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:

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.