | 3191 |
|
and (8) of section 120.04 of the Revised Code, pay fifty per cent | 3192 |
of the total cost, other than costs and expenses that are | 3193 |
reimbursable under section 120.35 of the Revised Code, if any, of | 3194 |
paying appointed counsel in each county and pay fifty per cent of | 3195 |
costs and expenses that are reimbursable under section 120.35 of | 3196 |
the Revised Code, if any, to the board. | 3197 |
| (F) If any county system for paying appointed counsel fails | 3198 |
|
to maintain the standards for the conduct of the system | 3199 |
|
established by the rules of the Ohio public defender commission | 3200 |
|
pursuant to divisions (B) and (C) of section 120.03 of the Revised | 3201 |
|
Code or the standards established by the state public defender | 3202 |
|
pursuant to division (B)(7) of section 120.04 of the Revised Code, | 3203 |
|
the commission shall notify the board of county commissioners of | 3204 |
|
the county that the county system for paying appointed counsel has | 3205 |
|
failed to comply with its rules. Unless the board corrects the | 3206 |
|
conduct of its appointed counsel system to comply with the rules | 3207 |
|
within ninety days after the date of the notice, the state public | 3208 |
|
defender may deny all or part of the county's reimbursement from | 3209 |
|
the state provided for in this section. | 3210 |
| Sec. 2945.06. In any case in which a defendant waives his | 3211 |
|
right to trial by jury and elects to be tried by the court under | 3212 |
|
section 2945.05 of the Revised Code, any judge of the court in | 3213 |
|
which the cause is pending shall proceed to hear, try, and | 3214 |
|
determine the cause in accordance with the rules and in like | 3215 |
manner as if the cause were being tried before a jury. If the | 3216 |
accused is charged with an offense punishable with death, he shall | 3217 |
be tried by a court to be composed of three judges, consisting of | 3218 |
the judge presiding at the time in the trial of criminal cases and | 3219 |
two other judges to be designated by the presiding judge or chief | 3220 |
justice of that court, and in case there is neither a presiding | 3221 |
judge nor a chief justice, by the chief justice of the supreme | 3222 |
court. The judges or a majority of them may decide all questions | 3223 |
of fact and law arising upon the trial; however the accused shall | 3224 |
not be found guilty or not guilty of any offense unless the judges | 3225 |
unanimously find the accused guilty or not guilty. If the accused | 3226 |
pleads guilty of aggravated murder, a court composed of three | 3227 |
judges shall examine the witnesses, determine whether the accused | 3228 |
is guilty of aggravated murder or any other offense, and pronounce | 3229 |
sentence accordingly. The court shall follow the procedures | 3230 |
contained in sections 2929.03 and 2929.04 of the Revised Code in | 3231 |
all cases in which the accused is charged with an offense | 3232 |
punishable by death. If in the composition of the court it is | 3233 |
necessary that a judge from another county be assigned by the | 3234 |
chief justice, the judge from another county shall be compensated | 3235 |
for his services as provided by section 141.07 of the Revised | 3236 |
Code. | 3237 |
| Sec. 2945.33. When a cause is finally submitted the jurors | 3320 |
|
must be kept together in a convenient place under the charge of an | 3321 |
|
officer until they agree upon a verdict, or are discharged by the | 3322 |
court. The court, except in cases where the offense charged may be | 3323 |
punishable by death, may permit the jurors to separate during the | 3324 |
|
adjournment of court overnight, under proper cautions, or under | 3325 |
|
supervision of an officer. Such officer shall not permit a | 3326 |
communication to be made to them, nor make any himself | 3327 |
| communication to them except to ask if they have agreed upon a | 3328 |
verdict, unless hethe officer does so by order of the court. Such | 3329 |
|
officer shall not communicate to any person, before the verdict is | 3330 |
|
delivered, any matter in relation to their deliberation. Upon the | 3331 |
|
trial of any prosecution for misdemeanor, the court may permit the | 3332 |
|
jury to separate during their deliberation, or upon adjournment of | 3333 |
|
the court overnight. | 3334 |
| Sec. 2945.38. (A) If the issue of a defendant's competence | 3340 |
|
to stand trial is raised and if the court, upon conducting the | 3341 |
|
hearing provided for in section 2945.37 of the Revised Code, finds | 3342 |
|
that the defendant is competent to stand trial, the defendant | 3343 |
|
shall be proceeded against as provided by law. If the court finds | 3344 |
|
the defendant competent to stand trial and the defendant is | 3345 |
|
receiving psychotropic drugs or other medication, the court may | 3346 |
|
authorize the continued administration of the drugs or medication | 3347 |
|
or other appropriate treatment in order to maintain the | 3348 |
|
defendant's competence to stand trial, unless the defendant's | 3349 |
|
attending physician advises the court against continuation of the | 3350 |
|
drugs, other medication, or treatment. | 3351 |
| (B)(1)(a) If, after taking into consideration all relevant | 3352 |
|
reports, information, and other evidence, the court finds that the | 3353 |
|
defendant is incompetent to stand trial and that there is a | 3354 |
|
substantial probability that the defendant will become competent | 3355 |
|
to stand trial within one year if the defendant is provided with a | 3356 |
|
course of treatment, the court shall order the defendant to | 3357 |
|
undergo treatment. If the defendant has been charged with a felony | 3358 |
|
offense and if, after taking into consideration all relevant | 3359 |
|
reports, information, and other evidence, the court finds that the | 3360 |
|
defendant is incompetent to stand trial, but the court is unable | 3361 |
|
at that time to determine whether there is a substantial | 3362 |
|
probability that the defendant will become competent to stand | 3363 |
|
trial within one year if the defendant is provided with a course | 3364 |
|
of treatment, the court shall order continuing evaluation and | 3365 |
|
treatment of the defendant for a period not to exceed four months | 3366 |
|
to determine whether there is a substantial probability that the | 3367 |
|
defendant will become competent to stand trial within one year if | 3368 |
|
the defendant is provided with a course of treatment. | 3369 |
| (b) The court order for the defendant to undergo treatment or | 3370 |
|
continuing evaluation and treatment under division (B)(1)(a) of | 3371 |
|
this section shall specify that the defendant, if determined to | 3372 |
|
require mental health treatment or continuing evaluation and | 3373 |
|
treatment, either shall be committed to the department of mental | 3374 |
|
health for treatment or continuing evaluation and treatment at a | 3375 |
|
hospital, facility, or agency, as determined to be clinically | 3376 |
|
appropriate by the department of mental health or shall be | 3377 |
|
committed to a facility certified by the department of mental | 3378 |
|
health as being qualified to treat mental illness, to a public or | 3379 |
|
community mental health facility, or to a psychiatrist or another | 3380 |
|
mental health professional for treatment or continuing evaluation | 3381 |
|
and treatment. Prior to placing the defendant, the department of | 3382 |
|
mental health shall obtain court approval for that placement | 3383 |
|
following a hearing. The court order for the defendant to undergo | 3384 |
|
treatment or continuing evaluation and treatment under division | 3385 |
|
(B)(1)(a) of this section shall specify that the defendant, if | 3386 |
|
determined to require treatment or continuing evaluation and | 3387 |
|
treatment for mental retardation, shall receive treatment or | 3388 |
|
continuing evaluation and treatment at an institution or facility | 3389 |
|
operated by the department of developmental disabilities, at a | 3390 |
|
facility certified by the department of developmental disabilities | 3391 |
|
as being qualified to treat mental retardation, at a public or | 3392 |
|
private mental retardation facility, or by a psychiatrist or | 3393 |
|
another mental retardation professional. In any case, the order | 3394 |
|
may restrict the defendant's freedom of movement as the court | 3395 |
|
considers necessary. The prosecutor in the defendant's case shall | 3396 |
|
send to the chief clinical officer of the hospital, facility, or | 3397 |
|
agency where the defendant is placed by the department of mental | 3398 |
|
health, or to the managing officer of the institution, the | 3399 |
|
director of the program or facility, or the person to which the | 3400 |
|
defendant is committed, copies of relevant police reports and | 3401 |
|
other background information that pertains to the defendant and is | 3402 |
|
available to the prosecutor unless the prosecutor determines that | 3403 |
|
the release of any of the information in the police reports or any | 3404 |
|
of the other background information to unauthorized persons would | 3405 |
|
interfere with the effective prosecution of any person or would | 3406 |
|
create a substantial risk of harm to any person. | 3407 |
| (c) If the defendant is found incompetent to stand trial, if | 3415 |
|
the chief clinical officer of the hospital, facility, or agency | 3416 |
|
where the defendant is placed, or the managing officer of the | 3417 |
|
institution, the director of the program or facility, or the | 3418 |
|
person to which the defendant is committed for treatment or | 3419 |
|
continuing evaluation and treatment under division (B)(1)(b) of | 3420 |
|
this section determines that medication is necessary to restore | 3421 |
|
the defendant's competency to stand trial, and if the defendant | 3422 |
|
lacks the capacity to give informed consent or refuses medication, | 3423 |
|
the chief clinical officer of the hospital, facility, or agency | 3424 |
|
where the defendant is placed, or the managing officer of the | 3425 |
|
institution, the director of the program or facility, or the | 3426 |
|
person to which the defendant is committed for treatment or | 3427 |
|
continuing evaluation and treatment may petition the court for | 3428 |
|
authorization for the involuntary administration of medication. | 3429 |
|
The court shall hold a hearing on the petition within five days of | 3430 |
|
the filing of the petition if the petition was filed in a | 3431 |
|
municipal court or a county court regarding an incompetent | 3432 |
|
defendant charged with a misdemeanor or within ten days of the | 3433 |
|
filing of the petition if the petition was filed in a court of | 3434 |
|
common pleas regarding an incompetent defendant charged with a | 3435 |
|
felony offense. Following the hearing, the court may authorize the | 3436 |
|
involuntary administration of medication or may dismiss the | 3437 |
|
petition. | 3438 |
| (2) If the court finds that the defendant is incompetent to | 3439 |
|
stand trial and that, even if the defendant is provided with a | 3440 |
|
course of treatment, there is not a substantial probability that | 3441 |
|
the defendant will become competent to stand trial within one | 3442 |
|
year, the court shall order the discharge of the defendant, unless | 3443 |
|
upon motion of the prosecutor or on its own motion, the court | 3444 |
|
either seeks to retain jurisdiction over the defendant pursuant to | 3445 |
|
section 2945.39 of the Revised Code or files an affidavit in the | 3446 |
|
probate court for the civil commitment of the defendant pursuant | 3447 |
|
to Chapter 5122. or 5123. of the Revised Code alleging that the | 3448 |
|
defendant is a mentally ill person subject to hospitalization by | 3449 |
|
court order or a mentally retarded person subject to | 3450 |
|
institutionalization by court order. If an affidavit is filed in | 3451 |
|
the probate court, the trial court shall send to the probate court | 3452 |
|
copies of all written reports of the defendant's mental condition | 3453 |
|
that were prepared pursuant to section 2945.371 of the Revised | 3454 |
|
Code. | 3455 |
| (E) Except as otherwise provided in this division, a | 3489 |
|
defendant who is charged with an offense and is committed by the | 3490 |
|
court under this section to the department of mental health or is | 3491 |
|
committed to an institution or facility for the treatment of | 3492 |
|
mental retardation shall not be granted unsupervised on-grounds | 3493 |
|
movement, supervised off-grounds movement, or nonsecured status | 3494 |
|
except in accordance with the court order. The court may grant a | 3495 |
|
defendant supervised off-grounds movement to obtain medical | 3496 |
|
treatment or specialized habilitation treatment services if the | 3497 |
|
person who supervises the treatment or the continuing evaluation | 3498 |
|
and treatment of the defendant ordered under division (B)(1)(a) of | 3499 |
|
this section informs the court that the treatment or continuing | 3500 |
|
evaluation and treatment cannot be provided at the hospital or | 3501 |
|
facility where the defendant is placed by the department of mental | 3502 |
|
health or the institution or facility to which the defendant is | 3503 |
|
committed. The chief clinical officer of the hospital or facility | 3504 |
|
where the defendant is placed by the department of mental health | 3505 |
|
or the managing officer of the institution or director of the | 3506 |
|
facility to which the defendant is committed, or a designee of any | 3507 |
|
of those persons, may grant a defendant movement to a medical | 3508 |
|
facility for an emergency medical situation with appropriate | 3509 |
|
supervision to ensure the safety of the defendant, staff, and | 3510 |
|
community during that emergency medical situation. The chief | 3511 |
|
clinical officer of the hospital or facility where the defendant | 3512 |
|
is placed by the department of mental health or the managing | 3513 |
|
officer of the institution or director of the facility to which | 3514 |
|
the defendant is committed shall notify the court within | 3515 |
|
twenty-four hours of the defendant's movement to the medical | 3516 |
|
facility for an emergency medical situation under this division. | 3517 |
| (G) A report under division (F) of this section shall contain | 3541 |
|
the examiner's findings, the facts in reasonable detail on which | 3542 |
|
the findings are based, and the examiner's opinion as to the | 3543 |
|
defendant's capability of understanding the nature and objective | 3544 |
|
of the proceedings against the defendant and of assisting in the | 3545 |
|
defendant's defense. If, in the examiner's opinion, the defendant | 3546 |
|
remains incapable of understanding the nature and objective of the | 3547 |
|
proceedings against the defendant and of assisting in the | 3548 |
|
defendant's defense and there is a substantial probability that | 3549 |
|
the defendant will become capable of understanding the nature and | 3550 |
|
objective of the proceedings against the defendant and of | 3551 |
|
assisting in the defendant's defense if the defendant is provided | 3552 |
|
with a course of treatment, if in the examiner's opinion the | 3553 |
|
defendant remains mentally ill or mentally retarded, and if the | 3554 |
|
maximum time for treatment as specified in division (C) of this | 3555 |
|
section has not expired, the report also shall contain the | 3556 |
|
examiner's recommendation as to the least restrictive placement or | 3557 |
|
commitment alternative that is consistent with the defendant's | 3558 |
|
treatment needs for restoration to competency and with the safety | 3559 |
|
of the community. The court shall provide copies of the report to | 3560 |
|
the prosecutor and defense counsel. | 3561 |
| (H) If a defendant is committed pursuant to division (B)(1) | 3562 |
|
of this section, within ten days after the treating physician of | 3563 |
|
the defendant or the examiner of the defendant who is employed or | 3564 |
|
retained by the treating facility advises that there is not a | 3565 |
|
substantial probability that the defendant will become capable of | 3566 |
|
understanding the nature and objective of the proceedings against | 3567 |
|
the defendant or of assisting in the defendant's defense even if | 3568 |
|
the defendant is provided with a course of treatment, within ten | 3569 |
|
days after the expiration of the maximum time for treatment as | 3570 |
|
specified in division (C) of this section, within ten days after | 3571 |
|
the expiration of the maximum time for continuing evaluation and | 3572 |
|
treatment as specified in division (B)(1)(a) of this section, | 3573 |
|
within thirty days after a defendant's request for a hearing that | 3574 |
|
is made after six months of treatment, or within thirty days after | 3575 |
|
being advised by the treating physician or examiner that the | 3576 |
|
defendant is competent to stand trial, whichever is the earliest, | 3577 |
|
the court shall conduct another hearing to determine if the | 3578 |
|
defendant is competent to stand trial and shall do whichever of | 3579 |
|
the following is applicable: | 3580 |
| (2) If the court finds that the defendant is incompetent to | 3584 |
|
stand trial, but that there is a substantial probability that the | 3585 |
|
defendant will become competent to stand trial if the defendant is | 3586 |
|
provided with a course of treatment, and the maximum time for | 3587 |
|
treatment as specified in division (C) of this section has not | 3588 |
|
expired, the court, after consideration of the examiner's | 3589 |
|
recommendation, shall order that treatment be continued, may | 3590 |
|
change the facility or program at which the treatment is to be | 3591 |
|
continued, and shall specify whether the treatment is to be | 3592 |
|
continued at the same or a different facility or program. | 3593 |
| (3) If the court finds that the defendant is incompetent to | 3594 |
|
stand trial, if the defendant is charged with an offense listed in | 3595 |
|
division (C)(1) of this section, and if the court finds that there | 3596 |
|
is not a substantial probability that the defendant will become | 3597 |
|
competent to stand trial even if the defendant is provided with a | 3598 |
|
course of treatment, or if the maximum time for treatment relative | 3599 |
|
to that offense as specified in division (C) of this section has | 3600 |
|
expired, further proceedings shall be as provided in sections | 3601 |
|
2945.39, 2945.401, and 2945.402 of the Revised Code. | 3602 |
| (4) If the court finds that the defendant is incompetent to | 3603 |
|
stand trial, if the most serious offense with which the defendant | 3604 |
|
is charged is a misdemeanor or a felony other than a felony listed | 3605 |
|
in division (C)(1) of this section, and if the court finds that | 3606 |
|
there is not a substantial probability that the defendant will | 3607 |
|
become competent to stand trial even if the defendant is provided | 3608 |
|
with a course of treatment, or if the maximum time for treatment | 3609 |
|
relative to that offense as specified in division (C) of this | 3610 |
|
section has expired, the court shall dismiss the indictment, | 3611 |
|
information, or complaint against the defendant. A dismissal under | 3612 |
|
this division is not a bar to further prosecution based on the | 3613 |
|
same conduct. The court shall discharge the defendant unless the | 3614 |
|
court or prosecutor files an affidavit in probate court for civil | 3615 |
|
commitment pursuant to Chapter 5122. or 5123. of the Revised Code. | 3616 |
|
If an affidavit for civil commitment is filed, the court may | 3617 |
|
detain the defendant for ten days pending civil commitment. All of | 3618 |
|
the following provisions apply to persons charged with a | 3619 |
|
misdemeanor or a felony other than a felony listed in division | 3620 |
|
(C)(1) of this section who are committed by the probate court | 3621 |
|
subsequent to the court's or prosecutor's filing of an affidavit | 3622 |
|
for civil commitment under authority of this division: | 3623 |
| Sec. 2949.02. (A) If a person is convicted of any bailable | 3655 |
|
offense, including, but not limited to, a violation of an | 3656 |
|
ordinance of a municipal corporation, in a municipal or county | 3657 |
|
court or in a court of common pleas and if the person gives to the | 3658 |
|
trial judge or magistrate a written notice of the person's | 3659 |
|
intention to file or apply for leave to file an appeal to the | 3660 |
court of appeals, the trial judge or magistrate may suspend, | 3661 |
subject to division (A)(2)(b) of section 2953.09 of the Revised | 3662 |
Code, execution of the sentence or judgment imposed for any fixed | 3663 |
|
time that will give the person time either to prepare and file, or | 3664 |
|
to apply for leave to file, the appeal. In all bailable cases, | 3665 |
|
except as provided in division (B) of this section, the trial | 3666 |
|
judge or magistrate may release the person on bail in accordance | 3667 |
|
with Criminal Rule 46, and the bail shall at least be conditioned | 3668 |
|
that the person will appeal without delay and abide by the | 3669 |
|
judgment and sentence of the court. | 3670 |
| (B) Notwithstanding any provision of Criminal Rule 46 to the | 3671 |
|
contrary, a trial judge of a court of common pleas shall not | 3672 |
|
release on bail pursuant to division (A) of this section a person | 3673 |
|
who is convicted of a bailable offense if the person is sentenced | 3674 |
|
to imprisonment for life or if that offense is a violation of | 3675 |
|
section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2905.01, | 3676 |
|
2905.02, 2905.11, 2907.02, 2909.02, 2911.01, 2911.02, or 2911.11 | 3677 |
|
of the Revised Code or is felonious sexual penetration in | 3678 |
|
violation of former section 2907.12 of the Revised Code. | 3679 |
| Sec. 2949.03. If a judgment of conviction by a court of | 3689 |
|
common pleas, municipal court, or county court is affirmed by a | 3690 |
|
court of appeals and remanded to the trial court for execution of | 3691 |
|
the sentence or judgment imposed, and the person so convicted | 3692 |
gives notice of histhe person's intention to file a notice of | 3693 |
|
appeal to the supreme court, the trial court, on the filing of a | 3694 |
|
motion by such person within three days after the rendition by the | 3695 |
|
court of appeals of the judgment of affirmation, may further | 3696 |
suspend, subject to division (A)(2)(b) of section 2953.09 of the | 3697 |
Revised Code, the execution of the sentence or judgment imposed | 3698 |
|
for a time sufficient to give such person an opportunity to file a | 3699 |
|
notice of appeal to the supreme court, but the sentence or | 3700 |
|
judgment imposed shall not be suspended more than thirty days for | 3701 |
|
that purpose. | 3702 |
Sec. 2953.02. In a capital case in which a sentence of death | 3703 |
is imposed for an offense committed before January 1, 1995, and in | 3704 |
any other criminal case, including a conviction for the violation | 3705 |
|
of an ordinance of a municipal corporation, the judgment or final | 3706 |
|
order of a court of record inferior to the court of appeals may be | 3707 |
|
reviewed in the court of appeals. A final order of an | 3708 |
|
administrative officer or agency may be reviewed in the court of | 3709 |
|
common pleas. A judgment or final order of the court of appeals | 3710 |
|
involving a question arising under the Constitution of the United | 3711 |
|
States or of this state may be appealed to the supreme court as a | 3712 |
|
matter of right. This right of appeal from judgments and final | 3713 |
orders of the court of appeals shall extend to cases in which a | 3714 |
sentence of death is imposed for an offense committed before | 3715 |
January 1, 1995, and in which the death penalty has been affirmed, | 3716 |
|
felony cases in which the supreme court has directed the court of | 3717 |
appeals to certify its record, and in all other criminal cases of | 3718 |
|
public or general interest wherein the supreme court has granted a | 3719 |
motion to certify the record of the court of appeals. In a capital | 3720 |
case in which a sentence of death is imposed for an offense | 3721 |
committed on or after January 1, 1995, the judgment or final order | 3722 |
may be appealed from the trial court directly to the supreme court | 3723 |
as a matter of right. The supreme court in criminal cases shall | 3724 |
not be required to determine as to the weight of the evidence, | 3725 |
except that, in cases in which a sentence of death is imposed for | 3726 |
an offense committed on or after January 1, 1995, and in which the | 3727 |
question of the weight of the evidence to support the judgment has | 3728 |
been raised on appeal, the supreme court shall determine as to the | 3729 |
weight of the evidence to support the judgment and shall determine | 3730 |
as to the weight of the evidence to support the sentence of death | 3731 |
as provided in section 2929.05 of the Revised Code. | 3732 |
Sec. 2953.07. (A) Upon the hearing of an appeal other than | 3733 |
|
an appeal from a mayor's court, the appellate court may affirm the | 3734 |
|
judgment or reverse it, in whole or in part, or modify it, and | 3735 |
|
order the accused to be discharged or grant a new trial. The | 3736 |
|
appellate court may remand the accused for the sole purpose of | 3737 |
|
correcting a sentence imposed contrary to law, provided that, on | 3738 |
|
an appeal of a sentence imposed upon a person who is convicted of | 3739 |
|
or pleads guilty to a felony that is brought under section 2953.08 | 3740 |
|
of the Revised Code, division (G) of that section applies to the | 3741 |
|
court. If the judgment is reversed, the appellant shall recover | 3742 |
|
from the appellee all court costs incurred to secure the reversal, | 3743 |
including the cost of transcripts. In capital cases, when the | 3744 |
judgment is affirmed and the day fixed for the execution is | 3745 |
passed, the appellate court shall appoint a day for it, and the | 3746 |
clerk of the appellate court shall issue a warrant under the seal | 3747 |
of the appellate court, to the sheriff of the proper county, or | 3748 |
the warden of the appropriate state correctional institution, | 3749 |
commanding the sheriff or warden to carry the sentence into | 3750 |
execution on the day so appointed. The sheriff or warden shall | 3751 |
execute and return the warrant as in other cases, and the clerk | 3752 |
shall record the warrant and return. | 3753 |
| (2) The sentence consisted of or included a prison term and | 3775 |
|
the offense for which it was imposed is a felony of the fourth or | 3776 |
|
fifth degree or is a felony drug offense that is a violation of a | 3777 |
|
provision of Chapter 2925. of the Revised Code and that is | 3778 |
|
specified as being subject to division (B) of section 2929.13 of | 3779 |
|
the Revised Code for purposes of sentencing. If the court | 3780 |
|
specifies that it found one or more of the factors in division | 3781 |
|
(B)(1)(b) of section 2929.13 of the Revised Code to apply relative | 3782 |
|
to the defendant, the defendant is not entitled under this | 3783 |
|
division to appeal as a matter of right the sentence imposed upon | 3784 |
|
the offender. | 3785 |
| (3) The person was convicted of or pleaded guilty to a | 3786 |
|
violent sex offense or a designated homicide, assault, or | 3787 |
|
kidnapping offense, was adjudicated a sexually violent predator in | 3788 |
|
relation to that offense, and was sentenced pursuant to division | 3789 |
|
(A)(3) of section 2971.03 of the Revised Code, if the minimum term | 3790 |
|
of the indefinite term imposed pursuant to division (A)(3) of | 3791 |
|
section 2971.03 of the Revised Code is the longest term available | 3792 |
|
for the offense from among the range of terms listed in section | 3793 |
|
2929.14 of the Revised Code. As used in this division, "designated | 3794 |
|
homicide, assault, or kidnapping offense" and "violent sex | 3795 |
|
offense" have the same meanings as in section 2971.01 of the | 3796 |
|
Revised Code. As used in this division, "adjudicated a sexually | 3797 |
|
violent predator" has the same meaning as in section 2929.01 of | 3798 |
|
the Revised Code, and a person is "adjudicated a sexually violent | 3799 |
|
predator" in the same manner and the same circumstances as are | 3800 |
|
described in that section. | 3801 |
| (B) In addition to any other right to appeal and except as | 3806 |
|
provided in division (D) of this section, a prosecuting attorney, | 3807 |
|
a city director of law, village solicitor, or similar chief legal | 3808 |
|
officer of a municipal corporation, or the attorney general, if | 3809 |
|
one of those persons prosecuted the case, may appeal as a matter | 3810 |
|
of right a sentence imposed upon a defendant who is convicted of | 3811 |
|
or pleads guilty to a felony or, in the circumstances described in | 3812 |
|
division (B)(3) of this section the modification of a sentence | 3813 |
|
imposed upon such a defendant, on any of the following grounds: | 3814 |
| (C)(1) In addition to the right to appeal a sentence granted | 3823 |
|
under division (A) or (B) of this section, a defendant who is | 3824 |
|
convicted of or pleads guilty to a felony may seek leave to appeal | 3825 |
|
a sentence imposed upon the defendant on the basis that the | 3826 |
|
sentencing judge has imposed consecutive sentences under division | 3827 |
|
(C)(3) of section 2929.14 of the Revised Code and that the | 3828 |
|
consecutive sentences exceed the maximum prison term allowed by | 3829 |
|
division (A) of that section for the most serious offense of which | 3830 |
|
the defendant was convicted. Upon the filing of a motion under | 3831 |
|
this division, the court of appeals may grant leave to appeal the | 3832 |
|
sentence if the court determines that the allegation included as | 3833 |
|
the basis of the motion is true. | 3834 |
| (E) A defendant, prosecuting attorney, city director of law, | 3857 |
|
village solicitor, or chief municipal legal officer shall file an | 3858 |
|
appeal of a sentence under this section to a court of appeals | 3859 |
|
within the time limits specified in Rule 4(B) of the Rules of | 3860 |
|
Appellate Procedure, provided that if the appeal is pursuant to | 3861 |
|
division (B)(3) of this section, the time limits specified in that | 3862 |
|
rule shall not commence running until the court grants the motion | 3863 |
|
that makes the sentence modification in question. A sentence | 3864 |
|
appeal under this section shall be consolidated with any other | 3865 |
|
appeal in the case. If no other appeal is filed, the court of | 3866 |
|
appeals may review only the portions of the trial record that | 3867 |
|
pertain to sentencing. | 3868 |
| (1) Any presentence, psychiatric, or other investigative | 3872 |
|
report that was submitted to the court in writing before the | 3873 |
|
sentence was imposed. An appellate court that reviews a | 3874 |
|
presentence investigation report prepared pursuant to section | 3875 |
|
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in | 3876 |
|
connection with the appeal of a sentence under this section shall | 3877 |
|
comply with division (D)(3) of section 2951.03 of the Revised Code | 3878 |
|
when the appellate court is not using the presentence | 3879 |
|
investigation report, and the appellate court's use of a | 3880 |
|
presentence investigation report of that nature in connection with | 3881 |
|
the appeal of a sentence under this section does not affect the | 3882 |
|
otherwise confidential character of the contents of that report as | 3883 |
|
described in division (D)(1) of section 2951.03 of the Revised | 3884 |
|
Code and does not cause that report to become a public record, as | 3885 |
|
defined in section 149.43 of the Revised Code, following the | 3886 |
|
appellate court's use of the report. | 3887 |
| (G)(1) If the sentencing court was required to make the | 3896 |
|
findings required by division (B) or (D) of section 2929.13 or | 3897 |
|
division (I) of section 2929.20 of the Revised Code, or to state | 3898 |
|
the findings of the trier of fact required by division (B)(2)(e) | 3899 |
|
of section 2929.14 of the Revised Code, relative to the imposition | 3900 |
|
or modification of the sentence, and if the sentencing court | 3901 |
|
failed to state the required findings on the record, the court | 3902 |
|
hearing an appeal under division (A), (B), or (C) of this section | 3903 |
|
shall remand the case to the sentencing court and instruct the | 3904 |
|
sentencing court to state, on the record, the required findings. | 3905 |
(2)(a) If a notice of appeal is filed pursuant to the Rules | 3928 |
|
of Appellate Procedure by a defendant who is convicted in a | 3929 |
|
municipal or county court or a court of common pleas of a felony | 3930 |
|
or misdemeanor under the Revised Code or an ordinance of a | 3931 |
|
municipal corporation, the filing of the notice of appeal does not | 3932 |
|
suspend execution of the sentence or judgment imposed. However, | 3933 |
|
consistent with divisions (A)(2)(b), (B), and (C) of this section, | 3934 |
|
Appellate Rule 8, and Criminal Rule 46, the municipal or county | 3935 |
|
court, court of common pleas, or court of appeals may suspend | 3936 |
|
execution of the sentence or judgment imposed during the pendency | 3937 |
|
of the appeal and shall determine whether that defendant is | 3938 |
|
entitled to bail and the amount and nature of any bail that is | 3939 |
|
required. The bail shall at least be conditioned that the | 3940 |
|
defendant will prosecute the appeal without delay and abide by the | 3941 |
|
judgment and sentence of the court. | 3942 |
| (B) Notwithstanding any provision of Criminal Rule 46 to the | 3963 |
|
contrary, a trial judge of a court of common pleas shall not | 3964 |
|
release on bail pursuant to division (A)(2)(a) of this section a | 3965 |
|
defendant who is convicted of a bailable offense if the defendant | 3966 |
|
is sentenced to imprisonment for life or if that offense is a | 3967 |
|
violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, | 3968 |
|
2905.01, 2905.02, 2905.11, 2907.02, 2909.02, 2911.01, 2911.02, or | 3969 |
|
2911.11 of the Revised Code or is felonious sexual penetration in | 3970 |
|
violation of former section 2907.12 of the Revised Code. | 3971 |
When an appeal in a case in which a sentence of death is | 3986 |
imposed for an offense committed on or after January 1, 1995, is | 3987 |
taken directly from the trial court to the supreme court, the | 3988 |
supreme court has the same power and authority to suspend the | 3989 |
execution of the sentence during the pendency of the appeal and | 3990 |
admit the defendant to bail as does the court of appeals for cases | 3991 |
in which a sentence of death is imposed for an offense committed | 3992 |
before January 1, 1995, unless another section of the Revised Code | 3993 |
or the Rules of Practice of the Supreme Court specify a distinct | 3994 |
bail or suspension of sentence authority. | 3995 |
| Sec. 2953.21. (A)(1)(a) Any person who has been convicted of | 3996 |
|
a criminal offense or adjudicated a delinquent child and who | 3997 |
|
claims that there was such a denial or infringement of the | 3998 |
|
person's rights as to render the judgment void or voidable under | 3999 |
|
the Ohio Constitution or the Constitution of the United States, | 4000 |
|
and any person who has been convicted of a criminal offense that | 4001 |
|
is a felony and who is an offender for whom DNA testing that was | 4002 |
|
performed under sections 2953.71 to 2953.81 of the Revised Code or | 4003 |
|
under former section 2953.82 of the Revised Code and analyzed in | 4004 |
|
the context of and upon consideration of all available admissible | 4005 |
|
evidence related to the person's case as described in division (D) | 4006 |
|
of section 2953.74 of the Revised Code provided results that | 4007 |
|
establish, by clear and convincing evidence, actual innocence of | 4008 |
that felony offense or, if the person was sentenced to death, | 4009 |
establish, by clear and convincing evidence, actual innocence of | 4010 |
the aggravating circumstance or circumstances the person was found | 4011 |
guilty of committing and that is or are the basis of that sentence | 4012 |
of death, may file a petition in the court that imposed sentence, | 4013 |
|
stating the grounds for relief relied upon, and asking the court | 4014 |
|
to vacate or set aside the judgment or sentence or to grant other | 4015 |
|
appropriate relief. The petitioner may file a supporting affidavit | 4016 |
|
and other documentary evidence in support of the claim for relief. | 4017 |
| (b) As used in division (A)(1)(a) of this section, "actual | 4018 |
|
innocence" means that, had the results of the DNA testing | 4019 |
|
conducted under sections 2953.71 to 2953.81 of the Revised Code or | 4020 |
|
under former section 2953.82 of the Revised Code been presented at | 4021 |
|
trial, and had those results been analyzed in the context of and | 4022 |
|
upon consideration of all available admissible evidence related to | 4023 |
|
the person's case as described in division (D) of section 2953.74 | 4024 |
|
of the Revised Code, no reasonable factfinder would have found the | 4025 |
|
petitioner guilty of the offense of which the petitioner was | 4026 |
convicted, or, if the person was sentenced to death, no reasonable | 4027 |
factfinder would have found the petitioner guilty of the | 4028 |
aggravating circumstance or circumstances the petitioner was found | 4029 |
guilty of committing and that is or are the basis of that sentence | 4030 |
of death. | 4031 |
| (2) Except as otherwise provided in section 2953.23 of the | 4036 |
|
Revised Code, a petition under division (A)(1) of this section | 4037 |
|
shall be filed no later than one hundred eighty days after the | 4038 |
|
date on which the trial transcript is filed in the court of | 4039 |
|
appeals in the direct appeal of the judgment of conviction or | 4040 |
adjudication or, if the direct appeal involves a sentence of | 4041 |
death, the date on which the trial transcript is filed in the | 4042 |
supreme court. If no appeal is taken, except as otherwise provided | 4043 |
|
in section 2953.23 of the Revised Code, the petition shall be | 4044 |
|
filed no later than one hundred eighty days after the expiration | 4045 |
|
of the time for filing the appeal. | 4046 |
(5)(4) If the petitioner in a petition filed under division | 4057 |
|
(A) of this section was convicted of or pleaded guilty to a | 4058 |
|
felony, the petition may include a claim that the petitioner was | 4059 |
|
denied the equal protection of the laws in violation of the Ohio | 4060 |
|
Constitution or the United States Constitution because the | 4061 |
|
sentence imposed upon the petitioner for the felony was part of a | 4062 |
|
consistent pattern of disparity in sentencing by the judge who | 4063 |
|
imposed the sentence, with regard to the petitioner's race, | 4064 |
|
gender, ethnic background, or religion. If the supreme court | 4065 |
|
adopts a rule requiring a court of common pleas to maintain | 4066 |
|
information with regard to an offender's race, gender, ethnic | 4067 |
|
background, or religion, the supporting evidence for the petition | 4068 |
|
shall include, but shall not be limited to, a copy of that type of | 4069 |
|
information relative to the petitioner's sentence and copies of | 4070 |
|
that type of information relative to sentences that the same judge | 4071 |
|
imposed upon other persons. | 4072 |
| (C) The court shall consider a petition that is timely filed | 4078 |
|
under division (A)(2) of this section even if a direct appeal of | 4079 |
|
the judgment is pending. Before granting a hearing on a petition | 4080 |
|
filed under division (A) of this section, the court shall | 4081 |
|
determine whether there are substantive grounds for relief. In | 4082 |
|
making such a determination, the court shall consider, in addition | 4083 |
|
to the petition, the supporting affidavits, and the documentary | 4084 |
|
evidence, all the files and records pertaining to the proceedings | 4085 |
|
against the petitioner, including, but not limited to, the | 4086 |
|
indictment, the court's journal entries, the journalized records | 4087 |
|
of the clerk of the court, and the court reporter's transcript. | 4088 |
|
The court reporter's transcript, if ordered and certified by the | 4089 |
|
court, shall be taxed as court costs. If the court dismisses the | 4090 |
|
petition, it shall make and file findings of fact and conclusions | 4091 |
|
of law with respect to such dismissal. | 4092 |
| (G) If the court does not find grounds for granting relief, | 4110 |
|
it shall make and file findings of fact and conclusions of law and | 4111 |
|
shall enter judgment denying relief on the petition. If no direct | 4112 |
|
appeal of the case is pending and the court finds grounds for | 4113 |
|
relief or if a pending direct appeal of the case has been remanded | 4114 |
|
to the court pursuant to a request made pursuant to division (E) | 4115 |
|
of this section and the court finds grounds for granting relief, | 4116 |
|
it shall make and file findings of fact and conclusions of law and | 4117 |
|
shall enter a judgment that vacates and sets aside the judgment in | 4118 |
|
question, and, in the case of a petitioner who is a prisoner in | 4119 |
|
custody, shall discharge or resentence the petitioner or grant a | 4120 |
|
new trial as the court determines appropriate. The court also may | 4121 |
|
make supplementary orders to the relief granted, concerning such | 4122 |
|
matters as rearraignment, retrial, custody, and bail. If the trial | 4123 |
|
court's order granting the petition is reversed on appeal and if | 4124 |
|
the direct appeal of the case has been remanded from an appellate | 4125 |
|
court pursuant to a request under division (E) of this section, | 4126 |
|
the appellate court reversing the order granting the petition | 4127 |
|
shall notify the appellate court in which the direct appeal of the | 4128 |
|
case was pending at the time of the remand of the reversal and | 4129 |
|
remand of the trial court's order. Upon the reversal and remand of | 4130 |
|
the trial court's order granting the petition, regardless of | 4131 |
|
whether notice is sent or received, the direct appeal of the case | 4132 |
|
that was remanded is reinstated. | 4133 |
(I)(1) If a person sentenced to death intends to file a | 4137 |
petition under this section, the court shall appoint counsel to | 4138 |
represent the person upon a finding that the person is indigent | 4139 |
and that the person either accepts the appointment of counsel or | 4140 |
is unable to make a competent decision whether to accept or reject | 4141 |
the appointment of counsel. The court may decline to appoint | 4142 |
counsel for the person only upon a finding, after a hearing if | 4143 |
necessary, that the person rejects the appointment of counsel and | 4144 |
understands the legal consequences of that decision or upon a | 4145 |
finding that the person is not indigent. | 4146 |
(2) The court shall not appoint as counsel under division | 4147 |
(I)(1) of this section an attorney who represented the petitioner | 4148 |
at trial in the case to which the petition relates unless the | 4149 |
person and the attorney expressly request the appointment. The | 4150 |
court shall appoint as counsel under division (I)(1) of this | 4151 |
section only an attorney who is certified under Rule 20 of the | 4152 |
Rules of Superintendence for the Courts of Ohio to represent | 4153 |
indigent defendants charged with or convicted of an offense for | 4154 |
which the death penalty can be or has been imposed. The | 4155 |
ineffectiveness or incompetence of counsel during proceedings | 4156 |
under this section does not constitute grounds for relief in a | 4157 |
proceeding under this section, in an appeal of any action under | 4158 |
this section, or in an application to reopen a direct appeal. | 4159 |
(3) Division (I) of this section does not preclude attorneys | 4160 |
who represent the state of Ohio from invoking the provisions of 28 | 4161 |
U.S.C. 154 with respect to capital cases that were pending in | 4162 |
federal habeas corpus proceedings prior to July 1, 1996, insofar | 4163 |
as the petitioners in those cases were represented in proceedings | 4164 |
under this section by one or more counsel appointed by the court | 4165 |
under this section or section 120.06, 120.16, 120.26, or 120.33 of | 4166 |
the Revised Code and those appointed counsel meet the requirements | 4167 |
of division (I)(2) of this section. | 4168 |
| (2) The petitioner was convicted of a felony, the petitioner | 4200 |
|
is an offender for whom DNA testing was performed under sections | 4201 |
|
2953.71 to 2953.81 of the Revised Code or under former section | 4202 |
|
2953.82 of the Revised Code and analyzed in the context of and | 4203 |
|
upon consideration of all available admissible evidence related to | 4204 |
|
the inmate's case as described in division (D) of section 2953.74 | 4205 |
|
of the Revised Code, and the results of the DNA testing establish, | 4206 |
|
by clear and convincing evidence, actual innocence of that felony | 4207 |
offense or, if the person was sentenced to death, establish, by | 4208 |
clear and convincing evidence, actual innocence of the aggravating | 4209 |
circumstance or circumstances the person was found guilty of | 4210 |
committing and that is or are the basis of that sentence of death. | 4211 |
| (C) "Chain of custody" means a record or other evidence that | 4231 |
|
tracks a subject sample of biological material from the time the | 4232 |
|
biological material was first obtained until the time it currently | 4233 |
|
exists in its place of storage and, in relation to a DNA sample, a | 4234 |
|
record or other evidence that tracks the DNA sample from the time | 4235 |
|
it was first obtained until it currently exists in its place of | 4236 |
|
storage. For purposes of this division, examples of when | 4237 |
|
biological material or a DNA sample is first obtained include, but | 4238 |
|
are not limited to, obtaining the material or sample at the scene | 4239 |
|
of a crime, from a victim, from an offender, or in any other | 4240 |
|
manner or time as is appropriate in the facts and circumstances | 4241 |
|
present. | 4242 |
| (L) "Outcome determinative" means that had the results of DNA | 4273 |
|
testing of the subject offender been presented at the trial of the | 4274 |
|
subject offender requesting DNA testing and been found relevant | 4275 |
|
and admissible with respect to the felony offense for which the | 4276 |
|
offender is an eligible offender and is requesting the DNA | 4277 |
|
testing, and had those results been analyzed in the context of and | 4278 |
|
upon consideration of all available admissible evidence related to | 4279 |
|
the offender's case as described in division (D) of section | 4280 |
|
2953.74 of the Revised Code, there is a strong probability that no | 4281 |
|
reasonable factfinder would have found the offender guilty of that | 4282 |
offense or, if the offender was sentenced to death relative to | 4283 |
that offense, would have found the offender guilty of the | 4284 |
aggravating circumstance or circumstances the offender was found | 4285 |
guilty of committing and that is or are the basis of that sentence | 4286 |
of death. | 4287 |
| (U) "Definitive DNA test" means a DNA test that clearly | 4313 |
|
establishes that biological material from the perpetrator of the | 4314 |
|
crime was recovered from the crime scene and also clearly | 4315 |
|
establishes whether or not the biological material is that of the | 4316 |
|
eligible offender. A prior DNA test is not definitive if the | 4317 |
|
eligible offender proves by a preponderance of the evidence that | 4318 |
|
because of advances in DNA technology there is a possibility of | 4319 |
|
discovering new biological material from the perpetrator that the | 4320 |
|
prior DNA test may have failed to discover. Prior testing may have | 4321 |
|
been a prior "definitive DNA test" as to some biological evidence | 4322 |
|
but may not have been a prior "definitive DNA test" as to other | 4323 |
|
biological evidence. | 4324 |
| Sec. 2953.72. (A) Any eligible offender who wishes to request | 4325 |
|
DNA testing under sections 2953.71 to 2953.81 of the Revised Code | 4326 |
|
shall submit an application for the testing to the court of common | 4327 |
|
pleas specified in section 2953.73 of the Revised Code, on a form | 4328 |
|
prescribed by the attorney general for this purpose. The eligible | 4329 |
|
offender shall submit the application in accordance with the | 4330 |
|
procedures set forth in section 2953.73 of the Revised Code. The | 4331 |
|
eligible offender shall specify on the application the offense or | 4332 |
|
offenses for which the offender is an eligible offender and is | 4333 |
|
requesting the DNA testing. Along with the application, the | 4334 |
|
eligible offender shall submit an acknowledgment that is on a form | 4335 |
|
prescribed by the attorney general for this purpose and that is | 4336 |
|
signed by the offender. The acknowledgment shall set forth all of | 4337 |
|
the following: | 4338 |
| (8) That the acknowledgment memorializes the provisions of | 4380 |
|
sections 2953.71 to 2953.81 of the Revised Code with respect to | 4381 |
|
the application of postconviction DNA testing to offenders, that | 4382 |
|
those provisions do not give any offender any additional | 4383 |
|
constitutional right that the offender did not already have, that | 4384 |
|
the court has no duty or obligation to provide postconviction DNA | 4385 |
|
testing to offenders, that the court of common pleas has the sole | 4386 |
|
discretion subject to an appeal as described in this division to | 4387 |
|
determine whether an offender is an eligible offender and whether | 4388 |
|
an eligible offender's application for DNA testing satisfies the | 4389 |
|
acceptance criteria described in division (A)(4) of this section | 4390 |
|
and whether the application should be accepted or rejected, that | 4391 |
|
if the court of common pleas rejects an eligible offender's | 4392 |
application, the offender may seek leave of the supreme court to | 4393 |
appeal the rejection to that court if the offender was sentenced | 4394 |
to death for the offense for which the offender is requesting the | 4395 |
DNA testing and, if the offender was not sentenced to death for | 4396 |
that offense, may appeal the rejection to the court of appeals, | 4397 |
|
and that no determination otherwise made by the court of common | 4398 |
|
pleas in the exercise of its discretion regarding the eligibility | 4399 |
|
of an offender or regarding postconviction DNA testing under those | 4400 |
|
provisions is reviewable by or appealable to any court; | 4401 |
| (9) That the manner in which sections 2953.71 to 2953.81 of | 4402 |
|
the Revised Code with respect to the offering of postconviction | 4403 |
|
DNA testing to offenders are carried out does not confer any | 4404 |
|
constitutional right upon any offender, that the state has | 4405 |
|
established guidelines and procedures relative to those provisions | 4406 |
|
to ensure that they are carried out with both justice and | 4407 |
|
efficiency in mind, and that an offender who participates in any | 4408 |
|
phase of the mechanism contained in those provisions, including, | 4409 |
|
but not limited to, applying for DNA testing and being rejected, | 4410 |
|
having an application for DNA testing accepted and not receiving | 4411 |
|
the test, or having DNA testing conducted and receiving | 4412 |
|
unfavorable results, does not gain as a result of the | 4413 |
|
participation any constitutional right to challenge, or, except as | 4414 |
|
provided in division (A)(8) of this section, any right to any | 4415 |
|
review or appeal of, the manner in which those provisions are | 4416 |
|
carried out; | 4417 |
| (10) That the most basic aspect of sections 2953.71 to | 4418 |
|
2953.81 of the Revised Code is that, in order for DNA testing to | 4419 |
|
occur, there must be an offender sample against which other | 4420 |
|
evidence may be compared, that, if an eligible offender's | 4421 |
|
application is accepted but the offender subsequently refuses to | 4422 |
|
submit to the collection of the sample of biological material from | 4423 |
|
the offender or hinders the state from obtaining a sample of | 4424 |
|
biological material from the offender, the goal of those | 4425 |
|
provisions will be frustrated, and that an offender's refusal or | 4426 |
|
hindrance shall cause the court to rescind its prior acceptance of | 4427 |
|
the application for DNA testing for the offender and deny the | 4428 |
|
application. | 4429 |
| (B) The attorney general shall prescribe a form to be used to | 4430 |
|
make an application for DNA testing under division (A) of this | 4431 |
|
section and section 2953.73 of the Revised Code and a form to be | 4432 |
|
used to provide the acknowledgment described in division (A) of | 4433 |
|
this section. The forms shall include all information described in | 4434 |
|
division (A) of this section, spaces for an offender to insert all | 4435 |
|
information necessary to complete the forms, including, but not | 4436 |
|
limited to, specifying the offense or offenses for which the | 4437 |
|
offender is an eligible offender and is requesting the DNA | 4438 |
|
testing, and any other information or material the attorney | 4439 |
|
general determines is necessary or relevant. The attorney general | 4440 |
|
shall distribute copies of the prescribed forms to the department | 4441 |
|
of rehabilitation and correction, the department shall ensure that | 4442 |
|
each prison in which offenders are housed has a supply of copies | 4443 |
|
of the forms, and the department shall ensure that copies of the | 4444 |
|
forms are provided free of charge to any offender who requests | 4445 |
|
them. | 4446 |
| (A) The court or a designee of the court shall require the | 4481 |
|
state to maintain the results of the testing and to maintain and | 4482 |
|
preserve both the parent sample of the biological material used | 4483 |
|
and the offender sample of the biological material used. The | 4484 |
|
testing authority may be designated as the person to maintain the | 4485 |
|
results of the testing or to maintain and preserve some or all of | 4486 |
|
the samples, or both. The results of the testing remain state's | 4487 |
|
evidence. The samples shall be preserved during the entire period | 4488 |
|
of time for which the offender is imprisoned or confined relative | 4489 |
|
to the sentence in question, is on parole or probation relative to | 4490 |
|
that sentence, is under post-release control or a community | 4491 |
|
control sanction relative to that sentence, or has a duty to | 4492 |
|
comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of | 4493 |
|
the Revised Code relative to that sentence. Additionally, if the | 4494 |
prison term or confinement under the sentence in question expires, | 4495 |
if the sentence in question is a sentence of death and the | 4496 |
offender is executed, or if the parole or probation period, the | 4497 |
|
period of post-release control, the community control sanction, or | 4498 |
|
the duty to comply with sections 2950.04, 2950.041, 2950.05, and | 4499 |
|
2950.06 of the Revised Code under the sentence in question ends, | 4500 |
|
the samples shall be preserved for a reasonable period of time of | 4501 |
|
not less than twenty-four months after the term or confinement | 4502 |
expires, the offender is executed, or the parole or probation | 4503 |
|
period, the period of post-release control, the community control | 4504 |
|
sanction, or the duty to comply with sections 2950.04, 2950.041, | 4505 |
|
2950.05, and 2950.06 of the Revised Code ends, whichever is | 4506 |
|
applicable. The court shall determine the period of time that is | 4507 |
|
reasonable for purposes of this division, provided that the period | 4508 |
|
shall not be less than twenty-four months after the term or | 4509 |
confinement expires, the offender is executed, or the parole or | 4510 |
|
probation period, the period of post-release control, the | 4511 |
|
community control sanction, or the duty to comply with sections | 4512 |
|
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code ends, | 4513 |
|
whichever is applicable. | 4514 |
| (2)(a) "Medically incapacitated" means any diagnosable | 4538 |
|
medical condition, including mental dementia and severe, permanent | 4539 |
|
medical or cognitive disability, that prevents the inmate from | 4540 |
|
completing activities of daily living without significant | 4541 |
|
assistance, that incapacitates the inmate to the extent that | 4542 |
|
institutional confinement does not offer additional restrictions, | 4543 |
|
that is likely to continue throughout the entire period of parole, | 4544 |
|
and that is unlikely to improve noticeably. | 4545 |
| (B) Upon the recommendation of the director of rehabilitation | 4564 |
|
and correction, accompanied by a certificate of the attending | 4565 |
|
physician that an inmate is terminally ill, medically | 4566 |
|
incapacitated, or in imminent danger of death, the governor may | 4567 |
|
order the inmate's release as if on parole, reserving the right to | 4568 |
|
return the inmate to the institution pursuant to this section. If, | 4569 |
|
subsequent to the inmate's release, the inmate's health improves | 4570 |
|
so that the inmate is no longer terminally ill, medically | 4571 |
|
incapacitated, or in imminent danger of death, the inmate shall be | 4572 |
|
returned, by order of the governor, to the institution from which | 4573 |
|
the inmate was released. If the inmate violates any rules or | 4574 |
|
conditions applicable to the inmate, the inmate may be returned to | 4575 |
|
an institution under the control of the department of | 4576 |
|
rehabilitation and correction. The governor may direct the adult | 4577 |
|
parole authority to investigate or cause to be investigated the | 4578 |
|
inmate and make a recommendation. An inmate released under this | 4579 |
|
section shall be subject to supervision by the adult parole | 4580 |
|
authority in accordance with any recommendation of the adult | 4581 |
|
parole authority that is approved by the governor. The adult | 4582 |
|
parole authority shall adopt rules pursuant to section 119.03 of | 4583 |
|
the Revised Code to establish the procedure for medical release of | 4584 |
|
an inmate when an inmate is terminally ill, medically | 4585 |
|
incapacitated, or in imminent danger of death. | 4586 |
| (B) Except as provided in division (G) of this section, a | 4621 |
|
prisoner serving a sentence of imprisonment for life with parole | 4622 |
|
eligibility after serving twenty years of imprisonment or a | 4623 |
|
sentence of imprisonment for life with parole eligibility after | 4624 |
|
serving twenty-five full years or thirty full years of | 4625 |
|
imprisonment imposed pursuant to section 2929.02 or former section | 4626 |
|
2929.022 or 2929.03 of the Revised Code for an offense committed | 4627 |
|
on or after July 1, 1996, consecutively to any other term of | 4628 |
|
imprisonment, becomes eligible for parole after serving twenty | 4629 |
|
years, twenty full years, or thirty full years, as applicable, as | 4630 |
|
to each such sentence of life imprisonment, which shall not be | 4631 |
|
reduced for earned credits under section 2967.193 of the Revised | 4632 |
|
Code, plus the term or terms of the other sentences consecutively | 4633 |
|
imposed or, if one of the other sentences is another type of life | 4634 |
|
sentence with parole eligibility, the number of years before | 4635 |
|
parole eligibility for that sentence. | 4636 |
| Sec. 2967.193. (A)(1) Except as provided in division (C) of | 4658 |
|
this section and subject to the maximum aggregate total specified | 4659 |
|
in division (A)(2) of this section, a person confined in a state | 4660 |
|
correctional institution may provisionally earn one day or five | 4661 |
|
days of credit, based on the category set forth in division | 4662 |
|
(D)(1), (2), (3), (4), or (5) of this section in which the person | 4663 |
|
is included, toward satisfaction of the person's stated prison | 4664 |
|
term for each completed month during which the person productively | 4665 |
|
participates in an education program, vocational training, | 4666 |
|
employment in prison industries, treatment for substance abuse, or | 4667 |
|
any other constructive program developed by the department with | 4668 |
|
specific standards for performance by prisoners. Except as | 4669 |
|
provided in division (C) of this section and subject to the | 4670 |
|
maximum aggregate total specified in division (A)(2) of this | 4671 |
|
section, a person so confined who successfully completes two | 4672 |
|
programs or activities of that type may, in addition, | 4673 |
|
provisionally earn up to five days of credit toward satisfaction | 4674 |
|
of the person's stated prison term for the successful completion | 4675 |
|
of the second program or activity. The person shall not be awarded | 4676 |
|
any provisional days of credit for the successful completion of | 4677 |
|
the first program or activity or for the successful completion of | 4678 |
|
any program or activity that is completed after the second program | 4679 |
|
or activity. At the end of each calendar month in which a prisoner | 4680 |
|
productively participates in a program or activity listed in this | 4681 |
|
division or successfully completes a program or activity listed in | 4682 |
|
this division, the department of rehabilitation and correction | 4683 |
|
shall determine and record the total number of days credit that | 4684 |
|
the prisoner provisionally earned in that calendar month. If the | 4685 |
|
prisoner violates prison rules, the department may deny the | 4686 |
|
prisoner a credit that otherwise could have been provisionally | 4687 |
|
awarded to the prisoner or may withdraw one or more credits | 4688 |
|
previously provisionally earned by the prisoner. Days of credit | 4689 |
|
provisionally earned by a prisoner shall be finalized and awarded | 4690 |
|
by the department subject to administrative review by the | 4691 |
|
department of the prisoner's conduct. | 4692 |
| (B) The department of rehabilitation and correction shall | 4699 |
|
adopt rules that specify the programs or activities for which | 4700 |
|
credit may be earned under this section, the criteria for | 4701 |
|
determining productive participation in, or completion of, the | 4702 |
|
programs or activities and the criteria for awarding credit, | 4703 |
|
including criteria for awarding additional credit for successful | 4704 |
|
program or activity completion, and the criteria for denying or | 4705 |
|
withdrawing previously provisionally earned credit as a result of | 4706 |
|
a violation of prison rules. | 4707 |
| (a) A violation of division (A) of section 2903.04 or of | 4743 |
|
section 2903.03, 2903.11, 2903.15, 2905.01, 2907.24, 2907.25, | 4744 |
|
2909.02, 2909.09, 2909.10, 2909.101, 2909.26, 2909.27, 2909.29, | 4745 |
|
2911.01, 2911.02, 2911.11, 2911.12, 2919.13, 2919.151, 2919.22, | 4746 |
|
2921.34, 2923.01, 2923.131, 2923.162, 2923.32, 2925.24, or 2927.24 | 4747 |
|
of the Revised Code; | 4748 |
| (4) Except as provided in division (C) of this section, if | 4765 |
|
the most serious offense for which the offender is confined is a | 4766 |
|
felony of the first or second degree and divisions (D)(1), (2), | 4767 |
|
and (3) of this section do not apply to the offender, the offender | 4768 |
|
may earn one day of credit under division (A) of this section if | 4769 |
|
the offender committed that offense prior to September 30, 2011, | 4770 |
|
and the offender may earn five days of credit under division (A) | 4771 |
|
of this section if the offender committed that offense on or after | 4772 |
|
September 30, 2011. | 4773 |
| (5) Except as provided in division (C) of this section, if | 4774 |
|
the most serious offense for which the offender is confined is a | 4775 |
|
felony of the third, fourth, or fifth degree or an unclassified | 4776 |
|
felony and neither division (D)(2) nor (3) of this section applies | 4777 |
|
to the offender, the offender may earn one day of credit under | 4778 |
|
division (A) of this section if the offender committed that | 4779 |
|
offense prior to September 30, 2011, and the offender may earn | 4780 |
|
five days of credit under division (A) of this section if the | 4781 |
|
offender committed that offense on or after September 30, 2011. | 4782 |
| Sec. 2971.03. (A) Notwithstanding divisions (A) and (D) of | 4793 |
section 2929.14, section 2929.02, 2929.03, 2929.06, 2929.13, or | 4794 |
|
another section of the Revised Code, other than divisions (B) and | 4795 |
|
(C) of section 2929.14 of the Revised Code, that authorizes or | 4796 |
|
requires a specified prison term or a mandatory prison term for a | 4797 |
|
person who is convicted of or pleads guilty to a felony or that | 4798 |
|
specifies the manner and place of service of a prison term or term | 4799 |
|
of imprisonment, the court shall impose a sentence upon a person | 4800 |
|
who is convicted of or pleads guilty to a violent sex offense and | 4801 |
|
who also is convicted of or pleads guilty to a sexually violent | 4802 |
|
predator specification that was included in the indictment, count | 4803 |
|
in the indictment, or information charging that offense, and upon | 4804 |
|
a person who is convicted of or pleads guilty to a designated | 4805 |
|
homicide, assault, or kidnapping offense and also is convicted of | 4806 |
|
or pleads guilty to both a sexual motivation specification and a | 4807 |
|
sexually violent predator specification that were included in the | 4808 |
|
indictment, count in the indictment, or information charging that | 4809 |
|
offense, as follows: | 4810 |
| (2) If the offense for which the sentence is being imposed is | 4818 |
|
murder; or if the offense is rape committed in violation of | 4819 |
|
division (A)(1)(b) of section 2907.02 of the Revised Code when the | 4820 |
|
offender purposely compelled the victim to submit by force or | 4821 |
|
threat of force, when the victim was less than ten years of age, | 4822 |
|
when the offender previously has been convicted of or pleaded | 4823 |
|
guilty to either rape committed in violation of that division or a | 4824 |
|
violation of an existing or former law of this state, another | 4825 |
|
state, or the United States that is substantially similar to | 4826 |
|
division (A)(1)(b) of section 2907.02 of the Revised Code, or when | 4827 |
|
the offender during or immediately after the commission of the | 4828 |
|
rape caused serious physical harm to the victim; or if the offense | 4829 |
|
is an offense other than aggravated murder or murder for which a | 4830 |
|
term of life imprisonment may be imposed, it shall impose upon the | 4831 |
|
offender a term of life imprisonment without parole. | 4832 |
| (3)(a) Except as otherwise provided in division (A)(3)(b), | 4833 |
|
(c), (d), or (e) or (A)(4) of this section, if the offense for | 4834 |
|
which the sentence is being imposed is an offense other than | 4835 |
|
aggravated murder, murder, or rape and other than an offense for | 4836 |
|
which a term of life imprisonment may be imposed, it shall impose | 4837 |
|
an indefinite prison term consisting of a minimum term fixed by | 4838 |
|
the court from among the range of terms available as a definite | 4839 |
|
term for the offense, but not less than two years, and a maximum | 4840 |
|
term of life imprisonment. | 4841 |
| (i) If the kidnapping is committed on or after January 1, | 4846 |
|
2008, and the victim of the offense is less than thirteen years of | 4847 |
|
age, except as otherwise provided in this division, it shall | 4848 |
|
impose an indefinite prison term consisting of a minimum term of | 4849 |
|
fifteen years and a maximum term of life imprisonment. If the | 4850 |
|
kidnapping is committed on or after January 1, 2008, the victim of | 4851 |
|
the offense is less than thirteen years of age, and the offender | 4852 |
|
released the victim in a safe place unharmed, it shall impose an | 4853 |
|
indefinite prison term consisting of a minimum term of ten years | 4854 |
|
and a maximum term of life imprisonment. | 4855 |
| (4) For any offense for which the sentence is being imposed, | 4909 |
|
if the offender previously has been convicted of or pleaded guilty | 4910 |
|
to a violent sex offense and also to a sexually violent predator | 4911 |
|
specification that was included in the indictment, count in the | 4912 |
|
indictment, or information charging that offense, or previously | 4913 |
|
has been convicted of or pleaded guilty to a designated homicide, | 4914 |
|
assault, or kidnapping offense and also to both a sexual | 4915 |
|
motivation specification and a sexually violent predator | 4916 |
|
specification that were included in the indictment, count in the | 4917 |
|
indictment, or information charging that offense, it shall impose | 4918 |
|
upon the offender a term of life imprisonment without parole. | 4919 |
| (B)(1) Notwithstanding section 2929.13, division (A) or (D) | 4920 |
|
of section 2929.14, or another section of the Revised Code other | 4921 |
|
than division (B) of section 2907.02 or divisions (B) and (C) of | 4922 |
|
section 2929.14 of the Revised Code that authorizes or requires a | 4923 |
|
specified prison term or a mandatory prison term for a person who | 4924 |
|
is convicted of or pleads guilty to a felony or that specifies the | 4925 |
|
manner and place of service of a prison term or term of | 4926 |
|
imprisonment, if a person is convicted of or pleads guilty to a | 4927 |
|
violation of division (A)(1)(b) of section 2907.02 of the Revised | 4928 |
|
Code committed on or after January 2, 2007, if division (A) of | 4929 |
|
this section does not apply regarding the person, and if the court | 4930 |
|
does not impose a sentence of life without parole when authorized | 4931 |
|
pursuant to division (B) of section 2907.02 of the Revised Code, | 4932 |
|
the court shall impose upon the person an indefinite prison term | 4933 |
|
consisting of one of the following: | 4934 |
| (c) If the offender purposely compels the victim to submit by | 4940 |
|
force or threat of force, or if the offender previously has been | 4941 |
|
convicted of or pleaded guilty to violating division (A)(1)(b) of | 4942 |
|
section 2907.02 of the Revised Code or to violating an existing or | 4943 |
|
former law of this state, another state, or the United States that | 4944 |
|
is substantially similar to division (A)(1)(b) of that section, or | 4945 |
|
if the offender during or immediately after the commission of the | 4946 |
|
offense caused serious physical harm to the victim, a minimum term | 4947 |
|
of twenty-five years and a maximum of life imprisonment. | 4948 |
| (2) Notwithstanding section 2929.13, division (A) or (D) of | 4949 |
|
section 2929.14, or another section of the Revised Code other than | 4950 |
|
divisions (B) and (C) of section 2929.14 of the Revised Code that | 4951 |
|
authorizes or requires a specified prison term or a mandatory | 4952 |
|
prison term for a person who is convicted of or pleads guilty to a | 4953 |
|
felony or that specifies the manner and place of service of a | 4954 |
|
prison term or term of imprisonment and except as otherwise | 4955 |
|
provided in division (B) of section 2907.02 of the Revised Code, | 4956 |
|
if a person is convicted of or pleads guilty to attempted rape | 4957 |
|
committed on or after January 2, 2007, and if division (A) of this | 4958 |
|
section does not apply regarding the person, the court shall | 4959 |
|
impose upon the person an indefinite prison term consisting of one | 4960 |
|
of the following: | 4961 |
| (3) Notwithstanding section 2929.13, division (A) or (D) of | 4977 |
|
section 2929.14, or another section of the Revised Code other than | 4978 |
|
divisions (B) and (C) of section 2929.14 of the Revised Code that | 4979 |
|
authorizes or requires a specified prison term or a mandatory | 4980 |
|
prison term for a person who is convicted of or pleads guilty to a | 4981 |
|
felony or that specifies the manner and place of service of a | 4982 |
|
prison term or term of imprisonment, if a person is convicted of | 4983 |
|
or pleads guilty to an offense described in division (B)(3)(a), | 4984 |
|
(b), (c), or (d) of this section committed on or after January 1, | 4985 |
|
2008, if the person also is convicted of or pleads guilty to a | 4986 |
|
sexual motivation specification that was included in the | 4987 |
|
indictment, count in the indictment, or information charging that | 4988 |
|
offense, and if division (A) of this section does not apply | 4989 |
|
regarding the person, the court shall impose upon the person an | 4990 |
|
indefinite prison term consisting of one of the following: | 4991 |
| (c) An indefinite term consisting of a minimum of thirty | 5002 |
|
years and a maximum term of life imprisonment if the offense for | 5003 |
|
which the sentence is being imposed is aggravated murder, when the | 5004 |
|
victim of the offense is less than thirteen years of age, a | 5005 |
sentence of death or life imprisonment without parole is not | 5006 |
imposed for the offense, and division (A)(2)(b)(ii) of section | 5007 |
2929.022, division (A)(1)(e), (C)(1)(a)(v), (C)(2)(a)(ii), | 5008 |
(D)(2)(b), (D)(3)(a)(iv), or (E)(1)(d) of section 2929.03, or | 5009 |
division (A) or (B)(C) of section 2929.062929.02 of the Revised | 5010 |
|
Code requires that the sentence for the offense be imposed | 5011 |
|
pursuant to this division; | 5012 |
| (C)(1) If the offender is sentenced to a prison term pursuant | 5017 |
|
to division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or | 5018 |
|
(c), or (B)(3)(a), (b), (c), or (d) of this section, the parole | 5019 |
|
board shall have control over the offender's service of the term | 5020 |
|
during the entire term unless the parole board terminates its | 5021 |
|
control in accordance with section 2971.04 of the Revised Code. | 5022 |
| (3) For a prison term imposed pursuant to division (A)(3), | 5029 |
|
(B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), or (B)(3)(a), (b), | 5030 |
|
(c), or (d) of this section, the court, in accordance with section | 5031 |
|
2971.05 of the Revised Code, may terminate the prison term or | 5032 |
|
modify the requirement that the offender serve the entire term in | 5033 |
|
a state correctional institution if all of the following apply: | 5034 |
| (F)(1) If an offender is convicted of or pleads guilty to a | 5069 |
|
violent sex offense and also is convicted of or pleads guilty to a | 5070 |
|
sexually violent predator specification that was included in the | 5071 |
|
indictment, count in the indictment, or information charging that | 5072 |
|
offense, or is convicted of or pleads guilty to a designated | 5073 |
|
homicide, assault, or kidnapping offense and also is convicted of | 5074 |
|
or pleads guilty to both a sexual motivation specification and a | 5075 |
|
sexually violent predator specification that were included in the | 5076 |
|
indictment, count in the indictment, or information charging that | 5077 |
|
offense, the conviction of or plea of guilty to the offense and | 5078 |
|
the sexually violent predator specification automatically | 5079 |
|
classifies the offender as a tier III sex offender/child-victim | 5080 |
|
offender for purposes of Chapter 2950. of the Revised Code. | 5081 |
| (2) If an offender is convicted of or pleads guilty to | 5082 |
|
committing on or after January 2, 2007, a violation of division | 5083 |
|
(A)(1)(b) of section 2907.02 of the Revised Code and either the | 5084 |
|
offender is sentenced under section 2971.03 of the Revised Code or | 5085 |
|
a sentence of life without parole is imposed under division (B) of | 5086 |
|
section 2907.02 of the Revised Code, the conviction of or plea of | 5087 |
|
guilty to the offense automatically classifies the offender as a | 5088 |
|
tier III sex offender/child-victim offender for purposes of | 5089 |
|
Chapter 2950. of the Revised Code. | 5090 |
| (6) The offender is convicted of or pleads guilty to | 5139 |
|
aggravated murder and also is convicted of or pleads guilty to a | 5140 |
|
sexual motivation specification that was included in the | 5141 |
|
indictment, count in the indictment, or information charging that | 5142 |
offense, and division (A)(2)(b)(ii) of section 2929.022, division | 5143 |
(A)(1)(e), (C)(1)(a)(v), (C)(2)(a)(ii), (D)(2)(b), (D)(3)(a)(iv), | 5144 |
or (E)(1)(d) of section 2929.03, or division (A) or (B)(C) of | 5145 |
section
2929.062929.02 of the Revised Code requires a court to | 5146 |
|
sentence the offender pursuant to division (B)(3) of section | 5147 |
|
2971.03 of the Revised Code. | 5148 |
| (C) If an offender is sentenced to a prison term under | 5162 |
|
division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), | 5163 |
|
or (B)(3)(a), (b), (c), or (d) of section 2971.03 of the Revised | 5164 |
|
Code and if, pursuant to section 2971.05 of the Revised Code, the | 5165 |
|
court modifies the requirement that the offender serve the entire | 5166 |
|
prison term in a state correctional institution or places the | 5167 |
|
offender on conditional release that involves the placement of the | 5168 |
|
offender under the supervision of the adult parole authority, | 5169 |
|
authorized field officers of the authority who are engaged within | 5170 |
|
the scope of their supervisory duties or responsibilities may | 5171 |
|
search, with or without a warrant, the person of the offender, the | 5172 |
|
place of residence of the offender, and a motor vehicle, another | 5173 |
|
item of tangible or intangible personal property, or any other | 5174 |
|
real property in which the offender has the express or implied | 5175 |
|
permission of a person with a right, title, or interest to use, | 5176 |
|
occupy, or possess if the field officer has reasonable grounds to | 5177 |
|
believe that the offender is not abiding by the law or otherwise | 5178 |
|
is not complying with the terms and conditions of the offender's | 5179 |
|
modification or release. The authority shall provide each offender | 5180 |
|
with a written notice that informs the offender that authorized | 5181 |
|
field officers of the authority who are engaged within the scope | 5182 |
|
of their supervisory duties or responsibilities may conduct those | 5183 |
|
types of searches during the period of the modification or release | 5184 |
|
if they have reasonable grounds to believe that the offender is | 5185 |
|
not abiding by the law or otherwise is not complying with the | 5186 |
|
terms and conditions of the offender's modification or release. | 5187 |
| (e) A criminal offender who is convicted of or pleads guilty | 5238 |
|
to aggravated murder and also is convicted of or pleads guilty to | 5239 |
|
a sexual motivation specification that was included in the | 5240 |
|
indictment, count in the indictment, or information charging that | 5241 |
offense, and who pursuant to division (A)(2)(b)(ii) of section | 5242 |
2929.022, division (A)(1)(e), (C)(1)(a)(v), (C)(2)(a)(ii), | 5243 |
(D)(2)(b), (D)(3)(a)(iv), or (E)(1)(d) of section 2929.03, or | 5244 |
division (A) or (B)(C) of section 2929.062929.02 of the Revised | 5245 |
|
Code is sentenced pursuant to division (B)(3) of section 2971.03 | 5246 |
|
of the Revised Code; | 5247 |
| (2) When the department is requested by the parole board or | 5255 |
|
the court to provide a risk assessment report of the offender | 5256 |
|
under section 2971.04 or 2971.05 of the Revised Code, it shall | 5257 |
|
assess the offender and complete the assessment as soon as | 5258 |
|
possible after the offender has commenced serving the prison term | 5259 |
|
or term of life imprisonment without parole imposed under division | 5260 |
|
(A), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), or (B)(3)(a), | 5261 |
|
(b), (c), or (d) of section 2971.03 of the Revised Code. | 5262 |
|
Thereafter, the department shall update a risk assessment report | 5263 |
|
pertaining to an offender as follows: | 5264 |
| (a) The parole board for its use in determining pursuant to | 5284 |
|
section 2971.04 of the Revised Code whether it should terminate | 5285 |
|
its control over an offender's service of a prison term imposed | 5286 |
|
upon the offender under division (A)(3), (B)(1)(a), (b), or (c), | 5287 |
|
(B)(2)(a), (b), or (c), or (B)(3)(a), (b), (c), or (d) of section | 5288 |
|
2971.03 of the Revised Code, if the parole board has not | 5289 |
|
terminated its control over the offender; | 5290 |
| (b) The court for use in determining, pursuant to section | 5291 |
|
2971.05 of the Revised Code, whether to modify the requirement | 5292 |
|
that the offender serve the entire prison term imposed upon the | 5293 |
|
offender under division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a), | 5294 |
|
(b), or (c), or (B)(3)(a), (b), (c), or (d) of section 2971.03 of | 5295 |
|
the Revised Code in a state correctional institution, whether to | 5296 |
|
revise any modification previously made, or whether to terminate | 5297 |
|
the prison term; | 5298 |
| Section 2. That existing sections 120.03, 120.06, 120.14, | 5334 |
|
120.16, 120.18, 120.24, 120.26, 120.28, 120.33, 120.34, 1901.183, | 5335 |
|
2152.13, 2152.67, 2301.20, 2307.60, 2701.07, 2743.51, 2901.02, | 5336 |
|
2909.24, 2929.02, 2929.13, 2929.14, 2941.021, 2941.14, 2941.148, | 5337 |
|
2941.401, 2941.43, 2941.51, 2945.06, 2945.21, 2945.25, 2945.33, | 5338 |
|
2945.38, 2949.02, 2949.03, 2953.02, 2953.07, 2953.08, 2953.09, | 5339 |
|
2953.10, 2953.21, 2953.23, 2953.71, 2953.72, 2953.81, 2967.05, | 5340 |
|
2967.13, 2967.193, 2971.03, 2971.07, 5120.113, 5120.61, and | 5341 |
|
5919.16 and sections 109.97, 120.35,
2929.021, 2929.022, | 5342 |
| 2929.023, 2929.024, 2929.03, 2929.04, 2929.05,
2929.06, 2947.08, | 5343 |
| 2949.21, 2949.22, 2949.24, 2949.25, 2949.26,
2949.27, 2949.28, | 5344 |
| 2949.29, 2949.31, and 2967.08 of the Revised Code are hereby | 5345 |
|
repealed. | 5346 |
| (B) Nothing in this act is intended to nullify or mitigate | 5354 |
|
the sentence of an offender who was sentenced to death before the | 5355 |
|
effective date of this act. An offender who was sentenced to death | 5356 |
|
before the effective date of this act shall have the same rights | 5357 |
|
to appeal and to postconviction remedies as the offender had under | 5358 |
|
the provisions of Chapter 2953. of the Revised Code as those | 5359 |
|
provisions existed immediately before the effective date of this | 5360 |
|
act or as those provisions may hereafter be amended, and courts | 5361 |
|
shall have the same powers and duties with respect to those | 5362 |
|
offenders under those provisions as courts had before the | 5363 |
|
effective date of this act. | 5364 |
