(B) If the indictment or count in the indictment charging | 40 |
aggravated murder contains one or more specifications of | 41 |
aggravating circumstances listed in division (A) of section | 42 |
2929.04 of the Revised Code, the verdict shall separately state | 43 |
whether the accused is found guilty or not guilty of the
principal | 44 |
charge and, if guilty of the principal charge, whether
the | 45 |
offender was eighteen years of age or older at the time of
the | 46 |
commission of the offense, if the matter of age was raised by
the | 47 |
offender pursuant to section 2929.023 of the Revised Code,
and | 48 |
whether the offender is guilty or not guilty of each | 49 |
specification. The jury shall be instructed on its duties in
this | 50 |
regard. The instruction to the jury shall include
an instruction | 51 |
that a
specification shall be proved beyond a reasonable doubt in | 52 |
order
to support a guilty verdict on the specification, but the | 53 |
instruction shall
not mention the penalty that may be the | 54 |
consequence of a guilty or not guilty verdict on any charge or | 55 |
specification. | 56 |
(D)(1) Death may not be imposed as a penalty for
aggravated | 110 |
murder if the offender raised the matter of age at
trial pursuant | 111 |
to section 2929.023 of the Revised Code and was
not found at trial | 112 |
to have been eighteen years of age or older at
the time of the | 113 |
commission of the offense. When death may be
imposed as a penalty | 114 |
for aggravated murder, the court shall
proceed under this | 115 |
division. When death may be imposed as a
penalty, the court, upon | 116 |
the request of the defendant, shall
require a pre-sentence | 117 |
investigation to be made and, upon the
request of the defendant, | 118 |
shall require a mental examination to
be made, and shall require | 119 |
reports of the investigation and of
any mental examination | 120 |
submitted to the court, pursuant to
section 2947.06 of the Revised | 121 |
Code. No statement made or
information provided by a defendant in | 122 |
a mental examination or
proceeding conducted pursuant to this | 123 |
division shall be disclosed
to any person, except as provided in | 124 |
this division, or be used in
evidence against the defendant on the | 125 |
issue of guilt in any
retrial. A pre-sentence investigation or | 126 |
mental examination
shall not be made except upon request of the | 127 |
defendant. Copies
of any reports prepared under this division | 128 |
shall be furnished to
the court, to the trial jury if the offender | 129 |
was tried by a jury,
to the prosecutor, and to the offender or the | 130 |
offender's
counsel for use under this division. The court, and
the | 131 |
trial jury if the
offender was tried by a jury, shall consider
any | 132 |
report prepared
pursuant to this division and furnished to it
and | 133 |
any evidence
raised at trial that is relevant to the
aggravating | 134 |
circumstances
the offender was found guilty of
committing or to | 135 |
any factors in
mitigation of the imposition of
the sentence of | 136 |
death, shall hear
testimony and other evidence
that is relevant to | 137 |
the nature and
circumstances of the
aggravating circumstances the | 138 |
offender was
found guilty of
committing, the mitigating factors | 139 |
set forth in
division (B) of
section 2929.04 of the Revised Code, | 140 |
and any
other factors in
mitigation of the imposition of the | 141 |
sentence of
death, and shall
hear the statement, if any, of the | 142 |
offender, and
the arguments, if
any, of counsel for the defense | 143 |
and
prosecution, that are relevant
to the penalty that should be | 144 |
imposed on the offender. The
defendant shall be given great | 145 |
latitude in the presentation of
evidence of the mitigating
factors | 146 |
set forth in division (B) of
section 2929.04 of the
Revised Code | 147 |
and of any other factors in
mitigation of the
imposition of the | 148 |
sentence of death. If the
offender chooses to
make a statement, | 149 |
the offender is subject to
cross-examination only if the offender | 150 |
consents to make the
statement under oath or affirmation. | 151 |
(2) Upon consideration of the relevant evidence raised at | 159 |
trial, the testimony, other evidence, statement of the offender, | 160 |
arguments of counsel, and, if applicable, the reports submitted | 161 |
pursuant to division (D)(1) of this section, the trial jury, if | 162 |
the offender was tried by a jury, shall determine whether the | 163 |
aggravating circumstances the offender was found guilty of | 164 |
committing are sufficient to outweigh the mitigating factors | 165 |
present in the case. If the trial jury unanimously finds, by
proof | 166 |
beyond a reasonable doubt, that the aggravating
circumstances the | 167 |
offender was found guilty of committing
outweigh
the mitigating | 168 |
factors, the trial jury shall recommend
to the
court that the | 169 |
sentence of death be imposed on the
offender.
Absent such a | 170 |
finding, the jury shall recommend that
the offender
be sentenced | 171 |
to one of the following: | 172 |
If the trial jury recommends that the offender be sentenced | 183 |
to life imprisonment without parole, life
imprisonment with parole | 184 |
eligibility after serving twenty-five
full years of imprisonment, | 185 |
or life imprisonment with parole
eligibility after serving thirty | 186 |
full years of imprisonment, the court shall
impose the sentence | 187 |
recommended by the jury upon the offender. If
the sentence is a | 188 |
sentence of life imprisonment without parole imposed under | 189 |
division (D)(2)(b) of this
section, the sentence shall be served | 190 |
pursuant to section 2971.03 of the
Revised Code. If the trial
jury | 191 |
recommends that the sentence of death be
imposed upon the | 192 |
offender, the court shall proceed to impose sentence pursuant to | 193 |
division
(D)(3) of this section. | 194 |
(3) Upon consideration of the relevant evidence raised at | 195 |
trial, the testimony, other evidence, statement of the offender, | 196 |
arguments of counsel, and, if applicable, the reports submitted
to | 197 |
the court pursuant to division (D)(1) of this section, if,
after | 198 |
receiving pursuant to division (D)(2) of this section the
trial | 199 |
jury's recommendation that the sentence of death be
imposed, the | 200 |
court finds, by proof beyond a reasonable doubt, or
if the panel | 201 |
of three judges unanimously finds, by proof beyond a reasonable | 202 |
doubt, that the aggravating circumstances the offender
was found | 203 |
guilty of committing outweigh the mitigating factors,
it shall | 204 |
impose sentence of death on the offender. Absent such a
finding
by | 205 |
the court or panel, the court or the panel shall
impose one of
the | 206 |
following sentences on the offender: | 207 |
(E) If the offender raised the matter of age at trial | 221 |
pursuant to section 2929.023 of the Revised Code, was convicted
of | 222 |
aggravated murder and one or more specifications of an
aggravating | 223 |
circumstance listed in division (A) of section
2929.04 of the | 224 |
Revised Code, and was not found at trial to have
been eighteen | 225 |
years of age or older at the time of the commission
of the | 226 |
offense, the court or the panel of three judges shall not
impose a | 227 |
sentence of death on the offender. Instead, the court
or panel | 228 |
shall impose one of the following sentences on the
offender: | 229 |
(F) The court or the panel of three judges, when it
imposes | 243 |
sentence of death, shall state in a separate opinion its
specific | 244 |
findings as to the existence of any of the mitigating
factors set | 245 |
forth in division (B) of section 2929.04 of the
Revised Code, the | 246 |
existence of any other mitigating factors, the
aggravating | 247 |
circumstances the offender was found guilty of
committing, and the | 248 |
reasons why the aggravating circumstances the
offender was found | 249 |
guilty of committing were sufficient to
outweigh the mitigating | 250 |
factors. The court or panel, when it
imposes life imprisonment | 251 |
under division (D) of this section,
shall state in a separate | 252 |
opinion its specific findings of which
of the mitigating factors | 253 |
set forth in division (B) of section
2929.04 of the Revised Code | 254 |
it found to exist, what other
mitigating factors it found to | 255 |
exist, what aggravating
circumstances the offender was found | 256 |
guilty of committing, and
why it could not find that these | 257 |
aggravating circumstances were
sufficient to outweigh the | 258 |
mitigating factors. For cases in which a sentence
of death is | 259 |
imposed for an offense committed before January 1, 1995, the court | 260 |
or panel shall file the opinion required to be prepared by this | 261 |
division with
the clerk of the appropriate court of appeals and | 262 |
with the clerk of the supreme court within fifteen days after the | 263 |
court or panel imposes sentence. For cases in which a sentence of | 264 |
death is
imposed for an offense committed on or after January 1, | 265 |
1995, the court or
panel shall file the opinion required to be | 266 |
prepared by this division with the
clerk of the supreme court | 267 |
within fifteen days after the court or panel
imposes sentence.
The | 268 |
judgment in a case in which
a sentencing hearing is held
pursuant | 269 |
to this section is not
final until the opinion is filed. | 270 |
Sec. 2929.06. (A) If thea sentence of death that is imposed | 280 |
upon an offender is set aside, nullified, or vacated upon appeal | 281 |
because the court of
appeals, in a case in which a sentence of | 282 |
death was imposed for an offense
committed before January 1, 1995, | 283 |
or the supreme court, in cases in which the
supreme court reviews | 284 |
the sentence upon appeal, could not affirm the sentence
of death | 285 |
under the standards imposed by section 2929.05 of the
Revised | 286 |
Code, is set aside, nullified, or vacated upon appeal for the sole | 287 |
reason that
the
statutory procedure for imposing the sentence of | 288 |
death that is
set forth in sections 2929.03 and 2929.04 of the | 289 |
Revised Code is
unconstitutional, or is set aside, nullified, or | 290 |
vacated pursuant to division (C) of
section 2929.05 of the Revised | 291 |
Code, or is set aside, nullified, or vacated because a court has | 292 |
determined that the offender is mentally retarded under standards | 293 |
set forth in decisions of the supreme court of this state or the | 294 |
United States supreme court, the trial court that
sentenced the | 295 |
offender shall conduct a hearing to resentence the
offender. At | 296 |
the resentencing hearing, the court shall impose one of the | 297 |
following sentences upon the offender: | 298 |
(2) If the sentence of death was imposed for an aggravated | 304 |
murder committed
on
or after January
1, 1997, and if the offender | 305 |
also was
convicted of or pleaded guilty to a sexual motivation | 306 |
specification and a
sexually violent predator specification that | 307 |
were included in the indictment,
count in the indictment, or | 308 |
information that charged the aggravated murder,
life imprisonment | 309 |
without parole that shall be served pursuant toupon the offender | 310 |
a sentence of life imprisonment that is determined as specified in | 311 |
this division. The sentences of life imprisonment that are | 312 |
available at the hearing, and from which the court shall impose | 313 |
sentence, shall be the same sentences of life imprisonment that | 314 |
were available under division (D) of section 2929.03 or under | 315 |
section 2909.24 of the Revised Code at the time the offender | 316 |
committed the offense for which the sentence of death was imposed. | 317 |
Nothing in this division regarding the resentencing of an offender | 318 |
shall affect the operation of section
2971.03 of the Revised Code. | 319 |
(B) If theWhenever any court of this state or any federal | 320 |
court sets aside, nullifies, or vacates a sentence of death that | 321 |
is imposed upon an
offender is vacated upon appeal because of | 322 |
error that occurred in the
sentencing phase of the trial and if | 323 |
division (A) of this section
does not apply, the trial court that | 324 |
sentenced the offender shall conduct a
new
hearing to resentence | 325 |
the offender. If the offender was tried by a jury, the
trial court | 326 |
shall impanel a new jury for the hearing. If the offender was | 327 |
tried by a panel of three judges, that panel or, if necessary, a | 328 |
new panel of
three judges shall conduct the hearing. At the | 329 |
hearing, the court
shall
follow the procedure set forth in | 330 |
division (D) of section 2929.03 of the
Revised Code in determining | 331 |
whether to impose upon the offender a sentence of
death,or a | 332 |
sentence of life imprisonment without parole, life imprisonment | 333 |
with parole
eligibility after serving twenty-five full years of | 334 |
imprisonment, or life imprisonment with parole eligibility after | 335 |
serving
thirty full years of imprisonment. If, pursuant to that | 336 |
procedure, the court determines that it will impose a sentence of | 337 |
life imprisonment, the sentences of life imprisonment that are | 338 |
available at the hearing, and from which the court shall impose | 339 |
sentence, shall be the same sentences of life imprisonment that | 340 |
were available under division (D) of section 2929.03 or under | 341 |
section 2909.24 of the Revised Code at the time the offender | 342 |
committed the offense for which the sentence of death was imposed. | 343 |
(C) If thea sentence of life imprisonment without parole | 344 |
that is
imposed upon an offender pursuant to section 2929.021 or | 345 |
2929.03 of the
Revised Code is set aside, nullified, or vacated | 346 |
upon appeal
for the sole reason that the statutory procedure for | 347 |
imposing the sentence of
life imprisonment without parole that is | 348 |
set forth in sections 2929.03 and
2929.04 of the Revised Code is | 349 |
unconstitutional, the trial court that
sentenced the offender | 350 |
shall conduct a hearing to resentence the offender to
life | 351 |
imprisonment with parole eligibility after serving twenty-five | 352 |
full years
of imprisonment or to life imprisonment with parole | 353 |
eligibility after serving
thirty full years of imprisonment. | 354 |
(E) This section, as amended by H.B. 184 of the 125th General | 359 |
Assembly, shall apply to all offenders who have been sentenced to | 360 |
death for an aggravated murder that was committed on or after | 361 |
October 19, 1981, or for terrorism that was committed on or after | 362 |
May 15, 2002. This section, as amended by H.B. 184 of the 125th | 363 |
general assembly, shall apply equally to all such offenders | 364 |
sentenced to death prior to, on, or after the effective date of | 365 |
that act, including offenders who, on the effective date of that | 366 |
act, are challenging their sentence of death and offenders whose | 367 |
sentence of death has been set aside, nullified, or vacated by any | 368 |
court of this state or any federal court but who, as of the | 369 |
effective date of that act, have not yet been resentenced. | 370 |
Section 4. If any provision of this act, any provision of any | 382 |
section in this act, or the application of any such provision to | 383 |
any person or circumstances is held invalid, the invalidity does | 384 |
not affect other provisions or applications of other provisions of | 385 |
this act, other sections in this act, other applications of the | 386 |
provision in question, or related sections that can be given | 387 |
effect without the invalid provision or section, and to this end | 388 |
the provisions are severable. | 389 |