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S. B. No. 122As IntroducedAs Introduced
124th General Assembly | Regular Session | 2001-2002 |
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SENATOR Oelslager
A BILL
To amend sections 2945.371, 2945.39, and 2945.401, to
revive and amend section 2945.38, and to repeal
section 2945.38 of the Revised Code as it results
from Am. Sub. S.B. 285 of the 121st General
Assembly relative to the determination of a
defendant's competency to stand trial and whether
or not there is a substantial probability that the
defendant will become competent to stand trial if
provided with a course of treatment.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2945.371, 2945.38, 2945.39, and
2945.401 of the Revised Code be amended to read as follows:
Sec. 2945.371. (A) If the issue of a defendant's
competence
to stand trial is raised or if a defendant enters a plea of not
guilty by reason of
insanity, the court may order one or more
evaluations of the defendant's
present mental condition
or, in the
case
of a plea of not guilty by reason of insanity, of the
defendant's mental
condition at the time of the offense charged.
An examiner shall conduct the
evaluation.
(B) If the court orders more than
one evaluation under
division (A) of
this section,
the prosecutor and the defendant may
recommend to the court an
examiner whom each prefers to perform
one of the
evaluations. If a defendant enters a plea of not
guilty by reason of
insanity and if the court does not designate
an examiner recommended by the
defendant, the court shall inform
the defendant that the defendant may have
independent expert
evaluation and that, if the defendant is unable to obtain
independent expert evaluation, it will be obtained for the
defendant at public
expense if the defendant is indigent. (C) If the court orders an evaluation under division
(A) of
this section,
the defendant shall be
available at the times and
places established by the examiners who are to
conduct the
evaluation.
The court may order a defendant
who has been released
on bail or recognizance to submit to an
evaluation under this
section. If a defendant who
has been
released on bail or
recognizance refuses to submit to a complete
evaluation, the court
may amend the conditions of
bail or
recognizance and order the
sheriff to take the defendant into
custody and deliver the
defendant to a center, program, or
facility
operated or certified
by the department of mental health or the department
of mental
retardation and developmental disabilities where
the defendant
may
be held for
evaluation for a reasonable period of time not to
exceed twenty
days. (D) A defendant who has not been released on bail or
recognizance may be evaluated at the
defendant's place of
detention. Upon the request of the
examiner, the court
may order
the sheriff to
transport the defendant to a program or facility
operated by the
department of mental health or the department of
mental
retardation and developmental disabilities, where the
defendant may be held
for evaluation for a reasonable period of
time not
to exceed
twenty days, and to return the defendant to the
place of
detention after the evaluation. A
municipal court may
make an order under this division only upon the
request of a
certified forensic
center examiner. (E) If a court orders the evaluation to determine a
defendant's
mental condition at the time of the offense charged,
the court shall inform
the examiner of the offense with which the
defendant is charged. (F) In conducting an evaluation of a defendant's mental
condition
at the time of the offense charged, the examiner shall
consider all relevant
evidence. If the offense charged involves
the use of force against another
person, the relevant evidence to
be considered includes, but is not limited
to, any evidence that
the defendant suffered, at the time of the commission of
the
offense, from the "battered woman syndrome." (G) The examiner shall file a written
report with the
court
within thirty days after entry of a court order for
evaluation,
and the court shall provide copies
of the report to the prosecutor
and defense counsel. The report shall
include all of the
following: (1) The examiner's findings; (2) The facts in reasonable detail on which the findings are
based; (3) If the evaluation was ordered to determine the
defendant's competence
to stand trial, all of the following
findings or recommendations that are
applicable: (a) Whether the defendant is capable of understanding the
nature
and objective of the proceedings against the defendant or
of assisting in the
defendant's defense; (b) If the examiner's opinion is that the defendant is
incapable
of understanding the nature and objective of the
proceedings against the
defendant
or of assisting in the
defendant's defense, whether the defendant presently is
mentally
ill or mentally retarded and, if the examiner's
opinion is that
the defendant presently is mentally retarded,
whether the
defendant appears to be a mentally retarded person
subject to
institutionalization by court order; (c)
If the examiner's opinion is that the defendant is
incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the
defendant's defense, the examiner's opinion as to the likelihood
of the defendant becoming capable of understanding the nature and
objective of the proceedings against the defendant or of assisting
in the defendant's defense within one year if the defendant is
provided with a course of treatment; (d) If the examiner's opinion is that the defendant is
incapable
of understanding the nature and objective of the
proceedings against the
defendant
or of assisting in the
defendant's defense and that the defendant presently is
mentally
ill or mentally retarded, the
examiner's recommendation as to the
least restrictive treatment alternative,
consistent with the
defendant's treatment needs for restoration to competency
and with
the safety of the community;. (4) If the evaluation was ordered to determine the
defendant's mental
condition at the time of the offense charged,
the examiner's findings as to
whether the defendant, at the
time
of the offense charged, did not know, as a result of a severe
mental
disease or defect, the wrongfulness of the defendant's acts
charged. (H) If
the examiner's report filed under division (G)
of
this section indicates that in the examiner's opinion the
defendant is
incapable of understanding the nature and objective
of the
proceedings against the defendant or of assisting in the
defendant's defense and that in the examiner's opinion
the
defendant appears to be
a mentally retarded person subject to
institutionalization by court order, the
court shall order the
defendant to undergo a separate mental retardation
evaluation
conducted by a psychologist designated by the director of mental
retardation and developmental disabilities. Divisions
(C) to (F)
of
this section apply in relation to a separate mental retardation
evaluation
conducted under this division. The psychologist
appointed under
this division to conduct the separate mental
retardation evaluation shall file
a written report with the court
within thirty days after the entry of the
court
order requiring
the separate mental retardation evaluation, and the court
shall
provide copies of the report to the prosecutor and defense
counsel. The
report
shall include all of the information
described in divisions
(G)(1) to (4) of this section. If the
court orders a separate mental
retardation evaluation of a
defendant
under this division, the court shall not conduct a
hearing under divisions
(B) to (H) of
section 2945.37 of the
Revised
Code regarding that defendant
until a report of the
separate mental retardation evaluation conducted under
this
division has been filed. Upon the filing of that report, the
court shall
conduct the hearing within the period of time
specified in division
(C) of section 2945.37 of the
Revised
Code. (I) An examiner appointed under
divisions (A) and (B) of
this section or under division
(H) of this section to evaluate a
defendant to determine the
defendant's competence to stand
trial
also may be
appointed to
evaluate a
defendant who has entered a
plea of not guilty by reason of
insanity, but an examiner of that
nature shall prepare
separate reports on
the issue of competence
to stand trial and the defense of not
guilty by reason of
insanity. (J) No statement that a defendant makes in an evaluation
or
hearing under divisions (A) to (H) of this section
relating to the
defendant's competence to stand trial or to the
defendant's mental
condition at the time of the offense charged shall be used
against
the defendant on the issue of guilt in any criminal action or
proceeding, but, in a criminal action or proceeding, the
prosecutor or defense
counsel may call as a witness any person who
evaluated the defendant or
prepared a report pursuant to a
referral under this section. Neither the
appointment nor the
testimony of an examiner appointed under this section
precludes
the prosecutor or defense counsel from calling other witnesses or
presenting other evidence on competency or insanity issues. (K) Persons appointed as examiners
under divisions (A) and
(B) of this section or under
division (H) of this section shall be
paid a reasonable amount for
their services and
expenses, as
certified by the court. The certified amount shall be paid by
the
county in the case of county courts and courts of common pleas and
by the
legislative authority, as defined in section 1901.03 of the
Revised Code,
in the case of municipal courts.
Sec. 2945.38. (A) If
the issue of a defendant's competence
to stand trial is raised and if the court
finds, upon
conducting
the hearing
provided for in section 2945.37 of the Revised Code,
finds that the
defendant is competent to stand trial, the
defendant
shall be
proceeded
against as provided by law. If the
court finds
the defendant
is found
competent
to stand trial and
the defendant
is receiving psychotropic drugs or
other
medication,
the court
shall
may authorize the continued
administration of the
drugs or
medication or other appropriate
treatment in order to
maintain the
defendant's competence to
stand
trial, unless the
defendant's
attending physician advises
the
court against
continuation of the
drugs, other medication, or
treatment. (B)(1) If, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent
to
stand trial, it shall also make a
finding based on the
evidence as
to whether
and that there is a
substantial probability that
the defendant
will become competent
to stand trial within one
year, if the
defendant is provided with
a course of treatment, the court shall order the defendant to
undergo treatment.
If the defendant has been charged with a felony
offense and if, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent to stand trial, but the court is unable
at that time to determine whether there is a substantial
probability that the defendant will become competent to stand
trial within one year if the defendant is provided with a course
of treatment, the court shall order continuing evaluation and
treatment of the defendant for a period not to exceed four months
to determine whether there is a substantial probability that the
defendant will become competent to stand trial within one year if
the defendant is provided with a course of treatment.
(2) The court order for the defendant to undergo treatment
or continuing evaluation and treatment under division (B)(1) of
this section shall specify that the treatment or continuing
evaluation and treatment shall occur at a facility operated by the
department of mental health or the department of mental
retardation and developmental disabilities, at a facility
certified by either of those departments as being qualified to
treat mental illness or mental retardation, at a public or private
community mental health or mental retardation facility, or by a
psychiatrist or another mental health or mental retardation
professional. The order may restrict the defendant's freedom of
movement as the court considers necessary. The prosecutor in the
defendant's case shall send to the chief clinical officer of the
hospital or facility, the managing officer of the institution, the
director of the program, or the person to which the defendant is
committed copies of relevant police reports and other background
information that pertains to the defendant and is available to the
prosecutor unless the prosecutor determines that the release of
any of the information in the police reports or any of the other
background information to unauthorized persons would interfere
with the effective prosecution of any person or would create a
substantial risk of harm to any person.
In determining placement alternatives, the court shall
consider the extent to which the person is a danger to the person
and to others, the need for security, and the type of crime
involved and shall order the least restrictive alternative
available that is consistent with public safety and treatment
goals. In weighing these factors, the court shall give preference
to protecting public safety.
(3) If the defendant is found incompetent to stand trial,
if the chief clinical officer of the hospital or facility, the
managing officer of the institution, the director of the program,
or the person to which the defendant is committed for treatment or
continuing evaluation and treatment under division (B)(2) of this
section determines that medication is necessary to restore the
defendant's competency to stand trial, and if the defendant lacks
the capacity to give informed consent or refuses medication, the
chief clinical officer, managing officer, director, or person to
which the defendant is committed for treatment or continuing
evaluation and treatment may petition for, and the court may
authorize, the involuntary administration of medication. (C) If the court finds that the defendant is incompetent
to
stand trial and that, even if the defendant is provided
with a
course of
treatment, there is not a substantial probability that
the
defendant will
become competent to stand trial within one
year,
and it appears
to the court, through a review of the report
of an examiner under
section 2945.371 of the Revised Code or
otherwise, that the
defendant is mentally ill or mentally
retarded
shall order the discharge of the defendant, unless upon motion of
the prosecutor or on its own motion, the court
may
cause
either
seeks to retain jurisdiction over the defendant pursuant to
section 2945.39 of the Revised Code or files an affidavit
to be
filed in the
probate court
under section
5122.11 or 5123.71
for
the civil commitment of the defendant pursuant to
Chapter 5122. or
5123. of the
Revised Code
alleging that the
defendant is a
mentally
ill person subject to
hospitalization by
court order or a
mentally
retarded person
subject to
institutionalization by court
order, as
defined in
sections
5122.01 and 5123.01 of the Revised
Code.
When
the
If an
affidavit is
filed
in the probate court, the
trial court
shall send to the probate
court
a copy
copies of
all
written
reports of the defendant's mental
condition that were
prepared
pursuant to section 2945.371 of the
Revised Code. The
trial court may issue the temporary order of detention
that a
probate court may issue under section 5122.11 or 5123.71 of
the
Revised Code, to remain in effect until the probable cause or
initial hearing in the probate court. Further proceedings in the
probate court are
then civil proceedings governed by Chapter
5122.
or 5123. of the Revised Code. The chief clinical officer of the hospital or facility,
the
managing
officer of the institution, the director of the
program,
or the person to which the defendant is committed or
admitted
shall send, at least ten days prior to the discharge or
immediately upon learning of a change to voluntary status,
written
notice to the prosecutor of the date on which the
defendant will
be discharged or has been admitted on voluntary
status.
(D) If the court finds that the defendant is incompetent
to
stand trial and it appears to the court, through a review of
the
report of an examiner or otherwise, that the defendant is
mentally
ill or mentally retarded, but that there is a
substantial
probability the defendant will become competent
to stand trial
within one year if provided a course of treatment, and the
offense
is one for which the defendant could be incarcerated, if
convicted, the court shall order the defendant to undergo
treatment at a
facility operated by the department of mental
health or the
department of mental retardation and developmental
disabilities,
at a facility certified by the appropriate
department as qualified to
treat
mental illness or mental
retardation, or at a public or private
community mental health or
mental retardation facility, or it may
order private treatment by
a psychiatrist or other mental health
or mental retardation
professional. The order may restrict the
defendant's freedom of
movement, as the court considers
necessary. In determining
placement alternatives, the court
shall consider the dangerousness
of the defendant to self
and
others, the need for
security, and
the type of crime involved and
shall order the
least restrictive
alternative available that is
consistent with
public safety and
treatment goals.
(D) No defendant shall be required to undergo treatment,
including any continuing evaluation and treatment, under
this
division
(B) of this section for longer than
the lesser of fifteen
months or
one-third of the longest prison term that might
whichever of the following periods is applicable:
(1) One year, if the most serious offense with which the
defendant is charged is one of the following offenses:
(a) Aggravated murder, murder, or an offense of violence
for which a sentence of death or life imprisonment may
be imposed
for
conviction of; (b) An offense of violence that is a felony
or one-third of
the longest term of
imprisonment that might be imposed for
conviction
of
of the first or second degree;
(c) A conspiracy to commit, an attempt to commit, or
complicity in the commission of an offense described in division
(D)(1)(a) or (b) of this section if the conspiracy, attempt, or
complicity is a felony of the first or second degree.
(2) Six months, if the most serious offense with which the
defendant is charged is a felony other than a felony described in
division (D)(1) of this section;
(3) Sixty days, if the most serious offense with which the
defendant is charged is a misdemeanor
if
the defendant is found
guilty of
the most serious crime with
which the defendant was
charged at
the time of the hearing.
No
order issued
under this
division
shall remain in effect after the
indictment,
information,
or
complaint is dismissed. The court
shall notify
the prosecutor,
defense counsel, and the chief
clinical officer
of the facility or
the managing officer of the
institution or
facility at which, or
person with whom, the
defendant was ordered
to undergo treatment
pursuant to this
division whenever an
indictment, information, or
complaint against
a defendant is
dismissed and whenever the court
revokes an order
made under this
division. If the maximum time
during which an
order of the court
may be in effect expires, the
court, within
three days,
shall conduct another hearing
under
section 2945.37 of
the Revised Code
to determine if the
defendant
is competent to
stand trial, but at
the close of such a
hearing, a
disposition
shall be made under
division (A) of this
section or if
the
defendant is found
incompetent to stand trial,
disposition
shall
be made as under
division (C) of this section
of the first
or second degree;
(4) Thirty days, if the most serious offense with which the
defendant is charged is a misdemeanor of the third or fourth
degree or a minor misdemeanor. (E) Any defendant
who is committed pursuant to this
division
section
shall
not
voluntarily admit
self
the defendant or be
voluntarily
admitted to a
hospital
or institution
pursuant to
section 5122.02
of the Revised
Code or to an
institution pursuant
to section, 5122.15, 5123.69, or 5123.76 of the
Revised Code. (E)(F) Except as otherwise provided in this division, a
defendant who is charged with an offense and is committed to a
hospital or other institution by the court under this section
shall not be granted unsupervised on-grounds movement, supervised
off-grounds movement, or nonsecured status. The court may grant a
defendant supervised off-grounds movement to obtain medical
treatment or specialized habilitation treatment services if the
person who supervises the treatment or the continuing evaluation
and treatment of the defendant ordered under division (B)(1) of
this section informs the court that the treatment or continuing
evaluation and treatment cannot be provided at the hospital or the
institution to which the defendant is committed. The chief
clinical officer of the hospital or the managing officer of the
institution to which the defendant is committed or a designee of
either of those persons may grant a defendant movement to a
medical facility for an emergency medical situation with
appropriate supervision to ensure the safety of the defendant,
staff, and community during that emergency medical situation. The
chief clinical officer of the hospital or the managing officer of
the institution shall notify the court within twenty-four hours of
the defendant's movement to the medical facility for an emergency
medical situation under this division.
(G) The person who supervises the treatment
or continuing
evaluation and treatment of a defendant
ordered to undergo
treatment
or continuing evaluation and treatment under division
(D)(B)(1) of this section
shall file a written report with the
court
and send copies to the
prosecutor and defense counsel at the
following times: (1)
After the first ninety days of treatment and after
each
one hundred eighty days of treatment thereafter; (2) Whenever the person believes the defendant
is
competent
to stand trial;
(3) Whenever the person believes that there is not a
substantial probability that the defendant will become competent
to stand trial;
(4) Fourteen
capable of understanding the nature and
objective of the proceedings against the defendant or of assisting
in the defendant's defense;
(2) For a felony offense, fourteen
days before expiration
of the maximum time
an
order issued under
for treatment as
specified in division (D) of this section
may be
in effect
and
fourteen days before the expiration of the maximum
time for
continuing evaluation and treatment as specified in
division
(B)(1) of this section, and, for a misdemeanor offense,
ten days
before the expiration of the maximum time for treatment,
as
specified in
that division.
(D) of this section; (3) At a minimum, after each six months of treatment;
(4) Whenever the person who supervises the treatment or
continuing evaluation and treatment of a defendant ordered under
division (B)(1) of this section believes that there is not a
substantial probability that the defendant will become capable of
understanding the nature and objective of the proceedings against
the defendant or of assisting in the defendant's defense even if
the defendant is provided with a course of treatment. (H) A report
under division (G) of this section shall
contain the
examiner's findings
of the examiner, the
facts in
reasonable
detail on which the findings are based, and
the
examiner's opinion
of the examiner as to the defendant's
competence to
stand trial
capability of understanding the nature
and objective of the
proceedings against the defendant or of
assisting in the
defendant's defense. If, in the
examiner finds
that the defendant
is
incompetent to stand trial, the examiner
shall state an
opinion
in
the
report on the likelihood of the
defendant's becoming
competent
to
stand trial within one year
examiner's opinion, the
defendant remains incapable of
understanding the nature and
objective of the proceedings against
the defendant or of assisting
in the defendant's defense and there
is a substantial probability
that the defendant will become
capable of understanding the nature
and objective of the
proceedings against the defendant or of
assisting in the
defendant's defense if the defendant is provided
with a course of
treatment, and the defendant also remains
mentally ill or mentally
retarded, and if the maximum time for
treatment as specified in
division (D) of this section has not
expired, the report also
shall contain the examiner's
recommendation as to the least
restrictive treatment alternative
that is consistent with the
defendant's treatment needs for
restoration to competency and with
the safety of the community.
The court shall provide copies of the
report to the prosecutor and
defense counsel. (F)(I) Within ten days after
receipt of a report required by
division (E) of this section
the treating physician of a mentally
ill defendant or the examiner, as defined in division (A)(2)(b) of
section 2945.37 of the Revised Code, of a mentally retarded
defendant advises that there is not a substantial probability that
the defendant will become capable of understanding the nature and
objective of the proceedings against the defendant or of assisting
in the defendant's defense even if the defendant is provided with
a course of treatment, within ten days after the expiration of the
maximum time for treatment as specified in division (D) of this
section, within ten days after the expiration of the maximum time
for continuing evaluation and treatment as specified in division
(B)(1) of this section, within thirty days after a defendant's
request for a hearing that is made after six months of treatment,
or within thirty days after being advised by the treating
physician or examiner that the defendant is competent to stand
trial, whichever is the earliest, the court shall
hold a
conduct
another hearing
on
the issue of the competence of
to determine if
the defendant
is competent to stand trial, as
provided in section
2945.37 of the Revised Code.
and shall do whichever of the
following is applicable:
(1) If
at the
conclusion of the hearing the court finds
that the defendant is
competent to stand trial, the defendant
shall be proceeded
against
as provided by law.
If (a) If the court finds that the
defendant is
incompetent to
stand trial, but that there is a
substantial
probability
that the
defendant will become competent
to stand trial
before expiration
of
if the defendant is provided with a course of treatment, and
the
maximum time
limit specified for treatment
under
as specified
in
division (D) of this section
has not expired, the court
may
modify or
continue
in
effect
orders made at a previous hearing,
still subject to the
maximum
time that orders may be in effect, as
originally
established under
division (D) of this section. If,
after consideration of the examiner's recommendation, shall order
that treatment be continued, may change the facility or program at
which the treatment is to be continued, and shall specify whether
the treatment is to be continued at the same or a different
facility or program. (3) If the court
finds that the defendant
is
incompetent to
stand trial, if the defendant is charged with an
offense listed in
division (D)(1) of this section, and
if the
court finds that
there
is not a substantial
probability that the
defendant will
become
competent to stand
trial
within
even if the
defendant is provided
with a course of treatment, or if
the
maximum time
that
orders may
be in effect, as originally
established under
for treatment
relative to that offense as
specified in division
(D) of this
section, the court shall
make a
disposition as under
division (C)
of this section. (G) The
has expired, further proceedings shall be as
provided in sections 2945.39, 2945.401, and 2945.402 of the
Revised Code.
(4) If the court finds that the defendant is
incompetent to
stand trial, if the most serious offense with which
the defendant
is charged is a misdemeanor or a felony other than a
felony listed
in division (D)(1) of this section, and if the court
finds that
there is not a substantial probability that the
defendant will
become competent to stand trial even if the
defendant is provided
with a course of treatment, or if the
maximum time for treatment
relative to that offense as specified
in division (D) of this
section has expired, the court shall
dismiss the indictment,
information,
or
complaint against
a
the
defendant
finally found
incompetent to
stand
trial under division
(C), (D), or (F) of this
section or
whenever
the prosecutor
notifies the court the
prosecutor
does not
intend
to
prosecute the
charges specified in
the indictment,
information,
or complaint.
A (H) A dismissal under
this division
(G) of this section is
not a
bar
to further
criminal proceedings
prosecution based on the
same conduct
unless
all of the following conditions are present:
(1) After a finding under division (C), (D), or (F) of
this
section that the defendant was incompetent to stand trial,
an
affidavit alleging that the defendant was mentally ill and
subject
to hospitalization by court order or mentally retarded
and subject
to institutionalization by court order was filed and
the defendant
either was found mentally ill or mentally
retarded
and subject
to
hospitalization or institutionalization by court
order, but was
later released, or was not so found. Whenever the
issue of
competence to stand trial is raised, but no finding
under division
(C), (D), or (F) of this section occurs because,
before such a
finding, the court dismisses the indictment,
information, or
complaint upon notice from the prosecutor that
the prosecutor does
not intend to prosecute the charges, this
division does not bar
further criminal proceedings based on the
same conduct, but
divisions (H)(2), (3), and (4) of this section
may bar further
proceedings, if the conditions they specify are
not present.
(2) The time the defendant has been involuntarily detained
for examination or treatment under Chapter 5122. or 5123. of the
Revised Code pursuant to the filing of an affidavit under
division
(C), (D), or (F) of this section and under this section
and
sections 2945.37 and 2945.371 of the Revised Code does not
exceed
one-third of the maximum prison term or term of
imprisonment the
defendant might have
received if convicted of the
most serious
charge that was
dismissed.
(3) Further criminal proceedings are not barred under
sections 2945.71 to 2945.73 of the Revised Code.
(4) The period of limitation for the offense committed has
not expired under section 2901.13 of the Revised Code, computed
without regard to division (H) of that section.
The court shall
discharge the defendant unless the court or prosecutor files an
affidavit in probate court for civil commitment pursuant to
Chapter 5122. or 5123. of the Revised Code. If an affidavit for
civil commitment is filed, the court may detain the defendant for
ten days pending civil commitment. All of the following
provisions apply to persons charged with a misdemeanor or a felony
other than a felony listed in division (D)(1) of this section who
are committed by the probate court subsequent to the court's or
prosecutor's filing of an affidavit for civil commitment under
authority of this division:
(a) The chief clinical officer of the hospital or facility,
the managing officer of the institution, the director of the
program, or the person to which the defendant is committed or
admitted shall do all of the following:
(i) Notify the prosecutor, in writing, of the discharge of
the defendant, send the notice at least ten days prior to the
discharge unless the discharge is by the probate court, and state
in the notice the date on which the defendant will be discharged;
(ii) Notify the prosecutor, in writing, when the defendant
is absent without leave or is granted unsupervised, off-grounds
movement, and send this notice promptly after the discovery of the
absence without leave or prior to the granting of the
unsupervised, off-grounds movement, whichever is applicable;
(iii) Notify the prosecutor, in writing, of the change of
the defendant's commitment or admission to voluntary status, send
the notice promptly upon learning of the change to voluntary
status, and state in the notice the date on which the defendant
was committed or admitted on a voluntary status.
(b) Upon receiving notice that the defendant will be
granted unsupervised, off-grounds movement, the prosecutor either
shall re-indict the defendant or promptly notify the court that
the prosecutor does not intend to prosecute the charges against
the defendant. (I)(J) If a defendant is convicted of a crime and
sentenced
to
a
jail or workhouse, the defendant's
sentence
shall be reduced
by
the total
number of days the defendant is
confined for
examination
evaluation
to
determine the defendant's
competence to
stand trial or
treatment under this section and
sections 2945.37
and 2945.371 of
the Revised Code
or by the total number of days
the defendant is confined for evaluation to determine the
defendant's mental condition at the time of the offense charged.
(J) No statement made by a defendant in an examination or
hearing relating to the defendant's competence to stand
trial
shall be used
in evidence against the defendant on the issue
of
guilt in
any criminal
action.
(K) Each court of common pleas and municipal court shall
designate a permanent court officer or employee to file
affidavits
under division (C) of this section and section 2945.40
of the
Revised Code.
Sec. 2945.39. (A) If a defendant who
is charged with an
offense described in division
(C)(D)(1) of section 2945.38 of the
Revised Code
is found incompetent to stand trial, after the
expiration of the maximum time
for treatment as specified in
division
(C)(D) of that section
or after the court finds that
there is not a substantial probability that the defendant will
become competent to stand trial even if the defendant is provided
with a course of treatment, one of the following
applies: (1) The court or the prosecutor may file an affidavit in
probate court for civil commitment of the defendant in the manner
provided in
Chapter 5122. or 5123. of the
Revised Code.
If the
court or
prosecutor files an affidavit for civil commitment,
the
court may detain the defendant for ten days pending civil
commitment. If the probate court commits the defendant
subsequent
to the court's or prosecutor's filing of an
affidavit for civil
commitment, the chief clinical officer of
the hospital or
facility, the managing officer of the
institution, the director of
the program, or the person to which
the defendant is committed or
admitted shall send to the
prosecutor the notices described in
divisions
(H)(I)(4)(a)(i) to (iii) of section
2945.38 of the
Revised Code within the periods of
time and under the
circumstances specified in those divisions. (2) On the motion of the prosecutor or on its own motion,
the
court may retain jurisdiction over the defendant if, at a
hearing, the court
finds both of the following by clear and
convincing evidence: (a) The defendant committed the offense with which the
defendant is charged. (b) The defendant is a mentally ill person
subject to
hospitalization by court order or a mentally retarded person
subject
to institutionalization by court order. (B) In making its determination under
division (A)(2) of
this section as to whether
to retain jurisdiction over the
defendant, the court may consider all relevant
evidence,
including, but not limited to, any relevant psychiatric,
psychological, or medical testimony or reports, the acts
constituting the
offense charged, and any history of the defendant
that is relevant to the
defendant's ability to conform to the law. (C) If the court conducts a hearing as
described in division
(A)(2) of this section
and if the court does not make both
findings described in divisions
(A)(2)(a) and (b) of this section
by
clear and convincing evidence, the court shall
dismiss the
indictment, information, or complaint against the defendant. Upon
the dismissal, the court shall discharge the defendant unless the
court or
prosecutor files an affidavit in probate court for civil
commitment of the
defendant pursuant to
chapter
Chapter 5122. or
5123.
of the Revised
Code. If the court or prosecutor files
an
affidavit for civil commitment, the court may order that the
defendant be
detained for up to ten
days pending the civil
commitment.
If the probate court
commits the defendant subsequent
to the court's or prosecutor's
filing of an affidavit for civil
commitment, the chief clinical
officer of the hospital or
facility, the managing officer of the
institution, the director of
the program, or the person to which
the defendant is committed or
admitted shall send to the prosecutor
the notices described in
divisions
(H)(I)(4)(a)(i) to (iii) of section
2945.38 of the
Revised Code within the periods of
time and under the
circumstances specified in those divisions.
A dismissal of
charges under this division
is not a bar to
further criminal
proceedings based on the same conduct. (D)(1) If the court conducts a hearing
as described in
division (A)(2) of this
section and if the court makes the
findings described in divisions
(A)(2)(a) and
(b) of this section
by clear and convincing evidence, the
court shall commit the
defendant to a hospital operated by the department of
mental
health, a facility operated by the department of mental
retardation and
developmental disabilities, or another medical or
psychiatric facility, as
appropriate. In determining the place
and nature of the commitment, the court
shall order the least
restrictive commitment alternative available that is
consistent
with public safety and the welfare of the defendant. In weighing
these
factors, the court shall give preference to protecting
public safety. (2) If a court makes a commitment of a defendant under
division
(D)(1) of this section, the prosecutor shall
send to the
place of commitment all reports of the defendant's current mental
condition and, except as otherwise provided in this division, any
other
relevant information, including, but not limited to, a
transcript of the
hearing held pursuant to division (A)(2) of
this
section, copies of relevant police reports, and copies of any
prior
arrest and conviction records that pertain to the defendant
and that the
prosecutor possesses. The prosecutor shall send
the
reports of the defendant's current mental condition in every case
of
commitment, and, unless the prosecutor determines that the
release of any of
the
other relevant information to unauthorized
persons would interfere with the
effective
prosecution of any
person or would create a substantial risk of harm to any
person,
the prosecutor also shall send the other relevant information.
Upon
admission of a defendant committed under division
(D)(1) of
this section, the place of
commitment shall send to the board of
alcohol, drug addiction, and mental
health services or the
community mental health board serving the county in
which the
charges against the defendant were filed a copy of all reports of
the
defendant's current mental condition and a copy of the other
relevant
information provided by the prosecutor under this
division, including, if
provided, a transcript of the hearing held
pursuant to division
(A)(2) of this section, the relevant police
reports, and the prior
arrest and conviction records that pertain
to the defendant and that the
prosecutor possesses. (3) If a court makes a commitment under division
(D)(1) of
this section, all further
proceedings shall be in accordance with
sections 2945.401 and 2945.402 of the
Revised Code.
Sec. 2945.401. (A) A defendant found incompetent to stand
trial and committed pursuant to section 2945.39 of the
Revised
Code
or a person found not guilty by reason of insanity and
committed pursuant to
section 2945.40 of the Revised
Code shall
remain subject to the jurisdiction
of the trial court pursuant to
that commitment, and to the provisions of this
section, until the
final termination of the commitment as described in
division
(J)(1) of this section. If the jurisdiction is terminated
under
this division because of the final termination of the commitment
resulting from the expiration of the maximum prison term or term
of
imprisonment described in division (J)(1)(b) of this
section,
the court or
prosecutor may file an affidavit for the civil
commitment of the defendant or
person pursuant to Chapter 5122. or
5123. of
the Revised
Code. (B) A hearing conducted under any provision of sections
2945.37 to 2945.402 of the Revised
Code shall not be conducted in
accordance with
Chapters 5122. and 5123. of the
Revised Code.
Any
person who is committed pursuant to section 2945.39 or 2945.40 of
the
Revised Code
shall not voluntarily admit the person or be
voluntarily
admitted to a hospital or institution pursuant to
section
5122.02,
5122.15, 5123.69, or 5123.76 of the Revised
Code.
All other provisions of
Chapters 5122. and 5123. of the
Revised
Code
regarding hospitalization or institutionalization shall apply
to the extent
they are not in conflict with this chapter. A
commitment under section
2945.39
or 2945.40 of the Revised
Code
shall not be terminated and the
conditions of the commitment shall
not be changed except
as otherwise provided in division
(D)(2) of
this section with respect to a
mentally retarded person subject to
institutionalization by court order or
except
by order of the
trial
court. (C) The hospital, facility, or program
to which a defendant
or person has been committed under section 2945.39 or
2945.40 of
the Revised
Code shall report in writing to the trial
court, at
the times specified in this division, as to whether the defendant
or
person remains a mentally ill person subject to hospitalization
by court order
or a mentally retarded person subject to
institutionalization by court order
and, in the case of a
defendant committed under section 2945.39 of the Revised
Code, as
to whether the defendant remains incompetent to
stand trial.
The
hospital, facility, or program shall make the reports
after the
initial six months
of treatment and every
two years after the
initial report is made. The trial court shall provide
copies of
the reports to the
prosecutor and to the counsel for the defendant
or person. Within
thirty
days after its receipt pursuant to this
division of a report from a hospital,
facility, or program,
the
trial court shall hold a hearing on the continued commitment of
the
defendant or person or on any changes in the conditions of the
commitment of
the
defendant or person. The defendant or person
may request a change in the
conditions of confinement, and the
trial court shall conduct a hearing on that
request
if six months
or more have elapsed since the most recent hearing was conducted
under this section. (D)(1) Except as otherwise provided in
division (D)(2) of
this section,
when a defendant or person has been
committed under
section 2945.39 or 2945.40 of the
Revised Code,
at any time after
evaluating the risks to public safety and the welfare of the
defendant or person, the chief clinical officer of the hospital,
facility, or
program to which the defendant or person is committed
may recommend a
termination of the
defendant's or person's
commitment or a change in the conditions of the
defendant's or
person's commitment. Except as otherwise provided in division
(D)(2) of this
section,
if the chief clinical officer recommends on-grounds
unsupervised movement, off-grounds supervised movement, or
nonsecured
status for the defendant or person or termination of
the defendant's or
person's commitment, the following provisions
apply: (a) If the chief
clinical officer recommends on-grounds
unsupervised
movement or off-grounds supervised movement, the
chief clinical officer shall
file with the trial court an
application for approval of the movement and
shall
send a copy of
the application to the prosecutor.
Within fifteen days after
receiving the application, the prosecutor may
request
a hearing on
the application and, if a hearing is requested, shall so inform
the chief clinical officer. If the prosecutor does not request a
hearing
within the fifteen-day period, the trial court shall
approve the application
by
entering its order approving the
requested movement or, within five days after
the expiration of
the fifteen-day period, shall set a date for a hearing on
the
application. If the prosecutor requests a hearing on the
application within
the fifteen-day period, the trial court shall
hold a hearing on the
application
within thirty days after the
hearing is requested. If the trial court, within
five days after
the expiration of the fifteen-day period, sets a date for a
hearing on the application, the trial court shall hold the hearing
within
thirty days after setting the hearing date. At least
fifteen days before any
hearing is held under this division, the
trial court shall give the prosecutor
written notice of the date,
time, and place of the
hearing. At the conclusion of each hearing
conducted under this division, the
trial court either shall
approve or disapprove the application and shall enter
its order
accordingly. (b) If the chief
clinical officer recommends termination of
the
defendant's or person's commitment at any time or if the chief
clinical officer recommends the first of any
nonsecured status for
the defendant or person, the
chief clinical officer shall send
written notice of this recommendation to the
trial court and to
the local forensic center. The local forensic center shall
evaluate the committed defendant or person and, within thirty days
after its
receipt of the written notice, shall submit to the trial
court and the chief
clinical
officer a written report of the
evaluation.
The trial court shall
provide a copy of the chief
clinical officer's written notice
and of the local forensic
center's written report to the
prosecutor and to the counsel for
the defendant or
person.
Upon the local forensic center's
submission of the report to the trial court and the chief clinical
officer,
all of the following apply: (i) If the forensic center disagrees with the
recommendation
of the chief clinical officer, it shall inform the chief
clinical
officer and the trial court of its decision and the reasons for
the
decision. The chief clinical officer, after consideration of
the forensic
center's decision, shall either withdraw, proceed
with, or modify and proceed
with the
recommendation. If the chief
clinical officer proceeds with, or modifies and
proceeds with, the
recommendation, the chief clinical officer shall proceed in
accordance with
division (D)(1)(b)(iii) of this
section. (ii) If the forensic center agrees with the
recommendation
of the chief clinical officer, it shall inform the chief
clinical
officer and the trial court of its decision and the reasons for
the
decision, and the chief clinical officer shall proceed in
accordance with
division (D)(1)(b)(iii) of this
section. (iii) If the forensic center
disagrees with the
recommendation of the chief clinical officer and the chief
clinical officer proceeds with, or modifies and proceeds with, the
recommendation or if the
forensic center agrees with the
recommendation of the chief clinical officer,
the chief clinical
officer shall work with the board of alcohol, drug
addiction, and
mental health services or community mental health board serving
the area, as appropriate, to develop a plan to implement the
recommendation.
If the defendant or person is on medication, the
plan shall include, but shall
not be limited to, a system to
monitor the defendant's or person's compliance
with the prescribed
medication treatment plan. The system shall include a
schedule
that clearly states when the defendant or person shall report for
a
medication compliance check. The medication compliance checks
shall be based
upon the effective duration of the prescribed
medication, taking into account
the route by which it is taken,
and shall be scheduled at intervals
sufficiently close together to
detect a potential increase in mental illness
symptoms that the
medication is intended to prevent. The chief clinical officer, after consultation
with the board
of alcohol, drug addiction, and mental health services or the
community mental health board serving the area, shall send the
recommendation
and plan developed under division
(D)(1)(b)(iii) of
this section, in writing, to the trial court, the prosecutor
and
the counsel for the committed defendant or person. The trial
court shall
conduct a hearing on the
recommendation and plan
developed under division
(D)(1)(b)(iii) of this section.
Divisions
(D)(1)(c) and (d)
and (E) to
(J) of this section apply
regarding
the
hearing. (c) If the chief
clinical
officer's
recommendation is for
nonsecured status or termination of commitment, the
prosecutor may
obtain an independent expert evaluation of the defendant's or
person's mental condition, and the trial court
may continue the
hearing on the recommendation for a period of not more than
thirty
days to permit time for the evaluation. The prosecutor may introduce the evaluation report or present
other
evidence at the hearing in accordance with the
Rules of
Evidence. (d) The trial court shall schedule the hearing on a chief
clinical
officer's
recommendation for nonsecured status or
termination of commitment and shall
give reasonable notice to the
prosecutor and the
counsel for the defendant or person. Unless
continued for independent
evaluation at the prosecutor's request
or for other good cause, the
hearing shall be held within thirty
days after the trial court's receipt of
the recommendation and
plan. (2)(a) Division (D)(1) of this section does not apply to
on-grounds unsupervised movement of a defendant or person who has
been
committed
under section 2945.39 or 2945.40 of the Revised
Code, who is a mentally
retarded person
subject to
institutionalization by court order, and who is being
provided
residential habilitation, care, and treatment in
a facility
operated by the department of mental retardation and developmental
disabilities. (b) If, pursuant to section 2945.39 of the
Revised Code,
the
trial court commits a defendant who is found incompetent to stand
trial
and
who is a mentally retarded person subject to
institutionalization by court
order, if the defendant is being
provided residential habilitation, care, and
treatment in a
facility operated by the department of mental retardation and
developmental disabilities, if an individual who is conducting a
survey for
the
department of health to determine the facility's
compliance with the
certification requirements of the medicaid
program under
chapter
Chapter 5111. of the
Revised Code
and Title
XIX
of the "Social
Security
Act," 49
Stat. 620 (1935), 42
U.S.C.A.
301, as amended, cites the defendant's receipt of the residential
habilitation,
care, and treatment in the facility as being
inappropriate under the
certification requirements, if the
defendant's receipt of the residential
habilitation, care, and
treatment in the facility potentially jeopardizes the
facility's
continued receipt of federal medicaid moneys, and if as a result
of
the citation the chief clinical officer of the facility
determines that the
conditions of the defendant's commitment
should be changed, the department of
mental retardation and
developmental disabilities may cause the defendant to
be
removed
from the particular facility and, after evaluating the risks to
public
safety and the welfare of the defendant and after
determining whether another
type of placement is consistent with
the certification requirements, may place
the defendant in another
facility that the department selects as an
appropriate
facility
for the defendant's continued receipt of residential habilitation,
care, and treatment and that is a no less secure setting than the
facility in
which the defendant had been placed at the time of the
citation. Within three
days after the defendant's removal and
alternative placement under the
circumstances described in
division
(D)(2)(b) of this section,
the department of mental
retardation and developmental disabilities shall
notify the trial
court and the prosecutor in writing of the removal and
alternative
placement. The trial court shall set a date for a hearing on the removal
and
alternative placement, and the hearing shall be held within
twenty-one days
after the trial court's receipt of the notice from
the department of mental
retardation and developmental
disabilities. At least
ten-days
ten
days before the hearing is
held, the trial court shall give the
prosecutor, the department of
mental retardation and developmental
disabilities, and the counsel
for the defendant written notice of the date,
time, and place of
the hearing. At the hearing, the trial court shall
consider the
citation issued by the individual who conducted the survey for
the
department of health to be prima-facie
evidence of the fact that
the defendant's commitment to the particular
facility was
inappropriate under the certification requirements of the
medicaid
program under Chapter 5111. of the Revised Code and Title XIX of
the
"Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A.
301,
as amended, and potentially jeopardizes the particular facility's
continued receipt of federal medicaid moneys. At the conclusion
of the
hearing, the trial court may approve or disapprove the
defendant's removal and
alternative placement. If the trial court
approves the defendant's removal
and alternative placement, the
department of mental retardation and
developmental disabilities
may continue the defendant's alternative
placement. If the trial
court disapproves the defendant's removal and
alternative
placement, it shall enter an order modifying the defendant's
removal and alternative placement, but
that order shall not
require the department of mental retardation and
developmental
disabilities to replace the defendant for purposes of continued
residential habilitation, care, and treatment in the facility
associated with
the citation issued by the individual who
conducted the survey for the
department of health. (E) In making a determination under
this section regarding
nonsecured status or termination of commitment, the
trial court
shall consider all
relevant factors, including, but not limited
to, all of the following: (1) Whether, in the trial court's view, the defendant or
person currently
represents
a substantial risk of physical harm to
the defendant or person or others; (2) Psychiatric and medical testimony as to the current
mental and
physical
condition of the defendant or person; (3) Whether the defendant or person has insight into the
dependant's or
person's condition so that the defendant or person
will continue treatment as
prescribed
or seek professional
assistance as needed; (4) The grounds upon which the state relies for the proposed
commitment; (5) Any past history that is relevant to establish the
defendant's or
person's degree of conformity to the laws, rules,
regulations, and values of
society; (6) If there is evidence that the defendant's or person's
mental illness
is in a state of remission, the medically suggested
cause and degree of the
remission and the probability that the
defendant or person will continue
treatment to maintain the
remissive state of the defendant's or person's
illness should the
defendant's or person's commitment conditions be altered. (F) At any hearing held pursuant to division (C) or
(D)(1)
or (2) of this section, the defendant or the person shall have
all
the rights of a
defendant or person at a commitment hearing as
described in section 2945.40 of
the Revised
Code. (G) In a hearing held pursuant to division (C) or
(D)(1) of
this
section, the prosecutor has the burden of proof as follows: (1) For a recommendation of termination of commitment, to
show by clear
and convincing evidence that the defendant or person
remains a mentally ill
person subject to hospitalization by court
order or a mentally retarded person
subject to
institutionalization by court order; (2) For a recommendation for a change in the conditions of
the
commitment to a less restrictive status, to show by clear and
convincing
evidence that the proposed change represents a threat
to public safety or a
threat to the safety of any person. (H) In a hearing held pursuant to division (C) or
(D)(1) or
(2) of this
section, the prosecutor shall represent the state or
the public
interest. (I) At the conclusion of a hearing
conducted under division
(D)(1) of this section regarding a
recommendation from the chief
clinical
officer of a hospital, program, or facility, the trial
court may approve,
disapprove,
or modify the recommendation and
shall enter an order accordingly. (J)(1) A defendant or person who has been
committed pursuant
to section 2945.39 or 2945.40 of the
Revised Code
continues to be
under the jurisdiction of the trial court until the final
termination of the commitment. For purposes of division (J) of
this
section, the final
termination of a commitment occurs upon
the earlier of one of the following: (a) The defendant or person no longer is a
mentally ill
person subject to hospitalization by court order or a mentally
retarded person subject to institutionalization by court order, as
determined
by the trial court; (b) The expiration of the maximum prison term or term
of
imprisonment that the defendant or person could have received if
the
defendant
or
person had been convicted of the most serious
offense with which the defendant
or person is
charged or in
relation to which the defendant or person was found not guilty
by
reason of insanity; (c) The trial court enters an order terminating the
commitment under the circumstances described in division
(J)(2)(a)(ii) of this section. (2)(a) If a defendant is found incompetent to stand
trial
and committed pursuant to section 2945.39 of the
Revised Code, if
neither of the circumstances
described in divisions (J)(1)(a) and
(b) of
this section applies to that defendant, and if a report
filed
with the trial court pursuant to division (C) of this
section indicates that the defendant presently is competent to
stand trial or if, at any other time during the period of the
defendant's commitment, the prosecutor, the counsel for the
defendant, or the chief clinical officer of the hospital,
facility, or program to which the defendant is committed files
an
application with the trial court alleging that the defendant
presently is competent to stand trial and requesting a hearing
on
the competency issue or the trial court otherwise has
reasonable
cause to believe that the defendant presently is
competent to
stand trial and determines on its own motion to
hold a hearing on
the competency issue, the trial court shall
schedule a hearing on
the competency of the defendant to stand
trial, shall give the
prosecutor, the counsel for the defendant,
and the chief clinical
officer notice of the date, time, and
place of the hearing at
least fifteen days before the hearing,
and shall conduct the
hearing within thirty days of the filing
of the application or of
its own motion. If, at the conclusion
of the hearing, the trial
court determines that the defendant
presently is capable of
understanding the nature and objective
of the proceedings against
the defendant and of assisting in the
defendant's defense, the
trial court shall order that the
defendant is competent to stand
trial and shall be proceeded
against as provided by law with
respect to the applicable
offenses described in division
(C)(D)(1)
of section 2945.38
of the Revised Code and shall enter whichever
of
the following additional orders is appropriate: (i) If the trial court determines that the defendant
remains
a mentally ill person subject to hospitalization by
court order or
a mentally retarded person subject to
institutionalization by
court order, the trial court shall order
that the defendant's
commitment to the hospital, facility, or
program be continued
during the pendency of the trial on the
applicable offenses
described in division
(C)(D)(1) of
section 2945.38 of the Revised
Code. (ii) If the trial court determines that the defendant no
longer is a mentally ill person subject to hospitalization by
court order or a mentally retarded person subject to
institutionalization by court order, the trial court shall order
that the defendant's commitment to the hospital, facility, or
program shall not be continued during the pendency of the trial
on
the applicable offenses described in division
(C)(D)(1)
of section
2945.38 of the Revised Code. This
order shall be a final
termination of the commitment for
purposes of division (J)(1)(c)
of this section. (b) If, at the conclusion of the hearing described in
division (J)(2)(a) of this section, the trial
court determines
that the defendant remains incapable of
understanding the nature
and objective of the proceedings
against the defendant or of
assisting in the defendant's
defense, the trial court shall order
that the defendant
continues to be incompetent to stand trial,
that the defendant's
commitment to the hospital, facility, or
program shall be
continued, and that the defendant remains subject
to the
jurisdiction of the trial court pursuant to that
commitment, and
to the provisions of this section, until the final
termination
of the commitment as described in division (J)(1) of
this
section.
Section 2. That existing sections 2945.371, 2945.39, and
2945.401 and section 2945.38 of the Revised Code as it results
from Am. Sub. S.B. 285 of the 121st General Assembly are hereby
repealed.
Section 3. This act presents section 2945.38 of the Revised
Code as it existed prior to its amendment by Am. Sub. S.B. 285 of
the 121st General Assembly. The revived version of that section
supersedes the version of that section repealed by Section 2 of
this act and omits and repeals all changes made to that section by
Am. Sub. S.B. 285 of the 121st General Assembly. The omission and
repeal of those changes is not intended to have any substantive
effect and is intended to present in this act the version of
section 2945.38 of the Revised Code that is currently effective.
The repeal of section 2945.38 of the Revised Code by Section 2 of
this act is to give effect to the holding of the Ohio Supreme
Court in
State v. Sullivan (2001), 90 Ohio St.3d 502, that section
2945.38 of the Revised Code, as amended by Am. Sub. S.B. 285 of
the 121st General Assembly, is unconstitutional.
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