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S. B. No. 256 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Cafaro, Goodman, Morano, Kearney, Boccieri
A BILL
To amend sections 2903.11 and 2929.14 and to enact
section 2941.1421 of the Revised Code to allow a
court to impose an additional prison term upon an
offender who commits felonious assault against a
minor.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2903.11 and 2929.14 be amended and
section 2941.1421 of the Revised Code be enacted to read as
follows:
Sec. 2903.11. (A) No person shall knowingly do either of the
following:
(1) Cause serious physical harm to another or to another's
unborn;
(2) Cause or attempt to cause physical harm to another or to
another's
unborn by means of a deadly weapon or dangerous
ordnance.
(B) No person, with knowledge that the person has tested
positive as a
carrier of a virus that causes acquired
immunodeficiency syndrome, shall
knowingly do any of the
following:
(1) Engage in sexual conduct with another person without
disclosing that
knowledge to the other person prior to engaging in
the sexual conduct;
(2) Engage in sexual conduct with a person whom the offender
knows or has
reasonable cause to believe lacks
the mental capacity
to appreciate the significance of the knowledge that the
offender
has tested positive as a carrier of a virus that causes acquired
immunodeficiency syndrome;
(3) Engage in sexual conduct with a person under eighteen
years of age who
is not the spouse of the offender.
(C) The prosecution of a person under this section does not
preclude prosecution of that person under
section 2907.02 of the
Revised Code.
(D)(1) Whoever violates this section is guilty of felonious
assault,
a felony of
the second degree. If the victim of the
offense was under eighteen years of age at the time of the
commission of the offense, the court may impose an additional
prison term on the offender pursuant to division (D)(7) of section
2929.14 of the Revised Code. If the victim of a violation of
division (A) of this section is a peace officer or an investigator
of the bureau of criminal identification and investigation,
felonious assault
is a
felony
of the first degree. If the victim
of the offense is a peace officer or an investigator of the bureau
of criminal identification and investigation, and if the victim
suffered
serious physical harm as a result of the commission of
the offense, felonious
assault is a felony of the first degree,
and the court, pursuant to division
(F) of section 2929.13 of the
Revised Code, shall impose as a mandatory prison
term one of the
prison terms prescribed for a felony of the first degree.
(2) In addition to any other sanctions imposed pursuant to
division (D)(1) of this section for felonious assault committed in
violation of division (A)(2) of this section, if the deadly weapon
used in the commission of the violation is a motor vehicle, the
court shall impose upon the offender a class two suspension of the
offender's driver's license, commercial driver's license,
temporary instruction permit, probationary license, or nonresident
operating privilege as specified in division (A)(2) of section
4510.02 of the Revised Code.
(E) As used in this section:
(1) "Deadly weapon" and "dangerous ordnance" have the same
meanings as in
section 2923.11 of the Revised Code.
(2) "Motor vehicle" has the same meaning as in section
4501.01 of the Revised Code.
(3) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(4) "Sexual conduct" has the same meaning as in section
2907.01 of the Revised Code,
except that, as used in this section,
it does not include the insertion of an
instrument, apparatus, or
other object that is not a part of the body into the
vaginal or
anal opening of another, unless the offender knew at the time of
the
insertion that the instrument, apparatus, or other object
carried the
offender's bodily fluid.
(5) "Investigator of the bureau of criminal identification
and investigation" means an investigator of the bureau of criminal
identification and investigation who is commissioned by the
superintendent of the bureau as a special agent for the purpose of
assisting law enforcement officers or providing emergency
assistance to peace officers pursuant to authority granted under
section 109.541 of the Revised Code.
(6) "Investigator" has the same meaning as in section 109.541
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), (D)(7) 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), (D)(7) or (G) of this section, in section
2907.02 or 2907.05
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 division (D)(2)(b) of this section does not apply,
the
court
may impose on an offender, in addition to the longest
prison term
authorized or required for the offense, 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 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 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.
(v) The 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)(a)(iv) and (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.
(7) If an offender is convicted of or pleads guilty to a
violation of section 2903.11 of the Revised Code and also is
convicted of or pleads guilty to a specification of the type
described in section 2941.1421 of the Revised Code that charges
that the victim of the offense was under eighteen years of age at
the time of the commission of the offense, in addition to any
other prison term imposed upon the offender, the court may impose
upon the offender a prison term of one, two, three, four, or five
years. If a court imposes a prison term upon an offender under
division (D)(7) of this section, the prison term shall not be
reduced pursuant to section 2929.20, section 2967.193, any other
provision of Chapter 2967., or any provision of Chapter 5120. of
the Revised Code. A court shall not impose more than one prison
term upon an offender under division (D)(7) 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)(1) If a court imposes a prison term for a felony of the
first degree, for a felony of the second degree, for a felony sex
offense, or for a felony of the third degree that is not a felony
sex offense and in the commission of which the offender caused or
threatened to cause physical harm to a person, 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 sentence including a prison term of a type described in this
division on or after the effective date of this amendment July 11,
2006, the failure of a court to include a post-release control
requirement in the sentence pursuant to this division does not
negate, limit, or otherwise affect the mandatory period of
post-release control that is required for the offender under
division (B) of section 2967.28 of the Revised Code. Section
2929.191 of the Revised Code applies if, prior to the effective
date of this amendment July 11, 2006, a court imposed a sentence
including a prison term of a type described in this division and
failed to include in the sentence pursuant to this division a
statement regarding post-release control.
(2) If a court
imposes a prison term
for a felony of the
third, fourth, or fifth degree that is not subject to division
(F)(1) of this 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. Section 2929.191 of the Revised Code applies if, prior
to the effective date of this amendment July 11, 2006, a court
imposed a sentence including a prison term of a type described in
this division and failed to include in the sentence pursuant to
this division a statement regarding post-release control.
(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. 2941.1421. Imposition of an additional prison term of
one, two, three, four, or five years upon an offender under
division (D)(7) of section 2929.14 of the Revised Code is
precluded unless the offender is convicted of or pleads guilty to
a violation of section 2903.11 of the Revised Code and the
indictment, count in the indictment, or information charging the
offense specifies that the victim of the offense was under
eighteen years of age at the time of the commission of the
offense. The specification shall be stated at the end of the body
of the indictment, count, or information and shall be stated in
substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The
Grand Jurors (or insert the person's or the prosecuting attorney's
name when appropriate) further find and specify that (set forth
that the victim of the offense was under eighteen years of age at
the time of the commission of the offense)."
Section 2. That existing sections 2903.11 and 2929.14 of the
Revised Code are hereby repealed.
Section 3. Section 2903.11 of the Revised Code is presented
in
this act as a composite of the section as amended by both Sub.
H.B. 347 and Am. Sub. H.B. 461 of
the 126th General Assembly. The
General Assembly, applying the
principle stated in division (B) of
section 1.52 of the Revised
Code that amendments are to be
harmonized if reasonably capable of
simultaneous operation, finds
that the composite is the resulting
version of the section in
effect prior to the effective date of
the section as presented in
this act.
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