Sub. H. B. No. 184 As Reported by the Senate Judiciary Committee

Representatives Schmidt, McGregor, Aslanides, Schaffer, Schneider, Raussen, Gilb, Collier, Willamowski, Latta, D. Evans, Callender, Carmichael, Cates, Chandler, Clancy, Daniels, Domenick, C. Evans, Flowers, Grendell, Hartnett, Hoops, Hughes, Jerse, Jolivette, Martin, Niehaus, Otterman, T. Patton, Raga, Reidelbach, Schlichter, Seaver, Seitz, Sferra, G. Smith, J. Stewart, Taylor, Wagner, Webster, Widener, Widowfield

Senator Goodman

A BILL

To amend sections 2929.03 and 2929.06 of the Revised 1
Code to permit the imposition of a sentence of 2
life imprisonment without parole, life 3
imprisonment with parole eligibility after serving 4
25 full years of imprisonment, or life 5
imprisonment with parole eligibility after serving 6
30 full years of imprisonment when an offender is 7
convicted of or pleads guilty to aggravated murder 8
and is not charged with or convicted of an 9
aggravating circumstance and to clarify and revise 10
the procedures that govern the resentencing of a 11
person sentenced to death whose sentence is set 12
aside, nullified, or vacated. 13

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 2929.03 and 2929.06 of the Revised 14
Code be amended to read as follows: 15

       Sec. 2929.03. (A) If the indictment or count in the 16
indictment charging aggravated murder does not contain one or more 17
specifications of aggravating circumstances listed in division (A) 18
of section 2929.04 of the Revised Code, then, following a verdict 19
of guilty of the charge of aggravated murder, the trial court 20
shall impose sentence on the offender as follows: 21

       (1) Except as provided in division (A)(2) of this section, 22
the trial court shall impose ~~a sentence of life imprisonment with~~ 23
~~parole eligibility after serving twenty years of imprisonment~~one 24
of the following sentences on the offender: 25

       (a) Life imprisonment without parole; 26

       (b) Life imprisonment with parole eligibility after serving 27
twenty years of imprisonment; 28

       (c) Life imprisonment with parole eligibility after serving 29
twenty-five full years of imprisonment; 30

       (d) Life imprisonment with parole eligibility after serving 31
thirty full years of imprisonment. 32

       (2) If the offender also is convicted of or pleads guilty to 33
a sexual motivation specification and a sexually violent predator 34
specification that are included in the indictment, count in the 35
indictment, or information that charged the aggravated murder, the 36
trial court shall impose upon the offender a sentence of life 37
imprisonment without parole that shall be served pursuant to 38
section 2971.03 of the Revised Code. 39

       (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

       (C)(1) If the indictment or count in the indictment charging 57
aggravated murder contains one or more specifications of 58
aggravating circumstances listed in division (A) of section 59
2929.04 of the Revised Code, then, following a verdict of guilty 60
of the charge but not guilty of each of the specifications, and 61
regardless of whether the offender raised the matter of age 62
pursuant to section 2929.023 of the Revised Code, the trial court 63
shall impose sentence on the offender as follows: 64

       (a) Except as provided in division (C)(1)(b) of this section, 65
the trial court shall impose ~~a sentence of life imprisonment with~~ 66
~~parole eligibility after serving twenty years of imprisonment~~one 67
of the following sentences on the offender: 68

       (i) Life imprisonment without parole; 69

       (ii) Life imprisonment with parole eligibility after serving 70
twenty years of imprisonment; 71

       (iii) Life imprisonment with parole eligibility after serving 72
twenty-five full years of imprisonment; 73

       (iv) Life imprisonment with parole eligibility after serving 74
thirty full years of imprisonment. 75

       (b) If the offender also is convicted of or pleads guilty to 76
a sexual motivation specification and a sexually violent predator 77
specification that are included in the indictment, count in the 78
indictment, or information that charged the aggravated murder, the 79
trial court shall impose upon the offender a sentence of life 80
imprisonment without parole that shall be served pursuant to 81
section 2971.03 of the Revised Code. 82

       (2)(a) If the indictment or count in the indictment contains 83
one or more specifications of aggravating circumstances listed in 84
division (A) of section 2929.04 of the Revised Code and if the 85
offender is found guilty of both the charge and one or more of the 86
specifications, the penalty to be imposed on the offender shall be 87
one of the following: 88

       (i) Except as provided in division (C)(2)(a)(ii) of this 89
section, the penalty to be imposed on the offender shall be death, 90
life imprisonment without parole, life imprisonment with parole 91
eligibility after serving twenty-five full years of imprisonment, 92
or life imprisonment with parole eligibility after serving thirty 93
full years of imprisonment. 94

       (ii) If the offender also is convicted of or pleads guilty to 95
a sexual motivation specification and a sexually violent predator 96
specification that are included in the indictment, count in the 97
indictment, or information that charged the aggravated murder, the 98
penalty to be imposed on the offender shall be death or life 99
imprisonment without parole that shall be served pursuant to 100
section 2971.03 of the Revised Code. 101

       (b) A penalty imposed pursuant to division (C)(2)(a)(i) or 102
(ii) of this section shall be determined pursuant to divisions (D) 103
and (E) of this section and shall be determined by one of the 104
following: 105

       (i) By the panel of three judges that tried the offender upon 106
the offender's waiver of the right to trial by jury; 107

       (ii) By the trial jury and the trial judge, if the offender 108
was tried by jury. 109

       (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

       The defendant shall have the burden of going forward with the 152
evidence of any factors in mitigation of the imposition of the 153
sentence of death. The prosecution shall have the burden of 154
proving, by proof beyond a reasonable doubt, that the aggravating 155
circumstances the defendant was found guilty of committing are 156
sufficient to outweigh the factors in mitigation of the imposition 157
of the sentence of death. 158

       (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

       (a) Except as provided in division (D)(2)(b) of this section, 173
to life imprisonment without parole, life imprisonment with parole 174
eligibility after serving twenty-five full years of imprisonment, 175
or life imprisonment with parole eligibility after serving thirty 176
full years of imprisonment; 177

       (b) If the offender also is convicted of or pleads guilty to 178
a sexual motivation specification and a sexually violent predator 179
specification that are included in the indictment, count in the 180
indictment, or information that charged the aggravated murder, to 181
life imprisonment without parole. 182

       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

       (a) Except as provided in division (D)(3)(b) of this section, 208
one of the following: 209

       (i) Life imprisonment without parole; 210

       (ii) Life imprisonment with parole eligibility after serving 211
twenty-five full years of imprisonment; 212

       (iii) Life imprisonment with parole eligibility after serving 213
thirty full years of imprisonment. 214

       (b) If the offender also is convicted of or pleads guilty to 215
a sexual motivation specification and a sexually violent predator 216
specification that are included in the indictment, count in the 217
indictment, or information that charged the aggravated murder, 218
life imprisonment without parole that shall be served pursuant to 219
section 2971.03 of the Revised Code. 220

       (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

       (1) Except as provided in division (E)(2) of this section, 230
one of the following: 231

       (a) Life imprisonment without parole; 232

       (b) Life imprisonment with parole eligibility after serving 233
twenty-five full years of imprisonment; 234

       (c) Life imprisonment with parole eligibility after serving 235
thirty full years of imprisonment. 236

       (2) If the offender also is convicted of or pleads guilty to 237
a sexual motivation specification and a sexually violent predator 238
specification that are included in the indictment, count in the 239
indictment, or information that charged the aggravated murder, 240
life imprisonment without parole that shall be served pursuant to 241
section 2971.03 of the Revised Code. 242

       (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

       (G)(1) Whenever the court or a panel of three judges imposes 271
a sentence of death for an offense committed before January 1, 272
1995, the clerk of the court in which the judgment is rendered 273
shall deliver the entire record in the case to the appellate 274
court. 275

       (2) Whenever the court or a panel of three judges imposes a 276
sentence of death for an offense committed on or after January 1, 277
1995, the clerk of the court in which the judgment is rendered 278
shall deliver the entire record in the case to the supreme court. 279

       Sec. 2929.06. (A) If ~~the~~a 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

       ~~(1) Except as provided in division (A)(2) of this section,~~ 299
~~life imprisonment without parole, life imprisonment with parole~~ 300
~~eligibility after serving twenty-five full years of imprisonment,~~ 301
~~or life imprisonment with parole eligibility after serving thirty~~ 302
~~full years of imprisonment;~~ 303

       ~~(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 to~~upon 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 the~~Whenever 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 ~~the~~a 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

       (D) Nothing in this section limits or restricts the rights of 355
the state to appeal any order setting aside, nullifying, or 356
vacating a conviction or sentence of death, when an appeal of that 357
nature otherwise would be available. 358

       (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 2. That existing sections 2929.03 and 2929.06 of the 371
Revised Code are hereby repealed. 372

       Section 3. Section 2929.03 of the Revised Code is presented 373
in this act as a composite of the section as amended by both Am. 374
Sub. H.B. 180 and Am. Sub. S.B. 269 of the 121st General Assembly. 375
The General Assembly, applying the principle stated in division 376
(B) of section 1.52 of the Revised Code that amendments are to be 377
harmonized if reasonably capable of simultaneous operation, finds 378
that the composite is the resulting version of the section in 379
effect prior to the effective date of the section as presented in 380
this act. 381

       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

Section 1. That sections 2929.03 and 2929.06 of the Revised	14
Code be amended to read as follows:	15

Sec. 2929.03. (A) If the indictment or count in the	16
indictment charging aggravated murder does not contain one or more	17
specifications of aggravating circumstances listed in division (A)	18
of section 2929.04 of the Revised Code, then, following a verdict	19
of guilty of the charge of aggravated murder, the trial court	20
shall impose sentence on the offender as follows:	21

(1) Except as provided in division (A)(2) of this section,	22
the trial court shall impose ~~a sentence of life imprisonment with~~	23
~~parole eligibility after serving twenty years of imprisonment~~one	24
of the following sentences on the offender:	25

(b) Life imprisonment with parole eligibility after serving	27
twenty years of imprisonment;	28

(c) Life imprisonment with parole eligibility after serving	29
twenty-five full years of imprisonment;	30

(d) Life imprisonment with parole eligibility after serving	31
thirty full years of imprisonment.	32

(2) If the offender also is convicted of or pleads guilty to	33
a sexual motivation specification and a sexually violent predator	34
specification that are included in the indictment, count in the	35
indictment, or information that charged the aggravated murder, the	36
trial court shall impose upon the offender a sentence of life	37
imprisonment without parole that shall be served pursuant to	38
section 2971.03 of the Revised Code.	39

(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

(C)(1) If the indictment or count in the indictment charging	57
aggravated murder contains one or more specifications of	58
aggravating circumstances listed in division (A) of section	59
2929.04 of the Revised Code, then, following a verdict of guilty	60
of the charge but not guilty of each of the specifications, and	61
regardless of whether the offender raised the matter of age	62
pursuant to section 2929.023 of the Revised Code, the trial court	63
shall impose sentence on the offender as follows:	64

(a) Except as provided in division (C)(1)(b) of this section,	65
the trial court shall impose ~~a sentence of life imprisonment with~~	66
~~parole eligibility after serving twenty years of imprisonment~~one	67
of the following sentences on the offender:	68

(ii) Life imprisonment with parole eligibility after serving	70
twenty years of imprisonment;	71

(iii) Life imprisonment with parole eligibility after serving	72
twenty-five full years of imprisonment;	73

(iv) Life imprisonment with parole eligibility after serving	74
thirty full years of imprisonment.	75

(b) If the offender also is convicted of or pleads guilty to	76
a sexual motivation specification and a sexually violent predator	77
specification that are included in the indictment, count in the	78
indictment, or information that charged the aggravated murder, the	79
trial court shall impose upon the offender a sentence of life	80
imprisonment without parole that shall be served pursuant to	81
section 2971.03 of the Revised Code.	82

(2)(a) If the indictment or count in the indictment contains	83
one or more specifications of aggravating circumstances listed in	84
division (A) of section 2929.04 of the Revised Code and if the	85
offender is found guilty of both the charge and one or more of the	86
specifications, the penalty to be imposed on the offender shall be	87
one of the following:	88

(i) Except as provided in division (C)(2)(a)(ii) of this	89
section, the penalty to be imposed on the offender shall be death,	90
life imprisonment without parole, life imprisonment with parole	91
eligibility after serving twenty-five full years of imprisonment,	92
or life imprisonment with parole eligibility after serving thirty	93
full years of imprisonment.	94

(ii) If the offender also is convicted of or pleads guilty to	95
a sexual motivation specification and a sexually violent predator	96
specification that are included in the indictment, count in the	97
indictment, or information that charged the aggravated murder, the	98
penalty to be imposed on the offender shall be death or life	99
imprisonment without parole that shall be served pursuant to	100
section 2971.03 of the Revised Code.	101

(b) A penalty imposed pursuant to division (C)(2)(a)(i) or	102
(ii) of this section shall be determined pursuant to divisions (D)	103
and (E) of this section and shall be determined by one of the	104
following:	105

(i) By the panel of three judges that tried the offender upon	106
the offender's waiver of the right to trial by jury;	107

(ii) By the trial jury and the trial judge, if the offender	108
was tried by jury.	109

(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

The defendant shall have the burden of going forward with the	152
evidence of any factors in mitigation of the imposition of the	153
sentence of death. The prosecution shall have the burden of	154
proving, by proof beyond a reasonable doubt, that the aggravating	155
circumstances the defendant was found guilty of committing are	156
sufficient to outweigh the factors in mitigation of the imposition	157
of the sentence of death.	158

(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

(a) Except as provided in division (D)(2)(b) of this section,	173
to life imprisonment without parole, life imprisonment with parole	174
eligibility after serving twenty-five full years of imprisonment,	175
or life imprisonment with parole eligibility after serving thirty	176
full years of imprisonment;	177

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

(a) Except as provided in division (D)(3)(b) of this section,	208
one of the following:	209

(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

(1) Except as provided in division (E)(2) of this section,	230
one of the following:	231

(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