As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 331 5
1999-2000 6
REPRESENTATIVES DePIERO-PERRY-JERSE-VERICH-TAYLOR-METELSKY- 8
PRINGLE-VESPER-GOODMAN-OPFER-SULLIVAN 9
_________________________________________________________________ 10
A B I L L
To amend section 2953.08 of the Revised Code to 12
modify the procedure pursuant to which a court of 13
appeals may modify or vacate and remand a
sentence that imposes prison terms that must be 14
served consecutively.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 16
Section 1. That section 2953.08 of the Revised Code be 18
amended to read as follows: 19
Sec. 2953.08. (A) In addition to any other right to 29
appeal and except as provided in division (D) of this section, a 30
defendant who is convicted of or pleads guilty to a felony may 31
appeal as a matter of right the sentence imposed upon the 32
defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum 34
prison term allowed for the offense by division (A) of section 35
2929.14 of the Revised Code and was not imposed pursuant to 36
division (D)(3)(b) of section 2929.14 of the Revised Code, and 37
the court imposed it under one of the following circumstances: 38
(a) The sentence was imposed for only one offense. 40
(b) The sentence was imposed for two or more offenses 43
arising out of a single incident, and the court imposed the 44
maximum prison term for the offense of the highest degree.
(2) The sentence consisted of or included a prison term, 46
the offense for which it was imposed is a felony of the fourth or 47
fifth degree or is a felony drug offense that is a violation of a 48
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provision of Chapter 2925. of the Revised Code and that is 49
specified as being subject to division (B) of section 2929.13 of 50
the Revised Code for purposes of sentencing, and the court did 51
not specify at sentencing that it found one or more factors 52
specified in divisions (B)(1)(a) to (h) of section 2929.13 of the 54
Revised Code to apply relative to the defendant. If the court 56
specifies that it found one or more of those factors to apply 57
relative to the defendant, the defendant is not entitled under 58
this division to appeal as a matter of right the sentence imposed 59
upon the offender.
(3) The person was convicted of or pleaded guilty to a 61
sexually violent offense, was adjudicated as being a sexually 62
violent predator, and was sentenced pursuant to division (A)(3) 63
of section 2971.03 of the Revised Code, if the minimum term of 65
the indefinite term imposed pursuant to division (A)(3) of
section 2971.03 of the Revised Code is the longest term available 66
for the offense from among the range of terms listed in section 68
2929.14 of the Revised Code. As used in this division, "sexually 70
violent offense" and "sexually violent predator" have the same
meanings as in section 2971.01 of the Revised Code. 71
(4) The sentence is contrary to law. 73
(5) The sentence consisted of an additional prison term of 75
ten years imposed pursuant to division (D)(3)(b) of section 76
2929.14 of the Revised Code. 77
(B) In addition to any other right to appeal and except as 80
provided in division (D) of this section, a prosecuting attorney, 81
a city director of law, village solicitor, or similar chief legal 82
officer of a municipal corporation, or the attorney general, if 83
one of those persons prosecuted the case, may appeal as a matter 84
of right a sentence imposed upon a defendant who is convicted of 85
or pleads guilty to a felony or, in the circumstances described 86
in division (B)(3) of this section the modification of a sentence 87
imposed upon such a defendant, on any of the following grounds: 88
(1) The sentence did not include a prison term despite a 91
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presumption favoring a prison term for the offense for which it 92
was imposed, as set forth in section 2929.13 or Chapter 2925. of 93
the Revised Code.
(2) The sentence is contrary to law. 95
(3) The sentence is a modification under section 2929.20 97
of the Revised Code of a sentence that was imposed for a felony 98
of the first or second degree.
(C) In addition to the right to appeal a sentence granted 101
under division (A) or (B) of this section, a defendant who is 102
convicted of or pleads guilty to a felony may seek leave to 103
appeal a sentence imposed upon the defendant on the basis that IF 104
the sentencing judge has imposed consecutive sentences under 105
division (E)(3) or (4) of section 2929.14 of the Revised Code and 106
that the consecutive sentences exceed the maximum prison term 107
allowed by division (A) of that section for the most serious 108
offense of which the defendant was convicted. Upon the filing of 109
a motion under this division, the court of appeals may grant 111
leave to appeal the sentence if the court determines that the 112
allegation included as the basis GROUNDS of the motion is ARE 113
true. IF THE DEFENDANT SEEKS LEAVE TO APPEAL UNDER THIS DIVISION 114
THE GROUNDS FOR THE APPEAL SHALL BE THAT THE RECORD DOES NOT 115
SUPPORT THE CONSECUTIVE SENTENCES OR THAT THE SENTENCE IS
OTHERWISE CONTRARY TO LAW. 116
(D) A sentence imposed upon a defendant is not subject to 119
review under this section if the sentence is authorized by law, 120
has been recommended jointly by the defendant and the prosecution 121
in the case, and is imposed by a sentencing judge. A sentence 122
imposed for aggravated murder or murder pursuant to sections 123
2929.02 to 2929.06 of the Revised Code is not subject to review 124
under this section.
(E) A defendant, prosecuting attorney, city director of 127
law, village solicitor, or chief municipal legal officer shall 128
file an appeal of a sentence under this section to a court of 129
appeals within the time limits specified in Rule 4(B) of the 130
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Rules of Appellate Procedure, provided that if the appeal is 131
pursuant to division (B)(3) of this section, the time limits 132
specified in that rule shall not commence running until the court 133
grants the motion that makes the sentence modification in 134
question. A sentence appeal under this section shall be 135
consolidated with any other appeal in the case. If no other 136
appeal is filed, the court of appeals may review only the 137
portions of the trial record that pertain to sentencing. 138
(F) On the appeal of a sentence under this section, the 141
record to be reviewed shall include all of the following, as 142
applicable:
(1) Any presentence, psychiatric, or other investigative 145
report that was submitted to the court in writing before the 146
sentence was imposed. An appellate court that reviews a 147
presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in 148
connection with the appeal of a sentence under this section shall 149
comply with division (D)(3) of section 2951.03 of the Revised 150
Code when the appellate court is not using the presentence 151
investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection 152
with the appeal of a sentence under this section does not affect 153
the otherwise confidential character of the contents of that 154
report as described in division (D)(1) of section 2951.03 of the 155
Revised Code and does not cause that report to become a public 156
record, as defined in section 149.43 of the Revised Code,
following the appellate court's use of the report. 157
(2) The trial record in the case in which the sentence was 160
imposed;
(3) Any oral or written statements made to or by the court 163
at the sentencing hearing at which the sentence was imposed; 164
(4) Any written findings that the court was required to 166
make in connection with the modification of the sentence pursuant 167
to a judicial release under division (H) of section 2929.20 of 169
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the Revised Code.
(G)(1) The court hearing an appeal of a sentence under 171
division (A) or, (B)(1) or (2), OR (C) of this section may 173
increase, reduce, or otherwise modify a sentence that is appealed 174
under this section or may vacate the sentence and remand the 175
matter to the trial court for resentencing if the court clearly 176
and convincingly finds any of the following: 177
(a) That the record does not support the sentence; 179
(b) That the sentence included a prison term, that the 181
offense for which it was imposed is a felony of the fourth or 182
fifth degree or is a felony drug offense that is a violation of a 183
provision of Chapter 2925. of the Revised Code and that is 184
specified as being subject to division (B) of section 2929.13 of 185
the Revised Code for purposes of sentencing, that the court did 186
not specify in the finding it makes at sentencing that it found 187
one or more of the factors specified in divisions (B)(1)(a) to 188
(h) of section 2929.13 of the Revised Code to apply relative to 190
the defendant who brought the appeal, and either that the
procedures set forth in division (B) of section 2929.13 of the 191
Revised Code for determining whether to impose a prison term for 193
such an offense were not followed or that those procedures were 194
followed but there is an insufficient basis for imposing a prison 195
term for the offense;
(c) That the sentence did not include a prison term, that 197
the offense for which it was imposed is a felony of the first or 198
second degree or is a felony drug offense that is a violation of 199
a provision of Chapter 2925. of the Revised Code for which a 200
presumption in favor of a prison term is specified as being 201
applicable, and either that the procedures set forth in division 202
(D) of section 2929.13 of the Revised Code that set forth the 203
only circumstances in which the presumption may be overridden and 204
a sanction other than a prison term may be imposed in lieu of a 205
prison term were not followed or that those procedures were 206
followed but there is an insufficient basis for overriding the 207
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presumption and imposing a sanction other than a prison term for 208
the offense; 209
(d) That the sentence is otherwise contrary to law. 211
(2) The court hearing an appeal under division (B)(3) of 213
this section of a trial court's modification pursuant to section 214
2929.20 of the Revised Code of a sentence that was imposed upon a 215
defendant for a felony of a first or second degree may overturn 216
the modification and reinstate the original sentence, or may 217
vacate the modification of the sentence and remand the matter to 218
the trial court for reconsideration, only if the court clearly
and convincingly finds any of the following: 219
(a) That the record does not support the modification 221
based on the criteria for modification set forth in division (H) 222
of section 2929.20 of the Revised Code; 223
(b) That the modification was not made in accordance with 225
the procedures set forth in section 2929.20 of the Revised Code, 226
that the defendant was not eligible for the modification under 227
that section, or that the modification otherwise was contrary to 228
law.
(H) A judgment or final order of a court of appeals under 231
this section may be appealed, by leave of court, to the supreme 232
court.
(I)(1) There is hereby established the felony sentence 235
appeal cost oversight committee, consisting of eight members. 236
One member shall be the chief justice of the supreme court or a 237
representative of the court designated by the chief justice, one 238
member shall be a member of the senate appointed by the president 239
of the senate, one member shall be a member of the house of 240
representatives appointed by the speaker of the house of 241
representatives, one member shall be the director of budget and 242
management or a representative of the office of budget and 243
management designated by the director, one member shall be a 244
judge of a court of appeals, court of common pleas, municipal 245
court, or county court appointed by the chief justice of the 246
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supreme court, one member shall be the state public defender or a 247
representative of the office of the state public defender 248
designated by the state public defender, one member shall be a 249
prosecuting attorney appointed by the Ohio prosecuting attorneys 250
association, and one member shall be a county commissioner 251
appointed by the county commissioners association of Ohio. No 252
more than three of the appointed members of the committee may be 253
members of the same political party.
The president of the senate, the speaker of the house of 255
representatives, the chief justice of the supreme court, the Ohio 257
prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial appointments to the 259
committee of the appointed members no later than ninety days 260
after July 1, 1996. Of those initial appointments to the 261
committee, the members appointed by the speaker of the house of 262
representatives and the Ohio prosecuting attorneys association 264
shall serve a term ending two years after July 1, 1996, the
member appointed by the chief justice of the supreme court shall 266
serve a term ending three years after July 1, 1996, and the 267
members appointed by the president of the senate and the county 269
commissioners association of Ohio shall serve terms ending four 271
years after July 1, 1996. Thereafter, terms of office of the
appointed members shall be for four years, with each term ending 273
on the same day of the same month as did the term that it 274
succeeds. Members may be reappointed. Vacancies shall be filled 275
in the same manner provided for original appointments. A member 276
appointed to fill a vacancy occurring prior to the expiration of 277
the term for which that member's predecessor was appointed shall 278
hold office as a member for the remainder of the predecessor's 279
term. An appointed member shall continue in office subsequent to 280
the expiration date of that member's term until that member's 281
successor takes office or until a period of sixty days has 282
elapsed, whichever occurs first. 283
If the chief justice of the supreme court, the director of 285
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the office of budget and management, or the state public defender 287
serves as a member of the committee, that person's term of office 288
as a member shall continue for as long as that person holds 289
office as chief justice, director of the office of budget and 290
management, or state public defender. If the chief justice of 291
the supreme court designates a representative of the court to
serve as a member, the director of budget and management 292
designates a representative of the office of budget and 293
management to serve as a member, or the state public defender 295
designates a representative of the office of the state public 296
defender to serve as a member, the person so designated shall 297
serve as a member of the commission for as long as the official 298
who made the designation holds office as chief justice, director 299
of the office of budget and management, or state public defender 300
or until that official revokes the designation.
The chief justice of the supreme court or the 302
representative of the supreme court appointed by the chief 303
justice shall serve as chairperson of the committee. The 304
committee shall meet within two weeks after all appointed members 305
have been appointed and shall organize as necessary. Thereafter, 306
the committee shall meet at least once every six months or more 307
often upon the call of the chairperson or the written request of 308
three or more members, provided that the committee shall not meet 309
unless moneys have been appropriated to the judiciary budget 310
administered by the supreme court specifically for the purpose of 311
providing financial assistance to counties under division (I)(2) 312
of this section and the moneys so appropriated then are available 313
for that purpose.
The members of the committee shall serve without 315
compensation, but, if moneys have been appropriated to the 316
judiciary budget administered by the supreme court specifically 317
for the purpose of providing financial assistance to counties 318
under division (I)(2) of this section, each member shall be 319
reimbursed out of the moneys so appropriated that then are 320
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available for actual and necessary expenses incurred in the 321
performance of official duties as a committee member. 322
(2) The state criminal sentencing commission periodically 324
shall provide to the felony sentence appeal cost oversight 325
committee all data the commission collects pursuant to division 326
(A)(5) of section 181.25 of the Revised Code. Upon receipt of 328
the data from the state criminal sentencing commission, the 329
felony sentence appeal cost oversight committee periodically 330
shall review the data; determine whether any money has been 331
appropriated to the judiciary budget administered by the supreme 332
court specifically for the purpose of providing state financial 333
assistance to counties in accordance with this division for the 334
increase in expenses the counties experience as a result of the 335
felony sentence appeal provisions set forth in this section or as 336
a result of a postconviction relief proceeding brought under 337
division (A)(2) of section 2953.21 of the Revised Code or an 338
appeal of a judgment in that proceeding; if it determines that 339
any money has been so appropriated, determine the total amount of 340
moneys that have been so appropriated specifically for that 341
purpose and that then are available for that purpose; and develop 342
a recommended method of distributing those moneys to the 343
counties. The committee shall send a copy of its recommendation 344
to the supreme court. Upon receipt of the committee's 345
recommendation, the supreme court shall distribute to the 346
counties, based upon that recommendation, the moneys that have 347
been so appropriated specifically for the purpose of providing
state financial assistance to counties under this division and 349
that then are available for that purpose.
Section 2. That existing section 2953.08 of the Revised 351
Code is hereby repealed. 352