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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | Am. Sub. H. B. No. 32 |
REPRESENTATIVES REID-BATEMAN-BRADING-CORBIN-GARCIA-JERSE-LUCAS-
OPFER-WINKLER-SCHURING-OLMAN-VESPER-TAYLOR-TERWILLEGER-PATTON-
MOTTLEY-GRENDELL-CLANCY-PRINGLE-OGG-BOGGS-PADGETT-ROMAN-VERICH-
LEWIS-MOTTL-MASON-PERZ-HOUSEHOLDER-YOUNG-GERBERRY-WESTON-MYERS-
KREBS-METELSKY-MILLER-FORD-JONES-THOMAS-MEAD-CORE-HARRIS-
STAPLETON-O'BRIEN-SALERNO-TAVARES-WOMER BENJAMIN-JOHNSON-
SENATORS BLESSING-HOWARD-LATTA-B. JOHNSON-McLIN-OELSLAGER-
DiDONATO-DRAKE
A BILL
To amend sections 2907.01, 2907.02, 2907.03, 2907.05,
2929.13, and 2929.14 of the
Revised Code to increase criminal penalties for
gross sexual imposition when the offender administers a controlled substance
to the victim surreptitiously or by
force, threat of force, or deception; to make sexual battery a third degree
felony in all circumstances; to modify the definition of sexual
conduct; to clarify that a
court must impose a mandatory prison term upon an offender who has been
convicted of or pleaded guilty to rape; and to
require that the mandatory prison term for
rape when the offender administered a controlled substance to the
victim surreptitiously or by force, threat of force, or
deception must be at least five years.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2907.01, 2907.02, 2907.03,
2907.05, 2929.13, and 2929.14 of the Revised Code
be amended
to read as follows:
Sec. 2907.01. As used in sections 2907.01 to 2907.37 of
the Revised Code:
(A) "Sexual conduct" means vaginal intercourse between a
male and female; anal intercourse, fellatio, and
cunnilingus
between persons regardless of sex; and, WITHOUT PRIVILEGE TO DO
SO, the insertion, however slight, of any part of the body or any
instrument, apparatus, or other object
into the vaginal or anal cavity of another. Penetration, however slight, is
sufficient to complete vaginal or anal intercourse.
(B) "Sexual contact" means any touching of an erogenous
zone of another, including without limitation the thigh,
genitals, buttock, pubic region, or, if the person is a female, a
breast, for the purpose of sexually arousing or gratifying either
person.
(C) "Sexual activity" means sexual conduct or sexual
contact, or both.
(D) "Prostitute" means a male or female who promiscuously
engages in sexual activity for hire, regardless of whether the
hire is paid to the prostitute or to another.
(E) Any material or performance is "harmful to juveniles,"
if it is offensive to prevailing standards in the adult community
with respect to what is suitable for juveniles, and if any of the
following apply:
(1) It tends to appeal to the prurient interest of
juveniles;
(2) It contains a display, description, or representation
of sexual activity, masturbation, sexual excitement, or nudity;
(3) It contains a display, description, or representation
of bestiality or extreme or bizarre violence, cruelty, or
brutality;
(4) It contains a display, description, or representation
of human bodily functions of elimination;
(5) It makes repeated use of foul language;
(6) It contains a display, description, or representation
in lurid detail of the violent physical torture, dismemberment,
destruction, or death of a human being;
(7) It contains a display, description, or representation
of criminal activity that tends to glorify or glamorize the
activity, and that, with respect to juveniles, has a dominant
tendency to corrupt.
(F) When considered as a whole, and judged with reference
to ordinary adults or, if it is designed for sexual deviates or
other specially susceptible group, judged with reference to that
group, any material or performance is "obscene" if any of the
following apply:
(1) Its dominant appeal is to prurient interest;
(2) Its dominant tendency is to arouse lust by displaying
or depicting sexual activity, masturbation, sexual excitement, or
nudity in a way that tends to represent human beings as mere
objects of sexual appetite;
(3) Its dominant tendency is to arouse lust by displaying
or depicting bestiality or extreme or bizarre violence, cruelty,
or brutality;
(4) Its dominant tendency is to appeal to scatological
interest by displaying or depicting human bodily functions of
elimination in a way that inspires disgust or revulsion in
persons with ordinary sensibilities, without serving any genuine
scientific, educational, sociological, moral, or artistic
purpose;
(5) It contains a series of displays or descriptions of
sexual activity, masturbation, sexual excitement, nudity,
bestiality, extreme or bizarre violence, cruelty, or brutality,
or human bodily functions of elimination, the cumulative effect
of which is a dominant tendency to appeal to prurient or
scatological interest, when the appeal to such an interest is
primarily for its own sake or for commercial exploitation, rather
than primarily for a genuine scientific, educational,
sociological, moral, or artistic purpose.
(G) "Sexual excitement" means the condition of human male
or female genitals when in a state of sexual stimulation or
arousal.
(H) "Nudity" means the showing, representation, or
depiction of human male or female genitals, pubic area, or
buttocks with less than a full, opaque covering, or of a female
breast with less than a full, opaque covering of any portion
thereof below the top of the nipple, or of covered male genitals
in a discernibly turgid state.
(I) "Juvenile" means an unmarried person under the age of
eighteen.
(J) "Material" means any book, magazine, newspaper,
pamphlet, poster, print, picture, figure, image, description,
motion picture film, phonographic record, or tape, or other
tangible thing capable of arousing interest through sight, sound,
or touch.
(K) "Performance" means any motion picture, preview,
trailer, play, show, skit, dance, or other exhibition performed
before an audience.
(L) "Spouse" means a person married to an offender at the
time of an alleged offense, except that such person shall not be
considered the spouse when any of the following apply:
(1) When the parties have entered into a written
separation agreement authorized by section 3103.06 of the Revised
Code;
(2) During the pendency of an action between the parties
for annulment, divorce, dissolution of marriage, or legal
separation;
(3) In the case of an action for legal separation, after
the effective date of the judgment for legal separation.
(M) "Minor" means a person under the age of eighteen.
Sec. 2907.02. (A)(1) No person shall engage in sexual
conduct with another who is not the spouse of the offender or who
is the spouse of the offender but is living separate and apart
from the offender, when any of the following applies:
(a) For the purpose of preventing resistance, the offender
substantially impairs the other person's judgment or control by
administering any drug or, intoxicant, OR CONTROLLED
SUBSTANCE to the other person, surreptitiously or by force, threat
of force, or deception.
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
(c) The other person's ability to resist or consent is
substantially impaired because of a mental or physical condition
or because of advanced age, and the offender knows or has
reasonable cause to believe that the other person's ability to
resist or consent is substantially impaired because of a mental
or physical condition or because of advanced age.
(2) No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by
force or threat of force.
(B) Whoever violates this section is guilty of
rape, a felony of the first degree. IF THE OFFENDER UNDER
DIVISION
(A)(1)(a)OF THIS SECTION
SUBSTANTIALLY IMPAIRS THE OTHER PERSON'S JUDGMENT OR CONTROL BY ADMINISTERING
ANY CONTROLLED SUBSTANCE DESCRIBED IN SECTION 3719.41 OF THE
REVISED CODE
TO THE OTHER PERSON SURREPTITIOUSLY OR BY FORCE, THREAT OF FORCE, OR
DECEPTION, THE PRISON TERM IMPOSED UPON THE OFFENDER SHALL BE ONE OF THE
PRISON
TERMS PRESCRIBED FOR A FELONY OF THE FIRST DEGREE IN SECTION 2929.14
of the Revised Code THAT IS NOT LESS THAN FIVE YEARS.
If the offender under
division (A)(1)(b) of this section
purposely compels the victim
to submit by force or threat of force, whoever violates division (A)(1)(b)
of this section shall be imprisoned for life.
(C) A victim need not prove physical resistance to the
offender in prosecutions under this section.
(D) Evidence of specific instances of the victim's sexual
activity, opinion evidence of the victim's sexual activity, and
reputation evidence of the victim's sexual activity shall not be
admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, or the victim's past
sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue
in the case and that its inflammatory or prejudicial nature does
not outweigh its probative value.
Evidence of specific instances of the defendant's sexual
activity, opinion evidence of the defendant's sexual activity,
and reputation evidence of the defendant's sexual activity shall
not be admitted under this section unless it involves evidence of
the origin of semen, pregnancy, or disease, the defendant's past
sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only to
the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
(E) Prior to taking testimony or receiving evidence of any
sexual activity of the victim or the defendant in a proceeding
under this section, the court shall resolve the admissibility of
the proposed evidence in a hearing in chambers, which shall be
held at or before preliminary hearing and not less than three
days before trial, or for good cause shown during the trial.
(F) Upon approval by the court, the victim may be
represented by counsel in any hearing in chambers or other
proceeding to resolve the admissibility of evidence. If the
victim is indigent or otherwise is unable to obtain the services of
counsel, the court, upon request, may appoint counsel to
represent the victim without cost to the victim.
(G) It is not a defense to a charge under division (A)(2)
of this section that the offender and the victim were married or
were cohabiting at the time of the commission of the offense.
Sec. 2907.03. (A) No person shall engage in sexual
conduct with another, not the spouse of the offender, when any of
the following apply:
(1) The offender knowingly coerces the other person to
submit by any means that would prevent resistance by a person of
ordinary resolution.
(2) The offender knows that the other person's ability to
appraise the nature of or control the other person's
own conduct is substantially impaired.
(3) The offender knows that the other person submits
because the other person is unaware that the act is
being committed.
(4) The offender knows that the other person submits
because the other person mistakenly identifies the offender as the other
person's spouse.
(5) The offender is the other person's natural or adoptive
parent, or a stepparent, or guardian, custodian, or person in
loco parentis of the other person.
(6) The other person is in custody of law or a patient in
a hospital or other institution, and the offender has supervisory
or disciplinary authority over the other person.
(7) The offender is a teacher, administrator, coach, or other person in
authority employed by or serving in a school for which the state board of
education prescribes minimum standards pursuant to division (D) of section
3301.07 of the Revised Code, the other person is
enrolled in or attends that school, and the offender is not enrolled in and
does not attend that school.
(8) The other person is a minor, the offender is a teacher,
administrator, coach, or other person in authority employed by or serving in
an institution of higher education, and the other
person is enrolled in or attends that institution.
(9) The other person is a minor, and the offender is the other person's
athletic or other type of coach, is the other person's instructor, is the
leader of a scouting troop of which the other person is a member, or is a
person with temporary or occasional disciplinary control over the other
person.
(B) Whoever violates this section is guilty of sexual
battery. A violation of division (A)(1), (5), (6),
(7), (8), or (9) of this section is, a felony of the third degree.
A violation of division (A)(2), (3), or (4) of this section is a felony
of the fourth degree.
(C) As used in this section, "institution of higher education" means a state
institution of higher education defined in section
3345.011 of the Revised
Code, a private nonprofit college or university located in this state that
possesses a certificate of authorization issued by the Ohio board of regents
pursuant to Chapter 1713. of the Revised Code, or a school certified under
Chapter 3332. of the Revised Code.
Sec. 2907.05. (A) No person shall have sexual contact
with another, not the spouse of the offender; cause another, not
the spouse of the offender, to have sexual contact with the
offender; or cause two or more other persons to have sexual
contact when any of the following applies:
(1) The offender purposely compels the other person, or
one of the other persons, to submit by force or threat of force.
(2) For the purpose of preventing resistance, the offender
substantially impairs the judgment or control of the other person
or of one of the other persons by administering any drug or,
intoxicant, OR CONTROLLED SUBSTANCE to the other person,
surreptitiously or by
force, threat of force, or deception.
(3) The offender knows that the judgment or control of the
other person or of one of the other persons is substantially
impaired as a result of the influence of any drug or intoxicant
administered to the other person with his THE OTHER PERSON'S
consent for the purpose
of any kind of medical or dental examination, treatment, or
surgery.
(4) The other person, or one of the other persons, is less
than thirteen years of age, whether or not the offender knows the
age of that person.
(5) The ability of the other person to resist or consent
or the ability of one of the other persons to resist or consent
is substantially impaired because of a mental or physical
condition or because of advanced age, and the offender knows or
has reasonable cause to believe that the ability to resist or
consent of the other person or of one of the other persons is
substantially impaired because of a mental or physical condition
or because of advanced age.
(B) Whoever violates this section is guilty of gross
sexual imposition. Violation EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION, A VIOLATION of division (A)(1),
(2), (3), or
(5) of this section is a felony of the fourth degree. Violation
IF THE OFFENDER UNDER
DIVISION
(A)(2) OF THIS SECTION SUBSTANTIALLY IMPAIRS
THE JUDGMENT OR CONTROL OF THE OTHER PERSON OR ONE OF THE OTHER PERSONS BY
ADMINISTERING ANY CONTROLLED SUBSTANCE DESCRIBED IN SECTION 3719.41 OF THE
REVISED CODE
TO THE PERSON SURREPTITIOUSLY OR BY FORCE, THREAT OF FORCE, OR DECEPTION, A
VIOLATION OF
DIVISION (A)(2) OF THIS SECTION IS A FELONY OF
THE THIRD DEGREE.
A
VIOLATION of division (A)(4) of this section is a felony of the third
degree.
(C) A victim need not prove physical resistance to the
offender in prosecutions under this section.
(D) Evidence of specific instances of the victim's sexual
activity, opinion evidence of the victim's sexual activity, and
reputation evidence of the victim's sexual activity shall not be
admitted under this section unless it involves evidence of the
origin of semen, pregnancy, or disease, or the victim's past
sexual activity with the offender, and only to the extent that
the court finds that the evidence is material to a fact at issue
in the case and that its inflammatory or prejudicial nature does
not outweigh its probative value.
Evidence of specific instances of the defendant's sexual
activity, opinion evidence of the defendant's sexual activity,
and reputation evidence of the defendant's sexual activity shall
not be admitted under this section unless it involves evidence of
the origin of semen, pregnancy, or disease, the defendant's past
sexual activity with the victim, or is admissible against the
defendant under section 2945.59 of the Revised Code, and only to
the extent that the court finds that the evidence is material to
a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value.
(E) Prior to taking testimony or receiving evidence of any
sexual activity of the victim or the defendant in a proceeding
under this section, the court shall resolve the admissibility of
the proposed evidence in a hearing in chambers, which shall be
held at or before preliminary hearing and not less than three
days before trial, or for good cause shown during the trial.
(F) Upon approval by the court, the victim may be
represented by counsel in any hearing in chambers or other
proceeding to resolve the admissibility of evidence. If the
victim is indigent or otherwise is unable to obtain the services
of counsel, the court, upon request, may appoint counsel to
represent the victim without cost to the victim.
Sec. 2929.13. (A) Except as provided in
division (E), (F), or (G) of this section and unless a
specific sanction is required to be imposed or is precluded from
being imposed pursuant to law, a court that imposes a sentence
upon an offender for a felony may impose any sanction or
combination of sanctions on the offender that are provided in
sections 2929.14 to 2929.18 of the Revised
Code. The sentence shall not impose an unnecessary
burden on state or local government resources.
If the offender is eligible to be sentenced to community control sanctions,
the court shall consider the
appropriateness of imposing a financial sanction pursuant to
section 2929.18 of the Revised Code or
a sanction of community service
pursuant to section 2929.17 of the Revised Code
as the sole sanction for the offense. Except as otherwise provided in this
division, if the court is required
to impose a mandatory prison term for the offense for which
sentence is being imposed, the court also may impose a financial
sanction pursuant to section 2929.18 of the Revised
Code but may not impose any additional sanction or
combination of sanctions under section 2929.16 or 2929.17 of the
Revised Code.
If the offender is being sentenced for a fourth degree felony
OMVI offense, in addition to the mandatory term of local
incarceration or the mandatory prison term required for
the offense by
division (G)(1) or (2) of this section, the
court shall impose upon the offender a mandatory fine in accordance with
division (B)(3) of section 2929.18 of the
Revised Code
and may impose whichever of the following is applicable:
(1) If division (G)(1) of this section requires that the offender
be sentenced to a mandatory term of local incarceration, an additional
community control sanction
or combination of community control sanctions under section 2929.16 or 2929.17
of the Revised
Code;
(2) If division (G)(2) of this section requires that the offender
be sentenced to a mandatory prison term, an additional prison term as
described in division (D)(4) of section 2929.14 of the Revised Code.
(B)(1) Except as provided in division (B)(2),
(E), (F), or (G) of this section, in sentencing an offender for a
felony of the fourth or fifth degree, the sentencing court shall determine
whether any
of the following apply:
(a) In committing the offense, the offender caused
physical harm to a person.
(b) In committing the offense, the offender attempted
to cause or made an actual threat of physical harm to a person
with a deadly weapon.
(c) In committing the offense, the offender attempted
to cause or made an actual threat of physical harm to a person,
and the offender previously was convicted of an offense that
caused physical harm to a person.
(d) The offender held a public office or position of
trust and the offense related to that office or position; the
offender's position obliged the offender to prevent the offense
or to bring those committing it to justice; or the offender's
professional reputation or position facilitated the offense or
was likely to influence the future conduct of others.
(e) The offender committed the offense for hire or as part
of an organized criminal activity.
(f) The offense is a sex offense that is a fourth or
fifth degree felony violation of section 2907.03, 2907.04,
2907.05, 2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or
2907.34 of the Revised Code.
(g) The offender previously served a prison term.
(h) The offender previously was subject to a community control
sanction, and the offender committed
another offense while under the sanction.
(2)(a) If the court makes a finding
described in division (B)(1)(a), (b), (c), (d), (e), (f), (g),
or, (h) of this section and if the court, after
considering the factors set forth in section 2929.12 of the
Revised Code, finds that a prison term
is consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised
Code and finds that the offender is not amenable to an available
community control sanction, the court shall impose a
prison term upon the offender.
(b) Except as provided in division (E), (F), or (G) of this section, if the
court does not make a
finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), or (h)
of this section and if the court, after
considering the factors set forth in section 2929.12 of the
Revised
Code, finds that a community
control sanction or combination of community control sanctions
is consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the
Revised
Code, the court shall impose a
community control sanction or combination of community control
sanctions upon the offender.
(C) Except as provided in division (E)
or (F) of this section, in determining whether to impose a prison
term as a sanction for a felony of the
third degree or a felony drug offense that is a
violation of a provision of
Chapter 2925. of the
Revised
Code and that is specified as
being subject to this division for purposes of sentencing, the
sentencing court shall comply with the purposes and principles
of sentencing under section 2929.11 of the
Revised
Code and with section 2929.12
of the Revised Code.
(D) Except as provided in division (E)
or (F) of this section, for a felony of the first or
second degree and for a felony drug offense that is a violation
of any provision of Chapter 2925., 3719., or 4729. of the
Revised Code for which a presumption in favor of
a prison term is specified as being applicable, it is presumed
that a prison term is necessary in order to comply
with the purposes and principles of sentencing under section 2929.11 of the
Revised Code. Notwithstanding the presumption established
under this division, the sentencing court may
impose a community control sanction or a combination of community control
sanctions instead of a prison term on an offender for a felony of the first or
second degree or for a felony drug offense that is a violation of any
provision of Chapter 2925., 3719., or 4729. of the Revised Code for which a
presumption in favor of a prison term is specified as being applicable if
it makes both of
the following findings:
(1) A community control sanction or a combination of community control
sanctions would
adequately punish the offender and protect the public from future
crime, because the applicable factors
under section 2929.12
of the Revised Code indicating a lesser
likelihood of recidivism
outweigh the applicable factors under that section
indicating a
greater likelihood of recidivism.
(2) A community control sanction or a combination of community control
sanctions would not
demean the seriousness of the offense, because one or more
factors under section 2929.12 of the Revised
Code that indicate that the offender's conduct was less serious than
conduct normally constituting the offense are applicable, and they outweigh
the applicable factors under that section that indicate that the
offender's conduct was more
serious than conduct normally constituting the offense.
(E)(1) Except as provided in division
(F) of this section, for any drug offense that is a
violation of any provision of Chapter 2925.
of the Revised Code and that is a felony of the
third, fourth, or fifth degree, the applicability of a
presumption under division (D) of this section in favor of a prison
term or of division (B) or (C) of this section in
determining
whether to impose a prison term for the offense shall be
determined as specified in section 2925.02, 2925.03, 2925.04,
2925.05, 2925.06, 2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or
2925.37 of the Revised Code,
whichever is applicable regarding the violation.
(2) If an offender who was convicted of or pleaded guilty to a felony drug
offense in violation of a provision of Chapter 2925.,
3719., or 4729. of the Revised Code violates the conditions of a community
control sanction imposed for the offense solely by possession or using a
controlled substance and if the offender has not failed to meet the conditions
of any drug treatment program in which the offender was ordered to
participate as a sanction for the offense, the court, as punishment for the
violation of the sanction, shall order that the offender participate in a drug
treatment program or in alcoholics anonymous, narcotics anonymous, or a
similar program if the court determines that an order of that nature is
consistent with the purposes and principles of sentencing set forth in section
2929.11 of the Revised Code. If the court determines that an order of that
nature would not be consistent with those purposes and principles or if the
offender violated the conditions of a drug treatment program in which the
offender participated as a sanction for the offense, the court may impose on
the offender a sanction authorized for the violation of the sanction,
including a prison term.
(F) Notwithstanding divisions (A) to
(E) of this section, the court shall impose a prison
term or terms under sections 2929.02 to 2929.06, section 2929.14, or section
2971.03 of the Revised Code and except as specifically provided in
section 2929.20 of the Revised Code or when parole is
authorized for the offense under section 2967.13 of the Revised
Code, shall not reduce the terms pursuant to section 2929.20, section
2967.193, or any other provision of
Chapter 2967. or Chapter 5120. of
the Revised Code for any of the following
offenses:
(1) Aggravated murder when death is not imposed or murder;
(2) Rape or ANY RAPE, REGARDLESS OF WHETHER FORCE WAS INVOLVED AND
REGARDLESS OF THE AGE OF THE VICTIM, OR an attempt to commit rape by force
when
the victim is under
thirteen years of age;
(3) Gross sexual imposition or sexual battery, if the victim is under
thirteen
years of age, if the offender previously was convicted of or pleaded guilty to
rape, THE FORMER OFFENSE OF felonious sexual penetration, gross sexual
imposition, or sexual
battery,
and if the victim of the previous offense was under thirteen years of age;
(4) A felony violation of section 2903.06, 2903.07,
or 2903.08 of the Revised Code if the section requires the
imposition of a prison term;
(5) A first, second, or third degree felony drug
offense for which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or
4729.99 of the Revised Code, whichever is
applicable regarding the violation, requires the imposition of a
mandatory prison term;
(6) Any offense that is a first or second degree felony
and that is not set forth in division (F)(1), (2), (3), or (4)
of this section, if the offender previously was convicted of or
pleaded guilty to aggravated murder, murder, any first or
second degree felony, or an offense under an existing or former law
of this state, another state, or the United States that is
or was substantially equivalent to one of those offenses;
(7) Any offense, other than a violation of section 2923.12 of the Revised
Code, that is a felony, if the offender had a
firearm on or about the offender's person or under the offender's control
while committing the felony, with respect to a portion of the
sentence imposed pursuant to division (D)(1)(a) of
section 2929.14 of the Revised Code for having the firearm;
(8) Corrupt activity in violation of section 2923.32 of
the Revised Code when the most serious offense in
the pattern of corrupt activity that is the basis of the offense
is a felony of the first degree;
(9) Any sexually violent offense for which the offender also is convicted
of or pleads guilty to a sexually violent predator
specification that was included in the indictment, count in the indictment, or
information charging the sexually violent offense.
(G) Notwithstanding divisions (A) to (E) of
this section, if an offender is being sentenced for a fourth degree felony
OMVI offense, the court shall impose upon the offender a mandatory
term of local incarceration or a mandatory prison term in accordance with the
following:
(1) Except as provided in division (G)(2) of this section, the
court shall impose upon the offender a mandatory term of local incarceration
of sixty days as specified in division (A)(4) of section 4511.99 of
the Revised Code and shall not reduce the term pursuant to
section 2929.20, 2967.193, or any other provision of the Revised
Code. The court that imposes a mandatory term of local incarceration
under
this division shall specify whether the term is to be served in a
jail, a community-based correctional
facility, a halfway house, or an alternative residential facility, and the
offender shall serve the term in the type of facility specified
by the court. The court shall not sentence the offender to a prison term and
shall not specify that the offender is to serve the mandatory term of local
incarceration in prison. A mandatory term of local incarceration imposed
under division (G)(1) of this section is not subject to extension
under section 2967.11 of the Revised Code, to a period of post-release control
under section 2967.28 of the Revised Code, or to any other Revised Code
provision that pertains to a prison term.
(2) If the offender previously has been sentenced to a mandatory term
of local incarceration pursuant to division (G)(1) of this section for a
fourth degree felony OMVI offense, the court shall impose upon the
offender a mandatory prison term of sixty days as specified in division (A)(4)
of section 4511.99 of the Revised Code and shall not reduce the term pursuant
to section 2929.20, 2967.193, or any other provision of the Revised Code. In
no case shall an offender who once has been sentenced to a mandatory term
of local incarceration pursuant to division (G)(1) of this section for a
fourth degree felony OMVI offense be sentenced to another mandatory
term of local incarceration under that division for a fourth degree felony
OMVI offense. The court shall not sentence the offender to a
community control sanction under section 2929.16 or 2929.17 of the Revised
Code. The department of rehabilitation and correction may place an offender
sentenced to a mandatory prison term under this division in an intensive
program prison established pursuant to section 5120.033 of the Revised
Code if the department gave the sentencing judge prior notice of its intent to
place the offender in an intensive program prison established under that
section and if the judge did not notify the department that the judge
disapproved the placement.
(G)(H) If an offender is being sentenced
for a sexually oriented offense committed on or after the effective date of
this amendment, the judge shall require the offender to submit to a
DNA specimen collection procedure pursuant to section 2901.07 of the
Revised Code
if either of the following applies:
(1) The offense was a sexually violent offense, and the offender also was
convicted of or pleaded guilty to a sexually violent predator specification
that was included in the indictment,
count in the indictment, or information charging the sexually violent offense.
(2) The judge imposing sentence for the sexually oriented offense
determines pursuant to division (B) of section 2950.09 of the Revised
Code that the offender is a sexual predator.
(H)(I) If an offender is being sentenced
for a sexually oriented offense committed on or after the effective date of
this amendment, the judge shall include in the sentence a summary of the
offender's duty to register pursuant to section 2950.04 of the Revised Code,
the offender's duty to provide notice of a change in residence address and
register the new residence address pursuant to section 2950.05 of the Revised
Code, the offender's duty to periodically verify the offender's current
residence address pursuant to section 2950.06 of the Revised Code, and the
duration of the duties. The judge shall inform the offender, at the
time of sentencing, of those duties and of their duration and, if required
under division (A)(2) of section 2950.03 of
the Revised Code, shall perform the duties specified in that
section.
Sec. 2929.14. (A) Except as provided in
division (C), (D)(2), (D)(3), (D)(4), or (G) of this
section and except in relation to an offense for which a sentence
of death or life imprisonment is to be imposed, if the court
imposing a sentence upon an offender for a felony elects or is
required to impose a prison term on the offender pursuant to this
chapter and is not prohibited by division (G)(1) of section 2929.13 of the
Revised Code from imposing a prison term on the offender, the court shall
impose a definite prison term that shall
be one of the following:
(1) For a felony of the first degree, the prison term
shall be three, four, five, six, seven, eight, nine, or ten
years.
(2) For a felony of the second degree, the prison term
shall be two, three, four, five, six, seven, or eight years.
(3) For a felony of the third degree, the prison term
shall be one, two, three, four, or five years.
(4) For a felony of the fourth degree, the prison term
shall be six, seven, eight, nine, ten, eleven, twelve, thirteen,
fourteen, fifteen, sixteen, seventeen, or eighteen months.
(5) For a felony of the fifth degree, the prison term
shall be six, seven, eight, nine, ten, eleven,
or twelve months.
(B) Except as provided in division (C),
(D)(2), (D)(3), or (G) of this section, IN SECTION 2907.02
of the Revised Code, or in Chapter
2925. of the Revised Code, if the court
imposing a sentence upon an offender for a felony elects or is
required to impose a prison term on the offender and if the
offender previously has not served a prison term, the court shall
impose the shortest prison term authorized for the offense
pursuant to division (A) of this section, unless the
court finds on the record that the shortest prison term will
demean the seriousness of the offender's conduct or will not
adequately protect the public from future crime by the offender
or others.
(C) Except as provided in division (G) of this section or in Chapter 2925. of
the Revised Code, the court imposing a sentence upon an
offender for a felony may impose the longest prison term
authorized for the offense pursuant to division (A) of
this section only upon offenders who committed the worst forms of
the offense, upon offenders who pose the greatest likelihood of
committing future crimes, upon certain major drug offenders under
division (D)(3) of this section, and upon certain repeat
violent offenders in accordance with division (D)(2) of
this section.
(D)(1)(a)(i) Except as provided in division (D)(1)(b) of this section, if
an offender who is convicted of or pleads guilty to a felony also
is convicted of or pleads guilty to a specification of the type
described in section 2941.144 of the
Revised Code
that charges the offender with having a firearm that is an automatic firearm
or that was equipped with a firearm muffler or silencer on or about the
offender's person or
under the offender's control while committing the felony, a specification of
the type described in section 2941.145 of the Revised
Code that charges the offender with having a firearm on or about the
offender's person or under the offender's control while committing the offense
and displaying
the firearm, brandishing
the firearm, indicating that the offender possessed the firearm, or
using it to facilitate the offense,
or a specification of the type described in section 2941.141 of the Revised
Code
that charges the offender with having a firearm on or about the offender's
person or under the offender's control while committing the felony, the
court, after imposing a prison term on the
offender for the felony under division (A),
(D)(2), or (D)(3) of this section, shall impose
an additional prison term, determined pursuant to this division,
that shall not be reduced pursuant to section 2929.20, section 2967.193, or
any other provision of Chapter 2967. or Chapter 5120. of the
Revised
Code. If the specification is of the type described in
section 2941.144 of the Revised Code, the
additional prison term shall be six years. If the
specification
is of the type described in section 2941.145 of the
Revised Code, the
additional prison term shall be three years. If the specification is of the
type described in section 2941.141 of the Revised Code, the additional prison term shall be
one year. A court shall not
impose more than one additional prison term on an offender under
this division for felonies committed as part of
the same act or transaction. If a court imposes an additional prison
term under division (D)(1)(a)(ii) of this section, the court is not precluded
from imposing an additional prison term under this division.
(ii) Except as provided in division (D)(1)(b)
of this section, if an offender who is convicted of or pleads
guilty to a violation of section 2923.161 of the
Revised
Code or to a felony that includes,
as an essential element, purposely or knowingly causing or
attempting to cause the death of or physical harm to another,
also is convicted of or pleads guilty to a specification of the
type described in section 2941.146 of the
Revised
Code that charges the offender
with committing the offense by discharging a firearm from a
motor vehicle, as defined in section 4501.01 of the
Revised
Code, other than a manufactured
home, as defined in section 4501.01 of the
Revised
Code, the court, after imposing
a prison term on the offender for the violation of section
2923.161 of the Revised
Code or for the other felony
offense under division (A), (D)(2), or (D)(3) of this section, shall
impose an additional prison term of five years upon the offender
that shall not be reduced pursuant to section 2929.20, section 2967.193, or
any other provision of Chapter 2967. or Chapter 5120. of the Revised Code. A
court shall not impose
more than one additional prison term on an offender under this
division for felonies committed as part of the same
act or transaction. If a court imposes an additional prison term on an
offender under this division relative to an offense, the court also shall
impose an additional prison term under division (D)(1)(a)(i) of this section
relative to the same offense, provided the criteria specified in that division
for imposing an additional prison term are satisfied relative to the offender
and the offense.
(b) The court shall not impose any of the additional
prison terms described in division
(D)(1)(a)
of this section upon an offender for a violation of section
2923.12 of the Revised Code. The court shall not
impose any of the additional prison terms described in that division
upon an offender for a violation of section 2923.13 of the
Revised Code unless all of the following apply:
(i) The offender previously has been convicted
of aggravated murder, murder, or any felony of the first or
second degree.
(ii) Less than five years have passed since the
offender was released from prison or post-release control,
whichever is later, for the prior offense.
(2)(a) If an offender who is
convicted of or pleads guilty to a felony also is convicted of or pleads
guilty to a
specification of the type described in section 2941.149 of the Revised Code that the
offender is a repeat
violent offender, the court shall
impose a prison term from the range of terms authorized for the offense
under division (A) of this section
that may be the longest term in the range and that shall not be reduced
pursuant to section 2929.20, section 2967.193, or
any other provision of Chapter 2967. or Chapter 5120. of the
Revised
Code. If the court finds that the
repeat violent offender, in committing the offense, caused any
physical harm that carried a substantial risk of death to a
person or that involved substantial permanent incapacity or
substantial permanent disfigurement of a person,
the court shall impose the longest prison term from the range of terms
authorized for the
offense under division (A) of this section.
(b) If the court imposing a prison term on a
repeat violent offender imposes the longest prison term
from the range of terms authorized for the offense under division
(A) of this section, the court may impose on the offender
an additional definite prison term of one, two, three, four,
five, six, seven, eight, nine, or ten years if the court finds
that both of the following apply with respect to the prison terms
imposed on the offender pursuant to division
(D)(2)(a) of this section and, if
applicable, divisions (D)(1) and (3) of this section:
(i) The terms so imposed are inadequate to
punish the offender and protect the public from future crime,
because the applicable factors
under
section 2929.12
of the Revised Code indicating a greater
likelihood of recidivism outweigh
the applicable factors under that section indicating a lesser likelihood of
recidivism.
(ii) The terms so imposed are demeaning to the
seriousness of the offense, because one or more of the factors
under section 2929.12 of the Revised Code
indicating that the offender's conduct is more serious than conduct normally
constituting the offense are present, and they outweigh the applicable
factors under that section indicating that the offender's
conduct is
less serious than conduct normally constituting the offense.
(3)(a) Except when an offender commits a
violation of section 2903.01 or 2907.02 of the
Revised Code and the penalty imposed for the
violation is life imprisonment or commits a violation of section
2903.02 of the Revised Code, if the offender
commits a violation of section 2925.03, 2925.04, or 2925.11 of
the Revised Code and that section requires the
imposition of a ten-year prison term on the offender or if a
court imposing a sentence upon an offender for a felony finds
that the offender is guilty of a specification of the type
described in section 2941.1410 of the Revised Code, that the offender is a
major drug offender, is guilty
of corrupt activity with the most serious offense in the pattern
of corrupt activity being a felony of the first degree, or is guilty of
an attempted forcible violation of section 2907.02 of the Revised Code with
the victim being under
thirteen years of age and that attempted violation is the felony
for which sentence is being imposed, the court shall impose upon
the offender for the felony violation a ten-year prison term that
cannot be reduced pursuant to section 2929.20 or Chapter
2967. or 5120. of the Revised Code.
(b) The court imposing a prison term on an
offender under division (D)(3)(a) of this
section may impose an additional prison term of one, two, three,
four, five, six, seven, eight, nine, or ten years, if the court,
with respect to the term imposed under division
(D)(3)(a) of this section and, if
applicable, divisions (D)(1) and (2) of this section,
makes both of the findings set forth in divisions
(D)(2)(b)(i) and (ii) of this section.
(4) If the offender is being sentenced for a fourth degree felony
OMVI
offense and if division (G)(2) of section 2929.13 of the Revised Code requires
the sentencing court to impose upon the offender a mandatory prison term, the
sentencing court shall impose upon the offender a mandatory prison term in
accordance with that division. In addition to the mandatory prison term, the
sentencing court may sentence the offender to an additional prison term of any
duration specified in division (A)(4) of this section minus the sixty days
imposed upon the offender as the mandatory prison term. The total of the
additional prison term imposed under division (D)(4) of this section
plus the sixty days imposed as the mandatory prison term shall equal one of
the authorized prison terms specified in division (A)(4) of this section. If
the court imposes an additional prison term under division (D)(4) of this
section, the offender shall serve the additional prison term after the
offender has served the mandatory prison term required for the offense. The
court shall not sentence the offender to a community control sanction under
section 2929.16 or 2929.17 of the Revised Code.
(E)(1) If a mandatory prison term is imposed
upon an offender pursuant to division (D)(1)(a) of this
section for having a firearm on or about the offender's person or under the
offender's
control while committing a felony or if a mandatory prison term is imposed
upon an offender pursuant to division (D)(1)(b) of
this section for committing a felony specified in that division by discharging
a firearm from a motor vehicle, the offender shall serve
the mandatory prison term consecutively to and prior to the prison term
imposed for the underlying felony pursuant to division (A),
(D)(2), or (D)(3) of this section or any other
section of the Revised Code and consecutively to any other prison term
or
mandatory prison term previously or subsequently imposed upon the
offender.
(2) If an offender who is an inmate in a jail, prison,
or other residential detention facility violates section 2917.02,
2917.03, 2921.34, or 2921.35 of the Revised Code,
if an offender who is under detention at a detention facility commits a felony
violation of section 2923.131 of the Revised Code, or if an offender who is an
inmate in a jail, prison, or other residential detention facility or is under
detention at a detention facility commits another felony while the offender is
an
escapee in violation of
section 2921.34 of the Revised Code, any prison
term imposed upon the offender for one of those violations
shall be served by the offender consecutively to the prison term or term of
imprisonment the offender
was serving when the offender committed that offense and to any other prison
term previously or subsequently imposed upon the offender. As used in this
division, "detention" and "detention facility" have the same meanings as in
section 2921.01 of the Revised Code.
(3) If a prison term is imposed for a violation of division
(B) of section 2911.01 of the Revised
Code, the offender shall serve that prison term consecutively to any
other prison term.
(4) If multiple prison terms are imposed on an offender
for convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the seriousness of the
offender's conduct and to the danger the offender
poses to the public, and if the court also finds any
of the following:
(a) The offender committed the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under
post-release control for a prior offense.
(b) The harm caused by the multiple offenses
was so great or unusual that no single prison term for any of the
offenses committed as part of a single course of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct
demonstrates that consecutive sentences are necessary to protect
the public from future crime by the offender.
(5) When consecutive prison terms are imposed pursuant
to division (E)(1), (2), (3), or (4) of this
section, the term to be served is the aggregate of all of the terms so
imposed.
(F) If a court imposes a prison term of a type
described in division (B) of section 2967.28 of the
Revised Code, it shall include in the sentence a
requirement that the offender be subject to a period of
post-release control after the offender's release from imprisonment, in
accordance with that division. If a court imposes a prison term
of a type described in division (C) of that section, it
shall include in the sentence a requirement that the offender be
subject to a period of post-release control after the offender's release
from imprisonment, in accordance with that division, if the
parole board determines that a period of post-release control is
necessary.
(G) If a person is convicted of or pleads guilty to a sexually violent
offense and also is convicted of or pleads guilty to a sexually violent
predator specification that was included in the indictment, count in the
indictment, or information charging that offense, the court shall impose
sentence upon the offender in accordance with section 2971.03 of the Revised
Code, and Chapter 2971. of the Revised Code applies regarding the prison term
or term of life imprisonment without parole imposed upon the offender and the
service of that term of imprisonment.
Section 2. That existing sections 2907.01, 2907.02, 2907.03,
2907.05, 2929.13, and 2929.14
of the Revised Code are hereby repealed.
Section 3. Section 2929.13 of the Revised Code is
presented in this act as a composite of the section as amended
by Am. Sub. H.B. 180, Am. Sub. H.B. 445, Am. Sub. S.B. 166, and
Am. Sub. S.B. 269 of the 121st General Assembly, with the new
language of none of the acts shown in capital letters.
This is in recognition of the principle stated in division (B) of
section 1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and
constitutes a legislative finding that such is the resulting
version in effect prior to the effective date of this act.
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