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Sub. S. B. No. 183 As Passed by the HouseAs Passed by the House
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Coughlin, Austria, Cates, Clancy, Faber, Gardner, Grendell, Padgett, Fedor, Harris, Mason, Miller, R., Mumper, Spada, Wilson
Representatives Sears, Dyer, Adams, Bacon, Blessing, Bolon, Collier, Combs, Daniels, DeBose, Dolan, Domenick, Evans, Flowers, Gardner, Gibbs, Hagan, J., Heard, Heydinger, Hottinger, Hughes, Jones, Letson, Lundy, Mallory, Mandel, McGregor, J., Mecklenborg, Patton, Raussen, Schindel, Schlichter, Schneider, Setzer, Slesnick, Stebelton, Szollosi, Uecker, Wachtmann, Zehringer
A BILL
To amend sections 2907.07, 2907.21, 2907.40, and
2929.13 of
the Revised
Code to
provide
mandatory minimum
prison terms
for persons
who
plead guilty to or
are convicted
of
importuning, to
modify the definition of "adult
cabaret" as used in connection
with the operation
of a sexually oriented business, and to
apply the
offense of compelling prostitution to an offender
who
believes the person solicited is a minor.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2907.07, 2907.21, 2907.40, and 2929.13 of the
Revised
Code be
amended to read as follows:
Sec. 2907.07. (A) No person shall solicit a person
who is
less than thirteen years of age to engage in sexual activity
with
the
offender, whether or not the offender knows the age of such
person.
(B) No person shall solicit another, not the spouse of the
offender, to engage in sexual conduct with the offender, when the
offender is eighteen years of age or older and four or more years
older than the other person, and the other person is
thirteen
years of age or older
but less than
sixteen
years of
age, whether
or
not the offender
knows the age of the
other
person.
(C) No person shall solicit another by means of a
telecommunications
device, as defined in section 2913.01 of the
Revised Code,
to
engage in sexual activity with the offender when
the offender is eighteen
years of age or older and either of the
following applies:
(1) The other person is less than thirteen years of age, and
the
offender knows that the other person is less than thirteen
years of age or
is reckless in that regard.
(2) The other person is a law enforcement officer posing as
a
person who is less than thirteen years of age, and the offender
believes that
the
other person is less than thirteen years of age
or is reckless in that
regard.
(D) No person shall solicit another by means of a
telecommunications device, as defined in section 2913.01 of the
Revised Code, to engage in sexual
activity with the offender when
the offender is eighteen years of age or older
and either of the
following applies:
(1) The other person is
thirteen years of age or
older but
less than
sixteen
years of
age,
the
offender knows
that the other
person is
thirteen years
of age or
older but
less than
sixteen
years of age or is
reckless in that
regard, and the offender is
four or more years
older than the
other person.
(2) The other person is a law enforcement officer posing as
a
person who is
thirteen years of age or older but
less than
sixteen
years of age,
the
offender believes
that the
other person
is
thirteen years of age or
older but
less than
sixteen years of
age
or is reckless
in that regard, and
the offender is four or
more
years older than
the age the law
enforcement officer assumes
in
posing as the
person who is
thirteen years of age or older but
less than
sixteen years of age.
(E) Divisions (C) and (D) of this section apply
to any
solicitation that is
contained in a transmission via a
telecommunications device that either
originates in this state or
is received in this state.
(F)(1) Whoever violates this section is guilty of
importuning.
A
(2) Except as otherwise provided in this division, a
violation of division (A)
or (C) of this section
is a
felony of
the third degree on a first
offense, and a felony
of the second
degree on each
subsequent offense. Notwithstanding,
notwithstanding division (C) of
section 2929.13 of the Revised
Code, there is a presumption that a
prison term shall be imposed
for a violation of division (A) or
(C) of this section as
described in division (D) of section
2929.13 of the Revised Code.
If the offender previously has been convicted of a sexually
oriented offense or a child-victim oriented offense, a violation
of division (A) or (C) of this section is a felony of the second
degree, and the court shall
impose upon the offender as a
mandatory
prison term one of the
prison terms prescribed in
section 2929.14
of the Revised Code for
a felony of the second
degree.
(3) A
violation of
division (B) or
(D)
of this
section is a
felony of
the fifth
degree on a first offense,
and a
felony of
the
fourth
degree
on
each subsequent offense, notwithstanding
division (B) of section 2929.13 of the Revised Code, there is a
presumption that a prison term shall be imposed as described in
division (D) of section 2929.13 of the Revised Code. If the
offender previously has been convicted of a sexually oriented
offense or a child-victim oriented offense, a violation of
division (B) or (D) of this section is a felony of the fourth
degree, and the court shall impose upon the
offender as a
mandatory
prison term one of the prison terms
prescribed in
section 2929.14
of the Revised Code for a felony of
the fourth
degree that is not
less than twelve months in duration.
Sec. 2907.21. (A) No person shall knowingly do any of the
following:
(1) Compel another to engage in sexual activity for hire;
(2) Induce, procure, encourage, solicit, request,
or
otherwise facilitate a either of the following:
(a) A minor to engage
in sexual activity for hire, whether or
not the offender knows
the age of the minor;
(b) A person the offender believes to be a minor to engage in
sexual activity for hire, whether or not the person is a minor.
(3)(a) Pay or agree to pay a minor, either directly or
through the minor's agent, so that the minor will engage in
sexual
activity, whether or not the offender knows the age of the
minor;
(b) Pay or agree to pay a person the offender believes to be
a minor, either directly or through the person's agent, so that
the person will engage in sexual activity, whether or not the
person is a minor.
(4)(a) Pay a minor, either directly or through the minor's
agent, for the minor having engaged in sexual activity, pursuant
to a prior agreement, whether or not the offender knows the age
of
the minor;
(b) Pay a person the offender believes to be a minor, either
directly or through the person's agent, for the person having
engaged in sexual activity pursuant to a prior agreement, whether
or not the person is a minor.
(5)(a) Allow a minor to engage in sexual activity for hire if
the person
allowing the child to engage in sexual activity for
hire is the parent,
guardian, custodian, person having custody or
control, or person in loco
parentis of the minor;
(b) Allow a person the offender believes to be a minor to
engage in sexual activity for hire if the person allowing the
person to engage in sexual activity for hire is the parent,
guardian, custodian, person having custody or control, or person
in loco parentis of the person the offender believes to be a
minor, whether or not the person is a minor.
(B) Whoever violates this section is guilty of compelling
prostitution. Except as otherwise provided in this
division,
compelling prostitution is a felony of the third degree.
If the
offender commits a violation of division (A)(1) of this
section
and the person compelled to
engage in sexual activity for hire in
violation of that division is less than
sixteen years of age,
compelling prostitution is a felony of the second
degree.
Sec. 2907.40. (A) As used in this section:
(1) "Adult bookstore" or "adult video store" means a
commercial establishment that has as a significant or substantial
portion of its stock in trade or inventory in, derives a
significant or substantial portion of its revenues from, devotes a
significant or substantial portion of its interior business or
advertising to, or maintains a substantial section of its sales or
display space for the sale or rental, for any form of
consideration, of books, magazines, periodicals, or other printed
matter, or photographs, films, motion pictures, video cassettes,
compact discs, slides, or other visual representations, that are
characterized by their emphasis upon the exhibition or description
of specified sexual activities or specified anatomical areas.
(2) "Adult cabaret" means a nightclub, bar, juice bar,
restaurant, bottle club, or other similar commercial
establishment, regardless of whether alcoholic beverages are
served, that regularly features individuals who appear in a state
of nudity or seminudity has the same meaning as in section 2907.39
of the Revised Code.
(3) "Adult motion picture theater" means a commercial
establishment where films, motion pictures, videocassettes,
slides, or similar photographic reproductions that are
characterized by their emphasis upon the display of specified
sexual activities or specified anatomical areas are regularly
shown to more than five individuals for any form of consideration.
(4) "Characterized by" means describing the essential
character or quality of an item.
(5) "Employee" means any individual who performs any service
on the premises of a sexually oriented business on a full-time,
part-time, or contract basis, regardless of whether the individual
is denominated an employee, independent contractor, agent, or
otherwise, but does not include an individual exclusively on the
premises for repair or maintenance of the premises or for the
delivery of goods to the premises.
(6) "Nudity," "nude," or "state of nudity" has the same
meaning as in section 2907.39 of the Revised Code.
(7) "Operator" means any individual on the premises of a
sexually oriented business who causes the business to function or
who puts or keeps in operation the business or who is authorized
to manage the business or exercise overall operational control of
the business premises.
(8) "Patron" means any individual on the premises of a
sexually oriented business except for any of the following:
(a) An operator or an employee of the sexually oriented
business;
(b) An individual who is on the premises exclusively for
repair or maintenance of the premises or for the delivery of goods
to the premises;
(c) A public employee or a volunteer firefighter emergency
medical services worker acting within the scope of the public
employee's or volunteer's duties as a public employee or
volunteer.
(9) "Premises" means the real property on which the sexually
oriented business is located and all appurtenances to the real
property, including, but not limited, to the sexually oriented
business, the grounds, private walkways, and parking lots or
parking garages adjacent to the real property under the ownership,
control, or supervision of the owner or operator of the sexually
oriented business.
(10) "Regularly" means consistently or repeatedly.
(11) "Seminude" or "state of seminudity" has the same meaning
as in section 2907.39 of the Revised Code.
(12) "Sexual device" means any three-dimensional object
designed and marketed for stimulation of the male or female human
genitals or anus or female breasts or for sadomasochistic use or
abuse of oneself or others, including, but not limited to, dildos,
vibrators, penis pumps, and physical representations of the human
genital organs, but not including devices primarily intended for
protection against sexually transmitted diseases or for preventing
pregnancy.
(13) "Sexual device shop" means a commercial establishment
that regularly features sexual devices, but not including any
pharmacy, drug store, medical clinic, or establishment primarily
dedicated to providing medical or healthcare products or services,
and not including any commercial establishment that does not
restrict access to its premises by reason of age.
(14) "Sexual encounter center" means a business or commercial
enterprise that, as one of its principal business purposes,
purports to offer for any form of consideration physical contact
in the form of wrestling or tumbling between individuals of the
opposite sex when one or more of the individuals is nude or
seminude.
(15) "Sexually oriented business" means an adult bookstore,
adult video store, adult cabaret, adult motion picture theater,
sexual device shop, or sexual encounter center, but does not
include a business solely by reason of its showing, selling, or
renting materials that may depict sex.
(16) "Specified anatomical areas" includes human genitals,
pubic region, and buttocks and the human female breast below a
point immediately above the top of the areola.
(17) "Specified sexual activity" means sexual intercourse,
oral copulation, masturbation, or sodomy, or excretory functions
as a part of or in connection with any of these activities.
(B) No sexually oriented business shall be or remain open for
business between 12:00 midnight and 6:00 a.m. on any day, except
that a sexually oriented business that holds a liquor permit
pursuant to Chapter 4303. of the Revised Code may remain open
until the hour specified in that permit if it does not conduct,
offer, or allow sexually oriented entertainment activity in which
the performers appear nude.
(C)(1) No patron who is not a member of the employee's
immediate family shall knowingly touch any employee while that
employee is nude or seminude or touch the clothing of any employee
while that employee is nude or seminude.
(2) No employee who regularly appears nude or seminude on the
premises of a sexually oriented business, while on the premises of
that sexually oriented business and while nude or seminude, shall
knowingly touch a patron who is not a member of the employee's
immediate family or another employee who is not a member of the
employee's immediate family or the clothing of a patron who is not
a member of the employee's immediate family or another employee
who is not a member of the employee's immediate family or allow a
patron who is not a member of the employee's immediate family or
another employee who is not a member of the employee's immediate
family to touch the employee or the clothing of the employee.
(D) Whoever violates division (B) of this section is guilty
of illegally operating a sexually oriented business, a misdemeanor
of the first degree.
(E) Whoever violates division (C) of this section is guilty
of illegal sexually oriented activity in a sexually oriented
business. If the offender touches a specified anatomical area of
the patron or employee, or the clothing covering a specified
anatomical area, a violation of division (C) of this section is a
misdemeanor of the first degree. If the offender does not touch a
specified anatomical area of the patron or employee, or the
clothing covering a specified anatomical area, a violation of
division (C) of this section is a misdemeanor of the fourth
degree.
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 (D), (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)(1) Except as provided in division (E)
or (F) of this
section, for a felony of the first or
second degree, 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, and
for a violation of division (A)(4) or (B) of section 2907.05 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. Division (D)(2) of this section does not apply to a
presumption established under this division for a violation of
division (A)(4) of section 2907.05 of the Revised Code.
(2) Notwithstanding the
presumption established
under
division (D)(1) of this section for the offenses listed in that
division other than a violation of division (A)(4) or (B) of
section 2907.05 of the Revised Code, 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:
(a) 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.
(b) 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, section 2929.142, 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 term or 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 guilty of a violation of division
(A)(1)(b) of section 2907.02 of the Revised Code and would be
sentenced under section 2971.03 of the Revised Code;
(3) Gross sexual imposition or sexual battery, if the victim
is less than
thirteen
years of age and if any of the
following
applies:
(a) Regarding gross sexual imposition, 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 the victim of the previous offense was
less than
thirteen years of age;
(b) Regarding gross sexual imposition, the offense was
committed on or after August 3, 2006, and evidence other than the
testimony of the victim was admitted in the case corroborating the
violation.
(c) Regarding sexual battery, either of the following
applies:
(i) The offense was committed prior to August 3, 2006, the
offender previously was convicted of or pleaded guilty to rape,
the former offense of felonious sexual penetration, or sexual
battery, and the victim of the previous offense was less
than
thirteen
years of age.
(ii) The offense was committed on or after August 3, 2006.
(4) A felony violation of section 2903.04, 2903.06,
2903.08,
2903.11, 2903.12, or
2903.13, or 2907.07 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
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
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, or an
investigator of the bureau of criminal identification and
investigation, as defined in section 2903.11 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;
(15) Kidnapping, in the circumstances specified in section
2971.03 of the Revised Code and when no other provision of
division (F) of this section applies.
(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 or child-victim oriented offense that is a felony
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.
(I) If an offender is being sentenced
for a sexually
oriented
offense or 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. If
required
under division
(A)(2) of section 2950.03 of
the
Revised
Code, the judge shall perform the
duties specified in that
section, or, if required under division (A)(6) of section 2950.03
of the Revised Code, the judge shall perform the duties specified
in that division.
(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.
(L) At the time of sentencing an offender for any sexually
oriented offense, if the offender is a
tier III sex
offender/child-victim offender relative to that
offense and the
offender does not serve a prison term or jail
term, the court may
require that the offender be monitored by
means of a global
positioning device. If the court requires such
monitoring, the
cost of monitoring shall be borne by the offender.
If the
offender is indigent, the cost of compliance shall be paid
by the
crime victims reparations fund.
Section 2. That existing sections 2907.07, 2907.21, 2907.40,
and
2929.13 of the
Revised Code
are hereby repealed.
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