As Reported by the Senate Judiciary Committee 1
123rd General Assembly 4
Regular Session S. B. No. 9 5
1999-2000 6
SENATOR MUMPER 8
_________________________________________________________________ 10
A B I L L
To amend sections 2929.01, 2929.12, 2929.17, 12
2929.22, and 2951.02 of the Revised Code to 13
require the court to consider as an aggravating
factor in determining the sentence of an offender 14
convicted of domestic violence, felonious 15
assault, aggravated assault, or assault the fact
that the offender committed the offense in the 16
sight or hearing of the offender's or victim's 17
child and to permit the court to order an 18
offender of that nature to undergo counseling.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 20
Section 1. That sections 2929.01, 2929.12, 2929.17, 22
2929.22, and 2951.02 of the Revised Code be amended to read as 23
follows:
Sec. 2929.01. As used in this chapter: 33
(A)(1) "Alternative residential facility" means, subject 35
to division (A)(2) of this section, any facility other than an 36
offender's home or residence in which an offender is assigned to 37
live and that satisfies all of the following criteria: 38
(a) It provides programs through which the offender may 40
seek or maintain employment or may receive education, training, 41
treatment, or habilitation. 42
(b) It has received the appropriate license or certificate 44
for any specialized education, training, treatment, habilitation, 45
or other service that it provides from the government agency that 46
is responsible for licensing or certifying that type of 47
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education, training, treatment, habilitation, or service. 48
(2) "Alternative residential facility" does not include a 51
community-based correctional facility, jail, halfway house, or 52
prison.
(B) "Bad time" means the time by which the parole board 54
administratively extends an offender's stated prison term or 55
terms pursuant to section 2967.11 of the Revised Code because the 56
parole board finds by clear and convincing evidence that the 57
offender, while serving the prison term or terms, committed an 58
act that is a criminal offense under the law of this state or the 59
United States, whether or not the offender is prosecuted for the 61
commission of that act.
(C) "Basic supervision" means a requirement that the 64
offender maintain contact with a person appointed to supervise 66
the offender in accordance with sanctions imposed by the court or 67
imposed by the parole board pursuant to section 2967.28 of the 68
Revised Code.
(D) "Cocaine," "crack cocaine," "hashish," "L.S.D.," and 70
"unit dose" have the same meanings as in section 2925.01 of the 71
Revised Code.
(E) "Community-based correctional facility" means a 74
community-based correctional facility and program or district 75
community-based correctional facility and program developed 76
pursuant to sections 2301.51 to 2301.56 of the Revised Code. 77
(F) "Community control sanction" means a sanction that is 80
not a prison term and that is described in section 2929.15, 81
2929.16, 2929.17, or 2929.18 of the Revised Code. 82
(G) "Criminally injurious conduct" means any conduct of 85
the type that is described in division (C)(1) or (2) of section 86
2743.51 of the Revised Code and that occurs on or after July 1, 87
1996, or any activity that is described in divisions (C)(3) and 88
(R) of section 2743.51 of the Revised Code and that occurs on or 89
after the effective date of this amendment MARCH 10, 1998. 91
(H) "Controlled substance," "marihuana," "schedule I," and 93
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"schedule II" have the same meanings as in section 3719.01 of the 95
Revised Code.
(I) "Curfew" means a requirement that an offender during a 98
specified period of time be at a designated place. 99
(J) "Day reporting" means a sanction pursuant to which an 102
offender is required each day to report to and leave a center or 103
other approved reporting location at specified times in order to 104
participate in work, education or training, treatment, and other 105
approved programs at the center or outside the center. 106
(K) "Deadly weapon" has the same meaning as in section 109
2923.11 of the Revised Code. 110
(L) "Drug and alcohol use monitoring" means a program 113
under which an offender agrees to submit to random chemical 114
analysis of the offender's blood, breath, or urine to determine 115
whether the offender has ingested any alcohol or other drugs. 116
(M) "Drug treatment program" means any program under which 119
a person undergoes assessment and treatment designed to reduce or 121
completely eliminate the person's physical or emotional reliance
upon alcohol, another drug, or alcohol and another drug and under 122
which the person may be required to receive assessment and 124
treatment on an outpatient basis or may be required to reside at 125
a facility other than the person's home or residence while
undergoing assessment and treatment. 126
(N) "Economic loss" means any economic detriment suffered 129
by a victim as a result of criminally injurious conduct and 130
includes any loss of income due to lost time at work because of 131
any injury caused to the victim, and any property loss, medical 132
cost, or funeral expense incurred as a result of the criminally 133
injurious conduct.
(O) "Education or training" includes study at, or in 136
conjunction with a program offered by, a university, college, or 137
technical college or vocational study and also includes the 138
completion of primary school, secondary school, and literacy 139
curriculums CURRICULA or their equivalent.
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(P) "Electronically monitored house arrest" has the same 142
meaning as in section 2929.23 of the Revised Code. 143
(Q) "Eligible offender" has the same meaning as in section 146
2929.23 of the Revised Code except as otherwise specified in 147
section 2929.20 of the Revised Code. 148
(R) "Firearm" has the same meaning as in section 2923.11 151
of the Revised Code.
(S) "Halfway house" means a facility licensed by the 154
division of parole and community services of the department of
rehabilitation and correction pursuant to section 2967.14 of the 156
Revised Code as a suitable facility for the care and treatment of 157
adult offenders.
(T) "House arrest" means a period of confinement of an 159
eligible offender that is in the eligible offender's home or in 160
other premises specified by the sentencing court or by the parole 161
board pursuant to section 2967.28 of the Revised Code, that may 162
be electronically monitored house arrest, and during which all of 163
the following apply: 164
(1) The eligible offender is required to remain in the 166
eligible offender's home or other specified premises for the 168
specified period of confinement, except for periods of time 169
during which the eligible offender is at the eligible offender's 170
place of employment or at other premises as authorized by the 172
sentencing court or by the parole board.
(2) The eligible offender is required to report 175
periodically to a person designated by the court or parole board. 176
(3) The eligible offender is subject to any other 178
restrictions and requirements that may be imposed by the 179
sentencing court or by the parole board. 180
(U) "Intensive supervision" means a requirement that an 183
offender maintain frequent contact with a person appointed by the 184
court, or by the parole board pursuant to section 2967.28 of the 185
Revised Code, to supervise the offender while the offender is 186
seeking or maintaining necessary employment and participating in 187
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training, education, and treatment programs as required in the 188
court's or parole board's order.
(V) "Jail" means a jail, workhouse, minimum security jail, 191
or other residential facility used for the confinement of alleged 192
or convicted offenders that is operated by a political 193
subdivision or a combination of political subdivisions of this 194
state.
(W) "Delinquent child" has the same meaning as in section 196
2151.02 of the Revised Code. 197
(X) "License violation report" means a report that is made 200
by a sentencing court, or by the parole board pursuant to section 201
2967.28 of the Revised Code, to the regulatory or licensing board 203
or agency that issued an offender a professional license or a 204
license or permit to do business in this state and that specifies 205
that the offender has been convicted of or pleaded guilty to an 206
offense that may violate the conditions under which the 207
offender's professional license or license or permit to do 208
business in this state was granted or an offense for which the 209
offender's professional license or license or permit to do
business in this state may be revoked or suspended. 210
(Y) "Major drug offender" means an offender who is 213
convicted of or pleads guilty to the possession of, sale of, or 214
offer to sell any drug, compound, mixture, preparation, or 215
substance that consists of or contains at least one thousand 216
grams of hashish; at least one hundred grams of crack cocaine; at 217
least one thousand grams of cocaine that is not crack cocaine; at 218
least two hundred fifty grams of heroin; at least five thousand 219
unit doses of L.S.D.; or at least one hundred times the amount of 221
any other schedule I or II controlled substance other than 222
marihuana that is necessary to commit a felony of the third 223
degree pursuant to section 2925.03, 2925.04, 2925.05, 2925.06, or 224
2925.11 of the Revised Code that is based on the possession of, 225
sale of, or offer to sell the controlled substance. 226
(Z) "Mandatory prison term" means one any of the 228
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following:
(1) Subject to division (DD)(Z)(2) of this section, the 231
term in prison that must be imposed for the offenses or
circumstances set forth in divisions (F)(1) to (9)(8) or (F)(10) 233
of section 2929.13 and division (D) of section 2929.14 of the 234
Revised Code. Except as provided in sections 2925.02, 2925.03, 236
2925.04, 2925.05, and 2925.11 of the Revised Code, unless the 237
maximum or another specific term is required under section 238
2929.14 of the Revised Code, a mandatory prison term described in 239
this division may be any prison term authorized for the level of 240
offense.
(2) The term of sixty days in prison that a sentencing 243
court is required to impose for a fourth degree felony OMVI 244
offense pursuant to division (G)(2) of section 2929.13 and 245
division (A)(4) of section 4511.99 of the Revised Code. 246
(3) The term in prison imposed pursuant to section 2971.03 248
of the Revised Code for the offenses and in the circumstances 249
described in division (F)(9) of section 2929.13 of the Revised 250
Code and that term as modified or terminated pursuant to section 252
2971.05 of the Revised Code.
(AA) "Monitored time" means a period of time during which 255
an offender continues to be under the control of the sentencing 256
court or parole board, subject to no conditions other than 257
leading a law-abiding life.
(BB) "Offender" means a person who, in this state, is 260
convicted of or pleads guilty to a felony or a misdemeanor. 261
(CC) "Prison" means a residential facility used for the 264
confinement of convicted felony offenders that is under the 265
control of the department of rehabilitation and correction but 266
does not include a violation sanction center operated under
authority of section 2967.141 of the Revised Code. 267
(DD) "Prison term" includes any of the following sanctions 269
for an offender:
(1) A stated prison term; 271
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(2) A term in a prison shortened by, or with the approval 274
of, the sentencing court pursuant to section 2929.20, 2967.26, 275
5120.031, 5120.032, or 5120.073 of the Revised Code; 276
(3) A term in prison extended by bad time imposed pursuant 279
to section 2967.11 of the Revised Code or imposed for a violation 280
of post-release control pursuant to section 2967.28 of the 281
Revised Code.
(EE) "Repeat violent offender" means a person about whom 284
both of the following apply:
(1) The person has been convicted of or has pleaded guilty 287
to, and is being sentenced for committing, for complicity in 288
committing, or for an attempt to commit, aggravated murder,
murder, involuntary manslaughter, a felony of the first degree 289
other than one set forth in Chapter 2925. of the Revised Code, a 291
felony of the first degree set forth in Chapter 2925. of the 292
Revised Code that involved an attempt to cause serious physical 293
harm to a person or that resulted in serious physical harm to a 294
person, or a felony of the second degree that involved an attempt 295
to cause serious physical harm to a person or that resulted in 297
serious physical harm to a person.
(2) Either of the following applies: 299
(a) The person previously was convicted of or pleaded 301
guilty to, and served a prison term for, any of the following: 302
(i) Aggravated murder, murder, involuntary manslaughter, 304
rape, felonious sexual penetration as it existed under section 306
2907.12 of the Revised Code as it existed prior to September 3,
1996, a felony of the first or second degree that resulted in the 307
death of a person or in physical harm to a person, or complicity 308
in or an attempt to commit any of those offenses; 309
(ii) An offense under an existing or former law of this 312
state, another state, or the United States that is or was 313
substantially equivalent to an offense listed under division 314
(EE)(2)(a)(i) of this section.
(b) The person previously was adjudicated a delinquent 316
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child for committing an act that if committed by an adult would 317
have been an offense listed in division (EE)(2)(a)(i) or (ii) of 319
this section, the person was committed to the department of youth 320
services for that delinquent act, and the juvenile court in which 321
the person was adjudicated a delinquent child made a specific 322
finding that the adjudication should be considered a conviction 324
for purposes of a determination in the future pursuant to this
chapter as to whether the person is a repeat violent offender. 325
(FF) "Sanction" means any penalty imposed upon an offender 328
who is convicted of or pleads guilty to an offense, as punishment 329
for the offense. "Sanction" includes any sanction imposed 330
pursuant to any provision of sections 2929.14 to 2929.18 of the 331
Revised Code.
(GG) "Sentence" means the sanction or combination of 334
sanctions imposed by the sentencing court on an offender who is 335
convicted of or pleads guilty to a felony.
(HH) "Stated prison term" means the prison term, mandatory 338
prison term, or combination of all prison terms and mandatory 339
prison terms imposed by the sentencing court pursuant to section 340
2929.14 or 2971.03 of the Revised Code. "Stated prison term" 341
includes any credit received by the offender for time spent in 342
jail awaiting trial, sentencing, or transfer to prison for the 343
offense and any time spent under house arrest or electronically 344
monitored house arrest imposed after earning credits pursuant to 345
section 2967.193 of the Revised Code. 346
(II) "Victim-offender mediation" means a reconciliation or 349
mediation program that involves an offender and the victim of the 350
offense committed by the offender and that includes a meeting in 351
which the offender and the victim may discuss the offense, 352
discuss restitution, and consider other sanctions for the 353
offense.
(JJ) "Fourth degree felony OMVI offense" means a violation 356
of division (A) of section 4511.19 of the Revised Code that, 358
under section 4511.99 of the Revised Code, is a felony of the 360
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fourth degree.
(KK) "Mandatory term of local incarceration" means the 363
term of sixty days in a jail, a community-based correctional 364
facility, a halfway house, or an alternative residential facility 365
that a sentencing court is required to impose upon a person who 366
is convicted of or pleads guilty to a fourth degree felony OMVI 367
offense pursuant to division (G)(1) of section 2929.13 of the 368
Revised Code and division (A)(4) of section 4511.99 of the
Revised Code. 369
(LL) "Designated homicide, assault, or kidnapping 371
offense," "sexual motivation specification," "sexually violent 372
offense," "sexually violent predator," and "sexually violent 373
predator specification" have the same meanings as in section 374
2971.01 of the Revised Code.
(MM) "Habitual sex offender," "sexually oriented offense," 377
and "sexual predator" have the same meanings as in section
2950.01 of the Revised Code. 378
(NN) AN OFFENSE IS "COMMITTED IN THE SIGHT OR HEARING OF A 380
CHILD" IF THE OFFENDER COMMITS THE OFFENSE WITHIN THE SIGHT OR 381
HEARING OF A CHILD WHO IS UNDER EIGHTEEN YEARS OF AGE, REGARDLESS 382
OF WHETHER THE OFFENDER KNOWS THE AGE OF THE CHILD AND REGARDLESS 383
OF WHETHER THE OFFENDER KNOWS THE OFFENSE IS BEING COMMITTED 384
WITHIN THE SIGHT OR HEARING OF THE CHILD.
(OO) "FAMILY OR HOUSEHOLD MEMBER" HAS THE SAME MEANING AS 386
IN SECTION 2919.25 OF THE REVISED CODE. 387
Sec. 2929.12. (A) Unless a mandatory prison term is 397
required by division (F) of section 2929.13 or section 2929.14 of 398
the Revised Code, a court that imposes a sentence under this 399
chapter upon an offender for a felony has discretion to determine 400
the most effective way to comply with the purposes and principles 401
of sentencing set forth in section 2929.11 of the Revised Code. 403
In exercising that discretion, the court shall consider the 404
factors set forth in divisions (B) and (C) of this section 405
relating to the seriousness of the conduct and the factors 406
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provided in divisions (D) and (E) of this section relating to the 407
likelihood of the offender's recidivism and, in addition, may 408
consider any other factors that are relevant to achieving those 409
purposes and principles of sentencing. 410
(B) The sentencing court shall consider all of the 413
following that apply regarding the offender, the offense, or the
victim, and any other relevant factors, as indicating that the 414
offender's conduct is more serious than conduct normally 415
constituting the offense: 416
(1) The physical or mental injury suffered by the victim 419
of the offense due to the conduct of the offender was exacerbated 420
because of the physical or mental condition or age of the victim. 421
(2) The victim of the offense suffered serious physical, 424
psychological, or economic harm as a result of the offense. 425
(3) The offender held a public office or position of trust 428
in the community, and the offense related to that office or
position. 429
(4) The offender's occupation, elected office, or 431
profession obliged the offender to prevent the offense or bring 432
others committing it to justice. 433
(5) The offender's professional reputation or occupation, 436
elected office, or profession was used to facilitate the offense 437
or is likely to influence the future conduct of others. 438
(6) The offender's relationship with the victim 440
facilitated the offense. 441
(7) The offender committed the offense for hire or as a 443
part of an organized criminal activity. 444
(8) In committing the offense, the offender was motivated 447
by prejudice based on race, ethnic background, gender, sexual
orientation, or religion. 448
(9) IF THE OFFENSE IS A VIOLATION OF SECTION 2919.25 OR A 450
VIOLATION OF SECTION 2903.11, 2903.12, OR 2903.13 OF THE REVISED 451
CODE INVOLVING A PERSON WHO WAS A FAMILY OR HOUSEHOLD MEMBER AT 452
THE TIME OF THE VIOLATION, THE OFFENDER COMMITTED THE OFFENSE IN 453
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THE SIGHT OR HEARING OF ONE OR MORE CHILDREN WHO ARE NOT VICTIMS 454
OF THE OFFENSE, AND THE OFFENDER OR THE VICTIM OF THE OFFENSE IS
A PARENT, GUARDIAN, CUSTODIAN, OR PERSON IN LOCO PARENTIS OF ONE 455
OR MORE OF THOSE CHILDREN. 456
(C) The sentencing court shall consider all of the 458
following that apply regarding the offender, the offense, or the 459
victim, and any other relevant factors, as indicating that the 460
offender's conduct is less serious than conduct normally 461
constituting the offense:
(1) The victim induced or facilitated the offense. 463
(2) In committing the offense, the offender acted under 465
strong provocation. 466
(3) In committing the offense, the offender did not cause 469
or expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the 471
offender's conduct, although the grounds are not enough to 472
constitute a defense. 473
(D) The sentencing court shall consider all of the 475
following that apply regarding the offender, and any other 476
relevant factors, as factors indicating that the offender is 478
likely to commit future crimes:
(1) At the time of committing the offense, the offender 480
was under release from confinement before trial or sentencing, 481
under a sanction imposed pursuant to section 2929.16, 2929.17, or 482
2929.18 of the Revised Code, or under post-release control 484
pursuant to section 2967.28 or any other provision of the Revised 485
Code for an earlier offense. 486
(2) The offender previously was adjudicated a delinquent 489
child pursuant to Chapter 2151. of the Revised Code, or the 490
offender has a history of criminal convictions. 491
(3) The offender has not been rehabilitated to a 493
satisfactory degree after previously being adjudicated a 494
delinquent child pursuant to Chapter 2151. of the Revised Code, 496
or the offender has not responded favorably to sanctions 497
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previously imposed for criminal convictions. 498
(4) The offender has demonstrated a pattern of drug or 500
alcohol abuse that is related to the offense, and the offender 501
refuses to acknowledge that the offender has demonstrated that 502
pattern, or the offender refuses treatment for the drug or 503
alcohol abuse.
(5) The offender shows no genuine remorse for the offense. 505
(E) The sentencing court shall consider all of the 507
following that apply regarding the offender, and any other 508
relevant factors, as factors indicating that the offender is not 509
likely to commit future crimes:
(1) Prior to committing the offense, the offender had not 511
been adjudicated a delinquent child. 512
(2) Prior to committing the offense, the offender had not 514
been convicted of or pleaded guilty to a criminal offense. 515
(3) Prior to committing the offense, the offender had led 518
a law-abiding life for a significant number of years.
(4) The offense was committed under circumstances not 521
likely to recur.
(5) The offender shows genuine remorse for the offense. 523
Sec. 2929.17. The court imposing a sentence for a felony 533
upon an offender who is not required to serve a mandatory prison 534
term may impose any nonresidential sanction or combination of 535
nonresidential sanctions authorized under this section. If the 536
court imposes one or more nonresidential sanctions authorized
under this section, the court shall comply with division 537
(C)(1)(b) of section 2951.02 of the Revised Code and impose the 538
mandatory condition described in that division. The court 539
imposing a sentence for a fourth degree felony OMVI offense upon 540
an offender who is required to serve a mandatory term of local 541
incarceration under division (G)(1) of section 2929.13 of the 542
Revised Code may impose upon the offender, in addition to the 543
mandatory term of local incarceration, a nonresidential sanction 544
or combination of nonresidential sanctions under this section,
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and the offender shall serve or satisfy the sanction or 545
combination of sanctions after the offender has served the 546
mandatory term of local incarceration required for the offense. 547
Nonresidential sanctions include, but are not limited to, the 548
following:
(A) A term of day reporting; 550
(B) A term of electronically monitored house arrest, a 552
term of electronic monitoring without house arrest, or a term of 553
house arrest without electronic monitoring; 554
(C) A term of community service of up to five hundred 556
hours pursuant to division (F) of section 2951.02 of the Revised 558
Code or, if the court determines that the offender is financially 559
incapable of fulfilling a financial sanction described in section 560
2929.18 of the Revised Code, a term of community service as an 561
alternative to a financial sanction; 562
(D) A term in a drug treatment program with a level of 564
security for the offender as determined necessary by the court; 565
(E) A term of intensive supervision; 567
(F) A term of basic supervision; 569
(G) A term of monitored time; 571
(H) A term of drug and alcohol use monitoring; 573
(I) A curfew term; 575
(J) A requirement that the offender obtain employment; 577
(K) A requirement that the offender obtain education or 580
training;
(L) Provided the court obtains the prior approval of the 582
victim, a requirement that the offender participate in 583
victim-offender mediation; 584
(M) A license violation report; 586
(N) IF THE OFFENSE IS A VIOLATION OF SECTION 2919.25 OR A 588
VIOLATION OF SECTION 2903.11, 2903.12, OR 2903.13 OF THE REVISED 589
CODE INVOLVING A PERSON WHO WAS A FAMILY OR HOUSEHOLD MEMBER AT 590
THE TIME OF THE VIOLATION, IF THE OFFENDER COMMITTED THE OFFENSE 591
IN THE SIGHT OR HEARING OF ONE OR MORE CHILDREN WHO ARE NOT 592
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VICTIMS OF THE OFFENSE, AND IF THE OFFENDER OR THE VICTIM OF THE 593
OFFENSE IS A PARENT, GUARDIAN, CUSTODIAN, OR PERSON IN LOCO 594
PARENTIS OF ONE OR MORE OF THOSE CHILDREN, A REQUIREMENT THAT THE 595
OFFENDER OBTAIN COUNSELING. THIS DIVISION DOES NOT LIMIT THE 596
COURT IN REQUIRING THE OFFENDER TO OBTAIN COUNSELING FOR ANY 597
OFFENSE OR IN ANY CIRCUMSTANCE NOT SPECIFIED IN THIS DIVISION. 598
Sec. 2929.22. (A) In determining whether to impose 607
imprisonment or a fine, or both, for a misdemeanor, and in 608
determining the term of imprisonment and the amount and method of 609
payment of a fine for a misdemeanor, the court shall consider the 610
risk that the offender will commit another offense and the need 612
for protecting the public from the risk; the nature and 613
circumstances of the offense; the history, character, and 614
condition of the offender and the offender's need for 615
correctional or rehabilitative treatment; any statement made by 617
the victim under sections 2930.12 to 2930.17 of the Revised Code,
if the offense is a misdemeanor specified in division (A) of 618
section 2930.01 of the Revised Code; and the ability and 620
resources of the offender and the nature of the burden that 621
payment of a fine will impose on the offender.
(B)(1) The following do not control the court's 623
discretion, but shall be considered in favor of imposing 624
imprisonment for a misdemeanor: 625
(1)(a) The offender is a repeat or dangerous offender;. 628
(2)(b) Regardless of whether or not the offender knew the 630
age of the victim, the victim of the offense was sixty-five years 631
of age or older, permanently and totally disabled, or less than 632
eighteen years of age at the time of the commission of the 633
offense. 634
(c) THE OFFENSE IS A VIOLATION OF SECTION 2919.25 OR A 636
VIOLATION OF SECTION 2903.13 OF THE REVISED CODE INVOLVING A 637
PERSON WHO WAS A FAMILY OR HOUSEHOLD MEMBER AT THE TIME OF THE 638
VIOLATION, THE OFFENDER COMMITTED THE OFFENSE IN THE SIGHT OR 640
HEARING OF ONE OR MORE CHILDREN WHO ARE NOT VICTIMS OF THE 641
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OFFENSE, AND THE OFFENDER OR THE VICTIM OF THE OFFENSE IS A
PARENT, GUARDIAN, CUSTODIAN, OR PERSON IN LOCO PARENTIS OF ONE OR 642
MORE OF THOSE CHILDREN. 643
(2) IF THE OFFENSE IS A VIOLATION OF SECTION 2919.25 OR A 645
VIOLATION OF SECTION 2903.13 OF THE REVISED CODE INVOLVING A 646
PERSON WHO WAS A FAMILY OR HOUSEHOLD MEMBER AT THE TIME OF THE 647
VIOLATION AND THE COURT DECIDES TO IMPOSE A TERM OF IMPRISONMENT 648
UPON THE OFFENDER, THE FACTOR LISTED IN DIVISION (B)(1)(c) OF 649
THIS SECTION SHALL BE CONSIDERED IN FAVOR OF IMPOSING A LONGER 650
TERM OF IMPRISONMENT ON THE OFFENDER.
(C) The criteria listed in divisions (C) and (E) of 653
section 2929.12 of the Revised Code that mitigate the seriousness 654
of the offense and that indicate that the offender is unlikely to 655
commit future crimes do not control the court's discretion but 656
shall be considered against imposing imprisonment for a 657
misdemeanor.
(D) The criteria listed in division (B) and referred to in 660
division (C) of this section shall not be construed to limit the 661
matters that may be considered in determining whether to impose 662
imprisonment for a misdemeanor. 663
(E) The court shall not impose a fine in addition to 665
imprisonment for a misdemeanor unless a fine is specially adapted 667
to deterrence of the offense or the correction of the offender, 668
the offense has proximately resulted in physical harm to the 669
person or property of another, or the offense was committed for 670
hire or for purpose of gain.
(F) The court shall not impose a fine or fines that, in 673
the aggregate and to the extent not suspended by the court,
exceed the amount that the offender is or will be able to pay by 675
the method and within the time allowed without undue hardship to 676
the offender or the offender's dependents, or will prevent the 677
offender from making restitution or reparation to the victim of 678
the offender's offense. 679
(G) At the time of sentencing or as soon as possible after 681
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sentencing, the court shall notify the victim of the offense of 682
the victim's right to file an application for an award of 683
reparations pursuant to sections 2743.51 to 2743.72 of the 684
Revised Code.
(H) As used in this section, "repeat offender" and 686
"dangerous offender" have the same meanings as in section 2935.36 687
of the Revised Code. 688
Sec. 2951.02. (A)(1) In determining whether to suspend a 698
sentence of imprisonment imposed upon an offender for a
misdemeanor and place the offender on probation or whether to 700
otherwise suspend a sentence of imprisonment imposed upon an
offender for a misdemeanor pursuant to division (A) of section 701
2929.51 of the Revised Code, the court shall consider the risk 702
that the offender will commit another offense and the need for 703
protecting the public from the risk, the nature and circumstances 704
of the offense, and the history, character, and condition of the 705
offender. 706
(2) An offender who has been convicted of or pleaded 708
guilty to a misdemeanor shall not be placed on probation and 709
shall not otherwise have the sentence of imprisonment imposed 710
upon the offender suspended pursuant to division (A) of section 712
2929.51 of the Revised Code if any of the following applies: 714
(a) The offender is a repeat or dangerous offender, as 717
defined in section 2935.36 of the Revised Code. 718
(b) The misdemeanor offense involved was not a violation 721
of section 2923.12 of the Revised Code and was committed while 722
the offender was armed with a firearm or dangerous ordnance, as 723
defined in section 2923.11 of the Revised Code. 725
(c) Under division (C) of section 2903.07 of the Revised 727
Code, the offender is not eligible for probation. 728
(B) The following do not control the court's discretion 730
but the court shall consider them in favor of placing an offender 731
who has been convicted of or pleaded guilty to a misdemeanor on 732
probation or in favor of otherwise suspending the offender's 733
17
sentence of imprisonment pursuant to division (A) of section 734
2929.51 of the Revised Code: 735
(1) The offense neither caused nor threatened serious harm 737
to persons or property, or the offender did not contemplate that 738
it would do so. 739
(2) The offense was the result of circumstances unlikely 741
to recur. 742
(3) The victim of the offense induced or facilitated it. 744
(4) There are substantial grounds tending to excuse or 746
justify the offense, though failing to establish a defense. 747
(5) The offender acted under strong provocation. 749
(6) The offender has no history of prior delinquency or 751
criminal activity, or has led a law-abiding life for a 752
substantial period before commission of the present offense. 753
(7) The offender is likely to respond affirmatively to 755
probationary or other court-imposed treatment. 756
(8) The character and attitudes of the offender indicate 758
that the offender is unlikely to commit another offense. 759
(9) The offender has made or will make restitution or 761
reparation to the victim of the offender's offense for the 762
injury, damage, or loss sustained. 763
(10) Imprisonment of the offender will entail undue 765
hardship to the offender or the offender's dependents. 766
(C)(1)(a) When an offender who has been convicted of or 768
pleaded guilty to a misdemeanor is placed on probation or the 770
sentence of that type of offender otherwise is suspended pursuant 771
to division (A) of section 2929.51 of the Revised Code, the 773
probation or other suspension shall be at least on condition 774
that, during the period of probation or other suspension, the 775
offender shall abide by the law, including, but not limited to, 776
complying with the provisions of Chapter 2923. of the Revised 777
Code relating to the possession, sale, furnishing, transfer, 778
disposition, purchase, acquisition, carrying, conveying, or use 779
of, or other conduct involving, a firearm or dangerous ordnance,
18
as defined in section 2923.11 of the Revised Code, and shall not 780
leave the state without the permission of the court or the 783
offender's probation officer. In the interests of doing justice,
rehabilitating the offender, and ensuring the offender's good 784
behavior, the court may impose additional requirements on the 785
offender, including, but not limited to, requiring. COMPLIANCE 786
WITH THE ADDITIONAL REQUIREMENTS IMPOSED UNDER THIS DIVISION ALSO 787
SHALL BE A CONDITION OF THE OFFENDER'S PROBATION OR OTHER 788
SUSPENSION. THE ADDITIONAL REQUIREMENTS SO IMPOSED MAY INCLUDE, 789
BUT SHALL NOT BE LIMITED TO, ANY OF THE FOLLOWING:
(i) A REQUIREMENT THAT the offender to make restitution 792
pursuant to section 2929.21 of the Revised Code for all or part
of the property damage that is caused by the offender's offense 794
and for all or part of the value of the property that is the 795
subject of any theft offense, as defined in division (K) of 796
section 2913.01 of the Revised Code, that the offender committed.
Compliance with the additional requirements also shall be a 797
condition of the offender's probation or other suspension; 798
(ii) IF THE OFFENSE IS A VIOLATION OF SECTION 2919.25 OR A 800
VIOLATION OF SECTION 2903.13 OF THE REVISED CODE INVOLVING A 801
PERSON WHO WAS A FAMILY OR HOUSEHOLD MEMBER AT THE TIME OF THE 802
VIOLATION, IF THE OFFENDER COMMITTED THE OFFENSE IN THE SIGHT OR 803
HEARING OF ONE OR MORE CHILDREN WHO ARE NOT VICTIMS OF THE 804
OFFENSE, AND IF THE OFFENDER OR THE VICTIM OF THE OFFENSE IS A
PARENT, GUARDIAN, CUSTODIAN, OR PERSON IN LOCO PARENTIS OF ONE OR 805
MORE OF THOSE CHILDREN, A REQUIREMENT THAT THE OFFENDER OBTAIN 806
COUNSELING. THIS DIVISION DOES NOT LIMIT THE COURT IN IMPOSING A 807
REQUIREMENT THAT THE OFFENDER OBTAIN COUNSELING FOR ANY OFFENSE 808
OR IN ANY CIRCUMSTANCE NOT SPECIFIED IN THIS DIVISION. 809
(b) When an offender who has been convicted of or pleaded 811
guilty to a felony is sentenced to a nonresidential sanction 812
pursuant to section 2929.17 of the Revised Code, the court shall 814
impose as a condition of the sanction that, during the period of 815
the nonresidential sanction, the offender shall abide by the law, 816
19
including, but not limited to, complying with the provisions of 817
Chapter 2923. of the Revised Code identified in division 819
(C)(1)(a) of this section. 820
(2) During the period of a misdemeanor offender's 822
probation or other suspension or during the period of a felon's 823
nonresidential sanction, authorized probation officers who are 825
engaged within the scope of their supervisory duties or 826
responsibilities may search, with or without a warrant, the 827
person of the offender, the place of residence of the offender,
and a motor vehicle, another item of tangible or intangible 828
personal property, or other real property in which the offender 829
has a right, title, or interest or for which the offender has the 830
express or implied permission of a person with a right, title, or 832
interest to use, occupy, or possess if the probation officers
have reasonable grounds to believe that the offender is not 833
abiding by the law or otherwise is not complying with the 834
conditions of the offender's probation or other suspension or the 836
conditions of the offender's nonresidential sanction. If a felon 837
who is sentenced to a nonresidential sanction is under the
general control and supervision of the adult parole authority, as 838
described in division (A)(2)(a) of section 2929.15 of the Revised 839
Code, adult parole authority field officers with supervisory 840
responsibilities over the felon shall have the same search 841
authority relative to the felon during the period of the sanction 842
as is described under this division for probation officers. The 843
court that places the offender on probation or suspends the 845
misdemeanor offender's sentence of imprisonment pursuant to
division (D)(2) or (4) of section 2929.51 of the Revised Code or 847
that sentences the felon to a nonresidential sanction pursuant to 848
section 2929.17 of the Revised Code shall provide the offender 849
with a written notice that informs the offender that authorized 850
probation officers or adult parole authority field officers with 851
supervisory responsibilities over the offender who are engaged 852
within the scope of their supervisory duties or responsibilities 853
20
may conduct those types of searches during the period of 855
probation or other suspension or during the period of the 856
nonresidential sanction if they have reasonable grounds to 857
believe that the offender is not abiding by the law or otherwise 858
is not complying with the conditions of the offender's probation
or other suspension or the conditions of the offender's 859
nonresidential sanction. 860
(D) The following do not control the court's discretion 862
but the court shall consider them against placing an offender who 863
has been convicted of or pleaded guilty to a misdemeanor on 864
probation and against otherwise suspending the offender's 865
sentence of imprisonment pursuant to division (A) of section 866
2929.51 of the Revised Code:
(1) The offender recently violated the conditions of 868
pardon, post-release control pursuant to section 2967.28 of the 870
Revised Code, or a probation or suspension pursuant to division 872
(A) of section 2929.51 of the Revised Code, previously granted 873
the offender.
(2) There is a substantial risk that, while at liberty 875
during the period of probation or other suspension, the offender 876
will commit another offense. 877
(3) The offender is in need of correctional or 879
rehabilitative treatment that can be provided best by the 880
offender's commitment to a locally governed and operated 881
residential facility.
(4) Regardless of whether the offender knew the age of the 883
victim, the victim of the offense was sixty-five years of age or 884
older or permanently and totally disabled at the time of the 885
commission of the offense. 886
(E) The criteria listed in divisions (B) and (D) of this 888
section shall not be construed to limit the matters that may be 889
considered in determining whether to suspend sentence of 890
imprisonment and place an offender who has been convicted of or 891
pleaded guilty to a misdemeanor on probation or whether to 892
21
otherwise suspend the offender's sentence of imprisonment 893
pursuant to division (A) of section 2929.51 of the Revised Code. 895
(F)(1) When an offender is convicted of or pleads guilty 899
to a misdemeanor, the court may require the offender, as a 900
condition of probation or as a condition of otherwise suspending 901
the offender's sentence pursuant to division (A) of section 902
2929.51 of the Revised Code, in addition to the conditions of 903
probation or other suspension imposed pursuant to division (C) of 904
this section, to perform supervised community service work under 905
the authority of health districts, park districts, counties, 906
municipal corporations, townships, other political subdivisions 907
of the state, or agencies of the state or any of its political 908
subdivisions, or under the authority of charitable organizations 909
that render services to the community or its citizens, in 910
accordance with this division. Supervised community service work 911
shall not be required as a condition of probation or other 912
suspension under this division unless the offender agrees to 913
perform the work offered as a condition of probation or other 914
suspension by the court. The court may require an offender who 915
agrees to perform the work to pay to it a reasonable fee to cover 916
the costs of the offender's participation in the work, including, 917
but not limited to, the costs of procuring a policy or policies 918
of liability insurance to cover the period during which the 919
offender will perform the work.
A court may permit any offender convicted of a misdemeanor 921
to satisfy the payment of a fine imposed for the offense by 922
performing supervised community service work as described in this 923
division if the offender requests an opportunity to satisfy the 924
payment by this means and if the court determines the offender is 925
financially unable to pay the fine. 926
The supervised community service work that may be imposed 928
under this division shall be subject to the following 929
limitations: 930
(a) The court shall fix the period of the work and, if 932
22
necessary, shall distribute it over weekends or over other 933
appropriate times that will allow the offender to continue at the 934
offender's occupation or to care for the offender's family. The 935
period of the work as fixed by the court shall not exceed an 936
aggregate of two hundred hours. 937
(b) An agency, political subdivision, or charitable 939
organization must agree to accept the offender for the work 940
before the court requires the offender to perform the work for 941
the entity. A court shall not require an offender to perform 942
supervised community service work for an agency, political 943
subdivision, or charitable organization at a location that is an 944
unreasonable distance from the offender's residence or domicile, 945
unless the offender is provided with transportation to the 946
location where the work is to be performed. 947
(c) A court may enter into an agreement with a county 949
department of human services for the management, placement, and 950
supervision of offenders eligible for community service work in 951
work activities, developmental activities, and alternative work 954
activities under sections 5107.40 to 5107.69 of the Revised Code. 956
If a court and a county department of human services have entered 957
into an agreement of that nature, the clerk of that court is 958
authorized to pay directly to the department of human services 959
all or a portion of the fees collected by the court pursuant to 960
this division in accordance with the terms of its agreement. 961
(d) Community service work that a court requires under 963
this division shall be supervised by an official of the agency, 964
political subdivision, or charitable organization for which the 965
work is performed or by a person designated by the agency, 966
political subdivision, or charitable organization. The official 967
or designated person shall be qualified for the supervision by 968
education, training, or experience, and periodically shall 969
report, in writing, to the court and to the offender's probation 970
officer concerning the conduct of the offender in performing the 971
work. 972
23
(2) When an offender is convicted of a felony, the court 974
may impose pursuant to sections 2929.15 and 2929.17 of the 975
Revised Code a sanction that requires the offender to perform 976
supervised community service work in accordance with this 977
division and under the authority of any agency, political 978
subdivision, or charitable organization as described in division 979
(F)(1) of this section. The court may require an offender who is 980
ordered to perform the work to pay to it a reasonable fee to 981
cover the costs of the offender's participation in the work, 982
including, but not limited to, the costs of procuring a policy or 983
policies of liability insurance to cover the period during which 984
the offender will perform the work. 985
A court may permit an offender convicted of a felony to 987
satisfy the payment of a fine imposed for the offense pursuant to 988
section 2929.18 of the Revised Code by performing supervised 989
community service work as described in this division if the court 991
determines that the offender is financially unable to pay the 992
fine.
The supervised community service work that may be imposed 994
under this division shall be subject to the limitations specified 995
in divisions (F)(1)(a) to (d) of this section, except that the 996
court is not required to obtain the agreement of the offender to 997
impose supervised community work as a sanction. Additionally, 998
the total of any period of supervised community service work 999
imposed on an offender under this division plus the period of all 1,000
other sanctions imposed pursuant to sections 2929.15, 2929.16, 1,001
2929.17, and 2929.18 of the Revised Code shall not exceed five
years.
(G)(1) When an offender is convicted of a violation of 1,003
section 4511.19 of the Revised Code, a municipal ordinance 1,004
relating to operating a vehicle while under the influence of 1,005
alcohol, a drug of abuse, or alcohol and a drug of abuse, or a 1,006
municipal ordinance relating to operating a vehicle with a 1,007
prohibited concentration of alcohol in the blood, breath, or 1,008
24
urine or of a misdemeanor violation of section 2903.07 of the 1,009
Revised Code or an equivalent violation of a municipal ordinance 1,011
that is substantially similar to section 2903.07 of the Revised 1,013
Code and that provides for that type of finding by a jury or 1,014
judge in a case in which the jury or judge found that the 1,015
offender was under the influence of alcohol at the time of the 1,016
commission of the offense, the court may require, as a condition 1,017
of probation in addition to the required conditions of probation 1,018
and the discretionary conditions of probation that may be imposed 1,019
pursuant to division (C) of this section, any suspension or 1,020
revocation of a driver's or commercial driver's license or permit 1,021
or nonresident operating privilege, and all other penalties 1,022
provided by law or by ordinance, that the offender operate only a 1,023
motor vehicle equipped with an ignition interlock device that is 1,024
certified pursuant to section 4511.83 of the Revised Code. 1,025
(2) When a court requires an offender, as a condition of 1,027
probation pursuant to division (G)(1) of this section, to operate 1,028
only a motor vehicle equipped with an ignition interlock device 1,029
that is certified pursuant to section 4511.83 of the Revised 1,030
Code, the offender immediately shall surrender the offender's 1,031
driver's or commercial driver's license or permit to the court. 1,032
Upon the receipt of the offender's license or permit, the court 1,033
shall issue an order authorizing the offender to operate a motor 1,034
vehicle equipped with a certified ignition interlock device, 1,035
deliver the offender's license or permit to the bureau of motor 1,036
vehicles, and include in the abstract of the case forwarded to 1,037
the bureau pursuant to section 4507.021 of the Revised Code the 1,038
conditions of probation imposed pursuant to division (G)(1) of 1,039
this section. The court shall give the offender a copy of its 1,040
order, and that copy shall be used by the offender in lieu of a 1,041
driver's or commercial driver's license or permit until the 1,042
bureau issues a restricted license to the offender. 1,043
(3) Upon receipt of an offender's driver's or commercial 1,045
driver's license or permit pursuant to division (G)(2) of this 1,046
25
section, the bureau of motor vehicles shall issue a restricted 1,047
license to the offender. The restricted license shall be 1,048
identical to the surrendered license, except that it shall have 1,049
printed on its face a statement that the offender is prohibited 1,050
from operating a motor vehicle that is not equipped with an 1,051
ignition interlock device that is certified pursuant to section 1,052
4511.83 of the Revised Code. The bureau shall deliver the 1,053
offender's surrendered license or permit to the court upon 1,054
receipt of a court order requiring it to do so, or reissue the 1,055
offender's license or permit under section 4507.54 of the Revised 1,056
Code if the registrar destroyed the offender's license or permit 1,057
under that section. The offender shall surrender the restricted 1,058
license to the court upon receipt of the offender's surrendered 1,059
license or permit. 1,060
(4) If an offender violates a requirement of the court 1,062
imposed under division (G)(1) of this section, the offender's 1,063
driver's or commercial driver's license or permit or nonresident 1,064
operating privilege may be suspended as provided in section 1,065
4507.16 of the Revised Code. 1,066
(5) As used in this division, "ignition interlock device" 1,068
has the same meaning as in section 4511.83 of the Revised Code. 1,069
Section 2. That existing sections 2929.01, 2929.12, 1,071
2929.17, 2929.22, and 2951.02 of the Revised Code are hereby 1,072
repealed.
Section 3. Section 2929.01 of the Revised Code was amended 1,074
by both H. B. 378 and Am. Sub. S.B. 111 of the 122nd General 1,075
Assembly. Comparison of these amendments in pursuance of section 1,076
1.52 of the Revised Code discloses that while certain of the 1,077
amendments of these acts are reconcilable, certain other of the 1,078
amendments are substantively irreconcilable. H.B. 378 was passed 1,079
on November 13, 1997; Am. Sub. S.B. 111 was passed on November 1,080
18, 1997. Section 2929.01 of the Revised Code is therefore 1,081
presented in this act as it results from Am. Sub. S.B. 111 and 1,082
such of the amendments of H.B. 378 as are not in conflict with 1,083
26
the amendments of Am. Sub. S.B. 111. This is in recognition of 1,084
the principles stated in division (B) of section 1.52 of the
Revised Code that amendments are to be harmonized where not 1,085
substantively irreconcilable, and that where amendments are 1,086
substantively irreconcilable, the latest amendment is to prevail. 1,087
This section constitutes a legislative finding that such 1,088
harmonized and reconciled section was the resulting version in 1,089
effect prior to the effective date of this act.
Section 4. Section 2929.17 of the Revised Code is 1,091
presented in this act as a composite of the section as amended by 1,092
both Am. Sub. S.B. 166 and Am. Sub. S.B. 269 of the 121st General 1,093
Assembly, with the new language of neither of the acts shown in 1,094
capital letters. This is in recognition of the principle stated 1,095
in division (B) of section 1.52 of the Revised Code that such 1,096
amendments are to be harmonized where not substantively 1,097
irreconcilable and constitutes a legislative finding that such is 1,098
the resulting version in effect prior to the effective date of
this act.