As Passed by the Senate 1
122nd General Assembly 4
Regular Session S. B. No. 107 5
1997-1998 6
SENATORS BLESSING-B. JOHNSON-LATTA-OELSLAGER 8
10
A B I L L
To amend sections 2929.02, 2929.05, 2929.06, 12
2949.28, 2949.29, and 2949.31 and to repeal 13
sections 2949.30 and 2949.32 of the Revised Code
to eliminate the mechanism for vacating a 14
sentence of death because it is imposed upon an
offender under 18 and to revise the mechanism for 15
suspending the execution of a pregnant or insane 16
offender who is sentenced to death.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 18
Section 1. That sections 2929.02, 2929.05, 2929.06, 20
2949.28, 2949.29, and 2949.31 of the Revised Code be amended to 21
read as follows:
Sec. 2929.02. (A) Whoever is convicted of or pleads 30
guilty to aggravated murder in violation of section 2903.01 of 31
the Revised Code shall suffer death or be imprisoned for life, as 32
determined pursuant to sections 2929.022, 2929.03, and 2929.04 of 33
the Revised Code, except that no person who raises the matter of 34
age pursuant to section 2929.023 or division (C) of section 35
2929.05 of the Revised Code and who is not found to have been 36
eighteen years of age or older at the time of the commission of 37
the offense shall suffer death. In addition, the offender may be 38
fined an amount fixed by the court, but not more than twenty-five 39
thousand dollars. 40
(B) Whoever is convicted of or pleads guilty to murder in 42
violation of section 2903.02 of the Revised Code shall be 43
imprisoned for an indefinite term of fifteen years to life, 44
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except that, if the offender also is convicted of or pleads 45
guilty to a sexual motivation specification and a sexually 46
violent predator specification that were included in the
indictment, count in the indictment, or information that charged 47
the murder, the court shall impose upon the offender a term of 48
life imprisonment without parole that shall be served pursuant to 49
section 2971.03 of the Revised Code. In addition, the offender 50
may be fined an amount fixed by the court, but not more than 51
fifteen thousand dollars. 52
(C) The court shall not impose a fine or fines for 54
aggravated murder or murder which, in the aggregate and to the 55
extent not suspended by the court, exceeds the amount which the 56
offender is or will be able to pay by the method and within the 57
time allowed without undue hardship to the offender or to the 59
dependents of the offender, or will prevent the offender from 60
making reparation for the victim's wrongful death. 61
Sec. 2929.05. (A) Whenever sentence of death is imposed 70
pursuant to sections 2929.03 and 2929.04 of the Revised Code, the 71
court of appeals, in a case in which a sentence of death was 72
imposed for an offense committed before January 1, 1995, and the 74
supreme court shall upon appeal review the sentence of death at 75
the same time that they review the other issues in the case. The 76
court of appeals and the supreme court shall review the judgment 77
in the case and the sentence of death imposed by the court or 78
panel of three judges in the same manner that they review other 79
criminal cases, except that they shall review and independently 80
weigh all of the facts and other evidence disclosed in the record 81
in the case and consider the offense and the offender to 82
determine whether the aggravating circumstances the offender was 83
found guilty of committing outweigh the mitigating factors in the 84
case, and whether the sentence of death is appropriate. In 85
determining whether the sentence of death is appropriate, the 86
court of appeals, in a case in which a sentence of death was 88
imposed for an offense committed before January 1, 1995, and the 89
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supreme court shall consider whether the sentence is excessive or 90
disproportionate to the penalty imposed in similar cases. They 91
shall also review all of the facts and other evidence to 92
determine if the evidence supports the finding of the aggravating 93
circumstances the trial jury or the panel of three judges found 94
the offender guilty of committing, and shall determine whether 95
the sentencing court properly weighed the aggravating 96
circumstances the offender was found guilty of committing and the 97
mitigating factors. The court of appeals, in a case in which a 98
sentence of death was imposed for an offense committed before 99
January 1, 1995, or the supreme court shall affirm a sentence of 101
death only if the particular court is persuaded from the record 102
that the aggravating circumstances the offender was found guilty 103
of committing outweigh the mitigating factors present in the case 104
and that the sentence of death is the appropriate sentence in the 105
case.
A court of appeals that reviews a case in which the 107
sentence of death is imposed for an offense committed before 108
January 1, 1995, shall file a separate opinion as to its findings 110
in the case with the clerk of the supreme court. The opinion
shall be filed within fifteen days after the court issues its 112
opinion and shall contain whatever information is required by the 113
clerk of the supreme court.
(B) The court of appeals, in a case in which a sentence of 115
death was imposed for an offense committed before January 1, 116
1995, and the supreme court shall give priority over all other 118
cases to the review of judgments in which the sentence of death 119
is imposed, and, except as otherwise provided in this section, 120
shall conduct the review in accordance with the RULES OF 121
Appellate Rules PROCEDURE. 122
(C) Whenever sentence of death is imposed pursuant to 124
section 2929.022 or 2929.03 of the Revised Code, the court of 125
common pleas that sentenced the offender shall, upon motion of 126
the offender and after conducting a hearing on the motion, vacate 127
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the sentence if all of the following apply: 128
(1) The offender alleges in the motion and presents 130
evidence at the hearing that the offender was not eighteen years 132
of age or older at the time of the commission of the aggravated 133
murder for which the offender was sentenced; 134
(2) The offender did not present evidence at trial 136
pursuant to section 2929.023 of the Revised Code that the 138
offender was not eighteen years of age or older at the time of 139
the commission of the aggravated murder for which the offender 140
was sentenced; 141
(3) The motion was filed at any time after the sentence 143
was imposed in the case and prior to execution of the sentence; 144
(4) At the hearing conducted on the motion, the 145
prosecution does not prove beyond a reasonable doubt that the 146
offender was eighteen years of age or older at the time of the 147
commission of the aggravated murder for which the offender was 148
sentenced.
Sec. 2929.06. (A)(1) If the sentence of death that is 160
imposed upon an offender is vacated upon appeal because the court 161
of appeals, in a case in which a sentence of death was imposed 162
for an offense committed before January 1, 1995, or the supreme 163
court, in cases in which the supreme court reviews the sentence 164
upon appeal, could not affirm the sentence of death under the 165
standards imposed by section 2929.05 of the Revised Code, OR is 166
vacated upon appeal for the sole reason that the statutory 168
procedure for imposing the sentence of death that is set forth in 169
sections 2929.03 and 2929.04 of the Revised Code is
unconstitutional, or is vacated pursuant to division (C) of 170
section 2929.05 of the Revised Code, the trial court that 171
sentenced the offender shall conduct a hearing to resentence the 172
offender. At the resentencing hearing, the court shall impose 173
one of the following sentences upon the offender: 174
(1) Except as provided in division (A)(2) of this section, 176
life imprisonment without parole, life imprisonment with parole 177
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eligibility after serving twenty-five full years of imprisonment, 178
or life imprisonment with parole eligibility after serving thirty 179
full years of imprisonment; 180
(2) If the sentence of death was imposed for an aggravated 182
murder committed on or after the effective date of this amendment 184
JANUARY 1, 1997, and if the offender also was convicted of or 186
pleaded guilty to a sexual motivation specification and a
sexually violent predator specification that were included in the 187
indictment, count in the indictment, or information that charged 188
the aggravated murder, life imprisonment without parole that 189
shall be served pursuant to section 2971.03 of the Revised Code. 190
(2)(B) If the sentence of death that is imposed upon an 192
offender is vacated upon appeal because of error that occurred in 193
the sentencing phase of the trial and if division (A)(1) of this 194
section does not apply, the trial court that sentenced the 195
offender shall conduct a new hearing to resentence the offender. 197
If the offender was tried by a jury, the trial court shall 198
impanel a new jury for the hearing. If the offender was tried by 199
a panel of three judges, that panel or, if necessary, a new panel
of three judges, shall conduct the hearing. At the hearing, the 200
court shall follow the procedure set forth in division (D) of 201
section 2929.03 of the Revised Code in determining whether to 202
impose upon the offender a sentence of death, life imprisonment 203
without parole, life imprisonment with parole eligibility after 204
serving twenty-FIVE full years of imprisonment, or life 205
imprisonment with parole eligibility after serving thirty full 206
years of imprisonment.
(B)(C) If the sentence of life imprisonment without parole 208
that is imposed upon an offender pursuant to section 2929.021 or 210
2929.03 of the Revised Code is vacated upon appeal for the sole 212
reason that the statutory procedure for imposing the sentence of
life imprisonment without parole that is set forth in sections 213
2929.03 and 2929.04 of the Revised Code is unconstitutional, the 214
trial court that sentenced the offender shall conduct a hearing 215
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to resentence the offender to life imprisonment with parole 216
eligibility after serving twenty-five full years of imprisonment 217
or to life imprisonment with parole eligibility after serving
thirty full years of imprisonment. 218
Sec. 2949.28. (A) AS USED IN THIS SECTION AND SECTION 227
2949.29 OF THE REVISED CODE, "INSANE" MEANS THAT THE CONVICT IN 228
QUESTION DOES NOT HAVE THE MENTAL CAPACITY TO UNDERSTAND THE 229
NATURE OF THE DEATH PENALTY AND WHY IT WAS IMPOSED UPON THE 230
CONVICT.
(B)(1) If a convict sentenced to death appears OR CLAIMS 232
to be insane, the warden or the sheriff having custody of such 234
THE convict, THE CONVICT, THE CONVICT'S COUNSEL, OR A 235
PSYCHIATRIST OR PSYCHOLOGIST WHO HAS EXAMINED THE CONVICT shall 236
give notice thereof to a OF THE APPARENT OR CLAIMED INSANITIY TO 237
WHICHEVER OF THE FOLLOWING IS APPLICABLE: 238
(a) IF THE CONVICT WAS TRIED BY A JURY, TO THE JUDGE WHO 240
IMPOSED THE SENTENCE UPON THE CONVICT OR, IF THAT JUDGE IS 241
UNAVAILABLE, TO ANOTHER JUDGE OF THE SAME COURT OF COMMON PLEAS; 242
(b) IF THE CONVICT WAS TRIED BY A THREE-JUDGE PANEL, TO 244
ANY OF THE THREE JUDGES WHO IMPOSED THE SENTENCE UPON THE CONVICT 245
OR, IF EACH OF THOSE JUDGES IS UNAVAILABLE, TO ANOTHER judge of 246
the SAME court of common pleas of the county in which the 247
prisoner is confined. Said 249
(2) EXCEPT AS PROVIDED IN DIVISION (C) OF THIS SECTION, 251
THE judge WHO IS GIVEN NOTICE UNDER DIVISION (B)(1) OF THIS 252
SECTION shall inquire into such THE CONVICT'S insanity at a time 254
and place to be fixed by said THE judge, or impanel a jury for 256
that purpose and shall give immediate notice thereof OF THE 258
INQUIRY to the prosecuting attorney of the county in which the 260
prisoner was convicted WHO PROSECUTED THE CASE, OR THAT
PROSECUTING ATTORNEY'S SUCCESSOR, AND TO THE CONVICT AND THE 261
CONVICT'S COUNSEL. THE JUDGE MAY HOLD THE INQUIRY AT THE PLACE 262
AT WHICH THE CONVICT IS CONFINED. Execution of the sentence 263
shall be suspended pending completion of the inquiry, AND, IF THE 264
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CONVICT DOES NOT HAVE COUNSEL, THE COURT SHALL APPOINT AN 265
ATTORNEY TO REPRESENT THE CONVICT IN THE INQUIRY. THE COURT 266
SHALL APPOINT ONE OR MORE PSYCHIATRISTS TO EXAMINE THE CONVICT. 267
THE CONVICT IS NOT ENTITLED TO HAVE A PSYCHIATRIST OF THE
CONVICT'S CHOICE APPOINTED TO EXAMINE THE CONVICT. 268
(C) IF LESS THAN ONE HUNDRED EIGHTY DAYS HAVE ELAPSED 270
SINCE THE CONCLUSION OF ANY PREVIOUS INQUIRY UNDER THIS SECTION 271
INTO THE INSANITY OF THE CONVICT AT WHICH IT WAS DETERMINED THAT 272
THE CONVICT WAS NOT INSANE, THE COURT MAY CONDUCT, BUT IS NOT 273
REQUIRED TO CONDUCT, FURTHER INQUIRY INTO THE CONVICT'S INSANITY 274
UNDER THIS SECTION AND MAY DISMISS THE MATTER WITHOUT HEARING. 275
Sec. 2949.29. In addition to the warden or sheriff, the 284
judge of the court of common pleas, clerk of the court of common 285
pleas, and (A) THE prosecuting attorney, THE CONVICT, AND THE 287
CONVICT'S COUNSEL shall attend the AN inquiry commenced as 289
provided in section 2949.28 of the Revised Code. Witnesses THE 290
PROSECUTING ATTORNEY AND THE CONVICT OR THE CONVICT'S COUNSEL may 291
be produced and examined before the judge or jury PRODUCE, 292
EXAMINE, AND CROSS-EXAMINE WITNESSES, and all findings shall be 293
in writing signed by the judge or jury. If it is found that the 294
convict is not insane, the sentence shall be executed at the time 295
previously appointed, unless such THAT time has passed pending 297
completion of the inquiry, in which case the judge conducting the 298
inquiry shall appoint a time for execution. If 299
(B) IF it is found that the convict is insane, the judge 301
shall suspend the execution until the warden or sheriff receives 303
a warrant from the governor directing such execution as provided 304
in section 2949.30 of the Revised Code. The finding, and the 305
order of such judge, certified by him, shall be entered on the 306
journal of the court by the clerk OF SENTENCE, ORDER THE CONVICT 307
TO BE CONFINED IN THE AREA AT WHICH OTHER CONVICTS SENTENCED TO 308
DEATH ARE CONFINED, AND ORDER TREATMENT OF THE CONVICT. 309
THEREAFTER, THE COURT AT ANY TIME MAY CONDUCT AND, ON MOTION OF 310
THE PROSECUTING ATTORNEY, SHALL CONDUCT A HEARING TO CONTINUE THE
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INQUIRY INTO THE CONVICT'S INSANITY. IF THE COURT FINDS AT THE 311
HEARING THAT THE CONVICT IS NOT INSANE AND IF THE TIME PREVIOUSLY 312
APPOINTED FOR EXECUTION OF THE SENTENCE HAS NOT PASSED, THE 313
SENTENCE SHALL BE EXECUTED AT THE PREVIOUSLY APPOINTED TIME. IF 314
THE COURT FINDS AT THE HEARING THAT THE CONVICT IS NOT INSANE AND 315
IF THE TIME PREVIOUSLY APPOINTED FOR EXECUTION OF THE SENTENCE 316
HAS PASSED, THE JUDGE WHO CONDUCTS THE HEARING SHALL APPOINT A
NEW TIME FOR THE EXECUTION OF SENTENCE. 317
(C) IN ALL PROCEEDINGS UNDER THIS SECTION AND SECTION 319
2949.28 OF THE REVISED CODE, THE BURDEN OF PROOF OF INSANITY IS 320
UPON THE CONVICT BY A PREPONDERANCE OF THE EVIDENCE, AND THE 321
COURT SHALL FIND THAT THE CONVICT IS NOT INSANE UNLESS THE COURT 322
FINDS BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONVICT IS
INSANE. 323
(D) PROCEEDINGS FOR INQUIRY INTO THE INSANITY OF ANY 325
CONVICT SENTENCED TO DEATH SHALL BE EXCLUSIVELY PURSUANT TO THIS 326
SECTION, SECTION 2949.28 OF THE REVISED CODE, AND THE RULES OF 327
EVIDENCE. NEITHER CHAPTER 5122. OR 5123. OF THE REVISED CODE NOR 328
ANY OTHER PROVISION OF THE REVISED CODE OR ANY OTHER RULE 329
CONCERNING MENTALLY ILL PERSONS, MENTALLY RETARDED PERSONS, OR
INSANE PERSONS APPLIES TO ANY PROCEEDING FOR INQUIRY INTO THE 330
INSANITY OF ANY CONVICT SENTENCED TO DEATH. 331
(E) THE APPELLATE COURT IN WHICH THE APPEAL IS FILED SHALL 333
EXPEDITE ANY APPEAL FROM A DECISION RENDERED PURSUANT TO THIS 334
SECTION OR SECTION 2949.28 OF THE REVISED CODE. NO COURT SHALL 335
ORDER A STAY OF EXECUTION EXCEEDING SIXTY DAYS PENDING THE 336
APPEAL.
Sec. 2949.31. If a female convict sentenced to death 345
appears OR CLAIMS to be pregnant, the warden or sheriff having 347
custody of such THE convict, THE CONVICT, HER COUNSEL, OR A 348
PHYSICIAN WHO HAS EXAMINED THE CONVICT shall give notice thereof 349
OF THE APPARENT OR CLAIMED PREGNANCY to a judge of the court of 350
common pleas of the county in which the prisoner is confined, and 351
like proceedings shall be had as are provided under sections
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2949.28 and 2949.29 of the Revised Code in case of an insane 352
convict sentenced to death, EXCEPT TO THE EXTENT THAT THEY BY 353
THEIR NATURE CLEARLY WOULD BE INAPPLICABLE 354
IF IT IS FOUND AT THE INQUIRY HELD IN ACCORDANCE WITH 356
SECTIONS 2949.28 AND 2949.29 OF THE REVISED CODE THAT THE CONVICT 357
IS NOT PREGNANT, THE SENTENCE SHALL BE EXECUTED AT THE TIME 358
PREVIOUSLY APPOINTED, UNLESS THAT TIME HAS PASSED PENDING
COMPLETION OF THE INQUIRY, IN WHICH CASE THE JUDGE CONDUCTING THE 359
INQUIRY SHALL APPOINT A NEW TIME FOR EXECUTION. 360
IF IT IS FOUND AT THE INQUIRY THAT THE CONVICT IS PREGNANT, 362
THE JUDGE SHALL SUSPEND THE EXECUTION OF SENTENCE, AND ORDER THE 363
CONVICT TO BE CONFINED IN THE AREA AT WHICH OTHER CONVICTS 364
SENTENCED TO DEATH ARE CONFINED. WHEN THE COURT FINDS THAT THE 365
CONVICT NO LONGER IS PREGNANT, IF THE TIME PREVIOUSLY APPOINTED
FOR EXECUTION OF THE SENTENCE HAS NOT PASSED, THE SENTENCE SHALL 366
BE EXECUTED AT THE PREVIOUSLY APPOINTED TIME. WHEN THE COURT 367
FINDS THAT THE CONVICT NO LONGER IS PREGNANT, IF THE TIME 368
PREVIOUSLY APPOINTED FOR EXECUTION OF THE SENTENCE HAS PASSED, 369
THE JUDGE WHO CONDUCTS THE INQUIRY SHALL APPOINT A NEW TIME FOR 370
THE EXECUTION OF SENTENCE.
Section 2. That existing sections 2929.02, 2929.05, 372
2929.06, 2949.28, 2949.29, and 2949.31 and sections 2949.30 and 373
2949.32 of the Revised Code are hereby repealed. 374
Section 3. Section 2929.06 of the Revised Code is 376
presented in this act as a composite of the section as amended by 377
Am. Sub. S.B. 269, Sub. S.B. 258, and Am. Sub. H.B. 180 of the 378
121st General Assembly, with the new language of none of the acts 380
shown in capital letters. This is in recognition of the 381
principle stated in division (B) of section 1.52 of the Revised 382
Code that such amendments are to be harmonized where not 383
substantively irreconcilable and constitutes a legislative 384
finding that such is the resulting version in effect prior to the 385
effective date of this act.