As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 331 5
1999-2000 6
REPRESENTATIVES DePIERO-PERRY-JERSE-VERICH-TAYLOR-METELSKY- 8
PRINGLE-VESPER-GOODMAN-OPFER-SULLIVAN-TIBERI-MYERS 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 specified types of prison 14
terms.
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 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 of the motion is true. 113
(D) A sentence imposed upon a defendant is not subject to 116
review under this section if the sentence is authorized by law, 117
has been recommended jointly by the defendant and the prosecution 118
in the case, and is imposed by a sentencing judge. A sentence 119
imposed for aggravated murder or murder pursuant to sections 120
2929.02 to 2929.06 of the Revised Code is not subject to review 121
under this section.
(E) A defendant, prosecuting attorney, city director of 124
law, village solicitor, or chief municipal legal officer shall 125
file an appeal of a sentence under this section to a court of 126
appeals within the time limits specified in Rule 4(B) of the 127
Rules of Appellate Procedure, provided that if the appeal is 128
pursuant to division (B)(3) of this section, the time limits 129
specified in that rule shall not commence running until the court 130
grants the motion that makes the sentence modification in 131
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question. A sentence appeal under this section shall be 132
consolidated with any other appeal in the case. If no other 133
appeal is filed, the court of appeals may review only the 134
portions of the trial record that pertain to sentencing. 135
(F) On the appeal of a sentence under this section, the 138
record to be reviewed shall include all of the following, as 139
applicable:
(1) Any presentence, psychiatric, or other investigative 142
report that was submitted to the court in writing before the 143
sentence was imposed. An appellate court that reviews a 144
presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in 145
connection with the appeal of a sentence under this section shall 146
comply with division (D)(3) of section 2951.03 of the Revised 147
Code when the appellate court is not using the presentence 148
investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection 149
with the appeal of a sentence under this section does not affect 150
the otherwise confidential character of the contents of that 151
report as described in division (D)(1) of section 2951.03 of the 152
Revised Code and does not cause that report to become a public 153
record, as defined in section 149.43 of the Revised Code,
following the appellate court's use of the report. 154
(2) The trial record in the case in which the sentence was 157
imposed;
(3) Any oral or written statements made to or by the court 160
at the sentencing hearing at which the sentence was imposed; 161
(4) Any written findings that the court was required to 163
make in connection with the modification of the sentence pursuant 164
to a judicial release under division (H) of section 2929.20 of 166
the Revised Code.
(G)(1) IF THE SENTENCING COURT WAS REQUIRED TO MAKE THE 169
FINDINGS REQUIRED BY DIVISION (B) OR (D) OF SECTION 2929.13, 170
DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF SECTION 172
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2929.20 OF THE REVISED CODE RELATIVE TO THE IMPOSITION OR 174
MODIFICATION OF THE SENTENCE, AND IF THE SENTENCING COURT FAILED 175
TO STATE THE REQUIRED FINDINGS ON THE RECORD, THE COURT HEARING 176
AN APPEAL UNDER DIVISION (A), (B), OR (C) OF THIS SECTION SHALL 178
REMAND THE CASE TO THE SENTENCING COURT AND INSTRUCT THE 179
SENTENCING COURT TO STATE, ON THE RECORD, THE REQUIRED FINDINGS. 180
(2) The court hearing an appeal of a sentence under 183
division (A) or, (B)(1) or (2), OR (C) of this section SHALL 186
REVIEW THE RECORD, INCLUDING THE FINDINGS UNDERLYING THE SENTENCE 187
OR MODIFICATION GIVEN BY THE SENTENCING COURT.
THE APPELLATE COURT may increase, reduce, or otherwise 191
modify a sentence that is appealed under this section or may 192
vacate the sentence and remand the matter to the trial SENTENCING 193
court for resentencing. THE APPELLATE COURT'S STANDARD FOR 194
REVIEW IS NOT WHETHER THE SENTENCING COURT ABUSED ITS DISCRETION. 196
THE APPELLATE COURT MAY TAKE ANY ACTION AUTHORIZED BY THIS 197
DIVISION if the court IT clearly and convincingly finds any 200
EITHER of the following:
(a) That the record does not support the sentence 202
SENTENCING COURT'S FINDINGS UNDER DIVISION (B) OR (D) OF SECTION 204
2929.13, DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF 206
SECTION 2929.20 OF THE REVISED CODE, WHICHEVER, IF ANY, IS 207
RELEVANT; 208
(b) That the sentence included a prison term, that the 210
offense for which it was imposed is a felony of the fourth or 211
fifth degree or is a felony drug offense that is a violation of a 212
provision of Chapter 2925. of the Revised Code and that is 213
specified as being subject to division (B) of section 2929.13 of 214
the Revised Code for purposes of sentencing, that the court did 215
not specify in the finding it makes at sentencing that it found 216
one or more of the factors specified in divisions (B)(1)(a) to 217
(h) of section 2929.13 of the Revised Code to apply relative to 219
the defendant who brought the appeal, and either that the
procedures set forth in division (B) of section 2929.13 of the 220
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Revised Code for determining whether to impose a prison term for 222
such an offense were not followed or that those procedures were 223
followed but there is an insufficient basis for imposing a prison 224
term for the offense;
(c) That the sentence did not include a prison term, that 226
the offense for which it was imposed is a felony of the first or 227
second degree or is a felony drug offense that is a violation of 228
a provision of Chapter 2925. of the Revised Code for which a 229
presumption in favor of a prison term is specified as being 230
applicable, and either that the procedures set forth in division 231
(D) of section 2929.13 of the Revised Code that set forth the 232
only circumstances in which the presumption may be overridden and 233
a sanction other than a prison term may be imposed in lieu of a 234
prison term were not followed or that those procedures were 235
followed but there is an insufficient basis for overriding the 236
presumption and imposing a sanction other than a prison term for 237
the offense; 238
(d) That the sentence is otherwise contrary to law. 240
(2) The court hearing an appeal under division (B)(3) of 242
this section of a trial court's modification pursuant to section 243
2929.20 of the Revised Code of a sentence that was imposed upon a 245
defendant for a felony of a first or second degree may overturn 246
the modification and reinstate the original sentence, or may 247
vacate the modification of the sentence and remand the matter to 248
the trial court for reconsideration, only if the court clearly
and convincingly finds any of the following: 249
(a) That the record does not support the modification 251
based on the criteria for modification set forth in division (H) 252
of section 2929.20 of the Revised Code; 253
(b) That the modification was not made in accordance with 255
the procedures set forth in section 2929.20 of the Revised Code, 256
that the defendant was not eligible for the modification under 258
that section, or that the modification otherwise was contrary to 259
law.
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(H) A judgment or final order of a court of appeals under 262
this section may be appealed, by leave of court, to the supreme 263
court.
(I)(1) There is hereby established the felony sentence 266
appeal cost oversight committee, consisting of eight members. 267
One member shall be the chief justice of the supreme court or a 268
representative of the court designated by the chief justice, one 269
member shall be a member of the senate appointed by the president 270
of the senate, one member shall be a member of the house of 271
representatives appointed by the speaker of the house of 272
representatives, one member shall be the director of budget and 273
management or a representative of the office of budget and 274
management designated by the director, one member shall be a 275
judge of a court of appeals, court of common pleas, municipal 276
court, or county court appointed by the chief justice of the 277
supreme court, one member shall be the state public defender or a 278
representative of the office of the state public defender 279
designated by the state public defender, one member shall be a 280
prosecuting attorney appointed by the Ohio prosecuting attorneys 281
association, and one member shall be a county commissioner 282
appointed by the county commissioners association of Ohio. No 283
more than three of the appointed members of the committee may be 284
members of the same political party.
The president of the senate, the speaker of the house of 286
representatives, the chief justice of the supreme court, the Ohio 288
prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial appointments to the 290
committee of the appointed members no later than ninety days 291
after July 1, 1996. Of those initial appointments to the 292
committee, the members appointed by the speaker of the house of 293
representatives and the Ohio prosecuting attorneys association 295
shall serve a term ending two years after July 1, 1996, the
member appointed by the chief justice of the supreme court shall 297
serve a term ending three years after July 1, 1996, and the 298
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members appointed by the president of the senate and the county 300
commissioners association of Ohio shall serve terms ending four 302
years after July 1, 1996. Thereafter, terms of office of the
appointed members shall be for four years, with each term ending 304
on the same day of the same month as did the term that it 305
succeeds. Members may be reappointed. Vacancies shall be filled 306
in the same manner provided for original appointments. A member 307
appointed to fill a vacancy occurring prior to the expiration of 308
the term for which that member's predecessor was appointed shall 309
hold office as a member for the remainder of the predecessor's 310
term. An appointed member shall continue in office subsequent to 311
the expiration date of that member's term until that member's 312
successor takes office or until a period of sixty days has 313
elapsed, whichever occurs first. 314
If the chief justice of the supreme court, the director of 316
the office of budget and management, or the state public defender 318
serves as a member of the committee, that person's term of office 319
as a member shall continue for as long as that person holds 320
office as chief justice, director of the office of budget and 321
management, or state public defender. If the chief justice of 322
the supreme court designates a representative of the court to
serve as a member, the director of budget and management 323
designates a representative of the office of budget and 324
management to serve as a member, or the state public defender 326
designates a representative of the office of the state public 327
defender to serve as a member, the person so designated shall 328
serve as a member of the commission for as long as the official 329
who made the designation holds office as chief justice, director 330
of the office of budget and management, or state public defender 331
or until that official revokes the designation.
The chief justice of the supreme court or the 333
representative of the supreme court appointed by the chief 334
justice shall serve as chairperson of the committee. The 335
committee shall meet within two weeks after all appointed members 336
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have been appointed and shall organize as necessary. Thereafter, 337
the committee shall meet at least once every six months or more 338
often upon the call of the chairperson or the written request of 339
three or more members, provided that the committee shall not meet 340
unless moneys have been appropriated to the judiciary budget 341
administered by the supreme court specifically for the purpose of 342
providing financial assistance to counties under division (I)(2) 343
of this section and the moneys so appropriated then are available 344
for that purpose.
The members of the committee shall serve without 346
compensation, but, if moneys have been appropriated to the 347
judiciary budget administered by the supreme court specifically 348
for the purpose of providing financial assistance to counties 349
under division (I)(2) of this section, each member shall be 350
reimbursed out of the moneys so appropriated that then are 351
available for actual and necessary expenses incurred in the 352
performance of official duties as a committee member. 353
(2) The state criminal sentencing commission periodically 355
shall provide to the felony sentence appeal cost oversight 356
committee all data the commission collects pursuant to division 357
(A)(5) of section 181.25 of the Revised Code. Upon receipt of 359
the data from the state criminal sentencing commission, the 360
felony sentence appeal cost oversight committee periodically 361
shall review the data; determine whether any money has been 362
appropriated to the judiciary budget administered by the supreme 363
court specifically for the purpose of providing state financial 364
assistance to counties in accordance with this division for the 365
increase in expenses the counties experience as a result of the 366
felony sentence appeal provisions set forth in this section or as 367
a result of a postconviction relief proceeding brought under 368
division (A)(2) of section 2953.21 of the Revised Code or an 369
appeal of a judgment in that proceeding; if it determines that 370
any money has been so appropriated, determine the total amount of 371
moneys that have been so appropriated specifically for that 372
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purpose and that then are available for that purpose; and develop 373
a recommended method of distributing those moneys to the 374
counties. The committee shall send a copy of its recommendation 375
to the supreme court. Upon receipt of the committee's 376
recommendation, the supreme court shall distribute to the 377
counties, based upon that recommendation, the moneys that have 378
been so appropriated specifically for the purpose of providing
state financial assistance to counties under this division and 380
that then are available for that purpose.
Section 2. That existing section 2953.08 of the Revised 382
Code is hereby repealed. 383