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As Reported by House Criminal Justice Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 331 |
REPRESENTATIVES DePIERO-PERRY-JERSE-VERICH-TAYLOR-METELSKY-
PRINGLE-VESPER-GOODMAN-OPFER-SULLIVAN-TIBERI-MYERS
A BILL
To amend section 2953.08 of the Revised Code to modify the procedure pursuant
to which a court of appeals may modify or vacate and remand a sentence that
imposes specified types of prison terms.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2953.08 of the Revised Code be amended to read as
follows:
Sec. 2953.08. (A) In addition to any other
right to appeal and except as provided in division (D) of
this section, a defendant who is convicted of or pleads guilty to
a felony may appeal as a matter of right the sentence imposed
upon the defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum prison term allowed for
the offense by division (A) of section 2929.14 of the Revised Code and was not
imposed pursuant to division
(D)(3)(b) of section 2929.14 of the Revised Code, and the court imposed it
under one of the following circumstances:
(a) The sentence was imposed for only one offense.
(b) The sentence was imposed for two or more
offenses arising out of a single incident, and the court imposed
the maximum prison term for the offense of the highest degree.
(2) The sentence consisted of or included a prison term, the offense for
which it was imposed is a felony of the fourth or fifth degree or is 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
division (B) of section 2929.13 of the Revised Code for purposes of
sentencing, and the court did not specify at sentencing that it found one or
more factors specified
in divisions (B)(1)(a) to (h) of
section 2929.13 of the Revised Code to apply
relative to the
defendant. If the court specifies that it found
one or more of those factors to apply relative to the defendant,
the defendant is not entitled under this division to appeal as a
matter of right the sentence imposed upon the offender.
(3) The person was convicted of or pleaded guilty to a sexually violent
offense, was adjudicated as being a sexually violent predator, and was
sentenced pursuant to division (A)(3) of
section 2971.03 of the Revised Code, if the minimum
term of the indefinite term imposed pursuant to division (A)(3) of
section 2971.03 of the Revised Code is the longest term available for the
offense from among
the range of terms listed in section 2929.14 of the Revised Code. As used in
this division,
"sexually violent offense" and "sexually violent predator" have the same
meanings as in section 2971.01 of the Revised Code.
(4) The sentence is contrary to law.
(5) The sentence consisted of an additional prison term of
ten years imposed pursuant to division (D)(3)(b) of section 2929.14 of the
Revised Code.
(B) In addition to any other right to appeal
and except as provided in division (D) of this section, a
prosecuting attorney, a city director of law, village solicitor, or
similar chief legal officer of a municipal corporation, or the
attorney general, if one of those persons prosecuted the case, may appeal as a
matter of right a sentence
imposed upon a defendant who is convicted of or pleads guilty to
a felony or, in the circumstances described in division (B)(3) of
this section the modification of a sentence imposed upon such a defendant, on
any of the following grounds:
(1) The sentence did not include a prison
term despite a presumption favoring a prison term for the offense
for which it was imposed, as set forth in section 2929.13
or Chapter 2925. of the Revised Code.
(2) The sentence is contrary to law.
(3) The sentence is a modification under section 2929.20 of the Revised Code
of a sentence that was imposed for a felony of the first or second degree.
(C) In addition to the right to appeal a sentence
granted under division (A) or (B) of this
section, a defendant who is convicted of or pleads guilty to a
felony may seek leave to appeal a sentence imposed upon the
defendant on the basis that the sentencing judge has imposed
consecutive sentences under division (E)(3) or (4) of
section 2929.14 of the Revised Code and that the
consecutive sentences exceed the maximum prison term allowed by
division (A) of that section for the most serious offense
of which the defendant was convicted. Upon the filing of a
motion under this division, the court
of appeals may grant leave to appeal the sentence if the court
determines that the allegation included as the basis of
the motion is true.
(D) A sentence imposed upon a defendant is not
subject to review under this section if the sentence is
authorized by law, has been recommended jointly by the defendant
and the prosecution in the case, and is imposed by a sentencing
judge. A sentence imposed for aggravated murder or murder
pursuant to sections 2929.02 to 2929.06 of the Revised
Code is not subject to review under this section.
(E) A defendant, prosecuting attorney, city
director of law, village solicitor, or chief municipal legal
officer shall file an appeal of a sentence under this section to
a court of appeals within the time limits specified in
Rule 4(B) of the Rules of
Appellate Procedure, provided that if the appeal is pursuant
to division (B)(3) of this section, the time limits specified in that
rule shall not commence running until the court grants the motion that makes
the sentence modification in question. A sentence appeal under
this section shall be consolidated with any other appeal in the
case. If no other appeal is filed, the court of appeals may
review only the portions of the trial record that pertain to
sentencing.
(F) On the appeal of a sentence under this
section, the record to be reviewed shall include all of the
following, as applicable:
(1) Any presentence, psychiatric, or other
investigative report that was submitted to the court in writing
before the sentence was imposed. An appellate court that
reviews a presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in connection
with the appeal of a sentence under this section shall comply with division
(D)(3) of section 2951.03 of the Revised Code when the appellate court is not
using the presentence investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection with the appeal
of a sentence under this section does not affect the otherwise confidential
character of the contents of that report as described in division
(D)(1) of section 2951.03 of the Revised Code and does not cause that report
to become a public record, as defined in section 149.43 of the Revised Code,
following the appellate court's use of the report.
(2) The trial record in the case in which the sentence
was imposed;
(3) Any oral or written statements made to or by the
court at the sentencing hearing at which the sentence was
imposed;
(4) Any written findings that the court was required to
make in connection with the modification of the sentence pursuant
to a judicial release under division (H) of section
2929.20 of the Revised Code.
(G)(1)
IF THE SENTENCING COURT WAS REQUIRED TO MAKE THE FINDINGS REQUIRED
BY DIVISION (B) OR (D) OF SECTION 2929.13, DIVISION
(E)(4) OF
SECTION 2929.14, OR DIVISION (H) OF SECTION 2929.20 OF THE
REVISED
CODE RELATIVE TO THE IMPOSITION OR MODIFICATION OF THE SENTENCE,
AND IF THE SENTENCING COURT FAILED TO STATE THE REQUIRED FINDINGS ON THE
RECORD, THE COURT HEARING
AN APPEAL UNDER DIVISION (A), (B), OR (C) OF THIS
SECTION SHALL
REMAND THE CASE TO THE SENTENCING COURT AND INSTRUCT THE SENTENCING COURT
TO STATE, ON THE RECORD, THE REQUIRED FINDINGS.
(2)
The court hearing an appeal of a sentence under division (A)
or, (B)(1)
or (2), OR (C) of this section
SHALL REVIEW THE RECORD, INCLUDING THE FINDINGS UNDERLYING THE
SENTENCE OR MODIFICATION GIVEN BY THE SENTENCING COURT.
THE APPELLATE COURT
may
increase, reduce, or otherwise modify a sentence that is appealed
under this section or may vacate the sentence and remand the
matter to the trial SENTENCING court for resentencing.
THE APPELLATE COURT'S STANDARD FOR REVIEW IS NOT
WHETHER
THE SENTENCING COURT ABUSED ITS DISCRETION. THE APPELLATE COURT MAY
TAKE ANY ACTION AUTHORIZED BY THIS
DIVISION
if the court IT clearly
and convincingly finds any EITHER of the following:
(a) That the record does not support the sentence
SENTENCING COURT'S FINDINGS UNDER DIVISION (B) OR
(D) OF SECTION
2929.13, DIVISION (E)(4) OF SECTION 2929.14, OR DIVISION (H)
OF
SECTION 2929.20 OF THE REVISED CODE, WHICHEVER, IF ANY, IS
RELEVANT;
(b) That the sentence included a prison term, that the offense
for which it was imposed is a felony of the fourth or fifth
degree or is 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 division (B) of section 2929.13 of the
Revised Code for purposes of sentencing, that the court did
not specify in the finding it makes at sentencing that it found one or more of
the factors specified in divisions (B)(1)(a) to
(h) of section 2929.13 of the Revised Code
to apply relative to the defendant who brought the appeal, and either that the
procedures set forth in division (B) of section 2929.13 of the Revised Code
for determining whether to
impose a prison term for such an offense were not followed or
that those procedures were followed but there is an insufficient
basis for imposing a prison term for the offense;
(c) That the sentence did not include a prison term, that the offense for
which it was imposed is a felony of the first or second degree or
is a felony drug offense that is a violation of a provision of Chapter 2925.
of the Revised Code for which a presumption in
favor of a prison term is specified as being applicable, and
either that the procedures set forth in division
(D) of section 2929.13 of the Revised Code that set forth the only
circumstances in which the presumption may be overridden and a
sanction other than a prison term may be imposed in lieu of a
prison term were not followed or that those procedures were
followed but there is an insufficient basis for overriding the
presumption and imposing a sanction other than a prison term for
the offense;
(d) That the sentence is otherwise contrary to law.
(2) The court hearing an appeal under division (B)(3) of
this section of a trial court's modification pursuant to section 2929.20 of
the Revised Code
of a sentence that was imposed upon a defendant for a felony of a first or
second degree may overturn the modification and reinstate the original
sentence, or may vacate the modification of the sentence and remand the matter
to the trial court for reconsideration, only if the court clearly and
convincingly finds any of the following:
(a) That the record does not support the modification based on
the criteria for modification set forth in division (H) of section
2929.20 of the Revised Code;
(b) That the modification was not made in accordance with the
procedures set forth in section 2929.20 of the Revised Code, that the
defendant was not
eligible for the modification under that section, or that the modification
otherwise was contrary to law.
(H) A judgment or final order of a court of
appeals under this section may be appealed, by leave of court, to
the supreme court.
(I)(1) There is hereby
established the felony sentence appeal cost oversight committee,
consisting of eight members. One member shall be the chief
justice of the supreme court or a representative of the court
designated by the chief justice, one member shall be a member of
the senate appointed by the president of the senate, one member
shall be a member of the house of representatives appointed by
the speaker of the house of representatives, one member shall be
the director of budget and management or a representative of the office of
budget and management designated
by the director, one member shall be a judge of a court of
appeals, court of common pleas, municipal court, or county court
appointed by the chief justice of the supreme court, one member
shall be the state public defender or a representative of the
office of the state public defender designated by the state
public defender, one member shall be a prosecuting attorney
appointed by the Ohio prosecuting attorneys association, and one member shall
be a county commissioner appointed by the county commissioners
association of Ohio. No more than three of the appointed members of the
committee may be members of the same political party.
The president of the senate, the speaker of the house of
representatives, the chief justice of the supreme court, the
Ohio prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial
appointments to the committee of the appointed members no later
than ninety days after July 1, 1996. Of
those initial appointments to the committee, the members
appointed by the speaker of the house of representatives and the
Ohio prosecuting attorneys
association shall serve a term ending two years after July 1, 1996, the member
appointed by
the chief justice of the supreme court shall serve
a term ending three years after July 1, 1996, and the members appointed by the
president of the
senate and the county commissioners association of
Ohio shall serve terms ending
four years after July 1, 1996. Thereafter, terms of office of the appointed
members shall be
for four years, with each term ending on the same day of the
same month as did the term that it succeeds. Members may be
reappointed. Vacancies shall be filled in the same
manner provided for original appointments. A member appointed
to fill a vacancy occurring prior to the expiration of the term
for which that member's predecessor was appointed shall hold
office as a member for the remainder of the predecessor's term. An appointed
member shall continue in office subsequent to the
expiration date of that member's term until that member's
successor takes office or until a period of sixty days has
elapsed, whichever occurs first.
If the chief justice of the supreme court, the director of
the office of budget and management, or the state public
defender serves as a member of the committee, that person's term
of office as a member shall continue for as long as that person
holds office as chief justice, director of the office of budget
and management, or state public defender. If the chief justice
of the supreme court designates a representative of the court to
serve as a member, the director of budget and management
designates a representative of the office of budget and
management to serve as a member, or the state public
defender designates a representative of the office of the state
public defender to serve as a member, the person so designated
shall serve as a member of the commission for as long as the
official who made the designation holds office as chief justice,
director of the office of budget and management, or state public
defender or until that official revokes the designation.
The chief justice of the supreme court or the
representative of the supreme court appointed by the chief
justice shall serve as chairperson of the committee. The committee
shall meet within two weeks after all appointed members have
been appointed and shall organize as necessary. Thereafter, the
committee shall meet at least once every six months or more
often upon the call of the chairperson or the written request of
three or more members, provided that the committee shall not meet unless
moneys have been appropriated to the judiciary budget administered by the
supreme court specifically for the purpose of providing financial assistance
to counties under division (I)(2) of this section and the moneys so
appropriated then are available for that purpose.
The members of the committee shall serve without
compensation, but, if moneys have been appropriated to the judiciary
budget administered by the supreme court specifically for the purpose of
providing financial assistance to counties under division (I)(2) of
this section, each member shall be reimbursed out of the moneys so
appropriated that then are available for actual and
necessary expenses incurred in the performance of official
duties as a committee member.
(2) The state criminal sentencing commission periodically shall provide to
the felony sentence appeal cost oversight committee all data the commission
collects pursuant to division
(A)(5) of section 181.25 of
the Revised Code. Upon receipt of the
data from the state criminal sentencing commission, the
felony sentence appeal cost oversight committee periodically
shall review the data; determine whether any money has been
appropriated to the judiciary budget administered by the supreme court
specifically for the purpose of providing state financial assistance to
counties in accordance with this division for the increase in expenses
the counties experience as a result of the felony sentence
appeal provisions set forth in this section or as a result of a postconviction
relief proceeding brought under division (A)(2) of section 2953.21
of the Revised Code or an appeal of a judgment in that proceeding; if it
determines that any money has been so appropriated, determine the total amount
of moneys that have been so appropriated specifically for
that purpose and that then are available for that
purpose; and develop a recommended method of distributing those
moneys to the counties. The committee shall send a copy of its
recommendation to the supreme court. Upon receipt of the
committee's recommendation, the supreme court shall distribute
to the counties, based upon that recommendation, the moneys that
have been so appropriated specifically for the purpose of providing
state financial assistance to counties under this
division and that then are available for that purpose.
Section 2. That existing section 2953.08 of the Revised Code is hereby
repealed.
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