As Introduced 1
123rd General Assembly 4
Regular Session H. B. No. 502 5
1999-2000 6
REPRESENTATIVES DePIERO-REDFERN-CLANCY-SCHURING-DISTEL- 8
HARTNETT-FLANNERY-VESPER-VAN VYVEN-PATTON-ALLEN- BRITTON-PRINGLE 10
_________________________________________________________________ 11
A B I L L
To amend section 2950.09 of the Revised Code to 13
clarify the Sex Offender Registration and 14
Notification Law regarding the time within which
a court must determine that specified imprisoned 15
persons are sexual predators.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 17
Section 1. That section 2950.09 of the Revised Code be 19
amended to read as follows: 20
Sec. 2950.09. (A) If a person is convicted of or pleads 29
guilty to committing, on or after January 1, 1997, a sexually 32
oriented offense that is a sexually violent offense and also is 33
convicted of or pleads guilty to a sexually violent predator 34
specification that was included in the indictment, count in the 35
indictment, or information charging the sexually violent offense, 36
the conviction of or plea of guilty to the specification 37
automatically classifies the offender as a sexual predator for 38
purposes of this chapter. If a person is convicted of or pleads 39
guilty to a sexually oriented offense in another state, or in a 40
federal court, military court, or an Indian tribal court and if, 41
as a result of that conviction or plea of guilty, the person is 42
required, under the law of the jurisdiction in which the person 43
was convicted or pleaded guilty, to register as a sex offender 44
until the person's death and is required to verify the person's 45
address on at least a quarterly basis each year, that conviction 46
or plea of guilty automatically classifies the offender as a 47
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sexual predator for the purposes of this chapter, but the 48
offender may challenge that classification pursuant to division
(F) of this section. In all other cases, a person who is 50
convicted of or pleads guilty to, or has been convicted of or 51
pleaded guilty to, a sexually oriented offense may be classified 52
as a sexual predator for purposes of this chapter only in 53
accordance with division (B) or (C) of this section. 54
(B)(1) Regardless of when the sexually oriented offense 57
was committed, if a person is to be sentenced on or after the 58
effective date of this section JANUARY 1, 1997, for a sexually 60
oriented offense that is not a sexually violent offense, or if a 61
person is to be sentenced on or after January 1, 1997, for a 63
sexually oriented offense that is a sexually violent offense and 64
a sexually violent predator specification was not included in the 65
indictment, count in the indictment, or information charging the 66
sexually violent offense, the judge who is to impose sentence 67
upon the offender shall conduct a hearing to determine whether 68
the offender is a sexual predator. The judge shall conduct the 69
hearing prior to sentencing and, if the sexually oriented offense 70
is a felony, may conduct it as part of the sentencing hearing 71
required by section 2929.19 of the Revised Code. The court shall 72
give the offender and the prosecutor who prosecuted the offender 73
for the sexually oriented offense notice of the date, time, and 74
location of the hearing. At the hearing, the offender and the
prosecutor shall have an opportunity to testify, present 76
evidence, call and examine witnesses and expert witnesses, and 78
cross-examine witnesses and expert witnesses regarding the 79
determination as to whether the offender is a sexual predator.
The offender shall have the right to be represented by counsel 80
and, if indigent, the right to have counsel appointed to 81
represent the offender. 82
(2) In making a determination under divisions (B)(1) and 84
(3) of this section as to whether an offender is a sexual 85
predator, the judge shall consider all relevant factors, 86
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including, but not limited to, all of the following: 87
(a) The offender's age; 89
(b) The offender's prior criminal record regarding all 92
offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense 94
for which sentence is to be imposed; 95
(d) Whether the sexually oriented offense for which 97
sentence is to be imposed involved multiple victims; 98
(e) Whether the offender used drugs or alcohol to impair 100
the victim of the sexually oriented offense or to prevent the 101
victim from resisting; 102
(f) If the offender previously has been convicted of or 105
pleaded guilty to any criminal offense, whether the offender
completed any sentence imposed for the prior offense and, if the 106
prior offense was a sex offense or a sexually oriented offense, 107
whether the offender participated in available programs for 108
sexual offenders;
(g) Any mental illness or mental disability of the 110
offender; 111
(h) The nature of the offender's sexual conduct, sexual 114
contact, or interaction in a sexual context with the victim of
the sexually oriented offense and whether the sexual conduct, 115
sexual contact, or interaction in a sexual context was part of a 116
demonstrated pattern of abuse; 117
(i) Whether the offender, during the commission of the 120
sexually oriented offense for which sentence is to be imposed,
displayed cruelty or made one or more threats of cruelty; 121
(j) Any additional behavioral characteristics that 123
contribute to the offender's conduct. 124
(3) After reviewing all testimony and evidence presented 127
at the hearing conducted under division (B)(1) of this section 128
and the factors specified in division (B)(2) of this section, the 129
judge shall determine by clear and convincing evidence whether
the offender is a sexual predator. If the judge determines that 131
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the offender is not a sexual predator, the judge shall specify in
the offender's sentence and the judgment of conviction that 132
contains the sentence that the judge has determined that the 133
offender is not a sexual predator. If the judge determines by 134
clear and convincing evidence that the offender is a sexual 135
predator, the judge shall specify in the offender's sentence and 136
the judgment of conviction that contains the sentence that the 137
judge has determined that the offender is a sexual predator and 138
shall specify that the determination was pursuant to division (B) 140
of this section. The offender and the prosecutor who prosecuted 141
the offender for the sexually oriented offense in question may 142
appeal as a matter of right the judge's determination under this 143
division as to whether the offender is, or is not, a sexual 144
predator.
(4) A hearing shall not be conducted under division (B) of 147
this section regarding an offender if the sexually oriented
offense in question is a sexually violent offense and the 148
indictment, count in the indictment, or information charging the 149
offense also included a sexually violent predator specification. 150
(C)(1) If a person was convicted of or pleaded guilty to a 152
sexually oriented offense prior to January 1, 1997, if the person 154
was not sentenced for the offense on or after January 1, 1997, 156
and if, on or after January 1, 1997, the offender is serving a 158
term of imprisonment in a state correctional institution, prior 159
to the offender's release from the term of imprisonment, the 160
department of rehabilitation and correction shall determine 161
whether to recommend that the offender be adjudicated as being a 162
sexual predator. In making a determination under this division 163
as to whether to recommend that the offender be adjudicated as 164
being a sexual predator, the department shall consider all 165
relevant factors, including, but not limited to, all of the 166
factors specified in division (B)(2) of this section. If the 167
department determines that it will recommend that the offender be 169
adjudicated as being a sexual predator, it immediately shall send 170
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the recommendation to the court that sentenced the offender and 171
shall enter its determination and recommendation in the 172
offender's institutional record, and the court shall proceed in 173
accordance with division (C)(2) of this section. 174
(2)(a) If, pursuant to division (C)(1) of this section, 176
the department of rehabilitation and correction sends to a court 178
a recommendation that an offender who has been convicted of or 179
pleaded guilty to a sexually oriented offense be adjudicated as 180
being a sexual predator, the court is not bound by the 181
department's recommendation, and the court may conduct a hearing 182
to determine whether the offender is a sexual predator. The 183
court may deny the recommendation and determine that the offender 184
is not a sexual predator without a hearing but shall not make a 185
determination that the offender is a sexual predator in any case 186
without a hearing. THE COURT SHALL NOT MAKE A DETERMINATION THAT 187
THE OFFENDER IS A SEXUAL PREDATOR UNLESS THE COURT BOTH HOLDS THE 188
HEARING AND MAKES THE DETERMINATION PRIOR TO THE OFFENDER'S 189
RELEASE FROM IMPRISONMENT. If the court determines without a 191
hearing that the offender is not a sexual predator, it shall 192
include its determination in the offender's institutional record 193
and shall determine whether the offender previously has been 195
convicted of or pleaded guilty to a sexually oriented offense 196
other than the offense in relation to which the court determined
that the offender is not a sexual predator. 197
The court may make the determination as to whether the 199
offender previously has been convicted of or pleaded guilty to a 200
sexually oriented offense without a hearing, but, if the court 201
determines that the offender previously has been convicted of or 202
pleaded guilty to such an offense, it shall not impose a 203
requirement that the offender be subject to the community 204
notification provisions regarding the offender's place of 205
residence that are contained in sections 2950.10 and 2950.11 of 206
the Revised Code without a hearing. The court may conduct a 208
hearing to determine both whether the offender previously has 209
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been convicted of or pleaded guilty to a sexually oriented 210
offense and whether to impose a requirement that the offender be 211
subject to the community notification provisions as described in 212
this division, or may conduct a hearing solely to make the latter 213
determination. The court shall include in the offender's 214
institutional record any determination made under this division 215
as to whether the offender previously has been convicted of or 216
pleaded guilty to a sexually oriented offense, and, as such, 217
whether the offender is a habitual sex offender. 218
(b) If the court schedules a hearing under division 220
(C)(2)(a) of this section, the court shall give the offender and 222
the prosecutor who prosecuted the offender for the sexually 223
oriented offense, or that prosecutor's successor in office, 224
notice of the date, time, and place of the hearing. If the 225
hearing is to determine whether the offender is a sexual 226
predator, it shall be conducted in the manner described in 227
division (B)(1) of this section regarding hearings conducted 228
under that division and, in making a determination under this 229
division as to whether the offender is a sexual predator, the 230
court shall consider all relevant factors, including, but not 231
limited to, all of the factors specified in division (B)(2) of 232
this section. After reviewing all testimony and evidence 233
presented at the sexual predator hearing and the factors 234
specified in division (B)(2) of this section, the court shall 236
determine by clear and convincing evidence whether the offender 237
is a sexual predator. If the court determines that the offender 238
is not a sexual predator, it also shall determine whether the 239
offender previously has been convicted of or pleaded guilty to a 240
sexually oriented offense other than the offense in relation to 241
which the hearing is being conducted. 242
Upon making its determinations at the hearing, the court 244
shall proceed as follows: 245
(i) If the hearing is to determine whether the offender is 248
a sexual predator, and if the court determines that the offender 250
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is not a sexual predator and that the offender previously has not 251
been convicted of or pleaded guilty to a sexually oriented
offense other than the offense in relation to which the hearing 252
is being conducted, it shall include its determinations in the 254
offender's institutional record. 255
(ii) If the hearing is to determine whether the offender 257
is a sexual predator, and if the court determines that the 258
offender is not a sexual predator but that the offender 259
previously has been convicted of or pleaded guilty to a sexually 260
oriented offense other than the offense in relation to which the 261
hearing is being conducted, it shall include its determination 262
that the offender is not a sexual predator but is a habitual sex 263
offender in the offender's institutional record, shall attach the 264
determinations to the offender's sentence, shall specify that the 265
determinations were pursuant to division (C) of this section, 267
shall provide a copy of the determinations to the offender, to 268
the prosecuting attorney, and to the department of rehabilitation 269
and correction, and may impose a requirement that the offender be 271
subject to the community notification provisions regarding the 272
offender's place of residence that are contained in sections
2950.10 and 2950.11 of the Revised Code. The offender shall not 274
be subject to those community notification provisions relative to 276
the sexually oriented offense in question if the court does not 277
so impose the requirement described in this division. If the 278
court imposes those community notification provisions, the
offender may appeal the judge's determination that the offender 279
is a habitual sex offender. 280
(iii) If the hearing is to determine whether the offender 283
previously has been convicted of or pleaded guilty to a sexually 284
oriented offense other than the offense in relation to which the 285
hearing is being conducted and whether to impose a requirement 286
that the offender be subject to the specified community 287
notification provisions, and if the court determines that the 288
offender previously has been convicted of or pleaded guilty to 289
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such an offense, the court shall proceed as described in division 290
(C)(2)(b)(ii) of this section and may impose a community 291
notification requirement as described in that division. The 292
offender shall not be subject to the specified community 293
notification provisions relative to the sexually oriented offense 294
in question if the court does not so impose the requirement 295
described in that division. If the court imposes those community 296
notification provisions, the offender may appeal the judge's 297
determination that the offender is a habitual sex offender. 299
(iv) If the court determined without a hearing that the 302
offender previously has been convicted of or pleaded guilty to a 303
sexually oriented offense other than the offense in relation to 304
which the court determined that the offender is not a sexual 305
predator, and, as such, is a habitual sex offender, and the
hearing is solely to determine whether to impose a requirement 306
that the offender be subject to the specified community 307
notification provisions, after the hearing, the court may impose 308
a community notification requirement as described in division 309
(C)(2)(b)(ii) of this section. The offender shall not be subject 311
to the specified community notification provisions relative to 312
the sexually oriented offense in question if the court does not 313
so impose the requirement described in that division. If the 314
court imposes those community notification provisions, the 315
offender may appeal the judge's determination that the offender 316
is a habitual sex offender. 317
(v) If the hearing is to determine whether the offender is 320
a sexual predator, and if the court determines by clear and 321
convincing evidence that the offender is a sexual predator, it 322
shall enter its determination in the offender's institutional 323
record, shall attach the determination to the offender's 324
sentence, shall specify that the determination was pursuant to 325
division (C) of this section, and shall provide a copy of the 327
determination to the offender, to the prosecuting attorney, and 328
to the department of rehabilitation and correction. The offender 329
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and the prosecutor may appeal as a matter of right the judge's 330
determination under this division as to whether the offender is, 331
or is not, a sexual predator.
(D)(1) Upon the expiration of the applicable period of 333
time specified in division (D)(1)(a) or (b) of this section, an 335
offender who has been convicted of or pleaded guilty to a
sexually oriented offense and who has been adjudicated as being a 337
sexual predator relative to the sexually oriented offense in the 338
manner described in division (B) or (C) of this section may 339
petition the judge who made the determination that the offender 340
was a sexual predator, or that judge's successor in office, to 341
enter a determination that the offender no longer is a sexual
predator. Upon the filing of the petition, the judge may review 343
the prior sexual predator or determination that comprises the 344
sexual SEXUALLY violent predator adjudication, and, upon 345
consideration of all relevant evidence and information, 347
including, but not limited to, the factors set forth in division 348
(B)(2) of this section, either shall enter a determination that 349
the offender no longer is a sexual predator or shall enter an 350
order denying the petition. The court shall not enter a 351
determination under this division that the offender no longer is 352
a sexual predator unless the court determines by clear and 353
convincing evidence that the offender is unlikely to commit a 354
sexually oriented offense in the future. If the judge enters a 356
determination under this division that the offender no longer is
a sexual predator, the judge shall notify the bureau of criminal 358
identification and investigation and the parole board of the 359
determination. Upon receipt of the notification, the bureau 360
promptly shall notify the sheriff with whom the offender most 361
recently registered under section 2950.04 or 2950.05 of the 362
Revised Code of the determination that the offender no longer is 363
a sexual predator. If the judge enters an order denying the 364
petition, the prior adjudication of the offender as a sexual 366
predator shall remain in effect. An offender determined to be a
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sexual predator in the manner described in division (B) or (C) of 368
this section may file a petition under this division after the
expiration of the following periods of time: 369
(a) Regardless of when the sexually oriented offense was 371
committed, if, on or after January 1, 1997, the offender is 373
imprisoned or sentenced to a prison term or other confinement for 375
the sexually oriented offense in relation to which the 376
determination was made, the offender initially may file the 377
petition not earlier than one year prior to the offender's 378
release from the imprisonment, prison term, or other confinement 379
by discharge, parole, judicial release, or any other final 380
release. If the offender is sentenced on or after January 1, 382
1997, for the sexually oriented offense in relation to which the 383
determination is made and is not imprisoned or sentenced to a 384
prison term or other confinement for the sexually oriented 385
offense, the offender initially may file the petition upon the 386
expiration of one year after the entry of the offender's judgment 387
of conviction.
(b) After the offender's initial filing of a petition 390
under division (D)(1)(a) of this section, thereafter, an offender 391
may file a petition under this division upon the expiration of 392
five years after the court has entered an order denying the most
recent petition the offender has filed under this division. 393
(2) Except as otherwise provided in this division, 395
division (D)(1) of this section does not apply to a person who is 396
classified as a sexual predator pursuant to division (A) of this 397
section. If a person who is so classified was sentenced to a 398
prison term pursuant to division (A)(3) of section 2971.03 of the 400
Revised Code and if the sentencing court terminates the 401
offender's prison term as provided in division (D) of section 402
2971.05 of the Revised Code, the court's termination of the 403
prison term automatically shall constitute a determination by the 404
court that the offender no longer is a sexual predator. If the 405
court so terminates the offender's prison term, the court shall 406
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notify the bureau of criminal identification and investigation 407
and the parole board of the determination that the offender no 408
longer is a sexual predator. Upon receipt of the notification, 409
the bureau promptly shall notify the sheriff with whom the 410
offender most recently registered under section 2950.04 or 411
2950.05 of the Revised Code that the offender no longer is a 413
sexual predator. If an offender who is classified as a sexual 414
predator pursuant to division (A) of this section is released 415
from prison pursuant to a pardon or commutation, the
classification of the offender as a sexual predator shall remain 416
in effect after the offender's release, and the offender may file 417
one or more petitions in accordance with the procedures and time 418
limitations contained in division (D)(1) of this section for a 419
determination that the offender no longer is a sexual predator. 420
(E) If a person is convicted of or pleads guilty to 423
committing, on or after January 1, 1997, a sexually oriented 425
offense, the judge who is to impose sentence on the offender 426
shall determine, prior to sentencing, whether the offender 427
previously has been convicted of or pleaded guilty to a sexually 428
oriented offense. If the judge determines that the offender 429
previously has not been convicted of or pleaded guilty to a 430
sexually oriented offense, the judge shall specify in the 431
offender's sentence that the judge has determined that the 432
offender is not a habitual sex offender. If the judge determines 433
that the offender previously has been convicted of or pleaded 434
guilty to a sexually oriented offense, the judge shall specify in 435
the offender's sentence and the judgment of conviction that 436
contains the sentence that the judge has determined that the 437
offender is a habitual sex offender and may impose a requirement 438
in that sentence and judgment of conviction that the offender be 439
subject to the community notification provisions regarding the 440
offender's place of residence that are contained in sections 441
2950.10 and 2950.11 of the Revised Code. Unless the habitual sex 443
offender also has been adjudicated as being a sexual predator 444
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relative to the sexually oriented offense in question, the 445
offender shall not be subject to those community notification 446
provisions if the court does not impose the requirement described 447
in this division in the offender's sentence and the judgment of 448
conviction.
(F)(1) An offender classified as a sexual predator may 451
petition the court of common pleas of the county in which the 452
offender resides or temporarily is domiciled to enter a
determination that the offender is not an adjudicated sexual 454
predator in this state for purposes of the sex offender 455
registration requirements of this chapter or the community
notification provisions contained in sections 2950.10 and 2950.11 456
of the Revised Code if all of the following apply: 457
(a) The offender was convicted of or pleaded guilty to a 459
sexually oriented offense in another state or in a federal court, 460
a military court, or an Indian tribal court. 461
(b) As a result of the conviction or plea of guilty 463
described in division (F)(1)(a) of this section, the offender is 464
required under the law of the jurisdiction under which the 465
offender was convicted or pleaded guilty to register as a sex 466
offender until the offender's death and is required to verify the 467
offender's address on at least a quarterly basis each year. 468
(c) The offender was automatically classified as a sexual 470
predator under division (A) of this section in relation to the 471
conviction or guilty plea described in division (F)(1)(a) of this 473
section.
(2) The court may enter a determination that the offender 475
filing the petition described in division (F)(1) of this section 477
is not an adjudicated sexual predator in this state for purposes
of the sex offender registration requirements of this chapter or 478
the community notification provisions contained in sections 479
2950.10 and 2950.11 of the Revised Code only if the offender 480
proves by clear and convincing evidence that the requirement of 481
the other jurisdiction that the offender register as a sex 483
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offender until the offender's death and the requirement that the 484
offender verify the offender's address on at least a quarterly
basis each year is not substantially similar to a classification 485
as a sexual predator for purposes of this chapter. 486
Section 2. That existing section 2950.09 of the Revised 488
Code is hereby repealed. 489