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|
As Introduced
123rd General Assembly
Regular Session
1999-2000 | S. B. No. 107 |
SENATOR LATTA
A BILL
To amend sections 2901.04, 2923.02, 2925.02, 2925.03, 2925.04,
2925.05, 2925.11, 2925.23, 2925.36, 2927.24, 2929.01, 2929.12, 2929.13,
2929.14, 2929.15, 2929.17, 2929.18, 2929.19, 2929.20, 2929.223, 2935.36,
2937.99, 2941.141, 2941.144, 2941.145, 2941.146, 2941.1410, 2949.08,
2951.02, 2953.08, 2967.131, 2967.141, 2967.16, 2967.26, 2967.28, 3719.121,
3719.70,
3719.99, 4715.30, 4729.99, 4730.25, 4731.22, 5120.031, and
5120.032, to enact new section 2951.041, and to repeal sections 2929.181
and 2951.041 of the Revised Code to clarify and modify certain
provisions of the Controlled Substance Law and Drug Abuse Law
that were affected by Am. Sub. S.B. 2 and Am. Sub. S.B. 269 of
the 121st General Assembly, to modify the felony sentencing law
as modified by those acts, and to clarify that section 2929.181
of the Revised Code was repealed by Am. Sub. S.B. 269 of the
121st General Assembly, effective July 1, 1996.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2901.04, 2923.02, 2925.02, 2925.03,
2925.04, 2925.05, 2925.11, 2925.23, 2925.36, 2927.24, 2929.01,
2929.12, 2929.13, 2929.14, 2929.15, 2929.17, 2929.18, 2929.19, 2929.20,
2929.223, 2935.36, 2937.99, 2941.141, 2941.144, 2941.145, 2941.146, 2941.1410,
2949.08, 2951.02, 2953.08, 2967.131, 2967.141, 2967.16, 2967.26, 2967.28,
3719.121,
3719.70, 3719.99, 4715.30, 4729.99, 4730.25, 4731.22, 5120.031,
and 5120.032 be amended and new section 2951.041 of the Revised
Code be enacted to read as follows:
Sec. 2901.04. (A) Sections EXCEPT AS OTHERWISE PROVIDED IN
DIVISION (C) OF THIS SECTION, SECTIONS of the Revised Code
defining offenses or
penalties shall be strictly construed against the state, and liberally
construed in favor of the accused.
(B) Rules of criminal procedure and sections of the Revised Code providing
for criminal procedure shall be construed so as to effect the fair, impartial,
speedy, and sure administration of justice.
(C) ANY PROVISION OF A SECTION of the Revised Code THAT REFERS TO A PREVIOUS
CONVICTION OF OR PLEA OF GUILTY TO A VIOLATION OF A SECTION of the Revised Code OR OF A
DIVISION OF A SECTION of the Revised Code SHALL BE CONSTRUED TO ALSO REFER TO A PREVIOUS
CONVICTION OF OR PLEA OF GUILTY TO A SUBSTANTIALLY EQUIVALENT OFFENSE UNDER AN
EXISTING OR FORMER LAW OF THIS STATE, ANOTHER STATE, OR THE UNITED
STATES OR UNDER AN EXISTING OR FORMER MUNICIPAL ORDINANCE.
Sec. 2923.02. (A) No person, purposely or knowingly, and
when purpose or knowledge is sufficient culpability for the
commission of an offense, shall engage in conduct that, if
successful, would constitute or result in the offense.
(B) It is no defense to a charge under this section that,
in retrospect, commission of the offense that was the
object of
the attempt was either factually or legally impossible under the
attendant circumstances, if that offense could have been
committed had the attendant circumstances been as the actor
believed them to be.
(C) No person who is convicted of committing a specific
offense, of complicity in the commission of an offense, or of
conspiracy to commit an offense shall be convicted of an attempt
to commit the same offense in violation of this section.
(D) It is an affirmative defense to a charge under this
section that the actor abandoned the actor's effort to
commit the offense
or otherwise prevented its commission, under circumstances
manifesting a complete and voluntary renunciation of the
actor's criminal
purpose.
(E) Whoever violates this section is guilty of an attempt
to commit an offense. An attempt to commit aggravated murder, murder, or an
offense for which the maximum penalty is imprisonment for life is a felony of
the first degree. AN ATTEMPT TO COMMIT A DRUG ABUSE OFFENSE FOR WHICH THE
PENALTY IS DETERMINED BY THE AMOUNT OR NUMBER OF UNIT DOSES OF THE CONTROLLED
SUBSTANCE INVOLVED IN THE DRUG ABUSE OFFENSE IS AN OFFENSE OF THE SAME DEGREE
AS THE DRUG ABUSE OFFENSE ATTEMPTED WOULD BE IF THAT DRUG ABUSE OFFENSE HAD
BEEN COMMITTED AND HAD INVOLVED AN AMOUNT OR NUMBER OF UNIT DOSES OF THE
CONTROLLED SUBSTANCE THAT IS WITHIN THE NEXT LOWER RANGE OF CONTROLLED
SUBSTANCE AMOUNTS THAN WAS INVOLVED IN THE ATTEMPT. An attempt to
commit any other offense is
an offense of
the next lesser degree than the offense attempted. In the case
of an attempt to commit an offense other than a violation of
Chapter 3734. of the Revised Code that is not specifically
classified, an attempt is a misdemeanor of the first degree if
the offense attempted is a felony, and a misdemeanor of the
fourth degree if the offense attempted is a misdemeanor. In the
case of an attempt to commit a violation of any provision of
Chapter 3734. of the Revised Code, other than section 3734.18 of
the Revised Code, that relates to hazardous wastes, an attempt is
a felony punishable by a fine of not more than twenty-five
thousand dollars or imprisonment for not more than eighteen
months, or both. An attempt to commit a minor misdemeanor, or to
engage in conspiracy, is not an offense under this section.
(F) AS USED IN THIS SECTION, "DRUG ABUSE OFFENSE" HAS THE SAME
MEANING AS IN SECTION 2925.01 of the Revised Code.
Sec. 2925.02. (A) No person shall knowingly do any of the
following:
(1) By force, threat, or deception, administer to another
or induce or cause another to use a controlled substance;
(2) By any means, administer or furnish to another or
induce or cause another to use a controlled substance with
purpose to cause serious physical harm to the other person, or
with purpose to cause the other person to become drug dependent;
(3) By any means, administer or furnish to another or
induce or cause another to use a controlled substance, and
thereby cause serious physical harm to the other person, or cause
the other person to become drug dependent;
(4) By any means, do any of the following:
(a) Furnish or administer a controlled substance to a
juvenile who is at least two years the offender's junior,
when the offender
knows the age of the juvenile or is reckless in that regard;
(b) Induce or cause a juvenile who is at least two years
the offender's junior to use a controlled substance, when
the offender knows
the age of the juvenile or is reckless in that regard;
(c) Induce or cause a juvenile who is at least two years
the offender's junior to commit a felony drug abuse offense,
when the
offender knows the age of the juvenile or is reckless in that
regard;
(d) Use a juvenile, whether or not the offender knows the
age of the juvenile, to perform any surveillance activity that is
intended to prevent the detection of the offender or any other
person in the commission of a felony drug abuse offense or to
prevent the arrest of the offender or any other person for the
commission of a felony drug abuse offense.
(B) Division (A)(1), (3), or (4) of this section does not
apply to manufacturers, wholesalers, licensed health
professionals authorized to prescribe drugs, pharmacists,
owners of pharmacies, and other persons whose conduct is in
accordance with Chapters 3719., 4715., 4729., 4731., and 4741. of
the Revised Code or section 4723.56 of the Revised Code.
(C) Whoever violates this section is guilty of corrupting
another with drugs. The penalty for the offense shall be determined
as follows:
(1) Except as otherwise provided in this division, if the
drug involved is any compound, mixture,
preparation, or substance included in schedule I or II, with the exception of
marihuana, corrupting another with drugs is a felony
of the second degree, and, subject to division
(E) of this section, the court shall impose as a
mandatory prison term one of the
prison terms prescribed for a felony of the second degree. If the drug
involved is any compound, mixture, preparation, or substance included in
schedule I or II, with the exception of marihuana, and if
the offense was committed in the vicinity of a school, corrupting another with
drugs is a felony of the first degree, and, subject to division (E)
of this section, the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the first degree.
(2) Except as otherwise provided in this division, if the
drug involved is any compound, mixture, preparation, or substance included in
schedule III, IV, or V, corrupting another with drugs is a felony of the
second degree, and there is a presumption for a
prison term for the offense. If the drug involved is any compound, mixture,
preparation, or substance included in schedule III, IV, or
V and if the offense was committed in the vicinity of a school,
corrupting another with drugs is a felony of the second degree, and the court
shall impose as a mandatory prison term one of the prison terms prescribed for
a felony of the second degree.
(3) Except as otherwise provided in this division, if the
drug involved is marihuana, corrupting another
with drugs is a felony of the fourth degree, and division (C) of
section 2929.13 of the Revised Code applies in determining whether
to impose a prison term on the offender. If the drug involved
is marihuana and if the offense was committed in the vicinity of a
school,
corrupting another with drugs is a felony of the third degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether
to impose a prison term on the offender.
(D) In addition to any prison term authorized or required by
division (C) or (E) of this section and sections 2929.13 and
2929.14 of the Revised Code and in addition to any other sanction imposed for
the offense under this section or sections 2929.11 to 2929.18 of
the Revised Code, the court that
sentences an offender who is convicted of or pleads guilty to a
violation of division (A) of this section or the clerk of that court
shall do all of the following that are applicable regarding the offender:
(1)(a) If the violation is a felony of the first,
second, or third degree, the court shall impose upon the offender the
mandatory fine specified for the offense under division (B)(1) of
section 2929.18 of the Revised Code unless, as specified in that division, the
court determines that the offender is indigent.
(b) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, any mandatory fine
imposed pursuant to division (D)(1)(a) of this section and any
fine imposed for a violation of this section pursuant to division
(A) of section 2929.18 of the Revised Code shall be paid
by the clerk of the court in accordance with and subject to the
requirements of, and shall be used as specified in, division
(F) of section 2925.03 of the Revised Code.
(c) If a person is charged with any violation of this
section that is a felony of the first, second, or third
degree, posts bail, and forfeits the bail, the forfeited bail shall be paid by
the clerk of the court pursuant to division (D)(1)(b) of
this section as if it were a fine imposed for a violation of
this section.
(2) The court either shall revoke or, if it does
not revoke, shall suspend for not less than six
months or more than five years, the driver's or commercial
driver's license or permit of any person who is convicted of or pleads
guilty to a violation of this section that is a felony of the
first degree and shall suspend for not less than six months nor
more than five years the driver's or commercial driver's license or permit
of any person who is convicted of or pleads guilty to any other
violation of this section. If an offender's driver's or
commercial driver's license or permit is revoked pursuant to this division,
the offender, at any time after the expiration of two years from
the day on which the offender's sentence was imposed or from
the day on which the offender finally was released from
a prison term under the
sentence, whichever is later, may file a motion with the
sentencing court requesting termination of the revocation.
Upon
the filing of the motion and the court's finding of good cause
for the termination, the court may terminate the revocation.
(3) If the offender is a professionally licensed person or a
person who has been admitted to the bar by order of the supreme
court in compliance with its prescribed and published rules, in
addition to any other sanction imposed for a violation of this
section, the court forthwith shall comply with section 2925.38 of
the Revised Code.
(E) Notwithstanding the prison term otherwise authorized or
required for the offense under division (C) of this section and
sections 2929.13 and 2929.14 of the Revised Code, if the violation of division
(A)
of this section involves the sale, offer to sell, or possession
of a schedule
I or II controlled substance, with the
exception of marihuana,
and if the COURT IMPOSING SENTENCE UPON THE OFFENDER FINDS THAT THE
offender, as a result of the violation, is a major
drug offender AND IS GUILTY OF A SPECIFICATION OF THE TYPE DESCRIBED IN
SECTION 2941.1410 of the Revised Code,
the court, in lieu of the prison term that otherwise is
authorized or
required, shall impose upon the offender the mandatory prison term specified
in division (D)(3)(a) of section 2929.14 of the Revised Code and may
impose an additional prison term under division
(D)(3)(b) of that section.
Sec. 2925.03. (A) No person shall knowingly sell or offer to sell a
controlled substance.
(B) This section does not apply to any of the following:
(1) Manufacturers, licensed health professionals
authorized to prescribe drugs, pharmacists, owners of
pharmacies, and other persons whose conduct is in accordance with
Chapters 3719., 4715., 4729., 4731., and
4741. or section 4723.56 of the Revised Code;
(2) If the offense involves an anabolic steroid, any
person who is conducting or participating in a research project
involving the use of an anabolic steroid if the project has been
approved by the United States food and drug administration;
(3) Any person who sells, offers for sale, prescribes,
dispenses, or administers for livestock or other nonhuman species
an anabolic steroid that is expressly intended for administration
through implants to livestock or other nonhuman species and
approved for that purpose under the "Federal Food, Drug, and
Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended,
and is sold, offered for sale, prescribed, dispensed, or
administered for that purpose in accordance with that act.
(C) Whoever violates division (A) of this section is guilty of one of the
following:
(1) If the drug involved in the violation is any
compound, mixture, preparation, or substance included in schedule
I or schedule II, with the exception of
marihuana, cocaine, L.S.D., heroin, and hashish,
whoever
violates division (A) of this section is guilty of
aggravated trafficking in drugs. The penalty for the offense
shall be determined as follows:
(a) Except as otherwise provided in division
(C)(1)(b), (c), (d), (e),
or (f) of this section, aggravated trafficking in drugs is
a felony of the fourth degree,
and division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(1)(c), (d), (e), or (f) of
this section, if the offense was committed in the vicinity of a school or in
the vicinity of a juvenile, aggravated trafficking in drugs is a felony of the
third degree, and division (C) of section 2929.13 of the Revised Code applies
in determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
the bulk amount but does not exceed IS LESS THAN five times the
bulk amount, aggravated
trafficking in drugs
is a felony of the third degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the third degree. If the amount of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile, aggravated
trafficking in drugs is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
five times the bulk amount but does not exceed IS LESS THAN
fifty times the bulk amount,
aggravated trafficking in drugs is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree. If the
amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, aggravated trafficking in drugs is a
felony of the first degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the first degree.
(e) If the amount of the drug involved EQUALS OR exceeds
fifty times the bulk amount but does not exceed IS LESS THAN one
hundred times
the bulk amount and regardless of whether the offense was
committed in the vicinity of a school or in the vicinity of a
juvenile, aggravated trafficking in drugs is a felony of the
first degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the first
degree.
(f) If the amount of the drug involved EQUALS OR exceeds
one hundred times the bulk amount and regardless of whether the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, aggravated trafficking in drugs is a
felony of the first degree, THE OFFENDER IS A MAJOR DRUG
OFFENDER, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the first degree and may impose an additional prison
term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(2) If the drug involved in the violation is any
compound, mixture, preparation, or substance included in schedule
III, IV, or V, whoever violates division
(A) of this section is guilty of trafficking in
drugs. The penalty for the offense shall be determined as
follows:
(a) Except as otherwise provided in division
(C)(2)(b), (c), (d), or
(e) of
this section, trafficking in drugs is a felony of the fifth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(2)(c), (d), or (e) of this section,
if the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in drugs is
a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
the bulk amount but does not exceed IS LESS THAN five times the
bulk amount, trafficking in
drugs is a
felony of the fourth degree, and there is a presumption for a
prison term for the offense. If the amount of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile,
trafficking in drugs is a felony of the third degree, and there
is a presumption for a prison term for the offense.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
five times the bulk amount but does not exceed IS LESS THAN
fifty times the
bulk amount, trafficking in drugs is a felony of the third degree, and there
is a presumption
for a prison term for the offense. If the amount of the drug
involved is within that range and if the offense was committed in
the vicinity of a school or in the vicinity of a juvenile,
trafficking in drugs is a felony of the second degree, and there
is a presumption for a prison term for the offense.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
fifty times the bulk amount, trafficking in drugs is a felony of the second
degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree. If the
amount of the drug involved EQUALS OR exceeds fifty times the bulk
amount
and if the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, trafficking in drugs is a felony
of the first degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the first degree.
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than
hashish,
whoever violates division (A) of this section is guilty
of trafficking in marihuana. The penalty for the offense shall
be determined as follows:
(a) Except as otherwise provided in division
(C)(3)(b), (c), (d), (e),
(f), or (g) of this section, trafficking in marihuana is
a felony of the
fifth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(3)(c), (d), (e), (f), or
(g) of
this section, if the offense was committed in the vicinity of
a school or in the vicinity of a juvenile, trafficking in
marihuana is a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
two hundred grams but does not exceed IS LESS THAN one thousand
grams, trafficking in
marihuana is a felony
of the fourth degree, and division (C) of section 2929.13 of the Revised Code
applies in determining whether
to impose a prison term on the offender. If the amount of the drug
involved is within that range and if the offense was committed in
the vicinity of a school or in the vicinity of a juvenile,
trafficking in marihuana is a felony of the third degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
one thousand grams but does not exceed IS LESS THAN five
thousand grams, trafficking in
marihuana is a felony
of the third degree, and division (C) of section 2929.13 of the Revised Code
applies
in determining whether to impose a prison term on the offender. If the amount
of the drug involved
is within that range and if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile,
trafficking in marihuana is a felony of the second degree, and
there is a presumption that a prison term shall be imposed for the offense.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
five thousand grams but does not exceed IS LESS THAN twenty
thousand grams, trafficking in
marihuana is a
felony of the third degree, and there is a presumption that a
prison term shall be imposed for the offense. If the amount of
the drug involved is within that range and if the offense was
committed in the vicinity of a school or in the vicinity of a
juvenile, trafficking in marihuana is a felony of the second
degree, and there is a presumption that a prison term shall be
imposed for the offense.
(f) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
twenty thousand grams, trafficking in marihuana is a felony of the second
degree, and
the court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the second degree. If the
amount of the drug involved EQUALS OR exceeds twenty thousand grams and
if
the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in marihuana is a felony of
the first degree, and the court shall impose as a mandatory
prison term the maximum prison term prescribed for a felony of
the first degree.
(g) Except as otherwise provided in this division, if
the offense involves a gift of twenty grams or less of
marihuana, trafficking in marihuana is a minor misdemeanor upon
a first offense and a misdemeanor of the third degree upon a
subsequent offense. If the offense involves a gift of twenty
grams or less of marihuana and if the offense was committed in
the vicinity of a school or in the vicinity of a juvenile,
trafficking in marihuana is a misdemeanor of the third degree.
(4) If the drug involved in the violation is cocaine or a compound,
mixture, preparation, or substance containing cocaine, whoever violates
division (A) of this section is guilty
of trafficking in cocaine. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(4)(b), (c), (d), (e),
(f), or (g) of this section, trafficking in cocaine is a
felony of the fifth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(4)(c), (d), (e), (f), or
(g) of this section, if the offense was committed in the
vicinity of a
school or in the vicinity of a juvenile, trafficking in cocaine
is a felony of the fourth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds five grams but does not
exceed IS LESS THAN ten grams of
cocaine
that is not crack cocaine or EQUALS OR exceeds one gram
but does not exceed IS LESS THAN five
grams of crack cocaine, trafficking in cocaine is a felony of the
fourth degree, and there is a presumption for a prison term for the
offense. If the amount of the drug involved is within one of those ranges and
if the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, trafficking in cocaine is a felony
of the third degree, and there is a presumption for a prison term
for the offense.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds ten grams but does not
exceed IS LESS THAN one hundred grams
of cocaine that is not crack cocaine or
EQUALS OR exceeds five grams but does not
exceed IS LESS THAN ten grams of crack cocaine, trafficking in
cocaine is a felony of
the third degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the third
degree. If the amount of the drug involved is within one of those ranges and
if the
offense was committed in the vicinity of a school or
in the vicinity of a juvenile,
trafficking in cocaine is a
felony
of the second degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the second degree.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds one hundred grams but does
not exceed IS LESS THAN five
hundred grams of cocaine that is not crack
cocaine or EQUALS OR exceeds ten grams
but does not exceed IS LESS THAN twenty-five grams of crack
cocaine,
trafficking in cocaine is a felony of
the second degree, and the court shall impose as a mandatory
prison term one of the prison terms prescribed for a felony of
the second degree. If the amount of the drug involved is within
one of those ranges and
if the offense was committed in the vicinity of a
school or in the vicinity of a juvenile,
trafficking in
cocaine
is a felony of the first degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the first degree.
(f) If the amount of the drug involved EQUALS OR exceeds
five hundred grams but does not exceed IS LESS THAN one thousand
grams
of cocaine that is not crack cocaine or EQUALS OR
exceeds twenty-five grams but does
not exceed IS LESS THAN one hundred grams of crack cocaine and
regardless of whether the
offense was committed in the vicinity of a school or in the vicinity of a
juvenile,
trafficking in
cocaine is a felony of the first degree, and the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
(g) If the amount of the drug involved EQUALS OR exceeds
one thousand grams of cocaine that is not crack
cocaine or EQUALS OR exceeds one
hundred grams of crack cocaine
and regardless of whether the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in cocaine
is a felony of the first degree, THE OFFENDER IS A MAJOR DRUG
OFFENDER,
and the court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the first degree and may
impose an additional mandatory prison term prescribed for a major
drug offender under division (D)(3)(b)
of section 2929.14 of the Revised Code.
(5) If the drug involved in the violation is
L.S.D. or a compound, mixture, preparation, or substance containing
L.S.D., whoever violates division
(A) of this section is guilty of trafficking in
L.S.D. The penalty for the offense
shall be determined as follows:
(a) Except as otherwise provided in division
(C)(5)(b), (c), (d), (e), (f), or (g) of this
section, trafficking in
L.S.D. is a felony of the fifth degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(b) Except as otherwise provided in division
(C)(5)(c), (d), (e), (f), or
(g) of this section, if the offense was committed in the
vicinity of a school or in the vicinity of a juvenile,
trafficking in L.S.D. is a felony of the fourth
degree, and division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
ten unit doses but does not exceed IS LESS THAN fifty unit doses
of L.S.D. in a solid form or EQUALS OR exceeds one gram
but does not
exceed IS LESS THAN five grams of L.S.D. in a liquid
concentrate, liquid
extract, or liquid distillate form,
trafficking in
L.S.D. is a felony of the fourth degree,
and there is a presumption for a prison term for the offense. If
the amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in
L.S.D. is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
fifty unit doses but does not exceed IS LESS THAN two hundred
fifty unit doses
of L.S.D. in a solid form or EQUALS OR exceeds five grams
but does
not exceed IS LESS THAN twenty-five grams of L.S.D. in a liquid
concentrate,
liquid extract, or liquid distillate form,
trafficking
in
L.S.D. is a felony of the third degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the third degree. If the
amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in
L.S.D. is a felony of the second degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
two hundred fifty unit doses but does not exceed IS LESS THAN
one thousand
unit doses
of L.S.D. in a solid form or EQUALS OR exceeds twenty-five
grams but
does not exceed IS LESS THAN one hundred grams of L.S.D. in a
liquid
concentrate, liquid extract, or liquid distillate form,
trafficking in
L.S.D. is a felony of the second degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree. If
the amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in
L.S.D. is a felony of the first degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved EQUALS OR exceeds
one thousand unit doses but does not exceed IS LESS THAN five
thousand unit
doses
of L.S.D. in a solid form or EQUALS OR exceeds one hundred
grams but
does not exceed IS LESS THAN five hundred grams of L.S.D. in a
liquid
concentrate, liquid extract, or liquid distillate form
and regardless of whether the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in
L.S.D. is a felony of the
first degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the first
degree.
(g) If the amount of the drug involved EQUALS OR exceeds
five thousand unit doses
of L.S.D. in a solid form or EQUALS OR exceeds five
hundred grams of
L.S.D. in a liquid concentrate, liquid extract, or
liquid
distillate form
and regardless of whether the offense was committed
in the vicinity of a school or in the vicinity of a juvenile, trafficking in
L.S.D. is
a
felony of the first degree, THE OFFENDER IS A MAJOR DRUG
OFFENDER, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the first degree and may impose an additional mandatory
prison term prescribed for a major drug offender under
division (D)(3)(b) of section 2929.14 of
the Revised Code.
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin,
whoever violates division (A) of this section is guilty
of trafficking in heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in
division (C)(6)(b), (c), (d),
(e), (f), or (g) of this section,
trafficking in heroin is a felony of the fifth degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to
impose
a prison term on the offender.
(b) Except as otherwise provided in
division (C)(6)(c), (d), (e),
(f), or (g) of this section, if the offense was committed
in the vicinity
of a school
or in the vicinity of a juvenile, trafficking in heroin is a
felony of the fourth degree, and division (C) of section 2929.13 of the
Revised Code
applies in determining whether to impose a prison term on the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR EXCEEDS TEN UNIT DOSES BUT IS LESS THAN
FIFTY UNIT DOSES OR EQUALS OR exceeds
one gram but does not exceed IS LESS THAN five grams,
trafficking in heroin is a felony of
the fourth degree,
and there is a presumption for a prison term for the offense. If
the amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in heroin is a felony of the
third degree, and there is a presumption for a prison term for
the offense.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR EXCEEDS FIFTY UNIT DOSES BUT IS LESS THAN
ONE HUNDRED UNIT DOSES OR EQUALS OR exceeds five
grams but does not exceed IS LESS THAN ten grams, trafficking in
heroin is a felony of the
third degree,
and there is a presumption for a prison term for the offense.
If the amount of the drug involved is within that range and if
the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in heroin is a felony of the
second degree, and there is a presumption for a prison term for
the offense.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR EXCEEDS ONE HUNDRED UNIT DOSES BUT IS LESS
THAN FIVE HUNDRED UNIT DOSES OR EQUALS OR exceeds
ten grams but does not exceed IS LESS THAN fifty grams,
trafficking in heroin is a felony
of the second degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the second degree. If
the amount of the drug involved is within that range and if the
offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in heroin is a felony of the
first degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the first
degree.
(f) If the amount of the drug involved EQUALS OR EXCEEDS FIVE HUNDRED UNIT
DOSES BUT IS LESS THAN TWO THOUSAND FIVE HUNDRED UNIT DOSES OR EQUALS OR
exceeds
fifty grams but does not exceed IS LESS THAN two hundred fifty
grams and regardless of
whether the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in
heroin is a felony of the first degree, and the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
(g) If the amount of the drug involved EQUALS OR EXCEEDS TWO THOUSAND FIVE
HUNDRED UNIT DOSES OR EQUALS OR exceeds
two hundred fifty grams and regardless of whether the offense was committed in
the vicinity of a school or in the vicinity of a juvenile, trafficking in
heroin is a felony of the first
degree, THE OFFENDER IS A MAJOR DRUG OFFENDER,
and the court shall impose as a mandatory prison term the
maximum prison term prescribed for a felony of the first degree
and may impose an additional mandatory prison term prescribed for
a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(7) If the drug involved in the violation is hashish or a compound,
mixture, preparation, or substance containing hashish,
whoever violates division (A) of this section is guilty
of trafficking in hashish. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(7)(b), (c), (d), (e), or
(f) of this section,
trafficking in hashish is a felony of the fifth degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to
impose
a prison term on the offender.
(b) Except as otherwise provided in division
(C)(7)(c), (d), (e), or (f)
of this section, if the offense was committed in the vicinity
of a
school or in the vicinity of a juvenile, trafficking in hashish
is a felony of the fourth degree, and division (C) of section 2929.13
of the Revised Code applies in determining whether to impose a prison term on
the offender.
(c) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds ten grams but does not
exceed IS LESS THAN fifty grams of
hashish in a solid form or EQUALS OR exceeds two grams but does not
exceed IS LESS THAN ten grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
trafficking in hashish is a felony of the fourth
degree, and division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender. If the amount of
the drug involved is within that range
and if the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, trafficking in hashish is a felony
of the third degree, and division (C) of section 2929.13 of the Revised Code
applies
in determining whether to impose a prison term on the offender.
(d) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds fifty grams but does not
exceed IS LESS THAN two hundred fifty
grams of hashish in a solid form or EQUALS OR exceeds ten grams but
does not exceed IS LESS THAN
fifty grams of hashish in a liquid concentrate, liquid extract, or liquid
distillate form, trafficking in hashish is a
felony of the
third degree, and division (C) of section 2929.13 of the Revised Code applies
in
determining whether to impose a prison term on the offender. If the amount of
the drug involved is within that range
and if the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, trafficking in hashish is a felony
of the second degree, and
there is a presumption that a prison term shall be imposed for the offense.
(e) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds two hundred fifty grams but
does not exceed IS LESS THAN one
thousand grams of hashish in a solid form or EQUALS OR exceeds fifty
grams but does not
exceed IS LESS THAN two hundred grams of hashish in a liquid
concentrate, liquid extract,
or
liquid distillate form, trafficking in hashish is a felony of
the third degree, and there is a presumption that a prison term shall be
imposed for the offense. If the amount of the drug involved is within
that range and if the offense was committed in the vicinity of a
school or in the vicinity of a juvenile, trafficking in hashish
is a felony of the second degree, and there is a presumption that a prison
term shall be imposed for the offense.
(f) Except as otherwise provided in this division, if the amount
of the drug involved EQUALS OR exceeds
one thousand grams of hashish in a solid form or EQUALS OR exceeds two
hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
trafficking in
hashish is a felony of the second degree, and the court shall
impose as a mandatory prison term the maximum prison term
prescribed for a felony of the second degree. If the amount of the drug
involved EQUALS OR exceeds
one thousand grams of hashish in a solid form or EQUALS OR exceeds two
hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form
and if the offense was committed in the vicinity of a school or in the
vicinity of a juvenile, trafficking in hashish is a felony of
the first degree,
and the court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the first degree.
(D) In addition to any prison term authorized
or required by division (C) of this section and sections
2929.13 and 2929.14 of the Revised Code, and in
addition to any other sanction imposed for the offense under this
section or sections 2929.11 to 2929.18 of the Revised
Code, the court that sentences an offender who is
convicted of or pleads guilty to a violation of division
(A) of this section shall do all of the following that
are applicable regarding the offender:
(1) If the violation of division (A) of this
section is a felony of the first, second, or third degree, the
court shall impose upon the offender the mandatory fine specified
for the offense under division (B)(1) of section 2929.18
of the Revised Code unless, as specified in that
division, the court determines that the offender is indigent. Except as
otherwise provided in division (H)(1) of this section, a
mandatory fine or any other fine imposed for a violation of this
section is subject to division (F) of this
section. If a person is charged with a violation of this section
that is a felony of the first, second, or third degree, posts
bail, and forfeits the bail, the clerk of the court shall pay the
forfeited bail
pursuant to divisions (D)(1) and
(F) of this section, as if the forfeited bail was a fine
imposed for a violation of this section. If any amount of the forfeited bail
remains after that payment and if a fine is imposed under division (H)(1) of
this section, the clerk of the court shall pay the remaining amount of the
forfeited bail pursuant to divisions (H)(2) and (3) of this section, as if
that remaining amount was a fine imposed under division (H)(1) of this
section.
(2) The court shall revoke or suspend the driver's or
commercial driver's license or permit of the offender in
accordance with division (G) of this section.
(3) If the offender is a professionally licensed person
or a person who has been admitted to the bar by order of the
supreme court in compliance with its prescribed and published
rules, the court forthwith shall comply with section 2925.38 of
the Revised Code.
(E) When a person is charged with the
sale of or offer to sell a bulk amount
or a multiple of a bulk amount of a controlled substance, the jury, or the
court trying the
accused, shall determine the amount of the controlled substance
involved at the time of the offense and, if a guilty verdict is
returned, shall return the findings as part of the verdict. In
any such case, it is unnecessary to find and return the exact
amount of the controlled substance involved, and it is sufficient if the
finding and return is to the effect that the amount of the
controlled substance involved is the requisite
amount, or that the amount of the controlled
substance involved is less than the requisite
amount.
(F)(1) Notwithstanding any contrary provision of section
3719.21 of the Revised Code and except as provided in division (H) of this
section, the clerk of the court shall pay any mandatory fine imposed pursuant
to division (D)(1) of this section and any fine other than a
mandatory fine that is imposed for
a violation of this section pursuant to division (A) or (B)(5) of section
2929.18 of the Revised Code to the
county, township, municipal corporation, park district, as
created pursuant to section 511.18 or 1545.04 of the Revised
Code, or state law enforcement agencies in this state that
primarily were responsible for or involved in making the arrest
of, and in prosecuting, the offender. However, the clerk shall not
pay a mandatory fine
so imposed to a law enforcement agency unless the
agency has adopted a written internal control policy under
division (F)(2) of this section that addresses the use of
the
fine moneys that it receives. Each agency shall use
the mandatory fines so paid to subsidize the agency's law enforcement
efforts that
pertain to drug offenses, in accordance with the written internal
control policy adopted by the recipient agency under division
(F)(2) of this section.
(2)(a) Prior to receiving any fine moneys under division
(F)(1) of this section or division (B)(5) of section 2925.42 of
the Revised Code, a law enforcement agency shall adopt a written
internal control policy that addresses the agency's use and
disposition of all fine moneys so received and that provides for
the keeping of detailed financial records of the receipts of
those fine moneys, the general types of expenditures made out of
those fine moneys, and the specific amount of each general type
of expenditure. The policy shall not provide for or permit the
identification of any specific expenditure that is made in an
ongoing investigation. All financial records of the receipts of
those fine moneys, the general types of expenditures made out of
those fine moneys, and the specific amount of each general type
of expenditure by an agency are public records open for
inspection under section 149.43 of the Revised Code.
Additionally, a written internal control policy adopted under
this division is such a public record, and the agency that
adopted it shall comply with it.
(b) Each law enforcement agency that receives in any
calendar year any fine moneys under division (F)(1) of this
section or division (B)(5) of section 2925.42 of the Revised Code
shall prepare a report covering the calendar year that cumulates
all of the information contained in all of the public financial
records kept by the agency pursuant to division (F)(2)(a) of this
section for that calendar year, and shall send a copy of the
cumulative report, no later than the first day of March in the
calendar year following the calendar year covered by the report,
to the attorney general. Each report received by the attorney
general is a public record open for inspection under section
149.43 of the Revised Code. Not later than the fifteenth
day of April in the calendar year in which the reports
are received, the attorney general shall send
to the president of the senate
and the speaker of the house of representatives
a written notification that does all of the following:
(i) Indicates that the attorney general has received from
law enforcement agencies reports of the type described in this division that
cover
the previous
calendar year and indicates that the reports were received under this
division;
(ii) Indicates that the reports
are open for inspection under section 149.43 of the
Revised Code;
(iii) Indicates that the attorney general
will provide a copy of any or all of the reports to the
president of the senate or the speaker of the house of
representatives upon request.
(3) As used in division
(F) of this section:
(a) "Law enforcement agencies" includes, but is not
limited to, the state board of pharmacy and the office of a
prosecutor.
(b) "Prosecutor" has the same meaning as in section
2935.01 of the Revised Code.
(G) When required under division
(D)(2) of
this section, the court either shall revoke or, if it
does not revoke, shall suspend for not less than six
months or more than five years, the driver's or
commercial
driver's license or permit of any person who is convicted of or
pleads
guilty to a violation of this section that is a felony of the
first degree and shall suspend for not less than six months
or
more than five years the driver's or commercial driver's license
or permit
of any person who is convicted of or pleads guilty to any other
violation of this section. If an offender's driver's or
commercial driver's license or permit is revoked pursuant to this
division,
the offender, at any time after the expiration of two years from
the day on which the offender's sentence was imposed or from the
day on
which the offender finally was released from a
prison
term under the
sentence, whichever is later, may file a motion with the
sentencing court requesting termination of the revocation; upon
the filing of such a motion and the court's finding of good cause
for the termination, the court may terminate the revocation.
(H)(1) In addition to any prison term
authorized or required by division (C) of this section and
sections 2929.13 and 2929.14 of the
Revised Code, in addition to any other
penalty or sanction imposed for the offense under this section
or sections 2929.11 to 2929.181 2929.18 of the
Revised Code, and in addition to the
forfeiture of property in connection with the offense as
prescribed in sections 2925.42 to 2925.45 of the
Revised Code, the court that sentences
an offender who is convicted of or pleads guilty to a violation
of division (A) of this section may impose upon the offender an
additional fine specified for the offense in
division (B)(4) of section
2929.18 of the Revised Code. A fine imposed under
division (H)(1) of this section
is not subject to division (F) of this section and shall
be used solely for the support of one or more eligible alcohol
and drug addiction programs in accordance with divisions
(H)(2) and (3) of this section.
(2) The court that imposes a fine under division
(H)(1) of this section shall
specify in the judgment that imposes the fine one or more
eligible alcohol and drug addiction programs for the support of
which the fine money is to be used. No alcohol and drug
addiction program shall receive or use money paid or collected
in satisfaction of a fine imposed under division
(H)(1) of this section unless
the program is specified in the judgment that imposes the fine.
No alcohol and drug addiction program shall be specified in the
judgment unless the program is an eligible alcohol and drug
addiction program and, except as otherwise provided in division
(H)(2) of this section, unless
the program is located in the county in which the court that
imposes the fine is located or in a county that is immediately
contiguous to the county in which that court is located. If no
eligible alcohol and drug addiction program is located in any
of those counties, the judgment may specify an eligible alcohol
and drug addiction program that is located anywhere within this
state.
(3) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, the clerk of the court
shall pay any fine imposed under division
(H)(1) of this section to the eligible alcohol and drug addiction
program specified pursuant to division (H)(2) of this section in the
judgment. The eligible alcohol and drug addiction program that receives the
fine moneys shall use the moneys only for the
alcohol and drug addiction services identified in the
application for certification under section 3793.06 of the
Revised Code or in the application for a
license under section 3793.11 of the Revised Code filed with
the department of alcohol and drug addiction services by the alcohol and drug
addiction program specified in the judgment.
(4) Each alcohol and drug addiction program that receives
in a calendar year any fine moneys under division
(H)(3) of this section shall
file an annual report covering that calendar year with the court
of common pleas and the board of county commissioners of the
county in which the program is located, with the court of common pleas and the
board of county commissioners of each county from which the program received
the moneys if that county is different from the county in which the program is
located, and with the attorney general. The alcohol and drug addiction
program shall file the report no later than the first day of March in
the calendar year
following the calendar year in which the program received the
fine moneys. The report shall include statistics on the number
of persons served by the alcohol and drug addiction program,
identify the types of alcohol and drug addiction services
provided to those persons, and include a specific accounting of
the purposes for which the fine moneys received were used. No
information contained in the report shall identify, or enable a
person to determine the identity of, any person served by the
alcohol and drug addiction program. Each report received by a
court of common pleas, a board of county commissioners, or the
attorney general is a public record open for inspection under
section 149.43 of the Revised Code.
(5) As used in divisions (H)(1) to (5) of this section:
(a) "Alcohol and drug addiction
program" and "alcohol and drug addiction services" have the same
meanings as in section 3793.01 of the Revised Code.
(b) "Eligible alcohol and drug
addiction program" means an alcohol and drug addiction program
that is certified under section 3793.06 of the
Revised Code or licensed under section
3793.11 of the Revised Code by the department of
alcohol and drug addiction services.
Sec. 2925.04. (A) No person shall knowingly cultivate
marihuana or knowingly manufacture or otherwise engage in any part of the
production of a controlled substance.
(B) This section does not apply to any person listed in division
(B)(1), (2), or (3) of section 2925.03 of the Revised Code to the extent and
under the circumstances described in those divisions.
(C)(1) Whoever commits a violation of division (A) of
this section that involves any drug other than marihuana is guilty of illegal
manufacture of drugs, and whoever commits a violation of division (A)
of this section that involves marihuana is guilty of illegal cultivation of
marihuana.
(2) If the drug involved in the violation of division
(A) of this section is any compound, mixture,
preparation, or substance included in schedule I or
II, with the exception of marihuana, illegal manufacture
of drugs is a felony of the second degree, and, subject to
division (E) of this section, the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the second degree.
(3) If the drug involved in the violation of division
(A) of this section is any compound, mixture,
preparation, or substance included in schedule III,
IV, or V, illegal manufacture of drugs is a
felony of the third degree, and there is a presumption for a
prison term for the offense.
(4) If the drug involved in the violation is marihuana,
the penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(4)(b), (c), (d), (e), or
(f) of this section, illegal cultivation of marihuana is a
minor misdemeanor.
(b) If the amount of marihuana involved equals
or exceeds one hundred grams but does not exceed IS LESS THAN
two hundred
grams, illegal cultivation of marihuana is a misdemeanor of the
fourth degree.
(c) If the amount of marihuana involved EQUALS OR exceeds
two hundred grams but does not exceed IS LESS THAN one
thousand grams, illegal
cultivation of marihuana is a felony of the fifth degree, and
division (B) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(d) If the amount of marihuana involved EQUALS OR exceeds
one thousand grams but does not exceed IS LESS THAN five
thousand grams,
illegal cultivation of marihuana is a felony of the third degree,
and division (C) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(e) If the amount of marihuana involved EQUALS OR exceeds
five thousand grams but does not exceed IS LESS THAN twenty
thousand grams,
illegal cultivation of marihuana is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(f) If the amount of marihuana involved EQUALS OR exceeds
twenty thousand grams, illegal cultivation of marihuana is a
felony of the second degree, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the second degree.
(D) In addition to any prison term authorized
or required by division (C) or (E) of this
section and sections 2929.13 and 2929.14 of the Revised
Code and in addition to any other sanction imposed for
the offense under this section or sections 2929.11 to
2929.18 of
the Revised Code, the court that sentences an
offender who is convicted of or pleads guilty to a violation of
division (A) of this section shall do all of the
following that are applicable regarding the offender:
(1) If the violation of division (A) of this
section is a felony of the second or third degree, the court
shall impose upon the offender the mandatory fine specified for
the offense under division (B)(1) of section 2929.18 of
the Revised Code unless, as specified in that
division, the court determines that the offender is
indigent. The clerk of the court shall pay a mandatory fine or
other fine imposed for a violation of this section pursuant to
division (A) of section 2929.18 of the Revised
Code in accordance with and subject to the requirements
of division (F) of section 2925.03 of the Revised
Code. The agency that receives the fine shall use the
fine as specified in division (F) of section 2925.03 of
the Revised Code. If a person is charged with a
violation of this section that is a felony of the second or third
degree, posts bail, and forfeits the bail, the clerk shall pay
the forfeited bail as if the forfeited bail were a fine imposed
for a violation of this section.
(2) The court shall revoke or suspend the offender's
driver's or commercial driver's license or permit in accordance
with division (G) of section 2925.03 of the
Revised Code. If an offender's driver's or
commercial driver's license or permit is revoked in accordance
with that division, the offender may request termination of, and
the court may terminate, the revocation in accordance with that
division.
(3) If the offender is a professionally licensed person
or a person who has been admitted to the bar by order of the
supreme court in compliance with its prescribed and published
rules, the court shall comply with section 2925.38 of the
Revised Code.
(E) Notwithstanding the prison term otherwise
authorized or required for the offense under division (C)
of this section and sections 2929.13 and 2929.14 of the
Revised Code, if the violation of division
(A) of this section involves the sale, offer to sell, or
possession of a schedule I or II controlled
substance, with the exception of marihuana, and if the COURT IMPOSING
SENTENCE UPON THE OFFENDER FINDS THAT THE offender,
as a result of the violation, is a major drug offender AND IS GUILTY
OF A SPECIFICATION OF THE TYPE DESCRIBED IN SECTION 2941.1410 of the Revised Code, the
court, in lieu of the prison term otherwise authorized or
required, shall impose upon the offender the mandatory prison
term specified in division (D)(3)(a) of
section 2929.14 of the Revised Code and may
impose an additional prison term under division
(D)(3)(b) of that section.
(F) It is an affirmative defense, as
provided in section 2901.05 of the Revised Code,
to a charge under this section for a fifth degree felony violation of
illegal cultivation of
marihuana that the marihuana that gave rise to the charge is in
an amount, is in a form, is prepared, compounded, or mixed with
substances that are not controlled substances in a manner, or is
possessed or cultivated under any other circumstances that
indicate that the marihuana was solely for personal use.
Notwithstanding any contrary provision of division
(F) of this section, if, in
accordance with section 2901.05 of the
Revised
Code, a person who is charged
with a violation of illegal cultivation of marihuana that is a
felony of the fifth degree sustains the burden of going forward
with evidence of and establishes by a preponderance of the
evidence the affirmative defense described in this division, the
person may be prosecuted for and may be convicted of or plead
guilty to a misdemeanor violation of illegal cultivation of
marihuana.
(G) Arrest or conviction for a minor
misdemeanor violation of this section does not constitute a
criminal record and need not be reported by the person so
arrested or convicted in response to any inquiries about the
person's criminal record, including any inquiries contained in an
application for employment, a license, or any other right or
privilege or made in connection with the person's appearance as a
witness.
Sec. 2925.05. (A) No person shall knowingly
provide money or other items of value to another person with the
purpose that the recipient of the money or items of value use
them to obtain any controlled substance for the purpose of
selling or offering to sell the controlled substance or for the
purpose of violating section 2925.04 of the Revised
Code
OR FOR THE PURPOSE OF SELLING OR OFFERING TO SELL THE
CONTROLLED SUBSTANCE IN THE FOLLOWING AMOUNT:
(1) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS ANY
COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE INCLUDED IN
SCHEDULE I OR SCHEDULE
II, WITH THE EXCEPTION OF
MARIHUANA, COCAINE,
L.S.D.,
HEROIN, AND HASHISH, ANY AMOUNT OF THE DRUG;
(2) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS ANY
COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE INCLUDED IN
SCHEDULE III, SCHEDULE
IV, OR SCHEDULE
V, AN AMOUNT OF THE DRUG THAT
EQUALS OR EXCEEDS THE BULK AMOUNT OF THE DRUG;
(3) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS
MARIHUANA OR A COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE
OTHER THAN HASHISH CONTAINING MARIHUANA, AN AMOUNT OF THE
MARIHUANA THAT EQUALS OR EXCEEDS TWO HUNDRED GRAMS;
(4) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS COCAINE
OR A COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE CONTAINING
COCAINE, AN AMOUNT OF THE COCAINE THAT EQUALS OR EXCEEDS FIVE
GRAMS IF THE COCAINE IS NOT CRACK COCAINE OR EQUALS OR EXCEEDS
ONE GRAM IF THE COCAINE IS CRACK COCAINE;
(5) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS
L.S.D.
OR A COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE CONTAINING
L.S.D.,
AN AMOUNT OF THE
L.S.D. THAT
EQUALS OR EXCEEDS TEN UNIT DOSES IF THE
L.S.D.
IS IN A SOLID FORM OR EQUALS OR EXCEEDS ONE GRAM IF THE
L.S.D.
IS IN A LIQUID CONCENTRATE, LIQUID EXTRACT, OR LIQUID DISTILLATE
FORM;
(6) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS HEROIN
OR A COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE CONTAINING
HEROIN, AN AMOUNT OF THE HEROIN THAT EQUALS OR EXCEEDS TEN UNIT
DOSES OR EQUALS OR EXCEEDS ONE GRAM;
(7) IF THE DRUG TO BE SOLD OR OFFERED FOR SALE IS HASHISH
OR A COMPOUND, MIXTURE, PREPARATION, OR SUBSTANCE CONTAINING
HASHISH, AN AMOUNT OF THE HASHISH THAT EQUALS OR EXCEEDS TEN
GRAMS IF THE HASHISH IS IN A SOLID FORM OR EQUALS OR EXCEEDS TWO
GRAMS IF THE HASHISH IS IN A LIQUID CONCENTRATE, LIQUID EXTRACT,
OR LIQUID DISTILLATE FORM.
(B) This section does not apply to any person
listed in division (B)(1), (2), or (3) of section 2925.03
of the Revised Code to the extent and under the
circumstances described in those divisions.
(C)(1) If the drug involved in the violation is
any compound, mixture, preparation, or substance included in
schedule I or II, with the exception of
marihuana, whoever violates division (A) of this section
is guilty of aggravated funding of drug trafficking, a felony of
the first degree, and, subject to division (E) of this
section, the court shall impose as a mandatory prison term one of
the prison terms prescribed for a felony of the first degree.
(2) If the drug involved in the violation is any
compound, mixture, preparation, or substance included in schedule
III, IV, or V, whoever violates division
(A) of this section is guilty of funding of drug
trafficking, a felony of the second degree, and the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the second degree.
(3) If the drug involved in the violation is marihuana,
whoever violates division (A) of this section is guilty
of funding of marihuana trafficking, a felony of the third
degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the
third degree.
(D) In addition to any prison term authorized
or required by division (C) or (E) of this
section and sections 2929.13 and 2929.14 of the Revised
Code and in addition to any other sanction imposed for
the offense under this section or sections 2929.11 to 2929.18 of
the Revised Code, the court that sentences an
offender who is convicted of or pleads guilty to a violation of
division (A) of this section shall do all of the
following that are applicable regarding the offender:
(1) The court shall impose the mandatory fine specified
for the offense under division (B)(1) of section 2929.18
of the Revised Code unless, as specified in that
division, the court determines that the offender is
indigent. The clerk of the court shall pay a mandatory fine or
other fine imposed for a violation of this section pursuant to
division (A) of section 2929.18 of the Revised
Code in accordance with and subject to the requirements
of division (F) of section 2925.03 of the Revised
Code. The agency that receives the fine shall use the
fine in accordance with division (F) of section 2925.03
of the Revised Code. If a person is charged with
a violation of this section, posts bail, and forfeits the bail,
the forfeited bail shall be paid as if the forfeited bail were a
fine imposed for a violation of this section.
(2) The court shall revoke or suspend the offender's
driver's or commercial driver's license or permit in accordance
with division (G) of section 2925.03 of the
Revised Code. If an offender's driver's or
commercial driver's license or permit is revoked in accordance
with that division, the offender may request termination of, and
the court may terminate, the revocation in accordance with that
division.
(3) If the offender is a professionally licensed person
or a person who has been admitted to the bar by order of the
supreme court in compliance with its prescribed and published
rules, the court shall comply with section 2925.38 of the
Revised Code.
(E) Notwithstanding the prison term otherwise
authorized or required for the offense under division (C)
of this section and sections 2929.13 and 2929.14 of the
Revised Code, if the violation of division
(A) of this section involves the sale, offer to sell, or
possession of a schedule I or II controlled
substance, with the exception of marihuana, and if the COURT IMPOSING
SENTENCE UPON THE OFFENDER FINDS THAT THE offender,
as a result of the violation, is a major drug offender AND IS GUILTY
OF A SPECIFICATION OF THE TYPE DESCRIBED IN SECTION 2941.1410 of the Revised Code, the
court, in lieu of the prison term otherwise authorized or
required, shall impose upon the offender the mandatory prison
term specified in division (D)(3)(a) of
section 2929.14 of the Revised Code and may
impose an additional prison term under division
(D)(3)(b) of that section.
Sec. 2925.11. (A) No person shall knowingly obtain,
possess, or use a controlled substance.
(B) This section does not apply to any of the following:
(1) Manufacturers, licensed health professionals
authorized to prescribe drugs, pharmacists, owners of
pharmacies, and other persons whose conduct was in accordance
with Chapters 3719., 4715., 4729., 4731.,
and 4741. or section 4723.56 of the Revised Code;
(2) If the offense involves an anabolic steroid, any
person who is conducting or participating in a research project
involving the use of an anabolic steroid if the project has been
approved by the United States food and drug administration;
(3) Any person who sells, offers for sale, prescribes,
dispenses, or administers for livestock or other nonhuman species
an anabolic steroid that is expressly intended for administration
through implants to livestock or other nonhuman species and
approved for that purpose under the "Federal Food, Drug, and
Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended,
and is sold, offered for sale, prescribed, dispensed, or
administered for that purpose in accordance with that act;
(4) Any person who obtained the controlled substance
pursuant to a prescription issued by a licensed health
professional authorized to prescribe drugs, where the
drug is in the original container in which it was dispensed to
such person.
(C) Whoever violates division (A) of this section is guilty of
one of the following:
(1) If the drug involved in the violation is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana,
cocaine, L.S.D.,
heroin, and hashish, whoever violates division (A) of
this section is guilty of aggravated possession of drugs. The
penalty for the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(1)(b), (c), (d), or (e) of
this section, aggravated possession of drugs is a
felony of the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved EQUALS OR exceeds
the bulk amount but does not exceed IS LESS THAN five times the
bulk amount,
aggravated possession of drugs is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(c) If the amount of the drug involved EQUALS OR exceeds
five times the bulk amount but does not exceed IS LESS THAN
fifty times the
bulk amount, aggravated possession of drugs is a felony of the
second degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the
second degree.
(d) If the amount of the drug involved EQUALS OR exceeds fifty times
the bulk amount
but does not exceed IS LESS THAN one hundred times the bulk
amount, aggravated possession
of drugs is a felony of the first degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of the
first degree.
(e) If the amount of the drug involved EQUALS OR exceeds one hundred
times the bulk
amount, aggravated possession of drugs is a felony of the first degree, THE
OFFENDER IS A MAJOR DRUG OFFENDER, and
the court shall impose as a mandatory prison term the maximum prison term
prescribed for a felony of the first degree and may impose an additional
mandatory prison term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the Revised Code.
(2) If the drug involved in the violation is a compound,
mixture,
preparation, or substance included in schedule III, IV, or V,
whoever violates division (A) of this section is
guilty of possession of
drugs. The penalty for the offense shall be determined as
follows:
(a) Except as otherwise provided in division
(C)(2)(b), (c), or (d) of this section,
possession of drugs is a misdemeanor of
the third degree or, if the offender previously has been
convicted of a drug abuse offense, a misdemeanor of the second
degree. If the drug involved in the violation is an anabolic
steroid included in schedule III and if the offense is a
misdemeanor of the third degree under this division, in lieu of
sentencing the offender to a term of imprisonment in a detention
facility, the court may place the offender on conditional
probation pursuant to
division (F) of section 2951.02 of the Revised
Code.
(b) If the amount of the drug involved EQUALS OR exceeds
the bulk amount but does not exceed IS LESS THAN five times the
bulk amount,
possession of drugs is a felony of the fourth degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to
impose a prison term on the offender.
(c) If the amount of the drug involved EQUALS OR exceeds
five times the bulk amount but does not exceed IS LESS THAN
fifty times the
bulk amount, possession of drugs is a felony of the third degree,
and there is a presumption for a prison term for the offense.
(d) If the amount of the drug involved EQUALS OR exceeds
fifty times the bulk amount, possession of drugs is a felony of
the second degree, and the court shall impose upon the offender
as a mandatory prison term one of the prison terms prescribed for
a felony of the second degree.
(3) If the drug involved in the violation is marihuana or a compound,
mixture, preparation, or substance containing marihuana other than
hashish, whoever violates
division (A) of this
section is guilty of possession of marihuana. The penalty for
the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(3)(b), (c), (d), (e), or
(f) of this section, possession of marihuana is a minor
misdemeanor.
(b) If the amount of the drug involved equals
or exceeds one hundred grams but does not exceed IS LESS THAN
two hundred
grams, possession of marihuana is a misdemeanor of the fourth
degree.
(c) If the amount of the drug involved EQUALS OR exceeds
two hundred grams but does not exceed IS LESS THAN one thousand
grams,
possession of marihuana is a felony of the fifth degree, and
division (B) of section 2929.13 of the Revised Code applies in determining
whether
to impose a prison term on the offender.
(d) If the amount of the drug involved EQUALS OR exceeds
one thousand grams but does not exceed IS LESS THAN five
thousand grams,
possession of marihuana is a felony of the third degree, and
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(e) If the amount of the drug involved EQUALS OR exceeds
five thousand grams but does not exceed IS LESS THAN twenty
thousand grams,
possession of marihuana is a felony of the third degree, and
there is a presumption that a prison term shall be imposed for
the offense.
(f) If the amount of the drug involved EQUALS OR exceeds
twenty thousand grams, possession of marihuana is a felony of the
second degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the
second degree.
(4) If the drug involved in
the violation is cocaine or a compound, mixture, preparation, or substance
containing cocaine, whoever violates division (A)
of this section is guilty of possession of cocaine. The penalty
for the offense shall be determined as follows:
(a) Except as otherwise provided in division
(C)(4)(b), (c), (d), (e), or
(f) of this section, possession of cocaine is a felony of the
fifth degree, and division (B) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved EQUALS OR exceeds
five grams but does not exceed IS LESS THAN twenty-five grams of
cocaine that is not crack
cocaine or EQUALS OR exceeds one gram but does not
exceed IS LESS THAN five grams of crack cocaine, possession of
cocaine is a felony of the fourth degree, and there is a
presumption for a prison term for the offense.
(c) If the amount of the drug involved EQUALS OR exceeds
twenty-five grams but does not exceed IS LESS THAN one hundred
grams
of cocaine that is not crack cocaine or EQUALS OR
exceeds five grams but does not
exceed IS LESS THAN ten grams of crack cocaine, possession of
cocaine is a felony of the third degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the third degree.
(d) If the amount of the drug involved EQUALS OR exceeds
one hundred grams but does not exceed IS LESS THAN five hundred
grams
of cocaine that is not crack cocaine or EQUALS OR
exceeds ten grams but does not
exceed IS LESS THAN twenty-five grams of crack cocaine, possession
of
cocaine is a felony of the second degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the second degree.
(e) If the amount of the drug involved EQUALS OR exceeds
five hundred grams but does not exceed IS LESS THAN one thousand
grams
of cocaine that is not crack cocaine or
EQUALS OR exceeds twenty-five grams but
does not exceed IS LESS THAN one hundred grams of crack cocaine,
possession of
cocaine is a felony of the first degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved EQUALS OR exceeds
one thousand grams of cocaine that is not crack
cocaine or EQUALS OR exceeds one
hundred grams of crack cocaine, possession of cocaine is a felony of
the first degree, THE OFFENDER IS A MAJOR DRUG OFFENDER, and the
court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first
degree and may impose an additional mandatory prison term
prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(5) If the drug involved in the violation is
L.S.D., whoever violates division
(A) of this section is guilty of possession of
L.S.D. The penalty for the offense shall
be determined as follows:
(a) Except as otherwise provided in division
(C)(5)(b), (c), (d), (e), or (f) of this section, possession of L.S.D. is a
felony of the fifth degree, and division (B) of section 2929.13 of the Revised
Code applies in determining whether to impose a prison term on the offender.
(b) If the amount of L.S.D. involved EQUALS OR exceeds ten unit doses
but does not exceed IS LESS THAN fifty unit doses
of L.S.D. in a solid form or EQUALS OR exceeds one gram
but does not exceed IS LESS THAN five grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of
L.S.D. is a felony of the fourth degree,
and division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(c) If the amount of
L.S.D. involved EQUALS OR exceeds fifty unit doses,
but does not exceed IS LESS THAN two hundred fifty unit doses
of L.S.D. in a solid form or EQUALS OR exceeds five grams
but does not exceed IS LESS THAN twenty-five grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a felony of the third degree, and there is a
presumption for a prison term for the offense.
(d) If the amount of
L.S.D. involved EQUALS OR exceeds two hundred fifty
unit doses but does not exceed IS LESS THAN one thousand unit
doses
of L.S.D. in a solid form or EQUALS OR exceeds twenty-five
grams but does not exceed IS LESS THAN one hundred grams of
L.S.D. in a liquid concentrate,
liquid extract, or liquid distillate form,
possession of L.S.D. is a felony of the
second degree, and the court shall impose as a mandatory prison
term one of the prison terms prescribed for a felony of the
second degree.
(e) If the amount of
L.S.D. involved EQUALS OR exceeds one thousand unit
doses but does not exceed IS LESS THAN five thousand unit doses
of L.S.D. in a solid form or EQUALS OR exceeds one hundred
grams but does not exceed IS LESS THAN five hundred grams of
L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a felony of the first degree,
and the court shall impose as a mandatory prison term one of the
prison terms prescribed for a felony of the first degree.
(f) If the amount of
L.S.D. involved EQUALS OR exceeds five thousand
unit doses
of L.S.D. in a solid form or EQUALS OR exceeds five
hundred grams of L.S.D.
in a liquid concentrate, liquid extract, or liquid distillate
form, possession of L.S.D. is a
felony of the first degree, THE OFFENDER IS A MAJOR DRUG
OFFENDER, and the court shall impose as a
mandatory prison term the maximum prison term prescribed for a
felony of the first degree and may impose an additional mandatory
prison term prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(6) If the drug involved in the violation is heroin or a compound,
mixture, preparation, or substance containing heroin,
whoever violates division (A) of this section is guilty
of possession of heroin. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(6)(b), (c), (d), (e), or
(f) of this section, possession of heroin is a felony of the fifth
degree, and division (B) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
(b) If the amount of the drug involved EQUALS OR EXCEEDS TEN UNIT DOSES
BUT IS LESS THAN FIFTY UNIT DOSES OR EQUALS OR exceeds
one gram but does not exceed IS LESS THAN five grams, possession
of heroin is
a felony of the fourth degree, and division (C) of section 2929.13
of the Revised Code applies in determining whether to impose a prison term on
the offender.
(c) If the amount of the drug involved EQUALS OR EXCEEDS FIFTY UNIT DOSES
BUT IS LESS THAN ONE HUNDRED UNIT DOSES OR EQUALS OR exceeds
five grams but does not exceed IS LESS THAN ten grams,
possession of heroin is
a felony of the third degree, and there is a presumption for a
prison term for the offense.
(d) If the amount of the drug involved EQUALS OR EXCEEDS ONE HUNDRED UNIT
DOSES BUT IS LESS THAN FIVE HUNDRED UNIT DOSES OR EQUALS OR exceeds
ten grams but does not exceed IS LESS THAN fifty grams,
possession of heroin
is a felony of the second degree, and the court shall impose as a
mandatory prison term one of the prison terms prescribed for a
felony of the second degree.
(e) If the amount of the drug involved EQUALS OR EXCEEDS FIVE HUNDRED UNIT
DOSES BUT IS LESS THAN TWO THOUSAND FIVE HUNDRED UNIT DOSES OR EQUALS OR
exceeds
fifty grams but does not exceed IS LESS THAN two hundred fifty
grams,
possession of heroin is a felony of the first degree, and the
court shall impose as a mandatory prison term one of the prison
terms prescribed for a felony of the first degree.
(f) If the amount of the drug involved EQUALS OR EXCEEDS TWO THOUSAND FIVE
HUNDRED UNIT DOSES OR EQUALS OR exceeds
two hundred fifty grams, possession of heroin is a felony of the
first degree, THE OFFENDER IS A MAJOR DRUG OFFENDER, and the
court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the first
degree and may impose an additional mandatory prison term
prescribed for a major drug offender under division
(D)(3)(b) of section 2929.14 of the
Revised Code.
(7) If the drug involved in the violation is hashish or a compound,
mixture, preparation, or substance containing hashish,
whoever violates division (A) of this section is guilty
of possession of hashish. The penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(7)(b), (c), (d), (e), or
(f) of this section, possession of hashish is a minor misdemeanor.
(b) If the amount of the drug involved equals or exceeds
five grams but does not exceed IS LESS THAN ten grams of hashish
in a solid form or equals
or exceeds one gram but does not exceed IS LESS THAN two grams
of hashish in a liquid
concentrate, liquid extract, or liquid distillate form, possession of
hashish is a misdemeanor of the fourth degree.
(c) If the amount of the drug involved EQUALS OR exceeds
ten grams but does not exceed IS LESS THAN fifty grams of
hashish in a solid form or EQUALS OR
exceeds two grams but does not exceed IS LESS THAN ten grams of
hashish in a liquid
concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the fifth degree, and division
(B) of section 2929.13 of the Revised Code applies in determining whether to
impose
a prison term on the offender.
(d) If the amount of the drug involved EQUALS OR exceeds
fifty grams but does not exceed IS LESS THAN two hundred fifty
grams of hashish in a solid
form or EQUALS OR exceeds ten grams but does not exceed IS
LESS THAN fifty grams of hashish in a
liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the third degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to impose
a prison term on the offender.
(e) If the amount of the drug involved EQUALS OR exceeds
two hundred fifty grams but does not exceed IS LESS THAN one
thousand grams of hashish in a
solid form or EQUALS OR exceeds fifty grams but does not exceed
IS LESS THAN two hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the third degree, and there is a
presumption that a prison term shall be imposed for the offense.
(f) If the amount of the drug involved EQUALS OR exceeds
one thousand grams of hashish in a solid form or EQUALS OR exceeds two
hundred grams of
hashish in a liquid concentrate, liquid extract, or liquid distillate form,
possession of hashish is a felony of the
second degree, and the court shall impose as a mandatory prison
term the maximum prison term prescribed for a felony of the second
degree.
(D) Arrest or conviction for a minor misdemeanor violation
of this section does not constitute a criminal record and need
not be reported by the person so arrested or convicted in
response to any inquiries about the person's criminal record,
including any inquiries contained in any application for
employment, license, or other right or privilege, or made in
connection with the person's appearance as a witness.
(E) In addition to any prison term authorized or
required by division (C) of this section and sections
2929.13 and 2929.14 of the Revised Code and in
addition to any other sanction that is imposed for the offense
under this section or sections 2929.11 to 2929.18 of
the
Revised Code, the court that sentences an
offender who is convicted of or pleads guilty to a violation of
division (A) of this section shall do all of the
following that are applicable regarding the offender:
(1)(a) If the violation is a felony of the
first, second, or third degree, the court shall impose upon the
offender the mandatory fine specified for the offense under
division (B)(1) of section 2929.18 of the Revised
Code unless, as specified in that division, the court
determines that the offender is indigent.
(b) Notwithstanding any contrary provision of section
3719.21 of the Revised Code, the clerk of the
court shall pay a mandatory fine or other fine
imposed for a violation of this section pursuant to division (A) of section
2929.18 of the Revised Code in accordance with and subject to the requirements
of division (F) of section 2925.03 of the Revised Code. The agency that
receives the fine shall use the fine as specified in division (F) of section
2925.03 of the Revised Code.
(c) If a person is charged with a violation of this section that is a felony
of the first, second, or third degree, posts bail, and forfeits the bail, the
clerk shall pay the forfeited bail pursuant to division
(E)(1)(b) of this section as if it were a mandatory fine
imposed under division (E)(1)(a) of this section.
(2) The court shall suspend for not less than six months or more than five
years the driver's or commercial driver's license or permit of any person who
is convicted of or has pleaded guilty to a violation of this section.
(3) If the offender is a professionally licensed person or a person who
has
been admitted to the bar by order of the supreme court in compliance with its
prescribed and published rules, in addition to any other sanction imposed for
a violation of this section, the court forthwith shall comply with section
2925.38 of the Revised Code.
(F) It is an affirmative defense, as provided in section
2901.05 of the Revised Code, to a charge of a fourth degree felony
violation under this section that the controlled substance that gave
rise
to the charge is in an
amount, is in a form, is prepared, compounded, or mixed with substances that
are
not controlled substances in a manner, or is possessed
under any
other circumstances, that indicate that the substance was possessed solely for
personal use.
Notwithstanding any contrary provision of this section, if, in accordance
with section 2901.05 of the Revised Code, an accused who is charged with a
fourth degree
felony violation of division (C)(2), (4), (5), or (6) of this section
sustains the burden of going forward with evidence of and establishes by a
preponderance of the evidence the affirmative defense described in this
division, the accused may be prosecuted for and may plead guilty to or be
convicted of a misdemeanor violation of division (C)(2) of this
section or a fifth degree
felony violation of division (C)(4), (5), or (6) of this section
respectively.
(G) When a person is charged with possessing a bulk amount
or
multiple of a bulk amount, division (E) of section 2925.03 of the Revised Code
applies regarding the determination of the amount of the controlled substance
involved at the time of the offense.
Sec. 2925.23. (A) No person shall knowingly make a false
statement in any prescription, order, report, or record required
by Chapter 3719. or 4729. of the Revised Code.
(B) No person shall intentionally make, utter, or sell, or
knowingly possess ANY OF THE FOLLOWING THAT IS a false or forged:
(1) Prescription;
(2) Uncompleted preprinted prescription blank used for
writing a prescription;
(3) Official written order;
(4) License for a terminal distributor of dangerous drugs
as required in section 4729.60 of the Revised Code;
(5) Registration certificate for a wholesale distributor
of dangerous drugs as required in section 4729.60 of the Revised
Code.
(C) No person, by theft as defined in section 2913.02 of
the Revised Code, shall acquire any of the following:
(1) A prescription;
(2) An uncompleted preprinted prescription blank used for
writing a prescription;
(3) An official written order;
(4) A blank official written order;
(5) A license or blank license for a terminal distributor
of dangerous drugs as required in section 4729.60 of the Revised
Code;
(6) A registration certificate or blank registration
certificate for a wholesale distributor of dangerous drugs as
required in section 4729.60 of the Revised Code.
(D) No person shall knowingly make or affix any false or
forged label to a package or receptacle containing any dangerous
drugs.
(E) Divisions (A) and (D) of this section do not apply to
licensed health professionals authorized to prescribe
drugs, pharmacists, owners of pharmacies, and other
persons whose conduct is in accordance with Chapters 3719.,
4715., 4725., 4729., 4731., and 4741. of the Revised Code or
section 4723.56 of the Revised Code.
(F) Whoever violates this section is guilty of illegal
processing of drug documents. The penalty for the offense
IF THE OFFENDER VIOLATES DIVISION
(B)(2), (4), OR (5) OR DIVISION (C)(2), (4), (5), OR (6) OF
THIS SECTION, ILLEGAL PROCESSING OF DRUG DOCUMENTS IS A FELONY OF THE FIFTH
DEGREE. IF THE OFFENDER VIOLATES DIVISION (B)(1) OR (3), DIVISION
(C)(1) OR (3), OR DIVISION (D) OF THIS SECTION, THE
PENALTY FOR ILLEGAL PROCESSING OF DRUG DOCUMENTS
shall be
determined as follows:
(1) If the drug involved is a compound, mixture, preparation, or substance
included in schedule I or II, with the exception of marihuana, illegal
processing of drug documents is a felony of the fourth degree, and division
(C) of section 2929.13 of the Revised Code applies in determining whether to
impose a prison term on the offender.
(2) If the drug involved is a dangerous drug or a compound,
mixture, preparation, or substance included in schedule III,
IV, or V or is marihuana, illegal processing of drug documents is a felony of
the fifth degree, and division (C) of section 2929.13 of the Revised Code
applies in determining whether to impose a prison term on the offender.
(G) In addition to any prison term authorized or required by division (F) of
this section and sections 2929.13 and 2929.14 of the Revised Code and in
addition to any other sanction imposed for the offense under this section or
sections 2929.11 to 2929.18 of the Revised Code, the court that sentences an
offender who is convicted of or pleads guilty to any violation of divisions
(A) to (D) of this section shall do both of the following:
(1) The court shall suspend for not less
than six months or more than five years the driver's or
commercial driver's license or permit of any person who is convicted of or
has pleaded guilty to a violation of this section.
(2) If the offender is a professionally licensed person or a person who has
been admitted to the bar by order of the supreme court in compliance with its
prescribed and published rules, in addition to any other sanction imposed for
a violation of this section, the court forthwith shall comply with section
2925.38 of the Revised Code.
(H) Notwithstanding any contrary provision of section 3719.21 of the Revised
Code, the clerk of court shall pay a fine imposed for a violation of this
section pursuant to division (A) of section 2929.18 of the Revised Code in
accordance with and subject to the requirements of division (F) of
section 2925.03 of the Revised Code. The agency that receives the fine shall
use the fine as
specified in division (F) of section 2925.03 of the Revised Code.
Sec. 2925.36. (A) No person shall knowingly furnish
another a sample drug.
(B) Division (A) of this section does not apply to
manufacturers, wholesalers, pharmacists, owners of pharmacies,
dentists, doctors of medicine and surgery, doctors of osteopathic
medicine and surgery, doctors of podiatry, veterinarians, and
other persons whose conduct is in accordance with Chapters 3719.,
4715., 4729., 4731., and 4741. of the Revised Code or to
optometrists whose conduct is in accordance with a valid
therapeutic pharmaceutical agents certificate issued under
Chapter 4725. of the Revised Code.
(C)(1) Whoever violates this section is guilty of illegal
dispensing of drug samples.
(2) If the drug involved in the offense is a compound, mixture,
preparation, or substance included in schedule I or II, with the
exception of marihuana, the penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division (C)(2)(b) of this section,
illegal dispensing of drug samples is a felony of the fifth degree,
and, subject to division (E) of
this section, division (C) of section 2929.13 of the Revised Code applies in
determining whether to impose a prison term on the offender.
(b) If the offense was committed in the vicinity of a school or
in the vicinity of a juvenile, illegal dispensing of drug samples is a felony
of the fourth degree, and, subject to division (E) of this section,
division (C) of section 2929.13 of the Revised Code applies in determining
whether to impose a prison term on the offender.
(3) If the drug involved in the offense is a dangerous drug or a compound,
mixture, preparation, or substance included in schedule III, IV, or
V, or is marihuana, the penalty for the offense shall be
determined as follows:
(a) Except as otherwise provided in division
(C)(3)(b) of this section, illegal dispensing of
drug samples is a misdemeanor of the second degree.
(b) If the offense was committed in the vicinity of
a school or
in the vicinity of a juvenile, illegal dispensing of drug samples
is a misdemeanor of the first degree.
(D) In addition to any prison term authorized or
required by division (C) or (E) of this section and
sections 2929.13 and 2929.14 of the Revised Code and in addition to any other
sanction imposed for the offense under this section or sections 2929.11 to
2929.18 of the Revised Code, the court that
sentences an offender who is convicted of or pleads guilty to a violation of
division (A) of this section shall do both of the following:
(1) The court shall suspend for not less
than six months or more than five years the driver's or
commercial driver's license or permit of any person who is convicted of or
has pleaded guilty to a violation of this section.
(2) If the offender is a professionally licensed person or a person who has
been admitted to the bar by order of the supreme court in
compliance with its prescribed and published rules, in addition
to any other sanction imposed for a violation of this section,
the court forthwith shall comply with section 2925.38 of the Revised
Code.
(E) Notwithstanding the prison term authorized or required by
division (C) of this section and sections 2929.13 and 2929.14 of the Revised
Code, if the violation of division (A) of this section involves the sale,
offer to sell, or possession of a schedule I or II
controlled substance, with the exception of marihuana, and if the COURT
IMPOSING SENTENCE UPON THE OFFENDER FINDS THAT THE offender, as
a result of the violation, is a major drug offender AND IS GUILTY OF
A SPECIFICATION OF THE TYPE DESCRIBED IN SECTION 2941.1410 of the Revised Code, the
court, in lieu of the
prison term otherwise authorized or required, shall impose upon
the offender the mandatory prison term specified in division
(D)(3)(a) of section 2929.14 of the Revised Code and may impose an additional
prison
term under division (D)(3)(b) of that section.
(F) Notwithstanding any contrary provision of
section 3719.21 of the Revised Code, the clerk of the court shall pay a fine
imposed for a
violation of this section pursuant to division (A) of section 2929.18 of the
Revised Code in accordance with and subject to the requirements of division
(F) of section 2925.03 of the Revised Code. The agency that receives the fine
shall use the fine as specified in division (F) of section 2925.03 of the
Revised Code.
Sec. 2927.24. (A) As used in this section:
(1) "Poison" has the same meaning as in section 3719.01 of the Revised Code.
(2) "Drug" has the same meaning as in section
4729.01 of the Revised Code.
(B) Except as provided in division (D) of this section, no
person shall knowingly mingle a poison or other harmful substance
with a food, drink, nonprescription drug, prescription drug, or
pharmaceutical product, or knowingly place a poison or other
harmful substance in a spring, well, reservoir, or public water
supply, if the person knows or has reason to know that the food,
drink, nonprescription drug, prescription drug, pharmaceutical
product, or water may be ingested or used by another person. For
purposes of this division, a person does not know or have reason
to know that water may be ingested or used by another person if
it is disposed of as waste into a household drain including the
drain of a toilet, sink, tub, or floor.
(C) No person shall inform another person that a poison or
other harmful substance has been or will be placed in a food,
drink, nonprescription drug, prescription drug, or other
pharmaceutical product, spring, well, reservoir, or public water
supply, if the placement of the poison or other harmful substance
would be a violation of division (B) of this section, and the
person knows both that the information is false and that the
information likely will be disseminated to the public.
(D)(1) A person may mingle a drug with a food or drink for the purpose of
causing the drug to be ingested or used in the quantity described by its
labeling or prescription.
(2) A person may place a poison or other harmful substance in a spring, well,
reservoir, or public water supply in such quantity as is necessary to treat
the spring, well, reservoir, or water supply to make it safe for human
consumption and use.
(3) The provisions of division (A) of this section shall
not be applied in a manner that conflicts with any other state or
federal law or rule relating to substances permitted to be
applied to or present in any food, raw or processed, any milk or
milk product, any meat or meat product, any type of crop, water,
or alcoholic or nonalcoholic beverage.
(E)(1) Whoever violates division (B) of this section is
guilty of contaminating a substance for human consumption or
use,. EXCEPT AS OTHERWISE PROVIDED IN THIS DIVISION,
CONTAMINATING A SUBSTANCE FOR HUMAN CONSUMPTION OR USE IS
a felony of the first degree. If the offense involved an amount
of poison or other harmful substance sufficient to cause death if
ingested or used by a person or if the offense resulted in
serious physical harm to another person, whoever violates
division (B) of this section is guilty of an aggravated felony of
the first degree and shall be imprisoned for life WITH PAROLE
ELIGIBILITY AFTER SERVING FIFTEEN YEARS OF IMPRISONMENT.
(2) Whoever violates division (C) of this section is
guilty of spreading a false report of contamination, a felony of the fourth
degree.
Sec. 2929.01. As used in this chapter:
(A)(1) "Alternative residential facility" means, subject to division (A)(2)
of this section, any facility other than an offender's home
or residence in which an offender is assigned to live
and that satisfies all of the following criteria:
(a) It provides programs through which the offender may seek or maintain
employment or may receive education, training, treatment, or
habilitation.
(b) It has received the appropriate license or certificate for any
specialized education, training, treatment, habilitation, or
other service that it provides from the government agency that
is responsible for licensing or certifying that type of
education, training, treatment, habilitation, or service.
(2) "Alternative residential facility" does
not include a community-based correctional facility, jail,
halfway house, or prison.
(B) "Bad time" means the time by which the parole board
administratively extends an offender's stated prison term or terms pursuant to
section 2967.11 of the Revised Code because the parole board
finds by clear and convincing evidence that the
offender, while serving the prison term or terms, committed an
act that is a criminal offense under the law of this state or the
United States, whether or not the offender is prosecuted for
the commission of that act.
(C) "Basic supervision" means a
requirement that the offender maintain contact with a person
appointed
to supervise the offender in accordance
with sanctions imposed by the court or imposed by the parole board pursuant to
section 2967.28 of the Revised Code.
(D) "Cocaine," "crack cocaine," "hashish," "L.S.D.," and "unit dose" have the
same meanings as in section 2925.01 of the Revised Code.
(E) "Community-based correctional
facility" means a community-based correctional facility and
program or district community-based correctional facility and
program developed pursuant to sections 2301.51 to 2301.56 of the
Revised Code.
(F) "Community control sanction"
means a sanction that is not a prison term and that is described
in section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised
Code.
(G) "Criminally injurious conduct"
means any conduct of the type that is described in division
(C)(1) or (2) of section 2743.51 of the Revised
Code and that occurs on or after July 1, 1996, or any activity that
is described in divisions (C)(3) and (R) of section 2743.51
of the Revised Code and that occurs on or
after the effective date of this amendment.
(H) "Controlled substance," "marihuana," "schedule I," and
"schedule II" have the same meanings as in
section 3719.01 of the Revised Code.
(I)(H) "Curfew" means a requirement that
an offender during a specified period of time be at a designated
place.
(J)(I) "Day reporting" means a sanction
pursuant to which an offender is required each day to report to
and leave a center or other approved reporting location at
specified times in order to participate in work, education or
training, treatment, and other approved programs at the center or
outside the center.
(K)(J) "Deadly weapon" has the same
meaning as in section 2923.11 of the Revised
Code.
(L)(K) "Drug and alcohol use monitoring"
means a program under which an offender agrees to submit to
random chemical analysis of the offender's blood, breath, or urine to
determine whether the offender has ingested any alcohol or other
drugs.
(M)(L) "Drug treatment program" means
any program under which a person undergoes assessment and treatment designed
to
reduce or completely eliminate the person's physical or emotional reliance
upon alcohol, another drug, or alcohol and another drug and under
which the person may be required to
receive assessment and treatment on an outpatient basis or may be required to
reside at a facility other than the person's home or residence while
undergoing assessment and treatment.
(N)(M) "Economic loss" means any
economic detriment suffered by a victim as a result of criminally
injurious conduct THE COMMISSION OF A FELONY and includes any loss
of income due to lost
time at work because of any injury caused to the victim, and any
property loss, medical cost, or funeral expense incurred as a
result of the criminally injurious conduct COMMISSION OF THE
FELONY.
(O)(N) "Education or training" includes
study at, or in conjunction with a program offered by, a
university, college, or technical college or vocational study and
also includes the completion of primary school, secondary school,
and literacy curriculums or their equivalent.
(P)(O) "Electronically monitored house
arrest" has the same meaning as in section 2929.23 of the
Revised Code.
(Q)(P) "Eligible offender" has the same
meaning as in section 2929.23 of the Revised Code
except as otherwise specified in section 2929.20 of the
Revised Code.
(R)(Q) "Firearm" has the same meaning as
in section 2923.11 of the Revised Code.
(S)(R) "Halfway house" means a facility
licensed by the division of parole and community services of the department of
rehabilitation and correction pursuant to section
2967.14 of the Revised Code as a suitable
facility for the care and treatment of adult offenders.
(T)(S) "House arrest" means a period of confinement of an
eligible offender that
is in the eligible offender's home or in other premises specified by the
sentencing court or by the parole board
pursuant to section 2967.28 of the Revised Code, that may be
electronically monitored house arrest, and during which all of
the following apply:
(1) The eligible offender is required to remain in the eligible offender's
home or other specified premises
for the
specified period of confinement, except for periods of time
during which the eligible offender is at the eligible offender's place of
employment or at other
premises as authorized by the sentencing court or by the parole board.
(2) The eligible offender is required
to report periodically to a person designated by the
court or parole board.
(3) The eligible offender is subject to any other
restrictions and requirements that may be imposed by the
sentencing court or by the parole board.
(U)(T) "Intensive supervision" means a
requirement that an offender maintain frequent contact with a
person appointed by the court, or by the parole board pursuant to section
2967.28 of the Revised Code, to supervise the offender while the
offender is seeking or maintaining necessary employment and
participating in training, education, and treatment programs as
required in the court's or parole board's order.
(V)(U) "Jail" means a jail, workhouse,
minimum security jail, or other residential facility
used for the confinement of alleged or convicted offenders that
is operated by a political subdivision or a combination of
political subdivisions of this state.
(W)(V) "Delinquent child" has the same meaning as in section
2151.02 of the
Revised Code.
(X)(W) "License violation report" means
a report that is made by a sentencing court, or by the parole board pursuant
to section
2967.28 of the Revised Code, to the regulatory or
licensing board or agency that issued an offender a professional
license or a license or permit to do business
in this state and that specifies that the offender has been
convicted of or pleaded guilty to an offense that may violate the
conditions under which the offender's professional license or
license or permit to do business in this state was granted or an offense
for which the offender's professional license or license or permit to do
business in this state may be revoked or suspended.
(Y)(X) "Major drug offender" means an
offender who is convicted of or pleads guilty to the possession
of, sale of, or offer to sell any drug, compound, mixture,
preparation, or substance that consists of or contains at least
one thousand grams of hashish; at least one hundred
grams of crack cocaine; at least one thousand grams of cocaine that is not
crack cocaine; at least TWO THOUSAND FIVE HUNDRED UNIT DOSES OR two
hundred fifty grams of
heroin; at least five thousand unit doses of
L.S.D.; or at least one hundred times the
amount of any other schedule I or II controlled
substance other than marihuana that is necessary to commit a
felony of the third degree pursuant to section 2925.03, 2925.04,
2925.05, 2925.06, or 2925.11 of the Revised Code
that is based on the possession of, sale of, or offer to sell the
controlled substance.
(Z)(Y) "Mandatory prison term" means one any of the
following:
(1) Subject to division (DD)(Z)(Y)(2) of this section,
the term in prison that must be imposed for the offenses or
circumstances set forth in divisions (F)(1) to (9) or
(F)(10)(11) of section
2929.13 and division (D) of section 2929.14 of the
Revised Code. Except as provided in sections
2925.02, 2925.03, 2925.04, 2925.05, and 2925.11 of the
Revised Code, unless the maximum or another
specific term is required under section 2929.14 of the
Revised Code, a mandatory prison term described in this division may be
any prison term authorized for the level of offense.
(2) The term of sixty days in prison
that a sentencing court is required to impose for a fourth degree felony
OMVI offense pursuant
to division (G)(2) of section 2929.13 and division (A)(4) of
section 4511.99 of the Revised Code.
(3) The term in prison imposed pursuant to section 2971.03
of the Revised Code for the offenses and in the circumstances described in
division (F)(9)(10) of section 2929.13 of the Revised Code and
that term as
modified or terminated pursuant to
section 2971.05 of the Revised Code.
(AA)(Z) "Monitored time" means a period
of time during which an offender continues to be under the
control of the sentencing court or parole board, subject to no
conditions other than leading a law abiding life.
(BB)(AA) "Offender" means a person who,
in this state, is convicted of or pleads guilty to a felony or a
misdemeanor.
(CC)(BB) "Prison" means a residential
facility used for the confinement of convicted felony offenders
that is under the control of the department of rehabilitation and
correction but does not include a violation sanction center operated under
authority of section 2967.141 of the Revised Code.
(DD)(CC) "Prison term" includes any of the following
sanctions for an offender:
(1) A stated prison term;
(2) A term in a prison shortened by, or with the
approval of, the sentencing court pursuant to section 2929.20,
2967.26, 5120.031, 5120.032, or 5120.073 of the
Revised Code;
(3) A term in prison extended by bad time imposed
pursuant to section 2967.11 of the Revised Code
or imposed for a violation of post-release control pursuant to
section 2967.28 of the Revised Code.
(EE)(DD) "Repeat violent offender" means
a person about whom both of the following apply:
(1) The person has been convicted of or has pleaded
guilty to, and is being sentenced for committing, for
complicity in committing, or for an attempt to commit, aggravated murder,
murder, involuntary manslaughter, a felony of the first degree
other than one set forth in Chapter 2925. of the Revised
Code, a felony of the first degree set forth in Chapter
2925. of the Revised Code that involved an attempt
to cause serious physical harm to a person or that resulted in serious
physical harm to a person, or a
felony of the second degree that involved an attempt to cause serious physical
harm to a person
or that resulted in serious physical harm to a person.
(2) Either of the following applies:
(a) The person previously was convicted of or pleaded
guilty to, and served a prison term for, any of the following:
(i) Aggravated murder, murder, involuntary manslaughter, rape, felonious
sexual penetration as it existed under
section 2907.12 of the Revised Code as it existed prior to September 3,
1996, a felony of the first or second degree that resulted in the death
of a person or in physical harm to a person, or complicity in or an attempt
to commit any of those offenses;
(ii) An offense under an existing or
former law of this state, another state, or the
United States that is or was substantially equivalent to an offense listed
under division (EE)(DD)(2)(a)(i) of this section AND THAT
RESULTED IN THE DEATH OF A PERSON OR IN PHYSICAL HARM TO A PERSON.
(b) The person previously was adjudicated a delinquent child for
committing an act that if committed by an adult would have been an offense
listed in division
(EE)(DD)(2)(a)(i) or (ii) of this
section, the person was committed to the department of youth services for that
delinquent act, and the juvenile court in which the person was adjudicated a
delinquent child made a specific finding that the adjudication should be
considered
a conviction for purposes of a determination in the future pursuant to this
chapter as to whether the person is a repeat violent offender.
(FF)(EE) "Sanction" means any penalty
imposed upon an offender who is convicted of or pleads guilty to
an offense, as punishment for the offense. "Sanction"
includes any sanction imposed pursuant to any provision of
sections 2929.14 to 2929.18 of the Revised Code.
(GG)(FF) "Sentence" means the sanction or
combination of sanctions imposed by the sentencing court on an
offender who is convicted of or pleads guilty to a felony.
(HH)(GG) "Stated prison term" means the
prison term, mandatory prison term, or combination of all
prison terms and mandatory prison terms imposed by the
sentencing court pursuant to section 2929.14 or 2971.03 of the
Revised Code. "Stated prison term"
includes any credit received by the offender for time spent in
jail awaiting trial, sentencing, or transfer to prison for the
offense and any time spent under house arrest or electronically
monitored house arrest imposed after earning credits pursuant to
section 2967.193 of the Revised Code.
(II)(HH) "Victim-offender mediation"
means a reconciliation or mediation program that involves an
offender and the victim of the offense committed by the offender and that
includes a meeting in which the offender and the victim may discuss the
offense, discuss restitution, and consider other sanctions for
the offense.
(JJ)(II) "Fourth degree felony
OMVI offense" means a violation of division (A) of section
4511.19 of the Revised
Code that, under section 4511.99 of
the Revised
Code, is a felony of the fourth degree.
(KK)(JJ) "Mandatory term of local
incarceration" means the term of sixty days in a jail, a
community-based correctional facility, a halfway house, or an alternative
residential facility that a sentencing court is required to impose upon a
person who is convicted of or pleads guilty to a fourth degree felony
OMVI offense pursuant to division (G)(1) of section
2929.13 of the Revised Code and division (A)(4) of section 4511.99 of the
Revised Code.
(LL)(KK) "Designated homicide, assault, or kidnapping
offense," "sexual motivation specification," "sexually violent offense,"
"sexually violent predator," and "sexually violent predator specification"
have the same meanings as in section 2971.01 of the Revised Code.
(MM)(LL) "Habitual sex offender," "sexually oriented
offense," and "sexual predator" have the same meanings as in section 2950.01
of the Revised Code.
Sec. 2929.12. (A) Unless a mandatory prison
term is OTHERWISE required by division (F) of section
2929.13 or
section 2929.14 of the Revised Code, a court that
imposes a sentence under this chapter upon an offender for a felony has
discretion to determine
the most effective way to comply with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised
Code. In exercising that discretion, the court shall
consider the factors set forth in divisions (B) and
(C) of this section relating to the seriousness of the
conduct and the factors provided in divisions (D) and
(E) of this section relating to the likelihood of the
offender's recidivism and, in addition, may consider
any other factors that are relevant to achieving those purposes and principles
of sentencing.
(B) The sentencing court shall consider all of
the following that apply regarding the offender, the offense, or the victim,
and any other relevant factors, as indicating that the offender's conduct is
more serious than conduct normally
constituting the offense:
(1) The physical or mental injury suffered by the
victim of the offense due to the conduct of the offender was
exacerbated because of the physical or mental condition or age of
the victim.
(2) The victim of the offense suffered serious
physical, psychological, or economic harm as a result of the
offense.
(3) The offender held a public office or position of
trust in the community, and the offense related to that office or
position.
(4) The offender's occupation, elected office, or
profession obliged the offender to prevent the offense or bring
others committing it to justice.
(5) The offender's professional reputation or
occupation, elected office, or profession was used to facilitate
the offense or is likely to influence the future conduct of
others.
(6) The offender's relationship with the victim
facilitated the offense.
(7) The offender committed the offense for hire or as a
part of an organized criminal activity.
(8) In committing the offense, the offender was
motivated by prejudice based on race, ethnic background, gender, sexual
orientation, or religion.
(C) The sentencing court shall consider all of the
following that apply regarding the offender, the offense, or the victim, and
any other relevant factors, as indicating that the offender's conduct is less
serious than conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under
strong provocation.
(3) In committing the offense, the offender did not
cause or expect to cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the
offender's conduct, although the grounds are not enough to
constitute a defense.
(D) The sentencing court shall consider all of the
following that apply regarding the offender, and any other relevant factors,
as factors indicating that the
offender is likely to commit future crimes:
(1) At the time of committing the offense, the offender
was under release from confinement before trial or sentencing,
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or under
post-release control pursuant to section 2967.28 or
any other provision of the Revised Code for an
earlier offense.
(2) The offender previously was adjudicated a
delinquent child pursuant to Chapter 2151. of the
Revised Code, or the offender has a history
of criminal convictions.
(3) The offender has not been rehabilitated to a
satisfactory degree after previously being adjudicated a
delinquent child pursuant to Chapter 2151. of the
Revised Code, or the offender has not responded
favorably to sanctions previously imposed for criminal
convictions.
(4) The offender has demonstrated a pattern of drug or
alcohol abuse that is related to the offense, and the offender refuses to
acknowledge that the offender has demonstrated that pattern, or the
offender refuses treatment for the drug or alcohol abuse.
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the
following that apply regarding the offender, and any other relevant factors,
as factors indicating that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
(3) Prior to committing the offense, the offender had
led a law-abiding life for a significant number of years.
(4) The offense was committed under circumstances
not likely to recur.
(5) The offender shows genuine remorse for the offense.
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 THE offense while under the A COMMUNITY
CONTROL sanction OR WHILE ON PROBATION.
(i) THE OFFENDER COMMITTED THE OFFENSE WHILE IN POSSESSION OF A
FIREARM.
(2)(a) If the court makes a finding
described in division (B)(1)(a), (b), (c), (d), (e), (f), (g),
or (h), OR (i) 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), OR (i)
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, 2925.07, 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
possessing 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 OR SOLELY BY REASON OF
PRODUCING POSITIVE RESULTS ON A DRUG TEST, the court, as punishment
for the
violation of the sanction, shall NOT order that the offender
BE
IMPRISONED UNLESS THE COURT DETERMINES ON THE RECORD EITHER OF THE FOLLOWING:
(a) THE OFFENDER HAD BEEN ORDERED AS A SANCTION FOR THE FELONY
TO
participate in a drug
treatment program, IN A DRUG EDUCATION PROGRAM, or in
alcoholics anonymous,
narcotics anonymous, or a
similar program if the court determines that an order of that
nature is, AND THE OFFENDER CONTINUED TO USE ILLEGAL DRUGS AFTER
A
REASONABLE PERIOD OF PARTICIPATION IN THE PROGRAM.
(b) THE IMPRISONMENT OF THE OFFENDER FOR THE VIOLATION 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 OR 2967.191 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) 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 THAT IS A THIRD DEGREE FELONY AND THAT IS LISTED IN
DIVISION (DD)(1) OF SECTION 2929.01 of the Revised Code IF THE OFFENDER PREVIOUSLY
WAS CONVICTED OF OR PLEADED GUILTY TO ANY OFFENSE THAT IS LISTED IN DIVISION
(DD)(2)(a)(i) OR (ii) OF
SECTION 2929.01 of the Revised Code;
(8) 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)(9) 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)(10) 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;
(10)(11) A violation of division (A)(1) or (2) of section
2921.36 of the
Revised
Code, or a violation of division (C) of that section involving an item listed
in division (A)(1) or (2) of that section, if the offender is an officer or
employee of the department of rehabilitation and correction.
(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. Upon the establishment of the initial intensive
program prison pursuant to section 5120.033 of the Revised Code that is privately operated
and managed by a contractor pursuant to a contract entered into under section
9.06 of the Revised Code, both of the following apply:
(a) The department of rehabilitation and correction shall make a
reasonable effort to ensure that a sufficient number of offenders sentenced to
a mandatory prison term under this division are placed in the privately
operated and managed prison so that the privately operated and managed prison
has full occupancy.
(b) Unless the privately operated and managed prison has full
occupancy, the department of rehabilitation and correction shall not place any
offender sentenced to a mandatory prison term under this division in any
intensive program prison established pursuant
to section 5120.033 of the Revised Code other
than the privately operated and managed prison.
(H) If an offender is being sentenced
for a sexually oriented offense committed on or after January 1,
1997, 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.
(I) If an offender is being sentenced
for a sexually oriented offense committed on or after January 1,
1997, 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.
(J)(1) EXCEPT AS
PROVIDED IN DIVISION (J)(2) OF
THIS SECTION, WHEN CONSIDERING SENTENCING FACTORS UNDER THIS
SECTION IN RELATION TO AN OFFENDER WHO IS CONVICTED OF OR PLEADS
GUILTY TO AN ATTEMPT TO COMMIT AN OFFENSE IN VIOLATION OF
SECTION 2923.02 OF THE REVISED
CODE, THE SENTENCING COURT
SHALL CONSIDER THE FACTORS APPLICABLE TO THE FELONY CATEGORY OF
THE VIOLATION OF SECTION 2923.02 OF THE
REVISED
CODE INSTEAD OF THE FACTORS
APPLICABLE TO THE FELONY CATEGORY OF THE OFFENSE
ATTEMPTED.
(2) WHEN CONSIDERING SENTENCING FACTORS UNDER THIS
SECTION IN RELATION TO AN OFFENDER WHO IS CONVICTED OF OR PLEADS
GUILTY TO AN ATTEMPT TO COMMIT A DRUG ABUSE OFFENSE FOR WHICH
THE PENALTY IS DETERMINED BY THE AMOUNT OR NUMBER OF UNIT DOSES
OF THE CONTROLLED SUBSTANCE INVOLVED IN THE DRUG ABUSE OFFENSE,
THE SENTENCING COURT SHALL CONSIDER THE FACTORS APPLICABLE TO
THE FELONY CATEGORY THAT THE DRUG ABUSE OFFENSE ATTEMPTED WOULD
BE IF THAT DRUG ABUSE OFFENSE HAD BEEN COMMITTED AND HAD
INVOLVED AN AMOUNT OR NUMBER OF UNIT DOSES OF THE CONTROLLED
SUBSTANCE THAT IS WITHIN THE NEXT LOWER RANGE OF CONTROLLED SUBSTANCE AMOUNTS
THAN WAS INVOLVED
IN THE ATTEMPT.
(K) AS USED IN THIS
SECTION, "DRUG ABUSE OFFENSE" HAS THE SAME MEANING AS IN SECTION
2925.01 OF THE REVISED
CODE.
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)(d) 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 2941.141, 2941.144, OR
2941.145 of the
Revised Code, THE COURT SHALL IMPOSE ON THE OFFENDER ONE OF THE
FOLLOWING PRISON TERMS:
(i) A PRISON TERM OF SIX YEARS IF THE SPECIFICATION IS 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;
(ii) A PRISON TERM OF THREE YEARS IF THE specification
IS 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;
(iii) A PRISON TERM OF ONE YEAR IF THE specification
IS 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.
(b) IF A
court, after imposing IMPOSES a prison term on the
AN
offender for the felony under division (A),
(D)(2), or (D)(3)(1)(a) of this section, shall impose
an additional THE 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 (D)(1)(a) OF THIS SECTION 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)(c) Except as provided in division
(D)(1)(b)(d)
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 (D)(1)(c) OF THIS SECTION 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 (D)(1)(c) OF THIS SECTION
relative to an offense, the court also shall
impose an additional A 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)(d) The court shall not impose any of the
additional
prison terms described in division
(D)(1)(a)
of this section OR ANY OF THE ADDITIONAL PRISON TERMS DESCRIBED IN
DIVISION (D)(1)(c) OF THIS SECTION upon an
offender for a violation of section
2923.12 or 2923.123 of the Revised Code. The court shall not
impose any of the additional prison terms described in that
division
(D)(1)(a) OF THIS SECTION OR ANY OF THE ADDITIONAL PRISON TERMS
DESCRIBED IN DIVISION (D)(1)(c) OF THIS SECTION
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 CLASSIFIES THE OFFENDER AS A MAJOR DRUG
OFFENDER AND requires the
imposition of a ten-year prison term on the offender or, if
a
THE OFFENDER COMMITS A FELONY VIOLATION OF SECTION 2925.02,
2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, OR
4729.61, DIVISION (C) OR (D) OF SECTION 3719.172, DIVISION
(C) OF SECTION 4729.51, OR DIVISION (J) OF SECTION 4729.54
of the Revised Code THAT INCLUDES THE SALE, OFFER TO SELL, OR POSSESSION OF A SCHEDULE
I OR II CONTROLLED SUBSTANCE, WITH THE EXCEPTION OF
MARIHUANA, AND THE
court imposing a sentence upon an THE 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, CHARGING
that the offender is a
major drug offender, OR IF THE COURT IMPOSING SENTENCE UPON AN OFFENDER FOR
A FELONY FINDS THAT THE 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)(d) of
this section for committing a felony specified in that division by discharging
a firearm from a motor vehicle, OR IF BOTH TYPES OF MANDATORY PRISON TERMS
ARE IMPOSED, the offender shall serve
the ANY mandatory prison term
IMPOSED UNDER EITHER DIVISION
CONSECUTIVELY TO ANY OTHER MANDATORY PRISON TERM IMPOSED UNDER EITHER DIVISION
AND SHALL SERVE ALL MANDATORY PRISON TERMS IMPOSED UNDER THOSE DIVISIONS
consecutively to and prior to the ANY 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.
(H) If a person who has been convicted of or pleaded guilty to a felony is
sentenced to a prison term or term of imprisonment under this section,
sections 2929.02 to 2929.06 of the Revised Code, section 2971.03 of the
Revised Code, or any other provision of law, section 5120.163 of the Revised
Code applies regarding the person while the person is confined in a state
correctional institution.
(I) If an offender who is convicted of or pleads guilty to a
felony that is an offense of violence
also is convicted of or pleads guilty to a specification of the
type described in section 2941.142 of the
Revised Code that charges the offender with having committed
the felony while participating in a criminal gang, the court shall impose upon
the
offender an additional prison term of one, two, or three years.
(J) AT THE TIME OF SENTENCING, THE COURT SHALL DETERMINE IF AN
OFFENDER IS ELIGIBLE FOR PLACEMENT IN A PROGRAM OF SHOCK INCARCERATION UNDER
SECTION 5120.031 of the Revised Code OR IS ELIGIBLE FOR PLACEMENT IN AN INTENSIVE PROGRAM
PRISON UNDER SECTION 5120.032 of the Revised Code. THE COURT MAY RECOMMEND THE OFFENDER FOR
PLACEMENT IN A PROGRAM OF SHOCK INCARCERATION, IF ELIGIBLE, OR FOR PLACEMENT
IN AN INTENSIVE PROGRAM PRISON, IF ELIGIBLE, DISAPPROVE PLACEMENT OF THE
OFFENDER IN A PROGRAM OF SHOCK INCARCERATION OR IN AN INTENSIVE PROGRAM
PRISON, REGARDLESS OF ELIGIBILITY, OR MAKE NO RECOMMENDATION ON PLACEMENT OF
THE OFFENDER.
IF THE COURT DISAPPROVES PLACEMENT OF THE OFFENDER IN A PROGRAM OR PRISON
OF THAT NATURE, THE DEPARTMENT OF REHABILITATION AND CORRECTION SHALL NOT
PLACE THE OFFENDER IN ANY PROGRAM OF SHOCK INCARCERATION OR INTENSIVE PROGRAM
PRISON.
IF THE COURT APPROVES PLACEMENT OF THE OFFENDER IN A PROGRAM OF SHOCK
INCARCERATION OR IN AN INTENSIVE PROGRAM PRISON, THE DEPARTMENT SHALL NOTIFY
THE COURT IF THE OFFENDER IS SUBSEQUENTLY PLACED IN THE RECOMMENDED PROGRAM OR
PRISON AND SHALL INCLUDE WITH THE NOTICE A BRIEF DESCRIPTION OF THE PLACEMENT.
IF THE COURT APPROVES PLACEMENT OF THE OFFENDER IN A PROGRAM OF SHOCK
INCARCERATION OR IN AN INTENSIVE PROGRAM PRISON AND THE DEPARTMENT DOES NOT
SUBSEQUENTLY PLACE THE OFFENDER IN THE RECOMMENDED PROGRAM OR PRISON, THE
DEPARTMENT SHALL SEND A NOTICE TO THE COURT INDICATING WHY THE OFFENDER WAS
NOT PLACED IN THE RECOMMENDED PROGRAM OR PRISON.
IF THE COURT DOES NOT MAKE A RECOMMENDATION UNDER THIS DIVISION WITH
RESPECT TO AN ELIGIBLE OFFENDER, THE DEPARTMENT SHALL SCREEN THE OFFENDER AND
DETERMINE IF THERE IS AN AVAILABLE PROGRAM OF SHOCK INCARCERATION OR AN
INTENSIVE PROGRAM PRISON FOR WHICH THE OFFENDER IS SUITED. IF THERE IS AN
AVAILABLE PROGRAM OF SHOCK INCARCERATION OR AN INTENSIVE PROGRAM PRISON FOR
WHICH THE OFFENDER IS SUITED, THE DEPARTMENT SHALL NOTIFY THE COURT OF THE
PROPOSED PLACEMENT OF THE OFFENDER AND SHALL INCLUDE WITH THE NOTICE A BRIEF
DESCRIPTION OF THE PLACEMENT. THE COURT SHALL HAVE TEN DAYS FROM RECEIPT OF
THE NOTICE TO DISAPPROVE THE PLACEMENT.
Sec. 2929.15. (A)(1) If in sentencing an offender for a felony the court is
not required to impose a prison term, a mandatory prison term, or a
term of life imprisonment upon the offender, the court may directly impose a
sentence community control that consists of one or more community
control sanctions
authorized pursuant to section 2929.16, 2929.17, or 2929.18 of
the Revised Code. If the court is sentencing an offender for a fourth
degree felony OMVI offense and if it is required to impose on the
offender a mandatory term of local incarceration pursuant to division
(G)(1) of section 2929.13 of the Revised Code, in addition to the
mandatory term of local incarceration and the mandatory fine required by
division (B)(3) of section
2929.18 of the Revised Code, the court may impose upon the offender a
community control sanction or combination of community control sanctions in
accordance with sections 2929.16 and 2929.17 of the Revised Code.
The duration of all community
control sanctions so imposed imposed upon an offender shall not exceed
five years.
IF THE OFFENDER ABSCONDS OR OTHERWISE LEAVES THE JURISDICTION OF THE COURT
IN WHICH THE OFFENDER RESIDES WITHOUT OBTAINING PERMISSION FROM THE COURT OR
THE OFFENDER'S PROBATION OFFICER TO LEAVE THE JURISDICTION OF THE COURT, OR IF
THE OFFENDER IS CONFINED IN ANY INSTITUTION FOR THE COMMISSION OF ANY OFFENSE
WHILE UNDER A COMMUNITY CONTROL SANCTION, THE PERIOD OF THE COMMUNITY CONTROL
SANCTION CEASES TO RUN UNTIL THE OFFENDER IS BROUGHT BEFORE THE COURT FOR ITS
FURTHER ACTION.
If the court sentences the offender to one or more nonresidential
sanctions under section 2929.17 of the Revised Code, the court shall comply
with division (C)(1)(b) of section 2951.02 of the Revised Code and impose
the
mandatory AS A condition described in that division OF
THE NONRESIDENTIAL SANCTIONS THAT, DURING THE PERIOD OF THE SANCTIONS, THE
OFFENDER MUST ABIDE BY THE LAW AND MUST NOT LEAVE THE STATE WITHOUT THE
PERMISSION OF THE COURT OR THE OFFENDER'S PROBATION OFFICER. The court
may impose any
other conditions of release under a community control sanction that the court
considers appropriate. If the court is sentencing an
offender for a fourth degree felony OMVI offense and if it is
required to impose on
the offender a mandatory prison term pursuant to division
(G)(2) of section 2929.13 of the Revised Code,
the court shall not impose upon the offender any community control sanction or
combination of community control sanctions under section 2929.16 or 2929.17 of
the Revised Code.
(2)(a) If a court sentences an offender to any community control sanction
or combination of community control sanctions authorized
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, the
court shall place the offender under the general control and
supervision of a department of probation in the county that
serves the court for purposes of reporting to the court a
violation of any CONDITION of the sanctions or the mandatory
condition imposed under
division (C)(1)(b) of section 2951.02 of the Revised Code, A
VIOLATION OF LAW, OR THE DEPARTURE OF THE OFFENDER FROM THIS STATE WITHOUT THE
PERMISSION OF THE COURT OR THE OFFENDER'S PROBATION OFFICER.
Alternatively, if
the offender resides in another county and a county department of probation
has been
established in that county or that county is served by a multicounty probation
department established under section 2301.27 of the Revised
Code, the court may request the
court of common pleas of that county to receive the offender into the general
control and supervision
of that county or multicounty department of probation for
purposes of reporting to the court a violation of any CONDITION of the
sanctions, or the mandatory condition imposed under division (C)(1)(b) of
section 2951.02 of the Revised Code A VIOLATION OF LAW, OR THE
DEPARTURE OF THE OFFENDER FROM THIS STATE WITHOUT THE PERMISSION OF THE COURT
OR THE OFFENDER'S PROBATION OFFICER, subject to the jurisdiction of
the
trial judge over
and with respect to the person of the offender, and to the rules
governing that department of probation.
If there is no department of
probation in the county that serves the court, the court shall place the
offender, regardless of the offender's county of residence, under the general
control and supervision of the adult parole authority for
purposes of reporting to the court a violation of any of the sanctions or
the
mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the
Revised Code, A VIOLATION OF LAW, OR THE DEPARTURE OF THE
OFFENDER FROM THIS STATE WITHOUT THE PERMISSION OF THE COURT OR THE OFFENDER'S
PROBATION OFFICER.
(b) If the court imposing sentence upon an offender sentences the offender to
any community control sanction or
combination of community control sanctions authorized pursuant
to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, and if the offender
violates any CONDITION of the sanctions or the mandatory condition
imposed under
division (C)(1)(b) of section 2951.02 of the Revised Code,
VIOLATES ANY LAW, OR DEPARTS THE STATE WITHOUT THE PERMISSION OF THE COURT
OR THE OFFENDER'S PROBATION OFFICER, the public or
private person or
entity that operates or administers the sanction or the program
or activity that comprises the sanction shall report the
violation OR DEPARTURE directly to the sentencing court, or shall
report the
violation OR DEPARTURE to the county or multicounty department of
probation
with general control and supervision over the offender under
division (A)(2)(a) of this section or the officer of that department who
supervises the offender, or, if there is no such department with general
control and supervision over the offender under that division,
to the adult parole authority. If the public or private person
or entity that operates or administers the sanction or the
program or activity that comprises the sanction reports the
violation OR DEPARTURE to the county or multicounty department of
probation
or the adult parole authority, the department's or authority's
officers may treat the offender as if the offender were on probation and
in violation of the probation, and shall report the violation of
the CONDITION OF THE sanction or the mandatory condition imposed
under division (C)(1)(b) of
section 2951.02 of the Revised Code, THE VIOLATION OF LAW, OR
THE DEPARTURE FROM THE STATE WITHOUT THE REQUIRED PERMISSION to the
sentencing court.
(B) If the conditions of a community control
sanction or the mandatory condition imposed under division (C)(1)(b) of
section 2951.02 of the Revised Code is ARE violated OR IF THE
OFFENDER VIOLATES A LAW OR LEAVES THE STATE WITHOUT THE PERMISSION OF THE
COURT OR THE OFFENDER'S PROBATION OFFICER, the sentencing court may
impose a longer time under the same sanction if the total time under the
sanctions does not exceed the five-year limit specified in
division (A) of this section, may impose a more
restrictive sanction under section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or may impose a prison term on the offender pursuant to
section 2929.14 of the Revised Code. The court shall not eliminate the
mandatory condition imposed under division (C)(1)(b) of section 2951.02 of the
Revised Code. The prison
term, if any, imposed upon a violator pursuant to this division
shall be within the range of prison terms available for the
offense for which the sanction that was violated was imposed and
shall not exceed the prison term specified in the notice provided
to the offender at the sentencing hearing pursuant to division
(B)(3) of section 2929.19 of the Revised
Code. The court may reduce the longer period of time
that the offender is required to spend under the longer sanction,
the more restrictive sanction, or a prison term imposed pursuant
to this division by the time the offender successfully spent
under the sanction that was initially imposed.
(C) If an offender, for a significant period of
time, fulfills the conditions of a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised
Code in an exemplary manner, the court may reduce the
period of time under the sanction or impose a less restrictive
sanction, but the court shall not eliminate the mandatory condition imposed
under division (C)(1)(b) of section 2951.02 of the Revised Code PERMIT
THE OFFENDER TO VIOLATE ANY LAW OR PERMIT THE OFFENDER TO LEAVE THE STATE
WITHOUT THE PERMISSION OF THE COURT OR THE OFFENDER'S PROBATION OFFICER.
Sec. 2929.17. The court imposing a sentence for a
felony upon an offender who is not required to serve a mandatory
prison term may impose any nonresidential sanction or combination
of nonresidential sanctions authorized under this section.
If the court imposes one or more nonresidential sanctions authorized under
this section, the court shall comply with division (C)(1)(b) of section
2951.02 of the Revised Code and impose the mandatory AS A
condition described in
that division. The OF THE SANCTION THAT, DURING THE PERIOD OF THE
NONRESIDENTIAL SANCTION, THE OFFENDER SHALL ABIDE BY THE LAW AND SHALL NOT
LEAVE THE STATE WITHOUT THE PERMISSION OF THE COURT OR THE OFFENDER'S
PROBATION OFFICER.
THE court imposing a sentence for a fourth degree felony
OMVI offense upon an offender who is required to
serve a mandatory term of local incarceration under division (G)(1)
of section 2929.13 of the Revised Code may impose upon the offender, in
addition to the mandatory term of local incarceration, a nonresidential
sanction or combination of nonresidential sanctions under this section, and
the offender shall serve or satisfy the sanction or combination of sanctions
after the offender has served the mandatory term of local incarceration
required for the offense. Nonresidential sanctions include, but are not
limited to, the following:
(A) A term of day reporting;
(B) A term of electronically monitored house arrest, a
term of electronic monitoring without house arrest, or a term of
house arrest without electronic monitoring;
(C) A term of community service of up to five hundred
hours pursuant to division (F) of section 2951.02 of the
Revised Code or, if the court determines that the
offender is financially incapable of fulfilling a financial
sanction described in section 2929.18 of the Revised
Code, a term of community service as an alternative to a
financial sanction;
(D) A term in a drug treatment program with a level of
security for the offender as determined necessary by the court;
(E) A term of intensive supervision;
(F) A term of basic supervision;
(G) A term of monitored time;
(H) A term of drug and alcohol use monitoring;
(I) A curfew term;
(J) A requirement that the offender obtain employment;
(K) A requirement that the offender obtain education
or training;
(L) Provided the court obtains the prior approval of the victim,
a requirement that the offender participate in
victim-offender mediation;
(M) A license violation report.
Sec. 2929.18. (A) Except as otherwise provided in this
division and in addition to imposing court costs pursuant to section 2947.23
of the Revised Code, the court imposing a sentence upon an offender for a
felony may sentence the offender to any financial sanction or combination of
financial
sanctions authorized under this section or, in the circumstances specified
in section 2929.25 of the Revised Code, may impose upon the
offender a fine in accordance with that section. If the offender is sentenced
to a sanction of confinement pursuant to section 2929.14 or 2929.16 of the
Revised Code that is to be served in a facility operated by
a board of county commissioners, a legislative authority of a municipal
corporation, or another governmental entity, the court imposing sentence upon
an offender for a felony shall comply with division
(A)(4)(b) of this section in determining whether to
sentence the offender to a financial sanction described in division
(A)(4)(a) of this section. Financial sanctions
that may be imposed pursuant to this section include, but are
not limited to, the following:
(1) Restitution by the offender to the victim of the
offender's crime or any survivor of the victim, in an amount
based on the victim's economic loss. The court shall order that the
restitution be made to the adult probation department that serves the county
on behalf of the victim, to the clerk of courts, or to another agency
designated by the court, except that it may include a requirement
that reimbursement be made to third parties for amounts paid to
or on behalf of the victim or any survivor of the victim for economic
loss resulting from the offense. If reimbursement to third parties is
required, the reimbursement shall be made to any governmental
agency to repay any amounts paid by the agency to or on behalf of the
victim or
any survivor of the victim for economic loss resulting from the
offense before any reimbursement is made to any person other than
a governmental agency. If no governmental agency incurred
expenses for economic loss of the victim or any survivor of the
victim resulting from the offense, the reimbursement shall be
made to any person other than a governmental agency to repay
amounts paid by that person to or on behalf of the victim or any
survivor of the
victim for economic loss of the victim resulting from the
offense. The court shall not require an offender to repay an insurance
company for any amounts the company paid on behalf of the offender pursuant to
a policy of insurance. At sentencing, the court shall determine
the amount of
restitution to be made by the offender. All restitution payments
shall be credited against any recovery of economic loss in a
civil action brought by the victim or any survivor of the victim
against the offender.
(2) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision, or as described in division (B)(2)
of this section to one or more law enforcement agencies, with the
amount of the fine based on a standard percentage of the
offender's daily income over a period of time determined by the
court and based upon the seriousness of the offense. A fine
ordered under this division shall not exceed the statutory fine
amount authorized for the level of the offense under division
(A)(3) of this section.
(3) Except as provided in division (B)(1), (3), or (4) of
this section, a fine payable by the offender to the state, to a
political subdivision when appropriate for a felony, or as
described in division (B)(2) of this section to one or
more law enforcement agencies, in the following amount:
(a) For a felony of the first degree, not more
than twenty thousand dollars;
(b) For a felony of the second degree, not more
than fifteen thousand dollars;
(c) For a felony of the third degree, not more
than ten thousand dollars;
(d) For a felony of the fourth degree, not more
than five thousand dollars;
(e) For a felony of the fifth degree, not more
than two thousand five hundred dollars.
(4)(a) Subject to division
(A)(4)(b) of this section, reimbursement by the
offender of any or
all of the costs of sanctions incurred by the government,
including the following:
(i) All or part of the costs of implementing
any community control sanction;
(ii) All or part of the costs of confinement
under a sanction imposed pursuant to section 2929.14 or 2929.16
of the Revised Code, provided that the amount of
reimbursement ordered under this division shall not exceed THE LESSER
OF ten
thousand dollars or the total amount of reimbursement the
offender is able to pay as determined at a hearing, whichever amount is
greater;
(b) If the offender is sentenced to a sanction of confinement pursuant to
section 2929.14 or 2929.16 of the Revised
Code that is to be served in a facility
operated by a board of county commissioners, a legislative authority of a
municipal corporation, or another local governmental entity, one of the
following applies:
(i) If, pursuant to section 307.93, 341.14, 341.19, 341.23,
753.02, 753.04, 753.16, 2301.56, or 2947.19 of the Revised Code, the
board, legislative authority, or other local governmental entity requires
prisoners convicted of an offense other than a minor misdemeanor to reimburse
the county, municipal corporation, or other entity for its expenses incurred
by reason of the prisoner's confinement, the court shall impose a financial
sanction under division (A)(4)(a) of this section that requires the offender
to reimburse the county, municipal corporation, or other local governmental
entity for the cost of the confinement. In addition, the
court may impose any other financial sanction under this section.
(ii) If, pursuant to any section identified in division
(A)(4)(b)(i)
of this section, the board, legislative authority, or other local governmental
entity has adopted
a resolution or ordinance specifying that prisoners convicted of felonies are
not required to reimburse the county, municipal corporation, or other local
governmental entity
for its expenses incurred by reason of the prisoner's confinement, the court
shall not impose a financial sanction under division (A)(4)(a) of this section
that requires the offender to reimburse the county, municipal corporation, or
other local governmental entity for the cost of the confinement, but the court
may impose any
other financial sanction under this section.
(iii) If neither division (A)(4)(b)(i) nor (A)(4)(b)(ii) of this section
applies, the court may impose, but is not required to impose, any financial
sanction under this section.
(c) Reimbursement by the offender for costs
pursuant to section 2929.28 of the Revised Code.
(B)(1) For a first, second, or third degree
felony violation of any provision of Chapter 2925.,
3719., or 4729. of the Revised Code, the
sentencing court shall impose upon the offender a mandatory fine
of at least one-half of, but not more than, the maximum statutory
fine amount authorized for the level of the offense pursuant to
division (A)(3) of this section. If an offender alleges in an affidavit filed
with the court prior
to sentencing that the offender is indigent and unable to pay the
mandatory fine and if the court determines the offender is an
indigent person and is unable to pay the mandatory fine described in this
division, the court shall not impose the mandatory fine upon the offender.
(2) Any mandatory fine imposed upon an offender under
division (B)(1) of this section and any fine imposed upon
an offender under division (A)(2) or (3) of this section
for any fourth or fifth degree felony violation of any provision
of Chapter 2925., 3719., or 4729. of the Revised
Code shall be paid to law enforcement agencies pursuant
to division (F) of section 2925.03 of the Revised
Code.
(3) For a fourth degree felony
OMVI
offense, the sentencing court shall impose upon the offender a mandatory fine
in the amount specified in division (A)(4) of section 4511.99
of the Revised
Code. The mandatory fine so imposed shall be
disbursed as provided in division (A)(4) of section
4511.99 of the Revised
Code.
(4) Notwithstanding any fine
otherwise authorized or required to be imposed under division
(A)(2) or (3) or (B)(1) of this section or section 2929.31
of the Revised Code for a violation of section 2925.03 or
2925.07 of the Revised Code, in addition to any
penalty or sanction imposed for that offense under section
2925.03 or 2925.07 or sections 2929.11 to 2929.18 of the
Revised Code and in addition to the
forfeiture of property in connection with the offense as
prescribed in sections 2925.42 to 2925.45 of the
Revised Code, the court that sentences
an offender for a violation of section 2925.03 or 2925.07 of
the Revised Code may impose upon the
offender a fine in addition to any fine imposed under division
(A)(2) or (3) of this section
and in addition to any mandatory fine imposed under division
(B)(1) of this section. The fine imposed under division
(B)(4) of this section shall be used as provided in division
(H) of section 2925.03 of the Revised Code. A fine
imposed under division (B)(4) of this section shall not exceed
whichever of the following is applicable:
(a) The total value of any personal
or real property in which the offender has an interest and that
was used in the course of, intended for use in the course of,
derived from, or realized through conduct in violation of
section 2925.03 or 2925.07 of the Revised Code, including any
property that constitutes proceeds derived from that offense;
(b) If the offender has no interest
in any property of the type described in division
(B)(4)(a) of this section or if it is not possible to
ascertain whether
the offender has an interest in any property of that type in
which the offender may have an interest, the amount of the
mandatory fine for the offense imposed under division
(B)(1) of this section or, if no mandatory fine is imposed under
division (B)(1) of this section, the amount of the fine authorized
for the level of the offense
imposed under division (A)(3) of this section.
(5) Prior to imposing a fine under division
(B)(4) of this section, the
court shall determine whether the offender has an interest in
any property of the type described in division
(B)(4)(a) of this section. Except as provided in
division (B)(6) or (7) of this section,
a fine that is authorized and imposed under division
(B)(4) of this section does not
limit or affect the imposition of the penalties and sanctions
for a violation of section 2925.03 or 2925.07 of the Revised Code prescribed under
those sections
or sections 2929.11 to 2929.18 of the
Revised Code and does not limit or
affect a forfeiture of property in connection with the offense
as prescribed in sections 2925.42 to 2925.45 of the
Revised Code.
(6) If the sum total of a mandatory fine amount imposed
for a first, second, or third degree felony violation of section
2925.03 or a third degree felony violation of section 2925.07
of the Revised Code under division
(B)(1) of this section plus the
amount of any fine imposed under division
(B)(4) of this section does not
exceed the maximum statutory fine amount authorized for the
level of the offense under division (A)(3) of this section or
section 2929.31 of the Revised Code, the court may impose a
fine for the offense in addition to the mandatory fine and the
fine imposed under division (B)(4) of this section. The
sum total of the amounts of the mandatory fine, the fine imposed
under division (B)(4) of this
section, and the additional fine imposed under division
(B)(6) of this section shall
not exceed the maximum statutory fine amount authorized for the
level of the offense under division (A)(3) of this section or
section 2929.31 of the Revised Code. The clerk of the court
shall pay any fine that is imposed under division
(B)(6) of this section to the county, township, municipal
corporation, park district as
created pursuant to section 511.18 or 1545.04 of the
Revised Code, or state law enforcement
agencies in this state that primarily were responsible for or
involved in making the arrest of, and in prosecuting, the
offender pursuant to division (F) of section 2925.03 of the
Revised Code.
(7) If the sum total of the amount of a mandatory fine
imposed for a first, second, or third degree felony violation of
section 2925.03 or a third degree felony violation of section
2925.07 of the Revised Code plus the amount of any
fine imposed under division (B)(4) of this section exceeds
the maximum statutory fine amount authorized for the level of
the offense under division (A)(3) of this section or
section 2929.31 of the Revised Code, the court shall not
impose a fine under division (B)(6) of this section.
(C)(1) The offender shall pay reimbursements
imposed upon the offender pursuant to division
(A)(4)(a) of this
section to pay the costs incurred by the department of rehabilitation and
correction in operating a
prison or other facility used to confine offenders pursuant to sanctions
imposed under section 2929.14 or 2929.16 of the Revised
Code to the treasurer of state. The treasurer of state
shall deposit the reimbursements in the confinement cost
reimbursement fund that is hereby created in the state
treasury. The department of rehabilitation and correction shall
use the amounts deposited in the fund to fund the operation of
facilities used to confine offenders pursuant to sections 2929.14
and 2929.16 of the Revised Code.
(2) Except as provided in section 2951.021 of the Revised Code, the offender
shall pay reimbursements imposed upon the offender pursuant to division
(A)(4)(a) of this
section to pay the costs incurred by a county pursuant to any
sanction imposed under this section or section 2929.16 or 2929.17
of the Revised Code or in operating a facility
used to confine offenders pursuant to a sanction imposed under
section 2929.16 of the Revised Code to the county
treasurer. The county treasurer shall deposit the
reimbursements in the sanction cost reimbursement fund that each
board of county commissioners shall create in its county
treasury. The county shall use the amounts deposited in the fund
to pay the costs incurred by the county pursuant to any sanction
imposed under this section or section 2929.16 or 2929.17 of the
Revised Code or in operating a facility used to
confine offenders pursuant to a sanction imposed under section
2929.16 of the Revised Code.
(3) Except as provided in section 2951.021 of the Revised Code, the offender
shall pay reimbursements imposed upon the offender pursuant to division
(A)(4)(a) of this
section to pay the costs incurred by a municipal corporation
pursuant to any sanction imposed under this section or section
2929.16 or 2929.17 of the Revised Code or in
operating a facility used to confine offenders pursuant to a
sanction imposed under section 2929.16 of the Revised
Code to the treasurer of the municipal
corporation. The treasurer shall deposit the reimbursements
in a special fund that shall be established in the
treasury of each municipal corporation. The municipal
corporation shall use the amounts deposited in the fund to pay
the costs incurred by the municipal corporation pursuant to any
sanction imposed under this section or section 2929.16 or 2929.17
of the Revised Code or in operating a facility
used to confine offenders pursuant to a sanction imposed under
section 2929.16 of the Revised Code.
(4) Except as provided in section 2951.021 of the Revised Code, the offender
shall pay reimbursements imposed pursuant to division
(A)(4)(a) of this section for the costs incurred by a
private provider pursuant to a sanction imposed under this section or section
2929.16 or 2929.17 of the Revised Code to the provider.
(D) A financial sanction imposed pursuant to division (A) or
(B) of this section is a judgment in favor of the state or a
political subdivision in which the court that imposed the financial
sanction is located, and the offender subject to the sanction is
the judgment debtor, except that a financial sanction of
reimbursement imposed pursuant to division
(A)(4)(a)(ii) of this section upon an
offender who is incarcerated in a state facility or a municipal
jail is a judgment in favor of the state or the municipal
corporation, a financial sanction of reimbursement imposed upon an
offender pursuant to this section for costs incurred by a private provider of
sanctions is a judgment in favor of the private provider, and a
financial sanction of restitution imposed
pursuant to this section is a judgment in favor of the victim of
the offender's criminal act. THE OFFENDER SUBJECT TO THE SANCTION IS THE
JUDGMENT DEBTOR. IMPOSITION OF A FINANCIAL SANCTION AND EXECUTION ON THE
JUDGMENT DOES NOT PRECLUDE ANY OTHER POWER OF THE COURT TO IMPOSE OR ENFORCE
SANCTIONS ON THE OFFENDER. Once the financial sanction is
imposed as a judgment, the victim, private provider, state, or
political subdivision may bring an action to do any of the following:
(1) Obtain execution of the judgment through any
available procedure, including:
(a) An execution against the property of the
judgment debtor under Chapter 2329. of the
Revised Code;
(b) An execution against the person of the
judgment debtor under Chapter 2331. of the
Revised Code;
(c) A proceeding in aid of execution under
Chapter 2333. of the Revised Code,
including:
(i) A proceeding for the examination of the
judgment debtor under sections 2333.09 to 2333.12 and sections
2333.15 to 2333.27 of the Revised Code;
(ii) A proceeding for attachment of the person
of the judgment debtor under section 2333.28 of the
Revised Code;
(iii) A creditor's suit under section 2333.01
of the Revised Code.
(d) The attachment of the property of the
judgment debtor under Chapter 2715. of the
Revised Code;
(e) The garnishment of the property of the
judgment debtor under Chapter 2716. of the Revised Code.
(2) Obtain an order for the assignment of wages of the
judgment debtor under section 1321.33 of the Revised
Code.
(E) A court that imposes a financial sanction upon an offender may hold a
hearing if necessary to determine whether the offender is able to pay the
sanction or is likely in the future to be able to pay it.
(F) Each court imposing a financial sanction
upon an offender under this section or under section 2929.25 of the Revised
Code may designate a court
employee to collect, or may enter into contracts with one or more
public agencies or private vendors for the collection of, amounts
due under the financial sanction imposed pursuant to this
section or section 2929.25 of the Revised Code. Before entering into a
contract for the collection of
amounts due from an offender pursuant to any financial sanction imposed
pursuant to this section or section 2929.25 of the Revised Code,
a court shall comply with sections 307.86 to 307.92 of the
Revised Code.
(G) If a court that imposes a financial
sanction under division (A) or (B) of this section
finds that an offender satisfactorily
has completed all other sanctions imposed upon the offender and that all
restitution that has been ordered has been paid as ordered, the
court may suspend any financial sanctions imposed pursuant to this section
or section 2929.25 of the Revised Code that have not been
paid.
(H) No financial sanction imposed under this
section or section 2929.25 of the Revised Code shall preclude a victim from
bringing a civil action against the offender.
Sec. 2929.19. (A)(1) The court shall hold a sentencing hearing
before imposing a sentence
under this chapter upon an offender who was convicted of or
pleaded guilty to a felony and before resentencing an offender
who was convicted of or pleaded guilty to a felony and whose case
was remanded pursuant to section 2953.07 or 2953.08 of the Revised
Code. At the hearing, the offender, the prosecuting attorney, the victim or
the victim's representative in accordance with section 2930.14 of
the Revised Code, and, with the approval of the
court, any other person may present information relevant to the
imposition of sentence in the case. The court shall inform the
offender of the verdict of the jury or finding of the court and
ask the offender whether the offender has anything to say as to why
sentence should not be imposed upon the offender.
(2) Except as otherwise provided in this division, before
imposing sentence on an offender who is being
sentenced for a sexually oriented offense that was committed on or after
the
effective date of this amendment JANUARY 1, 1997,
and that is not a sexually violent offense,
and before imposing sentence on an offender who is being sentenced for a
sexually violent offense committed on or after the effective date of this
amendment JANUARY 1, 1997, and who was not
charged with a sexually violent
predator specification in the indictment, count in the indictment, or
information charging the sexually violent offense, the court shall conduct a
hearing in accordance with division (B)
of section 2950.09 of the Revised Code to
determine whether the offender is a sexual predator. The court shall not
conduct a hearing under that division if the offender is being sentenced for a
sexually violent offense and a sexually violent predator specification was
included in the
indictment, count in the indictment, or information charging the
sexually violent offense. Before imposing sentence on an
offender who is being sentenced for a sexually oriented offense,
the court also shall comply with division (E) of section 2950.09 of
the Revised Code.
(B)(1) At the sentencing hearing, the court,
before imposing sentence, shall consider the record,
any information presented at the hearing by any person pursuant
to division (A) of this section, and, if one was
prepared, the presentence investigation report made pursuant to
section 2951.03 of the Revised Code or
Criminal Rule 32.2, and any victim impact
statement made pursuant to section 2947.051 of the
Revised Code.
(2) The court shall impose a sentence and shall make a
finding that gives its reasons for selecting the sentence
imposed in any of the following circumstances:
(a) Unless the offense is a sexually violent offense for which
the court is required to impose sentence pursuant to division (G) of
section 2929.14 of the Revised Code, if it imposes a prison term for a felony
of the fourth or fifth degree or for 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, if the term is not a mandatory prison term imposed pursuant to
division (G)(2) of section 2929.13 of the Revised Code for a felony
OMVI offense, its reasons for imposing the prison term,
based upon the overriding purposes and principles of felony sentencing set
forth in section 2929.11 of the Revised Code, and any factors
listed in divisions (B)(1)(a) to (h)(i) of section 2929.13 of
the Revised
Code that it found to apply relative to the offender.
(b) If it does not impose a
prison term for a felony of the first or second degree or for
a felony drug offense that is a violation of a
provision of Chapter 2925. of
the Revised Code and for which a
presumption in favor of a prison term is specified as being
applicable, its reasons for not imposing the prison term and for
overriding the presumption, based upon the overriding purposes
and principles of felony sentencing set forth in section 2929.11
of the Revised Code, and the basis of the findings it made under
divisions (D)(1) and (2) of
section 2929.13 of the Revised Code.
(c) If it imposes consecutive sentences under
section 2929.14 of the Revised Code, its reasons for imposing
the consecutive sentences;
(d) If the sentence is for one offense and it imposes a prison term for the
offense that is the maximum prison term allowed for that offense by division
(A) of section 2929.14 of the Revised Code, its reasons for imposing the
maximum prison term;
(e) If the sentence is for two or more offenses arising out of a single
incident and it imposes a prison term for those offenses that is the maximum
prison term allowed for the offense of the highest degree by division (A) of
section 2929.14 of the Revised Code, its reasons for imposing the maximum
prison term.
(3) Subject to division (B)(4) of
this section, if the sentencing court determines at the
sentencing hearing that a prison term is necessary or required,
the court shall do all of the following:
(a) Impose a stated prison term;
(b) Notify the offender that, AS PART OF THE SENTENCE,
the
parole board may extend the stated prison term if the offender commits any
criminal offense under the laws of this state or the United
States while serving the prison term, that the extension will be done
administratively as part of the offender's sentence in accordance with
section 2967.11 of the Revised Code and may be for thirty,
sixty, or ninety days for each violation, that all extensions of any stated
prison term for all violations during the course of the term may not
exceed FOR CERTAIN VIOLATIONS OF PRISON RULES FOR UP TO
one-half of the term's duration, and that the sentence so imposed
automatically includes any extension of the stated prison term by the
parole
board;
(c) Subject to division (B)(4) of
this section, NOTIFY THE OFFENDER THAT THE OFFENDER WILL BE SUPERVISED
UNDER SECTION 2967.28 of the Revised Code AFTER THE OFFENDER LEAVES PRISON if the
offender is
being sentenced for a
felony of the first degree, for a felony of the OR second
degree, for a felony
sex offense, as defined in section 2967.28 of the Revised Code, or for
a
felony of the third
degree that is not a felony sex offense and in the commission of which
the
offender caused or threatened to cause physical harm to a person, notify
the
offender that a period of
post-release control pursuant to section 2967.28 of the Revised Code will be
imposed following the offender's release from prison;
(d) Subject to division (B)(4) of
this section, NOTIFY THE OFFENDER THAT THE OFFENDER MAY BE SUPERVISED
UNDER SECTION 2967.28 of the Revised Code AFTER THE OFFENDER LEAVES PRISON if the
offender is being sentenced for a
felony of the third, fourth, or fifth degree that is not subject to
division (B)(3)(c) of this section, notify the offender that a period of
post-release control pursuant to section 2967.28 of the Revised Code may be
imposed following the offender's release from prison;
(e) Notify the offender that, if a
period of post-release control SUPERVISION is imposed following
the
offender's release from prison, as described in division
(B)(3)(c) or (d) of this
section, and if the offender violates a post-release control
sanction imposed as a component of the post-release control including the
mandatory condition described in division (A) of section 2967.121
of the Revised Code, all of the following apply:
(i) The adult parole authority or the
parole board may impose a more restrictive post-release control
sanction.
(ii) The parole board may increase
the duration of the post-release control subject to a specified
maximum.
(iii) The more restrictive sanction
that SUPERVISION, the parole board may impose may consist
of a prison
term, provided that the prison term cannot exceed nine
months and the maximum cumulative prison term so imposed for
all violations during the period of post-release control cannot
exceed AS PART OF THE SENTENCE, OF UP TO one-half of the stated
prison term originally imposed
upon the offender.
(iv) If the violation of the sanction
is a felony, the offender may be prosecuted for the felony and,
in addition to any sentence it imposes on the offender for the
new felony, the court may impose a prison term, subject to a
specified maximum, for the violation.
(4) If the offender is being sentenced for a sexually violent offense
that the offender committed on or after the effective date of this
amendment JANUARY 1, 1997,
and 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 or if the
offender is being sentenced for a sexually oriented offense that the offender
committed on or after the effective date of this section
JANUARY 1, 1997, and the court
imposing the sentence has determined pursuant to division (B) of
section 2950.09 of
the Revised Code that the offender is a sexual predator, the
court shall include in the offender's sentence a statement that
the offender has been adjudicated as being a sexual predator and shall
comply with the requirements of section 2950.03 of the Revised
Code. Additionally, in the circumstances described in division
(G) of section 2929.14 of the Revised Code, the court shall impose sentence on
the offender as described in that division.
(5) If the sentencing court determines at the
sentencing hearing that a community control sanction should be
imposed and the court is not prohibited from imposing a community control
sanction, the court shall impose a community control sanction. The
court shall notify the offender that, if the conditions of the
sanction are violated or the condition imposed under division (C)(1)(b) of
section 2951.02 of the Revised Code, if imposed, is violated, IF
THE OFFENDER COMMITS A VIOLATION OF ANY LAW, OR IF THE OFFENDER LEAVES THIS
STATE WITHOUT THE PERMISSION OF THE COURT OR THE OFFENDER'S PROBATION
OFFICER, the court
may
impose a longer time under
the same sanction, may impose a more restrictive sanction, or may
impose a prison term on the offender and shall indicate the
specific prison term that may be imposed as a sanction for the
violation, as selected by the court from the range of prison
terms for the offense pursuant to section 2929.14 of the
Revised Code.
(6) Before imposing a financial sanction under section
2929.18 of the Revised Code or a fine under section 2929.25 of the Revised
Code, the court shall consider the offender's present and future ability to
pay the amount of the sanction or fine.
(C)(1) If the offender is being sentenced for a fourth degree felony
OMVI offense and if the court is required by division (G)(1) of
section 2929.13 of the Revised Code to impose as a sanction a mandatory term
of local incarceration, the court shall impose the mandatory term of local
incarceration in accordance with that division, shall impose a mandatory fine
in accordance with division (B)(3) of section 2929.18 of the Revised Code,
and, in addition, may impose additional sanctions as specified in sections
2929.15, 2929.16, 2929.17, and 2929.18 of the Revised Code. The court shall
not impose a prison term on the offender.
(2) If the offender is being sentenced for a fourth degree felony
OMVI offense and if the court is required by division (G)(2) of
section 2929.13 of the Revised Code to impose as a sanction a mandatory prison
term, the court shall impose the mandatory prison term in accordance with that
division, shall impose a mandatory fine in accordance with division (B)(3) of
section 2929.18 of the Revised Code, and, in addition, may impose an
additional prison term as specified in section 2929.14 of the Revised Code.
The court shall not impose any community control sanction on the offender.
(D) IF THE SENTENCING COURT DETERMINES AT THE SENTENCING HEARING
THAT AN OFFENDER IS ELIGIBLE FOR PLACEMENT IN A PROGRAM OF SHOCK INCARCERATION
UNDER SECTION 5120.031 of the Revised Code, THE COURT, PURSUANT TO DIVISION (J) OF
SECTION 2929.14 of the Revised Code, MAY RECOMMEND PLACEMENT OF THE OFFENDER IN A PROGRAM OF
SHOCK INCARCERATION OR AN INTENSIVE PROGRAM PRISON, DISAPPROVE PLACEMENT OF
THE OFFENDER IN A PROGRAM OR PRISON OF THAT NATURE, OR MAKE NO RECOMMENDATION.
THE COURT SHALL MAKE A FINDING THAT GIVES ITS REASONS FOR ITS RECOMMENDATION
OR DISAPPROVAL.
Sec. 2929.20. (A)(1) As used in this section,
"eligible offender" means any PERSON SERVING A STATED PRISON TERM OF TEN
YEARS OR LESS WHEN EITHER of the following APPLIES:
(a) A person who has been convicted of or pleaded
guilty to a felony, who is serving a (1) THE stated
prison term of
ten
years or less, and who is not serving DOES NOT INCLUDE a mandatory
prison term;
(b) A.
(2) THE STATED PRISON TERM INCLUDES A MANDATORY
PRISON TERM, AND THE person who has been convicted of or pleaded
guilty to a felony, who was sentenced to a mandatory prison term
and another prison term
of ten years or less, and who has served the
mandatory prison term;
(c) A person who has been convicted of or pleaded
guilty to a felony, who was sentenced to a mandatory prison term
pursuant to division (D)(1) of
section 2929.14 of the Revised
Code and another prison term of
ten years or less, who is required by division
(E)(1) of section 2929.14 of
the Revised
Code to serve the mandatory
prison term and the other prison term consecutively, and who has
served the mandatory prison term.
(2) "Eligible offender" does not include any of the
following:
(a) A person who has been convicted of or pleaded guilty
to a felony, who was sentenced to a mandatory prison term
pursuant to division (D)(2) or (3) of section 2929.14 of the Revised Code and
another prison term of ten years or less, and who is required by division
(E)(2), (3), or, (4) of section
2929.14
of the
Revised Code to serve the mandatory
prison term and the other prison term consecutively, whether or not the person
has served the mandatory prison term.
(b) A person who has been convicted of or
pleaded guilty to a felony, who was sentenced to a mandatory
prison term pursuant to divisions (D)(1) and
(2), or division (D)(3) of section
2929.14 of the Revised
Code and another prison term of
ten years or less, and who is required by division
(E)(1), (2), (3), or (4) of section
2929.14 of the Revised
Code to serve any of the
mandatory prison terms and the other prison term consecutively,
whether or not the person has served the mandatory prison
terms.
(B) Upon the filing of a motion by the eligible
offender or upon its own motion, a sentencing court may reduce
the offender's stated prison term through a judicial
release in accordance with this section. THE COURT SHALL NOT REDUCE THE
STATED PRISON TERM OF AN OFFENDER WHO IS NOT AN ELIGIBLE OFFENDER.
An eligible offender
may file a
motion for judicial release with the sentencing court within the
following applicable period of time:
(1) If (a) EXCEPT AS OTHERWISE PROVIDED IN DIVISION
(B)(1)(b) OR (c) OF THIS SECTION,
IF the stated prison term
was imposed for a felony of the fourth or fifth degree, the
eligible offender shall MAY file the motion not earlier than
thirty
days or later than ninety days after the offender is delivered to a state
correctional institution.
(b) IF THE STATED PRISON TERM IS FIVE YEARS AND IS AN AGGREGATE OF
STATED PRISON TERMS THAT ARE BEING SERVED CONSECUTIVELY AND THAT WERE IMPOSED
FOR ANY COMBINATION OF FELONIES OF THE FOURTH DEGREE AND FELONIES OF THE FIFTH
DEGREE, THE ELIGIBLE OFFENDER MAY FILE THE MOTION AFTER THE ELIGIBLE OFFENDER
HAS SERVED FOUR YEARS OF THE STATED PRISON TERM.
(c) IF THE STATED PRISON TERM IS MORE THAN FIVE YEARS AND LESS
THAN TEN YEARS AND IS AN AGGREGATE OF STATED PRISON TERMS THAT ARE BEING
SERVED
CONSECUTIVELY AND THAT WERE IMPOSED FOR ANY COMBINATION OF FELONIES OF THE
FOURTH DEGREE AND FELONIES OF THE FIFTH DEGREE, THE ELIGIBLE OFFENDER MAY FILE
THE MOTION AFTER THE ELIGIBLE OFFENDER HAS SERVED FIVE YEARS OF THE STATED
PRISON TERM.
(2) Except as otherwise provided in division (B)(3) OR (4) of
this section, if the stated prison term
was imposed for a felony of the first, second, or third degree,
the eligible offender shall MAY file the motion not earlier than
one
hundred eighty days after the offender is delivered to a state correctional
institution.
(3) IF THE STATED PRISON TERM IS FIVE YEARS, THE ELIGIBLE OFFENDER MAY
FILE THE MOTION AFTER THE ELIGIBLE OFFENDER HAS SERVED FOUR YEARS OF THE
STATED PRISON TERM.
(4) If the stated prison term is MORE THAN five years or
more and less than
ten
years, the eligible offender shall MAY file the motion after the
eligible offender
has served five years of the stated prison term.
(4)(5) If the offender was sentenced to OFFENDER'S
STATED PRISON TERM INCLUDES a mandatory prison
term pursuant to division (D)(1) of section 2929.14 of the Revised Code and
a
consecutive prison term other than a mandatory prison
term that is
ten years or less, the offender shall file the
motion within the time authorized under division (B)(1), (2), or
(3), OR (4) of this
section for the
felony for which NONMANDATORY PORTION OF the prison term
other than the mandatory prison term was imposed, but the time
for filing the motion does not begin to run until after the expiration of
the mandatory PORTION OF THE prison term.
(C) Upon receipt of a timely motion for
judicial release filed by an eligible offender under division
(B) of this section or upon the sentencing court's own
motion made within the appropriate time period specified in that
division, the court may schedule a hearing on the motion. The
court may deny the motion without a hearing but shall not grant
the motion in any case without a hearing. If a court denies
A MOTION without a hearing a motion filed by an eligible offender or
on its
own motion that relates to an eligible offender, the court may
consider a subsequent
judicial release for that eligible offender on its own motion
or a
subsequent motion for judicial release filed by that eligible
offender. If a court denies A MOTION after a hearing a motion filed
by an
eligible offender or
its own motion that relates to an eligible offender, the court shall not
consider a subsequent motion for that eligible offender. The court shall
hold only one hearing for any eligible offender.
A hearing under this section shall be conducted in open court
within sixty days after the date on which the motion is filed,
provided that the court may delay the hearing for a period not to
exceed one hundred eighty additional days. If the court
schedules HOLDS a hearing on the motion, the court shall enter a
ruling
on the motion within ten days after the hearing. If the court
denies the motion without a hearing, the court shall enter its
ruling on the motion within sixty days after the motion is filed.
(D) If a court schedules a hearing on the
motion filed by an eligible offender under this section or on its
own motion UNDER DIVISION (C) OF THIS SECTION, the court
shall notify the eligible offender of the
hearing. The eligible offender promptly shall serve GIVE a copy
of
the notice of the hearing on the head of the state
correctional
institution in which the eligible offender is confined. If the
court schedules a hearing for judicial release,
the court promptly shall give notice of the hearing to the
prosecuting attorney of the county in which the eligible offender
was indicted. Upon receipt of the notice from the court, the
prosecuting attorney shall notify the victim of the offense for
which the stated prison term was imposed or the victim's
representative, pursuant to section 2930.16 of the
Revised Code, of the hearing.
(E) Prior to the date of the hearing on a
motion for judicial release under this section, the head of the
state correctional institution in which the eligible
offender in question is confined shall send to the court a report
on the eligible offender's conduct in the institution and in any
institution from which the eligible offender may have been
transferred. The report shall cover the eligible offender's
participation in school, vocational training, work, treatment,
and other rehabilitative activities and any disciplinary action
taken against the eligible offender. The report shall be made
part of the record of the hearing.
(F) If the court grants a hearing on a motion
for judicial release under this section, the eligible offender
shall attend the hearing if ordered to do so by the court. Upon
receipt of a copy of the journal entry containing the order, the
head of the state correctional institution in which the
eligible offender is incarcerated shall deliver the eligible
offender to the sheriff of the county in which the hearing is to
be held. The sheriff shall convey the eligible offender to the
hearing and return the offender to the institution after the
hearing.
(G) At the hearing on a motion for judicial
release under this section, the court shall afford the eligible
offender and the eligible offender's counsel ATTORNEY an
opportunity to
present written information relevant to the
motion and shall afford the eligible offender, if present, and the eligible
offender's attorney AN OPPORTUNITY to present oral information relevant
to the motion.
The court shall afford a similar opportunity to the
prosecuting attorney, the victim or the victim's representative,
as defined in section 2930.01 of the Revised
Code, and any other person the court determines is
likely to present additional relevant information. The court
shall consider any statement of a victim made pursuant to section
2930.14 or 2930.17 of the Revised Code and, any
victim impact statement prepared pursuant to section 2947.051 of
the Revised Code, AND ANY REPORT MADE UNDER DIVISION (E) OF
THIS SECTION. After ruling on the motion,
the court shall notify the victim of the ruling in accordance
with sections 2930.03 and 2930.16 of the Revised
Code.
(H)(1) A court shall not grant a judicial
release under this section to an eligible offender who is
imprisoned for a felony of the first or second degree, or to an
eligible offender who committed an offense contained in
Chapter 2925. or 3719. of the Revised
Code and for whom there was a presumption under section
2929.13 of the Revised Code in favor of a prison
term, unless the court, with reference to factors
under section 2929.12 of the Revised Code, finds both
of the following:
(a) That a sanction other than a prison term
would adequately punish the offender and protect
the public from future criminal
violations by the eligible offender because the applicable factors
indicating a lesser likelihood of recidivism outweigh the
applicable factors indicating a
greater likelihood of recidivism;
(b) That a sanction other than a prison term
would not demean the seriousness of the offense because factors
indicating that
the eligible offender's conduct in
committing the offense was less serious than conduct normally constituting the
offense outweigh factors
indicating that the eligible offender's conduct was more serious than conduct
normally constituting the offense.
(2) A court that grants a judicial release to an
eligible offender under division (H)(1) of this section
shall specify on the record both findings required in that
division and also shall list all the factors described in that
division that were presented at the hearing.
(I) If the court grants a motion for judicial
release under this section, the court shall order the release of
the eligible offender, shall place the eligible offender under an appropriate
community control
sanction, under a mandatory condition of the type described in
division (A) of section 2967.131 of the Revised Code APPROPRIATE
COMMUNITY CONTROL CONDITIONS, and under the
supervision of the department of probation
serving the court, and shall reserve the right to reimpose the sentence that
it reduced pursuant to the judicial release if the offender violates the
sanction. If the court reimposes the reduced sentence pursuant to this
reserved right, it may do so either concurrently with, or consecutive to, any
new sentence imposed upon the eligible offender as a result of the violation
THAT IS A NEW OFFENSE.
The period of the community control sanction
shall be
no longer than five years. The court, in its
discretion, may reduce the period of the community control sanction by the
amount of time the eligible
offender spent in jail for the offense and in prison. If the
court made any findings pursuant to division (H)(1) of
this section, the court shall serve a copy of the findings upon
counsel for the parties within fifteen days after the date on
which the court grants the motion for judicial release.
Prior to being released pursuant to a judicial release
granted under this section, the eligible offender shall serve any
extension of sentence that was imposed under section 2967.11 of
the Revised Code.
Sec. 2929.223. (A) If a judge in any jurisdiction in which
the appropriate authority or board requires an offender an offense other
than a minor misdemeanor to reimburse
the costs of confinement pursuant to section 307.93, 341.14,
341.19, 341.23, 753.02, 753.04, 753.16, 2301.56, or 2947.19 of
the Revised Code sentences an offender to a term of
imprisonment in the facility that is subject to the requirement for
a misdemeanor, then after that person's release from imprisonment, the
judge or, if that judge no longer is sitting on that court, any judge from
that court, also shall hold a hearing to determine the amount of
the reimbursement and whether
the offender has the ability to
pay the reimbursement and the amount the person OFFENDER is able
to pay. The offender shall have an opportunity to be
heard and may
be represented by counsel at the hearing, at the offender's person's
option. A record shall be made of the hearing.
Reimbursable expenses shall include, but are not limited
to, the expenses relating to the provision of food, clothing,
shelter, medical care, and personal hygiene products, including, but
not limited to, toothpaste, toothbrushes, and feminine hygiene
items, to the offender while the
offender is imprisoned and during any time
that the offender is incarcerated before sentencing that
is credited against the offender's term of
imprisonment, and up to two hours of overtime costs the sheriff or
municipal corporation incurred relating to the trial of the person.
(B) Before holding a hearing on reimbursement pursuant to
division (A) of this section, the judge shall investigate or
cause to be investigated the offender's ability to pay the
reimbursement and possible reimbursement schedules and methods. The amount of
reimbursement shall be determined at the hearing in
light of the sentence of imprisonment given and according to the
offender's ability to pay. However, the actual amount
to be paid for reimbursable expenses other than medical expenses
shall be the actual cost of the confinement or a lesser amount
determined pursuant to section 307.93, 341.14, 341.19, 341.23, 753.02, 753.04,
753.16, 2301.56, or 2947.19 of the Revised Code. The actual amount to be paid for medical
expenses shall not exceed forty per cent of those medical expenses. In
determining the offender's ability to pay the
reimbursement, all of
the following shall be considered:
(1) The offender's financial resources, excluding the funds saved
from wages derived from the offender's labor or employment during the period
of incarceration;
(2) Any obligation to support the offender's dependents;
(3) Any obligation to make restitution to the victim of the offense of which
the offender is convicted;
(4) The offender's income, assets, liabilities, ability to borrow,
household expenses, and any other factor that may affect the
offender's financial ability to make reimbursement.
(C) At the conclusion of the hearing held
pursuant to division (A) of this section, the judge shall
determine the amount of the reimbursable expenses owed by the
offender who is the subject of the hearing and the amount that
the offender is able to pay. If the judge determines that the
offender is able to pay any of the reimbursable expenses, the
judge shall issue a judgment against the offender in the amount
of the reimbursable expenses that the offender is able to
pay. In the judgment, the judge also shall establish a payment
schedule for the reimbursement. The judgment shall state that
the reimbursement shall be made to the county, municipal
corporation, or township for expenses incurred by it during any
time that the offender served in a local jail or workhouse. Each
payment on the payment schedule shall constitute a separate
judgment. The prosecuting attorney for a county, city director
of law, village solicitor, or similar chief legal officer of a
municipal corporation, as appropriate, may execute upon the
judgment for failure to meet the payment schedule.
(D) This section does not apply to a person who is sentenced for a
felony to a term of imprisonment in a facility that is subject to a
requirement
of the type described in division (A) of this section. Sections
SECTION 2929.18 and 2929.181 of the Revised Code apply
APPLIES to a person who is sentenced
for a felony to a term of that nature.
Sec. 2935.36. (A) The prosecuting attorney may establish
pre-trial diversion programs for adults who are accused of
committing criminal offenses and whom the prosecuting
attorney believes probably will not offend again. The programs shall be
operated pursuant to
written standards approved by journal entry by the presiding
judge or, in courts with only one judge, the judge of the court
of common pleas and shall not be applicable to any of the
following:
(1) Repeat offenders or dangerous offenders;
(2) Persons accused of an offense of violence, of a
violation of section 2903.06, 2903.07, 2907.04, 2907.05,
2907.21, 2907.22, 2907.31, 2907.32, 2907.34, 2911.31, 2919.12,
2919.13, 2919.22, 2921.02, 2921.11, 2921.12, 2921.32, or 2923.20
of the Revised Code, or of a violation of section 2905.01, 2905.02, or
2919.23 of the Revised Code that, had it occurred prior to
the effective date of this amendment JULY 1,
1996, would have been a violation of section
2905.04 of the Revised Code as it existed prior to that
date, with the exception that the prosecuting
attorney may permit persons accused of any such offense to enter a
pre-trial diversion program, if the prosecuting attorney
finds any of the following:
(a) The accused did not cause, threaten, or intend serious
physical harm to any person;
(b) The offense was the result of circumstances not likely
to recur;
(c) The accused has no history of prior delinquency or
criminal activity;
(d) The accused has led a law-abiding life for a
substantial time before commission of the alleged offense;
(e) Substantial grounds tending to excuse or justify the
alleged offense;.
(3) Persons accused of a violation of Chapter 2925. or
3719. of the Revised Code;
(4) Drug dependent persons or persons in danger of
becoming drug dependent persons, as defined in section 3719.011
of the Revised Code. However, this division does not affect the
eligibility of such persons for treatment INTERVENTION in lieu
of conviction
pursuant to section 2951.041 of the Revised Code.
(5) Persons accused of a violation of section 4511.19 of
the Revised Code or a violation of any substantially similar
municipal ordinance.
(B) An accused who enters a diversion program shall do all of the
following:
(1) Waive, in writing and contingent upon the accused's
successful completion of the program, the accused's right to a speedy
trial, the preliminary hearing, the time period within which the grand jury
may consider an indictment against the accused, and arraignment, unless
the hearing, indictment, or arraignment has already occurred;
(2) Agree, in writing, to the tolling while in the program
of all periods of limitation established by statutes or rules of
court, that are applicable to the offense with which the
accused is
charged and to the conditions of the diversion program
established by the prosecuting attorney.
(C) The trial court, upon the application of the
prosecuting attorney, shall order the release from confinement of
any accused who has agreed to enter a pre-trial diversion program
and shall discharge and release any existing bail and release any
sureties on recognizances and shall release the accused on a
recognizance bond conditioned upon the accused's compliance with
the terms of the diversion program. The prosecuting attorney
shall notify every victim of the crime and the arresting officers
of the prosecuting attorney's intent to permit the accused
to enter a pre-trial
diversion program. The victim of the crime and the arresting
officers shall have the opportunity to file written objections
with the prosecuting attorney prior to the commencement of the
pre-trial diversion program.
(D) If the accused satisfactorily completes the diversion
program, the prosecuting attorney shall recommend to the trial
court that the charges against the accused be dismissed, and the
court, upon the recommendation of the prosecuting attorney, shall
dismiss the charges. If the accused chooses not to enter the
prosecuting attorney's diversion program, or if the accused
violates the conditions of the agreement pursuant to which the
accused has been released, the accused may be brought to trial upon the
charges in the manner provided by law, and the waiver executed pursuant to
division (B)(1) of this section shall be void on the date the
accused is removed from the program for the violation.
(E) As used in this section:
(1) "Repeat offender" means a person who has a history of persistent
criminal activity and whose character and condition reveal a substantial risk
that the person will commit another offense. It is
prima-facie evidence that a person
is a repeat offender if any of the following applies:
(a) Having been convicted of one or more offenses of violence and
having been imprisoned pursuant to sentence for any such offense,
the person commits a subsequent offense of violence;
(b) Having been convicted of one or more sexually oriented
offenses as defined
in section 2950.01 of the Revised Code and having been
imprisoned pursuant to sentence for one or more of those offenses,
the person commits a subsequent sexually oriented offense;
(c) Having been convicted of one or more theft offenses as defined
in section 2913.01 of the Revised Code and having been
imprisoned pursuant to sentence for one or more of those theft offenses,
the person commits a subsequent theft offense;
(d) Having been convicted of one or more felony drug abuse
offenses as defined in section 2925.01 of the Revised Code
and having been imprisoned pursuant to sentence for one or more of those
felony drug abuse offenses, the person commits a subsequent felony
drug abuse offense;
(e) Having been convicted of two or more felonies and having been
imprisoned pursuant to sentence for one or more felonies, the
person commits a subsequent offense;
(f) Having been convicted of three or more offenses of any type or
degree other than traffic offenses, alcoholic intoxication offenses, or minor
misdemeanors and having been imprisoned pursuant to sentence for any such
offense, the person commits a subsequent offense.
(2) "Dangerous offender" means a person who has committed an offense,
whose history, character, and condition reveal a substantial risk that the
person will be a danger to others, and whose conduct has been characterized by
a pattern of
repetitive, compulsive, or aggressive behavior with heedless indifference to
the consequences.
Sec. 2937.99. Whoever fails (A) NO PERSON SHALL FAIL
to appear as required, after
having been released pursuant to section 2937.29 of the Revised
Code, shall be sentenced as follows:. WHOEVER VIOLATES THIS
SECTION IS GUILTY OF FAILURE TO APPEAR AND SHALL BE PUNISHED AS SET FORTH IN
DIVISION (B) OR (C) OF THIS SECTION.
(A)(B) If the release was in connection with a charge of the
commission of a felony or pending appeal after conviction of a
felony, he shall be fined not more than five thousand
dollars or
imprisoned in a state correctional institution for not less than
one nor more than five years, or both FAILURE TO APPEAR IS A FELONY OF
THE FIFTH DEGREE.
(B)(C) If the release was in connection with a charge of the
commission of a misdemeanor or for appearance as a witness, he
shall be fined not more than one thousand dollars or imprisoned
not more than one year, or both FAILURE TO APPEAR IS A MISDEMEANOR OF
THE
FIRST DEGREE.
(D) This section does not apply to misdemeanors and related
ordinance offenses arising under Chapters 4501., 4503., 4505.,
4507., 4509., 4511., 4513., 4517., 4549., and 5577. of the
Revised Code, except that this section does apply to violations
of sections 4511.19, 4549.02, and 4549.021 of the Revised Code
and ordinance offenses related to such sections 4511.19,
4549.02, AND 4549.021 of the Revised Code.
Sec. 2941.141. (A) Imposition of a one-year mandatory prison term
upon an offender under division (D)(1)(a)(i) of section
2929.14 of the Revised Code is precluded unless the indictment, count in the
indictment, or
information charging the offense specifies that the offender had
a firearm on or about the offender's person or under
the offender's control while committing the offense.
The specification shall be stated at the end of the body
of the indictment, count, or information, and shall be in
substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST
COUNT).
The Grand Jurors (or insert the person's or the prosecuting
attorney's name when appropriate) further find and specify that
(set forth that the offender had a firearm on or about the
offender's person or under the offender's control while committing the
offense.)"
(B) Imposition of a one-year mandatory prison term upon an offender under
division (D)(1)(a)(i) of section 2929.14 of the Revised
Code is precluded if a
court imposes a three-year or six-year mandatory prison term on the offender
under that division relative to the same felony.
(C) As used in this section, "firearm" has the same
meaning as in section 2923.11 of the Revised Code.
Sec. 2941.144. (A) Imposition of a six-year mandatory prison term
upon an offender under division (D)(1)(a)(i) of section
2929.14 of the Revised Code is precluded unless the
indictment, count in the indictment, or information charging the offense
specifies that the offender had 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 offense.
The specification shall be stated at the end
of the body of the indictment, count, or information and shall be
stated in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The
Grand Jurors (or insert the person's or the prosecuting
attorney's name when appropriate) further find and specify that
(set forth that the offender had 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 offense)."
(B) Imposition of a six-year mandatory prison term upon an offender under
division (D)(1)(a)(i) of section 2929.14 of the Revised Code is
precluded if a
court imposes a three-year or one-year mandatory prison term on the offender
under that division relative to the same felony.
(C) As used in this section, "firearm" and "automatic firearm" have the same
meanings as in section 2923.11 of the Revised Code.
Sec. 2941.145. (A) Imposition of a three-year
mandatory prison term upon an offender under division
(D)(1)(a)(i) of section 2929.14
of the
Revised Code is precluded unless the indictment, count in the indictment, or
information charging the
offense specifies that the offender had a firearm on or about the offender's
person or under the offender's control while committing the offense
and displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or
used it to facilitate the offense. The specification shall be stated at the
end of the body of the indictment, county COUNT, or information,
and shall be stated
in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE
FIRST COUNT). The Grand Jurors (or insert the person's or the
prosecuting attorney's name when appropriate)
further find and specify that (set forth that the offender had a
firearm on or about the offender's person or under the offender's control
while committing the offense and displayed the firearm, brandished the
firearm, indicated that the offender possessed the firearm, or used it to
facilitate the offense)."
(B) Imposition of a three-year mandatory prison term upon an
offender under division (D)(1)(a)(i) of
section 2929.14 of the Revised Code is precluded if a court imposes a one-year
or six-year mandatory prison term on the offender under that division relative
to the same felony.
(C) As used in this section, "firearm" has the same meaning as in section
2923.11 of the Revised Code.
Sec. 2941.146. (A) Imposition of a mandatory five-year prison
term upon an offender under division (D)(1)(a)(ii)(c) of
section 2929.14 of
the Revised Code for committing a violation of section
2923.161 of the Revised Code or for committing a felony that
includes, as an essential element, purposely or knowingly causing or
attempting to cause
the death of or physical harm to another and that was committed by discharging
a firearm from a motor vehicle other than a manufactured home is precluded
unless the indictment,
count in the indictment, or information charging the offender
specifies that the offender committed the offense by
discharging a firearm from a motor vehicle other than a manufactured home.
The specification shall be stated at the end of the body of the indictment,
count, or information, and shall be
stated in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The
Grand Jurors (or insert the person's or prosecuting attorney's name when
appropriate) further find and
specify that (set forth that the offender committed the violation of section
2923.161 of the Revised Code or the felony that includes, as
an essential element, purposely or knowingly causing or attempting to cause
the death of or physical harm to another and that was committed by
discharging a firearm from a motor vehicle other than a manufactured
home)."
(B) As used in this section:
(1) "Firearm" has the same meaning as in section 2923.11
of the Revised Code;
(2) "Motor vehicle" and "manufactured home" have the same
meanings as in section 4501.01 of the Revised Code.
Sec. 2941.1410. (A) The EXCEPT AS PROVIDED IN SECTIONS 2925.03 AND
2925.11 of the Revised Code, THE determination by a court that an
offender is a major drug offender
is precluded unless the indictment, count in the indictment, or
information charging the offender specifies that the offender is
a major drug offender. The specification shall be stated at the
end of the body of the indictment, count, or information, and
shall be stated in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST
COUNT). The Grand Jurors (or insert the person's
or prosecuting attorney's name when appropriate) further find
and specify that (set forth that the offender is a major drug
offender)."
(B) The court shall determine the issue of whether an offender is a major
drug offender.
(C) As used in this section, "major drug offender" has the same meaning as in
section 2929.01 of the Revised Code.
Sec. 2949.08. (A) When a person WHO IS convicted of OR PLEADS
GUILTY TO A FELONY IS SENTENCED TO A COMMUNITY RESIDENTIAL SANCTION IN A JAIL
OR COMMUNITY-BASED CORRECTIONAL FACILITY PURSUANT TO SECTION 2929.16 of the Revised Code OR
WHEN A PERSON WHO IS CONVICTED OF OR PLEADS GUILTY TO a
misdemeanor is sentenced to A TERM OF imprisonment in A jail
or the
workhouse, the judge or magistrate shall order him THE
PERSON
into the
custody of the sheriff or constable, who AND THE SHERIFF OR
CONSTABLE shall deliver him THE
PERSON with
the record of his THE PERSON'S conviction, to the
jailer, ADMINISTRATOR, or
keeper, in whose
custody he THE PERSON shall remain until the term of his
imprisonment
expires or he THE PERSON is otherwise legally discharged.
(B) The record of the person's conviction shall specify
the total number of days, if any, that the person was confined
for any reason arising out of the offense for which he THE
PERSON was
convicted and sentenced prior to delivery to the jailer or keeper
under this section. The record shall be used to determine any
reduction of sentence under division (C) of this section.
(C) The jailer, administrator, or keeper in charge of a
jail or workhouse COMMUNITY-BASED CORRECTIONAL FACILITY shall
reduce the sentence of a person delivered
into his THE JAILER'S, ADMINISTRATOR'S, OR KEEPER'S custody
pursuant to division (A) of this section by the
total number of days the prisoner PERSON was confined for any
reason
arising out of the offense for which the prisoner PERSON was
convicted
and sentenced, including confinement in lieu of bail while
awaiting trial, confinement for examination to determine his THE
PERSON'S
competence to stand trial or to determine sanity, and confinement
while awaiting transportation to the place where he THE PERSON
is to serve
his THE sentence.
(D) For purposes of divisions (B) and (C) of this section,
a person shall be considered to have been confined for a day if
the person was confined for any period or periods of time
totaling more than eight hours during that day.
(E) AS USED IN THIS SECTION, "COMMUNITY-BASED CORRECTIONAL
FACILITY" AND "JAIL" HAVE THE SAME MEANINGS AS IN SECTION 2929.01 of the Revised Code.
Sec. 2951.02. (A)(1) In determining whether to suspend
a sentence of imprisonment imposed upon an offender for a misdemeanor and
place the offender on probation or
whether to otherwise suspend a sentence of imprisonment imposed upon an
offender for a misdemeanor pursuant to division (A) of section
2929.51 of the Revised Code, the court shall consider the risk
that the offender will commit another offense and the need for
protecting the public from the risk, the nature and circumstances
of the offense, and the history, character, and condition of the
offender.
(2) An offender who has been convicted of or pleaded
guilty to a misdemeanor shall not be placed on probation and shall not
otherwise have the sentence of imprisonment imposed upon the offender
suspended
pursuant to division (A) of section 2929.51 of
the Revised
Code if any of the following applies:
(a) The offender is a repeat or dangerous offender,
as defined in section 2935.36 of the Revised
Code.
(b) The misdemeanor offense involved was not a
violation of section 2923.12 of the Revised
Code and was committed while the offender was
armed with a firearm or dangerous ordnance, as defined in section 2923.11 of
the Revised
Code.
(c) Under division (C) of section 2903.07 of the Revised Code, the
offender is not eligible for probation.
(B) The following do not control the court's discretion
but the court shall consider them in favor of placing an offender who has been
convicted of or pleaded guilty to a misdemeanor on probation or in favor of
otherwise suspending the offender's
sentence of imprisonment pursuant to division (A) of section 2929.51 of the
Revised Code:
(1) The offense neither caused nor threatened serious harm
to persons or property, or the offender did not contemplate that
it would do so.
(2) The offense was the result of circumstances unlikely
to recur.
(3) The victim of the offense induced or facilitated it.
(4) There are substantial grounds tending to excuse or
justify the offense, though failing to establish a defense.
(5) The offender acted under strong provocation.
(6) The offender has no history of prior delinquency or
criminal activity, or has led a law-abiding life for a
substantial period before commission of the present offense.
(7) The offender is likely to respond affirmatively to
probationary or other court-imposed treatment.
(8) The character and attitudes of the offender indicate
that the offender is unlikely to commit another offense.
(9) The offender has made or will make restitution or
reparation to the victim of the offender's offense for the injury, damage,
or loss sustained.
(10) Imprisonment of the offender will entail undue hardship to the offender
or the offender's dependents.
(C)(1)(a) When an offender who has been convicted of or pleaded
guilty to a
misdemeanor is placed on probation or the sentence of
that type of offender otherwise is suspended pursuant to division (A)
of section
2929.51 of the Revised Code, the probation or
other suspension shall be at least on condition that, during the
period of probation or other suspension, the offender shall abide by the
law, including, but not limited to, complying with the provisions of
Chapter 2923. of the Revised Code relating to the possession, sale,
furnishing, transfer, disposition, purchase, acquisition, carrying, conveying,
or use of, or other conduct involving, a firearm or dangerous ordnance, as
defined in section 2923.11 of the Revised Code, and shall not leave the
state
without
the permission of the court
or the offender's probation officer. In the interests of doing justice,
rehabilitating the offender, and ensuring the offender's good behavior, the
court may impose additional requirements on the offender,
including, but not limited to, requiring the offender to make
restitution pursuant to section 2929.21 of the Revised Code for all or part of
the property damage that is caused
by the offender's offense and for all or part of the value of the property
that is the subject of any theft offense, as defined in division
(K) of section 2913.01 of the Revised Code, that the offender committed.
Compliance with the additional requirements also shall be a condition of the
offender's probation or other
suspension.
(b) When an offender who has been convicted of or pleaded guilty
to a felony is sentenced to a nonresidential sanction pursuant to section
2929.17 of the Revised
Code, the court shall impose as a condition of
the sanction that, during the period of the nonresidential
sanction, the offender shall abide by the law, including, but not limited to,
complying with the provisions of Chapter 2923.
of the Revised
Code identified in division
(C)(1)(a) of this section.
(2) During the period of a misdemeanor offender's
probation or other suspension or during the period of a felon's
nonresidential sanction,
authorized probation officers who are engaged within the scope of their
supervisory duties or responsibilities may search, with or without a warrant,
the person of the offender, the place of residence of the offender, and a
motor vehicle, another item of tangible or intangible personal property, or
other real property in which the offender has a right, title, or interest or
for which the offender has the express or implied permission of a person with
a right,
title, or interest to use, occupy, or possess if the probation officers have
reasonable grounds to believe that the offender is not abiding by the law or
otherwise is not complying with the conditions of the offender's probation or
other
suspension or the conditions of the offender's nonresidential sanction.
If a felon who is sentenced to a nonresidential sanction is under the
general control and supervision of the adult parole authority, as described in
division (A)(2)(a) of section 2929.15 of the Revised Code, adult
parole authority field officers with supervisory responsibilities over the
felon shall have the same search authority relative to the felon during the
period of the sanction as is described under this division for probation
officers. The court that places the offender on probation or
suspends
the misdemeanor offender's sentence of imprisonment pursuant to
division (D)(2)
or (4) of section 2929.51 of the Revised Code or that sentences the felon
to a nonresidential sanction pursuant to section 2929.17 of the Revised Code shall
provide the offender with a written notice that
informs the offender that authorized probation officers or adult parole
authority field officers with supervisory responsibilities over the
offender who are engaged within
the scope of their supervisory duties or responsibilities may conduct those
types
of searches during the period of probation or other suspension or during
the period of the nonresidential sanction if they have
reasonable grounds to believe that the offender is not abiding by the law or
otherwise is not complying with the conditions of the offender's probation or
other suspension or the conditions of the offender's nonresidential
sanction.
(D) The following do not control the court's discretion
but the court shall consider them against placing an offender who has been
convicted of or pleaded guilty to a misdemeanor on probation and against
otherwise suspending the offender's sentence of
imprisonment pursuant to division (A) of section 2929.51 of the Revised Code:
(1) The offender recently violated the conditions of
pardon, post-release control pursuant to section 2967.28 of
the
Revised Code, or a probation or suspension pursuant to
division (A) of section 2929.51 of the Revised Code,
previously granted the offender.
(2) There is a substantial risk that, while at liberty
during the period of probation or other suspension, the offender
will commit another offense.
(3) The offender is in need of correctional or
rehabilitative treatment that can be provided best by the offender's
commitment to a locally governed and operated residential facility.
(4) Regardless of whether the offender knew the age of the
victim, the victim of the offense was sixty-five years of age or
older or permanently and totally disabled at the time of the
commission of the offense.
(E) The criteria listed in divisions (B) and (D) of this
section shall not be construed to limit the matters that may be
considered in determining whether to suspend sentence of
imprisonment and place an offender who has been convicted of or pleaded guilty
to a misdemeanor on probation or whether to
otherwise suspend the offender's sentence of imprisonment pursuant
to division
(A) of section 2929.51 of the Revised Code.
(F)(1) When an offender is
convicted
of or pleads guilty to a misdemeanor, the
court may require the offender, as a condition of probation or as a condition
of otherwise suspending the offender's sentence pursuant to division (A) of
section 2929.51 of the Revised Code, in addition to the
conditions of probation or other suspension imposed pursuant to
division (C) of this section, to perform supervised community
service work under the authority of health districts, park
districts, counties, municipal corporations, townships, other
political subdivisions of the state, or agencies of the state or
any of its political subdivisions, or under the authority of
charitable organizations that render services to the community or
its citizens, in accordance with this division. Supervised
community service work shall not be required as a condition of
probation or other suspension under this division unless the
offender agrees to perform the work offered as a condition of
probation or other suspension by the court. The court may
require an offender who agrees to perform the work to pay to it a
reasonable fee to cover the costs of the offender's participation in the
work, including, but not limited to, the costs of procuring a
policy or policies of liability insurance to cover the period
during which the offender will perform the work.
A court may permit any offender convicted of a misdemeanor
to satisfy the payment of a fine imposed for the offense by
performing supervised community service work as described in this
division if the offender requests an opportunity to satisfy the
payment by this means and if the court determines the offender is
financially unable to pay the fine.
The supervised community service work that may be imposed
under this division shall be subject to the following
limitations:
(a) The court shall fix the period of the work and, if
necessary, shall distribute it over weekends or over other
appropriate times that will allow the offender to continue at the offender's
occupation or to care for the offender's family. The period of the work as
fixed by the court shall not exceed an aggregate of two hundred
hours.
(b) An agency, political subdivision, or charitable
organization must agree to accept the offender for the work
before the court requires the offender to perform the work for the entity. A
court shall not require an offender to perform supervised
community service work for an agency, political subdivision, or
charitable organization at a location that is an unreasonable
distance from the offender's residence or domicile, unless the
offender is provided with transportation to the location where
the work is to be performed.
(c) A court may enter into an agreement with a county
department of human services for the management, placement, and
supervision of offenders eligible for community service work in work
activities,
developmental activities, and
alternative work activities under sections 5107.40
to 5107.69 of the
Revised Code. If a court and a county
department of human services have entered into an
agreement of that nature, the clerk of that court is authorized to pay
directly to the department of human services all or a portion of the fees
collected by the court pursuant to this division in accordance with the terms
of its agreement.
(d) Community service work that a court requires under
this division shall be supervised by an official of the agency,
political subdivision, or charitable organization for which the
work is performed or by a person designated by the agency,
political subdivision, or charitable organization. The official
or designated person shall be qualified for the supervision by
education, training, or experience, and periodically shall
report, in writing, to the court and to the offender's probation
officer concerning the conduct of the offender in performing the
work.
(2) When an offender is convicted of a felony, the court
may impose pursuant to sections 2929.15 and 2929.17 of the Revised Code a
sanction that requires the offender to perform supervised community
service work in accordance with this division and under the
authority of any agency, political subdivision, or charitable
organization as described in division (F)(1) of this section. The court may
require an offender who is ordered to
perform the work to pay to it a reasonable fee to cover the costs
of the offender's participation in the work, including, but not limited to,
the costs of procuring a policy or policies of liability
insurance to cover the period during which the offender will
perform the work.
A court may permit an offender convicted of a felony to
satisfy the payment of a fine imposed for the offense pursuant to section
2929.18 of the Revised Code by performing supervised community service work as
described in this
division if the court determines that the offender is financially unable to pay
the fine.
The supervised community service work that may be imposed
under this division shall be subject to the limitations specified
in divisions (F)(1)(a) to (d) of this section, except that the court is not
required to obtain the agreement of the offender to impose supervised
community work as a sanction. Additionally, the total of any period of
supervised community service work imposed on an offender under this division
plus the period of all other sanctions imposed pursuant to sections 2929.15,
2929.16, 2929.17, and 2929.18 of the Revised Code shall not exceed five years.
(G)(1) When an offender is convicted of a violation of
section 4511.19 of the Revised Code, a municipal ordinance
relating to operating a vehicle while under the influence of
alcohol, a drug of abuse, or alcohol and a drug of abuse, or a
municipal ordinance relating to operating a vehicle with a
prohibited concentration of alcohol in the blood, breath, or
urine or of a misdemeanor violation of section 2903.07 of the Revised
Code or
an equivalent violation of a municipal ordinance that is substantially
similar
to section 2903.07 of the Revised Code and that provides for that type of
finding by a jury or judge in a case in which the jury or judge
found that the offender was under the influence of alcohol at the
time of the commission of the offense, the court may require, as
a condition of probation in addition to the required conditions
of probation and the discretionary conditions of probation that
may be imposed pursuant to division (C) of this section, any
suspension or revocation of a driver's or commercial driver's
license or permit or nonresident operating privilege, and all
other penalties provided by law or by ordinance, that the
offender operate only a motor vehicle equipped with an ignition
interlock device that is certified pursuant to section 4511.83 of
the Revised Code.
(2) When a court requires an offender, as a condition of
probation pursuant to division (G)(1) of this section, to operate
only a motor vehicle equipped with an ignition interlock device
that is certified pursuant to section 4511.83 of the Revised
Code, the offender immediately shall surrender the offender's driver's or
commercial driver's license or permit to the court. Upon the
receipt of the offender's license or permit, the court shall
issue an order authorizing the offender to operate a motor
vehicle equipped with a certified ignition interlock device,
deliver the offender's license or permit to the bureau of motor
vehicles, and include in the abstract of the case forwarded to
the bureau pursuant to section 4507.021 of the Revised Code the
conditions of probation imposed pursuant to division (G)(1) of
this section. The court shall give the offender a copy of its
order, and that copy shall be used by the offender in lieu of a
driver's or commercial driver's license or permit until the
bureau issues a restricted license to the offender.
(3) Upon receipt of an offender's driver's or commercial
driver's license or permit pursuant to division (G)(2) of this
section, the bureau of motor vehicles shall issue a restricted
license to the offender. The restricted license shall be
identical to the surrendered license, except that it shall have
printed on its face a statement that the offender is prohibited
from operating a motor vehicle that is not equipped with an
ignition interlock device that is certified pursuant to section
4511.83 of the Revised Code. The bureau shall deliver the
offender's surrendered license or permit to the court upon
receipt of a court order requiring it to do so, or reissue the
offender's license or permit under section 4507.54 of the Revised
Code if the registrar destroyed the offender's license or permit
under that section. The offender shall surrender the restricted
license to the court upon receipt of the offender's surrendered license or
permit.
(4) If an offender violates a requirement of the court imposed under division
(G)(1) of this section, the offender's driver's or
commercial driver's license or permit or nonresident operating
privilege may be suspended as provided in section 4507.16 of the Revised
Code.
(5) As used in this division, "ignition interlock device"
has the same meaning as in section 4511.83 of the Revised Code.
Sec. 2951.041. (A)(1) IF AN OFFENDER IS CHARGED WITH A CRIMINAL
OFFENSE AND THE COURT
HAS REASON TO BELIEVE THAT DRUG OR ALCOHOL USAGE BY THE OFFENDER
WAS A FACTOR LEADING TO THE OFFENDER'S CRIMINAL BEHAVIOR, THE
COURT MAY ACCEPT, PRIOR TO THE ENTRY OF A GUILTY PLEA, THE
OFFENDER'S REQUEST FOR INTERVENTION IN LIEU OF CONVICTION.
THE REQUEST SHALL INCLUDE A WAIVER
OF THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL, THE PRELIMINARY
HEARING, THE TIME PERIOD WITHIN WHICH THE GRAND JURY MAY
CONSIDER AN INDICTMENT AGAINST THE OFFENDER, AND ARRAIGNMENT,
UNLESS THE HEARING, INDICTMENT, OR ARRAIGNMENT HAS ALREADY
OCCURRED.
THE
COURT MAY REJECT AN OFFENDER'S REQUEST WITHOUT A HEARING. IF
THE COURT ELECTS TO CONSIDER AN OFFENDER'S REQUEST, THE COURT
SHALL CONDUCT A HEARING TO DETERMINE WHETHER THE OFFENDER IS
ELIGIBLE UNDER THIS SECTION FOR INTERVENTION IN LIEU OF
CONVICTION AND SHALL STAY ALL CRIMINAL PROCEEDINGS PENDING THE
OUTCOME OF THE HEARING. IF THE COURT SCHEDULES A HEARING, THE
COURT SHALL ORDER AN ASSESSMENT OF THE OFFENDER FOR THE PURPOSE
OF DETERMINING THE OFFENDER'S ELIGIBILITY FOR INTERVENTION IN
LIEU OF CONVICTION AND RECOMMENDING AN APPROPRIATE INTERVENTION
PLAN.
(2) THE VICTIM NOTIFICATION PROVISIONS OF DIVISION
(C) OF SECTION 2930.08 OF THE
REVISED CODE APPLY IN RELATION TO ANY
HEARING HELD UNDER DIVISION
(A)(1) OF THIS SECTION.
(B) AN OFFENDER IS
ELIGIBLE FOR INTERVENTION IN LIEU OF CONVICTION IF THE COURT
FINDS ALL OF THE FOLLOWING:
(1) THE OFFENDER PREVIOUSLY HAS NOT BEEN CONVICTED OF OR
PLEADED GUILTY TO A FELONY, PREVIOUSLY HAS NOT BEEN THROUGH
INTERVENTION IN LIEU OF CONVICTION UNDER THIS SECTION OR ANY
SIMILAR REGIMEN, AND IS CHARGED WITH A FELONY FOR WHICH THE
COURT, UPON CONVICTION, WOULD IMPOSE SENTENCE UNDER DIVISION
(B)(2)(b)
OF SECTION 2929.13 OF THE
REVISED CODE OR WITH A
MISDEMEANOR.
(2) THE OFFENSE IS NOT AN OFFENSE OF VIOLENCE, IS NOT A
VIOLATION OF DIVISION (A) OF
SECTION 4511.19 OF THE REVISED CODE OR A MUNICIPAL ORDINANCE
THAT IS SUBSTANTIALLY SIMILAR TO THAT DIVISION, AND IS NOT AN
OFFENSE FOR WHICH A SENTENCING COURT IS REQUIRED TO IMPOSE A
MANDATORY PRISON TERM, A MANDATORY TERM OF LOCAL INCARCERATION,
OR A MANDATORY TERM OF IMPRISONMENT IN A JAIL.
(3) THE OFFENDER IS NOT CHARGED WITH A VIOLATION OF
SECTION 2925.02, 2925.03, 2925.04, 2925.06, OR 2925.11 OF THE
REVISED CODE THAT IS A FELONY OF THE
FIRST, SECOND, OR THIRD DEGREE.
(4) THE OFFENDER IS NOT CHARGED WITH A VIOLATION OF
SECTION 2925.11 OF THE REVISED CODE THAT IS A FELONY OF THE
FOURTH DEGREE, OR THE OFFENDER IS CHARGED WITH A VIOLATION OF
THAT SECTION THAT IS A FELONY OF THE FOURTH DEGREE, AND THE
PROSECUTOR IN THE CASE HAS RECOMMENDED THAT THE OFFENDER BE
CLASSIFIED AS BEING ELIGIBLE FOR INTERVENTION IN LIEU OF
CONVICTION UNDER THIS SECTION.
(5) THE OFFENDER HAS BEEN ASSESSED BY AN APPROPRIATELY
LICENSED PROVIDER, CERTIFIED FACILITY, OR LICENSED AND
CREDENTIALED PROFESSIONAL, INCLUDING, BUT NOT LIMITED TO, A
PROGRAM LICENSED BY THE DEPARTMENT OF ALCOHOL AND DRUG ADDICTION
SERVICES PURSUANT TO SECTION 3793.11 OF THE
REVISED CODE, A PROGRAM CERTIFIED BY
THAT DEPARTMENT PURSUANT TO SECTION 3793.06 OF THE
REVISED CODE, A PUBLIC OR PRIVATE
HOSPITAL, THE UNITED
STATES DEPARTMENT OF VETERANS
AFFAIRS, ANOTHER APPROPRIATE AGENCY OF THE GOVERNMENT OF THE
UNITED
STATES, OR A LICENSED
PHYSICIAN, PSYCHIATRIST, PSYCHOLOGIST, INDEPENDENT SOCIAL
WORKER, PROFESSIONAL COUNSELOR, OR CHEMICAL DEPENDENCY
COUNSELOR FOR THE PURPOSE OF DETERMINING THE OFFENDER'S ELIGIBILITY FOR
INTERVENTION IN LIEU OF CONVICTION AND RECOMMENDING AN APPROPRIATE
INTERVENTION PLAN.
(6) THE OFFENDER'S DRUG OR ALCOHOL USAGE WAS A FACTOR
LEADING TO THE CRIMINAL OFFENSE WITH WHICH THE OFFENDER IS
CHARGED, INTERVENTION IN LIEU OF CONVICTION WOULD NOT DEMEAN THE
SERIOUSNESS OF THE OFFENSE, AND INTERVENTION WOULD SUBSTANTIALLY
REDUCE THE LIKELIHOOD OF ANY FUTURE CRIMINAL ACTIVITY.
(7) THE OFFENDER IS WILLING TO COMPLY WITH ALL TERMS AND
CONDITIONS IMPOSED BY THE COURT PURSUANT TO DIVISION
(D) OF THIS SECTION.
(C) AT THE CONCLUSION OF
A HEARING HELD PURSUANT TO DIVISION
(A) OF THIS SECTION, THE COURT
SHALL ENTER ITS DETERMINATION AS TO WHETHER THE OFFENDER IS
ELIGIBLE FOR INTERVENTION IN LIEU OF CONVICTION AND AS TO
WHETHER TO GRANT THE OFFENDER'S REQUEST. IF THE COURT FINDS
THAT THE OFFENDER IS ELIGIBLE AND GRANTS THE OFFENDER'S REQUEST,
THE COURT SHALL ACCEPT THE OFFENDER'S PLEA OF GUILTY AND WAIVER
OF THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL, THE PRELIMINARY
HEARING, THE TIME PERIOD WITHIN WHICH THE GRAND JURY MAY
CONSIDER AN INDICTMENT AGAINST THE OFFENDER, AND ARRAIGNMENT,
UNLESS THE HEARING, INDICTMENT, OR ARRAIGNMENT HAS ALREADY
OCCURRED. IN ADDITION, THE COURT THEN MAY STAY ALL CRIMINAL
PROCEEDINGS AND ORDER THE OFFENDER TO COMPLY WITH ALL TERMS AND
CONDITIONS IMPOSED BY THE COURT PURSUANT TO DIVISION
(D) OF THIS SECTION. IF THE
COURT FINDS THAT THE OFFENDER IS NOT ELIGIBLE OR DOES NOT GRANT
THE OFFENDER'S REQUEST, THE CRIMINAL PROCEEDINGS AGAINST THE
OFFENDER SHALL PROCEED AS IF THE OFFENDER'S REQUEST FOR
INTERVENTION IN LIEU OF CONVICTION HAD NOT BEEN MADE.
(D) IF THE COURT GRANTS
AN OFFENDER'S REQUEST FOR INTERVENTION IN LIEU OF CONVICTION,
THE COURT SHALL PLACE THE OFFENDER UNDER THE GENERAL CONTROL AND
SUPERVISION OF THE COUNTY PROBATION DEPARTMENT, THE ADULT PAROLE
AUTHORITY, OR ANOTHER APPROPRIATE LOCAL PROBATION OR COURT
SERVICES AGENCY, IF ONE EXISTS, AS IF THE OFFENDER WAS SUBJECT
TO A COMMUNITY CONTROL SANCTION IMPOSED UNDER SECTION 2929.15 OR
2929.18 OF THE REVISED CODE OR WAS ON PROBATION UNDER
SECTIONS 2929.51 AND 2951.02 OF THE
REVISED CODE AND OTHER PROVISIONS OF
THE MISDEMEANOR SENTENCING LAW. THE COURT SHALL ESTABLISH AN
INTERVENTION PLAN FOR THE OFFENDER. THE TERMS AND CONDITIONS OF
THE INTERVENTION PLAN SHALL REQUIRE THE OFFENDER, FOR AT LEAST
ONE YEAR FROM THE DATE ON WHICH THE COURT GRANTS THE ORDER OF
INTERVENTION IN LIEU OF CONVICTION, TO ABSTAIN FROM THE USE OF
ILLEGAL DRUGS AND ALCOHOL AND TO SUBMIT TO REGULAR RANDOM
TESTING FOR DRUG AND ALCOHOL USE AND MAY INCLUDE ANY OTHER
TREATMENT TERMS AND CONDITIONS, OR TERMS AND CONDITIONS SIMILAR
TO COMMUNITY CONTROL SANCTIONS, THAT ARE ORDERED BY THE
COURT.
(E) IF THE COURT GRANTS
AN OFFENDER'S REQUEST FOR INTERVENTION IN LIEU OF CONVICTION AND
THE COURT FINDS THAT THE OFFENDER HAS SUCCESSFULLY COMPLETED THE
INTERVENTION PLAN FOR THE OFFENDER, INCLUDING THE REQUIREMENT
THAT THE OFFENDER ABSTAIN FROM USING DRUGS AND ALCOHOL FOR A
PERIOD OF AT LEAST ONE YEAR FROM THE DATE ON WHICH THE COURT
GRANTED THE ORDER OF INTERVENTION IN LIEU OF CONVICTION AND ALL
OTHER TERMS AND CONDITIONS ORDERED BY THE COURT, THE COURT SHALL
DISMISS THE PROCEEDINGS AGAINST THE OFFENDER. SUCCESSFUL
COMPLETION OF THE INTERVENTION PLAN AND PERIOD OF ABSTINENCE
UNDER THIS SECTION SHALL BE WITHOUT ADJUDICATION OF GUILT AND IS
NOT A CRIMINAL CONVICTION FOR PURPOSES OF ANY DISQUALIFICATION
OR DISABILITY IMPOSED BY LAW AND UPON CONVICTION OF A CRIME, AND
THE COURT MAY ORDER THE SEALING OF RECORDS RELATED TO THE
OFFENSE IN QUESTION IN THE MANNER PROVIDED IN SECTIONS 2953.31
TO 2953.36 OF THE REVISED
CODE.
(F) IF THE COURT GRANTS
AN OFFENDER'S REQUEST FOR INTERVENTION IN LIEU OF CONVICTION AND
THE OFFENDER FAILS TO COMPLY WITH ANY TERM OR CONDITION IMPOSED
AS PART OF THE INTERVENTION PLAN FOR THE OFFENDER, THE
SUPERVISING AUTHORITY FOR THE OFFENDER PROMPTLY SHALL ADVISE THE
COURT OF THIS FAILURE, AND THE COURT SHALL HOLD A HEARING TO DETERMINE WHETHER
THE OFFENDER FAILED TO COMPLY WITH ANY TERM OR CONDITION IMPOSED
AS PART OF THE PLAN. IF THE COURT DETERMINES THAT THE OFFENDER
HAS FAILED TO COMPLY WITH ANY OF THOSE TERMS AND CONDITIONS, IT
SHALL ENTER A FINDING OF GUILTY AND SHALL IMPOSE AN APPROPRIATE
SANCTION UNDER SECTIONS 2929.15 TO 2929.18 OF THE
REVISED CODE OR, IF THE OFFENSE IN
QUESTION WAS A MISDEMEANOR, A SENTENCE UNDER SECTION 2929.21 OF
THE REVISED CODE AND OTHER PROVISIONS OF
THE MISDEMEANOR SENTENCING LAW. IF THE OFFENDER WAS CHARGED
WITH A FELONY, IN PUNISHING THE OFFENDER FOR A VIOLATION, THE
COURT SHALL CONSIDER SECTION 2929.13 AND DIVISION
(E) OF SECTION 2929.15 OF THE
REVISED CODE.
(G) AS USED IN THIS
SECTION:
(1) "COMMUNITY CONTROL SANCTION" HAS THE SAME MEANING AS
IN SECTION 2929.01 OF THE
REVISED CODE.
(2) "INTERVENTION IN LIEU OF CONVICTION" MEANS ANY
COURT-SUPERVISED ACTIVITY THAT COMPLIES WITH THIS
SECTION.
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, THE SENTENCE was not
imposed pursuant to division
(D)(3)(b) of section 2929.14 of the Revised Code, THE MAXIMUM PRISON TERM
WAS NOT REQUIRED FOR THE OFFENSE PURSUANT TO CHAPTER 2925. OR ANY
OTHER PROVISION of the Revised Code, and the court imposed it
THE SENTENCE 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)(i) 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)(2)(b) OF SECTION
2929.14 of the Revised Code.
(6) 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) The court hearing an appeal of a sentence under division (A) or (B)(1)
or (2) of this section 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 court for resentencing if the court clearly
and convincingly finds any of the following:
(a) That the record does not support the sentence;
(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.
Sec. 2967.131. (A) In addition to any other terms and conditions
of a conditional pardon or parole, of
transitional control, or of another form
of
authorized release from confinement in a state correctional institution that
is granted to an individual and that involves the placement of the individual
under the supervision of the adult parole authority, and in addition to any
other sanctions of post-release control of a felon imposed under section
2967.28 of the Revised Code, the authority or, in the
case of a conditional pardon, the governor shall include in the
terms and conditions of the conditional pardon, parole,
transitional control, or other form of authorized
release or shall include as a
condition CONDITIONS of the post-release control the
condition CONDITIONS THAT THE INDIVIDUAL OR FELON NOT LEAVE THE
STATE WITHOUT PERMISSION OF THE COURT OR THE INDIVIDUAL'S OR FELON'S PAROLE
OR PROBATION OFFICER AND that the individual or
felon
abide by the law, including, but not limited to, complying with the
provisions
of Chapter 2923. of the Revised Code relating to the
possession, sale, furnishing, transfer, disposition, purchase, acquisition,
carrying, conveying, or use of, or other conduct involving, a firearm or
dangerous ordnance, as defined in section 2923.11 of the Revised
Code, during the period of the
individual's or felon's
conditional pardon, parole, transitional control, other
form of authorized
release, or
post-release control.
(B) During the period of a conditional pardon or parole,
of transitional control,
or of another form
of authorized release from confinement in a state correctional
institution that is granted to an individual and that involves the placement
of the individual under the supervision of the adult parole authority, and
during a period of post-release control of a felon imposed under section
2967.28 of the Revised Code,
authorized field officers of the authority who are engaged within the scope of
their supervisory duties or responsibilities may search, with or without a
warrant, the person of the
individual or felon, the place
of residence of the individual or
felon,
and a motor vehicle, another item of tangible or intangible personal property,
or other real property in which the
individual or felon
has a right, title, or interest
or for which the individual or
felon has the express or
implied permission of a person
with a
right, title, or interest to use, occupy, or possess, if the field
officers
have reasonable grounds to believe that the individual or felon HAS LEFT
THE STATE, is not
abiding by the law,
or otherwise is not complying with the terms and conditions of the
individual's or felon's conditional pardon, parole,
transitional control, other
form of
authorized release, or post-release control. The authority
shall provide each individual who
is granted a conditional pardon or parole, transitional control, or
another form of authorized release from confinement in a state correctional
institution and each felon who is under post-release control with a
written
notice that informs the individual
or felon that
authorized field officers of the
authority
who
are engaged within the scope of their supervisory duties or responsibilities
may conduct those types of searches during the period of the conditional
pardon, parole, transitional control, other form of
authorized release, or post-release control if
they have reasonable grounds to believe that the individual or felon HAS
LEFT THE STATE, is
not abiding by
the law, or otherwise is not complying with the terms and conditions of
the
individual's or felon's
conditional pardon, parole, transitional control, other
form of
authorized release, or post-release control.
Sec. 2967.141. (A) As
used in this section, "alternative residential facility" has the
same meaning as in section 2929.01 of the
Revised Code.
(B) The department of
rehabilitation and correction, through its division of parole
and community services, may operate or contract for the
operation of one or more violation sanction centers as an
alternative residential facility. A violation sanction center operated under
authority of this division is not a prison within the meaning of division
(CC)(BB) of section 2929.01 of
the Revised Code. A violation sanction center operated
under authority of this division may be used for either of the
following purposes:
(1) Service of the term of a more restrictive
post-release control sanction that the parole board, subsequent
to a hearing, imposes pursuant to division
(F)(2) of section 2967.28 of
the Revised Code upon a releasee who has
violated a post-release control sanction imposed upon the
releasee under that section;
(2) Service of a sanction that the adult parole authority
or parole board imposes upon a parolee whom the authority
determines to be a parole violator because of a violation of the
terms and conditions of the parolee's parole or conditional
pardon.
(C) If a violation
sanction center is established under the authority of this section,
notwithstanding the fact that the center is an alternative
residential facility for the purposes described in division
(B) of this section, the center
shall be used only for the purposes described in that division. A violation
sanction center established under the authority of this section is not an
alternative residential facility for the
purpose of imposing sentence on an offender who is convicted of
or pleads guilty to a felony, and a court that is sentencing
an offender for a felony pursuant to sections 2929.11 to 2929.19 of the
Revised Code shall not sentence the
offender to a community residential sanction that requires the
offender to serve a term in the center.
(D) If a releasee is ordered to serve a sanction in a violation
sanction center, as described in division (B)(1) of this section, all
of the following apply:
(1) The releasee shall not be considered to be under a new prison term for
a violation of post-release control.
(2) The time the releasee serves in the center shall not count toward, and
shall not be considered in determining, the maximum cumulative prison term for
all violations that is described in division (F)(3) of section
2967.28 of the Revised Code.
(3) The time the releasee serves in the center shall count as part of, and
shall be credited toward, the remaining period of post-release control that is
applicable to the releasee.
Sec. 2967.16. (A) Except as provided in division (D) of
this section, when a
paroled prisoner has faithfully
performed the conditions and obligations of the paroled prisoner's parole and
has obeyed the rules and regulations adopted by the adult parole
authority that apply to the paroled prisoner, the authority upon the
recommendation of the superintendent of parole supervision may
enter upon its minutes a final release and thereupon shall issue
to the paroled prisoner a certificate of final release, but
the authority shall not grant a final release
earlier than one year after the paroled prisoner is released from the
institution on parole, and, in the
case of a paroled prisoner whose minimum sentence is life imprisonment, the
authority shall not grant a final release earlier than five years after the
paroled prisoner is released from the institution on parole.
(B) When a prisoner who has been released under a period of post-release
control pursuant to section 2967.28 of the Revised Code has faithfully
performed the
conditions and obligations of the released prisoner's post-release control
sanctions and has obeyed
the rules and regulations adopted by the adult parole authority that apply to
the released prisoner, the authority, upon the recommendation of the
superintendent of parole
supervision, may enter upon its minutes a final release and, upon the entry of
the final release, shall issue to the released prisoner a certificate of final
release.
The IN THE CASE OF A PRISONER WHO HAS BEEN RELEASED UNDER A PERIOD
OF POST-RELEASE CONTROL PURSUANT TO DIVISION (B) OF SECTION 2967.28
of the Revised Code, THE authority shall not grant a final release earlier than one year
after the
released prisoner is released from the institution under a period of
post-release
control, and, in. IN the case of a released prisoner
whose sentence is life
imprisonment,
the authority shall not grant a final release earlier than five years after
the released prisoner is released from the institution under a period of
post-release control.
(C) The following prisoners or person shall be restored to the rights and
privileges forfeited
by a conviction:
(1) A prisoner who has served the entire prison term
that comprises or is part of the prisoner's sentence and
has not been placed under any post-release control sanctions;
(2) A prisoner who has been granted a final release by the adult
parole authority pursuant to division (A) or (B) of this
section;
(3) A person who has completed the period of a community control sanction
or
combination of community control sanctions, as defined in section 2929.01
of the Revised Code, that was imposed by the sentencing court.
(D) Division (A) of this section does not apply to a
prisoner in the shock incarceration program established pursuant to section
5120.031 of the Revised Code.
(E) The adult parole authority shall record the final release of a
parolee or prisoner in the official minutes of the authority.
Sec. 2967.26. (A)(1) The department of rehabilitation and correction, by
rule,
may establish a transitional control program for the purpose of
closely monitoring a prisoner's adjustment to community
supervision during the final one hundred eighty days of the
prisoner's confinement. If the department establishes a
transitional control program under this division, the adult
parole authority may transfer eligible prisoners to transitional
control status under the program during the final one hundred
eighty days of their confinement and under the terms and conditions
established by the department, shall provide for the confinement
as provided in this division of each eligible prisoner so
transferred, and shall supervise each eligible prisoner so
transferred in one or more community control sanctions. Each
eligible prisoner who is transferred to transitional control
status under the program shall be confined in a suitable
facility that is licensed pursuant to division
(C) of section 2967.14 of the
Revised Code, or shall be confined in a
residence the department has approved for this purpose and be
monitored pursuant to an electronic monitoring device, as
defined in section 2929.23 of the
Revised Code. If the department
establishes a transitional control program under this division,
the rules establishing the program shall include criteria that
define which prisoners are eligible for the program, criteria
that must be satisfied to be approved as a residence that may be
used for confinement under the program of a prisoner that is
transferred to it and procedures for the department to approve
residences that satisfy those criteria, and provisions of the
type described in division (C)
of this section. At a minimum, the criteria that define which
prisoners are eligible for the program shall provide all of the
following:
(a) That a prisoner is eligible for
the program if the prisoner is serving a prison term or term of
imprisonment for an offense committed prior to the effective
date of this amendment and if, at the time at which eligibility
is being determined, the prisoner would have been eligible for a
furlough under this section as it existed immediately prior to
the effective date of this amendment or would have been eligible
for conditional release under former section 2967.23 of the
Revised Code as that section existed
immediately prior to the effective date of this amendment;
(b) That no prisoner who is serving a
mandatory prison term is eligible for the program until after
expiration of the mandatory term;
(c) That no prisoner who is serving a
prison term or term of life imprisonment without parole imposed
pursuant to section 2971.03 of the
Revised Code is eligible for the
program.
(2) At least three weeks prior to
transferring to transitional control under
this section a prisoner who is serving a term of imprisonment or prison
term for an offense committed on or after July 1, 1996,
the adult parole authority shall give notice of the pendency of
the transfer to transitional control to
the court of common pleas of the county in which the indictment against the
prisoner was found and of the fact that the court may disapprove the
transfer of
the prisoner to transitional control AND SHALL INCLUDE A REPORT PREPARED BY
THE HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE PRISONER IS
CONFINED. THE HEAD OF THE STATE CORRECTIONAL INSTITUTION IN WHICH THE
PRISONER IS CONFINED, UPON THE REQUEST OF THE ADULT PAROLE AUTHORITY, SHALL
PROVIDE TO THE AUTHORITY FOR INCLUSION IN THE NOTICE SENT TO THE COURT UNDER
THIS DIVISION A REPORT ON THE PRISONER'S CONDUCT IN THE INSTITUTION AND IN ANY
INSTITUTION FROM WHICH THE PRISONER MAY HAVE BEEN TRANSFERRED. THE REPORT
SHALL COVER THE PRISONER'S PARTICIPATION IN SCHOOL, VOCATIONAL TRAINING, WORK,
TREATMENT, AND OTHER REHABILITATIVE ACTIVITIES AND ANY DISCIPLINARY ACTION
TAKEN AGAINST THE PRISONER. If the
court disapproves of the transfer of the prisoner to transitional
control, the court shall notify
the authority of the disapproval within
ten THIRTY
days after receipt of the notice. If the court timely disapproves the
transfer
of the prisoner to transitional control, the
authority shall not proceed with the transfer.
If the court does not timely disapprove the transfer of
the prisoner to transitional control, the
authority may transfer the
prisoner to transitional control.
(3) If the victim of an offense for which a prisoner was
sentenced to a prison term or term of imprisonment has requested
notification under section 2930.16 of the Revised Code and has provided the
department of rehabilitation and correction with the victim's name and
address, the adult parole authority, at least three weeks prior to
transferring the prisoner to
transitional control pursuant to this section, shall notify
the victim of the pendency of the transfer and of the
victim's right to submit
a statement to the authority regarding the impact of the
transfer of the
prisoner to transitional control. If the victim
subsequently submits a statement of that nature to the authority, the
authority shall consider the statement in deciding whether to
transfer the
prisoner to transitional control.
(B) Each prisoner
transferred to transitional control under this section shall be
confined in the manner described in division (A) of this
section during any period of time that the prisoner is
not actually working at the prisoner's approved employment,
engaged
in a vocational training or another educational program,
engaged in another
program
designated by the director, or engaged in other activities approved by the
department.
(C) The department of rehabilitation and correction shall
adopt rules for
transferring eligible prisoners to transitional
control, supervising and confining prisoners so transferred,
administering the
transitional control program in accordance with this
section, and using the moneys deposited into the transitional
control fund established under division (E) of this section.
(D) The department of rehabilitation and correction may adopt
rules for the issuance of passes for the limited purposes
described in this division to prisoners who are transferred to
transitional control under this section. If the department
adopts rules of that nature, the rules shall govern the granting
of the passes and shall provide for the supervision of prisoners
who are temporarily released pursuant to one of those passes. Upon the
adoption of
rules under this division, the department may issue passes to
prisoners who are transferred to transitional control status
under this section in accordance with the rules and the
provisions of this division. All passes issued under this
division shall be for a maximum of forty-eight hours and may be
issued only for the following purposes:
(1) To visit a dying relative;
(2) To attend the funeral of a relative;
(3) To visit with family;
(4) To otherwise aid in the rehabilitation of the
prisoner.
(E) The adult parole authority may require a
prisoner
who is transferred to transitional control to pay to
the division of parole and community services
the reasonable expenses incurred by
the division in supervising or confining the prisoner while under
transitional control. Inability to pay those
reasonable expenses shall not be
grounds
for refusing to transfer an otherwise
eligible
prisoner to transitional control. Amounts received by the division of
parole and community services
under this division
shall be deposited into the transitional
control fund, which is
hereby created in the state treasury and which hereby replaces and succeeds
the furlough services fund that formerly existed in the state treasury. All
moneys that remain in the furlough services fund on the effective date of this
amendment shall be transferred on that date to the transitional control
fund. The transitional control fund shall be used
solely to pay costs related to the operation of the transitional control
program
established under this section. The director of
rehabilitation and correction shall adopt rules in accordance
with section 111.15 of the Revised Code for the use of the fund.
(F) A prisoner who violates any rule established by the
department of rehabilitation and correction under
division (A), (C), or (D) of this section may
be transferred to
a state correctional institution pursuant to rules adopted under
division
(A), (C), or (D) of this section, but the
prisoner shall receive credit
towards completing the prisoner's sentence for the time spent
under transitional control.
If a prisoner is transferred to transitional control under
this section, upon successful completion of the period of
transitional control, the prisoner may be
released on parole or under post-release control pursuant to section 2967.13
or 2967.28 of the Revised Code and rules
adopted by the department of rehabilitation and
correction. If the prisoner is released under post-release control, the
duration of
the post-release control, the type of post-release control
sanctions that may be imposed, the enforcement of the sanctions,
and the treatment of prisoners who violate any sanction
applicable to the prisoner are governed by section 2967.28 of
the Revised Code.
Sec. 2967.28. (A) As used in this section:
(1) "Monitored time" means the monitored time
sanction specified in section 2929.17 of the Revised
Code.
(2) "Deadly weapon" and "dangerous
ordnance" have the same meanings as in section 2923.11 of
the Revised Code.
(3) "Felony sex offense" means a violation of a section
contained in
Chapter 2907. of the Revised Code that is a felony.
(B) Each sentence to a prison term for a felony
of the first degree, for a felony of the second degree, for a felony sex
offense, or for a felony of the third degree
that is not a felony sex offense and in the commission of which the offender
caused or threatened to cause physical harm to a person shall include a
requirement that the offender be subject to a period of
post-release control imposed by the parole board after the offender's
release from imprisonment. Unless reduced by the parole board
pursuant to division (D) of this section when authorized under that
division, a period of
post-release control required by this division for an offender shall be of one
of the following periods:
(1) For a felony of the first degree or for a felony sex offense, five
years;
(2) For a felony of the second degree that is not a felony sex offense,
three years;
(3) For a felony of the third degree that is not a felony sex
offense and in the commission of which the offender caused or threatened
physical harm to a person, three years.
(C) Any sentence to a prison term for a felony
of the third, fourth, or
fifth degree that is not subject to division (B)(1) or (3) of this
section shall include a requirement that the offender be
subject to a period of post-release control of up to three years
after the offender's release from imprisonment, if the parole board, in
accordance with division (D) of this section, determines that a
period of post-release control is necessary for that offender.
(D)(1) Before the prisoner is released from
imprisonment, the parole board
shall impose upon a prisoner
described in division (B) of this section, may impose
upon a prisoner described in division (C) of this
section, and shall impose upon a prisoner described in division
(B)(2)(b) of section 5120.031 or in division
(B)(1) of section 5120.032 of the Revised
Code, one or more post-release control sanctions to apply
during the prisoner's period of post-release control. Whenever the board
imposes one or more post-release control sanctions upon a prisoner, the board,
in addition to imposing the sanctions, also shall include as a condition of
the post-release control THAT the mandatory condition described in
division
(A) of section 2967.131 of the Revised Code INDIVIDUAL OR FELON NOT
LEAVE THE STATE WITHOUT PERMISSION OF THE COURT OR THE INDIVIDUAL'S OR FELON'S
PAROLE OR PROBATION OFFICER AND THAT THE INDIVIDUAL OR FELON ABIDE BY THE
LAW. The board may impose any
other
conditions of release under a post-release control sanction that the board
considers appropriate, AND THE CONDITIONS OF RELEASE MAY INCLUDE ANY
COMMUNITY RESIDENTIAL SANCTION, COMMUNITY NONRESIDENTIAL SANCTION, OR
FINANCIAL SANCTION THAT THE SENTENCING COURT WAS AUTHORIZED TO IMPOSE PURSUANT
TO SECTIONS 2929.16, 2929.17, AND 2929.18 of the Revised Code. Prior to
the release of a prisoner for whom it will impose one or more post-release
control sanctions under this division, the parole board shall review the
prisoner's
criminal history, all
juvenile court adjudications finding the prisoner, while a juvenile, to be a
delinquent child, and the record of the prisoner's conduct while
imprisoned. The parole board shall consider any recommendation regarding
post-release control sanctions for the prisoner made by the office of victims'
services. After considering those materials, the board shall
determine, for a prisoner described in division (B) of
this section, division (B)(2)(b) of
section 5120.031, or division (B)(1) of section 5120.032
of the Revised Code, which post-release control
sanction or combination of post-release control sanctions is
reasonable under the circumstances or, for a prisoner described
in division (C) of this section, whether a post-release
control sanction is necessary and, if so, which post-release
control sanction or combination of post-release control sanctions
is reasonable under the circumstances. In the case of a prisoner convicted of
a felony of the fourth
or fifth degree other than a felony sex offense, the board shall presume that
monitored time is the appropriate post-release control sanction unless the
board determines that a more restrictive sanction is
warranted. A post-release control sanction imposed under this
division takes effect upon the prisoner's release from
imprisonment.
(2) At any time after a prisoner is
released from imprisonment and during the period of post-release control
applicable to the releasee, the adult parole
authority may
review the releasee's behavior under the post-release control
sanctions imposed upon the releasee under this section. The authority may
determine, based upon the review and in accordance with the standards
established under division (E) of this section, that a more
restrictive or a
less restrictive sanction is appropriate and may impose a
different sanction. Unless the period of post-release control was imposed for
an offense described in division (B)(1) of this section, the
authority also may recommend that the parole board reduce the
duration of the period of post-release control imposed by the
court. If the authority recommends that the board
reduce the duration of control for an offense described in division
(B)(2), (B)(3), or (C) of this section, the board
shall review the
releasee's behavior and may reduce the duration of the period of
control imposed by the court. In no case shall the board reduce the duration
of the period of control imposed by the court for an offense described in
division (B)(1) of this section, and in no case shall the board
eliminate the mandatory condition described in division (A) of
section 2967.131 of the Revised Code PERMIT THE RELEASEE TO LEAVE THE
STATE WITHOUT PERMISSION OF THE COURT OR THE RELEASEE'S PAROLE OR PROBATION
OFFICER.
(E) The department of rehabilitation and correction, in accordance with
Chapter 119. of the Revised Code, shall adopt rules that do all of the
following:
(1) Establish standards for the imposition by the
parole board of post-release control sanctions under this section
that are consistent with the overriding purposes and sentencing
principles set forth in section 2929.11 of the Revised
Code and that are appropriate to the needs of releasees;
(2) Establish standards by which the parole board can
determine which prisoners described in division (C) of
this section should be placed under a period of post-release
control;
(3) Establish standards to be used by the parole board
in reducing the duration of the period of post-release control
imposed by the court when authorized under division (D) of this
section, in imposing a more restrictive post-release
control sanction than monitored time upon a prisoner convicted of a felony of
the fourth or fifth
degree other than a felony sex offense, or in imposing a less restrictive
control sanction
upon a releasee based on the releasee's activities including, but
not limited to, remaining free from criminal activity and from
the abuse of alcohol or other drugs, successfully participating
in approved rehabilitation programs, maintaining employment, and
paying restitution to the victim or meeting the terms of other
financial sanctions;
(4) Establish standards to be used by the adult parole authority in
modifying a releasee's post-release control sanctions pursuant to division
(D)(2) of this section;
(5) Establish standards to be used by the adult parole authority or parole
board in imposing further sanctions under division (F) of this
section on releasees who violate post-release control sanctions,
including standards that do the following:
(a) Classify violations according to the degree of seriousness;
(b) Define the circumstances under which formal
action by the parole board is warranted;
(c) Govern the use of evidence at violation hearings;
(d) Ensure procedural due process to an alleged violator;
(e) Prescribe nonresidential community control
sanctions for most misdemeanor and technical violations;
(f) Provide procedures for the return of a releasee to imprisonment for
violations of post-release control.
(F)(1) If a post-release control sanction is imposed upon an offender under
this section,
the offender upon release from imprisonment shall be under the general
jurisdiction of the
adult parole authority and generally shall be supervised by the
parole supervision section through its staff of parole and field
officers as described in section 5149.04 of the Revised
Code, as if the offender had been
placed on parole. If the offender upon release from imprisonment violates the
post-release control sanction or the mandatory condition ANY
CONDITIONS described in
division (A) of section 2967.131 of the Revised Code THAT ARE IMPOSED ON
THE OFFENDER, the public or private
person or entity that
operates or administers the sanction or the program or activity
that comprises the sanction shall report the violation directly
to the adult parole authority or to the officer of the authority
who supervises the offender. The authority's officers may treat
the offender as if the offender were on parole and in violation of the
parole, and otherwise shall comply with this section.
(2) If the adult parole authority determines that a
releasee has violated a post-release control sanction or the mandatory
condition ANY CONDITIONS described in division (A) of section
2967.131 of the Revised Code
imposed
upon the releasee and that a more restrictive sanction is appropriate,
the authority may impose a more restrictive sanction upon the
releasee, in accordance with the standards established under
division (E) of this section,
or may report the violation to the parole board for a hearing
pursuant to division (F)(3) of
this section. The authority may not, pursuant to this division,
increase the duration of the releasee's post-release control, OR
impose as a post-release control sanction a
residential sanction that includes a prison term, or eliminate
the mandatory condition described in division (A) of section 2967.131
BUT THE AUTHORITY MAY IMPOSE ON THE RELEASEE ANY OTHER RESIDENTIAL
SANCTION, NONRESIDENTIAL SANCTION, OR FINANCIAL SANCTION THAT THE SENTENCING
COURT WAS AUTHORIZED TO IMPOSE PURSUANT TO SECTIONS 2929.16, 2929.17, AND
2929.18 of the Revised Code.
(3) The parole board may hold a hearing on
any alleged violation by a releasee of a post-release control
sanction or the mandatory condition ANY CONDITIONS described in
division (A) of
section 2967.131 of the Revised Code THAT ARE imposed upon the
releasee. If after the
hearing the
board finds that
the releasee violated the sanction or mandatory condition, the board
may increase the
duration of the releasee's post-release control up to the maximum
duration authorized by division (B) or (C) of
this section or impose a more restrictive post-release control
sanction, but in no case shall the board eliminate the mandatory
condition described in division (A) of section 2967.131 of the Revised
Code.
When appropriate, the board may impose as a
post-release control sanction a residential sanction that
includes a prison term.
The board shall consider a prison term as a post-release control
sanction imposed for a violation of post-release control when the
violation
involves a deadly weapon or dangerous ordnance, physical harm or
attempted serious physical harm to a person, or sexual misconduct,
or when the releasee committed repeated violations of
post-release control sanctions. The period of a prison term that
is
imposed as a post-release control sanction under this division shall not
exceed nine months, and the maximum cumulative prison term for all
violations under this section shall not exceed one-half of the stated prison
term originally imposed upon the offender as part of this sentence. The
period of a prison term that is imposed as a
post-release control sanction under this division shall not count as, or be
credited toward, the remaining period of post-release control.
(4) A releasee who has violated any post-release
control sanction or the mandatory condition ANY CONDITIONS
described in division
(A) of section 2967.131 of the Revised Code THAT ARE imposed upon the
releasee by
committing a felony may be
prosecuted for the new felony, and, upon conviction, the court
shall impose sentence for the new felony. In addition to the
sentence imposed for the new felony, the court may impose a
prison term for the violation, and the term imposed for the violation shall be
reduced by the prison term that is administratively imposed by the parole
board or adult parole authority as a post-release control sanction. The
maximum prison term for the violation shall be either
the maximum period of post-release control for the earlier felony under
division
(B) or (C) of this section minus any time the
releasee has spent under post-release control for the earlier
felony or twelve months, whichever is greater. A prison term
imposed for the violation shall be served consecutively to any
prison term imposed for the new felony. A prison term imposed
for the violation, and a prison term imposed for the new felony, shall not
count as, or be credited toward, the remaining period of post-release control
imposed for the earlier felony.
(5) Any period of post-release control shall commence upon an
offender's actual release from prison. If an offender is serving an
indefinite prison term or a life sentence in addition to a stated prison term,
the offender shall serve the period of post-release control in the following
manner:
(a) If a period of post-release control is imposed upon the
offender and if the offender also is subject to a period of parole under a
life sentence or an indefinite sentence, and if the period of post-release
control ends prior to the period of parole, the offender shall be supervised
on parole. The offender shall receive credit for post-release control
supervision during the period of parole. The offender is not eligible for
final release under section 2967.16 of the Revised Code until
the post-release control period
otherwise would have ended.
(b) If a period of post-release control is imposed upon the
offender and if the offender also is subject to a period of parole under an
indefinite sentence, and if the period of parole ends prior to the period of
post-release control, the offender shall be supervised on post-release
control. The requirements of parole supervision shall be satisfied during the
post-release control period.
(c) If an offender is subject to more than one period of
post-release control, the period of post-release control for all of the
sentences shall be the period of post-release control that expires last, as
determined by the parole board. Periods of post-release control shall be
served concurrently and shall not be imposed consecutively to each other.
(d) The period of
post-release control for a releasee who commits a felony while
under post-release control for an earlier felony shall be the
longer of the period of post-release control specified for the
new felony under division (B) or (C) of this
section or the time remaining under the period of post-release
control imposed for the earlier felony as determined by the parole board.
Sec. 3719.121. (A) Except as otherwise provided in
section 4723.28, 4723.35, 4730.25, or 4731.22 of the Revised
Code, the license, certificate, or
registration of any dentist, doctor of medicine or
osteopathic medicine, podiatrist, registered nurse, licensed practical
nurse, physician assistant, pharmacist, pharmacy intern, optometrist, or
veterinarian who is or
becomes
addicted to the use of controlled substances shall be
suspended by the board that authorized the person's license,
certificate,
or registration until the person offers satisfactory proof
to the board that the person no longer is addicted to the use of
controlled substances.
(B) If the board under which a
person has been issued a license, certificate, or
evidence of registration
determines that there is clear and
convincing evidence that continuation of the person's professional
practice or method of prescribing or personally
furnishing controlled
substances
presents a danger of immediate and serious harm to others, the board
may suspend the person's license, certificate, or
registration without a hearing.
Except as otherwise provided in sections 4715.30, 4723.281, 4730.25,
and
4731.22 of the Revised Code, the board shall follow the procedure
for suspension without a prior hearing in
section 119.07 of the Revised Code. The suspension shall remain in
effect, unless removed by the board, until the board's final
adjudication order becomes effective, except that if the board
does not issue its final adjudication order within ninety days
after the hearing, the suspension shall be void on the
ninety-first day after the hearing.
(C) On receiving notification pursuant to section 2929.24
or 3719.12 of the Revised Code, the board under which a person has been
issued a license, certificate, or evidence of registration
immediately
shall suspend the license, certificate,
or registration of that person on a plea of guilty
to,
a finding by a jury or court of the person's guilt of, or conviction of a
felony drug abuse offense; a
finding by a court of the person's eligibility for treatment
INTERVENTION in lieu of conviction; a
plea of guilty to, or a finding by a jury or court of
the person's guilt of, or the person's conviction of
an offense in another jurisdiction that is essentially the same as a
felony drug abuse offense; or a finding by a court of
the person's eligibility for treatment OR INTERVENTION in lieu of
conviction in another
jurisdiction. The board shall notify the holder of the license,
certificate, or registration of the suspension, which shall
remain in effect
until the board holds an adjudicatory hearing
under Chapter 119. of the Revised Code.
Sec. 3719.70. (A) When testimony, information, or other
evidence in the possession of a person who uses, possesses, or
trafficks in any drug of abuse appears necessary to an
investigation by law enforcement authorities into illicit sources
of any drug of abuse, or appears necessary to successfully
institute, maintain, or conclude a prosecution for any drug abuse
offense, as defined in section 2925.01 of the Revised Code, a
judge of the court of common pleas may grant to that person
immunity from prosecution for any offense based upon the
testimony, information, or other evidence furnished by that person,
other than a prosecution of that person for giving false
testimony, information, or other evidence.
(B)(1) When a person is convicted of any misdemeanor drug abuse
offense,
the court, in determining whether to suspend sentence or
place the person on probation, shall take into consideration whether
the person truthfully has revealed all
information within the person's knowledge concerning illicit traffic in or use
of drugs of abuse
and, when required, has testified as to that information in any
proceeding to obtain a search or arrest warrant against another
or to prosecute another for any offense involving a drug of
abuse. The information shall include, but is not limited to, the
identity and whereabouts of accomplices, accessories, aiders, and
abettors, if any, of the person or persons from whom any drug
of abuse was obtained or to whom any drug of abuse was
distributed, and of persons known or believed to be drug dependent persons,
together with the location of any place or places where and the
manner in which any drug of abuse is illegally cultivated,
manufactured, sold, possessed, or used. The information also shall include
all facts and circumstances surrounding any illicit traffic in
or use of drugs of abuse of that nature.
(2) If a person otherwise is eligible for treatment
INTERVENTION
in lieu of conviction and being
ordered to a period of rehabilitation under section
2951.041
of the Revised Code as an offender who is a drug dependent
person or is in danger of becoming a drug
dependent person but the person has failed
to cooperate with
law enforcement authorities by providing them with the
types of information described in division (B)(1) of this
section, the person's lack
of cooperation may be considered by the court under division (B)
of section 2951.041 of the Revised Code in determining whether
to stay all criminal proceedings and order the person
to a requested
period of rehabilitation INTERVENTION.
(C) In the absence of a competent and voluntary waiver of
the right against self-incrimination, no information or testimony
furnished pursuant to division (B) of this section shall be used
in a prosecution of the person furnishing it for any offense
other than a prosecution of that person for giving false
testimony, information, or other evidence.
Sec. 3719.99. (A) Whoever violates section 3719.16 or
3719.161 of the Revised Code is guilty of a felony of the
fifth degree. If the offender previously has been convicted of a
violation of section 3719.16 or 3719.161 of the Revised Code or a
drug abuse offense, a violation of section 3719.16 or 3719.161 of the Revised
Code is a felony of the fourth degree. If the violation involves
the sale, offer to sell, or possession of a schedule I or II
controlled substance, with the exception of marihuana, and if the offender, as
a result of the violation, is a major drug offender, division (D) of
this section applies.
(B) Whoever violates division (C) or (D) of section
3719.172 of the Revised Code is guilty of a felony of the
fifth degree. If the offender previously has been convicted of a
violation of division (C) or (D) of section 3719.172 of the
Revised Code or a drug abuse offense, a violation of division (C)
or (D) of section 3719.172 of the Revised Code is a felony of
the fourth degree. If the violation involves the sale,
offer to sell, or possession of a schedule I or II
controlled substance, with the exception of marihuana, and if the offender, as
a result of the violation, is a major drug offender, division (D) of
this section applies.
(C) Whoever violates section 3719.07 or 3719.08 of the
Revised Code is guilty of a misdemeanor of the first degree. If
the offender previously has been convicted of a violation of
section 3719.07 or 3719.08 of the Revised Code or a drug abuse
offense, a violation of section 3719.07 or 3719.08 of the Revised Code is a
felony of the fifth degree. If the violation involves the sale,
offer to sell, or possession of a schedule I or II
controlled substance, with the exception of marihuana, and if the offender, as
a result of the violation, is a major drug offender, division (D) of
this section applies.
(D)(1) If an offender is convicted of or pleads guilty to a felony
violation of section 3719.07, 3719.08, 3719.16, or 3719.161 or of division
(C) or (D) of section 3719.172 of the Revised Code, if the violation
involves the sale, offer to sell, or possession of a schedule I or
II controlled substance, with the exception of marihuana, and if THE COURT
IMPOSING SENTENCE UPON THE OFFENDER FINDS THAT the
offender, as a result of the violation, is a major drug offender
AND IS GUILTY OF A SPECIFICATION OF THE TYPE DESCRIBED IN SECTION 2941.1410
of the Revised Code, the court
that sentences the offender, in lieu of the prison term authorized or
required
by division (A), (B), or (C) of this section and
sections 2929.13 and 2929.14 of the Revised Code and in addition to any other
sanction imposed for the offense under sections 2929.11 to 2929.18 of the
Revised Code, shall impose upon the offender, in accordance with division
(D)(3)(a)
of section 2929.14 of the Revised Code, the mandatory prison term specified in
that division and may impose an additional prison term under division
(D)(3)(b) of that section.
(2) Notwithstanding any contrary provision of section 3719.21 of the Revised
Code, the
clerk of the court shall pay any fine imposed for a felony violation of
section 3719.07, 3719.08, 3719.16, or 3719.161 or of division (C) or
(D) of section 3719.172 of the Revised Code pursuant to division (A) of
section 2929.18 of the Revised Code in accordance with and subject to the requirements of
division (F) of section 2925.03 of the Revised Code. The agency that receives
the fine shall use the fine as specified in division (F) of section
2925.03 of the Revised Code.
(E) Whoever violates section 3719.05, 3719.06, 3719.13, or
3719.31 or division (B) of section 3719.172 of the
Revised Code is guilty of a misdemeanor of the third degree. If
the offender previously has been convicted of a violation of
section 3719.05, 3719.06, 3719.13, or 3719.31 or division (B)
of section 3719.172 of the Revised Code or a drug abuse
offense, a violation of section 3719.05, 3719.06, 3719.13, or 3719.31 or
division (B) of section 3719.172 of the Revised Code is a
misdemeanor of the first degree.
(F) Whoever violates section 3719.30 of the Revised Code
is guilty of a misdemeanor of the fourth degree. If the offender
previously has been convicted of a violation of section 3719.30
of the Revised Code or a drug abuse offense, a violation of section 3719.30
of the Revised Code is a misdemeanor of the third degree.
(G) Whoever violates section 3719.32 or 3719.33 of the
Revised Code is guilty of a minor misdemeanor.
(H) Whoever violates division (K)(2)(b) of section 3719.44 of the Revised
Code is guilty of a felony of the fifth degree.
(I) Whoever violates division (K)(2)(c) of section 3719.44 of the Revised
Code is guilty of a misdemeanor of the second degree.
(J) As used in this section, "major drug offender" has the same
meaning as in section 2929.01 of the Revised Code.
Sec. 4715.30. (A) The holder of a certificate or license
issued under this chapter is subject to disciplinary action by
the state dental board for any of the following reasons:
(1) Employing or cooperating in fraud or material
deception in applying for or obtaining a license or certificate;
(2) Obtaining or attempting to obtain money or anything of
value by intentional misrepresentation or material deception in
the course of practice;
(3) Advertising services in a false or misleading manner
or violating the board's rules governing time, place, and manner
of advertising;
(4) Conviction of a misdemeanor committed in the course of
practice or of any felony;
(5) Engaging in lewd or immoral conduct in connection with
the provision of dental services;
(6) Selling, prescribing, giving away, or administering
drugs for other than legal and legitimate therapeutic purposes,
or conviction of violating any law of this state or the federal
government regulating the possession, distribution, or use of any
drug;
(7) Providing or allowing dental hygienists or other
practitioners of auxiliary dental occupations working under his THE
CERTIFICATE OR LICENSE HOLDER'S supervision, or a dentist holding a
temporary limited continuing
education license under division (C) of section 4715.16 of the
Revised Code working under his THE CERTIFICATE OR LICENSE
HOLDER'S direct supervision, to provide
dental care that departs from or fails to conform to accepted
standards for the profession, whether or not injury to a patient
results;
(8) Inability to practice under accepted standards of the
profession because of physical or mental disability, dependence
on alcohol or other drugs, or excessive use of alcohol or other
drugs;
(9) Violation of any provision of this chapter or any rule
adopted thereunder;
(10) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4715.03 of
the Revised Code;
(11) Waiving the payment of all or any part of a deductible or copayment that
a patient, pursuant to a health insurance or health care policy, contract, or
plan that covers dental services, would otherwise be required to pay if the
waiver is used as an enticement to a patient or group of patients to receive
health care services from that provider.
(12) Advertising that he THE CERTIFICATE OR LICENSE HOLDER will
waive the payment of all or any part of a
deductible or copayment that a patient, pursuant to a health insurance or
health care policy, contract, or plan that covers dental services, would
otherwise be required to pay.
(B) A manager, proprietor, operator, or conductor of a
dental facility shall be subject to disciplinary action if any
dentist, dental hygienist, or qualified personnel providing
services in the facility is found to have committed a violation
listed in division (A) of this section and the manager,
proprietor, operator, or conductor knew of the violation and
permitted it to occur on a recurring basis.
(C) Subject to Chapter 119. of the Revised Code, the board
may take one or more of the following disciplinary actions if one
or more of the grounds for discipline listed in divisions (A) and
(B) of this section exist:
(1) Censure the license or certificate holder;
(2) Place the license or certificate on probationary
status for such period of time the board determines necessary and
require the holder to:
(a) Report regularly to the board upon the matters which
are the basis of probation;
(b) Limit practice to those areas specified by the board;
(c) Continue or renew professional education until a
satisfactory degree of knowledge or clinical competency has been
attained in specified areas.
(3) Suspend the certificate or license;
(4) Revoke the certificate or license.
Where the board places a holder of a license or certificate
on probationary status pursuant to division (C)(2) of this
section, the board may subsequently suspend or revoke the license
or certificate if it determines that the holder has not met the
requirements of the probation or continues to engage in
activities that constitute grounds for discipline pursuant to
division (A) or (B) of this section.
Any order suspending a license or certificate shall state
the conditions under which the license or certificate will be
restored, which may include a conditional restoration during
which time the holder is in a probationary status pursuant to
division (C)(2) of this section. The board shall restore the
license or certificate unconditionally when such conditions are
met.
(D) If the physical or mental condition of a license or
certificate holder is at issue in a disciplinary proceeding, the
board may order the license or certificate holder to submit to
reasonable examinations by a physician designated or approved by
the board and at the board's expense. Failure to comply with an
order for an examination shall be grounds for summary suspension
of a license or certificate under division (E) of this section.
(E) If the board has reason to believe that the holder
represents a clear and immediate danger to the public health and
safety if he THE HOLDER is allowed to continue to practice, or
if the holder has failed to comply with an order under division (D) of this
section, the board may apply to the court of common pleas of the
county in which the holder resides for an order temporarily
suspending the holder's license or certificate, without a prior
hearing being afforded by the board, until the board conducts an
adjudication hearing pursuant to Chapter 119. of the Revised
Code. If the court temporarily suspends a holder's license or
certificate, the board shall give written notice of the
suspension personally or by certified mail to the license or
certificate holder. Such notice shall include specific facts and
reasons for finding a clear and immediate danger to the public
health and safety and shall inform the license or certificate
holder of the right to a hearing pursuant to Chapter 119. of the
Revised Code.
(F) Any holder of a certificate or license issued under
this chapter who has pleaded guilty to, has been convicted of, or
has had a judicial finding of eligibility for treatment
INTERVENTION in lieu
of conviction entered against him THE HOLDER in this state for
aggravated murder, murder, voluntary manslaughter, felonious assault,
kidnapping, rape, sexual battery, gross sexual imposition,
aggravated arson, aggravated robbery, or aggravated burglary, or
who has pleaded guilty to, has been convicted of, or has had a
judicial finding of eligibility for treatment OR INTERVENTION in lieu
of
conviction entered against him THE HOLDER in another
jurisdiction for any
substantially equivalent criminal offense, is automatically
suspended from practice under this chapter in this state and any
certificate or license issued to him THE HOLDER under this
chapter is automatically suspended, as of the date of the guilty plea,
conviction, or judicial finding, whether the proceedings are
brought in this state or another jurisdiction. Continued
practice by an individual after the suspension of his THE
INDIVIDUAL'S certificate or license under this division shall be
considered practicing
without a certificate or license. The board shall notify the
suspended individual of the suspension of his THE INDIVIDUAL'S
certificate or license under this division by certified mail or in person in
accordance with section 119.07 of the Revised Code. If an
individual whose certificate or license is suspended under this
division fails to make a timely request for an adjudicatory
hearing, the board shall enter a final order revoking the
individual's certificate or license.
(G) Notwithstanding divisions (A)(11) and (12) of this section, sanctions
shall not be imposed against any licensee who waives deductibles and
copayments:
(1) In compliance with the health benefit plan that expressly allows such a
practice. Waiver of the deductibles or copays shall be made only with the
full knowledge and consent of the plan purchaser, payer, and third-party
administrator. Such consent shall be made available to the board upon
request.
(2) For professional services rendered to any other person licensed pursuant
to this chapter to the extent allowed by this chapter and the rules of the
board.
Sec. 4729.99. (A) Whoever violates section 4729.16,
division (A) or (B) of section 4729.38, or section 4729.57 of the
Revised Code is guilty of a minor misdemeanor. Each day's
violation constitutes a separate offense.
(B) Whoever violates section 4729.27, 4729.28, or 4729.36
of the Revised Code is guilty of a misdemeanor of the third
degree. Each day's violation constitutes a separate offense. If
the offender previously has been convicted of or pleaded guilty to a
violation of this
chapter, that person is guilty of a misdemeanor of the second
degree.
(C) Whoever violates section 4729.32, 4729.33, or 4729.34
of the Revised Code is guilty of a misdemeanor.
(D) Whoever violates division (A), (B), (D), or (E) of
section 4729.51 of the Revised Code is guilty of a misdemeanor of
the first degree.
(E)(1) Whoever violates section 4729.37, division (C)(2) of
section 4729.51, division (J) of section 4729.54, or section
4729.61 of the Revised Code is guilty of a felony of the
fifth degree. If the offender previously has been convicted of or
pleaded guilty to a violation of this chapter or a violation of
Chapter 2925. or 3719. of the Revised Code, that person is guilty of a felony
of the fourth degree.
(2) If an offender is convicted of or pleads guilty to a
violation of section 4729.37, division (C) of section 4729.51,
division (J) of section 4729.54, or section 4729.61 of the
Revised Code, if the violation involves the sale, offer to
sell, or possession of a schedule I or II controlled
substance, with the exception of marihuana, and if the COURT IMPOSING
SENTENCE UPON THE OFFENDER FINDS THAT THE offender, as a result
of the violation, is a major drug offender, as defined in section
2929.01 of
the Revised Code, AND IS GUILTY OF A SPECIFICATION OF THE TYPE DESCRIBED IN
SECTION 2941.1410 of the Revised Code, the court that sentences the
offender, in
lieu of the prison term authorized or required by division (E)(1) of
this section and sections 2929.13 and 2929.14 of the Revised
Code and in addition to any other sanction imposed for the offense
under sections 2929.11 to 2929.18 of the Revised
Code, shall impose upon the offender, in accordance with division
(D)(3)(a) of section 2929.14 of the Revised
Code, the mandatory prison term specified in that
division and may
impose an additional prison term under division
(D)(3)(b) of that section.
(3) Notwithstanding any contrary provision of section 3719.21
of the Revised Code, the clerk of court shall pay any
fine imposed for a violation of section 4729.37, division (C) of
section 4729.51,
division (J) of section 4729.54, or section 4729.61 of the
Revised Code pursuant to division (A)
of section
2929.18 of the Revised Code in accordance with
and subject
to the requirements of division (F) of section 2925.03
of the
Revised Code. The agency that receives the
fine shall use
the fine as specified in division (F) of section 2925.03
of the
Revised Code.
(F) Whoever violates section 4729.531 of the Revised Code
or any rule adopted thereunder or section 4729.532 of the Revised
Code is guilty of a misdemeanor of the first degree.
(G) Whoever violates division (C)(1) of
section 4729.51
of the Revised Code is guilty of a felony of the
fourth
degree. If the offender has previously been convicted of or
pleaded guilty to a
violation of
this chapter, or of a violation of Chapter 2925. or 3719. of the
Revised Code, that person is guilty of a felony of the
third degree.
(H) Whoever violates division (C)(3) of section 4729.51
of the Revised Code is guilty of a misdemeanor of the first
degree. If the offender has previously been convicted of or pleaded guilty
to a violation of this chapter, or of a violation of Chapter 2925. or
3719. of the Revised Code, that person is guilty of a felony of
the fifth degree.
Sec. 4730.25. (A) The state medical board, pursuant to an adjudication
under Chapter 119. of the Revised Code and by
a vote of not fewer than six members, may revoke or may refuse to
grant a certificate of registration as a physician assistant to a
person found by the board to have committed fraud,
misrepresentation, or deception in applying for or securing the
certificate.
(B) The board, pursuant to an adjudication under
Chapter 119. of the Revised Code and by a
vote of not fewer than six members, shall, to the extent
permitted by law, limit, revoke, or suspend a certificate of
registration as a physician assistant, refuse to
issue a certificate to an applicant, refuse to reinstate a
certificate, or reprimand or place on probation the holder
of a certificate for any of the following reasons:
(1) Failure to practice in accordance
with the conditions under which the supervising physician's supervision
agreement with
the physician assistant was approved, including the requirement
that when practicing under a particular supervising physician,
the physician assistant must practice only according to the standard or
supplemental utilization plan the board approved for that physician;
(2) Failure to comply with the requirements of this
chapter, Chapter 4731. of the Revised Code, or any rules adopted
by the board;
(3) Violating or attempting to violate, directly or
indirectly, or assisting in or abetting the violation of, or
conspiring to violate, any provision of this chapter,
Chapter 4731. of the Revised Code, or the
rules adopted by the board;
(4) Inability to practice according to
acceptable and prevailing standards of care by reason of mental
illness or physical illness, including physical deterioration
that adversely affects cognitive, motor, or perceptive skills;
(5) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or excessive use or abuse of drugs, alcohol, or other substances
that impair ability to practice;
(6) Administering drugs for purposes other than those
authorized under this chapter;
(7) Willfully betraying a professional confidence;
(8) Soliciting patients or publishing a false, fraudulent,
deceptive, or misleading statement. As used in this division,
"false, fraudulent, deceptive, or misleading statement" means a
statement that includes a misrepresentation of fact, is likely to
mislead or deceive because of a failure to disclose material
facts, is intended or is likely to create false or unjustified
expectations of favorable results, or includes representations or
implications that in reasonable probability will cause an
ordinarily prudent person to misunderstand or be deceived.
(9) Representing, with the purpose of obtaining
compensation or other advantage personally or for any other
person, that an incurable disease or injury, or other incurable
condition, can be permanently cured;
(10) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice;
(11) A plea of guilty to, or a judicial finding of guilt
of, a felony;
(12) Commission of an act that constitutes a felony in
this state regardless of the jurisdiction in which the act was
committed;
(13) A plea of guilty to, or a judicial finding of guilt
of, a misdemeanor committed in the course of practice;
(14) A plea of guilty to, or a judicial finding of guilt of, a misdemeanor
involving moral turpitude;
(15) Commission of an act that constitutes a misdemeanor
in this state regardless of the jurisdiction in which the act was
committed, if the act was committed in the course of practice;
(16) Commission of an act that constitutes a
misdemeanor in this state, regardless of the jurisdiction in
which the act was committed, if the act involves moral turpitude;
(17) Trafficking in drugs, or a plea of guilty to or a
judicial finding of guilt of violating any state or federal law
regulating the possession, distribution, or use of any drug;
(18) The limitation, revocation, or suspension by another state of a
license, certificate, or registration to practice issued by the
proper licensing authority of that state, the refusal to license, certify,
register, or reinstate an
applicant by that authority, the imposition of probation by
that authority, or the issuance of an order of censure or other reprimand
by that authority for any reason, other than
nonpayment of fees;
(19) A departure from, or failure to conform to,
minimal standards of care of similar physician assistants under
the same or similar circumstances, regardless of whether actual
injury to a patient is established;
(20) Violation of the conditions placed
by the board on a certificate of registration, physician
assistant utilization plan, or supervision agreement;
(21) Violation of the conditions on which
a temporary certificate of registration is issued;
(22) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of the Revised Code.
(C) For purposes of divisions (B)(12), (15), and (16) of this
section, the commission of the act may be established by a
finding by the board, pursuant to an
adjudication under Chapter 119. of the Revised Code, that the applicant
or certificate holder committed the act in question. The board shall have no
jurisdiction under these divisions in cases where the trial court
renders a final judgment in the certificate holder's favor and
that judgment is based upon an adjudication on the merits. The
board shall have jurisdiction under these divisions in cases
where the trial court issues an order of dismissal upon technical
or procedural grounds.
The sealing of conviction records by any court shall have no effect
upon a prior board order entered under the provisions of this
section or upon the board's jurisdiction to take action under the
provisions of this section if a notice of opportunity for hearing
has been issued based upon conviction, a plea of guilty, or a
judicial finding of guilt prior to the court's order to seal the records.
(D) For purposes of this division, any
individual who holds a certificate of registration issued under
this chapter, or applies for a certificate of registration, shall
be deemed to have given consent to submit to a mental or
physical examination when directed to do so in writing by the
board and to have waived all objections to the admissibility of
testimony or examination reports that constitute a privileged
communication.
(1) In enforcing division (B)(4) of this
section, the board, upon a showing of a possible violation, may
compel any individual who holds a certificate of registration
issued under this chapter or who has applied for a certificate of
registration pursuant to this chapter to submit to a mental or
physical examination, or both, as required by and at the expense
of the board. Failure of any individual to submit to a mental or
physical examination when directed constitutes an admission of
the allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and final order
may be entered without the taking of testimony or presentation of
evidence. If the board finds a physician assistant unable to
practice because of the reasons set forth in this division, the
board shall require the physician assistant to submit to care,
counseling, or treatment by physicians approved or designated by
the board, as a condition for an initial, continued, reinstated,
or renewed certificate of registration. An individual affected
under this division shall be afforded an opportunity to
demonstrate to the board the ability to resume practicing in compliance with
acceptable and prevailing standards of care.
(2) For purposes of division (B)(5) of this
section, if the board has reason to believe that any individual
who holds a certificate of registration issued under this chapter
or any applicant for a certificate of registration suffers such
impairment, the board may compel the individual to submit to a
mental or physical examination, or both. The examination shall
be at the expense of the board. Any mental or physical
examination required under this division shall be undertaken by a
treatment provider or physician qualified to conduct such
examination and chosen by the board.
Failure of the individual to submit to a mental or
physical examination ordered by the board constitutes an
admission of the allegations against the individual unless the failure is
due to circumstances beyond the individual's control, and a
default and final order may be entered without the taking of
testimony or presentation of evidence. If the board determines
that the individual's ability to practice is impaired, the board
shall suspend the individual's certificate or deny the individual's
application and shall
require the individual, as a condition for initial, continued,
reinstated, or renewed licensure to practice, to submit to
treatment.
Before being eligible to apply for reinstatement of a
certificate suspended under this division, the physician
assistant shall demonstrate to the board the ability to resume
practice in compliance with acceptable and prevailing standards
of care. The demonstration shall include the
following:
(a) Certification from a treatment provider
approved under section 4731.25 of the Revised
Code that the individual has successfully completed any required
inpatient treatment;
(b) Evidence of continuing full compliance with
an aftercare contract or consent agreement;
(c) Two written reports indicating that the
individual's ability to practice has been assessed and that the individual
has been found capable of practicing according to acceptable and
prevailing standards of care. The reports shall be made by
individuals or providers approved by the board for making such
assessments and shall describe the basis for this determination.
The board may reinstate a certificate suspended under
this division after such demonstration and after the individual
has entered into a written consent agreement.
When the impaired physician assistant resumes practice,
the board shall require continued monitoring of the physician
assistant, which shall include compliance with the written
consent agreement entered into before reinstatement or with
conditions imposed by board order after a hearing, and, upon
termination of the consent agreement, submission to the board for
at least two years of annual written progress reports made under
penalty of falsification stating whether the physician assistant
has maintained sobriety.
(E) If the secretary and supervising member
determine that there is clear and convincing evidence that a
physician assistant has violated division (B) of this
section and that the individual's continued practice
presents a danger of immediate and serious harm to the public,
they may recommend that the board suspend the individual's certificate to
practice without
a prior hearing. Written allegations shall be prepared for
consideration by the board members.
The board, upon review of those allegations and by a
vote of not fewer than six of its members, excluding the
secretary and supervising member, may suspend a certificate
without a prior hearing. A telephone conference call may be
utilized for reviewing the allegations and taking the vote.
The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be
subject to suspension by the court during pendency of any appeal
filed under section 119.12 of the Revised
Code. If the physician assistant requests an adjudicatory
hearing by the board, the date set for the hearing shall be
within fifteen days, but not earlier than seven days, after the
physician assistant requests the hearing, unless otherwise
agreed to by both the board and the certificate holder.
A summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code
becomes effective. The board shall issue its final adjudicative
order within sixty days after completion of its hearing. Failure to issue the
order within sixty days shall result in
dissolution of the summary suspension order, but shall not
invalidate any subsequent, final adjudicative order.
(F) If the board should take action under
division (B)(11), (13), or (14) of this section, and the
conviction, judicial finding of guilt, or guilty plea is
overturned on appeal, upon exhaustion of the criminal appeal, a
petition for reconsideration of the order may be filed with the
board along with appropriate court documents. Upon receipt of
a petition and supporting court documents, the board shall
reinstate the petitioner's certificate. The board may then hold
an adjudication to determine whether the
individual committed the act in question. Notice of
opportunity for hearing shall be given in accordance with
Chapter 119. of the Revised Code. If the
board finds, pursuant to an adjudication held under
this division, that the individual committed the act, or if no
hearing is requested, it may order any of the sanctions
identified under division (B) of this section.
(G) The certificate of registration of a physician assistant and
the physician assistant's practice in this state are automatically suspended
as of the date the physician assistant pleads guilty to, is found by a judge
or jury to be guilty of, or is subject to a judicial finding of
eligibility for INTERVENTION IN LIEU OF CONVICTION IN THIS STATE OR
treatment OR INTERVENTION in lieu of conviction IN ANOTHER STATE
for either of the following:
(1) In this state, aggravated murder, murder, voluntary
manslaughter, felonious assault, kidnapping, rape, sexual
battery, gross sexual imposition, aggravated arson, aggravated
robbery, or aggravated burglary;
(2) In another jurisdiction, any
criminal offense substantially equivalent to those specified in division
(G)(1) of this section.
Continued practice after the suspension
shall be considered practicing without a
certificate. The board shall notify the individual subject to
the suspension by certified mail or in person in accordance with section
119.07 of the Revised Code. If an individual whose
certificate is suspended under this division fails to make a
timely request for an adjudicatory hearing, the board shall enter
a final order revoking the certificate.
(H) In any instance in which the board is required by
Chapter 119. of the Revised Code to give notice of
opportunity for hearing and the applicant or certificate holder
does not timely request a hearing in accordance with section
119.07 of the Revised Code, the board is not required
to hold a hearing, but may adopt, by a vote of not fewer than
six of its members, a final order that contains the board's
findings. In that final order, the board may order any of the
sanctions identified under division (B) of this section.
(I) Any action taken by the board under
division (B) of this section resulting in a suspension
shall be accompanied by a written statement of the
conditions under which the physician assistant may be reinstated. The board
shall adopt rules in accordance with
Chapter 119. of the Revised Code
governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative
vote of not fewer than six members of the board.
(J) An individual's failure to renew a certificate of
registration as a physician assistant shall have no effect on the board's
jurisdiction to take any action under this section against the individual.
(K) Notwithstanding any other provision of the
Revised Code, the surrender of a certificate of
registration as a physician assistant issued under this chapter
is not effective until accepted by the board. Reinstatement of
a certificate surrendered to the board requires an affirmative
vote of not fewer than six members of the board.
Notwithstanding any other provision of the
Revised Code, no application made under this
chapter for a certificate of registration, approval of a standard
or supplemental utilization plan, or approval of a supervision
agreement may be withdrawn without approval of the board.
Sec. 4731.22. (A) The state medical board,
by an affirmative vote of not fewer than six of its members,
may revoke or may
refuse to grant a certificate to a person found by the board to
have committed fraud during the administration of the
examination for a certificate to practice or to have
committed fraud, misrepresentation, or deception in applying for
or securing any certificate to practice or certificate of
registration issued by the board.
(B) The board, by an affirmative
vote of not fewer than
six members, shall, to the extent permitted by law, limit,
revoke, or suspend an individual's certificate to
practice, refuse to register an individual, refuse
to
reinstate a certificate, or reprimand or place on
probation the
holder of a certificate for one or more of the following reasons:
(1) Permitting one's name or one's certificate to practice or
certificate of
registration to be used by a person, group, or corporation when
the individual concerned is not actually directing the treatment
given;
(2) Failure to maintain
minimal standards applicable to the
selection or administration of drugs, or failure to employ acceptable
scientific methods in the selection of drugs or other modalities
for treatment of disease;
(3) Selling, giving away, personally furnishing, prescribing, or
administering drugs for other than legal and legitimate therapeutic purposes
or
a plea of guilty to, a judicial finding of guilt of, or a
judicial finding of eligibility for treatment in lieu of conviction
of, a
violation of any federal or state law regulating the possession,
distribution, or use of any drug;
(4) Willfully betraying a professional confidence.
For purposes of this division, "willfully betraying a professional
confidence" does not include the making of a report of an
employee's use of a drug of abuse, or a report of a condition of
an employee other than one involving the use of a drug of abuse,
to the employer of the employee as described in division (B) of
section 2305.33 of the Revised Code.
Nothing in this division
affects the immunity from
civil liability conferred by that section upon a physician who
makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code.
(5) Making a false, fraudulent,
deceptive, or misleading statement
in the solicitation of or advertising
for patients; in relation
to the practice of medicine and surgery, osteopathic medicine
and surgery, podiatry, or a limited branch of medicine;
or in securing or attempting to secure any certificate
to practice or certificate of registration issued by the board.
As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive
because of a failure to disclose material facts, is intended or
is likely to create false or unjustified expectations of
favorable results, or includes representations or implications
that in reasonable probability will cause an ordinarily prudent
person to misunderstand or be deceived.
(6) A departure from, or the failure to conform to,
minimal standards of care of similar practitioners under the same
or similar circumstances, whether or not actual injury to a
patient is established;
(7) Representing, with the purpose of obtaining
compensation or other advantage as personal gain or for
any other
person, that an incurable disease or injury, or other incurable
condition, can be permanently cured;
(8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice;
(9) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment in lieu of
conviction for, a felony;
(10) Commission of an act that constitutes a felony in
this state, regardless of the jurisdiction in which the act was
committed;
(11) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment in lieu of
conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that constitutes a
misdemeanor
in this state, regardless of the jurisdiction in which the act was
committed;
(13) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment in lieu of
conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that constitutes a
misdemeanor
in this state, regardless of the jurisdiction in which the act was
committed;
(15) Violation of the conditions of limitation placed by
the board upon a certificate to practice;
(16) Failure to pay license renewal fees specified in this
chapter;
(17) Engaging in the division of fees
for referral of patients, or
the
receiving of a thing of value in return for a specific referral of a patient
to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code, violation of
any provision of a code of ethics
of the American medical association, the American osteopathic
association, the American podiatric medical association, or any
other national professional organizations that
the board specifies by
rule. The state medical board shall
obtain and keep on file current copies of the codes of ethics of
the various national professional organizations. The
individual whose certificate is being suspended or
revoked
shall not be found to have violated any provision of a code of
ethics of an organization not appropriate to the
individual's profession.
For purposes of this division, a "provision of a code
of ethics of a national professional organization" does not
include any provision that would preclude the making of a
report by a physician of an employee's use of a drug of abuse, or
of a condition of an employee other than one involving the use of
a drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in this division affects the
immunity from civil liability conferred by that section upon a
physician who makes either type of report in accordance with
division (B) of that section. As used in this division,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills.
In enforcing this division, the board, upon a
showing of a possible violation, may compel any individual
authorized to practice by this chapter or
who has
submitted an application
pursuant to this chapter
to submit to a mental examination, physical
examination, including an HIV test, or both a mental
and a physical
examination. The expense of the
examination is the responsibility of the individual compelled to be
examined. Failure to submit to a mental or physical examination
or consent to an HIV test ordered by the board
constitutes an admission of the allegations against the
individual
unless the failure is due to circumstances beyond the individual's control,
and a default and final order may be entered without the taking
of testimony or presentation of evidence. If the board finds an
individual unable to practice because of the reasons
set forth in
this division, the board shall require the individual
to submit to
care, counseling, or treatment by physicians approved or
designated by the board, as a condition for initial, continued,
reinstated, or renewed authority to practice. An
individual
affected under this division shall be
afforded an opportunity to demonstrate to the board the ability to
resume practice in compliance with acceptable and prevailing
standards under the provisions of the individual's certificate.
For the
purpose of this division, any individual who
applies for or receives a certificate to
practice under this chapter accepts the privilege of
practicing in
this state and, by so doing, shall be
deemed to have given consent to submit to a mental or
physical examination when directed to do so in writing by the
board, and to have waived all objections to the admissibility of
testimony or examination reports that constitute a privileged
communication.
(20) Except when civil penalties are imposed under section 4731.225
or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or
attempting to violate, directly or indirectly, or assisting in or
abetting the violation of, or conspiring to violate, any
provisions of this chapter or any rule promulgated by the board.
This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making
of a
report by a physician of an employee's use of a drug of abuse, or
of a condition of an employee other than one involving the use of
a drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in this division affects the
immunity from civil liability conferred by that section upon a
physician who makes either type of report in accordance with
division (B) of that section. As used in this division,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code.
(21) The violation of any abortion rule adopted by the
public health council pursuant to section 3701.341 of the Revised
Code;
(22) Any of the following actions taken by the state agency
responsible for regulating the practice of medicine and surgery, osteopathic
medicine and surgery, podiatry, or the limited branches of medicine in
another state, for any reason other than the nonpayment of fees: the
limitation, revocation, or suspension of an individual's license
to practice; acceptance of an
individual's license surrender; denial of a license; refusal to
renew or reinstate
a license; imposition of probation; or
issuance of an order of censure or other reprimand;
(23) The violation of section 2919.12 of the Revised Code
or the performance or inducement of an abortion upon a pregnant
woman with actual knowledge that the conditions specified in
division (B) of section 2317.56 of the Revised Code have not been
satisfied or with a heedless indifference as to whether those
conditions have been satisfied, unless an affirmative defense as
specified in division (H)(2) of that section would apply in a
civil action authorized by division (H)(1) of that section;
(24) The revocation, suspension, restriction, reduction,
or termination of clinical privileges by the United
States department of
defense or department of veterans
affairs or the termination or suspension of a certificate of
registration to prescribe drugs by the drug enforcement
administration of the United States department of
justice;
(25) Termination or suspension from participation in the medicare or
medicaid
programs by the department of health and human services or other
responsible agency for any act or acts that also would
constitute a violation of division (B)(2), (3), (6), (8), or (19)
of this section;
(26) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or excessive use or abuse of drugs, alcohol, or other substances
that impair ability to practice.
For the purposes of this division, any individual authorized to practice
by this chapter accepts
the privilege of
practicing in this state subject to supervision by the board. By
filing an application for or
holding a
certificate to practice under this chapter, an
individual shall
be deemed to have given consent to submit to a mental or
physical examination when ordered to do so by the board in
writing, and to have waived all objections to the admissibility
of testimony or examination reports that constitute privileged
communications.
If it has reason to believe that any individual authorized to practice by
this chapter or any applicant for
certification to practice suffers such impairment, the board may compel
the
individual to submit to a mental or physical examination, or
both. The expense of the examination is the
responsibility of the individual
compelled to be examined. Any
mental or physical examination required under this division shall
be undertaken by a treatment provider or physician who is qualified to
conduct the examination and who is chosen by the
board.
Failure to submit to a mental or physical
examination ordered by the board constitutes an admission of the
allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and
final order may be entered without the taking of testimony or
presentation of evidence. If the board determines that the
individual's ability to practice is impaired, the board shall
suspend the individual's certificate or deny the
individual's application and shall require
the individual, as a condition for initial, continued,
reinstated, or renewed certification to practice, to
submit to treatment.
Before being eligible to apply for reinstatement of a
certificate suspended under this division, the
impaired practitioner shall
demonstrate to the board the ability
to resume practice in
compliance with acceptable and prevailing standards of care under
the provisions of the practitioner's certificate. The
demonstration shall
include, but shall not be limited to, the following:
(a) Certification from a treatment provider approved under
section 4731.25 of the Revised Code that the
individual has
successfully completed any required inpatient treatment;
(b) Evidence of continuing full compliance with an
aftercare contract or consent agreement;
(c) Two written reports indicating that the individual's
ability to practice has been assessed and that the individual has
been found capable of practicing according to acceptable and prevailing
standards of care. The reports shall be made by individuals or
providers approved by the board for making the assessments and
shall describe the basis for their determination.
The board may reinstate a certificate suspended under
this
division after that demonstration and after the individual has
entered into a written consent agreement.
When the impaired practitioner resumes practice, the board shall
require continued
monitoring of the individual. The
monitoring shall include, but not be
limited to, compliance with the written consent agreement entered
into before reinstatement or with conditions imposed by board
order after a hearing, and, upon termination of the consent
agreement, submission to the board for at least two years of
annual written progress reports made under penalty of perjury
stating whether the individual has maintained
sobriety.
(27) A second or subsequent violation of section 4731.66
or 4731.69 of the Revised Code;
(28) Except as provided in division (N) of this section:
(a) Waiving the payment of all or any part of a
deductible or copayment that a patient, pursuant to a health
insurance or health care policy, contract, or plan that covers
the individual's services, otherwise would be
required
to pay if the waiver is used as an enticement to a patient or group of
patients to receive health care services from that
individual;
(b) Advertising that the individual will waive the
payment of all or
any part of a deductible or copayment that a patient, pursuant to
a health insurance or health care policy, contract, or plan that
covers the individual's services, otherwise would
be
required to pay.
(29) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of the Revised Code;
(30) Failure of a collaborating physician to perform
the responsibilities agreed to by the
physician in the protocol
established between the physician and an advanced practice nurse
in accordance with section 4723.56 of the Revised Code;
(31) Failure to provide notice to, and receive
acknowledgment of the
notice from, a patient when required by section 4731.143 of the Revised Code
prior to providing nonemergency professional services, or failure to maintain
that notice in the patient's file;
(32) Failure of a physician supervising a physician assistant to
maintain supervision in accordance with the requirements of Chapter
4730. of the Revised Code and the rules adopted under that chapter;
(33) Failure of a physician or podiatrist to maintain a standard care
arrangement with a clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner with whom the physician or podiatrist is in
collaboration pursuant to section 4731.27 of the Revised Code and practice in
accordance with the arrangement;
(34) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code;
(35) Failure to cooperate in an investigation conducted by
the board under division (F) of this section, including
failure to comply with a subpoena or order issued by the board
or failure to answer truthfully a question presented by the
board at a deposition or in written interrogatories, except that
failure to cooperate with an investigation shall not constitute
grounds for discipline under this section if a court of
competent jurisdiction has issued an order that either quashes a
subpoena or permits the individual to withhold the testimony or
evidence in issue.
(C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under Chapter 119. of the Revised Code, except that in lieu of an
adjudication, the board may enter into a consent agreement with an
individual to resolve an allegation of a violation of this chapter or any rule
adopted under it. A consent agreement, when ratified by an
affirmative vote of not fewer than six members of the board,
shall constitute the findings and order of the board with
respect to the matter addressed in the agreement. If the board
refuses to ratify a consent agreement, the admissions and
findings contained in the consent agreement shall be of no force
or effect.
(D) For purposes of divisions (B)(10), (12), and (14) of this
section, the commission of the act may be established by a
finding by the board, pursuant to an adjudication under
Chapter 119. of the Revised Code, that the individual committed the act.
The board
does not have jurisdiction under those divisions if
the trial court renders a final judgment in the individual's favor and
that judgment is based upon an
adjudication on
the merits. The board has jurisdiction under those
divisions if the trial court issues an order of
dismissal upon technical or procedural grounds.
(E) The sealing of conviction records by any court shall have
no effect upon a prior board order entered under this section
or upon the board's jurisdiction to take action under this section if,
based upon a plea of guilty,
a judicial finding of guilt, or a
judicial finding of eligibility for treatment in
lieu of conviction, the board issued a notice of opportunity for
a hearing prior to the court's order to seal the records. The
board shall not be required to seal, destroy, redact, or
otherwise modify its records to reflect the court's sealing of
conviction records.
(F)(1) The board shall investigate evidence that appears
to show that a person has violated any provision of this
chapter or any rule adopted under it. Any person may report to the board
in a signed writing
any information that the person may have that appears to show a
violation of any provision of this chapter or any rule
adopted under it. In the absence of bad
faith, any person who reports information of that nature or who testifies
before the board in any adjudication conducted under
Chapter 119. of the Revised Code shall not be liable
in damages in a civil action as a result of the report or
testimony. Each
complaint or allegation of a violation received by the
board shall be assigned a case number and shall be recorded by
the board.
(2) Investigations of alleged violations of this chapter or any rule
adopted under it shall
be supervised by the supervising member elected by the board in
accordance with section 4731.02 of the Revised Code and by the
secretary as provided in section 4731.39 of the Revised Code. The president
may designate another member of the board to
supervise the investigation in place of the supervising member. No member of
the board who supervises the investigation of a case
shall participate in further adjudication of the case.
(3) In investigating a possible violation of
this chapter or any rule adopted
under this chapter, the board
may administer oaths, order the taking of depositions, issue
subpoenas, and compel the attendance of witnesses and production
of books, accounts, papers, records, documents, and testimony, except
that a
subpoena for patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member
of the board. Before issuance of a
subpoena for patient record information, the
secretary and supervising member shall
determine
whether there is probable cause to believe that the complaint filed alleges a
violation of this chapter or any rule adopted under it and that the records
sought are relevant
to the alleged violation and material to the investigation.
The subpoena may apply only to records that cover a
reasonable period of time surrounding the
alleged violation.
On failure to comply with any subpoena
issued by the board and after reasonable notice to the person
being subpoenaed, the board may move for an order compelling the
production of persons or records pursuant to the Rules of Civil
Procedure.
A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board. Service of a subpoena issued by the board may be
made by delivering a copy of the subpoena to the
person named therein, reading it to the person, or leaving it at
the person's usual place of residence. When the person being
served is a person whose practice is authorized by this chapter,
service of the subpoena may be made by certified mail,
restricted delivery, return receipt requested, and the subpoena
shall be deemed served on the date delivery is made or the date
the person refuses to accept delivery.
A sheriff's deputy who serves a subpoena shall receive the same fees as a
sheriff. Each witness who
appears before the board in
obedience to a subpoena shall receive the fees
and mileage provided for witnesses in civil cases in the courts
of common pleas.
(4) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.251 of
the Revised Code.
(5) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any civil
action.
The board shall conduct all investigations and proceedings
in a manner that protects the
confidentiality of patients and persons who file complaints with the
board. The
board shall not make public the names or any other identifying
information about patients or complainants unless proper consent is
given or, in the case of a patient, a
waiver of the patient privilege exists under division (B) of
section 2317.02 of the Revised Code, except that consent
or a waiver of that nature is not required if the board
possesses reliable and
substantial evidence that no bona fide physician-patient
relationship exists.
The board may
share any information it receives pursuant to an investigation, including
patient records and patient record
information, with other licensing boards and governmental agencies
that are investigating alleged professional misconduct and with law
enforcement agencies and other governmental
agencies that are investigating or prosecuting alleged criminal offenses. A
board or agency that receives the information shall comply with the same
requirements regarding confidentiality as those with which the state medical
board must comply, notwithstanding any conflicting provision
of the Revised Code or procedure
of the board or agency that applies when the board or agency is dealing with
other information in its possession. The information may
be admitted into evidence in a criminal trial in accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that
confidentiality is maintained with respect to any part of the information that
contains names or other identifying information about patients or complainants
whose confidentiality was protected by the state medical board when the
information was in the board's possession. Measures to ensure confidentiality
that may be taken by the court include sealing its records or deleting
specific information
from its records.
(6) On a quarterly basis, the board shall prepare a report
that documents the disposition of all cases during the preceding
three months. The report shall contain the following information
for each case with which the board has completed its activities:
(a) The case number assigned to the complaint or alleged
violation;
(b) The type of certificate to practice, if
any, held by the individual against whom the complaint is
directed;
(c) A description of the allegations contained in the
complaint;
(d) The disposition of the case.
The report shall state how many cases are still pending
and shall be prepared in a manner that
protects the identity
of each person involved in each case. The report shall be a
public record under section 149.43 of the Revised Code.
(G) If the secretary and supervising member determine that
there is clear and convincing evidence that
an individual has violated division (B) of this section and that the
individual's continued practice presents a
danger of
immediate and serious harm to the public, they may recommend that
the board suspend the individual's
certificate to practice without a
prior hearing. Written allegations shall be prepared for consideration by the
board.
The board, upon review of those allegations and by an
affirmative vote
of not fewer than six of its members, excluding the secretary and
supervising member, may suspend a certificate without a prior
hearing. A telephone conference call may be utilized for
reviewing the allegations and taking the vote on the
summary suspension.
The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to
suspension
by the court during pendency of any appeal filed under section
119.12 of the Revised Code. If the individual
subject to the summary suspension requests
an adjudicatory hearing by the board, the date set for the
hearing shall be within fifteen days, but not earlier than seven
days, after the individual
requests the hearing,
unless otherwise agreed to by both the board and the individual.
Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code becomes effective. The
board shall issue its final adjudicative order within sixty days
after completion of its hearing. A failure to issue the order
within sixty days shall result in dissolution of the summary
suspension order but shall not invalidate any subsequent, final
adjudicative order.
(H) If the board takes action under division
(B)(9), (11), or (13) of this section and the judicial
finding of guilt, guilty plea, or judicial finding of
eligibility for treatment in lieu of conviction is overturned on appeal,
upon
exhaustion of the criminal appeal, a petition for reconsideration
of the order may be filed with the board along with appropriate
court documents. Upon receipt of a petition of that
nature and supporting court documents, the board shall reinstate the
individual's certificate to practice. The
board may then hold an adjudication under Chapter 119. of the Revised Code to
determine whether the individual
committed
the act in question. Notice of an opportunity for a hearing
shall be given in accordance with Chapter 119. of the Revised Code. If the
board finds, pursuant to an adjudication held under this division,
that the individual committed
the act or if
no hearing is requested, the board may order any of the sanctions
identified under division (B) of this section.
(I) The certificate to practice issued to an individual under
this chapter and the individual's practice in this
state are automatically suspended as of the date the individual pleads
guilty to, is found by a judge
or jury to be guilty of, or is subject to a judicial
finding of eligibility for INTERVENTION IN LIEU OF CONVICTION IN THIS STATE
OR treatment OR INTERVENTION in lieu of conviction IN ANOTHER
STATE for
any of the following
criminal offenses in this state or a
substantially equivalent criminal offense in another jurisdiction: aggravated
murder, murder, voluntary
manslaughter, felonious assault, kidnapping, rape, sexual
battery, gross sexual imposition, aggravated arson, aggravated
robbery, or aggravated burglary. Continued
practice after suspension shall be considered practicing
without a certificate.
The board shall notify the
individual subject to the suspension by certified mail or in person in
accordance with section 119.07 of the Revised Code. If an
individual whose certificate is suspended under this
division fails to make a timely request for an adjudication under
Chapter 119. of the Revised Code,
the board shall enter a final order permanently revoking the
individual's certificate to practice.
(J) If the board is required by
Chapter 119. of the Revised Code to give notice of an
opportunity for a hearing and if the individual subject to the notice
does not timely request a
hearing in accordance with section
119.07 of the Revised Code, the board is not required
to hold a hearing, but may adopt, by an affirmative vote of
not fewer than
six of its members, a final order that contains the board's
findings. In that final order, the board may order any of the
sanctions identified under division
(A) or (B) of this section.
(K) Any action taken by the board under division (B) of
this section resulting in a suspension from practice shall be
accompanied by a written statement of the conditions under which
the individual's certificate to practice may be
reinstated. The board
shall adopt rules governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative vote of
not fewer than six members of the board.
(L) When the board
refuses to grant a certificate to an applicant,
revokes an individual's
certificate to practice, refuses to register an applicant, or
refuses to reinstate an individual's certificate to practice,
the board may specify that its action is permanent. An
individual subject to a permanent action taken by the board is
forever thereafter ineligible to hold a certificate to practice
and the board shall not accept an application for reinstatement of the
certificate or for issuance of a new certificate.
(M) Notwithstanding any other provision of the Revised
Code, all of the following apply:
(1) The surrender of a certificate issued under this
chapter shall not be effective
unless or until accepted by the board. Reinstatement of a
certificate surrendered to the board requires an affirmative vote
of not fewer than six members of the board.
(2) An application for a certificate made
under the
provisions of this chapter
may not be withdrawn without approval of the board.
(3) Failure by an individual to renew a certificate
of registration in accordance with this chapter shall not remove or limit the
board's
jurisdiction to take any disciplinary action under this section
against the individual.
(N) Sanctions shall not be imposed under division
(B)(28) of this section against any person who
waives deductibles and copayments as follows:
(1) In compliance with the health benefit plan that
expressly allows such a practice. Waiver of the deductibles or
copayments shall be made only with the full knowledge and consent of
the plan purchaser, payer, and third-party administrator. Documentation of
the consent shall be made available to the board upon request.
(2) For professional services rendered to any other person
authorized to practice pursuant to this chapter,
to the extent allowed by this
chapter and rules adopted by the board.
(O) Under the board's investigative duties described in
this
section and subject to division (F) of this section, the
board shall
develop and implement a quality intervention program designed to improve
through remedial
education the clinical and communication skills of individuals authorized
under this chapter to practice medicine and surgery, osteopathic medicine and
surgery, and podiatry. In
developing and implementing the quality intervention program, the board may do
all of the following:
(1) Offer in appropriate cases as determined by the board an educational
and assessment program pursuant to an investigation the
board conducts under this section;
(2) Select providers of educational and assessment services, including a
quality intervention program panel of case reviewers;
(3) Make referrals to educational and
assessment service providers and
approve individual educational programs recommended by those providers. The
board shall monitor the progress of each individual
undertaking a recommended individual educational
program.
(4) Determine what constitutes successful completion of an
individual educational program and require further monitoring of the
individual who completed the program or other
action that the board determines to be appropriate;
(5) Adopt rules in accordance with Chapter 119. of the Revised Code to
further
implement the quality intervention program.
An individual who participates in an individual
educational program pursuant
to this division shall pay the financial obligations arising from that
educational program.
Sec. 5120.031. (A) As used in this section:
(1) "Certificate of high school equivalence" means a
statement that is issued by the state board of education or an
equivalent agency of another state and that indicates that its
holder has achieved the equivalent of a high school education as
measured by scores obtained on the tests of general educational
development published by the American council on education.
(2) "Certificate of adult basic education" means a
statement that is issued by the department of rehabilitation and
correction through the Ohio central school system approved by the
state board of education and that indicates that its holder has
achieved a 6.0 grade level, or higher, as measured by scores of
nationally standardized or recognized tests.
(3) "Deadly weapon" and "firearm" have the same meanings
as in section 2923.11 of the Revised Code.
(4) "Eligible offender" means a person, other than one who is
ineligible to participate in an
intensive program prison under the criteria specified in section 5120.032 of
the Revised Code, who has been
convicted of or pleaded guilty to, and has
been sentenced for, a felony.
(5) "Shock incarceration" means the program of
incarceration that is established pursuant to the rules of the
department of rehabilitation and correction adopted under this
section.
(B)(1) The director of rehabilitation and correction, by
rules adopted under Chapter 119. of the Revised Code, shall
establish a pilot program of shock incarceration that may be used
for eligible offenders who are sentenced to serve a term of
imprisonment under the custody of the department of
rehabilitation and correction and whom the department, subject to
the approval of the sentencing judge, may permit
to serve their sentence as a sentence of shock incarceration in
accordance with this section.
(2) The rules for the pilot program shall require that the
program be established at an appropriate state correctional
institution designated by the director and that the program
consist of both of the following for each eligible offender
whom
the department, with the approval of the sentencing
judge, permits to serve the eligible offender's sentence
as a sentence of
shock incarceration:
(a) A period of imprisonment at that institution of ninety
days that shall consist of a military style combination of
discipline, physical training, and hard labor and substance abuse
education, employment skills training, social skills training,
and psychological treatment. During the ninety-day period, the
department may permit an eligible offender to participate in a
self-help program. Additionally, during the ninety-day period,
an eligible offender who holds a high school diploma or a
certificate of high school equivalence may be permitted to tutor
other eligible offenders in the shock incarceration program. If
an eligible offender does not hold a high school diploma or
certificate of high school equivalence, the eligible offender may
elect to
participate in an education program that is designed to award a
certificate of adult basic education or an education program that
is designed to award a certificate of high school equivalence to
those eligible offenders who successfully complete the education
program, whether the completion occurs during or subsequent to
the ninety-day period. To the extent possible, the department
shall use as teachers in the education program persons who have
been issued a license pursuant to sections 3319.22 to 3319.31
of the Revised Code, who have volunteered their services to the
education program, and who satisfy any other criteria specified
in the rules for the pilot project.
(b) Immediately following the ninety-day period of
imprisonment, and notwithstanding any other provision governing
the early release of a prisoner from
imprisonment or the transfer of a prisoner to transitional control, one
of the following, as determined by the director:
(i) An intermediate, transitional type of detention
for the period of time determined by the director
and, immediately following the intermediate, transitional
type of detention, a release under a post-release control
sanction imposed in accordance with section 2967.28 of the
Revised
Code. The period of
intermediate, transitional type of detention imposed by the
director under this division may be in a halfway house, in a
community-based correctional facility and program or district
community-based correctional facility and program established
under sections 2301.51 to 2301.56 of the Revised Code, or in any
other facility approved by the director that provides for
detention to serve as a transition between imprisonment in a
state correctional institution and release from imprisonment.
(ii) A release under a
post-release control sanction imposed in accordance
with section 2967.28 of the Revised Code.
(3) The rules for the pilot program also shall include,
but are not limited to, all of the following:
(a) Rules identifying the locations within the state
correctional institution designated by the director that will be
used for eligible offenders serving a sentence of shock
incarceration;
(b) Rules establishing specific schedules of discipline,
physical training, and hard labor for eligible offenders serving
a sentence of shock incarceration, based upon the offender's
physical condition and needs;
(c) Rules establishing standards and criteria for the
department to use in determining which eligible offenders the
department will permit to serve their sentence of imprisonment as
a sentence of shock incarceration;
(d) Rules establishing
guidelines
for the selection of post-release control sanctions for
eligible
offenders;
(e) Rules establishing procedures for
notifying
sentencing courts of the performance of eligible offenders
serving their sentences of imprisonment as a sentence of shock
incarceration;
(f) Any other rules that are necessary for
the proper conduct of the pilot program.
(C)(1) Subject to disapproval by the sentencing judge, if IF
an eligible offender is sentenced to a term of
imprisonment under the custody of the department,
IF THE SENTENCING COURT DETERMINED THAT THE OFFENDER IS ELIGIBLE FOR
PLACEMENT
IN A PROGRAM OF SHOCK INCARCERATION UNDER THIS SECTION, AND IF THE SENTENCING
COURT EITHER RECOMMENDS THE OFFENDER FOR PLACEMENT IN A PROGRAM OF SHOCK
INCARCERATION OR MAKES NO RECOMMENDATION ON PLACEMENT OF THE
OFFENDER, the department may permit
the eligible offender to serve the
sentence as a sentence IN A PROGRAM of shock incarceration, in
accordance WITH DIVISION (J) OF SECTION 2929.14 of the Revised Code,
with this section,
and WITH the rules adopted under this section. At
IF THE SENTENCING COURT RECOMMENDS THE OFFENDER FOR PLACEMENT IN A PROGRAM
OF SHOCK INCARCERATION AND THE DEPARTMENT SUBSEQUENTLY PLACES THE OFFENDER IN
THE RECOMMENDED PROGRAM, THE DEPARTMENT SHALL NOTIFY THE COURT OF THE
OFFENDER'S PLACEMENT IN THE RECOMMENDED PROGRAM AND SHALL INCLUDE WITH THE
NOTICE A BRIEF DESCRIPTION OF THE PLACEMENT.
IF THE SENTENCING COURT APPROVES PLACEMENT OF THE OFFENDER IN A PROGRAM OF
SHOCK INCARCERATION AND THE DEPARTMENT DOES NOT SUBSEQUENTLY PLACE THE
OFFENDER
IN THE RECOMMENDED PROGRAM, THE DEPARTMENT SHALL SEND A NOTICE TO THE COURT
INDICATING WHY THE OFFENDER WAS NOT PLACED IN THE RECOMMENDED PROGRAM.
IF THE SENTENCING COURT DOES NOT MAKE A RECOMMENDATION ON THE PLACEMENT OF
AN
ELIGIBLE OFFENDER IN A PROGRAM OF SHOCK INCARCERATION, THE DEPARTMENT SHALL
SCREEN THE OFFENDER AND DETERMINE IF THE OFFENDER IS SUITED FOR THE PROGRAM OF
SHOCK INCARCERATION. IF THE OFFENDER IS SUITED FOR THE PROGRAM OF SHOCK
INCARCERATION, AT
least three weeks prior to
permitting an eligible
offender to serve a THE sentence IN A PROGRAM of
shock incarceration, the department shall notify the sentencing judge
COURT of
the proposed shock incarceration and of the fact that the
judge may disapprove it PLACEMENT OF THE OFFENDER IN THE PROGRAM AND
SHALL INCLUDE WITH THE NOTICE A BRIEF DESCRIPTION OF THE PLACEMENT. THE COURT
SHALL HAVE TEN DAYS FROM RECEIPT OF THE NOTICE TO DISAPPROVE THE
PLACEMENT. If the sentencing judge COURT
disapproves of shock incarceration for the eligible offender, the judge
shall notify the department of the disapproval within ten days after
receipt of the
notice, and THE PLACEMENT, the department shall not permit
the eligible offender to
serve a THE sentence IN A PROGRAM of shock incarceration.
If the judge does not timely
disapprove of PLACEMENT OF THE OFFENDER IN THE PROGRAM OF shock
incarceration for the eligible offender, the department
may proceed with plans for the shock incarceration PLACEMENT OF THE
OFFENDER.
IF THE SENTENCING COURT DETERMINED THAT THE OFFENDER IS NOT ELIGIBLE FOR
PLACEMENT IN A PROGRAM OF SHOCK INCARCERATION OR IF THE SENTENCING COURT
DISAPPROVES PLACEMENT OF THE OFFENDER IN A PROGRAM OF THAT NATURE, THE
DEPARTMENT OF REHABILITATION AND CORRECTION SHALL NOT PLACE THE OFFENDER IN ANY
PROGRAM OF SHOCK INCARCERATION.
(2) If the department permits an eligible offender to
serve the eligible offender's sentence of imprisonment as a sentence
of shock incarceration and the eligible offender does not satisfactorily
complete the entire period of imprisonment described in division
(B)(2)(a) of this section, the offender shall be removed from the pilot
program for shock incarceration and shall be required to serve the remainder
of the offender's sentence of imprisonment imposed by the sentencing
court
as a regular term of imprisonment. If the eligible offender
commences a period of post-release control
described in division
(B)(2)(b) of this section and violates the conditions of
that post-release control, the eligible offender shall be
subject to the provisions of
sections 2967.15 and 2967.28 of the
Revised Code regarding violation of post-release control sanctions.
(3) If an eligible offender's
stated
prison term expires at any time during the eligible offender's
participation in
the shock
incarceration program, the adult parole authority shall terminate
the eligible offender's
participation in the program and shall issue to the eligible
offender a certificate
of expiration of the stated prison
term.
(D) The director shall keep sentencing courts informed of
the performance of eligible offenders serving their sentences of
imprisonment as a sentence of shock incarceration, including, but
not limited to, notice of eligible offenders who fail to
satisfactorily complete their entire sentence of shock
incarceration or who satisfactorily complete their entire
sentence of shock incarceration.
(E) Within a reasonable period of time after November
20,
1990, the
director shall appoint a committee to
search for one or more suitable sites at which one or more
programs of shock incarceration, in addition to the pilot program
required by division (B)(1) of this section, may be established. The search
committee shall consist of the director or the director's
designee, as chairperson; employees of the department
of
rehabilitation and correction appointed by the director; and any
other persons that the director, in the director's discretion,
appoints. In
searching for such sites, the search committee shall give
preference to any site owned by the state or any other
governmental entity and to any existing structure that reasonably
could be renovated, enlarged, converted, or remodeled for
purposes of establishing such a program. The search committee
shall prepare a report concerning its activities and, on the
earlier of the day that is twelve months after the first day on
which an eligible offender began serving a sentence of shock
incarceration under the pilot program or January 1, 1992, shall
file the report with the president and the minority leader of the
senate, the speaker and the minority leader of the house of
representatives, the members of the senate who were members of
the senate judiciary committee in the 118th general assembly or
their successors, and the members of the house of representatives
who were members of the select committee to hear drug legislation
that was established in the 118th general assembly or their
successors. Upon the filing of the report, the search committee
shall terminate. The report required by this division shall
contain all of the following:
(1) A summary of the process used by the search committee
in performing its duties under this division;
(2) A summary of all of the sites reviewed by the search
committee in performing its duties under this division, and the
benefits and disadvantages it found relative to the establishment
of a program of shock incarceration at each such site;
(3) The findings and recommendations of the search
committee as to the suitable site or sites, if any, at which a
program of shock incarceration, in addition to the pilot program
required by division (B)(1) of this section, may be established.
(F) The director periodically shall review the pilot
program for shock incarceration required to be established by
division (B)(1) of this section. The director shall prepare a
report relative to the pilot program and, on the earlier of the
day that is twelve months after the first day on which an
eligible offender began serving a sentence of shock incarceration
under the pilot program or January 1, 1992, shall file the report
with the president and the minority leader of the senate, the
speaker and the minority leader of the house of representatives,
the members of the senate who were members of the senate
judiciary committee in the 118th general assembly or their
successors, and the members of the house of representatives who
were members of the select committee to hear drug legislation
that was established in the 118th general assembly or their
successors. The pilot program shall not terminate at the time of
the filing of the report, but shall continue in operation in
accordance with this section. The report required by this
division shall include all of the following:
(1) A summary of the pilot program as initially
established, a summary of all changes in the pilot program made
during the period covered by the report and the reasons for the
changes, and a summary of the pilot program as it exists on the
date of preparation of the report;
(2) A summary of the effectiveness of the pilot program,
in the opinion of the director and employees of the department
involved in its operation;
(3) An analysis of the total cost of the pilot program, of
its cost per inmate who was permitted to serve a sentence of
shock incarceration and who served the entire sentence of shock
incarceration, and of its cost per inmate who was permitted to
serve a sentence of shock incarceration;
(4) A summary of the standards and criteria used by the
department in determining which eligible offenders were permitted
to serve their sentence of imprisonment as a sentence of shock
incarceration;
(5) A summary of the characteristics of the eligible
offenders who were permitted to serve their sentence of
imprisonment as a sentence of shock incarceration, which summary
shall include, but not be limited to, a listing of every offense
of which any such eligible offender was convicted or to which any
such eligible offender pleaded guilty and in relation to which the
eligible offender
served a sentence of shock incarceration, and the total number of
such eligible offenders who were convicted of or pleaded guilty
to each such offense;
(6) A listing of the number of eligible offenders who were
permitted to serve a sentence of shock incarceration and who did
not serve the entire sentence of shock incarceration, and, to the
extent possible, a summary of the length of the terms of
imprisonment served by such eligible offenders after they were
removed from the pilot program;
(7) A summary of the effect of the pilot program on
overcrowding at state correctional institutions;
(8) To the extent possible, an analysis of the rate of
recidivism of eligible offenders who were permitted to serve a
sentence of shock incarceration and who served the entire
sentence of shock incarceration;
(9) Recommendations as to legislative changes to the pilot
program that would assist in its operation or that could further
alleviate overcrowding at state correctional institutions, and
recommendations as to whether the pilot program should be
expanded.
Sec. 5120.032. (A) No later than January 1, 1998, the department of
rehabilitation and correction shall
develop and implement intensive program prisons for male and female prisoners
other than prisoners described in division (B)(2) of this section. The
intensive program prisons shall include institutions at which
imprisonment of the type described in division
(B)(2)(a) of
section 5120.031 of the Revised Code is provided and prisons that focus on
educational achievement, vocational training, alcohol and other drug abuse
treatment, community service and conservation work, and other intensive
regimens or combinations of intensive regimens.
(B)(1)(a) Except as provided in division
(B)(2) of this
section, IF THE SENTENCING COURT DETERMINES THAT A PRISONER IS ELIGIBLE FOR
PLACEMENT IN AN INTENSIVE PROGRAM PRISON UNDER THIS SECTION AND THE SENTENCING
COURT EITHER RECOMMENDS THE OFFENDER FOR PLACEMENT IN THE INTENSIVE PROGRAM
PRISON OR MAKES NO RECOMMENDATION ON PLACEMENT OF THE PRISONER, the
department may place a THE prisoner in an
intensive
program prison established pursuant to division (A) of this section
subject to the approval of the sentencing judge. At
IF THE SENTENCING COURT RECOMMENDS A PRISONER FOR PLACEMENT IN AN INTENSIVE
PROGRAM PRISON AND THE DEPARTMENT SUBSEQUENTLY PLACES THE PRISONER IN THE
RECOMMENDED PRISON, THE DEPARTMENT SHALL NOTIFY THE COURT OF THE PRISONER'S
PLACEMENT IN THE RECOMMENDED INTENSIVE PROGRAM PRISON AND SHALL INCLUDE WITH
THE NOTICE A BRIEF DESCRIPTION OF THE PLACEMENT.
IF THE SENTENCING COURT APPROVES PLACEMENT OF A PRISONER IN AN INTENSIVE
PROGRAM PRISON AND THE DEPARTMENT DOES NOT SUBSEQUENTLY PLACE THE OFFENDER IN
THE RECOMMENDED PRISON, THE DEPARTMENT SHALL SEND A NOTICE TO THE COURT
INDICATING WHY THE PRISONER WAS NOT PLACED IN THE RECOMMENDED PRISON.
IF THE SENTENCING COURT DOES NOT MAKE A RECOMMENDATION ON THE PLACEMENT OF
AN ELIGIBLE PRISONER IN AN INTENSIVE PROGRAM PRISON, THE DEPARTMENT SHALL
SCREEN THE PRISONER AND DETERMINE IF THE PRISONER IS SUITED FOR THE PRISON.
IF
THE PRISONER IS SUITED FOR THE INTENSIVE PROGRAM PRISON, AT
least
three weeks prior to placing a THE prisoner in an
intensive program THE prison, the department shall give notice
of the placement and of the fact that the judge
may disapprove the placement NOTIFY THE SENTENCING COURT OF THE
PROPOSED PLACEMENT OF THE PRISONER IN THE INTENSIVE PROGRAM PRISON AND SHALL
INCLUDE WITH THE NOTICE A BRIEF DESCRIPTION OF THE PLACEMENT. THE COURT SHALL
HAVE TEN DAYS FROM RECEIPT OF THE NOTICE TO DISAPPROVE THE PLACEMENT. If
the judge SENTENCING COURT disapproves the placement, the
judge shall notify the department of the disapproval within ten days after
receipt of the notice. If the judge timely disapproves the placement, the
department shall not proceed with it. If the judge SENTENCING
COURT does not timely disapprove
of the placement, the department may proceed with plans for it.
IF THE SENTENCING COURT DETERMINES THAT A PRISONER IS NOT ELIGIBLE FOR
PLACEMENT IN AN INTENSIVE PROGRAM PRISON OR IF THE SENTENCING COURT
DISAPPROVES PLACEMENT OF AN OFFENDER IN A PRISON OF THAT NATURE, THE
DEPARTMENT OF REHABILITATION AND CORRECTION SHALL NOT PLACE THE PRISONER IN
ANY INTENSIVE PROGRAM PRISON.
(b) The department may reduce the stated prison term
of a prisoner upon the prisoner's successful completion of a
ninety-day period in an intensive program prison. A prisoner whose term has
been so reduced
shall be required to serve an intermediate, transitional type of detention
followed by a release under post-release control sanctions or, in the
alternative, shall be placed under post-release control sanctions, as
described in division (B)(2)(b)(ii) of section 5120.031
of the Revised Code. In either case, the placement under post-release control
sanctions
shall be under terms
set by the
parole board in accordance with section 2967.28 of the Revised Code and shall
be
subject to
the provisions of that section with respect to a violation of any
post-release
control sanction.
(2) A prisoner who is in any of the following categories is
not eligible
to participate in an intensive program prison established pursuant to
division (A) of this section:
(a) The prisoner is serving a prison term for
aggravated murder,
murder, or a felony of the first or second degree or a comparable
offense under the
law in effect prior to the effective date of this section
JULY 1, 1996, or the prisoner previously has
been imprisoned for aggravated murder, murder, or a felony of the first or
second degree or a comparable offense under the law in effect prior to
the effective date of this section JULY 1,
1996.
(b) The prisoner is serving a mandatory prison term, as defined
in section 2929.01 of the Revised Code.
(c) The prisoner is serving a prison term for a felony of the
third, fourth, or fifth degree that either is a sex offense, an offense
betraying public trust, or an offense in which the prisoner caused or
attempted to cause actual physical harm to a person, the prisoner is serving a
prison term for a comparable offense under the law in effect prior to the
effective date of this section JULY 1,
1996, or the prisoner previously has been imprisoned for an offense
of that type or a comparable offense under the law in effect prior to the
effective date of this section JULY 1,
1996.
(d) The prisoner is serving a mandatory prison term in prison for a fouth
degree felony OMVI offense, as defined in section 2929.01 of the
Revised Code, that was imposed pursuant to division (G)(2) of section
2929.13 of the Revised Code.
(C) Upon the implementation of intensive program prisons pursuant to division
(A) of this section, the department at all times shall maintain intensive
program prisons sufficient in number to reduce the prison terms of at least
three hundred fifty prisoners who are eligible for reduction of their stated
prison terms as a result of their completion of a regimen in an intensive
program prison under
this section.
Section 2. That existing sections 2901.04, 2923.02, 2925.02,
2925.03, 2925.04, 2925.05, 2925.11, 2925.23, 2925.36, 2927.24,
2929.01, 2929.12, 2929.13, 2929.14, 2929.15, 2929.17, 2929.18, 2929.19,
2929.20, 2929.223, 2935.36, 2937.99, 2941.141, 2941.144, 2941.145, 2941.146,
2941.1410, 2949.08, 2951.02, 2953.08, 2967.131, 2967.141, 2967.16, 2967.26,
2967.28,
3719.121, 3719.70, 3719.99, 4715.30, 4729.99, 4730.25, 4731.22,
5120.031, and 5120.032 and sections 2929.181 and 2951.041 of the Revised Code
are hereby repealed.
Section 3. The General Assembly hereby declares that the repeal
of section 2929.181 of the Revised Code in Section 2 of this act
is intended to be a ratification of the repeal of section
2929.181 of the Revised Code by Am. Sub. S.B. 269 of the 121st
General Assembly, which was effective on July 1, 1996, and that
section 2929.181 of the Revised Code, as enacted by Am. Sub.
S.B. 2 of the 121st General Assembly, is not currently in
effect.
Section 2929.181 of the Revised Code was enacted by Am. Sub.
S.B. 2 of the 121st General Assembly, which was effective on
July 1, 1996, was amended by Sub. H.B. 480 of the 121st General
Assembly, which was enacted on May 23, 1996, and effective on
October 16, 1996, and was repealed by Am. Sub. S.B. 269 of the
121st General Assembly, which was enacted on May 30, 1996, and
effective on July 1, 1996. The different enactment dates and
effective dates of Sub. H.B. 480 and Am. Sub. S.B. 269 of the
121st General Assembly have caused some confusion as to whether
section 2929.181 of the Revised Code continued in effect after
the effective date of Sub. H.B. 480 of the 121st General
Assembly, despite the repeal of the section by Am. Sub. S.B.
269.
It was the intent of the 121st General Assembly to repeal
section 2929.181 of the Revised Code effective on July 1, 1996,
by Am. Sub. S.B. 269 of the 121st General Assembly. This repeal
is supported by section 1.52 of the Revised Code, which provides
that, if statutes enacted by the same session of the General
Assembly are irreconcilable, the statute latest in date of
enactment prevails. Am. Sub. S.B. 269 of the 121st General
Assembly was enacted on May 30, 1996, seven days after the
enactment of Sub. H.B. 480 of the 121st General Assembly.
Therefore, the repeal of section 2929.181 of the Revised Code
contained in Am. Sub. S.B. 269 of the 122nd General Assembly
controlled over the amendment of that section by Sub. H.B. 480
of the 121st General Assembly, and the section was repealed
effective July 1, 1996.
Section 4. (A) Section 2929.01 of the Revised Code was amended by both
H.B. 378 and Am. Sub. S.B. 111 of the 122nd General
Assembly. Comparison of these amendments in pursuance of section 1.52 of the
Revised Code discloses that while certain of the amendments of these acts are
reconcilable, certain other of the amendments are substantively
irreconcilable. H.B. 378 was passed on November 13, 1997; S.B. 111 was passed
on November 18, 1997. Section 2929.01 of the Revised Code is therefore
presented in this act as it results
from S.B. 111 and such of the amendments of H.B. 378 as are not in conflict
with the amendments of S.B. 111. This is in
recognition of the principles stated in division (B) of section 1.52 of the
Revised Code that amendments are to be harmonized where not substantively
irreconcilable, and that where amendments are substantively irreconcilable,
the latest amendment is to prevail. This section constitutes a legislative
finding that such harmonized and reconciled section was the resulting version
in effect
prior to the effective date of this act.
(B)
Sections 2929.15 and 2929.17 of
the Revised Code are presented in this act as composites of the sections as
amended by both Am. Sub. S.B. 269 and Am. Sub. S.B. 166 of the 121st General
Assembly, with the new language of neither of the acts shown in capital
letters.
Section 2929.19 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. 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.
Section 2929.223 of the Revised
Code is presented in this act
as a composite of the section as amended by
both Sub. H.B. 480 and Am. Sub. S.B. 269 of the 121st
General Assembly, with the new language of
none of the acts shown in capital letters.
Section 5120.032 of the Revised
Code is presented in this act
as a composite of the section as amended by both
Am. Sub. S.B. 166 and Am. Sub. S.B. 269 of the 121st General Assembly, with
the new language of
neither 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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