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As Reported by the Senate Judiciary Committee
122nd General Assembly
Regular Session
1997-1998 | S. B. No. 107 |
SENATORS BLESSING-B. JOHNSON-LATTA-OELSLAGER
A BILL
To amend sections 2929.02, 2929.05, 2929.06, 2949.28, 2949.29, and 2949.31 and
to repeal sections 2949.30 and 2949.32 of the Revised Code to eliminate the
mechanism for vacating a sentence of death because it is imposed upon an
offender under 18 and to revise the mechanism for suspending the execution of
a pregnant or insane offender who is sentenced to death.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2929.02, 2929.05, 2929.06, 2949.28, 2949.29, and
2949.31 of the Revised Code be amended to read as follows:
Sec. 2929.02. (A) Whoever is convicted of or pleads guilty to aggravated
murder in violation of section 2903.01 of the Revised Code shall
suffer death or be imprisoned for life, as determined pursuant to
sections 2929.022, 2929.03, and 2929.04 of the Revised Code,
except that no person who raises the matter of age pursuant to
section 2929.023 or division (C) of section 2929.05 of the
Revised Code and who is not found to have been eighteen years of
age or older at the time of the commission of the offense shall
suffer death. In addition, the offender may be fined an amount
fixed by the court, but not more than twenty-five thousand
dollars.
(B) Whoever is convicted of or pleads guilty to murder in violation of
section 2903.02 of the Revised Code shall be imprisoned for an indefinite
term of fifteen years to life, except that, if the offender also is
convicted of or pleads guilty to a sexual motivation specification and a
sexually violent predator specification that were included in the indictment,
count in the indictment, or information that charged the murder, the court
shall impose upon the offender a term of life imprisonment without
parole that shall be served pursuant to section 2971.03
of the Revised Code. In addition, the offender may be
fined an amount fixed by the court, but not more than fifteen
thousand dollars.
(C) The court shall not impose a fine or fines for
aggravated murder or murder which, in the aggregate and to the
extent not suspended by the court, exceeds the amount which the
offender is or will be able to pay by the method and within the
time allowed without undue hardship to the offender or
to the dependents of the offender, or will prevent
the offender from making reparation for the victim's
wrongful death.
Sec. 2929.05. (A) Whenever sentence of death is imposed
pursuant to sections 2929.03 and 2929.04 of the Revised Code, the
court of appeals, in a case in which a sentence of death was
imposed for an offense committed before January 1,
1995, and the supreme court shall upon appeal review
the sentence of death at the same time that they review the other
issues in the case. The court of appeals and the supreme court
shall review the judgment in the case and the sentence of death
imposed by the court or panel of three judges in the same manner
that they review other criminal cases, except that they shall
review and independently weigh all of the facts and other
evidence disclosed in the record in the case and consider the
offense and the offender to determine whether the aggravating
circumstances the offender was found guilty of committing
outweigh the mitigating factors in the case, and whether the
sentence of death is appropriate. In determining whether the
sentence of death is appropriate, the court of appeals, in a case in
which a
sentence of death was imposed for an offense committed before January
1, 1995, and the
supreme court shall consider whether the sentence is excessive or
disproportionate to the penalty imposed in similar cases. They
shall also review all of the facts and other evidence to
determine if the evidence supports the finding of the aggravating
circumstances the trial jury or the panel of three judges found
the offender guilty of committing, and shall determine whether
the sentencing court properly weighed the aggravating
circumstances the offender was found guilty of committing and the
mitigating factors. The court of appeals, in a case in which a
sentence of death was imposed for an offense committed before January
1, 1995, or the supreme court
shall affirm a sentence of death only if the particular court is
persuaded from the record that the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating
factors present in the case and that the sentence of death is the
appropriate sentence in the case.
A court of appeals that reviews a case in which the
sentence of death is imposed for an offense committed before
January 1, 1995, shall file a separate opinion as to
its findings in the case with the clerk of the supreme court. The opinion
shall be filed within fifteen days after the court
issues its opinion and shall contain whatever information is
required by the clerk of the supreme court.
(B) The court of appeals, in a case in which a sentence of death
was imposed for an offense committed before January 1,
1995, and the supreme court shall give
priority over all other cases to the review of judgments in which
the sentence of death is imposed, and, except as otherwise
provided in this section, shall conduct the review in accordance
with the RULES OF Appellate Rules
PROCEDURE.
(C) Whenever sentence of death is imposed pursuant to
section 2929.022 or 2929.03 of the Revised Code, the court of
common pleas that sentenced the offender shall, upon motion of
the offender and after conducting a hearing on the motion, vacate
the sentence if all of the following apply:
(1) The offender alleges in the motion and presents
evidence at the hearing that the offender was not
eighteen years of age or
older at the time of the commission of the aggravated murder for
which the offender was sentenced;
(2) The offender did not present evidence at trial
pursuant to section 2929.023 of the Revised Code that
the offender was not
eighteen years of age or older at the time of the commission of
the aggravated murder for which the offender was
sentenced;
(3) The motion was filed at any time after the sentence
was imposed in the case and prior to execution of the sentence;
(4) At the hearing conducted on the motion, the
prosecution does not prove beyond a reasonable doubt that the
offender was eighteen years of age or older at the time of the
commission of the aggravated murder for which the offender was sentenced.
Sec. 2929.06. (A)(1) If the sentence of death that is imposed
upon an offender is vacated upon appeal because the court of
appeals, in a case in which a sentence of death was imposed for an offense
committed before January 1, 1995, or the supreme court, in cases in which the
supreme court reviews the sentence upon appeal, could not affirm the sentence
of death under the standards imposed by section 2929.05 of the
Revised Code, OR is vacated upon appeal for the sole reason that
the
statutory procedure for imposing the sentence of death that is
set forth in sections 2929.03 and 2929.04 of the Revised Code is
unconstitutional, or is vacated pursuant to division (C) of
section 2929.05 of the Revised Code, the trial court that
sentenced the offender shall conduct a hearing to resentence the
offender. At the resentencing hearing, the court shall impose one of the
following sentences upon the offender:
(1) Except as provided in division (A)(2) of this section, life imprisonment
without parole, life imprisonment with parole eligibility after serving
twenty-five full years of imprisonment, or life imprisonment
with parole eligibility after serving thirty full years of
imprisonment;
(2) If the sentence of death was imposed for an aggravated murder committed
on
or after the effective date of this amendment JANUARY
1, 1997, and if the offender also was
convicted of or pleaded guilty to a sexual motivation specification and a
sexually violent predator specification that were included in the indictment,
count in the indictment, or information that charged the aggravated murder,
life imprisonment without parole that shall be served pursuant to section
2971.03 of the Revised Code.
(2)(B) If the sentence of death that is imposed upon an
offender is vacated upon appeal because of error that occurred in the
sentencing phase of the trial and if division (A)(1) of this section
does not apply, the trial court that sentenced the offender shall conduct a
new
hearing to resentence the offender. If the offender was tried by a jury, the
trial court shall impanel a new jury for the hearing. If the offender was
tried by a panel of three judges, that panel or, if necessary, a new panel of
three judges, shall conduct the hearing. At the hearing, the court shall
follow the procedure set forth in division (D) of section 2929.03 of the
Revised Code in determining whether to impose upon the offender a sentence of
death, life imprisonment without parole, life imprisonment with parole
eligibility after serving twenty-FIVE full years of
imprisonment, or life imprisonment with parole eligibility after serving
thirty full years of imprisonment.
(B)(C) If the sentence of life imprisonment without parole
that is
imposed upon an offender pursuant to section 2929.021 or 2929.03 of the
Revised Code is vacated upon appeal
for the sole reason that the statutory procedure for imposing the sentence of
life imprisonment without parole that is set forth in sections 2929.03 and
2929.04 of the Revised Code is unconstitutional, the trial court that
sentenced the offender shall conduct a hearing to resentence the offender to
life imprisonment with parole eligibility after serving twenty-five full years
of imprisonment or to life imprisonment with parole eligibility after serving
thirty full years of imprisonment.
Sec. 2949.28. (A) AS USED IN THIS SECTION AND SECTION 2949.29
of the Revised Code, "INSANE" MEANS THAT THE CONVICT IN QUESTION DOES NOT HAVE THE MENTAL
CAPACITY TO UNDERSTAND THE NATURE OF THE DEATH PENALTY AND WHY IT WAS IMPOSED
UPON THE CONVICT.
(B)(1) If a convict sentenced to death appears OR CLAIMS to
be insane, the
warden or the sheriff having custody of such THE convict,
THE CONVICT, THE CONVICT'S COUNSEL, OR A PSYCHIATRIST OR PSYCHOLOGIST WHO
HAS EXAMINED THE CONVICT shall give notice thereof
to a OF THE APPARENT OR CLAIMED INSANITIY TO WHICHEVER OF THE FOLLOWING
IS APPLICABLE:
(a) IF THE CONVICT WAS TRIED BY A JURY, TO THE JUDGE WHO IMPOSED
THE SENTENCE UPON THE CONVICT OR, IF THAT JUDGE IS UNAVAILABLE, TO ANOTHER
JUDGE OF THE SAME COURT OF COMMON PLEAS;
(b) IF THE CONVICT WAS TRIED BY A THREE-JUDGE PANEL, TO ANY OF
THE THREE JUDGES WHO IMPOSED THE SENTENCE UPON THE CONVICT OR, IF EACH OF
THOSE JUDGES IS UNAVAILABLE, TO ANOTHER judge of the SAME court of
common pleas of the county in which the
prisoner is
confined. Said
(2) EXCEPT AS PROVIDED IN DIVISION (C) OF THIS SECTION,
THE judge WHO IS GIVEN NOTICE UNDER DIVISION (B)(1) OF THIS
SECTION shall inquire into such THE CONVICT'S insanity at a
time and place to
be
fixed by said THE judge, or impanel a jury for that
purpose and shall give
immediate notice thereof OF THE INQUIRY to the prosecuting
attorney of the county in which
the prisoner was convicted WHO PROSECUTED THE CASE, OR THAT PROSECUTING
ATTORNEY'S SUCCESSOR, AND TO THE CONVICT AND THE CONVICT'S COUNSEL. THE JUDGE
MAY HOLD THE INQUIRY AT THE PLACE AT WHICH THE CONVICT IS CONFINED.
Execution of the sentence shall be suspended
pending completion of the inquiry, AND, IF THE CONVICT DOES NOT HAVE
COUNSEL, THE COURT SHALL APPOINT AN ATTORNEY TO REPRESENT THE CONVICT IN THE
INQUIRY. THE COURT SHALL APPOINT ONE OR MORE PSYCHIATRISTS TO EXAMINE THE
CONVICT. THE CONVICT IS NOT ENTITLED TO HAVE A PSYCHIATRIST OF THE CONVICT'S
CHOICE APPOINTED TO EXAMINE THE CONVICT.
(C) IF LESS THAN ONE HUNDRED EIGHTY DAYS HAVE ELAPSED SINCE THE
CONCLUSION OF ANY PREVIOUS INQUIRY UNDER THIS SECTION INTO THE INSANITY OF THE
CONVICT AT WHICH IT WAS DETERMINED THAT THE CONVICT WAS NOT INSANE, THE COURT
MAY CONDUCT, BUT IS NOT REQUIRED TO CONDUCT, FURTHER INQUIRY INTO THE
CONVICT'S INSANITY UNDER THIS SECTION AND MAY DISMISS THE MATTER WITHOUT
HEARING.
Sec. 2949.29. In addition to the warden or sheriff, the
judge of the court of common pleas, clerk of the court of common
pleas, and (A) THE prosecuting attorney, THE
CONVICT, AND THE CONVICT'S COUNSEL shall attend the AN
inquiry
commenced as provided in section 2949.28 of the Revised Code.
Witnesses THE PROSECUTING ATTORNEY AND THE CONVICT OR THE CONVICT'S
COUNSEL may be produced and examined before the judge or jury
PRODUCE, EXAMINE, AND CROSS-EXAMINE WITNESSES,
and all findings shall be in writing signed by the judge or jury.
If it is found that the convict is not insane, the sentence shall
be executed at the time previously appointed, unless such THAT
time
has passed pending completion of the inquiry, in which case the
judge conducting the inquiry shall appoint a time for execution.
If
(B) IF it is found that the convict is insane, the judge
shall
suspend the execution until the warden or sheriff receives a
warrant from the governor directing such execution as provided in
section 2949.30 of the Revised Code. The finding, and the order
of such judge, certified by him, shall be entered on the journal
of the court by the clerk OF SENTENCE, ORDER THE CONVICT TO BE CONFINED
IN THE AREA AT WHICH OTHER CONVICTS SENTENCED TO DEATH ARE CONFINED, AND ORDER
TREATMENT OF THE CONVICT. THEREAFTER, THE COURT AT ANY TIME MAY CONDUCT AND,
ON MOTION OF THE PROSECUTING ATTORNEY, SHALL CONDUCT A HEARING TO CONTINUE THE
INQUIRY INTO THE CONVICT'S INSANITY. IF THE COURT FINDS AT THE HEARING THAT
THE CONVICT IS NOT INSANE AND IF THE TIME PREVIOUSLY APPOINTED FOR EXECUTION
OF THE SENTENCE HAS NOT PASSED, THE SENTENCE SHALL BE EXECUTED AT THE
PREVIOUSLY APPOINTED TIME. IF THE COURT FINDS AT THE HEARING THAT THE CONVICT
IS NOT INSANE AND IF THE TIME PREVIOUSLY APPOINTED FOR EXECUTION OF THE
SENTENCE HAS PASSED, THE JUDGE WHO CONDUCTS THE HEARING SHALL APPOINT A NEW
TIME FOR THE EXECUTION OF SENTENCE.
(C) IN ALL PROCEEDINGS UNDER THIS SECTION AND SECTION 2949.28
of the Revised Code, THE BURDEN OF PROOF OF INSANITY IS UPON THE CONVICT BY A PREPONDERANCE
OF THE EVIDENCE, AND THE COURT SHALL FIND THAT THE CONVICT IS NOT INSANE
UNLESS THE COURT FINDS BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONVICT IS
INSANE.
(D) PROCEEDINGS FOR INQUIRY INTO THE INSANITY OF ANY CONVICT
SENTENCED TO DEATH SHALL BE EXCLUSIVELY PURSUANT TO THIS SECTION, SECTION
2949.28 of the Revised Code, AND THE RULES OF EVIDENCE. NEITHER
CHAPTER 5122. OR 5123. of the Revised Code NOR ANY OTHER PROVISION of the Revised Code OR ANY OTHER
RULE CONCERNING MENTALLY ILL PERSONS, MENTALLY RETARDED PERSONS, OR INSANE
PERSONS APPLIES TO ANY PROCEEDING FOR INQUIRY INTO THE INSANITY OF ANY CONVICT
SENTENCED TO DEATH.
(E) THE APPELLATE COURT IN WHICH THE APPEAL IS FILED SHALL
EXPEDITE ANY APPEAL FROM A DECISION RENDERED PURSUANT TO THIS SECTION OR
SECTION 2949.28 of the Revised Code. NO COURT SHALL ORDER A STAY OF EXECUTION EXCEEDING
SIXTY DAYS PENDING THE APPEAL.
Sec. 2949.31. If a female convict sentenced to death appears OR CLAIMS
to be pregnant,
the warden or sheriff having custody of such THE convict,
THE CONVICT, HER COUNSEL, OR A PHYSICIAN WHO HAS EXAMINED THE CONVICT
shall give notice thereof OF THE APPARENT OR CLAIMED PREGNANCY
to a judge of the court of common pleas of the county in which the prisoner is
confined, and like proceedings shall be had as are provided under sections
2949.28 and 2949.29 of the Revised Code in case of an insane convict sentenced
to death, EXCEPT TO THE EXTENT THAT THEY BY THEIR NATURE CLEARLY
WOULD BE INAPPLICABLE
IF IT IS FOUND AT THE INQUIRY HELD IN ACCORDANCE WITH SECTIONS 2949.28 AND
2949.29 of the Revised Code THAT THE CONVICT IS NOT PREGNANT, THE SENTENCE SHALL BE EXECUTED
AT THE TIME PREVIOUSLY APPOINTED, UNLESS THAT TIME HAS PASSED PENDING
COMPLETION OF THE INQUIRY, IN WHICH CASE THE JUDGE CONDUCTING THE INQUIRY
SHALL APPOINT A NEW TIME FOR EXECUTION.
IF IT IS FOUND AT THE INQUIRY THAT THE CONVICT IS PREGNANT, THE JUDGE SHALL
SUSPEND THE EXECUTION OF SENTENCE, AND ORDER THE CONVICT TO BE CONFINED IN THE
AREA AT WHICH OTHER CONVICTS SENTENCED TO DEATH ARE CONFINED. WHEN THE COURT
FINDS THAT THE CONVICT NO LONGER IS PREGNANT, IF THE TIME PREVIOUSLY APPOINTED
FOR EXECUTION OF THE SENTENCE HAS NOT PASSED, THE SENTENCE SHALL BE EXECUTED
AT THE PREVIOUSLY APPOINTED TIME. WHEN THE COURT FINDS THAT THE CONVICT NO
LONGER IS PREGNANT, IF THE TIME PREVIOUSLY APPOINTED FOR EXECUTION OF THE
SENTENCE HAS PASSED, THE JUDGE WHO CONDUCTS THE INQUIRY SHALL APPOINT A NEW
TIME FOR THE EXECUTION OF SENTENCE.
Section 2. That existing sections 2929.02, 2929.05, 2929.06, 2949.28, 2949.29,
and 2949.31 and sections 2949.30 and 2949.32 of the Revised Code are hereby
repealed.
Section 3. Section 2929.06 of the Revised Code is presented in this act
as a composite of the section as amended by
Am. Sub. S.B. 269, Sub. S.B. 258, and Am. Sub. H.B. 180 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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