As Passed by the House 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-SULZER- 9
JONES-FORD-STAPLETON-FLANNERY-WILSON-DISTEL-ALLEN-SMITH- 10
BARRETT-OGG-D. MILLER-HOOPS-PATTON-REDFERN-BOYD-CORBIN- 11
BARNES-WOMER BENJAMIN 12
_________________________________________________________________ 13
A B I L L
To amend section 2953.08 of the Revised Code to 15
modify the procedure pursuant to which a court of 16
appeals may modify or vacate and remand a
sentence that imposes specified types of prison 17
terms.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 19
Section 1. That section 2953.08 of the Revised Code be 21
amended to read as follows: 22
Sec. 2953.08. (A) In addition to any other right to 32
appeal and except as provided in division (D) of this section, a 33
defendant who is convicted of or pleads guilty to a felony may 34
appeal as a matter of right the sentence imposed upon the 35
defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum 37
prison term allowed for the offense by division (A) of section 38
2929.14 of the Revised Code and was not imposed pursuant to 39
division (D)(3)(b) of section 2929.14 of the Revised Code, and 40
the court imposed it under one of the following circumstances: 41
(a) The sentence was imposed for only one offense. 43
(b) The sentence was imposed for two or more offenses 46
arising out of a single incident, and the court imposed the 47
maximum prison term for the offense of the highest degree.
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(2) The sentence consisted of or included a prison term, 49
the offense for which it was imposed is a felony of the fourth or 50
fifth degree or is a felony drug offense that is a violation of a 51
provision of Chapter 2925. of the Revised Code and that is 52
specified as being subject to division (B) of section 2929.13 of 53
the Revised Code for purposes of sentencing, and the court did 54
not specify at sentencing that it found one or more factors 55
specified in divisions (B)(1)(a) to (h) of section 2929.13 of the 57
Revised Code to apply relative to the defendant. If the court 59
specifies that it found one or more of those factors to apply 60
relative to the defendant, the defendant is not entitled under 61
this division to appeal as a matter of right the sentence imposed 62
upon the offender.
(3) The person was convicted of or pleaded guilty to a 64
sexually violent offense, was adjudicated as being a sexually 65
violent predator, and was sentenced pursuant to division (A)(3) 66
of section 2971.03 of the Revised Code, if the minimum term of 68
the indefinite term imposed pursuant to division (A)(3) of
section 2971.03 of the Revised Code is the longest term available 69
for the offense from among the range of terms listed in section 71
2929.14 of the Revised Code. As used in this division, "sexually 73
violent offense" and "sexually violent predator" have the same
meanings as in section 2971.01 of the Revised Code. 74
(4) The sentence is contrary to law. 76
(5) The sentence consisted of an additional prison term of 78
ten years imposed pursuant to division (D)(3)(b) of section 79
2929.14 of the Revised Code. 80
(B) In addition to any other right to appeal and except as 83
provided in division (D) of this section, a prosecuting attorney, 84
a city director of law, village solicitor, or similar chief legal 85
officer of a municipal corporation, or the attorney general, if 86
one of those persons prosecuted the case, may appeal as a matter 87
of right a sentence imposed upon a defendant who is convicted of 88
or pleads guilty to a felony or, in the circumstances described 89
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in division (B)(3) of this section the modification of a sentence 90
imposed upon such a defendant, on any of the following grounds: 91
(1) The sentence did not include a prison term despite a 94
presumption favoring a prison term for the offense for which it 95
was imposed, as set forth in section 2929.13 or Chapter 2925. of 96
the Revised Code.
(2) The sentence is contrary to law. 98
(3) The sentence is a modification under section 2929.20 100
of the Revised Code of a sentence that was imposed for a felony 101
of the first or second degree.
(C) In addition to the right to appeal a sentence granted 104
under division (A) or (B) of this section, a defendant who is 105
convicted of or pleads guilty to a felony may seek leave to 106
appeal a sentence imposed upon the defendant on the basis that 107
the sentencing judge has imposed consecutive sentences under 108
division (E)(3) or (4) of section 2929.14 of the Revised Code and 109
that the consecutive sentences exceed the maximum prison term 110
allowed by division (A) of that section for the most serious 111
offense of which the defendant was convicted. Upon the filing of 112
a motion under this division, the court of appeals may grant 114
leave to appeal the sentence if the court determines that the 115
allegation included as the basis of the motion is true. 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
Rules of Appellate Procedure, provided that if the appeal is 131
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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
the Revised Code.
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(G)(1) IF THE SENTENCING COURT WAS REQUIRED TO MAKE THE 172
FINDINGS REQUIRED BY DIVISION (B) OR (D) OF SECTION 2929.13, 173
DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF SECTION 175
2929.20 OF THE REVISED CODE RELATIVE TO THE IMPOSITION OR 177
MODIFICATION OF THE SENTENCE, AND IF THE SENTENCING COURT FAILED 178
TO STATE THE REQUIRED FINDINGS ON THE RECORD, THE COURT HEARING 179
AN APPEAL UNDER DIVISION (A), (B), OR (C) OF THIS SECTION SHALL 181
REMAND THE CASE TO THE SENTENCING COURT AND INSTRUCT THE 182
SENTENCING COURT TO STATE, ON THE RECORD, THE REQUIRED FINDINGS. 183
(2) The court hearing an appeal of a sentence under 186
division (A) or, (B)(1) or (2), OR (C) of this section SHALL 189
REVIEW THE RECORD, INCLUDING THE FINDINGS UNDERLYING THE SENTENCE 190
OR MODIFICATION GIVEN BY THE SENTENCING COURT.
THE APPELLATE COURT may increase, reduce, or otherwise 194
modify a sentence that is appealed under this section or may 195
vacate the sentence and remand the matter to the trial SENTENCING 196
court for resentencing. THE APPELLATE COURT'S STANDARD FOR 197
REVIEW IS NOT WHETHER THE SENTENCING COURT ABUSED ITS DISCRETION. 199
THE APPELLATE COURT MAY TAKE ANY ACTION AUTHORIZED BY THIS 200
DIVISION if the court IT clearly and convincingly finds any 203
EITHER of the following:
(a) That the record does not support the sentence 205
SENTENCING COURT'S FINDINGS UNDER DIVISION (B) OR (D) OF SECTION 207
2929.13, DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF 209
SECTION 2929.20 OF THE REVISED CODE, WHICHEVER, IF ANY, IS 210
RELEVANT; 211
(b) That the sentence included a prison term, that the 213
offense for which it was imposed is a felony of the fourth or 214
fifth degree or is a felony drug offense that is a violation of a 215
provision of Chapter 2925. of the Revised Code and that is 216
specified as being subject to division (B) of section 2929.13 of 217
the Revised Code for purposes of sentencing, that the court did 218
not specify in the finding it makes at sentencing that it found 219
one or more of the factors specified in divisions (B)(1)(a) to 220
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(h) of section 2929.13 of the Revised Code to apply relative to 222
the defendant who brought the appeal, and either that the
procedures set forth in division (B) of section 2929.13 of the 223
Revised Code for determining whether to impose a prison term for 225
such an offense were not followed or that those procedures were 226
followed but there is an insufficient basis for imposing a prison 227
term for the offense;
(c) That the sentence did not include a prison term, that 229
the offense for which it was imposed is a felony of the first or 230
second degree or is a felony drug offense that is a violation of 231
a provision of Chapter 2925. of the Revised Code for which a 232
presumption in favor of a prison term is specified as being 233
applicable, and either that the procedures set forth in division 234
(D) of section 2929.13 of the Revised Code that set forth the 235
only circumstances in which the presumption may be overridden and 236
a sanction other than a prison term may be imposed in lieu of a 237
prison term were not followed or that those procedures were 238
followed but there is an insufficient basis for overriding the 239
presumption and imposing a sanction other than a prison term for 240
the offense; 241
(d) That the sentence is otherwise contrary to law. 243
(2) The court hearing an appeal under division (B)(3) of 245
this section of a trial court's modification pursuant to section 246
2929.20 of the Revised Code of a sentence that was imposed upon a 248
defendant for a felony of a first or second degree may overturn 249
the modification and reinstate the original sentence, or may 250
vacate the modification of the sentence and remand the matter to 251
the trial court for reconsideration, only if the court clearly
and convincingly finds any of the following: 252
(a) That the record does not support the modification 254
based on the criteria for modification set forth in division (H) 255
of section 2929.20 of the Revised Code; 256
(b) That the modification was not made in accordance with 258
the procedures set forth in section 2929.20 of the Revised Code, 259
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that the defendant was not eligible for the modification under 261
that section, or that the modification otherwise was contrary to 262
law.
(H) A judgment or final order of a court of appeals under 265
this section may be appealed, by leave of court, to the supreme 266
court.
(I)(1) There is hereby established the felony sentence 269
appeal cost oversight committee, consisting of eight members. 270
One member shall be the chief justice of the supreme court or a 271
representative of the court designated by the chief justice, one 272
member shall be a member of the senate appointed by the president 273
of the senate, one member shall be a member of the house of 274
representatives appointed by the speaker of the house of 275
representatives, one member shall be the director of budget and 276
management or a representative of the office of budget and 277
management designated by the director, one member shall be a 278
judge of a court of appeals, court of common pleas, municipal 279
court, or county court appointed by the chief justice of the 280
supreme court, one member shall be the state public defender or a 281
representative of the office of the state public defender 282
designated by the state public defender, one member shall be a 283
prosecuting attorney appointed by the Ohio prosecuting attorneys 284
association, and one member shall be a county commissioner 285
appointed by the county commissioners association of Ohio. No 286
more than three of the appointed members of the committee may be 287
members of the same political party.
The president of the senate, the speaker of the house of 289
representatives, the chief justice of the supreme court, the Ohio 291
prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial appointments to the 293
committee of the appointed members no later than ninety days 294
after July 1, 1996. Of those initial appointments to the 295
committee, the members appointed by the speaker of the house of 296
representatives and the Ohio prosecuting attorneys association 298
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shall serve a term ending two years after July 1, 1996, the
member appointed by the chief justice of the supreme court shall 300
serve a term ending three years after July 1, 1996, and the 301
members appointed by the president of the senate and the county 303
commissioners association of Ohio shall serve terms ending four 305
years after July 1, 1996. Thereafter, terms of office of the
appointed members shall be for four years, with each term ending 307
on the same day of the same month as did the term that it 308
succeeds. Members may be reappointed. Vacancies shall be filled 309
in the same manner provided for original appointments. A member 310
appointed to fill a vacancy occurring prior to the expiration of 311
the term for which that member's predecessor was appointed shall 312
hold office as a member for the remainder of the predecessor's 313
term. An appointed member shall continue in office subsequent to 314
the expiration date of that member's term until that member's 315
successor takes office or until a period of sixty days has 316
elapsed, whichever occurs first. 317
If the chief justice of the supreme court, the director of 319
the office of budget and management, or the state public defender 321
serves as a member of the committee, that person's term of office 322
as a member shall continue for as long as that person holds 323
office as chief justice, director of the office of budget and 324
management, or state public defender. If the chief justice of 325
the supreme court designates a representative of the court to
serve as a member, the director of budget and management 326
designates a representative of the office of budget and 327
management to serve as a member, or the state public defender 329
designates a representative of the office of the state public 330
defender to serve as a member, the person so designated shall 331
serve as a member of the commission for as long as the official 332
who made the designation holds office as chief justice, director 333
of the office of budget and management, or state public defender 334
or until that official revokes the designation.
The chief justice of the supreme court or the 336
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representative of the supreme court appointed by the chief 337
justice shall serve as chairperson of the committee. The 338
committee shall meet within two weeks after all appointed members 339
have been appointed and shall organize as necessary. Thereafter, 340
the committee shall meet at least once every six months or more 341
often upon the call of the chairperson or the written request of 342
three or more members, provided that the committee shall not meet 343
unless moneys have been appropriated to the judiciary budget 344
administered by the supreme court specifically for the purpose of 345
providing financial assistance to counties under division (I)(2) 346
of this section and the moneys so appropriated then are available 347
for that purpose.
The members of the committee shall serve without 349
compensation, but, if moneys have been appropriated to the 350
judiciary budget administered by the supreme court specifically 351
for the purpose of providing financial assistance to counties 352
under division (I)(2) of this section, each member shall be 353
reimbursed out of the moneys so appropriated that then are 354
available for actual and necessary expenses incurred in the 355
performance of official duties as a committee member. 356
(2) The state criminal sentencing commission periodically 358
shall provide to the felony sentence appeal cost oversight 359
committee all data the commission collects pursuant to division 360
(A)(5) of section 181.25 of the Revised Code. Upon receipt of 362
the data from the state criminal sentencing commission, the 363
felony sentence appeal cost oversight committee periodically 364
shall review the data; determine whether any money has been 365
appropriated to the judiciary budget administered by the supreme 366
court specifically for the purpose of providing state financial 367
assistance to counties in accordance with this division for the 368
increase in expenses the counties experience as a result of the 369
felony sentence appeal provisions set forth in this section or as 370
a result of a postconviction relief proceeding brought under 371
division (A)(2) of section 2953.21 of the Revised Code or an 372
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appeal of a judgment in that proceeding; if it determines that 373
any money has been so appropriated, determine the total amount of 374
moneys that have been so appropriated specifically for that 375
purpose and that then are available for that purpose; and develop 376
a recommended method of distributing those moneys to the 377
counties. The committee shall send a copy of its recommendation 378
to the supreme court. Upon receipt of the committee's 379
recommendation, the supreme court shall distribute to the 380
counties, based upon that recommendation, the moneys that have 381
been so appropriated specifically for the purpose of providing
state financial assistance to counties under this division and 383
that then are available for that purpose.
Section 2. That existing section 2953.08 of the Revised 385
Code is hereby repealed. 386