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H. B. No. 184As Reported by the House Criminal Justice CommitteeAs Reported by the House Criminal Justice Committee
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Schmidt, McGregor, Aslanides, Schaffer, Schneider, Raussen, Gilb, Collier, Willamowski, Latta, D. Evans
A BILL
To amend section 2929.03 of the Revised Code to permit
the imposition of a sentence of life imprisonment
without parole, life imprisonment with parole
eligibility after serving 25 full years of
imprisonment, or life imprisonment with parole
eligibility after serving 30 full years of
imprisonment when an offender is convicted of or
pleads guilty to aggravated murder and is not
charged with or convicted of an aggravating
circumstance.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2929.03 of the Revised Code be
amended to read as follows:
Sec. 2929.03. (A) If the indictment or count in the
indictment charging aggravated murder does not contain one or
more
specifications of aggravating circumstances listed in
division (A)
of section 2929.04 of the Revised Code, then,
following a verdict
of guilty of the charge of aggravated murder,
the trial court
shall impose sentence on the offender as follows: (1) Except as provided in division (A)(2) of this section,
the
trial court shall impose
a sentence of life imprisonment with
parole eligibility after serving twenty years of imprisonment
one
of the following sentences on
the offender: (a) Life imprisonment without parole; (b) Life imprisonment with parole eligibility after serving
twenty years of imprisonment; (c) Life imprisonment with parole eligibility after serving
twenty-five full years of imprisonment; (d) Life imprisonment with parole eligibility after serving
thirty full years of imprisonment. (2) If the offender also is convicted of or
pleads guilty to
a sexual motivation specification and a sexually violent
predator
specification that are included in the indictment, count in the
indictment, or information that charged the aggravated murder, the
trial
court shall impose upon the offender a sentence of life
imprisonment without
parole that shall be served pursuant to
section 2971.03
of the Revised Code. (B) If the indictment or count in the indictment charging
aggravated murder contains one or more specifications of
aggravating circumstances listed in division (A) of section
2929.04 of the Revised Code, the verdict shall separately state
whether the accused is found guilty or not guilty of the
principal
charge and, if guilty of the principal charge, whether
the
offender was eighteen years of age or older at the time of
the
commission of the offense, if the matter of age was raised by
the
offender pursuant to section 2929.023 of the Revised Code,
and
whether the offender is guilty or not guilty of each
specification. The jury shall be instructed on its duties in
this
regard. The instruction to the jury shall include
an instruction
that a
specification shall be proved beyond a reasonable doubt in
order
to support a guilty verdict on the specification, but the
instruction shall
not mention the penalty that may be the
consequence of a guilty or not guilty verdict on any charge or
specification. (C)(1) If the indictment or count in the indictment
charging
aggravated murder contains one or more specifications of
aggravating circumstances listed in division (A) of section
2929.04 of the Revised Code, then, following a verdict of guilty
of the charge but not guilty of each of the specifications, and
regardless of whether the offender raised the matter of age
pursuant to section 2929.023 of the Revised Code, the trial court
shall impose sentence on the offender as follows: (a) Except as provided in division
(C)(1)(b) of this
section, the trial court shall
impose
a sentence of life
imprisonment with parole
eligibility after serving twenty years of
imprisonment
one of the following sentences on the
offender: (i) Life imprisonment without parole; (ii) Life imprisonment with parole eligibility after serving
twenty years of imprisonment; (iii) Life imprisonment with parole eligibility after serving
twenty-five full years of imprisonment; (iv) Life imprisonment with parole eligibility after serving
thirty full years of imprisonment. (b) If the offender also is convicted of or
pleads guilty to
a sexual motivation specification and a sexually violent
predator
specification that are included in the indictment, count in the
indictment, or information that charged the aggravated murder, the
trial court
shall impose upon the offender a sentence of life
imprisonment without
parole that shall be served pursuant to
section 2971.03 of the Revised Code. (2)(a) If the indictment or count in the indictment contains
one or more specifications of aggravating circumstances listed in
division (A) of section 2929.04 of the Revised Code and if the
offender is found guilty of both the charge and one or more of
the
specifications, the penalty to be imposed on the offender
shall be
one of the following: (i) Except as provided in division
(C)(2)(a)(ii) of this
section, the penalty to be
imposed on the offender shall be death,
life imprisonment without parole,
life imprisonment with parole
eligibility after
serving twenty-five full years of imprisonment,
or life imprisonment
with parole eligibility after serving thirty
full years of
imprisonment. (ii) If the offender also is convicted of or pleads
guilty
to a sexual motivation specification and a sexually violent
predator
specification that are included in the indictment, count
in the indictment, or
information that charged the aggravated
murder, the penalty to be imposed on
the offender shall be death
or life imprisonment without parole that shall be
served pursuant
to section 2971.03 of the Revised Code. (b) A penalty imposed pursuant to division (C)(2)(a)(i) or
(ii) of this
section shall be determined pursuant to divisions (D)
and
(E) of this section and shall be determined by one of the
following: (i) By the panel of three judges that tried the offender
upon the offender's waiver of the right to trial by jury; (ii) By the trial jury and the trial judge, if the
offender
was tried by jury. (D)(1) Death may not be imposed as a penalty for
aggravated
murder if the offender raised the matter of age at
trial pursuant
to section 2929.023 of the Revised Code and was
not found at trial
to have been eighteen years of age or older at
the time of the
commission of the offense. When death may be
imposed as a penalty
for aggravated murder, the court shall
proceed under this
division. When death may be imposed as a
penalty, the court, upon
the request of the defendant, shall
require a pre-sentence
investigation to be made and, upon the
request of the defendant,
shall require a mental examination to
be made, and shall require
reports of the investigation and of
any mental examination
submitted to the court, pursuant to
section 2947.06 of the Revised
Code. No statement made or
information provided by a defendant in
a mental examination or
proceeding conducted pursuant to this
division shall be disclosed
to any person, except as provided in
this division, or be used in
evidence against the defendant on the
issue of guilt in any
retrial. A pre-sentence investigation or
mental examination
shall not be made except upon request of the
defendant. Copies
of any reports prepared under this division
shall be furnished to
the court, to the trial jury if the offender
was tried by a jury,
to the prosecutor, and to the offender or the
offender's
counsel for use under this division. The court, and
the trial jury if the
offender was tried by a jury, shall consider
any report prepared
pursuant to this division and furnished to it
and any evidence
raised at trial that is relevant to the
aggravating circumstances
the offender was found guilty of
committing or to any factors in
mitigation of the imposition of
the sentence of death, shall hear
testimony and other evidence
that is relevant to the nature and
circumstances of the
aggravating circumstances the offender was
found guilty of
committing, the mitigating factors set forth in
division (B) of
section 2929.04 of the Revised Code, and any
other factors in
mitigation of the imposition of the sentence of
death, and shall
hear the statement, if any, of the offender, and
the arguments, if
any, of counsel for the defense and
prosecution, that are relevant
to the penalty that should be
imposed on the offender. The
defendant shall be given great
latitude in the presentation of
evidence of the mitigating
factors set forth in division (B) of
section 2929.04 of the
Revised Code and of any other factors in
mitigation of the
imposition of the sentence of death. If the
offender chooses to
make a statement, the offender is subject to
cross-examination only if the offender consents to make the
statement under oath or affirmation. The defendant shall have the burden of going forward with
the
evidence of any factors in mitigation of the imposition of
the
sentence of death. The prosecution shall have the burden of
proving, by proof beyond a reasonable doubt, that the aggravating
circumstances the defendant was found guilty of committing are
sufficient to outweigh the factors in mitigation of the
imposition
of the sentence of death. (2) Upon consideration of the relevant evidence raised at
trial, the testimony, other evidence, statement of the offender,
arguments of counsel, and, if applicable, the reports submitted
pursuant to division (D)(1) of this section, the trial jury, if
the offender was tried by a jury, shall determine whether the
aggravating circumstances the offender was found guilty of
committing are sufficient to outweigh the mitigating factors
present in the case. If the trial jury unanimously finds, by
proof beyond a reasonable doubt, that the aggravating
circumstances the offender was found guilty of committing
outweigh
the mitigating factors, the trial jury shall recommend
to the
court that the sentence of death be imposed on the
offender.
Absent such a finding, the jury shall recommend that
the offender
be sentenced to one of the following: (a) Except as provided in division
(D)(2)(b) of this
section, to life imprisonment
without parole, life imprisonment
with
parole eligibility after
serving twenty-five full years of
imprisonment, or life imprisonment with
parole eligibility after
serving thirty full years of imprisonment; (b) If the offender also is convicted of or pleads guilty to
a
sexual motivation specification and a sexually violent predator
specification
that are included in the indictment, count in the
indictment, or information
that charged the aggravated murder, to
life imprisonment without parole. If the trial jury recommends that the offender be sentenced
to life imprisonment without parole, life
imprisonment with parole
eligibility after serving twenty-five
full years of imprisonment,
or life imprisonment with parole
eligibility after serving thirty
full years of imprisonment, the court shall
impose the sentence
recommended by the jury upon the offender. If
the sentence is a
sentence of life imprisonment without parole imposed under
division (D)(2)(b) of this
section, the sentence shall be served
pursuant to section 2971.03 of the
Revised Code. If the trial
jury recommends that the sentence of death be
imposed upon the
offender, the court shall proceed to impose sentence pursuant to
division
(D)(3) of this section. (3) Upon consideration of the relevant evidence raised at
trial, the testimony, other evidence, statement of the offender,
arguments of counsel, and, if applicable, the reports submitted
to
the court pursuant to division (D)(1) of this section, if,
after
receiving pursuant to division (D)(2) of this section the
trial
jury's recommendation that the sentence of death be
imposed, the
court finds, by proof beyond a reasonable doubt, or
if the panel
of three judges unanimously finds, by proof beyond a reasonable
doubt, that the aggravating circumstances the offender
was found
guilty of committing outweigh the mitigating factors,
it shall
impose sentence of death on the offender. Absent such a
finding
by the court or panel, the court or the panel shall
impose one of
the following sentences on the offender: (a) Except as provided in division
(D)(3)(b) of this
section, one of the following: (i) Life imprisonment without parole; (ii) Life imprisonment with parole eligibility after
serving
twenty-five full years of imprisonment; (iii) Life imprisonment with parole eligibility after
serving thirty full years of imprisonment. (b) If the offender also is convicted of
or pleads guilty to
a sexual motivation specification and a sexually violent
predator
specification that are included in the indictment, count in the
indictment, or information that charged the aggravated murder,
life
imprisonment without parole that shall be served pursuant
to
section 2971.03 of the Revised Code. (E) If the offender raised the matter of age at trial
pursuant to section 2929.023 of the Revised Code, was convicted
of
aggravated murder and one or more specifications of an
aggravating
circumstance listed in division (A) of section
2929.04 of the
Revised Code, and was not found at trial to have
been eighteen
years of age or older at the time of the commission
of the
offense, the court or the panel of three judges shall not
impose a
sentence of death on the offender. Instead, the court
or panel
shall impose one of the following sentences on the
offender: (1) Except as provided in division (E)(2) of this
section,
one of the following: (a) Life imprisonment without parole; (b) Life imprisonment with parole eligibility after
serving
twenty-five full years of imprisonment; (c) Life imprisonment with parole eligibility after
serving
thirty full years of imprisonment. (2) If the offender also is convicted of
or pleads guilty to
a sexual motivation specification and a sexually violent
predator
specification that are included in the indictment, count in the
indictment, or information that charged the aggravated murder,
life
imprisonment without parole that shall be served pursuant
to
section 2971.03 of the Revised Code. (F) The court or the panel of three judges, when it
imposes
sentence of death, shall state in a separate opinion its
specific
findings as to the existence of any of the mitigating
factors set
forth in division (B) of section 2929.04 of the
Revised Code, the
existence of any other mitigating factors, the
aggravating
circumstances the offender was found guilty of
committing, and the
reasons why the aggravating circumstances the
offender was found
guilty of committing were sufficient to
outweigh the mitigating
factors. The court or panel, when it
imposes life imprisonment
under division (D) of this section,
shall state in a separate
opinion its specific findings of which
of the mitigating factors
set forth in division (B) of section
2929.04 of the Revised Code
it found to exist, what other
mitigating factors it found to
exist, what aggravating
circumstances the offender was found
guilty of committing, and
why it could not find that these
aggravating circumstances were
sufficient to outweigh the
mitigating factors. For cases in which a sentence
of death is
imposed for an offense committed before January 1, 1995, the court
or panel shall file the opinion required to be prepared by this
division with
the clerk of the appropriate court of appeals and
with the clerk of the supreme court within fifteen days after the
court or panel imposes sentence. For cases in which a sentence of
death is
imposed for an offense committed on or after January 1,
1995, the court or
panel shall file the opinion required to be
prepared by this division with the
clerk of the supreme court
within fifteen days after the court or panel
imposes sentence.
The
judgment in a case in which
a sentencing hearing is held
pursuant
to this section is not
final until the opinion is filed. (G)(1) Whenever the court or a panel of three judges imposes
a sentence of death for an offense committed before January 1,
1995, the clerk
of the court in which the judgment
is rendered
shall deliver the entire record in the case to the
appellate
court. (2) Whenever the court or a panel of three judges imposes a
sentence of death
for an offense committed on or after January 1,
1995, the clerk of the court
in which the judgment is rendered
shall deliver the entire record in the case
to the supreme court.
Section 2. That existing section 2929.03 of the Revised Code
is hereby repealed. Section 3. Section 2929.03 of the Revised Code is
presented
in
this act as a composite of the section as amended by
both Am.
Sub. H.B. 180 and Am. Sub. S.B. 269 of
the 121st General
Assembly.
The General Assembly, applying the
principle stated in
division
(B) of section 1.52 of the Revised
Code that amendments
are to be
harmonized if reasonably capable of
simultaneous
operation, finds
that the composite is the resulting
version of
the section in
effect prior to the effective date of
the section
as presented in
this act.
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