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Sub. H. B. No. 95 As Reported by the House Criminal Justice Committee
As Reported by the House Criminal Justice Committee
126th General Assembly | Regular Session | 2005-2006 |
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Representatives Seitz, McGregor, C. Evans, Allen, Widener, Wolpert, Combs, Latta, T. Patton, Schaffer, Raussen, Wagoner, Faber, Webster, Hoops, Taylor, Gilb, Raga, Brinkman, Hagan, Reidelbach, White, Willamowski, Harwood, Uecker, G. Smith, Gibbs, Schneider, Hartnett, Carmichael, Buehrer, Seaver, Hughes, Collier, Trakas, Flowers, Oelslager, D. Evans
A BILLTo amend sections 2152.17, 2929.01, 2929.13, 2929.14, 2941.149, and 2953.08 of the Revised Code relative to the sentences imposed on repeat violent offenders and the appeal of repeat violent offender sentences. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2152.17, 2929.01, 2929.13, 2929.14, 2941.149, and 2953.08 of the Revised Code be amended to read as follows:
Sec. 2152.17. (A) Subject to division (D) of this
section,
if a child is adjudicated a delinquent child
for committing
an
act, other than a violation of section 2923.12 of the Revised
Code, that would be a felony
if committed by an adult and if the
court determines that, if the child was an
adult, the child would
be guilty of a
specification of the type set forth in section
2941.141, 2941.144,
2941.145, 2941.146, 2941.1412, 2941.1414, or 2941.1415 of the Revised Code, in
addition to
any commitment or other disposition the court imposes
for the underlying
delinquent act, all of the following apply: (1) If the court determines that the child would be guilty
of a
specification of the
type set forth in section 2941.141 of
the Revised Code,
the court may commit the child to the department
of youth services for the
specification for a definite period of
up to one
year. (2) If the court determines that the child would be guilty
of a
specification of the
type set forth in section 2941.145 of
the Revised Code or if the delinquent act is a violation of division (A)(1) or (2) of section 2903.06 of the Revised Code and the court determines that the child would be guilty of a specification of the type set forth in section 2941.1415 of the Revised Code, the court
shall
commit the child to the
department of youth services for the specification for
a definite
period of not less than one and not more than three
years, and the
court also shall commit the child to the department for the
underlying delinquent act under sections 2152.11 to 2152.16 of the
Revised Code. (3) If the court determines that the child would be guilty
of a
specification of the type set forth in section 2941.144,
2941.146, or 2941.1412 of
the Revised Code or if the delinquent act is a violation of division (A)(1) or (2) of section 2903.06 of the Revised Code and the court determines that the child would be guilty of a specification of the type set forth in section 2941.1414 of the Revised Code, the court shall commit the child to
the
department of youth services for the specification for a
definite
period of not less than one and not more than five years,
and the court also
shall commit the
child to the department for
the underlying delinquent act under
sections 2152.11 to 2152.16 of
the Revised Code. (B) Division (A) of this section also applies to a child
who
is
an accomplice
to the same extent the firearm specifications
would apply to an adult
accomplice in a criminal proceeding. (C) If a child is adjudicated a delinquent child for
committing
an act that would be aggravated murder, murder, or a
first, second, or third
degree felony offense of
violence if
committed by an adult and if the court
determines that, if the
child was an adult, the child would be
guilty of a specification
of the type set forth in section
2941.142 of the Revised Code in
relation to the act for which the
child was adjudicated a
delinquent child, the court shall commit
the child for the
specification to the legal custody of the
department of youth
services for institutionalization in a secure
facility for a
definite period of not less than one and not more than three
years, subject to division
(D)(2) of this section, and the
court
also
shall commit the child to the department for the underlying
delinquent act. (D)(1) If the child is adjudicated a
delinquent child for
committing an act that would be an offense of
violence that is a
felony if committed by an adult and is
committed to the legal
custody of the department of youth services
pursuant to division
(A)(1) of
section
2152.16 of the Revised Code
and
if
the court
determines
that the child, if the child was an
adult, would be
guilty of a
specification of the type set forth in
section
2941.1411 of the
Revised Code in relation to the act for
which the
child was
adjudicated a delinquent child, the court may
commit the
child to
the custody of the department of youth
services for
institutionalization in a secure facility for
up to
two
years,
subject
to
division
(D)(2) of this section. (2) A court that imposes a period of commitment under
division
(A) of this section is not
precluded from imposing
an
additional period of commitment under division
(C) or
(D)(1)
of
this section, a
court that imposes a
period of
commitment under
division
(C) of this
section is
not
precluded from imposing
an
additional period of commitment under
division (A) or
(D)(1)
of
this
section, and a court that
imposes a period of commitment
under division
(D)(1) of
this
section is not precluded from
imposing an additional period
of commitment
under division
(A) or
(C) of
this section. (E) The court shall not commit a child to the legal custody
of
the department of youth services for
a specification
pursuant
to
this section for a period that
exceeds five years
for
any
one
delinquent act. Any
commitment imposed pursuant to
division (A),
(B), (C), or
(D)(1) of this
section shall be in addition to,
and
shall be
served consecutively with and
prior to, a period of
commitment
ordered under this chapter for the underlying
delinquent act, and
each commitment imposed
pursuant to division
(A), (B), (C), or
(D)(1) of
this
section shall be in
addition
to,
and
shall be
served
consecutively with, any other period of
commitment
imposed
under
those
divisions. If a commitment is
imposed under
division
(A) or
(B) of this section and a commitment
also is
imposed under
division
(C) of
this section, the period
imposed
under division
(A) or (B)
of this section
shall be served
prior to
the period
imposed under division (C) of
this section. In each case in which a court makes a disposition under this
section, the court retains control over the commitment for the
entire period of the commitment. The total of all the periods of commitment imposed for any
specification under this section and for the underlying offense
shall not exceed the child's attainment of twenty-one years
of
age. (F) If a child is adjudicated a delinquent child for
committing
two or more acts that would be felonies if committed by
an adult and if the
court entering the delinquent child
adjudication
orders the commitment of the child for two or more of
those acts
to the legal custody of the department of youth
services for
institutionalization in a secure facility pursuant to
section
2152.13 or 2152.16
of the Revised Code, the court may
order that all of the periods of commitment imposed under those
sections for those acts be served consecutively in the legal
custody of the
department of youth services, provided that those
periods of commitment shall
be in addition to and
commence
immediately following the expiration of a period of commitment
that the court
imposes pursuant to division (A), (B), (C), or
(D)(1) of
this section. A court shall not commit a delinquent
child to
the
legal
custody of the department of youth services
under this
division for a period that exceeds the child's
attainment of
twenty-one
years of age. (G) If a child is adjudicated a delinquent child for
committing
an act that if committed by an adult would be
aggravated murder, murder, rape,
felonious sexual penetration in
violation of
former section 2907.12 of the Revised Code,
involuntary
manslaughter, a felony of the first or second degree
resulting in
the death of or physical harm to a person, complicity
in or an
attempt to commit any of those offenses, or an offense
under an
existing or former law of this state that is or was
substantially
equivalent to any of those offenses and if the court
in its order of
disposition for that act commits the child to the
custody of the department of
youth services, the adjudication
shall be considered a conviction for purposes of a future
determination
pursuant to Chapter 2929. of the Revised Code as to
whether the child, as an adult, is a repeat violent offender.
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 probation 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. "Basic probation supervision"
includes basic parole
supervision and basic post-release control
supervision. (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
or a sanction
that is not a jail term and that is described in
section 2929.26,
2929.27, or 2929.28 of the Revised Code.
"Community control
sanction" includes probation if the sentence involved was
imposed
for a felony that was committed prior to July 1, 1996, or if
the
sentence involved was imposed for a misdemeanor that was committed
prior
to January 1, 2004. (G) "Controlled substance," "marihuana," "schedule I,"
and
"schedule II" have the same meanings as in section 3719.01 of the
Revised
Code. (H) "Curfew" means a requirement that
an offender during a
specified period of time be at a designated
place. (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. (J) "Deadly weapon" has the same
meaning as in section
2923.11 of the Revised
Code. (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. (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. (M) "Economic loss" means any
economic detriment suffered by
a victim as a direct and proximate result of the commission of an offense 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 commission of the
offense. "Economic loss" does not include non-economic loss or any punitive or exemplary damages. (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
curricula or their equivalent. (O)
"Firearm" has the same meaning as
in section 2923.11 of
the Revised Code. (P) "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. (Q) "House arrest" means a period of confinement of an
offender that
is in the
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 and during which all of
the
following apply: (1) The
offender is required to remain in the
offender's
home or other specified premises
for the
specified period of confinement, except for periods of time
during
which the
offender is at the
offender's place of
employment or at other
premises as authorized by the sentencing
court or by the parole board. (2) The
offender is required
to report periodically
to a person designated by the
court or parole board. (3) The
offender is subject to any other
restrictions and requirements that may be imposed by the
sentencing court or by the parole board. (R) "Intensive probation 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. "Intensive
probation
supervision" includes intensive parole supervision and intensive
post-release control supervision. (S) "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. (T) "Jail term" means the term in a jail that a sentencing
court
imposes or is authorized to impose pursuant to section
2929.24 or
2929.25 of the
Revised Code or pursuant to any other
provision of the Revised Code that authorizes a term in a jail for
a misdemeanor conviction. (U) "Mandatory jail term" means the term in a jail that a
sentencing court is required to impose pursuant to division (G) of
section 1547.99 of the Revised Code, division (E) of section 2903.06 or division (D) of section 2903.08 of the Revised Code, division (E) of section 2929.24 of the Revised Code, division (B)
of section
4510.14 of the Revised Code, or division
(G) of section 4511.19 of
the Revised Code or pursuant to any other provision of the
Revised
Code that requires a term in a jail for a misdemeanor
conviction. (V) "Delinquent child" has the same meaning as in section
2152.02 of the
Revised Code. (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. (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 five hundred grams of
L.S.D. in a
liquid concentrate, liquid extract, or liquid
distillate form; 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, or 2925.11 of the Revised
Code
that is based on the possession of, sale of, or offer to sell
the
controlled substance. (Y) "Mandatory prison term" means any of the
following: (1) Subject to division (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 (8) or
(F)(12) to (14) 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 or one hundred twenty days in prison
that a sentencing court is required to impose for a third or
fourth degree
felony
OVI offense pursuant
to division (G)(2)
of
section 2929.13 and division
(G)(1)(d) or
(e) of
section
4511.19
of
the Revised Code or the term of one, two, three, four, or five years in prison that a sentencing court is required to impose pursuant to division (G)(2) of section 2929.13 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)(11) of section 2929.13 of the Revised
Code and
that term as
modified or terminated pursuant to
section
2971.05 of the Revised Code. (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. (AA) "Offender" means a person who,
in this state, is
convicted of or pleads guilty to a felony or a
misdemeanor. (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. (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. (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, or for
complicity in
committing, or for an attempt to commit, aggravated any of the following: (a) Aggravated murder,
murder, involuntary manslaughter, a any felony of the first or second 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 that is an offense of violence, or an attempt to commit any of these offenses if the attempt is a felony of the first or second degree; (b) 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 described in division (DD)(1)(a) of this section. (2) Either of the following applies: (a) The person previously was convicted of or pleaded
guilty
to, and
previously served
or, at the time of the offense was
serving, 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 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
(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
(DD)(2)(a)(i) or (ii) of this
section, the person was committed to the department of youth
services for that
delinquent act an offense described in division (DD)(1)(a) or (b) of this section.
(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
or
2929.24 to 2929.28 of the
Revised Code. (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
an offense. (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
house arrest
with electronic monitoring imposed after
earning credits pursuant to
section 2967.193 of the Revised Code. (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. (II) "Fourth degree felony
OVI offense" means a
violation
of division (A) of section
4511.19 of the Revised
Code
that, under
division (G) of that section, is a felony of the fourth
degree. (JJ) "Mandatory term of local
incarceration" means the term
of sixty or one hundred twenty days in a jail, a
community-based
correctional facility, a halfway house, or an alternative
residential facility that a sentencing court may impose upon a
person who is convicted of or pleads guilty to a fourth degree
felony
OVI offense pursuant to division (G)(1) of section
2929.13
of the Revised Code and division
(G)(1)(d) or
(e)
of section
4511.19 of
the
Revised Code. (KK) "Designated homicide, assault, or kidnapping
offense," "violent sex 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. (LL) "Habitual sex offender," "sexually oriented
offense,"
"sexual predator," "registration-exempt sexually oriented offense," "child-victim oriented offense," "habitual child-victim offender," and "child-victim predator" have the same meanings as in section 2950.01
of the Revised Code. (MM) An offense is "committed in the vicinity of a child"
if
the offender commits the offense within thirty feet of or within
the same
residential unit as a child who
is under eighteen years
of age, regardless of whether the offender knows the
age of the
child or whether the offender knows the offense is
being committed
within thirty feet of or within the same residential unit as
the
child and regardless of whether the child actually views the
commission of
the offense. (NN) "Family or household member" has the same meaning as
in
section 2919.25 of the Revised Code. (OO) "Motor vehicle" and "manufactured home" have the
same
meanings as in section 4501.01 of the Revised Code. (PP) "Detention" and "detention facility" have the same
meanings as in section 2921.01 of the Revised Code. (QQ) "Third degree felony
OVI offense" means a
violation of
division (A) of section 4511.19 of the Revised Code
that, under
division (G) of that section, is a felony of
the third
degree. (RR) "Random drug testing" has the same meaning as in
section 5120.63 of the Revised Code. (SS) "Felony sex offense" has the same meaning as in
section
2967.28 of the Revised Code. (TT) "Body armor" has the same meaning as in section
2941.1411 of the Revised Code. (UU) "Electronic monitoring" means monitoring through the
use of an electronic monitoring device.
(VV) "Electronic monitoring device" means any of the
following:
(1) Any device that can be operated by electrical or battery
power and that conforms with all of the following:
(a) The device has a transmitter that can be attached to a
person, that will transmit a specified signal to a receiver of the
type described in division (VV)(1)(b) of this section if the
transmitter is removed from the person, turned off, or altered in
any manner without prior court approval in relation to electronic
monitoring or without prior approval of the department of
rehabilitation and correction in relation to the use of an
electronic monitoring device for an inmate on transitional control
or otherwise is tampered with, that can transmit continuously and
periodically a signal to that receiver when the person is within a
specified distance from the receiver, and that can transmit an
appropriate signal to that receiver if the person to whom it is
attached travels a specified distance from that receiver.
(b) The device has a receiver that can receive continuously
the signals transmitted by a transmitter of the type described in
division (VV)(1)(a) of this section, can transmit continuously
those signals by telephone to a central monitoring computer of the
type described in division (VV)(1)(c) of this section, and can
transmit continuously an appropriate signal to that central
monitoring computer if the receiver is turned off or altered
without prior court approval or otherwise tampered with.
(c) The device has a central monitoring computer that can
receive continuously the signals transmitted by telephone by a
receiver of the type described in division (VV)(1)(b) of this
section and can monitor continuously the person to whom an
electronic monitoring device of the type described in division
(VV)(1)(a) of this section is attached.
(2) Any device that is not a device of the type described in
division (VV)(1) of this section and that conforms with all of the
following: (a) The device includes a transmitter and receiver that can
monitor and determine the location of a subject person at any
time, or at a designated point in time, through the use of a
central monitoring computer or through other electronic means.
(b) The device includes a transmitter and receiver that can
determine at any time, or at a designated point in time, through
the use of a central monitoring computer or other electronic means
the fact that the transmitter is turned off or altered in any
manner without prior approval of the court in relation to the
electronic monitoring or without prior approval of the department
of rehabilitation and correction in relation to the use of an
electronic monitoring device for an inmate on transitional control
or otherwise is tampered with.
(3) Any type of technology that can adequately track or
determine the location of a subject person at any time and that is
approved by the director of rehabilitation and correction,
including, but not limited to, any satellite technology, voice
tracking system, or retinal scanning system that is so approved. (WW) "Non-economic loss" means nonpecuniary harm suffered by a victim of an offense as a result of or related to the commission of the offense, including, but not limited to, pain and suffering; loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education; mental anguish; and any other intangible loss. (XX) "Prosecutor" has the same meaning as in section 2935.01 of the Revised Code. (YY) "Continuous alcohol monitoring" means the ability to automatically test and periodically transmit alcohol consumption levels and tamper attempts at least every hour, regardless of the location of the person who is being monitored.
(ZZ) A person is "adjudicated a sexually violent predator" if the person is convicted of or pleads guilty to a violent sex 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 violent sex offense or if the person is convicted of or pleads guilty to a designated homicide, assault, or kidnapping offense and also is convicted of or pleads guilty to both a sexual motivation specification and a sexually violent predator specification that were included in the indictment, count in the indictment, or information charging that designated homicide, assault, or kidnapping 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
OVI offense or for a third degree felony OVI 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) For a fourth degree felony OVI offense for which
sentence is
imposed under division (G)(1) of this section, an
additional
community control sanction
or combination of community
control sanctions under section 2929.16 or 2929.17
of the Revised
Code. If the court imposes upon the offender a community control sanction and the offender violates any condition of the community control sanction, the court may take any action prescribed in division (B) of section 2929.15 of the Revised Code relative to the offender, including imposing a prison term on the offender pursuant to that division. (2) For a third or fourth degree felony OVI offense for
which
sentence is imposed under division (G)(2) of this section,
an additional
prison term as
described in division (D)(4) of
section 2929.14 of the Revised Code or a community control sanction as described in division (G)(2) of this section. (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 at the time of the offense was serving, or
the offender previously had served, a prison term. (h) The offender committed the offense while under a
community control
sanction, while on probation, or while released
from custody on a bond or
personal recognizance. (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),
(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), (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), (F), or (G) 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,
2925.11, 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
violates the conditions of a community
control sanction
imposed for the offense 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 narcotics anonymous or a
similar program,
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. (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
if, had
the offender completed the rape that was
attempted, the
offender
would have been subject to a sentence of
life
imprisonment or life
imprisonment without parole for the
rape; (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 2903.04, 2903.06,
2903.08,
2903.11, 2903.12, or
2903.13 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
either is a violation of section 2903.04 of the Revised Code or an attempt to commit a felony of the second degree that is an offense of violence and involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person 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; of the following offenses: (a) Aggravated murder, murder, involuntary manslaughter, rape, felonious sexual penetration as it existed under section 2907.12 of the Revised Code 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; (b) 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 in division (F)(7)(a) of this section that resulted in the death of a person or in physical harm to a person. (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; (9) Any offense of violence that is a felony, if the
offender wore or carried body armor while committing the felony
offense of violence, with respect to the portion of the sentence
imposed pursuant to division (D)(1)(d) of section 2929.14 of the
Revised Code for wearing or carrying the body armor; (10) 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; (11) Any violent sex offense or designated homicide, assault, or kidnapping offense if, in relation to that offense, the offender
is adjudicated a sexually violent
predator; (12) 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;
(13) A violation of division (A)(1) or (2) of section 2903.06 of the Revised Code if the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, with respect to the portion of the sentence imposed pursuant to division (D)(5) of section 2929.14 of the Revised Code;
(14) A violation of division (A)(1) or (2) of section 2903.06 of the Revised Code if the offender has been convicted of or pleaded guilty to three or more violations of division (A) or (B) of section 4511.19 of the Revised Code or an equivalent offense, as defined in section 2941.1415 of the Revised Code, or three or more violations of any combination of those divisions and offenses, with respect to the portion of the sentence imposed pursuant to division (D)(6) of section 2929.14 of the Revised Code. (G) Notwithstanding divisions (A) to (E) of
this section, if
an offender is being sentenced for a fourth degree felony
OVI
offense or for a third degree felony OVI 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) If the offender is being sentenced for a fourth degree
felony
OVI offense and if the offender has not been convicted of and has not pleaded guilty to a specification of the type described in section 2941.1413 of the Revised Code, the court may impose upon the offender a
mandatory term
of local incarceration
of sixty days or one hundred
twenty days as specified
in division (G)(1)(d) of section 4511.19
of
the Revised Code. The court
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. 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 except as provided in division (A)(1) of this section. (2) If the offender is being sentenced for a third
degree
felony OVI offense,
or if the offender is being sentenced for a
fourth degree felony OVI
offense and the court does not impose a
mandatory term of local incarceration
under division (G)(1) of
this section, the court shall impose upon the
offender a mandatory prison term of one, two, three, four, or five years if the offender also is convicted of or also pleads guilty to a specification of the type described in section 2941.1413 of the Revised Code or shall impose upon the offender a mandatory
prison term of sixty days or one hundred twenty days as specified
in division (G)(1)(d) or (e)
of
section 4511.19 of the Revised Code if the offender has not been convicted of and has not pleaded guilty to a specification of that type. The
court shall not reduce the term pursuant
to section
2929.20,
2967.193, or any other provision of the Revised Code. The offender shall serve the one-, two-, three-, four-, or five-year mandatory prison term consecutively to and prior to the prison term imposed for the underlying offense and consecutively to any other mandatory prison term imposed in relation to the offense. 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 OVI offense be
sentenced to another
mandatory
term of local incarceration under
that division for any
violation of division
(A) of section 4511.19
of the Revised Code.
In addition to the mandatory prison term described in division (G)(2) of this section, the court may sentence the
offender to
a
community control
sanction under section 2929.16 or 2929.17 of
the Revised
Code, but the offender shall serve the prison term prior to serving the community control sanction.
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 violent sex offense or a designated homicide, assault, or kidnapping offense and, in relation to that offense, the
offender was
adjudicated a sexually
violent predator. (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 that is not a registration-exempt sexually oriented offense or for a child-victim oriented offense committed on or after January 1,
1997, the judge
shall
include in the sentence a summary of the
offender's duties imposed under sections 2950.04, 2950.041, 2950.05, and
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)(1), (D)(2), (D)(3), (D)(4), (D)(5), (D)(6), 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, 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)(1), (D)(2),
(D)(3), (D)(5), (D)(6), 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, the court shall
impose the shortest prison term authorized for the offense
pursuant to division (A) of this section, unless
one or more
of
the following applies: (1) The offender was serving a prison term at the time of
the offense, or the offender previously had served a prison term. (2) 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) Except as provided in division
(D)(1)(e) 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; (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; (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. (b) If a
court imposes a prison term on
an
offender under
division (D)(1)(a) of this section, the prison
term 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 prison term on an
offender under
division (D)(1)(a) of this section for felonies
committed as part of
the same act or transaction. (c) Except as provided in division
(D)(1)(e)
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 other than a manufactured
home, 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
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 division (D)(1)(c) of this section
relative to an offense, the court also shall
impose a prison term
under division
(D)(1)(a) 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. (d)
If an offender who is convicted of or pleads guilty to
an offense
of violence that is a felony also is convicted of or
pleads guilty to a
specification of the type described in section
2941.1411 of the Revised Code that charges the
offender with
wearing or carrying body armor
while committing the felony offense
of violence, the court shall
impose on the offender a prison term
of two years. The prison
term so imposed 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 prison term
on an offender
under division
(D)(1)(d) 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)
or (c)
of this
section, the
court is not precluded from imposing
an additional
prison term under
division (D)(1)(d) of this
section. (e) The court shall not impose any of the
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 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 2923.13 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.
(f) If an offender is convicted of or pleads guilty to a
felony that includes, as an essential element, causing or
attempting to cause
the death of or physical
harm to another and
also is convicted of or pleads guilty to a
specification of the
type described in section 2941.1412 of the
Revised Code that
charges the
offender with committing the offense by discharging a
firearm at a
peace officer as defined in section 2935.01 of the
Revised Code or a corrections officer as defined in section
2941.1412 of the Revised Code, the court, after imposing a
prison
term on the
offender for the felony offense under division (A),
(D)(2),
or
(D)(3) of this section, shall impose an additional
prison term of
seven 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 division (D)(1)(f) 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
division
(D)(1)(f) of
this section relative to an offense,
the
court
shall not impose a
prison term under division (D)(1)(a)
or
(c)
of
this section
relative to the same 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 division (D)(2)(b) of this section does not apply, the
court shall
may impose a on an offender, in addition to the longest prison term from the range of terms
authorized or required 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), an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if all of the following criteria are met: (i) The offender 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.
(i) The offender 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. (ii) The offense of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole, murder, terrorism and the court does not impose a sentence of life imprisonment without parole, any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole, or any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person. (iii) The court imposes the longest prison term for the offense that is not life imprisonment without parole. (iv) The terms so imposed court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section 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)(v) The terms so imposed court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section 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.
(b) The court shall impose on an offender the longest prison term authorized or required for the offense and shall impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if all of the following criteria are met: (i) The offender 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.
(ii) The offender within the preceding twenty years has been convicted of or pleaded guilty to three or more offenses described in division (DD)(1) of section 2929.01 of the Revised Code, including all offenses described in that division of which the offender is convicted or to which the offender pleads guilty in the current prosecution and all offenses described in that division of which the offender previously has been convicted or to which the offender previously pleaded guilty, whether prosecuted together or separately. (iii) The offense or offenses of which the offender currently is convicted or to which the offender currently pleads guilty is aggravated murder and the court does not impose a sentence of death or life imprisonment without parole, murder, terrorism and the court does not impose a sentence of life imprisonment without parole, any felony of the first degree that is an offense of violence and the court does not impose a sentence of life imprisonment without parole, or any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person. (c) For purposes of division (D)(2)(b) of this section, two or more offenses committed at the same time or as part of the same act or event shall be considered one offense, and that one offense shall be the offense with the greatest penalty. (d) A sentence imposed under division (D)(2)(a) or (b) of this section shall not be reduced pursuant to section 2929.20 or section 2967.193, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code. The offender shall serve an additional prison term imposed under this section consecutively to and prior to the prison term imposed for the underlying offense. (e) When imposing a sentence pursuant to division (D)(2)(a) or (b) of this section, the court shall state its findings explaining the imposed sentence. (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 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, if
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
sentence upon the offender 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,
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 if the offender is guilty of
an attempted
violation of section 2907.02 of the Revised Code and, had the
offender completed the violation of section 2907.02 of the Revised
Code that was attempted, the offender would have been subject to a
sentence of life imprisonment or life imprisonment without parole
for the violation of section 2907.02 of the Revised Code, 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)(a)(iv) and (ii)(v) of this section. (4) If the offender is being sentenced for a third or fourth
degree felony
OVI offense under division (G)(2) of section
2929.13
of the Revised
Code,
the sentencing court shall impose
upon the
offender a mandatory prison term in
accordance with that
division.
In addition to the mandatory prison term, if the offender is being
sentenced for a fourth degree felony OVI offense, the court,
notwithstanding division (A)(4) of this section, may sentence the
offender to a definite prison term of not less than six months and
not more than thirty months, and if the offender is being
sentenced for a third degree felony OVI offense, the
sentencing
court may sentence the offender to an additional prison
term of
any
duration specified in division (A)(3) of this section. In
either case, the additional prison term imposed shall be reduced
by the sixty or one
hundred twenty 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
or one hundred twenty days imposed as the
mandatory prison term
shall equal a definite term in the range of six months to thirty
months for a fourth degree felony OVI offense and shall equal one
of
the authorized prison
terms specified in division (A)(3) of
this section for a third degree felony OVI offense. 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. In addition to the mandatory prison term or mandatory and additional prison term imposed as described in division (D)(4) of this section, the
court also may sentence the offender to a community
control sanction under
section 2929.16 or 2929.17 of the Revised
Code, but the offender shall serve all of the prison terms so imposed prior to serving the community control sanction.
If the offender is being sentenced for a fourth degree felony OVI offense under division (G)(1) of section 2929.13 of the Revised Code and the court imposes a mandatory term of local incarceration, the court may impose a prison term as described in division (A)(1) of that section. (5) If an offender is convicted of or pleads guilty to a
violation of division (A)(1) or (2) of section 2903.06 of the
Revised Code and also is convicted of or pleads guilty to a
specification of the type described in section 2941.1414 of the
Revised Code that charges that the victim of the offense is a
peace officer, as defined in section 2935.01 of the Revised Code,
the court shall impose on the offender a prison term of five
years. If a court imposes a prison term on an offender under
division (D)(5) of this section, the prison term 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 prison term on an
offender under division (D)(5) of this section for felonies
committed as part of the same act.
(6) If an offender is convicted of or pleads guilty to a
violation of division (A)(1) or (2) of section 2903.06 of the
Revised Code and also is convicted of or pleads guilty to a
specification of the type described in section 2941.1415 of the
Revised Code that charges that the offender previously has been
convicted of or pleaded guilty to three or more violations of division (A)
or (B) of section 4511.19 of the Revised Code or an equivalent
offense, as defined in section 2941.1415 of the Revised Code, or three or more violations of any combination of those divisions and offenses, the
court shall impose on the offender a prison term of three years.
If a court imposes a prison term on an offender under division
(D)(6) of this section, the prison term 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 prison term on an offender
under division (D)(6) of this section for felonies committed as
part of the same act. (E)(1)(a) Subject to division
(E)(1)(b) of this section, 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, if a mandatory prison term
is imposed
upon an
offender pursuant to division (D)(1)(c) 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
any mandatory prison
term
imposed under either division
consecutively to any other
mandatory prison term imposed under either division
or under
division (D)(1)(d) of this
section,
consecutively to and prior to
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. (b) If a mandatory prison term is imposed upon an offender
pursuant to division (D)(1)(d) of this section for
wearing or
carrying body armor while committing an offense of violence that
is a felony,
the offender shall serve the mandatory
term so
imposed consecutively to any other mandatory prison term
imposed
under that division or under division (D)(1)(a)
or (c) of
this
section, consecutively to and prior to any prison term imposed for
the underlying felony under 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. (c) If a mandatory prison term is imposed upon an offender
pursuant to division (D)(1)(f) of this section, the offender shall
serve the mandatory prison term so imposed consecutively to and
prior to any prison term imposed for the underlying felony under
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. (3) If a prison term is imposed for a violation of division
(B) of section 2911.01 of the Revised
Code, a violation of division (A) of section 2913.02 of the Revised Code in which the stolen property is a firearm or dangerous ordnance, or a felony violation of division
(B) of section 2921.331
of the Revised Code, the offender shall serve that
prison term
consecutively to any
other prison term or mandatory prison term
previously or subsequently
imposed upon the offender. (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
one or more of 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)
At least two of the multiple offenses were committed
as
part of one or more courses of conduct, and the harm caused by
two
or more of the multiple offenses
so committed
was so great or
unusual that no single prison term for any of the
offenses
committed as part of
any of the courses 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) If a mandatory prison term is imposed upon an offender
pursuant to division (D)(5) or (6) of this section, the offender
shall serve the mandatory prison term consecutively to and prior
to any prison term imposed for the underlying violation of
division (A)(1) or (2) of section 2903.06 of the Revised Code
pursuant to division (A) of this section. If a mandatory prison
term is imposed upon an offender pursuant to division (D)(5) of
this section, and if a mandatory prison term also is imposed upon
the offender pursuant to division (D)(6) of this section in
relation to the same violation, the offender shall serve the
mandatory prison term imposed pursuant to division (D)(5) of this
section consecutively to and prior to the mandatory prison term
imposed pursuant to division (D)(6) of this section and
consecutively to and prior to any prison term imposed for the
underlying violation of division (A)(1) or (2) of section 2903.06
of the Revised Code pursuant to division (A) of this section. (6) When consecutive prison terms are imposed pursuant
to
division (E)(1), (2), (3), (4), or (5) 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
violent sex
offense or a designated homicide, assault, or kidnapping offense and, in relation to that offense, the offender is adjudicated a sexually violent
predator, 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) If an offender who is convicted of or pleads guilty to
aggravated murder, murder, or a
felony of the first, second, or
third degree that is an
offense of violence also is convicted of
or pleads guilty to a
specification of the type described in
section 2941.143 of the
Revised
Code that charges the offender
with having committed the offense in a school safety
zone or
towards a person in a school safety zone, the court shall impose
upon the offender an additional prison term of two years. The
offender shall
serve the additional two years consecutively to and
prior to the prison term
imposed for the underlying offense. (K) At the time of sentencing, the court
may recommend the
offender for
placement in a program of shock incarceration
under
section 5120.031 of the Revised Code or for
placement
in an
intensive program prison
under
section 5120.032 of the Revised
Code, disapprove placement of the
offender in a program of shock
incarceration or
an intensive
program
prison
of that nature, or
make
no recommendation on placement of
the offender.
In no case
shall
the department of rehabilitation and correction place the
offender
in a program or prison of that nature unless the
department
determines as specified in section 5120.031 or 5120.032
of the
Revised Code, whichever is applicable, that the offender is
eligible for the placement. 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
recommends placement of the offender in
a
program of shock
incarceration or in an intensive program
prison,
and if the offender
is subsequently placed in the recommended
program or
prison, the
department shall notify the court of the
placement and shall
include with the notice a brief description of
the placement. If the court
recommends 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
offender
and if the
department
determines as specified in section 5120.031 or 5120.032
of the
Revised Code, whichever is applicable, that the offender is
eligible for placement in a program or prison of that nature, 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
as specified in
section 5120.031 or 5120.032 of the Revised Code 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. 2941.149. (A) The determination by a court that an offender
is a repeat violent offender is precluded unless the
indictment, count in the indictment, or information charging the
offender specifies that the offender is a repeat violent
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 repeat violent offender)." (B) The court shall determine the issue of whether an offender is a repeat
violent offender. (C) At the arraignment or as soon thereafter as is practicable, the prosecuting attorney may give notice to the defendant of the prosecuting attorney's intention to use a certified copy of the entry of judgment of a prior conviction as proof of that prior conviction. The defendant must then give notice to the prosecuting attorney of the defendant's intention to object to the use of the entry of judgment. If the defendant pursuant to Criminal Rule 12 does not give notice of that intention to the prosecuting attorney before trial, the defendant waives the objection to the use of an entry of judgment as proof of the defendant's prior conviction, as shown on the entry of judgment. (D) As used in this section, "repeat violent offender" has the same meaning
as in section 2929.01 of the Revised Code.
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, 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
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 (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 violent sex
offense or a designated homicide, assault, or kidnapping offense, was adjudicated a sexually violent predator in relation to that offense, 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,
"designated homicide, assault, or kidnapping offense" and "violent sex offense" have the same
meanings as in section 2971.01 of the Revised Code. As used in this division, "adjudicated a sexually violent predator" has the same meaning as in section 2929.01 of the Revised Code, and a person is "adjudicated a sexually violent predator" in the same manner and the same circumstances as are described in that section. (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)(a) 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)(1) 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. (2) A defendant may seek leave to appeal an additional sentence imposed upon the defendant pursuant to division (D)(2)(a) or (b) of section 2929.14 of the Revised Code if the additional sentence is for a definite prison term that is longer than five years. (D)(1) 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. (2) Except as provided in division (C)(2) of this section, a sentence imposed upon a defendant is not subject to review under this section if the sentence is imposed pursuant to division (D)(2)(b) of section 2929.14 of the Revised Code. Except as otherwise provided in this division, a defendant retains all rights to appeal as provided under this chapter or any other provision of the Revised Code. A defendant has the right to appeal under this chapter or any other provision of the Revised Code the court's application of division (D)(2)(c) of section 2929.14 of the Revised Code. (3) A sentence imposed for aggravated murder or murder
pursuant to sections 2929.02 to 2929.06 of the Revised
Code is not subject to review under this section. (E) A defendant, prosecuting attorney, city
director of law, village solicitor, or chief municipal legal
officer shall file an appeal of a sentence under this section to
a court of appeals within the time limits specified in
Rule 4(B) of the Rules of
Appellate Procedure, provided that if the appeal is pursuant
to division (B)(3) of this section, the time limits specified in that
rule shall not commence running until the court grants the motion that makes
the sentence modification in question. A sentence appeal under
this section shall be consolidated with any other appeal in the
case. If no other appeal is filed, the court of appeals may
review only the portions of the trial record that pertain to
sentencing. (F) On the appeal of a sentence under this
section, the record to be reviewed shall include all of the
following, as applicable: (1) Any presentence, psychiatric, or other
investigative report that was submitted to the court in writing
before the sentence was imposed. An appellate court that
reviews a presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in connection
with the appeal of a sentence under this section shall comply with division
(D)(3) of section 2951.03 of the Revised Code when the appellate court is not
using the presentence investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection with the appeal
of a sentence under this section does not affect the otherwise confidential
character of the contents of that report as described in division
(D)(1) of section 2951.03 of the Revised Code and does not cause that report
to become a public record, as defined in section 149.43 of the Revised Code,
following the appellate court's use of the report. (2) The trial record in the case in which the sentence
was imposed; (3) Any oral or written statements made to or by the
court at the sentencing hearing at which the sentence was
imposed; (4) Any written findings that the court was required to
make in connection with the modification of the sentence pursuant
to a judicial release under division (H) of section
2929.20 of the Revised Code. (G)(1) If the sentencing court was required to make the findings required
by division (B) or (D) of section 2929.13, division
(D)(2)(e) or (E)(4) of section 2929.14, or division (H) of section 2929.20 of the
Revised Code relative to the imposition or modification of the sentence,
and if the sentencing court failed to state the required findings on the
record, the court hearing
an appeal under division (A), (B), or (C) of this
section shall
remand the case to the sentencing court and instruct the sentencing court
to state, on the record, the required findings. (2)
The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the
sentence or modification given by the sentencing court. The appellate court
may
increase, reduce, or otherwise modify a sentence that is appealed
under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing.
The appellate court's standard for review is not
whether
the sentencing court abused its discretion. The appellate court may
take any action authorized by this
division
if it clearly
and convincingly finds either of the following: (a) That the record does not support the
sentencing court's findings under division (B) or
(D) of section
2929.13, division (D)(2)(e) or (E)(4) of section 2929.14, or division (H)
of
section 2929.20 of the Revised Code, whichever, if any, is
relevant; (b) That the sentence is otherwise contrary to law. (H) A judgment or final order of a court of
appeals under this section may be appealed, by leave of court, to
the supreme court. (I)(1) There is hereby
established the felony sentence appeal cost oversight committee,
consisting of eight members. One member shall be the chief
justice of the supreme court or a representative of the court
designated by the chief justice, one member shall be a member of
the senate appointed by the president of the senate, one member
shall be a member of the house of representatives appointed by
the speaker of the house of representatives, one member shall be
the director of budget and management or a representative of the office of
budget and management designated
by the director, one member shall be a judge of a court of
appeals, court of common pleas, municipal court, or county court
appointed by the chief justice of the supreme court, one member
shall be the state public defender or a representative of the
office of the state public defender designated by the state
public defender, one member shall be a prosecuting attorney
appointed by the Ohio prosecuting attorneys association, and one member shall
be a county commissioner appointed by the county commissioners
association of Ohio. No more than three of the appointed members of the
committee may be members of the same political party. The president of the senate, the speaker of the house of
representatives, the chief justice of the supreme court, the
Ohio prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial
appointments to the committee of the appointed members no later
than ninety days after July 1, 1996. Of
those initial appointments to the committee, the members
appointed by the speaker of the house of representatives and the
Ohio prosecuting attorneys
association shall serve a term ending two years after July 1, 1996, the member
appointed by
the chief justice of the supreme court shall serve
a term ending three years after July 1, 1996, and the members appointed by the
president of the
senate and the county commissioners association of
Ohio shall serve terms ending
four years after July 1, 1996. Thereafter, terms of office of the appointed
members shall be
for four years, with each term ending on the same day of the
same month as did the term that it succeeds. Members may be
reappointed. Vacancies shall be filled in the same
manner provided for original appointments. A member appointed
to fill a vacancy occurring prior to the expiration of the term
for which that member's predecessor was appointed shall hold
office as a member for the remainder of the predecessor's term. An appointed
member shall continue in office subsequent to the
expiration date of that member's term until that member's
successor takes office or until a period of sixty days has
elapsed, whichever occurs first. If the chief justice of the supreme court, the director of
the office of budget and management, or the state public
defender serves as a member of the committee, that person's term
of office as a member shall continue for as long as that person
holds office as chief justice, director of the office of budget
and management, or state public defender. If the chief justice
of the supreme court designates a representative of the court to
serve as a member, the director of budget and management
designates a representative of the office of budget and
management to serve as a member, or the state public
defender designates a representative of the office of the state
public defender to serve as a member, the person so designated
shall serve as a member of the commission for as long as the
official who made the designation holds office as chief justice,
director of the office of budget and management, or state public
defender or until that official revokes the designation. The chief justice of the supreme court or the
representative of the supreme court appointed by the chief
justice shall serve as chairperson of the committee. The committee
shall meet within two weeks after all appointed members have
been appointed and shall organize as necessary. Thereafter, the
committee shall meet at least once every six months or more
often upon the call of the chairperson or the written request of
three or more members, provided that the committee shall not meet unless
moneys have been appropriated to the judiciary budget administered by the
supreme court specifically for the purpose of providing financial assistance
to counties under division (I)(2) of this section and the moneys so
appropriated then are available for that purpose. The members of the committee shall serve without
compensation, but, if moneys have been appropriated to the judiciary
budget administered by the supreme court specifically for the purpose of
providing financial assistance to counties under division (I)(2) of
this section, each member shall be reimbursed out of the moneys so
appropriated that then are available for actual and
necessary expenses incurred in the performance of official
duties as a committee member. (2) The state criminal sentencing commission periodically shall provide to
the felony sentence appeal cost oversight committee all data the commission
collects pursuant to division
(A)(5) of section 181.25 of
the Revised Code. Upon receipt of the
data from the state criminal sentencing commission, the
felony sentence appeal cost oversight committee periodically
shall review the data; determine whether any money has been
appropriated to the judiciary budget administered by the supreme court
specifically for the purpose of providing state financial assistance to
counties in accordance with this division for the increase in expenses
the counties experience as a result of the felony sentence
appeal provisions set forth in this section or as a result of a postconviction
relief proceeding brought under division (A)(2) of section 2953.21
of the Revised Code or an appeal of a judgment in that proceeding; if it
determines that any money has been so appropriated, determine the total amount
of moneys that have been so appropriated specifically for
that purpose and that then are available for that
purpose; and develop a recommended method of distributing those
moneys to the counties. The committee shall send a copy of its
recommendation to the supreme court. Upon receipt of the
committee's recommendation, the supreme court shall distribute
to the counties, based upon that recommendation, the moneys that
have been so appropriated specifically for the purpose of providing
state financial assistance to counties under this
division and that then are available for that purpose.
Section 2. That existing sections 2152.17, 2929.01, 2929.13, 2929.14, 2941.149, and 2953.08 of the Revised Code are hereby repealed.
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