Sec. 2950.09. (A) If a person is convicted of or pleads | 8 |
guilty to committing, on or after January 1, 1997, a sexually | 9 |
oriented offense that is a sexually violent offense and also is | 10 |
convicted of or pleads guilty to a sexually violent predator | 11 |
specification that was included in the indictment, count in the | 12 |
indictment, or information charging the sexually violent offense, | 13 |
the conviction of or plea of guilty to the specification | 14 |
automatically classifies the offender as a sexual predator for | 15 |
purposes of this chapter. If a person is convicted of or pleads | 16 |
guilty to a sexually oriented offense in another state, or in a | 17 |
federal court, military court, or an Indian tribal court and if, | 18 |
as a result of that conviction or plea of guilty, the person is | 19 |
required, under the law of the jurisdiction in which the person | 20 |
was convicted or pleaded guilty, to register as a sex offender | 21 |
until the person's death and is required to verify the person's | 22 |
address on at least a quarterly basis each year, that conviction | 23 |
or plea of guilty automatically classifies the offender as a | 24 |
sexual predator for the purposes of this chapter, but the offender | 25 |
may challenge that classification pursuant to division (F) of this | 26 |
section. In all other cases, a person who is convicted of or | 27 |
pleads guilty to, or has been convicted of or pleaded guilty to, a | 28 |
sexually oriented offense may be classified as a sexual predator | 29 |
for purposes of this chapter only in accordance with division (B) | 30 |
or (C) of this section. | 31 |
(B)(1) Regardless of when the sexually oriented offense was | 32 |
committed, if a person is to be sentenced on or after January 1, | 33 |
1997, for a sexually oriented offense that is not a sexually | 34 |
violent offense,
or if a person is to be sentenced on or after | 35 |
January 1, 1997, for a sexually oriented offense that is a | 36 |
sexually violent offense and a sexually violent predator | 37 |
specification was not included in the indictment, count in the | 38 |
indictment, or information charging the sexually violent offense, | 39 |
or if a person is to be sentenced on or after the effective date | 40 |
of this amendment for a sexually oriented offense and that person | 41 |
was acquitted of a sexually violent predator specification that | 42 |
was included in the indictment, count in the indictment, or | 43 |
information charging the sexually oriented offense,
the judge who | 44 |
is to impose sentence upon the offender shall
conduct a hearing to | 45 |
determine whether the offender is a sexual
predator. The judge | 46 |
shall conduct the hearing prior to sentencing
and, if the sexually | 47 |
oriented offense is a felony, may conduct it
as part of the | 48 |
sentencing hearing required by section 2929.19 of
the Revised | 49 |
Code. The court shall give the offender and the
prosecutor who | 50 |
prosecuted the offender for the sexually oriented
offense notice | 51 |
of the date, time, and location of the hearing. At
the hearing, | 52 |
the offender and the prosecutor shall have an
opportunity to | 53 |
testify, present evidence, call and examine
witnesses and expert | 54 |
witnesses, and cross-examine witnesses and
expert witnesses | 55 |
regarding the determination as to whether the
offender is a sexual | 56 |
predator. The offender shall have the right
to be represented by | 57 |
counsel and, if indigent, the right to have
counsel appointed to | 58 |
represent the offender. | 59 |
(3) After reviewing all testimony and evidence presented at | 91 |
the hearing conducted under division (B)(1) of this section and | 92 |
the factors specified in division (B)(2) of this section, the | 93 |
judge shall determine by clear and convincing evidence whether the | 94 |
offender is a sexual predator. If the judge determines that the | 95 |
offender is not a sexual predator, the judge shall specify in the | 96 |
offender's sentence and the judgment of conviction that contains | 97 |
the sentence that the judge has determined that the offender is | 98 |
not a sexual predator. If the judge determines by clear and | 99 |
convincing evidence that the offender is a sexual predator, the | 100 |
judge shall specify in the offender's sentence and the judgment of | 101 |
conviction that contains the sentence that the judge has | 102 |
determined that the offender is a sexual predator and shall | 103 |
specify that the determination was pursuant to division (B) of | 104 |
this section. The offender and the prosecutor who prosecuted the | 105 |
offender for the sexually oriented offense in question may appeal | 106 |
as a matter of right the judge's determination under this division | 107 |
as to whether the offender is, or is not, a sexual predator. | 108 |
(C)(1) If a person was convicted of or pleaded guilty to a | 116 |
sexually oriented offense prior to January 1, 1997, if the person | 117 |
was not sentenced for the offense on or after January 1, 1997, and | 118 |
if, on or after January 1, 1997, the offender is serving a term of | 119 |
imprisonment in a state correctional institution, the department | 120 |
of rehabilitation and correction shall determine whether to | 121 |
recommend that the offender be adjudicated as being a sexual | 122 |
predator. In making a determination under this division as to | 123 |
whether to recommend that the offender be adjudicated as being a | 124 |
sexual predator, the department shall consider all relevant | 125 |
factors, including, but not limited to, all of the factors | 126 |
specified in division (B)(2) of this section. If the department | 127 |
determines that it will recommend that the offender be adjudicated | 128 |
as being a sexual predator, it immediately shall send the | 129 |
recommendation to the court that sentenced the offender and shall | 130 |
enter its determination and recommendation in the offender's | 131 |
institutional record, and the court shall proceed in accordance | 132 |
with division (C)(2) of this section. | 133 |
(2)(a) If, pursuant to division (C)(1) of this section, the | 134 |
department of rehabilitation and correction sends to a court a | 135 |
recommendation that an offender who has been convicted of or | 136 |
pleaded guilty to a sexually oriented offense be adjudicated as | 137 |
being a sexual predator, the court is not bound by the | 138 |
department's recommendation, and the court may conduct a hearing | 139 |
to determine whether the offender is a sexual predator. The court | 140 |
may deny the recommendation and determine that the offender is not | 141 |
a sexual predator without a hearing but shall not make a | 142 |
determination that the offender is a sexual predator in any case | 143 |
without a hearing. The court may hold the hearing and make the | 144 |
determination prior to the offender's release from imprisonment or | 145 |
at any time within one year following the offender's release from | 146 |
that imprisonment. If the court determines without a hearing that | 147 |
the offender is not a sexual predator, it shall include its | 148 |
determination in the offender's institutional record and shall | 149 |
determine whether the offender previously has been convicted of or | 150 |
pleaded guilty to a sexually oriented offense other than the | 151 |
offense in relation to which the court determined that the | 152 |
offender is not a sexual predator. | 153 |
The court may make the determination as to whether the | 154 |
offender previously has been convicted of or pleaded guilty to a | 155 |
sexually oriented offense without a hearing, but, if the court | 156 |
determines that the offender previously has been convicted of or | 157 |
pleaded guilty to such an offense, it shall not impose a | 158 |
requirement that the offender be subject to the community | 159 |
notification provisions regarding the offender's place of | 160 |
residence that are contained in sections 2950.10 and 2950.11 of | 161 |
the Revised Code without a hearing. The court may conduct a | 162 |
hearing to determine both whether the offender previously has been | 163 |
convicted of or pleaded guilty to a sexually oriented offense and | 164 |
whether to impose a requirement that the offender be subject to | 165 |
the community notification provisions as described in this | 166 |
division, or may conduct a hearing solely to make the latter | 167 |
determination. The court shall include in the offender's | 168 |
institutional record any determination made under this division as | 169 |
to whether the offender previously has been convicted of or | 170 |
pleaded guilty to a sexually oriented offense, and, as such, | 171 |
whether the offender is a habitual sex offender. | 172 |
(b) If the court schedules a hearing under division | 173 |
(C)(2)(a) of this section, the court shall give the offender and | 174 |
the prosecutor who prosecuted the offender for the sexually | 175 |
oriented offense, or that prosecutor's successor in office, notice | 176 |
of the date, time, and place of the hearing. If the hearing is to | 177 |
determine whether the offender is a sexual predator, it shall be | 178 |
conducted in the manner described in division (B)(1) of this | 179 |
section regarding hearings conducted under that division and, in | 180 |
making a determination under this division as to whether the | 181 |
offender is a sexual predator, the court shall consider all | 182 |
relevant factors, including, but not limited to, all of the | 183 |
factors specified in division (B)(2) of this section. After | 184 |
reviewing all testimony and evidence presented at the sexual | 185 |
predator hearing and the factors specified in division (B)(2) of | 186 |
this section, the court shall determine by clear and convincing | 187 |
evidence whether the offender is a sexual predator. If the court | 188 |
determines that the offender is not a sexual predator, it also | 189 |
shall determine whether the offender previously has been convicted | 190 |
of or pleaded guilty to a sexually oriented offense other than the | 191 |
offense in relation to which the hearing is being conducted. | 192 |
(ii) If the hearing is to determine whether the offender is | 202 |
a sexual predator, and if the court determines that the offender | 203 |
is not a sexual predator but that the offender previously has been | 204 |
convicted of or pleaded guilty to a sexually oriented offense | 205 |
other than the offense in relation to which the hearing is being | 206 |
conducted, it shall include its determination that the offender is | 207 |
not a sexual predator but is a habitual sex offender in the | 208 |
offender's institutional record, shall attach the determinations | 209 |
to the offender's sentence, shall specify that the determinations | 210 |
were pursuant to division (C) of this section, shall provide a | 211 |
copy of the determinations to the offender, to the prosecuting | 212 |
attorney, and to the department of rehabilitation and correction, | 213 |
and may impose a requirement that the offender be subject to the | 214 |
community notification provisions regarding the offender's place | 215 |
of residence that are contained in sections 2950.10 and 2950.11 of | 216 |
the Revised Code. The offender shall not be subject to those | 217 |
community notification provisions relative to the sexually | 218 |
oriented offense in question if the court does not so impose the | 219 |
requirement described in this division. If the court imposes | 220 |
those community notification provisions, the offender may appeal | 221 |
the judge's determination that the offender is a habitual sex | 222 |
offender. | 223 |
(iii) If the hearing is to determine whether the offender | 224 |
previously has been convicted of or pleaded guilty to a sexually | 225 |
oriented offense other than the offense in relation to which the | 226 |
hearing is being conducted and whether to impose a requirement | 227 |
that the offender be subject to the specified community | 228 |
notification provisions, and if the court determines that the | 229 |
offender previously has been convicted of or pleaded guilty to | 230 |
such an offense, the court shall proceed as described in division | 231 |
(C)(2)(b)(ii) of this section and may impose a community | 232 |
notification requirement as described in that division. The | 233 |
offender shall not be subject to the specified community | 234 |
notification provisions relative to the sexually oriented offense | 235 |
in question if the court does not so impose the requirement | 236 |
described in that division. If the court imposes those community | 237 |
notification provisions, the offender may appeal the judge's | 238 |
determination that the offender is a habitual sex offender. | 239 |
(iv) If the court determined without a hearing that the | 240 |
offender previously has been convicted of or pleaded guilty to a | 241 |
sexually oriented offense other than the offense in relation to | 242 |
which the court determined that the offender is not a sexual | 243 |
predator, and, as such, is a habitual sex offender, and the | 244 |
hearing is solely to determine whether to impose a requirement | 245 |
that the offender be subject to the specified community | 246 |
notification provisions, after the hearing, the court may impose a | 247 |
community notification requirement as described in division | 248 |
(C)(2)(b)(ii) of this section. The offender shall not be subject | 249 |
to the specified community notification provisions relative to the | 250 |
sexually oriented offense in question if the court does not so | 251 |
impose the requirement described in that division. If the court | 252 |
imposes those community notification provisions, the offender may | 253 |
appeal the judge's determination that the offender is a habitual | 254 |
sex offender. | 255 |
(v) If the hearing is to determine whether the offender is a | 256 |
sexual predator, and if the court determines by clear and | 257 |
convincing evidence that the offender is a sexual predator, it | 258 |
shall enter its determination in the offender's institutional | 259 |
record, shall attach the determination to the offender's sentence, | 260 |
shall specify that the determination was pursuant to division (C) | 261 |
of this section, and shall provide a copy of the determination to | 262 |
the offender, to the prosecuting attorney, and to the department | 263 |
of rehabilitation and correction. The offender and the prosecutor | 264 |
may appeal as a matter of right the judge's determination under | 265 |
this division as to whether the offender is, or is not, a sexual | 266 |
predator. | 267 |
(D)(1) Upon the expiration of the applicable period of time | 268 |
specified in division (D)(1)(a) or (b) of this section, an | 269 |
offender who has been convicted of or pleaded guilty to a sexually | 270 |
oriented offense and who has been adjudicated as being a sexual | 271 |
predator relative to the sexually oriented offense in the manner | 272 |
described in division (B) or (C) of this section may petition the | 273 |
judge who made the determination that the offender was a sexual | 274 |
predator, or that judge's successor in office, to enter a | 275 |
determination that the offender no longer is a sexual predator. | 276 |
Upon the filing of the petition, the judge may review the prior | 277 |
sexual predator determination that comprises the sexually violent | 278 |
predator adjudication, and, upon consideration of all relevant | 279 |
evidence and information, including, but not limited to, the | 280 |
factors set forth in division (B)(2) of this section, either shall | 281 |
enter a determination that the offender no longer is a sexual | 282 |
predator or shall enter an order denying the petition. The court | 283 |
shall not enter a determination under this division that the | 284 |
offender no longer is a sexual predator unless the court | 285 |
determines by clear and convincing evidence that the offender is | 286 |
unlikely to commit a sexually oriented offense in the future. If | 287 |
the judge enters a determination under this division that the | 288 |
offender no longer is a sexual predator, the judge shall notify | 289 |
the bureau of criminal identification and investigation and the | 290 |
parole board of the determination. Upon receipt of the | 291 |
notification, the bureau promptly shall notify the sheriff with | 292 |
whom the offender most recently registered under section 2950.04 | 293 |
or 2950.05 of the Revised Code of the determination that the | 294 |
offender no longer is a sexual predator. If the judge enters an | 295 |
order denying the petition, the prior adjudication of the offender | 296 |
as a sexual predator shall remain in effect. An offender | 297 |
determined to be a sexual predator in the manner described in | 298 |
division (B) or (C) of this section may file a petition under this | 299 |
division after the expiration of the following periods of time: | 300 |
(a) Regardless of when the sexually oriented offense was | 301 |
committed, if, on or after January 1, 1997, the offender is | 302 |
imprisoned or sentenced to a prison term or other confinement for | 303 |
the sexually oriented offense in relation to which the | 304 |
determination was made, the offender initially may file the | 305 |
petition not earlier than one year prior to the offender's release | 306 |
from the imprisonment, prison term, or other confinement by | 307 |
discharge, parole, judicial release, or any other final release. | 308 |
If the offender is sentenced on or after January 1, 1997, for the | 309 |
sexually oriented offense in relation to which the determination | 310 |
is made and is not imprisoned or sentenced to a prison term or | 311 |
other confinement for the sexually oriented offense, the offender | 312 |
initially may file the petition upon the expiration of one year | 313 |
after the entry of the offender's judgment of conviction. | 314 |
(2) Except as otherwise provided in this division, division | 320 |
(D)(1) of this section does not apply to a person who is | 321 |
classified as a sexual predator pursuant to division (A) of this | 322 |
section. If a person who is so classified was sentenced to a | 323 |
prison term pursuant to division (A)(3) of section 2971.03 of the | 324 |
Revised Code and if the sentencing court terminates the offender's | 325 |
prison term as provided in division (D) of section 2971.05 of the | 326 |
Revised Code, the court's termination of the prison term | 327 |
automatically shall constitute a determination by the court that | 328 |
the offender no longer is a sexual predator. If the court so | 329 |
terminates the offender's prison term, the court shall notify the | 330 |
bureau of criminal identification and investigation and the parole | 331 |
board of the determination that the offender no longer is a sexual | 332 |
predator. Upon receipt of the notification, the bureau promptly | 333 |
shall notify the sheriff with whom the offender most recently | 334 |
registered under section 2950.04 or 2950.05 of the Revised Code | 335 |
that the offender no longer is a sexual predator. If an offender | 336 |
who is classified as a sexual predator pursuant to division (A) of | 337 |
this section is released from prison pursuant to a pardon or | 338 |
commutation, the classification of the offender as a sexual | 339 |
predator shall remain in effect after the offender's release, and | 340 |
the offender may file one or more petitions in accordance with the | 341 |
procedures and time limitations contained in division (D)(1) of | 342 |
this section for a determination that the offender no longer is a | 343 |
sexual predator. | 344 |
(E) If a person is convicted of or pleads guilty to | 345 |
committing, on or after January 1, 1997, a sexually oriented | 346 |
offense, the judge who is to impose sentence on the offender shall | 347 |
determine, prior to sentencing, whether the offender previously | 348 |
has been convicted of or pleaded guilty to a sexually oriented | 349 |
offense. If the judge determines that the offender previously has | 350 |
not been convicted of or pleaded guilty to a sexually oriented | 351 |
offense, the judge shall specify in the offender's sentence that | 352 |
the judge has determined that the offender is not a habitual sex | 353 |
offender. If the judge determines that the offender previously | 354 |
has been convicted of or pleaded guilty to a sexually oriented | 355 |
offense, the judge shall specify in the offender's sentence and | 356 |
the judgment of conviction that contains the sentence that the | 357 |
judge has determined that the offender is a habitual sex offender | 358 |
and may impose a requirement in that sentence and judgment of | 359 |
conviction that the offender be subject to the community | 360 |
notification provisions regarding the offender's place of | 361 |
residence that are contained in sections 2950.10 and 2950.11 of | 362 |
the Revised Code. Unless the habitual sex offender also has been | 363 |
adjudicated as being a sexual predator relative to the sexually | 364 |
oriented offense in question, the offender shall not be subject to | 365 |
those community notification provisions if the court does not | 366 |
impose the requirement described in this division in the | 367 |
offender's sentence and the judgment of conviction. | 368 |
(2) The court may enter a determination that the offender | 390 |
filing the petition described in division (F)(1) of this section | 391 |
is not an adjudicated sexual predator in this state for purposes | 392 |
of the sex offender registration requirements of this chapter or | 393 |
the community notification provisions contained in sections | 394 |
2950.10 and 2950.11 of the Revised Code only if the offender | 395 |
proves by clear and convincing evidence that the requirement of | 396 |
the other jurisdiction that the offender register as a sex | 397 |
offender until the offender's death and the requirement that the | 398 |
offender verify the offender's address on at least a quarterly | 399 |
basis each year is not substantially similar to a classification | 400 |
as a sexual predator for purposes of this chapter. | 401 |
Sec. 2950.09. (A) If a person is convicted of or pleads | 408 |
guilty to committing, on or after January 1, 1997, a sexually | 409 |
oriented offense that is a sexually violent offense and also is | 410 |
convicted of or pleads guilty to a sexually violent predator | 411 |
specification that was included in the indictment, count in the | 412 |
indictment, or information charging the sexually violent offense, | 413 |
the conviction of
or plea of guilty to the specification | 414 |
automatically classifies the offender as a sexual predator for | 415 |
purposes of this chapter. If a person is convicted of, pleads | 416 |
guilty to, or is adjudicated a delinquent child for committing, a | 417 |
sexually oriented offense in another state, or in a federal court, | 418 |
military court, or an Indian tribal court and if, as a result of | 419 |
that conviction, plea of guilty,
or adjudication, the person is | 420 |
required, under the law of the jurisdiction in which the person | 421 |
was convicted, pleaded guilty,
or was adjudicated, to register
as | 422 |
a sex offender until the person's death and is required to
verify | 423 |
the person's address on at least a quarterly basis each
year, that | 424 |
conviction, plea of guilty, or adjudication
automatically | 425 |
classifies the
person as a sexual predator
for the purposes of | 426 |
this chapter, but the
person may
challenge that classification | 427 |
pursuant to division (F) of this
section. In all other cases, a | 428 |
person who is convicted of or
pleads guilty to,
has been | 429 |
convicted of or pleaded guilty to,
or is adjudicated a delinquent | 430 |
child for committing,
a sexually
oriented offense may be | 431 |
classified as a sexual predator
for
purposes of this chapter only | 432 |
in accordance with division (B)
or
(C) of this section
or, | 433 |
regarding delinquent children, divisions
(B) and (C) of section | 434 |
2152.83 of the Revised Code. | 435 |
(B)(1)
The judge who is to impose sentence on a person who is | 436 |
convicted of or pleads guilty to a sexually oriented offense or | 437 |
the judge
who is to impose or has imposed, pursuant to section | 438 |
2152.82 or division (A) of section 2152.83 of the Revised Code, an | 439 |
order of disposition upon a child who is
adjudicated a delinquent | 440 |
child for committing on or after
the
effective date of this | 441 |
amendmentJanuary 1, 2002, a sexually oriented offense shall | 442 |
conduct a hearing to
determine whether the
offender
is a sexual | 443 |
predator if any of the
following
circumstances apply: | 444 |
(2) The judge shall conduct the hearing
prior to sentencing | 467 |
and, if the
sexually oriented offense
is a felony
and if the | 468 |
hearing is being
conducted under division
(B)(1)(a)
or, (b), or | 469 |
(c) of this
section, the
judge may conduct it as part
of the | 470 |
sentencing
hearing required by
section 2929.19 of the
Revised | 471 |
Code. The
court shall give the
offender
or delinquent
child and | 472 |
the
prosecutor who prosecuted the
offender
or handled
the case | 473 |
against
the delinquent child for the
sexually oriented
offense | 474 |
notice of
the date, time, and location
of the hearing. At
the | 475 |
hearing, the
offender
or delinquent child
and the prosecutor
shall | 476 |
have an
opportunity to testify, present
evidence, call and
examine | 477 |
witnesses and expert witnesses, and
cross-examine
witnesses and | 478 |
expert witnesses regarding the
determination as to
whether the | 479 |
offender
or delinquent child is a
sexual predator.
The
offender
or | 480 |
delinquent child shall have the
right to be
represented by counsel | 481 |
and, if indigent, the right to
have counsel
appointed to represent | 482 |
the offender
or delinquent
child. | 483 |
(4) After reviewing all testimony and evidence presented
at | 523 |
the hearing conducted under division (B)(1) of this section and | 524 |
the factors specified in division (B)(3) of this section, the
| 525 |
court shall determine by clear and convincing evidence
whether the | 526 |
subject offender
or delinquent child is a sexual
predator. If
the
| 527 |
court determines that the
subject offender
or delinquent child
is | 528 |
not a sexual predator, the
court
shall specify in the
offender's | 529 |
sentence and the judgment of
conviction that contains
the sentence | 530 |
or in the delinquent child's
dispositional order, as
appropriate, | 531 |
that the
court has
determined that the offender
or delinquent | 532 |
child is not a sexual
predator. If the
court
determines by clear | 533 |
and convincing
evidence that the
subject offender
or
delinquent | 534 |
child is a sexual
predator, the
court shall
specify in the | 535 |
offender's sentence
and the judgment of conviction
that contains | 536 |
the sentence
or in
the delinquent child's dispositional
order, as | 537 |
appropriate, that
the
court has determined that
the offender
or | 538 |
delinquent
child is a sexual predator and shall
specify that the | 539 |
determination was pursuant to division (B) of
this section. The | 540 |
offender
or delinquent child and the prosecutor
who prosecuted the | 541 |
offender
or handled the case against the delinquent child for the | 542 |
sexually
oriented offense in question may appeal as a matter of | 543 |
right the
court's determination under this division as to
whether | 544 |
the offender
or delinquent child is, or is not, a sexual
predator. | 545 |
(C)(1) If a person was convicted of or pleaded guilty to a | 553 |
sexually oriented offense prior to January 1, 1997, if the person | 554 |
was not sentenced for the offense on or after January 1, 1997, and | 555 |
if, on or after January 1, 1997, the offender is serving a term of | 556 |
imprisonment in a state correctional institution, the department | 557 |
of rehabilitation and correction shall determine whether to | 558 |
recommend that the offender be adjudicated as being a sexual | 559 |
predator. In making a determination under this division as to | 560 |
whether to recommend that the offender be adjudicated as being a | 561 |
sexual predator, the department shall consider all relevant | 562 |
factors, including, but not limited to, all of the factors | 563 |
specified in division (B)(2) of this section. If the department | 564 |
determines that it will recommend that the offender be adjudicated | 565 |
as being a sexual predator, it immediately shall send the | 566 |
recommendation to the court that sentenced the offender and shall | 567 |
enter its determination and recommendation in the offender's | 568 |
institutional record, and the court shall proceed in accordance | 569 |
with division (C)(2) of this section. | 570 |
(2)(a) If, pursuant to division (C)(1) of this section, the | 571 |
department of rehabilitation and correction sends to a court a | 572 |
recommendation that an offender who has been convicted of or | 573 |
pleaded guilty to a sexually oriented offense be adjudicated as | 574 |
being a sexual predator, the court is not bound by the | 575 |
department's recommendation, and the court may conduct a hearing | 576 |
to determine whether the offender is a sexual predator. The court | 577 |
may deny the recommendation and determine that the offender is not | 578 |
a sexual predator without a hearing but shall not make a | 579 |
determination that the offender is a sexual predator in any case | 580 |
without a hearing. The court may hold the hearing and make the | 581 |
determination prior to the offender's release from imprisonment or | 582 |
at any time within one year following the offender's release from | 583 |
that imprisonment. If the court determines without a hearing that | 584 |
the offender is not a sexual predator, it shall include its | 585 |
determination in the offender's institutional record and shall | 586 |
determine whether the offender previously has been convicted of or | 587 |
pleaded guilty to a sexually oriented offense other than the | 588 |
offense in relation to which the court determined that the | 589 |
offender is not a sexual predator. | 590 |
The court may make the determination as to whether the | 591 |
offender previously has been convicted of or pleaded guilty to a | 592 |
sexually oriented offense without a hearing, but, if the court | 593 |
determines that the offender previously has been convicted of or | 594 |
pleaded guilty to such an offense, it shall not impose a | 595 |
requirement that the offender be subject to the community | 596 |
notification provisions regarding the offender's place of | 597 |
residence that are contained in sections 2950.10 and 2950.11 of | 598 |
the Revised Code without a hearing. The court may conduct a | 599 |
hearing to determine both whether the offender previously has been | 600 |
convicted of or pleaded guilty to a sexually oriented offense and | 601 |
whether to impose a requirement that the offender be subject to | 602 |
the community notification provisions as described in this | 603 |
division, or may conduct a hearing solely to make the latter | 604 |
determination. The court shall include in the offender's | 605 |
institutional record any determination made under this division as | 606 |
to whether the offender previously has been convicted of or | 607 |
pleaded guilty to a sexually oriented offense, and, as such, | 608 |
whether the offender is a habitual sex offender. | 609 |
(b) If the court schedules a hearing under division | 610 |
(C)(2)(a) of this section, the court shall give the offender and | 611 |
the prosecutor who prosecuted the offender for the sexually | 612 |
oriented offense, or that prosecutor's successor in office, notice | 613 |
of the date, time, and place of the hearing. If the hearing is to | 614 |
determine whether the offender is a sexual predator, it shall be | 615 |
conducted in the manner described in division (B)(1) of this | 616 |
section regarding hearings conducted under that division and, in | 617 |
making a determination under this division as to whether the | 618 |
offender is a sexual predator, the court shall consider all | 619 |
relevant factors, including, but not limited to, all of the | 620 |
factors specified in division (B)(2) of this section. After | 621 |
reviewing all testimony and evidence presented at the sexual | 622 |
predator hearing and the factors specified in division (B)(2) of | 623 |
this section, the court shall determine by clear and convincing | 624 |
evidence whether the offender is a sexual predator. If the court | 625 |
determines that the offender is not a sexual predator, it also | 626 |
shall determine whether the offender previously has been convicted | 627 |
of or pleaded guilty to a sexually oriented offense other than the | 628 |
offense in relation to which the hearing is being conducted. | 629 |
(ii) If the hearing is to determine whether the offender is | 639 |
a sexual predator, and if the court determines that the offender | 640 |
is not a sexual predator but that the offender previously has been | 641 |
convicted of or pleaded guilty to a sexually oriented offense | 642 |
other than the offense in relation to which the hearing is being | 643 |
conducted, it shall include its determination that the offender is | 644 |
not a sexual predator but is a habitual sex offender in the | 645 |
offender's institutional record, shall attach the determinations | 646 |
to the offender's sentence, shall specify that the determinations | 647 |
were pursuant to division (C) of this section, shall provide a | 648 |
copy of the determinations to the offender, to the prosecuting | 649 |
attorney, and to the department of rehabilitation and correction, | 650 |
and may impose a requirement that the offender be subject to the | 651 |
community notification provisions regarding the offender's place | 652 |
of residence that are contained in sections 2950.10 and 2950.11 of | 653 |
the Revised Code. The offender shall not be subject to those | 654 |
community notification provisions relative to the sexually | 655 |
oriented offense in question if the court does not so impose the | 656 |
requirement described in this division. If the court imposes | 657 |
those community notification provisions, the offender may appeal | 658 |
the judge's determination that the offender is a habitual sex | 659 |
offender. | 660 |
(iii) If the hearing is to determine whether the offender | 661 |
previously has been convicted of or pleaded guilty to a sexually | 662 |
oriented offense other than the offense in relation to which the | 663 |
hearing is being conducted and whether to impose a requirement | 664 |
that the offender be subject to the specified community | 665 |
notification provisions, and if the court determines that the | 666 |
offender previously has been convicted of or pleaded guilty to | 667 |
such an offense, the court shall proceed as described in division | 668 |
(C)(2)(b)(ii) of this section and may impose a community | 669 |
notification requirement as described in that division. The | 670 |
offender shall not be subject to the specified community | 671 |
notification provisions relative to the sexually oriented offense | 672 |
in question if the court does not so impose the requirement | 673 |
described in that division. If the court imposes those community | 674 |
notification provisions, the offender may appeal the judge's | 675 |
determination that the offender is a habitual sex offender. | 676 |
(iv) If the court determined without a hearing that the | 677 |
offender previously has been convicted of or pleaded guilty to a | 678 |
sexually oriented offense other than the offense in relation to | 679 |
which the court determined that the offender is not a sexual | 680 |
predator, and, as such, is a habitual sex offender, and the | 681 |
hearing is solely to determine whether to impose a requirement | 682 |
that the offender be subject to the specified community | 683 |
notification provisions, after the hearing, the court may impose a | 684 |
community notification requirement as described in division | 685 |
(C)(2)(b)(ii) of this section. The offender shall not be subject | 686 |
to the specified community notification provisions relative to the | 687 |
sexually oriented offense in question if the court does not so | 688 |
impose the requirement described in that division. If the court | 689 |
imposes those community notification provisions, the offender may | 690 |
appeal the judge's determination that the offender is a habitual | 691 |
sex offender. | 692 |
(v) If the hearing is to determine whether the offender is a | 693 |
sexual predator, and if the court determines by clear and | 694 |
convincing evidence that the offender is a sexual predator, it | 695 |
shall enter its determination in the offender's institutional | 696 |
record, shall attach the determination to the offender's sentence, | 697 |
shall specify that the determination was pursuant to division (C) | 698 |
of this section, and shall provide a copy of the determination to | 699 |
the offender, to the prosecuting attorney, and to the department | 700 |
of rehabilitation and correction. The offender and the prosecutor | 701 |
may appeal as a matter of right the judge's determination under | 702 |
this division as to whether the offender is, or is not, a sexual | 703 |
predator. | 704 |
(D)(1)
Division (D) of this section applies to
persons
who | 705 |
have been convicted of or pleaded guilty to a sexually
oriented | 706 |
offense. The procedures set forth in division (D) of
this section | 707 |
regarding a determination of whether a person no
longer is a | 708 |
sexual predator also apply, to the extent specified in
section | 709 |
2152.84 or 2152.85 of the Revised Code, to persons who
have been | 710 |
adjudicated a delinquent child for committing a sexually
oriented | 711 |
offense and have been determined by a juvenile court
judge to be a | 712 |
sexual predator. A person who has been adjudicated
a delinquent | 713 |
child for committing a sexually oriented offense and
who has been | 714 |
classified by a juvenile court judge a juvenile sex
offender | 715 |
registrant or, if applicable, additionally has been
determined by | 716 |
a juvenile court judge to be a sexual predator or
habitual sex | 717 |
offender, may petition the adjudicating court for a | 718 |
reclassification or declassification pursuant to section 2152.85 | 719 |
of the Revised Code. | 720 |
Upon the expiration of the applicable period of time | 721 |
specified in division (D)(1)(a) or (b) of this section, an | 722 |
offender who has been convicted of or pleaded guilty to
a sexually | 723 |
oriented offense and who has been adjudicated as being
a sexual | 724 |
predator relative to the sexually oriented offense in the
manner | 725 |
described in division (B) or (C) of this section may
petition the | 726 |
judge who made the determination that the offender was a sexual | 727 |
predator, or that judge's successor
in office, to enter a | 728 |
determination that the offender no longer is a sexual predator. | 729 |
Upon the filing
of the petition, the judge may review the prior | 730 |
sexual predator
determination that comprises the sexually violent | 731 |
predator
adjudication, and, upon consideration of all relevant | 732 |
evidence and
information, including, but not limited to, the | 733 |
factors set forth
in division (B)(3) of this section, either
shall | 734 |
enter a
determination that the offender no longer is a
sexual | 735 |
predator or shall enter an order denying the petition. The
judge | 736 |
shall not enter a determination under this division
that the | 737 |
offender no longer is a sexual
predator unless the
judge | 738 |
determines by clear and convincing
evidence that the
offender is | 739 |
unlikely to
commit a sexually oriented offense in the
future. If | 740 |
the judge
enters a determination under this division
that the | 741 |
offender no longer is a sexual predator, the judge shall
notify | 742 |
the bureau of criminal identification and investigation and
the | 743 |
parole board of the
determination. Upon receipt of the | 744 |
notification, the bureau
promptly shall notify the sheriff with | 745 |
whom the offender most recently registered under section 2950.04 | 746 |
or
2950.05 of the Revised Code of the determination that the | 747 |
offender no longer is a sexual predator. If the judge
enters an | 748 |
order denying the petition, the prior adjudication of
the offender | 749 |
as a sexual predator shall remain
in effect. An offender | 750 |
determined to be a
sexual predator in the manner described in | 751 |
division (B) or (C) of
this section may file a petition under this | 752 |
division after the
expiration of the following periods of time: | 753 |
(a) Regardless of when the sexually oriented offense was | 754 |
committed, if, on or after January 1, 1997, the offender is | 755 |
imprisoned or sentenced to a prison term or other confinement for | 756 |
the sexually oriented offense in relation to which the | 757 |
determination was made, the offender initially may file the | 758 |
petition not earlier than one year prior to the offender's release | 759 |
from the imprisonment, prison term, or other confinement by | 760 |
discharge, parole, judicial release, or any other final release. | 761 |
If the offender is sentenced on or after January 1, 1997, for the | 762 |
sexually oriented offense in relation to which the determination | 763 |
is made and is not imprisoned or sentenced to a prison term or | 764 |
other confinement for the sexually oriented offense, the offender | 765 |
initially may file the petition upon the expiration of one year | 766 |
after the entry of the offender's judgment of conviction. | 767 |
(2) Except as otherwise provided in this division, division | 774 |
(D)(1) of this section does not apply to a person who is | 775 |
classified as a sexual predator pursuant to division (A) of this | 776 |
section. If a person who is so classified was sentenced to a | 777 |
prison term pursuant to division (A)(3) of section 2971.03 of the | 778 |
Revised Code and if the sentencing court terminates the offender's | 779 |
prison term as provided in division (D) of section 2971.05 of the | 780 |
Revised Code, the court's termination of the prison term | 781 |
automatically shall constitute a determination by the court that | 782 |
the offender no longer is a sexual predator. If the court so | 783 |
terminates the offender's prison term, the court shall notify the | 784 |
bureau of criminal identification and investigation and the parole | 785 |
board of the determination that the offender no longer is a sexual | 786 |
predator. Upon receipt of the notification, the bureau promptly | 787 |
shall notify the sheriff with whom the offender most recently | 788 |
registered under section 2950.04 or 2950.05 of the Revised Code | 789 |
that the offender no longer is a sexual predator. If an offender | 790 |
who is classified as a sexual predator pursuant to division (A) of | 791 |
this section is released from prison pursuant to a pardon or | 792 |
commutation, the classification of the offender as a sexual | 793 |
predator shall remain in effect after the offender's release, and | 794 |
the offender may file one or more petitions in accordance with the | 795 |
procedures and time limitations contained in division (D)(1) of | 796 |
this section for a determination that the offender no longer is a | 797 |
sexual predator. | 798 |
(E) If a person is convicted of or pleads guilty to | 799 |
committing, on or after January 1, 1997, a sexually oriented | 800 |
offense, the judge who is to impose
sentence on the offender shall | 801 |
determine, prior to sentencing, whether the offender
previously | 802 |
has been convicted of or pleaded guilty to a sexually oriented | 803 |
offense.
If a person is classified a juvenile sex offender | 804 |
registrant, pursuant to section 2152.82 or division (A) of section | 805 |
2152.83 of the Revised Code, the adjudicating
judge shall | 806 |
determine, prior to entering the order classifying the delinquent | 807 |
child a juvenile sex offender registrant,
whether the delinquent | 808 |
child previously has been adjudicated a
delinquent child for | 809 |
committing a sexually oriented offense. If the adjudicating judge | 810 |
has classified the delinquent child under division (A) of section | 811 |
2152.83 of the Revised Code based on that adjudication a juvenile | 812 |
sex offender registrant, the judge shall determine, prior to | 813 |
entering the classification order, whether the delinquent child | 814 |
previously has been adjudicated a delinquent child for committing | 815 |
a sexually oriented offense. If
the judge determines that the | 816 |
offender previously has not been
convicted of or pleaded guilty to | 817 |
a sexually
oriented offense
or
that the delinquent child | 818 |
previously has not been adjudicated a
delinquent child for | 819 |
committing a sexually oriented offense, the
judge shall specify in | 820 |
the offender's
sentence
or in the
order classifying the delinquent | 821 |
child a juvenile sex offender registrant that the
judge has | 822 |
determined that the offender
or delinquent child is not
a habitual | 823 |
sex offender. If the judge determines that the
offender | 824 |
previously has been convicted of or
pleaded guilty to a sexually | 825 |
oriented offense
or that the delinquent child previously has been | 826 |
adjudicated a delinquent child for committing a sexually oriented | 827 |
offense, the judge shall specify
in the offender's sentence and | 828 |
the judgment of conviction that
contains the sentence
or in the
| 829 |
order classifying the delinquent child a juvenile sex offender | 830 |
registrant that the judge has
determined that the offender
or | 831 |
delinquent child is a habitual sex
offender and may impose a | 832 |
requirement in that sentence and
judgment of conviction
or in that | 833 |
order that the
offender
or delinquent child be
subject to the | 834 |
community
notification provisions regarding the
offender's
or | 835 |
delinquent
child's place of residence that are
contained in | 836 |
sections 2950.10
and 2950.11 of the Revised Code.
Unless the | 837 |
habitual sex offender
also has been adjudicated as
being a sexual | 838 |
predator relative to
the sexually oriented offense
in question, | 839 |
the offender
or
delinquent child shall
be subject
to those | 840 |
community
notification provisions
only if the court
imposes
the | 841 |
requirement described in this division in
the
offender's
sentence | 842 |
and the judgment of conviction
or in the
order
classifying the | 843 |
delinquent child a juvenile sex offender
registrant. | 844 |
(2) The court may enter a determination that the offender
or | 870 |
delinquent child filing the petition described in division (F)(1) | 871 |
of this section is not an adjudicated sexual predator in this | 872 |
state for purposes of the sex offender registration requirements | 873 |
of this chapter or the community notification provisions contained | 874 |
in sections 2950.10 and 2950.11 of the Revised Code only if the | 875 |
offender
or delinquent child proves by clear and convincing | 876 |
evidence that the requirement of the other jurisdiction that the | 877 |
offender
or delinquent child register as a sex offender until the | 878 |
offender's
or delinquent child's death and the requirement that | 879 |
the offender
or delinquent child verify the offender's
or | 880 |
delinquent child's address on at least a quarterly basis each year | 881 |
is not substantially similar to a classification as a sexual | 882 |
predator for purposes of this chapter. | 883 |
Section 6. This act is hereby declared to be an emergency | 888 |
measure necessary for the immediate preservation of the public | 889 |
peace, health, and safety. The reason for such necessity is that, | 890 |
because sexual predators are subjected to more stringent | 891 |
registration requirements and to community notification | 892 |
requirements that provide for increased public safety, it is | 893 |
crucial for courts to have the mechanism enacted in this act for | 894 |
determining whether a person who is convicted of a sexually | 895 |
oriented offense but acquitted of a sexually violent predator | 896 |
specification included in the charges for that offense is a sexual | 897 |
predator. Therefore, this act shall go into immediate effect. | 898 |