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S. B. No. 348 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Senators Morano, Fedor, Cafaro
A BILL
To amend sections 2152.17, 2152.72, 2929.14, and
5103.0319 and to enact section 2941.1421 of the
Revised Code to require the imposition of a
ten-year prison term upon a person who discharges
a firearm while committing an offense and causes
injury or death to a child.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2152.17, 2152.72, 2929.14, and
5103.0319 be amended and section 2941.1421 of the Revised Code be
enacted 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, or 2941.1421 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, or 2941.1421 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.
Sec. 2152.72. (A) This section applies only to a child who
is or
previously has been adjudicated a delinquent child for an
act to which any of
the following applies:
(1) The act is a violation of section 2903.01, 2903.02,
2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2907.02, 2907.03, or
2907.05 of the Revised Code.
(2) The act is a violation of section 2923.01 of the
Revised
Code and involved an attempt to
commit aggravated murder or
murder.
(3) The act would be a felony if committed by an adult, and
the
court determined that the child, if an adult, would be guilty
of
a specification found in section 2941.141, 2941.144, or
2941.145, or 2941.1421
of the Revised Code or in another section
of the
Revised
Code that relates to the possession or use of a
firearm
during the
commission of the act for which the child was
adjudicated a
delinquent child.
(4)
The act would be an offense of violence that is a
felony
if
committed by an adult, and the court determined that the
child,
if
an
adult, would be guilty of a specification found in
section
2941.1411 of the Revised Code or
in another section of the
Revised
Code that
relates to the wearing or carrying of body armor
during
the commission
of the act for which the child was
adjudicated a
delinquent
child.
(B)(1) Except as provided in division (E) of this
section,
a
public children services agency, private child placing
agency,
private noncustodial agency, or court, the department of youth
services, or another private or government entity shall not place
a child in a
certified foster home
or for adoption until it
provides the foster
caregivers
or prospective adoptive parents
with all
of the
following:
(a) A written report describing the child's social history;
(b) A written report describing all the acts committed by
the
child
the entity knows of that
resulted in the child being
adjudicated a delinquent child and
the disposition made by the
court, unless the records pertaining
to the acts have been sealed
pursuant to section 2151.356 of the
Revised Code;
(c) A written report describing any other violent act
committed
by the
child of which the entity is aware;
(d) The substantial and material conclusions and
recommendations
of any
psychiatric or psychological examination
conducted
on the child or, if no psychological or psychiatric
examination of the child
is available, the substantial and
material conclusions and recommendations of
an examination to
detect mental and emotional disorders conducted in
compliance with
the requirements of Chapter 4757. of the Revised Code by an
independent social worker, social worker, professional clinical
counselor, or
professional counselor licensed under that chapter.
The entity shall not
provide any part of a psychological,
psychiatric, or mental and emotional
disorder examination to the
foster caregivers
or prospective adoptive parents other than the
substantial and
material
conclusions.
(2) Notwithstanding sections 2151.356 to 2151.358 of the
Revised
Code, if
records of an adjudication that a child is a
delinquent
child have
been sealed pursuant to those sections and
an entity knows the
records have been sealed, the entity shall
provide the foster
caregivers
or prospective adoptive parents a
written statement
that the records of a prior
adjudication have
been sealed.
(C)(1) The entity that places
the child in a certified
foster
home
or for adoption shall conduct a psychological
examination of
the
child
unless either of the
following applies:
(a) An entity is not required to conduct the
examination
if
an examination was conducted no more than one
year prior
to
the
child's
placement, and division (C)(1)(b) of this section does
not
apply.
(b) An entity is not required to conduct the examination if a
foster caregiver seeks to adopt the foster caregiver's foster
child, and an examination was conducted no more than two years
prior to the date the foster caregiver seeks to adopt the child.
(2) No later than sixty days
after placing
the child, the
entity shall
provide the foster
caregiver
or prospective adoptive
parents a written
report
detailing the substantial and material
conclusions
and
recommendations of the examination conducted
pursuant to this
division.
(D)(1) Except as provided in divisions (D)(2) and (3) of
this
section, the expenses of conducting the examinations and
preparing
the reports
and assessment required by division (B) or
(C) of this
section shall be paid by the entity that places the
child in the
certified foster home
or for adoption.
(2) When a juvenile court grants temporary or permanent
custody of a child
pursuant to any section of the Revised Code,
including section 2151.33,
2151.353, 2151.354,
or 2152.19 of the
Revised Code, to a public children services agency or
private
child placing agency, the
court shall provide the agency the
information described in division
(B) of this
section, pay the
expenses of preparing that information, and, if a new
examination
is required to be conducted, pay the expenses of
conducting the
examination described in division (C) of this section.
On receipt
of the information described in division (B) of this
section, the
agency shall provide to the court written acknowledgment that the
agency received the information. The court shall keep the
acknowledgment and
provide a copy to the agency. On the motion of
the agency, the court may
terminate the order granting
temporary
or permanent custody of the child to that agency, if the court
does
not provide the information described in division (B) of this
section.
(3) If one of the following entities is placing a child in a
certified
foster home
or for adoption
with the assistance of or by
contracting
with a public children services
agency, private child
placing
agency, or a private noncustodial agency, the
entity shall
provide
the agency with the information described in division
(B)
of this
section, pay the expenses of preparing that information,
and, if a
new examination is required to be conducted, pay the
expenses of
conducting the examination described in division (C)
of this
section:
(a) The department of youth services if the placement is
pursuant
to any section of the Revised Code including section
2152.22, 5139.06,
5139.07, 5139.38, or
5139.39 of the Revised
Code;
(b) A juvenile court with temporary or permanent custody of
a
child pursuant to section 2151.354 or 2152.19 of the Revised
Code;
(c) A public children services agency or private child
placing
agency with temporary or permanent custody of the child.
The agency receiving the information described in division
(B) of
this section shall provide the entity
described in division
(D)(3)(a) to (c)
of this section that sent the information written
acknowledgment that the
agency received
the information and
provided it to the foster caregivers
or prospective adoptive
parents. The entity shall
keep the
acknowledgment and provide a
copy
to the agency. An entity that
places a child in a certified
foster home
or for adoption with the assistance of
or by
contracting with an agency remains responsible to provide
the
information described in division
(B) of this section to the
foster caregivers
or prospective adoptive parents unless the
entity receives written
acknowledgment that the agency provided
the information.
(E) If a child is placed
in a certified foster home as a
result of an emergency removal of the
child from home pursuant to
division
(D) of section 2151.31 of the
Revised Code, an emergency
change in
the child's case plan pursuant to division
(E)(3) of
section 2151.412 of
the Revised Code, or an emergency placement by
the
department of youth services pursuant to this chapter or
Chapter
5139. of the Revised Code, the entity that places the
child
in the certified foster
home shall provide the information
described in division
(B) of this section no later
than ninety-six
hours after the child is placed in the certified foster
home.
(F) On receipt of the information described in divisions
(B)
and (C) of this section, the foster caregiver
or prospective
adoptive parents shall
provide to the
entity that places the child
in the foster caregiver's
or prospective adoptive parents' home a
written acknowledgment that the foster caregiver
or prospective
adoptive parents received the
information.
The
entity shall keep
the acknowledgment and provide
a copy to the foster
caregiver
or
prospective adoptive parents.
(G) No person employed by an entity subject to this section
and made responsible by that entity for the child's placement in a
certified foster home
or for adoption
shall
fail to provide the
foster caregivers
or prospective adoptive parents
with the
information
required by divisions (B) and
(C) of this
section.
(H) It is not a violation of any duty of
confidentiality
provided for in the
Revised
Code or a code of professional
responsibility for a person or government entity to provide the
substantial and material conclusions and recommendations of a
psychiatric or psychological examination, or an examination to
detect mental and emotional disorders, in accordance with
division
(B)(1)(d) or
(C) of this section.
(I) As used in this section:
(1) "Body armor" has the same meaning as in section
2941.1411
of
the Revised Code.
(2) "Firearm" has the same meaning as in section 2923.11 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), (G), or
(L) 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), (G), or (L) 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) or (L) 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,
or an investigator of the bureau of criminal identification and
investigation, as defined in section 2903.11 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
felony 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 offender discharged a firearm
while committing the offense and that the discharge of the firearm
caused injury or death to a child who was under the age of
eighteen years at the time of the commission of the offense, the
court shall impose on the offender a prison term of ten years. If
a court imposes a prison term on an offender under division (D)(7)
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)(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 or section 2929.142 of
the Revised Code. 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 or section 2929.142 of the Revised
Code.
(6) If a mandatory prison term is imposed upon an offender
pursuant to division (D)(7) of this section, the offender shall
serve the mandatory prison term consecutively to and prior to any
prison term imposed for the underlying offense.
(7) When consecutive prison terms are imposed pursuant
to
division (E)(1), (2), (3), (4), or (5), or (6) 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 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 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 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) 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 if any of the
following apply:
(1) 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.
(2) A person is convicted of or pleads guilty to a violation
of division (A)(1)(b) of section 2907.02 of the Revised Code
committed on or after January
2, 2007, and either the court does
not impose a sentence of life
without parole when authorized
pursuant to division (B) of section
2907.02 of the Revised Code,
or division (B) of section 2907.02 of
the Revised Code provides
that the court shall not sentence the
offender pursuant to
section 2971.03 of the Revised Code.
(3) A person is convicted of or pleads guilty to attempted
rape committed on or after
January 2, 2007, and a specification
of the type described in
section 2941.1418, 2941.1419, or
2941.1420 of the Revised Code.
(4) A person is convicted of or pleads guilty to a violation
of section 2905.01 of the Revised Code committed on or after the
effective date of this amendment January 1, 2008, and that section
requires the
court to sentence the offender pursuant to section
2971.03 of the
Revised Code.
(5) A person is convicted of or pleads guilty to aggravated
murder committed on or after the effective date of this amendment
January 1, 2008,
and division (A)(2)(b)(ii) of section 2929.022,
division
(A)(1)(e), (C)(1)(a)(v), (C)(2)(a)(ii), (D)(2)(b),
(D)(3)(a)(iv),
or (E)(1)(d) of section 2929.03, or division (A)
or (B) of section
2929.06 of the Revised Code requires the court
to sentence the
offender pursuant to division (B)(3) of section
2971.03 of the
Revised Code.
(6) A person is convicted of or pleads guilty to murder
committed on or after the effective date of this amendment January
1, 2008, and
division (B)(2) of section 2929.02 of the Revised
Code requires
the court to sentence the offender pursuant to
section 2971.03 of
the Revised Code.
(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 2929.142 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.
(L) If a person is convicted of or pleads guilty to
aggravated vehicular homicide in violation of division (A)(1) of
section 2903.06 of the Revised Code and division (B)(2)(c) of that
section applies, the person shall be sentenced pursuant to section
2929.142 of the Revised Code.
Sec. 2941.1421. (A) Imposition of a ten-year mandatory
prison term upon an offender under division (D)(7) of section
2929.14 of the Revised Code is precluded unless the indictment,
count in the indictment, or information charging the offense
specifies that the offender discharged a firearm while committing
the offense and the discharge of the firearm caused injury or
death to a child who was under the age of eighteen years 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 in substantially the following form:
"SPECIFICATION (or, SPECIFICATION OF 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 offender discharged a firearm while committing
the offense and the discharge of the firearm caused injury or
death to a child who was under the age of eighteen years at the
time of the commission of the offense)."
(B) The specification described in division (A) of this
section may be used in a delinquent child proceeding in the manner
and for the purpose described in section 2152.17 of the Revised
Code.
(C) As used in this section, "firearm" has the same meaning
as in section 2923.11 of the Revised Code.
Sec. 5103.0319. (A) No foster caregiver or prospective
foster
caregiver shall fail to notify the recommending agency that
recommended or is
recommending the foster
caregiver or prospective
foster caregiver for certification in writing if a
person at least
twelve years of age
but less than eighteen years of age residing
with the foster
caregiver or prospective foster caregiver has been
convicted of or
pleaded guilty to any of the following or has been
adjudicated to
be a delinquent child for committing an act that if
committed by
an adult would have constituted such a violation:
(1) A violation of section 2903.01, 2903.02, 2903.03,
2903.04,
2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02,
2905.05, 2907.02, 2907.03, 2907.04, 2907.05,
2907.06, 2907.07, 2907.08,
2907.09, 2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2909.02,
2909.03, 2911.01, 2911.02, 2911.11,
2911.12,
2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923,13, 2923.161,
2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the
Revised
Code, a
violation of section 2905.04 of
the Revised Code as it existed
prior to July 1,
1996, a
violation of section 2919.23 of the
Revised Code that would
have been a violation of section 2905.04
of the Revised Code as it existed
prior to July 1, 1996, had the
violation been committed prior to
that date, a violation of
section 2925.11 of the Revised
Code that
is not a minor drug
possession offense, a violation of section 2923.01 of
the Revised
Code that involved an attempt to commit
aggravated murder or
murder, or felonious sexual penetration in
violation of former
section 2907.12 of the Revised Code;
(2) An offense that would be a felony if committed by an
adult
and the court determined that the child, if an adult, would
be guilty of
a specification found in section 2941.141, 2941.144,
or 2941.145, or 2941.1421 of the
Revised Code or in another
section of the Revised Code that
relates to the possession or use
of a firearm, as defined in section
2923.11 of the Revised Code,
during the commission of the
act for which the child was
adjudicated a delinquent child;
(3) A violation of an existing or former law of this state,
any
other state, or the United States that is substantially
equivalent
to any of the offenses described in division (A)(1) or
(2) of this
section.
(B) If a recommending agency learns that a foster caregiver
has
failed to comply with division (A) of this section, it shall
notify the department of job and family services and the
department shall
revoke the foster
caregiver's foster home
certificate.
Section 2. That existing sections 2152.17, 2152.72, 2929.14,
and 5103.0319 of the Revised Code are hereby repealed.
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