As Reported by the Senate Judiciary 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-SULZER- 9
JONES-FORD-STAPLETON-FLANNERY-WILSON-DISTEL-ALLEN-SMITH- 10
BARRETT-OGG-D. MILLER-HOOPS-PATTON-REDFERN-BOYD-CORBIN- 11
BARNES-WOMER BENJAMIN-SENATORS HERINGTON-FINGERHUT 12
_________________________________________________________________ 14
A B I L L
To amend sections 2925.32 and 2953.08 of the Revised 16
Code to modify the procedure pursuant to which a 18
court of appeals may modify or vacate and remand
a sentence that imposes specified types of prison 19
terms and to delay until July 1, 2001, the date 20
on which requirements regarding the recording of
transactions involving the dispensation of 21
distribution of nitrous oxide will become
operative.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 23
Section 1. That sections 2925.32 and 2953.08 of the 25
Revised Code be amended to read as follows: 26
Sec. 2925.32. (A) Divisions (A)(1) and (2) of this 35
section do not apply to the dispensing or distributing of nitrous 36
oxide.
(1) No person shall knowingly dispense or distribute a 38
harmful intoxicant to a person age eighteen or older if the 39
person who dispenses or distributes it knows or has reason to 40
believe that the harmful intoxicant will be used in violation of 41
section 2925.31 of the Revised Code. 42
(2) No person shall knowingly dispense or distribute a 45
harmful intoxicant to a person under age eighteen if the person 46
2
who dispenses or distributes it knows or has reason to believe 48
that the harmful intoxicant will be used in violation of section 49
2925.31 of the Revised Code. Division (A)(2) of this section 50
does not prohibit either of the following: 51
(a) Dispensing or distributing a harmful intoxicant to a 54
person under age eighteen if a written order from the juvenile's 56
parent or guardian is provided to the dispenser or distributor; 57
(b) Dispensing or distributing gasoline or diesel fuel to 60
a person under age eighteen if the dispenser or distributor does 61
not know or have reason to believe the product will be used in 62
violation of section 2925.31 of the Revised Code. Division 63
(A)(2)(a) of this section does not require a person to obtain a 64
written order from the parent or guardian of a person under age 65
eighteen in order to distribute or dispense gasoline or diesel 66
fuel to the person. 67
(B)(1) No person shall knowingly dispense or distribute 69
nitrous oxide to a person age twenty-one or older if the person 71
who dispenses or distributes it knows or has reason to believe 72
the nitrous oxide will be used in violation of section 2925.31 of 73
the Revised Code.
(2) Except for lawful medical, dental, or clinical 75
purposes, no person shall knowingly dispense or distribute 76
nitrous oxide to a person under age twenty-one. 77
(3) No person, at the time a cartridge of nitrous oxide is 79
sold to another person, shall sell a device that allows the 80
purchaser to inhale nitrous oxide from cartridges or to hold 81
nitrous oxide released from cartridges for purposes of 82
inhalation. The sale of any such device constitutes a rebuttable 83
presumption that the person knew or had reason to believe that 84
the purchaser intended to abuse the nitrous oxide. 85
(4) No person who dispenses or distributes nitrous oxide 87
in cartridges shall fail to comply with either of the following: 88
(a) The record-keeping requirements established under 90
division (F) of this section; 91
3
(b) The labeling and transaction identification 93
requirements established under division (G) of this section. 95
(C) This section does not apply to products used in 97
making, fabricating, assembling, transporting, or constructing a 98
product or structure by manual labor or machinery for sale or 99
lease to another person, or to the mining, refining, or 100
processing of natural deposits. 101
(D)(1) Whoever violates division (A)(1) or (2) or division 105
(B)(1), (2), or (3) of this section is guilty of trafficking in 106
harmful intoxicants, a felony of the fifth degree. If the 107
offender previously has been convicted of a drug abuse offense, 108
trafficking in harmful intoxicants is a felony of the fourth 109
degree. In addition to any other sanction imposed for
trafficking in harmful intoxicants, the court shall suspend for 111
not less than six months or more than five years the driver's or 112
commercial driver's license or permit of any person who is 113
convicted of or has pleaded guilty to trafficking in harmful 115
intoxicants. If the offender is a professionally licensed person 116
or a person who has been admitted to the bar by order of the 117
supreme court in compliance with its prescribed and published 118
rules, in addition to any other sanction imposed for trafficking 120
in harmful intoxicants, the court forthwith shall comply with 121
section 2925.38 of the Revised Code. 122
(2) Whoever violates division (B)(4)(a) or (b) of this 125
section is guilty of improperly dispensing or distributing 126
nitrous oxide, a misdemeanor of the fourth degree.
(E) It is an affirmative defense to a charge of a 128
violation of division (A)(2) or (B)(2) of this section that: 129
(1) An individual exhibited to the defendant or an officer 132
or employee of the defendant, for purposes of establishing the 133
individual's age, a driver's license or permit issued by this 134
state, a commercial driver's license or permit issued by this 135
state, an identification card issued pursuant to section 4507.50 136
of the Revised Code, for another document that purports to be a 138
4
license, permit, or identification card described in this 139
division;
(2) The document exhibited appeared to be a genuine, 142
unaltered document, to pertain to the individual, and to
establish the individual's age; 143
(3) The defendant or the officer or employee of the 146
defendant otherwise did not have reasonable cause to believe that 147
the individual was under the age represented. 148
(F) Beginning July 1, 2000 2001, a person who dispenses or 151
distributes nitrous oxide shall record each transaction involving 152
the dispensing or distributing of the nitrous oxide on a separate 153
card. The person shall require the purchaser to sign the card
and provide a complete residence address. The person dispensing 154
or distributing the nitrous oxide shall sign and date the card. 155
The person shall retain the card recording a transaction for one 156
year from the date of the transaction. The person shall maintain 157
the cards at the person's business address and make them 158
available during normal business hours for inspection and copying 160
by officers or employees of the state board of pharmacy or of
other law enforcement agencies of this state or the United States 161
that are authorized to investigate violations of Chapter 2925., 162
3719., or 4729. of the Revised Code or the federal drug abuse 163
control laws.
The cards used to record each transaction shall inform the 165
purchaser of the following: 166
(1) That nitrous oxide cartridges are to be used only for 168
purposes of preparing food; 169
(2) That inhalation of nitrous oxide can have dangerous 171
health effects;
(3) That it is a violation of state law to distribute or 173
dispense cartridges of nitrous oxide to any person under age 174
twenty-one, punishable as a felony of the fifth degree. 175
(G)(1) Each cartridge of nitrous oxide dispensed or 178
distributed in this state shall bear the following printed 179
5
warning:
"Nitrous oxide cartridges are to be used only for purposes 182
of preparing food. Nitrous oxide cartridges may not be sold to 183
persons under age twenty-one. Do not inhale contents. Misuse 184
can be dangerous to your health."
(2) Each time a person dispenses or distributes one or 186
more cartridges of nitrous oxide, the person shall mark the 187
packaging containing the cartridges with a label or other device 188
that identifies the person who dispensed or distributed the 189
nitrous oxide and the person's business address. 190
Sec. 2953.08. (A) In addition to any other right to 200
appeal and except as provided in division (D) of this section, a 201
defendant who is convicted of or pleads guilty to a felony may 202
appeal as a matter of right the sentence imposed upon the 203
defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum 205
prison term allowed for the offense by division (A) of section 206
2929.14 of the Revised Code and was not imposed pursuant to 207
division (D)(3)(b) of section 2929.14 of the Revised Code, and 208
the court imposed it under one of the following circumstances: 209
(a) The sentence was imposed for only one offense. 211
(b) The sentence was imposed for two or more offenses 214
arising out of a single incident, and the court imposed the 215
maximum prison term for the offense of the highest degree.
(2) The sentence consisted of or included a prison term, 217
the offense for which it was imposed is a felony of the fourth or 218
fifth degree or is a felony drug offense that is a violation of a 219
provision of Chapter 2925. of the Revised Code and that is 220
specified as being subject to division (B) of section 2929.13 of 221
the Revised Code for purposes of sentencing, and the court did 222
not specify at sentencing that it found one or more factors 223
specified in divisions (B)(1)(a) to (h) of section 2929.13 of the 225
Revised Code to apply relative to the defendant. If the court 227
specifies that it found one or more of those factors to apply 228
6
relative to the defendant, the defendant is not entitled under 229
this division to appeal as a matter of right the sentence imposed 230
upon the offender.
(3) The person was convicted of or pleaded guilty to a 232
sexually violent offense, was adjudicated as being a sexually 233
violent predator, and was sentenced pursuant to division (A)(3) 234
of section 2971.03 of the Revised Code, if the minimum term of 236
the indefinite term imposed pursuant to division (A)(3) of
section 2971.03 of the Revised Code is the longest term available 237
for the offense from among the range of terms listed in section 239
2929.14 of the Revised Code. As used in this division, "sexually 241
violent offense" and "sexually violent predator" have the same
meanings as in section 2971.01 of the Revised Code. 242
(4) The sentence is contrary to law. 244
(5) The sentence consisted of an additional prison term of 246
ten years imposed pursuant to division (D)(3)(b) of section 247
2929.14 of the Revised Code. 248
(B) In addition to any other right to appeal and except as 251
provided in division (D) of this section, a prosecuting attorney, 252
a city director of law, village solicitor, or similar chief legal 253
officer of a municipal corporation, or the attorney general, if 254
one of those persons prosecuted the case, may appeal as a matter 255
of right a sentence imposed upon a defendant who is convicted of 256
or pleads guilty to a felony or, in the circumstances described 257
in division (B)(3) of this section the modification of a sentence 258
imposed upon such a defendant, on any of the following grounds: 259
(1) The sentence did not include a prison term despite a 262
presumption favoring a prison term for the offense for which it 263
was imposed, as set forth in section 2929.13 or Chapter 2925. of 264
the Revised Code.
(2) The sentence is contrary to law. 266
(3) The sentence is a modification under section 2929.20 268
of the Revised Code of a sentence that was imposed for a felony 269
of the first or second degree.
7
(C) In addition to the right to appeal a sentence granted 272
under division (A) or (B) of this section, a defendant who is 273
convicted of or pleads guilty to a felony may seek leave to 274
appeal a sentence imposed upon the defendant on the basis that 275
the sentencing judge has imposed consecutive sentences under 276
division (E)(3) or (4) of section 2929.14 of the Revised Code and 277
that the consecutive sentences exceed the maximum prison term 278
allowed by division (A) of that section for the most serious 279
offense of which the defendant was convicted. Upon the filing of 280
a motion under this division, the court of appeals may grant 282
leave to appeal the sentence if the court determines that the 283
allegation included as the basis of the motion is true. 284
(D) A sentence imposed upon a defendant is not subject to 287
review under this section if the sentence is authorized by law, 288
has been recommended jointly by the defendant and the prosecution 289
in the case, and is imposed by a sentencing judge. A sentence 290
imposed for aggravated murder or murder pursuant to sections 291
2929.02 to 2929.06 of the Revised Code is not subject to review 292
under this section.
(E) A defendant, prosecuting attorney, city director of 295
law, village solicitor, or chief municipal legal officer shall 296
file an appeal of a sentence under this section to a court of 297
appeals within the time limits specified in Rule 4(B) of the 298
Rules of Appellate Procedure, provided that if the appeal is 299
pursuant to division (B)(3) of this section, the time limits 300
specified in that rule shall not commence running until the court 301
grants the motion that makes the sentence modification in 302
question. A sentence appeal under this section shall be 303
consolidated with any other appeal in the case. If no other 304
appeal is filed, the court of appeals may review only the 305
portions of the trial record that pertain to sentencing. 306
(F) On the appeal of a sentence under this section, the 309
record to be reviewed shall include all of the following, as 310
applicable:
8
(1) Any presentence, psychiatric, or other investigative 313
report that was submitted to the court in writing before the 314
sentence was imposed. An appellate court that reviews a 315
presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in 316
connection with the appeal of a sentence under this section shall 317
comply with division (D)(3) of section 2951.03 of the Revised 318
Code when the appellate court is not using the presentence 319
investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection 320
with the appeal of a sentence under this section does not affect 321
the otherwise confidential character of the contents of that 322
report as described in division (D)(1) of section 2951.03 of the 323
Revised Code and does not cause that report to become a public 324
record, as defined in section 149.43 of the Revised Code,
following the appellate court's use of the report. 325
(2) The trial record in the case in which the sentence was 328
imposed;
(3) Any oral or written statements made to or by the court 331
at the sentencing hearing at which the sentence was imposed; 332
(4) Any written findings that the court was required to 334
make in connection with the modification of the sentence pursuant 335
to a judicial release under division (H) of section 2929.20 of 337
the Revised Code.
(G)(1) IF THE SENTENCING COURT WAS REQUIRED TO MAKE THE 340
FINDINGS REQUIRED BY DIVISION (B) OR (D) OF SECTION 2929.13, 341
DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF SECTION 343
2929.20 OF THE REVISED CODE RELATIVE TO THE IMPOSITION OR 345
MODIFICATION OF THE SENTENCE, AND IF THE SENTENCING COURT FAILED 346
TO STATE THE REQUIRED FINDINGS ON THE RECORD, THE COURT HEARING 347
AN APPEAL UNDER DIVISION (A), (B), OR (C) OF THIS SECTION SHALL 349
REMAND THE CASE TO THE SENTENCING COURT AND INSTRUCT THE 350
SENTENCING COURT TO STATE, ON THE RECORD, THE REQUIRED FINDINGS. 351
(2) The court hearing an appeal of a sentence under 354
9
division (A) or, (B)(1) or (2), OR (C) of this section SHALL 357
REVIEW THE RECORD, INCLUDING THE FINDINGS UNDERLYING THE SENTENCE 358
OR MODIFICATION GIVEN BY THE SENTENCING COURT.
THE APPELLATE COURT may increase, reduce, or otherwise 362
modify a sentence that is appealed under this section or may 363
vacate the sentence and remand the matter to the trial SENTENCING 364
court for resentencing. THE APPELLATE COURT'S STANDARD FOR 365
REVIEW IS NOT WHETHER THE SENTENCING COURT ABUSED ITS DISCRETION. 367
THE APPELLATE COURT MAY TAKE ANY ACTION AUTHORIZED BY THIS 368
DIVISION if the court IT clearly and convincingly finds any 371
EITHER of the following:
(a) That the record does not support the sentence 373
SENTENCING COURT'S FINDINGS UNDER DIVISION (B) OR (D) OF SECTION 375
2929.13, DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H) OF 377
SECTION 2929.20 OF THE REVISED CODE, WHICHEVER, IF ANY, IS 378
RELEVANT; 379
(b) That the sentence included a prison term, that the 381
offense for which it was imposed is a felony of the fourth or 382
fifth degree or is a felony drug offense that is a violation of a 383
provision of Chapter 2925. of the Revised Code and that is 384
specified as being subject to division (B) of section 2929.13 of 385
the Revised Code for purposes of sentencing, that the court did 386
not specify in the finding it makes at sentencing that it found 387
one or more of the factors specified in divisions (B)(1)(a) to 388
(h) of section 2929.13 of the Revised Code to apply relative to 390
the defendant who brought the appeal, and either that the
procedures set forth in division (B) of section 2929.13 of the 391
Revised Code for determining whether to impose a prison term for 393
such an offense were not followed or that those procedures were 394
followed but there is an insufficient basis for imposing a prison 395
term for the offense;
(c) That the sentence did not include a prison term, that 397
the offense for which it was imposed is a felony of the first or 398
second degree or is a felony drug offense that is a violation of 399
10
a provision of Chapter 2925. of the Revised Code for which a 400
presumption in favor of a prison term is specified as being 401
applicable, and either that the procedures set forth in division 402
(D) of section 2929.13 of the Revised Code that set forth the 403
only circumstances in which the presumption may be overridden and 404
a sanction other than a prison term may be imposed in lieu of a 405
prison term were not followed or that those procedures were 406
followed but there is an insufficient basis for overriding the 407
presumption and imposing a sanction other than a prison term for 408
the offense; 409
(d) That the sentence is otherwise contrary to law. 411
(2) The court hearing an appeal under division (B)(3) of 413
this section of a trial court's modification pursuant to section 414
2929.20 of the Revised Code of a sentence that was imposed upon a 416
defendant for a felony of a first or second degree may overturn 417
the modification and reinstate the original sentence, or may 418
vacate the modification of the sentence and remand the matter to 419
the trial court for reconsideration, only if the court clearly
and convincingly finds any of the following: 420
(a) That the record does not support the modification 422
based on the criteria for modification set forth in division (H) 423
of section 2929.20 of the Revised Code; 424
(b) That the modification was not made in accordance with 426
the procedures set forth in section 2929.20 of the Revised Code, 427
that the defendant was not eligible for the modification under 429
that section, or that the modification otherwise was contrary to 430
law.
(H) A judgment or final order of a court of appeals under 433
this section may be appealed, by leave of court, to the supreme 434
court.
(I)(1) There is hereby established the felony sentence 437
appeal cost oversight committee, consisting of eight members. 438
One member shall be the chief justice of the supreme court or a 439
representative of the court designated by the chief justice, one 440
11
member shall be a member of the senate appointed by the president 441
of the senate, one member shall be a member of the house of 442
representatives appointed by the speaker of the house of 443
representatives, one member shall be the director of budget and 444
management or a representative of the office of budget and 445
management designated by the director, one member shall be a 446
judge of a court of appeals, court of common pleas, municipal 447
court, or county court appointed by the chief justice of the 448
supreme court, one member shall be the state public defender or a 449
representative of the office of the state public defender 450
designated by the state public defender, one member shall be a 451
prosecuting attorney appointed by the Ohio prosecuting attorneys 452
association, and one member shall be a county commissioner 453
appointed by the county commissioners association of Ohio. No 454
more than three of the appointed members of the committee may be 455
members of the same political party.
The president of the senate, the speaker of the house of 457
representatives, the chief justice of the supreme court, the Ohio 459
prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial appointments to the 461
committee of the appointed members no later than ninety days 462
after July 1, 1996. Of those initial appointments to the 463
committee, the members appointed by the speaker of the house of 464
representatives and the Ohio prosecuting attorneys association 466
shall serve a term ending two years after July 1, 1996, the
member appointed by the chief justice of the supreme court shall 468
serve a term ending three years after July 1, 1996, and the 469
members appointed by the president of the senate and the county 471
commissioners association of Ohio shall serve terms ending four 473
years after July 1, 1996. Thereafter, terms of office of the
appointed members shall be for four years, with each term ending 475
on the same day of the same month as did the term that it 476
succeeds. Members may be reappointed. Vacancies shall be filled 477
in the same manner provided for original appointments. A member 478
12
appointed to fill a vacancy occurring prior to the expiration of 479
the term for which that member's predecessor was appointed shall 480
hold office as a member for the remainder of the predecessor's 481
term. An appointed member shall continue in office subsequent to 482
the expiration date of that member's term until that member's 483
successor takes office or until a period of sixty days has 484
elapsed, whichever occurs first. 485
If the chief justice of the supreme court, the director of 487
the office of budget and management, or the state public defender 489
serves as a member of the committee, that person's term of office 490
as a member shall continue for as long as that person holds 491
office as chief justice, director of the office of budget and 492
management, or state public defender. If the chief justice of 493
the supreme court designates a representative of the court to
serve as a member, the director of budget and management 494
designates a representative of the office of budget and 495
management to serve as a member, or the state public defender 497
designates a representative of the office of the state public 498
defender to serve as a member, the person so designated shall 499
serve as a member of the commission for as long as the official 500
who made the designation holds office as chief justice, director 501
of the office of budget and management, or state public defender 502
or until that official revokes the designation.
The chief justice of the supreme court or the 504
representative of the supreme court appointed by the chief 505
justice shall serve as chairperson of the committee. The 506
committee shall meet within two weeks after all appointed members 507
have been appointed and shall organize as necessary. Thereafter, 508
the committee shall meet at least once every six months or more 509
often upon the call of the chairperson or the written request of 510
three or more members, provided that the committee shall not meet 511
unless moneys have been appropriated to the judiciary budget 512
administered by the supreme court specifically for the purpose of 513
providing financial assistance to counties under division (I)(2) 514
13
of this section and the moneys so appropriated then are available 515
for that purpose.
The members of the committee shall serve without 517
compensation, but, if moneys have been appropriated to the 518
judiciary budget administered by the supreme court specifically 519
for the purpose of providing financial assistance to counties 520
under division (I)(2) of this section, each member shall be 521
reimbursed out of the moneys so appropriated that then are 522
available for actual and necessary expenses incurred in the 523
performance of official duties as a committee member. 524
(2) The state criminal sentencing commission periodically 526
shall provide to the felony sentence appeal cost oversight 527
committee all data the commission collects pursuant to division 528
(A)(5) of section 181.25 of the Revised Code. Upon receipt of 530
the data from the state criminal sentencing commission, the 531
felony sentence appeal cost oversight committee periodically 532
shall review the data; determine whether any money has been 533
appropriated to the judiciary budget administered by the supreme 534
court specifically for the purpose of providing state financial 535
assistance to counties in accordance with this division for the 536
increase in expenses the counties experience as a result of the 537
felony sentence appeal provisions set forth in this section or as 538
a result of a postconviction relief proceeding brought under 539
division (A)(2) of section 2953.21 of the Revised Code or an 540
appeal of a judgment in that proceeding; if it determines that 541
any money has been so appropriated, determine the total amount of 542
moneys that have been so appropriated specifically for that 543
purpose and that then are available for that purpose; and develop 544
a recommended method of distributing those moneys to the 545
counties. The committee shall send a copy of its recommendation 546
to the supreme court. Upon receipt of the committee's 547
recommendation, the supreme court shall distribute to the 548
counties, based upon that recommendation, the moneys that have 549
been so appropriated specifically for the purpose of providing
14
state financial assistance to counties under this division and 551
that then are available for that purpose.
Section 2. That existing sections 2925.32 and 2953.08 of 553
the Revised Code are hereby repealed. 554