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H. B. No. 160 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Celeste, Antonio
Cosponsors:
Representatives Blair, Hagan, R., Murray, Lundy, Foley, Garland, Ramos, Yuko, Heard, Letson, Boose, Williams
A BILL
To amend sections 120.03, 120.06, 120.14, 120.16,
120.18, 120.24, 120.26, 120.28, 120.33, 120.34,
1901.183, 2152.13, 2152.67, 2301.20, 2313.37,
2701.07, 2901.02, 2909.24, 2929.02, 2929.13,
2929.14, 2941.14, 2941.148, 2941.401, 2941.43,
2941.51, 2945.06, 2945.21, 2945.25, 2945.38,
2953.02, 2953.07, 2953.08, 2953.09, 2953.10,
2953.21, 2953.23, 2953.71, 2953.72, 2953.81,
2967.05, 2967.13, 2967.193, 2971.03, 2971.07,
5120.61, and 5919.16 and to repeal sections
109.97, 120.35, 2929.021, 2929.022, 2929.023,
2929.024, 2929.03, 2929.04, 2929.05, 2929.06,
2947.08, 2949.02, 2949.03, 2949.21, 2949.22,
2949.24, 2949.25, 2949.26, 2949.27, 2949.28,
2949.29, 2949.31, and 2967.08 of the Revised Code
to abolish the death penalty and to declare an
emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 120.03, 120.06, 120.14, 120.16,
120.18, 120.24, 120.26, 120.28, 120.33, 120.34, 1901.183, 2152.13,
2152.67, 2301.20, 2313.37, 2701.07, 2901.02, 2909.24, 2929.02,
2929.13, 2929.14, 2941.14, 2941.148, 2941.401, 2941.43, 2941.51,
2945.06, 2945.21, 2945.25, 2945.38, 2949.02, 2949.03, 2953.02,
2953.07, 2953.08, 2953.09, 2953.10, 2953.21, 2953.23, 2953.71,
2953.72, 2953.81, 2967.05, 2967.13, 2967.193, 2971.03, 2971.07,
5120.61, and 5919.16 of the Revised Code be amended to read as
follows:
Sec. 120.03. (A) The Ohio public defender commission shall
appoint the state public defender, who shall serve at the pleasure
of the commission.
(B) The Ohio public defender commission shall establish rules
for the conduct of the offices of the county and joint county
public defenders and for the conduct of county appointed counsel
systems in the state. These rules shall include, but are not
limited to, the following:
(1) Standards of indigency and minimum qualifications for
legal representation by a public defender or appointed counsel. In
establishing standards of indigency and determining who is
eligible for legal representation by a public defender or
appointed counsel, the commission shall consider an indigent
person to be an individual who at the time his the person's need
is determined is unable to provide for the payment of an attorney
and all other necessary expenses of representation. Release on
bail shall not prevent a person from being determined to be
indigent.
(2) Standards for the hiring of outside counsel;
(3) Standards for contracts by a public defender with law
schools, legal aid societies, and nonprofit organizations for
providing counsel;
(4) Standards for the qualifications, training, and size of
the legal and supporting staff for a public defender, facilities,
and other requirements needed to maintain and operate an office of
a public defender;
(5) Minimum caseload standards;
(6) Procedures for the assessment and collection of the costs
of legal representation that is provided by public defenders or
appointed counsel;
(7) Standards and guidelines for determining whether a client
is able to make an up-front contribution toward the cost of his
the client's legal representation;
(8) Procedures for the collection of up-front contributions
from clients who are able to contribute toward the cost of their
legal representation, as determined pursuant to the standards and
guidelines developed under division (B)(7) of this section. All of
such up-front contributions shall be paid into the appropriate
county fund.
(9) Standards for contracts between a board of county
commissioners, a county public defender commission, or a joint
county public defender commission and a municipal corporation for
the legal representation of indigent persons charged with
violations of the ordinances of the municipal corporation.
(C) The Ohio public defender commission shall adopt rules
prescribing minimum qualifications of counsel appointed pursuant
to this chapter or appointed by the courts. Without limiting its
general authority to prescribe different qualifications for
different categories of appointed counsel, the commission shall
prescribe, by rule, special qualifications for counsel and
co-counsel appointed in capital cases.
(D) In administering the office of the Ohio public defender
commission:
(1) The commission shall do the following:
(a) Approve an annual operating budget;
(b) Make an annual report to the governor, the general
assembly, and the supreme court of Ohio on the operation of the
state public defender's office, the county appointed counsel
systems, and the county and joint county public defenders'
offices.
(2) The commission may do the following:
(a) Accept the services of volunteer workers and consultants
at no compensation other than reimbursement of actual and
necessary expenses;
(b) Prepare and publish statistical and case studies and
other data pertinent to the legal representation of indigent
persons;
(c) Conduct programs having a general objective of training
and educating attorneys and others in the legal representation of
indigent persons.
(E) There is hereby established in the state treasury the
public defender training fund for the deposit of fees received by
the Ohio public defender commission from educational seminars, and
the sale of publications, on topics concerning criminal law and
procedure. Expenditures from this fund shall be made only for the
operation of activities authorized by division (D)(2)(c) of this
section.
(F)(1) In accordance with sections 109.02, 109.07, and
109.361 to 109.366 of the Revised Code, but subject to division
(E) of section 120.06 of the Revised Code, the attorney general
shall represent or provide for the representation of the Ohio
public defender commission, the state public defender, assistant
state public defenders, and other employees of the commission or
the state public defender.
(2) Subject to division (E) of section 120.06 of the Revised
Code, the attorney general shall represent or provide for the
representation of attorneys described in division (C) of section
120.41 of the Revised Code in malpractice or other civil actions
or proceedings that arise from alleged actions or omissions
related to responsibilities derived pursuant to this chapter, or
in civil actions that are based upon alleged violations of the
constitution or statutes of the United States, including section
1983 of Title 42 of the United States Code, 93 Stat. 1284 (1979),
42 U.S.C.A. 1983, as amended, and that arise from alleged actions
or omissions related to responsibilities derived pursuant to this
chapter. For purposes of the representation, sections 109.361 to
109.366 of the Revised Code shall apply to an attorney described
in division (C) of section 120.41 of the Revised Code as if he the
attorney were an officer or employee, as defined in section 109.36
of the Revised Code, and the Ohio public defender commission or
the state public defender, whichever contracted with the attorney,
shall be considered his the attorney's employer.
Sec. 120.06. (A)(1) The state public defender, when
designated by the court or requested by a county public defender
or joint county public defender, may provide legal representation
in all courts throughout the state to indigent adults and
juveniles who are charged with the commission of an offense or act
for which the penalty or any possible adjudication includes the
potential loss of liberty.
(2) The state public defender may provide legal
representation to any indigent person who, while incarcerated in
any state correctional institution, is charged with a felony
offense, for which the penalty or any possible adjudication that
may be imposed by a court upon conviction includes the potential
loss of liberty.
(3) The state public defender may provide legal
representation to any person incarcerated in any correctional
institution of the state, in any matter in which the person
asserts the person is unlawfully imprisoned or detained.
(4) The state public defender, in any case in which the state
public defender has provided legal representation or is requested
to do so by a county public defender or joint county public
defender, may provide legal representation on appeal.
(5) The state public defender, when designated by the court
or requested by a county public defender, joint county public
defender, or the director of rehabilitation and correction, shall
provide legal representation in parole and probation revocation
matters or matters relating to the revocation of community control
or post-release control under a community control sanction or
post-release control sanction, unless the state public defender
finds that the alleged parole or probation violator or alleged
violator of a community control sanction or post-release control
sanction has the financial capacity to retain the alleged
violator's own counsel.
(6) If the state public defender contracts with a county
public defender commission, a joint county public defender
commission, or a board of county commissioners for the provision
of services, under authority of division (C)(7) of section 120.04
of the Revised Code, the state public defender shall provide legal
representation in accordance with the contract.
(B) The state public defender shall not be required to
prosecute any appeal, postconviction remedy, or other proceeding
pursuant to division (A)(3), (4), or (5) of this section, unless
the state public defender first is satisfied that there is
arguable merit to the proceeding.
(C) A court may appoint counsel or allow an indigent person
to select the indigent's own personal counsel to assist the state
public defender as co-counsel when the interests of justice so
require. When co-counsel is appointed to assist the state public
defender, the co-counsel shall receive any compensation that the
court may approve, not to exceed the amounts provided for in
section 2941.51 of the Revised Code.
(D)(1) When the state public defender is designated by the
court or requested by a county public defender or joint county
public defender to provide legal representation for an indigent
person in any case, other than pursuant to a contract entered into
under authority of division (C)(7) of section 120.04 of the
Revised Code, the state public defender shall send to the county
in which the case is filed a bill detailing the actual cost of the
representation that separately itemizes legal fees and expenses.
The county, upon receipt of an itemized bill from the state public
defender pursuant to this division, shall pay the state public
defender each of the following amounts:
(a) For the amount identified as legal fees in the itemized
bill, one hundred per cent of the amount identified as legal fees
less the state reimbursement rate as calculated by the state
public defender pursuant to section 120.34 of the Revised Code for
the month the case terminated, as set forth in the itemized bill;
(b) For the amount identified as expenses in the itemized
bill, one hundred per cent.
(2) Upon payment of the itemized bill under division (D)(1)
of this section, the county may submit the cost of the expenses,
excluding legal fees, to the state public defender for
reimbursement pursuant to section 120.33 of the Revised Code.
(3) When the state public defender provides investigation or
mitigation services to private appointed counsel or to a county or
joint county public defender as approved by the appointing court,
other than pursuant to a contract entered into under authority of
division (C)(7) of section 120.04 of the Revised Code, the state
public defender shall send to the county in which the case is
filed a bill itemizing the actual cost of the services provided.
The county, upon receipt of an itemized bill from the state public
defender pursuant to this division, shall pay one hundred per cent
of the amount as set forth in the itemized bill. Upon payment of
the itemized bill received pursuant to this division, the county
may submit the cost of the investigation and mitigation services
to the state public defender for reimbursement pursuant to section
120.33 of the Revised Code.
(4) There is hereby created in the state treasury the county
representation fund for the deposit of moneys received from
counties under this division. All moneys credited to the fund
shall be used by the state public defender to provide legal
representation for indigent persons when designated by the court
or requested by a county or joint county public defender or to
provide investigation or mitigation services, including
investigation or mitigation services to private appointed counsel
or a county or joint county public defender, as approved by the
court.
(E)(1) Notwithstanding any contrary provision of sections
109.02, 109.07, 109.361 to 109.366, and 120.03 of the Revised Code
that pertains to representation by the attorney general, an
assistant attorney general, or special counsel of an officer or
employee, as defined in section 109.36 of the Revised Code, or of
an entity of state government, the state public defender may elect
to contract with, and to have the state pay pursuant to division
(E)(2) of this section for the services of, private legal counsel
to represent the Ohio public defender commission, the state public
defender, assistant state public defenders, other employees of the
commission or the state public defender, and attorneys described
in division (C) of section 120.41 of the Revised Code in a
malpractice or other civil action or proceeding that arises from
alleged actions or omissions related to responsibilities derived
pursuant to this chapter, or in a civil action that is based upon
alleged violations of the constitution or statutes of the United
States, including section 1983 of Title 42 of the United States
Code, 93 Stat. 1284 (1979), 42 U.S.C.A. 1983, as amended, and that
arises from alleged actions or omissions related to
responsibilities derived pursuant to this chapter, if the state
public defender determines, in good faith, that the defendant in
the civil action or proceeding did not act manifestly outside the
scope of the defendant's employment or official responsibilities,
with malicious purpose, in bad faith, or in a wanton or reckless
manner. If the state public defender elects not to contract
pursuant to this division for private legal counsel in a civil
action or proceeding, then, in accordance with sections 109.02,
109.07, 109.361 to 109.366, and 120.03 of the Revised Code, the
attorney general shall represent or provide for the representation
of the Ohio public defender commission, the state public defender,
assistant state public defenders, other employees of the
commission or the state public defender, or attorneys described in
division (C) of section 120.41 of the Revised Code in the civil
action or proceeding.
(2)(a) Subject to division (E)(2)(b) of this section, payment
from the state treasury for the services of private legal counsel
with whom the state public defender has contracted pursuant to
division (E)(1) of this section shall be accomplished only through
the following procedure:
(i) The private legal counsel shall file with the attorney
general a copy of the contract; a request for an award of legal
fees, court costs, and expenses earned or incurred in connection
with the defense of the Ohio public defender commission, the state
public defender, an assistant state public defender, an employee,
or an attorney in a specified civil action or proceeding; a
written itemization of those fees, costs, and expenses, including
the signature of the state public defender and the state public
defender's attestation that the fees, costs, and expenses were
earned or incurred pursuant to division (E)(1) of this section to
the best of the state public defender's knowledge and information;
a written statement whether the fees, costs, and expenses are for
all legal services to be rendered in connection with that defense,
are only for legal services rendered to the date of the request
and additional legal services likely will have to be provided in
connection with that defense, or are for the final legal services
rendered in connection with that defense; a written statement
indicating whether the private legal counsel previously submitted
a request for an award under division (E)(2) of this section in
connection with that defense and, if so, the date and the amount
of each award granted; and, if the fees, costs, and expenses are
for all legal services to be rendered in connection with that
defense or are for the final legal services rendered in connection
with that defense, a certified copy of any judgment entry in the
civil action or proceeding or a signed copy of any settlement
agreement entered into between the parties to the civil action or
proceeding.
(ii) Upon receipt of a request for an award of legal fees,
court costs, and expenses and the requisite supportive
documentation described in division (E)(2)(a)(i) of this section,
the attorney general shall review the request and documentation;
determine whether any of the limitations specified in division
(E)(2)(b) of this section apply to the request; and, if an award
of legal fees, court costs, or expenses is permissible after
applying the limitations, prepare a document awarding legal fees,
court costs, or expenses to the private legal counsel. The
document shall name the private legal counsel as the recipient of
the award; specify the total amount of the award as determined by
the attorney general; itemize the portions of the award that
represent legal fees, court costs, and expenses; specify any
limitation applied pursuant to division (E)(2)(b) of this section
to reduce the amount of the award sought by the private legal
counsel; state that the award is payable from the state treasury
pursuant to division (E)(2)(a)(iii) of this section; and be
approved by the inclusion of the signatures of the attorney
general, the state public defender, and the private legal counsel.
(iii) The attorney general shall forward a copy of the
document prepared pursuant to division (E)(2)(a)(ii) of this
section to the director of budget and management. The award of
legal fees, court costs, or expenses shall be paid out of the
state public defender's appropriations, to the extent there is a
sufficient available balance in those appropriations. If the state
public defender does not have a sufficient available balance in
the state public defender's appropriations to pay the entire award
of legal fees, court costs, or expenses, the director shall make
application for a transfer of appropriations out of the emergency
purposes account or any other appropriation for emergencies or
contingencies in an amount equal to the portion of the award that
exceeds the sufficient available balance in the state public
defender's appropriations. A transfer of appropriations out of the
emergency purposes account or any other appropriation for
emergencies or contingencies shall be authorized if there are
sufficient moneys greater than the sum total of then pending
emergency purposes account requests, or requests for releases from
the other appropriation. If a transfer of appropriations out of
the emergency purposes account or other appropriation for
emergencies or contingencies is made to pay an amount equal to the
portion of the award that exceeds the sufficient available balance
in the state public defender's appropriations, the director shall
cause the payment to be made to the private legal counsel. If
sufficient moneys do not exist in the emergency purposes account
or other appropriation for emergencies or contingencies to pay an
amount equal to the portion of the award that exceeds the
sufficient available balance in the state public defender's
appropriations, the private legal counsel shall request the
general assembly to make an appropriation sufficient to pay an
amount equal to the portion of the award that exceeds the
sufficient available balance in the state public defender's
appropriations, and no payment in that amount shall be made until
the appropriation has been made. The private legal counsel shall
make the request during the current biennium and during each
succeeding biennium until a sufficient appropriation is made.
(b) An award of legal fees, court costs, and expenses
pursuant to division (E) of this section is subject to the
following limitations:
(i) The maximum award or maximum aggregate of a series of
awards of legal fees, court costs, and expenses to the private
legal counsel in connection with the defense of the Ohio public
defender commission, the state public defender, an assistant state
public defender, an employee, or an attorney in a specified civil
action or proceeding shall not exceed fifty thousand dollars.
(ii) The private legal counsel shall not be awarded legal
fees, court costs, or expenses to the extent the fees, costs, or
expenses are covered by a policy of malpractice or other
insurance.
(iii) The private legal counsel shall be awarded legal fees
and expenses only to the extent that the fees and expenses are
reasonable in light of the legal services rendered by the private
legal counsel in connection with the defense of the Ohio public
defender commission, the state public defender, an assistant state
public defender, an employee, or an attorney in a specified civil
action or proceeding.
(c) If, pursuant to division (E)(2)(a) of this section, the
attorney general denies a request for an award of legal fees,
court costs, or expenses to private legal counsel because of the
application of a limitation specified in division (E)(2)(b) of
this section, the attorney general shall notify the private legal
counsel in writing of the denial and of the limitation applied.
(d) If, pursuant to division (E)(2)(c) of this section, a
private legal counsel receives a denial of an award notification
or if a private legal counsel refuses to approve a document under
division (E)(2)(a)(ii) of this section because of the proposed
application of a limitation specified in division (E)(2)(b) of
this section, the private legal counsel may commence a civil
action against the attorney general in the court of claims to
prove the private legal counsel's entitlement to the award sought,
to prove that division (E)(2)(b) of this section does not prohibit
or otherwise limit the award sought, and to recover a judgment for
the amount of the award sought. A civil action under division
(E)(2)(d) of this section shall be commenced no later than two
years after receipt of a denial of award notification or, if the
private legal counsel refused to approve a document under division
(E)(2)(a)(ii) of this section because of the proposed application
of a limitation specified in division (E)(2)(b) of this section,
no later than two years after the refusal. Any judgment of the
court of claims in favor of the private legal counsel shall be
paid from the state treasury in accordance with division (E)(2)(a)
of this section.
(F) If a court appoints the office of the state public
defender to represent a petitioner in a postconviction relief
proceeding under section 2953.21 of the Revised Code, the
petitioner has received a sentence of death, and the proceeding
relates to that sentence, all of the attorneys who represent the
petitioner in the proceeding pursuant to the appointment, whether
an assistant state public defender, the state public defender, or
another attorney, shall be certified under Rule 20 of the Rules of
Superintendence for the Courts of Ohio to represent indigent
defendants charged with or convicted of an offense for which the
death penalty can be or has been imposed.
(G) As used in this section:
(1) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(2) "Post-release control sanction" has the same meaning as
in section 2967.01 of the Revised Code.
Sec. 120.14. (A)(1) Except as provided in division (A)(2) of
this section, the county public defender commission shall appoint
the county public defender and may remove him the county public
defender from office only for good cause.
(2) If a county public defender commission contracts with the
state public defender or with one or more nonprofit organizations
for the state public defender or the organizations to provide all
of the services that the county public defender is required or
permitted to provide by this chapter, the commission shall not
appoint a county public defender.
(B) The commission shall determine the qualifications and
size of the supporting staff and facilities and other requirements
needed to maintain and operate the office of the county public
defender.
(C) In administering the office of county public defender,
the commission shall:
(1) Recommend to the county commissioners an annual operating
budget which is subject to the review, amendment, and approval of
the board of county commissioners;
(2)(a) Make an annual report to the county commissioners and
the Ohio public defender commission on the operation of the county
public defender's office, including complete and detailed
information on finances and costs that separately states costs and
expenses that are reimbursable under section 120.35 of the Revised
Code, and any other data and information requested by the state
public defender;
(b) Make monthly reports relating to reimbursement and
associated case data pursuant to the rules of the Ohio public
defender commission to the board of county commissioners and the
Ohio public defender commission on the total costs of the public
defender's office.
(3) Cooperate with the Ohio public defender commission in
maintaining the standards established by rules of the Ohio public
defender commission pursuant to divisions (B) and (C) of section
120.03 of the Revised Code, and cooperate with the state public
defender in his the state public defender's programs providing
technical aid and assistance to county systems.
(D) The commission may accept the services of volunteer
workers and consultants at no compensation except reimbursement
for actual and necessary expenses.
(E) The commission may contract with any municipal
corporation, within the county served by the county public
defender, for the county public defender to provide legal
representation for indigent persons who are charged with a
violation of the ordinances of the municipal corporation.
(F) A county public defender commission, with the approval of
the board of county commissioners regarding all provisions that
pertain to the financing of defense counsel for indigent persons,
may contract with the state public defender or with any nonprofit
organization, the primary purpose of which is to provide legal
representation to indigent persons, for the state public defender
or the organization to provide all or any part of the services
that a county public defender is required or permitted to provide
by this chapter. A contract entered into pursuant to this division
may provide for payment for the services provided on a per case,
hourly, or fixed contract basis. The state public defender and any
nonprofit organization that contracts with a county public
defender commission pursuant to this division shall do all of the
following:
(1) Comply with all standards established by the rules of the
Ohio public defender commission;
(2) Comply with all standards established by the state public
defender;
(3) Comply with all statutory duties and other laws
applicable to county public defenders.
Sec. 120.16. (A)(1) The county public defender shall provide
legal representation to indigent adults and juveniles who are
charged with the commission of an offense or act that is a
violation of a state statute and for which the penalty or any
possible adjudication includes the potential loss of liberty and
in postconviction proceedings as defined in this section.
(2) The county public defender may provide legal
representation to indigent adults and juveniles charged with the
violation of an ordinance of a municipal corporation for which the
penalty or any possible adjudication includes the potential loss
of liberty, if the county public defender commission has
contracted with the municipal corporation to provide legal
representation for indigent persons charged with a violation of an
ordinance of the municipal corporation.
(B) The county public defender shall provide the legal
representation authorized by division (A) of this section at every
stage of the proceedings following arrest, detention, service of
summons, or indictment.
(C) The county public defender may request the state public
defender to prosecute any appeal or other remedy before or after
conviction that the county public defender decides is in the
interests of justice, and may provide legal representation in
parole and probation revocation matters and matters relating to
the revocation of community control or post-release control under
a community control sanction or post-release control sanction.
(D) The county public defender shall not be required to
prosecute any appeal, postconviction remedy, or other proceeding,
unless the county public defender is first satisfied there is
arguable merit to the proceeding.
(E) Nothing in this section shall prevent a court from
appointing counsel other than the county public defender or from
allowing an indigent person to select the indigent person's own
personal counsel to represent the indigent person. A court may
also appoint counsel or allow an indigent person to select the
indigent person's own personal counsel to assist the county public
defender as co-counsel when the interests of justice so require.
(F) Information as to the right to legal representation by
the county public defender or assigned counsel shall be afforded
to an accused person immediately upon arrest, when brought before
a magistrate, or when formally charged, whichever occurs first.
(G) If a court appoints the office of the county public
defender to represent a petitioner in a postconviction relief
proceeding under section 2953.21 of the Revised Code, the
petitioner has received a sentence of death, and the proceeding
relates to that sentence, all of the attorneys who represent the
petitioner in the proceeding pursuant to the appointment, whether
an assistant county public defender or the county public defender,
shall be certified under Rule 20 of the Rules of Superintendence
for the Courts of Ohio to represent indigent defendants charged
with or convicted of an offense for which the death penalty can be
or has been imposed.
(H) As used in this section:
(1) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(2) "Post-release control sanction" has the same meaning as
in section 2967.01 of the Revised Code.
Sec. 120.18. (A) The county public defender commission's
report to the board of county commissioners shall be audited by
the county auditor. The board of county commissioners, after
review and approval of the audited report, may then certify it to
the state public defender for reimbursement. If a request for the
reimbursement of any operating expenditure incurred by a county
public defender office is not received by the state public
defender within sixty days after the end of the calendar month in
which the expenditure is incurred, the state public defender shall
not pay the requested reimbursement, unless the county has
requested, and the state public defender has granted, an extension
of the sixty-day time limit. Each request for reimbursement shall
include a certification by the county public defender that the
persons provided representation by the county public defender's
office during the period covered by the report were indigent and,
for each person provided representation during that period, a
financial disclosure form completed by the person on a form
prescribed by the state public defender. The state public defender
shall also review the report and, in accordance with the
standards, guidelines, and maximums established pursuant to
divisions (B)(7) and (8) of section 120.04 of the Revised Code,
prepare a voucher for fifty per cent of the total cost of each
county public defender's office for the period of time covered by
the certified report and a voucher for fifty per cent of the costs
and expenses that are reimbursable under section 120.35 of the
Revised Code, if any, or, if the amount of money appropriated by
the general assembly to reimburse counties for the operation of
county public defender offices, joint county public defender
offices, and county appointed counsel systems is not sufficient to
pay fifty per cent of the total cost of all of the offices and
systems, for the lesser amount required by section 120.34 of the
Revised Code. For the purposes of this section, "total cost" means
total expenses minus costs and expenses reimbursable under section
120.35 of the Revised Code and any funds received by the county
public defender commission pursuant to a contract, except a
contract entered into with a municipal corporation pursuant to
division (E) of section 120.14 of the Revised Code, gift, or
grant.
(B) If the county public defender fails to maintain the
standards for the conduct of the office established by rules of
the Ohio public defender commission pursuant to divisions (B) and
(C) of section 120.03 or the standards established by the state
public defender pursuant to division (B)(7) of section 120.04 of
the Revised Code, the Ohio public defender commission shall notify
the county public defender commission and the board of county
commissioners of the county that the county public defender has
failed to comply with its rules or the standards of the state
public defender. Unless the county public defender commission or
the county public defender corrects the conduct of the county
public defender's office to comply with the rules and standards
within ninety days after the date of the notice, the state public
defender may deny payment of all or part of the county's
reimbursement from the state provided for in division (A) of this
section.
Sec. 120.24. (A)(1) Except as provided in division (A)(2) of
this section, the joint county public defender commission shall
appoint the joint county public defender and may remove him
the
joint county public defender from office only for good cause.
(2) If a joint county public defender commission contracts
with the state public defender or with one or more nonprofit
organizations for the state public defender or the organizations
to provide all of the services that the joint county public
defender is required or permitted to provide by this chapter, the
commission shall not appoint a joint county public defender.
(B) The commission shall determine the qualifications and
size of the supporting staff and facilities and other requirements
needed to maintain and operate the office.
(C) In administering the office of joint county public
defender, the commission shall:
(1) Recommend to the boards of county commissioners in the
district an annual operating budget which is subject to the
review, amendment, and approval of the boards of county
commissioners in the district;
(2)(a) Make an annual report to the boards of county
commissioners in the district and the Ohio public defender
commission on the operation of the public defender's office,
including complete and detailed information on finances and costs
that separately states costs and expenses that are reimbursable
under section 120.35 of the Revised Code, and such other data and
information requested by the state public defender;
(b) Make monthly reports relating to reimbursement and
associated case data pursuant to the rules of the Ohio public
defender commission to the boards of county commissioners in the
district and the Ohio public defender commission on the total
costs of the public defender's office.
(3) Cooperate with the Ohio public defender commission in
maintaining the standards established by rules of the Ohio public
defender commission pursuant to divisions (B) and (C) of section
120.03 of the Revised Code, and cooperate with the state public
defender in his the state public defender's programs providing
technical aid and assistance to county systems.
(D) The commission may accept the services of volunteer
workers and consultants at no compensation except reimbursement
for actual and necessary expenses.
(E) The commission may contract with any municipal
corporation, within the counties served by the joint county public
defender, for the joint county public defender to provide legal
representation for indigent persons who are charged with a
violation of the ordinances of the municipal corporation.
(F) A joint county public defender commission, with the
approval of each participating board of county commissioners
regarding all provisions that pertain to the financing of defense
counsel for indigent persons, may contract with the state public
defender or with any nonprofit organization, the primary purpose
of which is to provide legal representation to indigent persons,
for the state public defender or the organization to provide all
or any part of the services that a joint county public defender is
required or permitted to provide by this chapter. A contract
entered into pursuant to this division may provide for payment for
the services provided on a per case, hourly, or fixed contract
basis. The state public defender and any nonprofit organization
that contracts with a joint county public defender commission
pursuant to this division shall do all of the following:
(1) Comply with all standards established by the rules of the
Ohio public defender commission;
(2) Comply with all standards established by the Ohio public
defender;
(3) Comply with all statutory duties and other laws
applicable to joint county public defenders.
Sec. 120.26. (A)(1) The joint county public defender shall
provide legal representation to indigent adults and juveniles who
are charged with the commission of an offense or act that is a
violation of a state statute and for which the penalty or any
possible adjudication includes the potential loss of liberty and
in postconviction proceedings as defined in this section.
(2) The joint county public defender may provide legal
representation to indigent adults and juveniles charged with the
violation of an ordinance of a municipal corporation for which the
penalty or any possible adjudication includes the potential loss
of liberty, if the joint county public defender commission has
contracted with the municipal corporation to provide legal
representation for indigent persons charged with a violation of an
ordinance of the municipal corporation.
(B) The joint county public defender shall provide the legal
representation authorized by division (A) of this section at every
stage of the proceedings following arrest, detention, service of
summons, or indictment.
(C) The joint county public defender may request the Ohio
public defender to prosecute any appeal or other remedy before or
after conviction that the joint county public defender decides is
in the interests of justice and may provide legal representation
in parole and probation revocation matters and matters relating to
the revocation of community control or post-release control under
a community control sanction or post-release control sanction.
(D) The joint county public defender shall not be required to
prosecute any appeal, postconviction remedy, or other proceeding,
unless the joint county public defender is first satisfied that
there is arguable merit to the proceeding.
(E) Nothing in this section shall prevent a court from
appointing counsel other than the joint county public defender or
from allowing an indigent person to select the indigent person's
own personal counsel to represent the indigent person. A court may
also appoint counsel or allow an indigent person to select the
indigent person's own personal counsel to assist the joint county
public defender as co-counsel when the interests of justice so
require.
(F) Information as to the right to legal representation by
the joint county public defender or assigned counsel shall be
afforded to an accused person immediately upon arrest, when
brought before a magistrate, or when formally charged, whichever
occurs first.
(G) If a court appoints the office of the joint county public
defender to represent a petitioner in a postconviction relief
proceeding under section 2953.21 of the Revised Code, the
petitioner has received a sentence of death, and the proceeding
relates to that sentence, all of the attorneys who represent the
petitioner in the proceeding pursuant to the appointment, whether
an assistant joint county defender or the joint county public
defender, shall be certified under Rule 20 of the Rules of
Superintendence for the Courts of Ohio to represent indigent
defendants charged with or convicted of an offense for which the
death penalty can be or has been imposed.
(H) As used in this section:
(1) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(2) "Post-release control sanction" has the same meaning as
in section 2967.01 of the Revised Code.
Sec. 120.28. (A) The joint county public defender
commission's report to the joint board of county commissioners
shall be audited by the fiscal officer of the district. The joint
board of county commissioners, after review and approval of the
audited report, may then certify it to the state public defender
for reimbursement. If a request for the reimbursement of any
operating expenditure incurred by a joint county public defender
office is not received by the state public defender within sixty
days after the end of the calendar month in which the expenditure
is incurred, the state public defender shall not pay the requested
reimbursement, unless the joint board of county commissioners has
requested, and the state public defender has granted, an extension
of the sixty-day time limit. Each request for reimbursement shall
include a certification by the joint county public defender that
all persons provided representation by the joint county public
defender's office during the period covered by the request were
indigent and, for each person provided representation during that
period, a financial disclosure form completed by the person on a
form prescribed by the state public defender. The state public
defender shall also review the report and, in accordance with the
standards, guidelines, and maximums established pursuant to
divisions (B)(7) and (8) of section 120.04 of the Revised Code,
prepare a voucher for fifty per cent of the total cost of each
joint county public defender's office for the period of time
covered by the certified report and a voucher for fifty per cent
of the costs and expenses that are reimbursable under section
120.35 of the Revised Code, if any, or, if the amount of money
appropriated by the general assembly to reimburse counties for the
operation of county public defender offices, joint county public
defender offices, and county appointed counsel systems is not
sufficient to pay fifty per cent of the total cost of all of the
offices and systems, for the lesser amount required by section
120.34 of the Revised Code. For purposes of this section, "total
cost" means total expenses minus costs and expenses reimbursable
under section 120.35 of the Revised Code and any funds received by
the joint county public defender commission pursuant to a
contract, except a contract entered into with a municipal
corporation pursuant to division (E) of section 120.24 of the
Revised Code, gift, or grant. Each county in the district shall be
entitled to a share of such state reimbursement in proportion to
the percentage of the total cost it has agreed to pay.
(B) If the joint county public defender fails to maintain the
standards for the conduct of the office established by the rules
of the Ohio public defender commission pursuant to divisions (B)
and (C) of section 120.03 or the standards established by the
state public defender pursuant to division (B)(7) of section
120.04 of the Revised Code, the Ohio public defender commission
shall notify the joint county public defender commission and the
board of county commissioners of each county in the district that
the joint county public defender has failed to comply with its
rules or the standards of the state public defender. Unless the
joint public defender commission or the joint county public
defender corrects the conduct of the joint county public
defender's office to comply with the rules and standards within
ninety days after the date of the notice, the state public
defender may deny all or part of the counties' reimbursement from
the state provided for in division (A) of this section.
Sec. 120.33. (A) In lieu of using a county public defender
or joint county public defender to represent indigent persons in
the proceedings set forth in division (A) of section 120.16 of the
Revised Code, the board of county commissioners of any county may
adopt a resolution to pay counsel who are either personally
selected by the indigent person or appointed by the court. The
resolution shall include those provisions the board of county
commissioners considers necessary to provide effective
representation of indigent persons in any proceeding for which
counsel is provided under this section. The resolution shall
include provisions for contracts with any municipal corporation
under which the municipal corporation shall reimburse the county
for counsel appointed to represent indigent persons charged with
violations of the ordinances of the municipal corporation.
(1) In a county that adopts a resolution to pay counsel, an
indigent person shall have the right to do either of the
following:
(a) To select the person's own personal counsel to represent
the person in any proceeding included within the provisions of the
resolution;
(b) To request the court to appoint counsel to represent the
person in such a proceeding.
(2) The court having jurisdiction over the proceeding in a
county that adopts a resolution to pay counsel shall, after
determining that the person is indigent and entitled to legal
representation under this section, do either of the following:
(a) By signed journal entry recorded on its docket, enter the
name of the lawyer selected by the indigent person as counsel of
record;
(b) Appoint counsel for the indigent person if the person has
requested the court to appoint counsel and, by signed journal
entry recorded on its dockets, enter the name of the lawyer
appointed for the indigent person as counsel of record.
(3) The board of county commissioners shall establish a
schedule of fees by case or on an hourly basis to be paid to
counsel for legal services provided pursuant to a resolution
adopted under this section. Prior to establishing the schedule,
the board of county commissioners shall request the bar
association or associations of the county to submit a proposed
schedule. The schedule submitted shall be subject to the review,
amendment, and approval of the board of county commissioners.
(4) Counsel selected by the indigent person or appointed by
the court at the request of an indigent person in a county that
adopts a resolution to pay counsel, except for counsel appointed
to represent a person charged with any violation of an ordinance
of a municipal corporation that has not contracted with the county
commissioners for the payment of appointed counsel, shall be paid
by the county and shall receive the compensation and expenses the
court approves. Each request for payment shall be accompanied by a
financial disclosure form and an affidavit of indigency that are
completed by the indigent person on forms prescribed by the state
public defender. Compensation and expenses shall not exceed the
amounts fixed by the board of county commissioners in the schedule
adopted pursuant to division (A)(3) of this section. No court
shall approve compensation and expenses that exceed the amount
fixed pursuant to division (A)(3) of this section.
The fees and expenses approved by the court shall not be
taxed as part of the costs and shall be paid by the county.
However, if the person represented has, or may reasonably be
expected to have, the means to meet some part of the cost of the
services rendered to the person, the person shall pay the county
an amount that the person reasonably can be expected to pay.
Pursuant to section 120.04 of the Revised Code, the county shall
pay to the state public defender a percentage of the payment
received from the person in an amount proportionate to the
percentage of the costs of the person's case that were paid to the
county by the state public defender pursuant to this section. The
money paid to the state public defender shall be credited to the
client payment fund created pursuant to division (B)(5) of section
120.04 of the Revised Code.
The county auditor shall draw a warrant on the county
treasurer for the payment of counsel in the amount fixed by the
court, plus the expenses the court fixes and certifies to the
auditor. The county auditor shall report periodically, but not
less than annually, to the board of county commissioners and to
the state public defender the amounts paid out pursuant to the
approval of the court. The board of county commissioners, after
review and approval of the auditor's report, or the county
auditor, with permission from and notice to the board of county
commissioners, may then certify it to the state public defender
for reimbursement. The state public defender may pay a requested
reimbursement only if the request for reimbursement is accompanied
by a financial disclosure form and an affidavit of indigency
completed by the indigent person on forms prescribed by the state
public defender or if the court certifies by electronic signature
as prescribed by the state public defender that a financial
disclosure form and affidavit of indigency have been completed by
the indigent person and are available for inspection. If a request
for the reimbursement of the cost of counsel in any case is not
received by the state public defender within ninety days after the
end of the calendar month in which the case is finally disposed of
by the court, unless the county has requested and the state public
defender has granted an extension of the ninety-day limit, the
state public defender shall not pay the requested reimbursement.
The state public defender shall also review the report and, in
accordance with the standards, guidelines, and maximums
established pursuant to divisions (B)(7) and (8) of section 120.04
of the Revised Code, prepare a voucher for fifty per cent of the
total cost of each county appointed counsel system in the period
of time covered by the certified report and a voucher for fifty
per cent of the costs and expenses that are reimbursable under
section 120.35 of the Revised Code, if any, or, if the amount of
money appropriated by the general assembly to reimburse counties
for the operation of county public defender offices, joint county
public defender offices, and county appointed counsel systems is
not sufficient to pay fifty per cent of the total cost of all of
the offices and systems other than costs and expenses that are
reimbursable under section 120.35 of the Revised Code, for the
lesser amount required by section 120.34 of the Revised Code.
(5) If any county appointed counsel system fails to maintain
the standards for the conduct of the system established by the
rules of the Ohio public defender commission pursuant to divisions
(B) and (C) of section 120.03 or the standards established by the
state public defender pursuant to division (B)(7) of section
120.04 of the Revised Code, the Ohio public defender commission
shall notify the board of county commissioners of the county that
the county appointed counsel system has failed to comply with its
rules or the standards of the state public defender. Unless the
board of county commissioners corrects the conduct of its
appointed counsel system to comply with the rules and standards
within ninety days after the date of the notice, the state public
defender may deny all or part of the county's reimbursement from
the state provided for in division (A)(4) of this section.
(B) In lieu of using a county public defender or joint county
public defender to represent indigent persons in the proceedings
set forth in division (A) of section 120.16 of the Revised Code,
and in lieu of adopting the resolution and following the procedure
described in division (A) of this section, the board of county
commissioners of any county may contract with the state public
defender for the state public defender's legal representation of
indigent persons. A contract entered into pursuant to this
division may provide for payment for the services provided on a
per case, hourly, or fixed contract basis.
(C) If a court appoints an attorney pursuant to this section
to represent a petitioner in a postconviction relief proceeding
under section 2953.21 of the Revised Code, the petitioner has
received a sentence of death, and the proceeding relates to that
sentence, the attorney who represents the petitioner in the
proceeding pursuant to the appointment shall be certified under
Rule 20 of the Rules of Superintendence for the Courts of Ohio to
represent indigent defendants charged with or convicted of an
offense for which the death penalty can be or has been imposed.
Sec. 120.34. The total amount of money paid to all counties
in any fiscal year pursuant to sections 120.18, 120.28, and 120.33
of the Revised Code for the reimbursement of a percentage of the
counties' cost of operating county public defender offices, joint
county public defender offices, and county appointed counsel
systems shall not exceed the total amount appropriated for that
fiscal year by the general assembly for the reimbursement of the
counties for the operation of the offices and systems. If the
amount appropriated by the general assembly in any fiscal year is
insufficient to pay fifty per cent of the total cost in the fiscal
year of all county public defender offices, all joint county
public defender offices, and all county appointed counsel systems,
the amount of money paid in that fiscal year pursuant to sections
120.18, 120.28, and 120.33 of the Revised Code to each county for
the fiscal year shall be reduced proportionately so that each
county is paid an equal percentage of its total cost in the fiscal
year for operating its county public defender system, its joint
county public defender system, and its county appointed counsel
system.
The total amount of money paid to all counties in any fiscal
year pursuant to section 120.35 of the Revised Code for the
reimbursement of a percentage of the counties' costs and expenses
of conducting the defense in capital cases shall not exceed the
total amount appropriated for that fiscal year by the general
assembly for the reimbursement of the counties for conducting the
defense in capital cases. If the amount appropriated by the
general assembly in any fiscal year is insufficient to pay fifty
per cent of the counties' total costs and expenses of conducting
the defense in capital cases in the fiscal year, the amount of
money paid in that fiscal year pursuant to section 120.35 of the
Revised Code to each county for the fiscal year shall be reduced
proportionately so that each county is paid an equal percentage of
its costs and expenses of conducting the defense in capital cases
in the fiscal year.
If any county receives an amount of money pursuant to section
120.18, 120.28, or 120.33, or 120.35 of the Revised Code that is
in excess of the amount of reimbursement it is entitled to receive
pursuant to this section, the state public defender shall request
the board of county commissioners to return the excess payment and
the board of county commissioners, upon receipt of the request,
shall direct the appropriate county officer to return the excess
payment to the state.
Within thirty days of the end of each fiscal quarter, the
state public defender shall provide to the office of budget and
management and the legislative budget office of the legislative
service commission an estimate of the amount of money that will be
required for the balance of the fiscal year to make the payments
required by sections 120.18, 120.28, and 120.33, and 120.35 of the
Revised Code.
Sec. 1901.183. In addition to jurisdiction otherwise granted
in this chapter, the environmental division of a municipal court
shall have jurisdiction within its territory in all of the
following actions or proceedings and to perform all of the
following functions:
(A) Notwithstanding any monetary limitations in section
1901.17 of the Revised Code, in all actions and proceedings for
the sale of real or personal property under lien of a judgment of
the environmental division of the municipal court, or a lien for
machinery, material, fuel furnished, or labor performed,
irrespective of amount, and, in those cases, the environmental
division may proceed to foreclose and marshal all liens and all
vested or contingent rights, to appoint a receiver, and to render
personal judgment irrespective of amount in favor of any party;
(B) When in aid of execution of a judgment of the
environmental division of the municipal court, in all actions for
the foreclosure of a mortgage on real property given to secure the
payment of money, or the enforcement of a specific lien for money
or other encumbrance or charge on real property, when the real
property is situated within the territory, and, in those cases,
the environmental division may proceed to foreclose all liens and
all vested and contingent rights and proceed to render judgments,
and make findings and orders, between the parties, in the same
manner and to the same extent as in similar cases in the court of
common pleas;
(C) When in aid of execution of a judgment of the
environmental division of the municipal court, in all actions for
the recovery of real property situated within the territory to the
same extent as courts of common pleas have jurisdiction;
(D) In all actions for injunction to prevent or terminate
violations of the ordinances and regulations of any municipal
corporation within its territory enacted or promulgated under the
police power of that municipal corporation pursuant to Section 3
of Article XVIII, Ohio Constitution, over which the court of
common pleas has or may have jurisdiction, and, in those cases,
the environmental division of the municipal court may proceed to
render judgments, and make findings and orders, in the same manner
and to the same extent as in similar cases in the court of common
pleas;
(E) In all actions for injunction to prevent or terminate
violations of the resolutions and regulations of any political
subdivision within its territory enacted or promulgated under the
power of that political subdivision pursuant to Article X of the
Ohio Constitution, over which the court of common pleas has or may
have jurisdiction, and, in those cases, the environmental division
of the municipal court may proceed to render judgments, and make
findings and orders, in the same manner and to the same extent as
in similar cases in the court of common pleas;
(F) In any civil action to enforce any provision of Chapter
3704., 3714., 3734., 3737., 3767., or 6111. of the Revised Code
over which the court of common pleas has or may have jurisdiction,
and, in those actions, the environmental division of the municipal
court may proceed to render judgments, and make findings and
orders, in the same manner and to the same extent as in similar
actions in the court of common pleas;
(G) In all actions and proceedings in the nature of
creditors' bills, and in aid of execution to subject the interests
of a judgment debtor in real or personal property to the payment
of a judgment of the division, and, in those actions and
proceedings, the environmental division may proceed to marshal and
foreclose all liens on the property irrespective of the amount of
the lien, and all vested or contingent rights in the property;
(H) Concurrent jurisdiction with the court of common pleas of
all criminal actions or proceedings related to the pollution of
the air, ground, or water within the territory of the
environmental division of the municipal court, for which a
sentence of death cannot be imposed under Chapter 2903. of the
Revised Code;
(I) In any review or appeal of any final order of any
administrative officer, agency, board, department, tribunal,
commission, or other instrumentality that relates to a local
building, housing, air pollution, sanitation, health, fire,
zoning, or safety code, ordinance, or regulation, in the same
manner and to the same extent as in similar appeals in the court
of common pleas.
Sec. 2152.13. (A) A juvenile court may impose a serious
youthful offender dispositional sentence on a child only if the
prosecuting attorney of the county in which the delinquent act
allegedly occurred initiates the process against the child in
accordance with this division, and the child is an alleged
delinquent child who is eligible for the dispositional sentence.
The prosecuting attorney may initiate the process in any of the
following ways:
(1) Obtaining an indictment of the child as a serious
youthful offender;
(2) The child waives the right to indictment, charging the
child in a bill of information as a serious youthful offender;
(3) Until an indictment or information is obtained,
requesting a serious youthful offender dispositional sentence in
the original complaint alleging that the child is a delinquent
child;
(4) Until an indictment or information is obtained, if the
original complaint does not request a serious youthful offender
dispositional sentence, filing with the juvenile court a written
notice of intent to seek a serious youthful offender dispositional
sentence within twenty days after the later of the following,
unless the time is extended by the juvenile court for good cause
shown:
(a) The date of the child's first juvenile court hearing
regarding the complaint;
(b) The date the juvenile court determines not to transfer
the case under section 2152.12 of the Revised Code.
After a written notice is filed under division (A)(4) of this
section, the juvenile court shall serve a copy of the notice on
the child and advise the child of the prosecuting attorney's
intent to seek a serious youthful offender dispositional sentence
in the case.
(B) If an alleged delinquent child is not indicted or charged
by information as described in division (A)(1) or (2) of this
section and if a notice or complaint as described in division
(A)(3) or (4) of this section indicates that the prosecuting
attorney intends to pursue a serious youthful offender
dispositional sentence in the case, the juvenile court shall hold
a preliminary hearing to determine if there is probable cause that
the child committed the act charged and is by age eligible for, or
required to receive, a serious youthful offender dispositional
sentence.
(C)(1) A child for whom a serious youthful offender
dispositional sentence is sought has the right to a grand jury
determination of probable cause that the child committed the act
charged and that the child is eligible by age for a serious
youthful offender dispositional sentence. The grand jury may be
impaneled by the court of common pleas or the juvenile court.
Once a child is indicted, or charged by information or the
juvenile court determines that the child is eligible for a serious
youthful offender dispositional sentence, the child is entitled to
an open and speedy trial by jury in juvenile court and to be
provided with a transcript of the proceedings. The time within
which the trial is to be held under Title XXIX of the Revised Code
commences on whichever of the following dates is applicable:
(a) If the child is indicted or charged by information, on
the date of the filing of the indictment or information.
(b) If the child is charged by an original complaint that
requests a serious youthful offender dispositional sentence, on
the date of the filing of the complaint.
(c) If the child is not charged by an original complaint that
requests a serious youthful offender dispositional sentence, on
the date that the prosecuting attorney files the written notice of
intent to seek a serious youthful offender dispositional sentence.
(2) If the child is detained awaiting adjudication, upon
indictment or being charged by information, the child has the same
right to bail as an adult charged with the offense the alleged
delinquent act would be if committed by an adult. Except as
provided in division (D) of section 2152.14 of the Revised Code,
all provisions of Title XXIX of the Revised Code and the Criminal
Rules shall apply in the case and to the child. The juvenile court
shall afford the child all rights afforded a person who is
prosecuted for committing a crime including the right to counsel
and the right to raise the issue of competency. The child may not
waive the right to counsel.
(D)(1) If a child is adjudicated a delinquent child for
committing an act under circumstances that require the juvenile
court to impose upon the child a serious youthful offender
dispositional sentence under section 2152.11 of the Revised Code,
all of the following apply:
(a) The juvenile court shall impose upon the child a sentence
available for the violation, as if the child were an adult, under
Chapter 2929. of the Revised Code, except that the juvenile court
shall not impose on the child a sentence of death or life
imprisonment without parole.
(b) The juvenile court also shall impose upon the child one
or more traditional juvenile dispositions under sections 2152.16,
2152.19, and 2152.20, and, if applicable, section 2152.17 of the
Revised Code.
(c) The juvenile court shall stay the adult portion of the
serious youthful offender dispositional sentence pending the
successful completion of the traditional juvenile dispositions
imposed.
(2)(a) If a child is adjudicated a delinquent child for
committing an act under circumstances that allow, but do not
require, the juvenile court to impose on the child a serious
youthful offender dispositional sentence under section 2152.11 of
the Revised Code, all of the following apply:
(i) If the juvenile court on the record makes a finding that,
given the nature and circumstances of the violation and the
history of the child, the length of time, level of security, and
types of programming and resources available in the juvenile
system alone are not adequate to provide the juvenile court with a
reasonable expectation that the purposes set forth in section
2152.01 of the Revised Code will be met, the juvenile court may
impose upon the child a sentence available for the violation, as
if the child were an adult, under Chapter 2929. of the Revised
Code, except that the juvenile court shall not impose on the child
a sentence of death or life imprisonment without parole.
(ii) If a sentence is imposed under division (D)(2)(a)(i) of
this section, the juvenile court also shall impose upon the child
one or more traditional juvenile dispositions under sections
2152.16, 2152.19, and 2152.20 and, if applicable, section 2152.17
of the Revised Code.
(iii) The juvenile court shall stay the adult portion of the
serious youthful offender dispositional sentence pending the
successful completion of the traditional juvenile dispositions
imposed.
(b) If the juvenile court does not find that a sentence
should be imposed under division (D)(2)(a)(i) of this section, the
juvenile court may impose one or more traditional juvenile
dispositions under sections 2152.16, 2152.19, 2152.20, and, if
applicable, section 2152.17 of the Revised Code.
(3) A child upon whom a serious youthful offender
dispositional sentence is imposed under division (D)(1) or (2) of
this section has a right to appeal under division (A)(1), (3),
(4), (5), or (6) of section 2953.08 of the Revised Code the adult
portion of the serious youthful offender dispositional sentence
when any of those divisions apply. The child may appeal the adult
portion, and the court shall consider the appeal as if the adult
portion were not stayed.
Sec. 2152.67. Any adult who is arrested or charged under any
provision in this chapter and who is charged with a crime may
demand a trial by jury, or the juvenile judge upon the judge's own
motion may call a jury. A demand for a jury trial shall be made in
writing in not less than three days before the date set for trial,
or within three days after counsel has been retained, whichever is
later. Sections 2945.17 and 2945.23 to 2945.36 of the Revised
Code, relating to the drawing and impaneling of jurors in criminal
cases in the court of common pleas, other than in capital cases,
shall apply to a jury trial under this section. The compensation
of jurors and costs of the clerk and sheriff shall be taxed and
paid in the same manner as in criminal cases in the court of
common pleas.
Sec. 2301.20. Upon the trial of a civil or criminal action
in the court of common pleas, if either party to the action or
his
either party's attorney requests the services of a shorthand
reporter, the trial judge shall grant the request, or may order a
full report of the testimony or other proceedings. In either case,
the shorthand reporter shall take accurate shorthand notes of the
oral testimony or other oral proceedings. The notes shall be filed
in the office of the official shorthand reporter and carefully
preserved for either of the following periods of time:
(A) If the action is not a capital case, the notes shall be
preserved for the period of time specified by the court of common
pleas, which period of time shall not be longer than the period of
time that the other records of the particular action are required
to be kept;
(B) If the action is a capital case, the notes shall be
preserved for the longer of ten years or until the final
disposition of the action.
Sec. 2313.37. (A) In the trial in the court of common pleas
of any civil case when it appears to the judge presiding that the
trial is likely to be protracted, upon direction of the judge
after the jury has been impaneled and sworn, an additional or
alternate juror shall be selected in the same manner as the
regular jurors in the case were selected, but each party is
entitled to two peremptory challenges as to the alternate juror.
(B) In all criminal cases, the selection of alternate jurors
shall be made pursuant to Criminal Rule 24.
(C) The additional or alternate jurors selected shall be
sworn and seated near the regular jurors, with equal opportunity
for seeing and hearing the proceedings and shall attend at all
times upon the trial with regular jurors and shall obey all orders
and admonitions of the court to the jury, and when the regular
jurors are ordered kept together in a criminal case, the alternate
jurors shall be kept with them. The additional or alternate jurors
shall be liable as regular jurors for failure to attend the trial
or to obey any order or admonition of the court to the jury, shall
receive the same compensation as other jurors, and except as
provided in this section shall be discharged upon the final
submission of the case to the jury.
(D) If before the final submission of the case to the jury,
which in capital cases includes any hearing required under
division (D) of section 2929.03 of the Revised Code, a regular
juror becomes unable to perform his official duties,
incapacitated, or disqualified, he the regular juror may be
discharged by the judge, in which case, or if a regular juror
dies, upon the order of the judge, an additional or alternate
juror, in the order in which called, shall become one of the jury
and serve in all respects as though selected as an original juror.
Sec. 2701.07. When, in the opinion of the court, the
business thereof so requires, each court of common pleas, court of
appeals, and, in counties having at the last or any future federal
census more than seventy thousand inhabitants, the probate court,
may appoint one or more constables to preserve order, attend the
assignment of cases in counties where more than two judges of the
court of common pleas regularly hold court at the same time, and
discharge such other duties as the court requires. When so
directed by the court, each constable has the same powers as
sheriffs to call and impanel jurors, except in capital cases.
Sec. 2901.02. As used in the Revised Code:
(A) Offenses include aggravated murder, murder, felonies of
the first, second, third, fourth, and fifth degree, misdemeanors
of the first, second, third, and fourth degree, minor
misdemeanors, and offenses not specifically classified.
(B) Aggravated murder when the indictment or the count in the
indictment charging aggravated murder contains one or more
specifications of aggravating circumstances listed in division (A)
of section 2929.04 of Revised Code, and any other offense for
which death may be imposed as a penalty, is a capital offense.
(C) Aggravated murder and murder are felonies.
(D)(C) Regardless of the penalty that may be imposed, any
offense specifically classified as a felony is a felony, and any
offense specifically classified as a misdemeanor is a misdemeanor.
(E)(D) Any offense not specifically classified is a felony if
imprisonment for more than one year may be imposed as a penalty.
(F)(E) Any offense not specifically classified is a
misdemeanor if imprisonment for not more than one year may be
imposed as a penalty.
(G)(F) Any offense not specifically classified is a minor
misdemeanor if the only penalty that may be imposed is one of the
following:
(1) For an offense committed prior to the effective date of
this amendment January 1, 2004, a fine not exceeding one hundred
dollars;
(2) For an offense committed on or after the effective date
of this amendment January 1, 2004, a fine not exceeding one
hundred fifty dollars, community service under division (C) of
section 2929.27 of the Revised Code, or a financial sanction other
than a fine under section 2929.28 of the Revised Code.
Sec. 2909.24. (A) No person shall commit a specified offense
with purpose to do any of the following:
(1) Intimidate or coerce a civilian population;
(2) Influence the policy of any government by intimidation or
coercion;
(3) Affect the conduct of any government by the specified
offense.
(B)(1) Whoever violates this section is guilty of terrorism.
(2) Except as otherwise provided in divisions (B)(3) and (4)
of this section, terrorism is an offense one degree higher than
the most serious underlying specified offense the defendant
committed.
(3) If the most serious underlying specified offense the
defendant committed is a felony of the first degree or murder, the
person shall be sentenced to life imprisonment without parole.
(4) If the most serious underlying specified offense the
defendant committed is aggravated murder, the offender shall be
sentenced to life imprisonment without parole or death pursuant to
sections 2929.02 to 2929.06 of the Revised Code.
(5) Section 2909.25 of the Revised Code applies regarding an
offender who is convicted of or pleads guilty to a violation of
this section.
Sec. 2929.02. (A) Whoever Except as otherwise provided in
division (C) of this section, whoever is convicted of or pleads
guilty to aggravated murder in violation of section 2903.01 of the
Revised Code shall
suffer death or be imprisoned for life, as
determined pursuant to sections 2929.022, 2929.03, and 2929.04 of
the Revised Code, except that no person who raises the matter of
age pursuant to section 2929.023 of the Revised Code and who is
not found to have been eighteen years of age or older at the time
of the commission of the offense shall suffer death. In addition,
the offender may be fined an amount fixed by the court, but not
more than twenty-five thousand dollars sentenced to life
imprisonment with parole eligibility after serving twenty full
years of imprisonment, life imprisonment with parole eligibility
after serving thirty full years of imprisonment, or life
imprisonment without parole.
(B)(1) Except as otherwise provided in division
(B)(2) or
(3)(C) of this section, whoever is convicted of or pleads guilty
to murder in violation of section 2903.02 of the Revised Code
shall be imprisoned for an indefinite term of fifteen years to
life.
(2)(C)(1) Except as otherwise provided in division
(B)(3)(C)(2) of this section, if a person is convicted of or
pleads guilty to aggravated murder in violation of section 2903.01
of the Revised Code or to murder in violation of section 2903.02
of the Revised Code, the victim of the offense was less than
thirteen years of age, and the offender also is convicted of or
pleads guilty to a sexual motivation specification that was
included in the indictment, count in the indictment, or
information charging the offense, the court shall impose an
indefinite prison term of thirty years to life pursuant to
division (B)(3) of section 2971.03 of the Revised Code.
(3)(2) If a person is convicted of or pleads guilty to
aggravated murder in violation of section 2903.01 of the Revised
Code or to murder in violation of section 2903.02 of the Revised
Code and also is convicted of or pleads guilty to a sexual
motivation specification and a sexually violent predator
specification that were included in the indictment, count in the
indictment, or information that charged the murder, the court
shall impose upon the offender a term of life imprisonment without
parole that shall be served pursuant to section 2971.03 of the
Revised Code.
(4)(D) In addition to the prison term imposed under this
section, the offender may be fined an amount fixed by the court,
but not more than twenty-five thousand dollars for aggravated
murder or fifteen thousand dollars for murder.
(C)(E) The court shall not impose a fine or fines for
aggravated murder or murder which that, in the aggregate and to
the extent not suspended by the court, exceeds the amount which
that the offender is or will be able to pay by the method and
within the time allowed without undue hardship to the offender or
to the dependents of the offender, or will prevent the offender
from making reparation for the victim's wrongful death.
(D)(F)(1) In addition to any other sanctions imposed for a
violation of section 2903.01 or 2903.02 of the Revised Code, if
the offender used a motor vehicle as the means to commit the
violation, 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.
(2) As used in division (D)(F) of this section, "motor
vehicle" has the same meaning as in section 4501.01 of the Revised
Code.
(G) Capital punishment is hereby abolished. A trial court
that sentenced an offender to death prior to the effective date of
this amendment shall conduct a hearing to resentence the offender.
At the resentencing hearing, the court shall impose upon the
offender a sentence of life imprisonment without parole.
Sec. 2929.13. (A) Except as provided in division (E), (F),
or (G) of this section and unless a specific sanction is required
to be imposed or is precluded from being imposed pursuant to law,
a court that imposes a sentence upon an offender for a felony may
impose any sanction or combination of sanctions on the offender
that are provided in sections 2929.14 to 2929.18 of the Revised
Code. The sentence shall not impose an unnecessary burden on state
or local government resources.
If the offender is eligible to be sentenced to community
control sanctions, the court shall consider the appropriateness of
imposing a financial sanction pursuant to section 2929.18 of the
Revised Code or a sanction of community service pursuant to
section 2929.17 of the Revised Code as the sole sanction for the
offense. Except as otherwise provided in this division, if the
court is required to impose a mandatory prison term for the
offense for which sentence is being imposed, the court also shall
impose any financial sanction pursuant to section 2929.18 of the
Revised Code that is required for the offense and may impose any
other financial sanction pursuant to that section but may not
impose any additional sanction or combination of sanctions under
section 2929.16 or 2929.17 of the Revised Code.
If the offender is being sentenced for a fourth degree felony
OVI offense or for a third degree felony OVI offense, in addition
to the mandatory term of local incarceration or the mandatory
prison term required for the offense by division (G)(1) or (2) of
this section, the court shall impose upon the offender a mandatory
fine in accordance with division (B)(3) of section 2929.18 of the
Revised Code and may impose whichever of the following is
applicable:
(1) For a fourth degree felony OVI offense for which sentence
is imposed under division (G)(1) of this section, an additional
community control sanction or combination of community control
sanctions under section 2929.16 or 2929.17 of the Revised Code. If
the court imposes upon the offender a community control sanction
and the offender violates any condition of the community control
sanction, the court may take any action prescribed in division (B)
of section 2929.15 of the Revised Code relative to the offender,
including imposing a prison term on the offender pursuant to that
division.
(2) For a third or fourth degree felony OVI offense for which
sentence is imposed under division (G)(2) of this section, an
additional prison term as described in division (D)(4) of section
2929.14 of the Revised Code or a community control sanction as
described in division (G)(2) of this section.
(B)(1) Except as provided in division (B)(2), (E), (F), or
(G) of this section, in sentencing an offender for a felony of the
fourth or fifth degree, the sentencing court shall determine
whether any of the following apply:
(a) In committing the offense, the offender caused physical
harm to a person.
(b) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person with a
deadly weapon.
(c) In committing the offense, the offender attempted to
cause or made an actual threat of physical harm to a person, and
the offender previously was convicted of an offense that caused
physical harm to a person.
(d) The offender held a public office or position of trust
and the offense related to that office or position; the offender's
position obliged the offender to prevent the offense or to bring
those committing it to justice; or the offender's professional
reputation or position facilitated the offense or was likely to
influence the future conduct of others.
(e) The offender committed the offense for hire or as part of
an organized criminal activity.
(f) The offense is a sex offense that is a fourth or fifth
degree felony violation of section 2907.03, 2907.04, 2907.05,
2907.22, 2907.31, 2907.321, 2907.322, 2907.323, or 2907.34 of the
Revised Code.
(g) The offender at the time of the offense was serving, or
the offender previously had served, a prison term.
(h) The offender committed the offense while under a
community control sanction, while on probation, or while released
from custody on a bond or personal recognizance.
(i) The offender committed the offense while in possession of
a firearm.
(2)(a) If the court makes a finding described in division
(B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this
section and if the court, after considering the factors set forth
in section 2929.12 of the Revised Code, finds that a prison term
is consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code and finds that the
offender is not amenable to an available community control
sanction, the court shall impose a prison term upon the offender.
(b) Except as provided in division (E), (F), or (G) of this
section, if the court does not make a finding described in
division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of
this section and if the court, after considering the factors set
forth in section 2929.12 of the Revised Code, finds that a
community control sanction or combination of community control
sanctions is consistent with the purposes and principles of
sentencing set forth in section 2929.11 of the Revised Code, the
court shall impose a community control sanction or combination of
community control sanctions upon the offender.
(C) Except as provided in division (D), (E), (F), or (G) of
this section, in determining whether to impose a prison term as a
sanction for a felony of the third degree or a felony drug offense
that is a violation of a provision of Chapter 2925. of the Revised
Code and that is specified as being subject to this division for
purposes of sentencing, the sentencing court shall comply with the
purposes and principles of sentencing under section 2929.11 of the
Revised Code and with section 2929.12 of the Revised Code.
(D)(1) Except as provided in division (E) or (F) of this
section, for a felony of the first or second degree, for a felony
drug offense that is a violation of any provision of Chapter
2925., 3719., or 4729. of the Revised Code for which a presumption
in favor of a prison term is specified as being applicable, and
for a violation of division (A)(4) or (B) of section 2907.05 of
the Revised Code for which a presumption in favor of a prison term
is specified as being applicable, it is presumed that a prison
term is necessary in order to comply with the purposes and
principles of sentencing under section 2929.11 of the Revised
Code. Division (D)(2) of this section does not apply to a
presumption established under this division for a violation of
division (A)(4) of section 2907.05 of the Revised Code.
(2) Notwithstanding the presumption established under
division (D)(1) of this section for the offenses listed in that
division other than a violation of division (A)(4) or (B) of
section 2907.05 of the Revised Code, the sentencing court may
impose a community control sanction or a combination of community
control sanctions instead of a prison term on an offender for a
felony of the first or second degree or for a felony drug offense
that is a violation of any provision of Chapter 2925., 3719., or
4729. of the Revised Code for which a presumption in favor of a
prison term is specified as being applicable if it makes both of
the following findings:
(a) A community control sanction or a combination of
community control sanctions would adequately punish the offender
and protect the public from future crime, because the applicable
factors under section 2929.12 of the Revised Code indicating a
lesser likelihood of recidivism outweigh the applicable factors
under that section indicating a greater likelihood of recidivism.
(b) A community control sanction or a combination of
community control sanctions would not demean the seriousness of
the offense, because one or more factors under section 2929.12 of
the Revised Code that indicate that the offender's conduct was
less serious than conduct normally constituting the offense are
applicable, and they outweigh the applicable factors under that
section that indicate that the offender's conduct was more serious
than conduct normally constituting the offense.
(E)(1) Except as provided in division (F) of this section,
for any drug offense that is a violation of any provision of
Chapter 2925. of the Revised Code and that is a felony of the
third, fourth, or fifth degree, the applicability of a presumption
under division (D) of this section in favor of a prison term or of
division (B) or (C) of this section in determining whether to
impose a prison term for the offense shall be determined as
specified in section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, or 2925.37 of the
Revised Code, whichever is applicable regarding the violation.
(2) If an offender who was convicted of or pleaded guilty to
a felony violates the conditions of a community control sanction
imposed for the offense solely by reason of producing positive
results on a drug test, the court, as punishment for the violation
of the sanction, shall not order that the offender be imprisoned
unless the court determines on the record either of the following:
(a) The offender had been ordered as a sanction for the
felony to participate in a drug treatment program, in a drug
education program, or in narcotics anonymous or a similar program,
and the offender continued to use illegal drugs after a reasonable
period of participation in the program.
(b) The imprisonment of the offender for the violation is
consistent with the purposes and principles of sentencing set
forth in section 2929.11 of the Revised Code.
(3) A court that sentences an offender for a drug abuse
offense that is a felony of the third, fourth, or fifth degree may
require that the offender be assessed by a properly credentialed
professional within a specified period of time. The court shall
require the professional to file a written assessment of the
offender with the court. If the offender is eligible for a
community control sanction and after considering the written
assessment, the court may impose a community control sanction that
includes treatment and recovery support services authorized by
section 3793.02 of the Revised Code. If the court imposes
treatment and recovery support services as a community control
sanction, the court shall direct the level and type of treatment
and recovery support services after considering the assessment and
recommendation of treatment and recovery support services
providers.
(F) Notwithstanding divisions (A) to (E) of this section, the
court shall impose a prison term or terms under sections section
2929.02
to 2929.06, section 2929.14, section 2929.142, or section
2971.03 of the Revised Code and except as specifically provided in
section 2929.20 or 2967.191 of the Revised Code or when parole is
authorized for the offense under section 2967.13 of the Revised
Code shall not reduce the term or terms pursuant to section
2929.20, section 2967.193, or any other provision of Chapter 2967.
or Chapter 5120. of the Revised Code for any of the following
offenses:
(1) Aggravated murder when death is not imposed or murder;
(2) Any rape, regardless of whether force was involved and
regardless of the age of the victim, or an attempt to commit rape
if, had the offender completed the rape that was attempted, the
offender would have been guilty of a violation of division
(A)(1)(b) of section 2907.02 of the Revised Code and would be
sentenced under section 2971.03 of the Revised Code;
(3) Gross sexual imposition or sexual battery, if the victim
is less than thirteen years of age and if any of the following
applies:
(a) Regarding gross sexual imposition, the offender
previously was convicted of or pleaded guilty to rape, the former
offense of felonious sexual penetration, gross sexual imposition,
or sexual battery, and the victim of the previous offense was less
than thirteen years of age;
(b) Regarding gross sexual imposition, the offense was
committed on or after August 3, 2006, and evidence other than the
testimony of the victim was admitted in the case corroborating the
violation.
(c) Regarding sexual battery, either of the following
applies:
(i) The offense was committed prior to August 3, 2006, the
offender previously was convicted of or pleaded guilty to rape,
the former offense of felonious sexual penetration, or sexual
battery, and the victim of the previous offense was less than
thirteen years of age.
(ii) The offense was committed on or after August 3, 2006.
(4) A felony violation of section 2903.04, 2903.06, 2903.08,
2903.11, 2903.12, 2903.13, or 2907.07 of the Revised Code if the
section requires the imposition of a prison term;
(5) A first, second, or third degree felony drug offense for
which section 2925.02, 2925.03, 2925.04, 2925.05, 2925.06,
2925.11, 2925.13, 2925.22, 2925.23, 2925.36, 2925.37, 3719.99, or
4729.99 of the Revised Code, whichever is applicable regarding the
violation, requires the imposition of a mandatory prison term;
(6) Any offense that is a first or second degree felony and
that is not set forth in division (F)(1), (2), (3), or (4) of this
section, if the offender previously was convicted of or pleaded
guilty to aggravated murder, murder, any first or second degree
felony, or an offense under an existing or former law of this
state, another state, or the United States that is or was
substantially equivalent to one of those offenses;
(7) Any offense that is a third degree felony and either is a
violation of section 2903.04 of the Revised Code or an attempt to
commit a felony of the second degree that is an offense of
violence and involved an attempt to cause serious physical harm to
a person or that resulted in serious physical harm to a person if
the offender previously was convicted of or pleaded guilty to any
of the following offenses:
(a) Aggravated murder, murder, involuntary manslaughter,
rape, felonious sexual penetration as it existed under section
2907.12 of the Revised Code prior to September 3, 1996, a felony
of the first or second degree that resulted in the death of a
person or in physical harm to a person, or complicity in or an
attempt to commit any of those offenses;
(b) An offense under an existing or former law of this state,
another state, or the United States that is or was substantially
equivalent to an offense listed in division (F)(7)(a) of this
section that resulted in the death of a person or in physical harm
to a person.
(8) Any offense, other than a violation of section 2923.12 of
the Revised Code, that is a felony, if the offender had a firearm
on or about the offender's person or under the offender's control
while committing the felony, with respect to a portion of the
sentence imposed pursuant to division (D)(1)(a) of section 2929.14
of the Revised Code for having the firearm;
(9) Any offense of violence that is a felony, if the offender
wore or carried body armor while committing the felony offense of
violence, with respect to the portion of the sentence imposed
pursuant to division (D)(1)(d) of section 2929.14 of the Revised
Code for wearing or carrying the body armor;
(10) Corrupt activity in violation of section 2923.32 of the
Revised Code when the most serious offense in the pattern of
corrupt activity that is the basis of the offense is a felony of
the first degree;
(11) Any violent sex offense or designated homicide, assault,
or kidnapping offense if, in relation to that offense, the
offender is adjudicated a sexually violent predator;
(12) A violation of division (A)(1) or (2) of section 2921.36
of the Revised Code, or a violation of division (C) of that
section involving an item listed in division (A)(1) or (2) of that
section, if the offender is an officer or employee of the
department of rehabilitation and correction;
(13) A violation of division (A)(1) or (2) of section 2903.06
of the Revised Code if the victim of the offense is a peace
officer, as defined in section 2935.01 of the Revised Code, or an
investigator of the bureau of criminal identification and
investigation, as defined in section 2903.11 of the Revised Code,
with respect to the portion of the sentence imposed pursuant to
division (D)(5) of section 2929.14 of the Revised Code;
(14) A violation of division (A)(1) or (2) of section 2903.06
of the Revised Code if the offender has been convicted of or
pleaded guilty to three or more violations of division (A) or (B)
of section 4511.19 of the Revised Code or an equivalent offense,
as defined in section 2941.1415 of the Revised Code, or three or
more violations of any combination of those divisions and
offenses, with respect to the portion of the sentence imposed
pursuant to division (D)(6) of section 2929.14 of the Revised
Code;
(15) Kidnapping, in the circumstances specified in section
2971.03 of the Revised Code and when no other provision of
division (F) of this section applies;
(16) Kidnapping, abduction, compelling prostitution,
promoting prostitution, engaging in a pattern of corrupt activity,
illegal use of a minor in a nudity-oriented material or
performance in violation of division (A)(1) or (2) of section
2907.323 of the Revised Code, or endangering children in violation
of division (B)(1), (2), (3), (4), or (5) of section 2919.22 of
the Revised Code, if the offender is convicted of or pleads guilty
to a specification as described in section 2941.1422 of the
Revised Code that was included in the indictment, count in the
indictment, or information charging the offense;
(17) A felony violation of division (A) or (B) of section
2919.25 of the Revised Code if division (D)(3), (4), or (5) of
that section, and division (D)(6) of that section, require the
imposition of a prison term;
(18) A felony violation of section 2903.11, 2903.12, or
2903.13 of the Revised Code, if the victim of the offense was a
woman that the offender knew was pregnant at the time of the
violation, with respect to a portion of the sentence imposed
pursuant to division (D)(8) of section 2929.14 of the Revised
Code.
(G) Notwithstanding divisions (A) to (E) of this section, if
an offender is being sentenced for a fourth degree felony OVI
offense or for a third degree felony OVI offense, the court shall
impose upon the offender a mandatory term of local incarceration
or a mandatory prison term in accordance with the following:
(1) If the offender is being sentenced for a fourth degree
felony OVI offense and if the offender has not been convicted of
and has not pleaded guilty to a specification of the type
described in section 2941.1413 of the Revised Code, the court may
impose upon the offender a mandatory term of local incarceration
of sixty days or one hundred twenty days as specified in division
(G)(1)(d) of section 4511.19 of the Revised Code. The court shall
not reduce the term pursuant to section 2929.20, 2967.193, or any
other provision of the Revised Code. The court that imposes a
mandatory term of local incarceration under this division shall
specify whether the term is to be served in a jail, a
community-based correctional facility, a halfway house, or an
alternative residential facility, and the offender shall serve the
term in the type of facility specified by the court. A mandatory
term of local incarceration imposed under division (G)(1) of this
section is not subject to any other Revised Code provision that
pertains to a prison term except as provided in division (A)(1) of
this section.
(2) If the offender is being sentenced for a third degree
felony OVI offense, or if the offender is being sentenced for a
fourth degree felony OVI offense and the court does not impose a
mandatory term of local incarceration under division (G)(1) of
this section, the court shall impose upon the offender a mandatory
prison term of one, two, three, four, or five years if the
offender also is convicted of or also pleads guilty to a
specification of the type described in section 2941.1413 of the
Revised Code or shall impose upon the offender a mandatory prison
term of sixty days or one hundred twenty days as specified in
division (G)(1)(d) or (e) of section 4511.19 of the Revised Code
if the offender has not been convicted of and has not pleaded
guilty to a specification of that type. The court shall not reduce
the term pursuant to section 2929.20, 2967.193, or any other
provision of the Revised Code. The offender shall serve the one-,
two-, three-, four-, or five-year mandatory prison term
consecutively to and prior to the prison term imposed for the
underlying offense and consecutively to any other mandatory prison
term imposed in relation to the offense. In no case shall an
offender who once has been sentenced to a mandatory term of local
incarceration pursuant to division (G)(1) of this section for a
fourth degree felony OVI offense be sentenced to another mandatory
term of local incarceration under that division for any violation
of division (A) of section 4511.19 of the Revised Code. In
addition to the mandatory prison term described in division (G)(2)
of this section, the court may sentence the offender to a
community control sanction under section 2929.16 or 2929.17 of the
Revised Code, but the offender shall serve the prison term prior
to serving the community control sanction. The department of
rehabilitation and correction may place an offender sentenced to a
mandatory prison term under this division in an intensive program
prison established pursuant to section 5120.033 of the Revised
Code if the department gave the sentencing judge prior notice of
its intent to place the offender in an intensive program prison
established under that section and if the judge did not notify the
department that the judge disapproved the placement. Upon the
establishment of the initial intensive program prison pursuant to
section 5120.033 of the Revised Code that is privately operated
and managed by a contractor pursuant to a contract entered into
under section 9.06 of the Revised Code, both of the following
apply:
(a) The department of rehabilitation and correction shall
make a reasonable effort to ensure that a sufficient number of
offenders sentenced to a mandatory prison term under this division
are placed in the privately operated and managed prison so that
the privately operated and managed prison has full occupancy.
(b) Unless the privately operated and managed prison has full
occupancy, the department of rehabilitation and correction shall
not place any offender sentenced to a mandatory prison term under
this division in any intensive program prison established pursuant
to section 5120.033 of the Revised Code other than the privately
operated and managed prison.
(H) If an offender is being sentenced for a sexually oriented
offense or child-victim oriented offense that is a felony
committed on or after January 1, 1997, the judge shall require the
offender to submit to a DNA specimen collection procedure pursuant
to section 2901.07 of the Revised Code.
(I) If an offender is being sentenced for a sexually oriented
offense or a child-victim oriented offense committed on or after
January 1, 1997, the judge shall include in the sentence a summary
of the offender's duties imposed under sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code and the duration of the
duties. The judge shall inform the offender, at the time of
sentencing, of those duties and of their duration. If required
under division (A)(2) of section 2950.03 of the Revised Code, the
judge shall perform the duties specified in that section, or, if
required under division (A)(6) of section 2950.03 of the Revised
Code, the judge shall perform the duties specified in that
division.
(J)(1) Except as provided in division (J)(2) of this section,
when considering sentencing factors under this section in relation
to an offender who is convicted of or pleads guilty to an attempt
to commit an offense in violation of section 2923.02 of the
Revised Code, the sentencing court shall consider the factors
applicable to the felony category of the violation of section
2923.02 of the Revised Code instead of the factors applicable to
the felony category of the offense attempted.
(2) When considering sentencing factors under this section in
relation to an offender who is convicted of or pleads guilty to an
attempt to commit a drug abuse offense for which the penalty is
determined by the amount or number of unit doses of the controlled
substance involved in the drug abuse offense, the sentencing court
shall consider the factors applicable to the felony category that
the drug abuse offense attempted would be if that drug abuse
offense had been committed and had involved an amount or number of
unit doses of the controlled substance that is within the next
lower range of controlled substance amounts than was involved in
the attempt.
(K) As used in this section, "drug abuse offense" has the
same meaning as in section 2925.01 of the Revised Code.
(L) At the time of sentencing an offender for any sexually
oriented offense, if the offender is a tier III sex
offender/child-victim offender relative to that offense and the
offender does not serve a prison term or jail term, the court may
require that the offender be monitored by means of a global
positioning device. If the court requires such monitoring, the
cost of monitoring shall be borne by the offender. If the offender
is indigent, the cost of compliance shall be paid by the crime
victims reparations fund.
Sec. 2929.14. (A) Except as provided in division (C),
(D)(1), (D)(2), (D)(3), (D)(4), (D)(5), (D)(6), (D)(7), (D)(8),
(G), (I), (J), or (L) of this section or in division (D)(6) of
section 2919.25 of the Revised Code 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), (D)(8), (G), (I), (J), or (L) of
this section, in section 2907.02, 2907.05, or 2919.25 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 (D)(7), (D)(8), (G), or
(L) of this section, in section 2919.25 of the Revised Code, 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. Except as provided in division (D)(1)(g) of this section, 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) or (b) of this
section upon an offender for a violation of section 2923.122 that
involves a deadly weapon that is a firearm other than a dangerous
ordnance, section 2923.16, or section 2923.121 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. If an offender is convicted of or pleads guilty to two or
more felonies that include, as an essential element, causing or
attempting to cause the death or physical harm to another and also
is convicted of or pleads guilty to a specification of the type
described under division (D)(1)(f) of this section in connection
with two or more of the felonies of which the offender is
convicted or to which the offender pleads guilty, the sentencing
court shall impose on the offender the prison term specified under
division (D)(1)(f) of this section for each of two of the
specifications of which the offender is convicted or to which the
offender pleads guilty and, in its discretion, also may impose on
the offender the prison term specified under that division for any
or all of the remaining specifications. 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.
(g) If an offender is convicted of or pleads guilty to two or
more felonies, if one or more of those felonies is are aggravated
murder, murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the
offender is convicted of or pleads guilty to a specification of
the type described under division (D)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court
shall impose on the offender the prison term specified under
division (D)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.
(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 (CC)(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)(a) If an offender is convicted of or pleads guilty to a
felony violation of section 2905.01, 2905.02, 2907.21, 2907.22, or
2923.32, division (A)(1) or (2) of section 2907.323, or division
(B)(1), (2), (3), (4), or (5) of section 2919.22 of the Revised
Code and also is convicted of or pleads guilty to a specification
of the type described in section 2941.1422 of the Revised Code
that charges that the offender knowingly committed the offense in
furtherance of human trafficking, the court shall impose on the
offender a mandatory prison term that is one of the following:
(i) If the offense is a felony of the first degree, a
definite prison term of not less than five years and not greater
than ten years;
(ii) If the offense is a felony of the second or third
degree, a definite prison term of not less than three years and
not greater than the maximum prison term allowed for the offense
by division (A) of section 2929.14 of the Revised Code;
(iii) If the offense is a felony of the fourth or fifth
degree, a definite prison term that is the maximum prison term
allowed for the offense by division (A) of section 2929.14 of the
Revised Code.
(b) The prison term imposed under division (D)(7)(a) of this
section shall not be reduced pursuant to section 2929.20, section
2967.193, or any other provision of Chapter 2967. of the Revised
Code. A court shall not impose more than one prison term on an
offender under division (D)(7)(a) of this section for felonies
committed as part of the same act, scheme, or plan.
(8) If an offender is convicted of or pleads guilty to a
felony violation of section 2903.11, 2903.12, or 2903.13 of the
Revised Code and also is convicted of or pleads guilty to a
specification of the type described in section 2941.1423 of the
Revised Code that charges that the victim of the violation was a
woman whom the offender knew was pregnant at the time of the
violation, notwithstanding the range of prison terms prescribed in
division (A) of this section for felonies of the same degree as
the violation, the court shall impose on the offender a mandatory
prison term that is either a definite prison term of six months or
one of the prison terms prescribed in section 2929.14 of the
Revised Code for felonies of the same degree as the violation.
(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.
(d) If a mandatory prison term is imposed upon an offender
pursuant to division (D)(7) or (8) of this section, the offender
shall serve the mandatory prison term so imposed consecutively to
any other mandatory prison term imposed under that division or
under any other provision of law 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) When consecutive prison terms are imposed pursuant to
division (E)(1), (2), (3), (4), or (5) or division (J)(1) or (2)
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
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 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)(C) of section
2929.06 2929.02 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 January 1, 2008, and division (B)(2)(C)(1)
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 section 2929.02 to 2929.06 of the
Revised Code, section 2929.142 of the Revised Code, section or
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)(1) 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.
(2)(a) If an offender is convicted of or pleads guilty to a
felony violation of section 2907.22, 2907.24, 2907.241, or 2907.25
of the Revised Code and to a specification of the type described
in section 2941.1421 of the Revised Code and if the court imposes
a prison term on the offender for the felony violation, the court
may impose upon the offender an additional prison term as follows:
(i) Subject to division (J)(2)(a)(ii) of this section, an
additional prison term of one, two, three, four, five, or six
months;
(ii) If the offender previously has been convicted of or
pleaded guilty to one or more felony or misdemeanor violations of
section 2907.22, 2907.23, 2907.24, 2907.241, or 2907.25 of the
Revised Code and also was convicted of or pleaded guilty to a
specification of the type described in section 2941.1421 of the
Revised Code regarding one or more of those violations, an
additional prison term of one, two, three, four, five, six, seven,
eight, nine, ten, eleven, or twelve months.
(b) In lieu of imposing an additional prison term under
division (J)(2)(a) of this section, the court may directly impose
on the offender a sanction that requires the offender to wear a
real-time processing, continual tracking electronic monitoring
device during the period of time specified by the court. The
period of time specified by the court shall equal the duration of
an additional prison term that the court could have imposed upon
the offender under division (J)(2)(a) of this section. A sanction
imposed under this division shall commence on the date specified
by the court, provided that the sanction shall not commence until
after the offender has served the prison term imposed for the
felony violation of section 2907.22, 2907.24, 2907.241, or 2907.25
of the Revised Code and any residential sanction imposed for the
violation under section 2929.16 of the Revised Code. A sanction
imposed under this division shall be considered to be a community
control sanction for purposes of section 2929.15 of the Revised
Code, and all provisions of the Revised Code that pertain to
community control sanctions shall apply to a sanction imposed
under this division, except to the extent that they would by their
nature be clearly inapplicable. The offender shall pay all costs
associated with a sanction imposed under this division, including
the cost of the use of the monitoring device.
(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. 2941.14. (A) In an indictment for aggravated murder,
murder, or voluntary or involuntary manslaughter, the manner in
which, or the means by which the death was caused need not be set
forth.
(B) Imposition of the death penalty for aggravated murder is
precluded unless the indictment or count in the indictment
charging the offense specifies one or more of the aggravating
circumstances listed in division (A) of section 2929.04 of the
Revised Code. If more than one aggravating circumstance is
specified to an indictment or count, each shall be in a separately
numbered specification, and if an aggravating circumstance is
specified to a count in an indictment containing more than one
count, such specification shall be identified as to the count to
which it applies.
(C) A specification to an indictment or count in an
indictment charging aggravated murder shall be stated at the end
of the body of the indictment or count, and may be in
substantially the following form:
"SPECIFICATION (or, SPECIFICATION 1, SPECIFICATION TO THE
FIRST COUNT, or SPECIFICATION 1 TO THE FIRST COUNT). The Grand
Jurors further find and specify that (set forth the applicable
aggravating circumstance listed in divisions (A)(1) to (10) of
section 2929.04 of the Revised Code. The aggravating circumstance
may be stated in the words of the subdivision in which it appears,
or in words sufficient to give the accused notice of the same)."
Sec. 2941.148. (A)(1) The application of Chapter 2971. of
the Revised Code to an offender is precluded unless one of the
following applies:
(a) The offender is charged with a violent sex offense, and
the indictment, count in the indictment, or information charging
the violent sex offense also includes a specification that the
offender is a sexually violent predator, or the offender is
charged with a designated homicide, assault, or kidnapping
offense, and the indictment, count in the indictment, or
information charging the designated homicide, assault, or
kidnapping offense also includes both a specification of the type
described in section 2941.147 of the Revised Code and a
specification that the offender is a sexually violent predator.
(b) The offender 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 division (B) of
section 2907.02 of the Revised Code does not prohibit the court
from sentencing the offender pursuant to section 2971.03 of the
Revised Code.
(c) The offender is convicted of or pleads guilty to
attempted rape committed on or after January 2, 2007, and to a
specification of the type described in section 2941.1418,
2941.1419, or 2941.1420 of the Revised Code.
(d) The offender is convicted of or pleads guilty to a
violation of section 2905.01 of the Revised Code and to a
specification of the type described in section 2941.147 of the
Revised Code, and section 2905.01 of the Revised Code requires a
court to sentence the offender pursuant to section 2971.03 of the
Revised Code.
(e) The offender is convicted of or pleads guilty to
aggravated murder and to a specification of the type described in
section 2941.147 of the Revised Code, 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)(C)(1) of section 2929.06 2929.02
of the Revised Code requires a court to sentence the offender
pursuant to division (B)(3) of section 2971.03 of the Revised
Code.
(f) The offender is convicted of or pleads guilty to murder
and to a specification of the type described in section 2941.147
of the Revised Code, and division (B)(2)(C)(1) of section 2929.02
of the Revised Code requires a court to sentence the offender
pursuant to section 2971.03 of the Revised Code.
(2) A specification required under division (A)(1)(a) of this
section that an offender is a sexually violent predator 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 jury (or insert the person's or prosecuting attorney's name
when appropriate) further find and specify that the offender is a
sexually violent predator."
(B) In determining for purposes of this section whether a
person is a sexually violent predator, all of the factors set
forth in divisions (H)(1) to (6) of section 2971.01 of the Revised
Code that apply regarding the person may be considered as evidence
tending to indicate that it is likely that the person will engage
in the future in one or more sexually violent offenses.
(C) As used in this section, "designated homicide, assault,
or kidnapping offense," "violent sex offense," and "sexually
violent predator" have the same meanings as in section 2971.01 of
the Revised Code.
Sec. 2941.401. When a person has entered upon a term of
imprisonment in a correctional institution of this state, and when
during the continuance of the term of imprisonment there is
pending in this state any untried indictment, information, or
complaint against the prisoner, he the prisoner shall be brought
to trial within one hundred eighty days after
he the prisoner
causes to be delivered to the prosecuting attorney and the
appropriate court in which the matter is pending, written notice
of the place of his the prisoner's imprisonment and a request for
a final disposition to be made of the matter, except that for good
cause shown in open court, with the prisoner or his the prisoner's
counsel present, the court may grant any necessary or reasonable
continuance. The request of the prisoner shall be accompanied by a
certificate of the warden or superintendent having custody of the
prisoner, stating the term of commitment under which the prisoner
is being held, the time served and remaining to be served on the
sentence, the amount of good time earned, the time of parole
eligibility of the prisoner, and any decisions of the adult parole
authority relating to the prisoner.
The written notice and request for final disposition shall be
given or sent by the prisoner to the warden or superintendent
having custody of him the prisoner, who shall promptly forward it
with the certificate to the appropriate prosecuting attorney and
court by registered or certified mail, return receipt requested.
The warden or superintendent having custody of the prisoner
shall promptly inform him the prisoner in writing of the source
and contents of any untried indictment, information, or complaint
against
him the prisoner, concerning which the warden or
superintendent has knowledge, and of his the prisoner's right to
make a request for final disposition thereof.
Escape from custody by the prisoner, subsequent to his the
prisoner's execution of the request for final disposition, voids
the request.
If the action is not brought to trial within the time
provided, subject to continuance allowed pursuant to this section,
no court any longer has jurisdiction thereof, the indictment,
information, or complaint is void, and the court shall enter an
order dismissing the action with prejudice.
This section does not apply to any person adjudged to be
mentally ill or who is under sentence of life imprisonment or
death, or to any prisoner under sentence of death.
Sec. 2941.43. If the convict referred to in section 2941.40
of the Revised Code is acquitted,
he
the convict shall
be
forthwith returned by the sheriff to the state correctional
institution to serve out the remainder of
his
the convict's
sentence. If
he
the convict is sentenced to imprisonment in a
state correctional institution,
he
the convict shall be returned
to the state correctional institution by the sheriff to serve
his
new
the convict's term. If he is sentenced to death, the death
sentence shall be executed as if he were not under sentence of
imprisonment in a state correctional institution.
Sec. 2941.51. (A) Counsel appointed to a case or selected by
an indigent person under division (E) of section 120.16 or
division (E) of section 120.26 of the Revised Code, or otherwise
appointed by the court, except for counsel appointed by the court
to provide legal representation for a person charged with a
violation of an ordinance of a municipal corporation, shall be
paid for their services by the county the compensation and
expenses that the trial court approves. Each request for payment
shall be accompanied by a financial disclosure form and an
affidavit of indigency that are completed by the indigent person
on forms prescribed by the state public defender. Compensation and
expenses shall not exceed the amounts fixed by the board of county
commissioners pursuant to division (B) of this section.
(B) The board of county commissioners shall establish a
schedule of fees by case or on an hourly basis to be paid by the
county for legal services provided by appointed counsel. Prior to
establishing such schedule, the board shall request the bar
association or associations of the county to submit a proposed
schedule. The schedule submitted shall be subject to the review,
amendment, and approval of the board of county commissioners.
(C) In a case where counsel have been appointed to conduct an
appeal under Chapter 120. of the Revised Code, such compensation
shall be fixed by the court of appeals or the supreme court, as
provided in divisions (A) and (B) of this section.
(D) The fees and expenses approved by the court under this
section shall not be taxed as part of the costs and shall be paid
by the county. However, if the person represented has, or
reasonably may be expected to have, the means to meet some part of
the cost of the services rendered to the person, the person shall
pay the county an amount that the person reasonably can be
expected to pay. Pursuant to section 120.04 of the Revised Code,
the county shall pay to the state public defender a percentage of
the payment received from the person in an amount proportionate to
the percentage of the costs of the person's case that were paid to
the county by the state public defender pursuant to this section.
The money paid to the state public defender shall be credited to
the client payment fund created pursuant to division (B)(5) of
section 120.04 of the Revised Code.
(E) The county auditor shall draw a warrant on the county
treasurer for the payment of such counsel in the amount fixed by
the court, plus the expenses that the court fixes and certifies to
the auditor. The county auditor shall report periodically, but not
less than annually, to the board of county commissioners and to
the Ohio public defender commission the amounts paid out pursuant
to the approval of the court under this section, separately
stating costs and expenses that are reimbursable under section
120.35 of the Revised Code. The board, after review and approval
of the auditor's report, may then certify it to the state public
defender for reimbursement. The request for reimbursement shall be
accompanied by a financial disclosure form completed by each
indigent person for whom counsel was provided on a form prescribed
by the state public defender. The state public defender shall
review the report and, in accordance with the standards,
guidelines, and maximums established pursuant to divisions (B)(7)
and (8) of section 120.04 of the Revised Code, pay fifty per cent
of the total cost, other than costs and expenses that are
reimbursable under section 120.35 of the Revised Code, if any, of
paying appointed counsel in each county and pay fifty per cent of
costs and expenses that are reimbursable under section 120.35 of
the Revised Code, if any, to the board.
(F) If any county system for paying appointed counsel fails
to maintain the standards for the conduct of the system
established by the rules of the Ohio public defender commission
pursuant to divisions (B) and (C) of section 120.03 of the Revised
Code or the standards established by the state public defender
pursuant to division (B)(7) of section 120.04 of the Revised Code,
the commission shall notify the board of county commissioners of
the county that the county system for paying appointed counsel has
failed to comply with its rules. Unless the board corrects the
conduct of its appointed counsel system to comply with the rules
within ninety days after the date of the notice, the state public
defender may deny all or part of the county's reimbursement from
the state provided for in this section.
Sec. 2945.06. In any case in which a defendant waives his
right to trial by jury and elects to be tried by the court under
section 2945.05 of the Revised Code, any judge of the court in
which the cause is pending shall proceed to hear, try, and
determine the cause in accordance with the rules and in like
manner as if the cause were being tried before a jury. If the
accused is charged with an offense punishable with death, he shall
be tried by a court to be composed of three judges, consisting of
the judge presiding at the time in the trial of criminal cases and
two other judges to be designated by the presiding judge or chief
justice of that court, and in case there is neither a presiding
judge nor a chief justice, by the chief justice of the supreme
court. The judges or a majority of them may decide all questions
of fact and law arising upon the trial; however the accused shall
not be found guilty or not guilty of any offense unless the judges
unanimously find the accused guilty or not guilty. If the accused
pleads guilty of aggravated murder, a court composed of three
judges shall examine the witnesses, determine whether the accused
is guilty of aggravated murder or any other offense, and pronounce
sentence accordingly. The court shall follow the procedures
contained in sections 2929.03 and 2929.04 of the Revised Code in
all cases in which the accused is charged with an offense
punishable by death. If in the composition of the court it is
necessary that a judge from another county be assigned by the
chief justice, the judge from another county shall be compensated
for his services as provided by section 141.07 of the Revised
Code.
Sec. 2945.21. (A)(1) In criminal cases in which there is
only one defendant, each party, in addition to the challenges for
cause authorized by law, may peremptorily challenge three of the
jurors in misdemeanor cases and four of the jurors in felony cases
other than capital cases. If there is more than one defendant,
each defendant may peremptorily challenge the same number of
jurors as if he the defendant were the sole defendant.
(2) Notwithstanding Criminal Rule 24, in capital cases in
which there is only one defendant, each party, in addition to the
challenges for cause authorized by law, may peremptorily challenge
twelve of the jurors. If there is more than one defendant, each
defendant may peremptorily challenge the same number of jurors as
if he were the sole defendant.
(3) In any case in which there are multiple defendants, the
prosecuting attorney may peremptorily challenge a number of jurors
equal to the total number of peremptory challenges allowed to all
of the defendants.
(B) If any indictments, informations, or complaints are
consolidated for trial, the consolidated cases shall be
considered, for purposes of exercising peremptory challenges, as
though the defendants or offenses had been joined in the same
indictment, information, or complaint.
(C) The exercise of peremptory challenges authorized by this
section shall be in accordance with the procedures of Criminal
Rule 24.
Sec. 2945.25. A person called as a juror in a criminal case
may be challenged for the following causes:
(A) That he the person was a member of the grand jury that
found the indictment in the case;
(B) That he the person is possessed of a state of mind
evincing enmity or bias toward the defendant or the state; but no
person summoned as a juror shall be disqualified by reason of a
previously formed or expressed opinion with reference to the guilt
or innocence of the accused, if the court is satisfied, from
examination of the juror or from other evidence, that he the juror
will render an impartial verdict according to the law and the
evidence submitted to the jury at the trial;
(C) In the trial of a capital offense, that he unequivocally
states that under no circumstances will he follow the instructions
of a trial judge and consider fairly the imposition of a sentence
of death in a particular case. A prospective juror's conscientious
or religious opposition to the death penalty in and of itself is
not grounds for a challenge for cause. All parties shall be given
wide latitude in voir dire questioning in this regard.
(D) That he the person is related by consanguinity or
affinity within the fifth degree to the person alleged to be
injured or attempted to be injured by the offense charged, or to
the person on whose complaint the prosecution was instituted, or
to the defendant;
(E)(D) That he the person served on a petit jury drawn in the
same cause against the same defendant, and that jury was
discharged after hearing the evidence or rendering a verdict on
the evidence that was set aside;
(F)(E) That he the person served as a juror in a civil case
brought against the defendant for the same act;
(G)(F) That he the person has been subpoenaed in good faith
as a witness in the case;
(H)(G) That he the person is a chronic alcoholic, or drug
dependent person;
(I)(H) That he the person has been convicted of a crime that
by law disqualifies him the person from serving on a jury;
(J)(I) That he the person has an action pending between him
the person and the state or the defendant;
(K)(J) That he the person or his the person's spouse is a
party to another action then pending in any court in which an
attorney in the cause then on trial is an attorney, either for or
against him
the person;
(L)(K) That he the person is the person alleged to be injured
or attempted to be injured by the offense charged, or is the
person on whose complaint the prosecution was instituted, or the
defendant;
(M)(L) That he the person is the employer or employee, or the
spouse, parent, son, or daughter of the employer or employee, or
the counselor, agent, or attorney of any person included in
division
(L)(K) of this section;
(N)(M) That English is not his the person's native language,
and
his the person's knowledge of English is insufficient to
permit
him the person to understand the facts and law in the case;
(O)(N) That he the person otherwise is unsuitable for any
other cause to serve as a juror.
The validity of each challenge listed in this section shall
be determined by the court.
Sec. 2945.38. (A) If the issue of a defendant's competence
to stand trial is raised and if the court, upon conducting the
hearing provided for in section 2945.37 of the Revised Code, finds
that the defendant is competent to stand trial, the defendant
shall be proceeded against as provided by law. If the court finds
the defendant competent to stand trial and the defendant is
receiving psychotropic drugs or other medication, the court may
authorize the continued administration of the drugs or medication
or other appropriate treatment in order to maintain the
defendant's competence to stand trial, unless the defendant's
attending physician advises the court against continuation of the
drugs, other medication, or treatment.
(B)(1)(a) If, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent to stand trial and that there is a
substantial probability that the defendant will become competent
to stand trial within one year if the defendant is provided with a
course of treatment, the court shall order the defendant to
undergo treatment. If the defendant has been charged with a felony
offense and if, after taking into consideration all relevant
reports, information, and other evidence, the court finds that the
defendant is incompetent to stand trial, but the court is unable
at that time to determine whether there is a substantial
probability that the defendant will become competent to stand
trial within one year if the defendant is provided with a course
of treatment, the court shall order continuing evaluation and
treatment of the defendant for a period not to exceed four months
to determine whether there is a substantial probability that the
defendant will become competent to stand trial within one year if
the defendant is provided with a course of treatment.
(b) The court order for the defendant to undergo treatment or
continuing evaluation and treatment under division (B)(1)(a) of
this section shall specify that the treatment or continuing
evaluation and treatment shall occur at a facility operated by the
department of mental health or the department of developmental
disabilities, at a facility certified by either of those
departments as being qualified to treat mental illness or mental
retardation, at a public or private community mental health or
mental retardation facility, or by a psychiatrist or another
mental health or mental retardation professional. The order may
restrict the defendant's freedom of movement as the court
considers necessary. The prosecutor in the defendant's case shall
send to the chief clinical officer of the hospital or facility,
the managing officer of the institution, the director of the
program, or the person to which the defendant is committed copies
of relevant police reports and other background information that
pertains to the defendant and is available to the prosecutor
unless the prosecutor determines that the release of any of the
information in the police reports or any of the other background
information to unauthorized persons would interfere with the
effective prosecution of any person or would create a substantial
risk of harm to any person.
In determining placement alternatives, the court shall
consider the extent to which the person is a danger to the person
and to others, the need for security, and the type of crime
involved and shall order the least restrictive alternative
available that is consistent with public safety and treatment
goals. In weighing these factors, the court shall give preference
to protecting public safety.
(c) If the defendant is found incompetent to stand trial, if
the chief clinical officer of the hospital or facility, the
managing officer of the institution, the director of the program,
or the person to which the defendant is committed for treatment or
continuing evaluation and treatment under division (B)(1)(b) of
this section determines that medication is necessary to restore
the defendant's competency to stand trial, and if the defendant
lacks the capacity to give informed consent or refuses medication,
the chief clinical officer, managing officer, director, or person
to which the defendant is committed for treatment or continuing
evaluation and treatment may petition the court for authorization
for the involuntary administration of medication. The court shall
hold a hearing on the petition within five days of the filing of
the petition if the petition was filed in a municipal court or a
county court regarding an incompetent defendant charged with a
misdemeanor or within ten days of the filing of the petition if
the petition was filed in a court of common pleas regarding an
incompetent defendant charged with a felony offense. Following the
hearing, the court may authorize the involuntary administration of
medication or may dismiss the petition.
(2) If the court finds that the defendant is incompetent to
stand trial and that, even if the defendant is provided with a
course of treatment, there is not a substantial probability that
the defendant will become competent to stand trial within one
year, the court shall order the discharge of the defendant, unless
upon motion of the prosecutor or on its own motion, the court
either seeks to retain jurisdiction over the defendant pursuant to
section 2945.39 of the Revised Code or files an affidavit in the
probate court for the civil commitment of the defendant pursuant
to Chapter 5122. or 5123. of the Revised Code alleging that the
defendant is a mentally ill person subject to hospitalization by
court order or a mentally retarded person subject to
institutionalization by court order. If an affidavit is filed in
the probate court, the trial court shall send to the probate court
copies of all written reports of the defendant's mental condition
that were prepared pursuant to section 2945.371 of the Revised
Code.
The trial court may issue the temporary order of detention
that a probate court may issue under section 5122.11 or 5123.71 of
the Revised Code, to remain in effect until the probable cause or
initial hearing in the probate court. Further proceedings in the
probate court are civil proceedings governed by Chapter 5122. or
5123. of the Revised Code.
(C) No defendant shall be required to undergo treatment,
including any continuing evaluation and treatment, under division
(B)(1) of this section for longer than whichever of the following
periods is applicable:
(1) One year, if the most serious offense with which the
defendant is charged is one of the following offenses:
(a) Aggravated murder, murder, or an offense of violence for
which a sentence of death or life imprisonment may be imposed;
(b) An offense of violence that is a felony of the first or
second degree;
(c) A conspiracy to commit, an attempt to commit, or
complicity in the commission of an offense described in division
(C)(1)(a) or (b) of this section if the conspiracy, attempt, or
complicity is a felony of the first or second degree.
(2) Six months, if the most serious offense with which the
defendant is charged is a felony other than a felony described in
division (C)(1) of this section;
(3) Sixty days, if the most serious offense with which the
defendant is charged is a misdemeanor of the first or second
degree;
(4) Thirty days, if the most serious offense with which the
defendant is charged is a misdemeanor of the third or fourth
degree, a minor misdemeanor, or an unclassified misdemeanor.
(D) Any defendant who is committed pursuant to this section
shall not voluntarily admit the defendant or be voluntarily
admitted to a hospital or institution pursuant to section 5122.02,
5122.15, 5123.69, or 5123.76 of the Revised Code.
(E) Except as otherwise provided in this division, a
defendant who is charged with an offense and is committed to a
hospital or other institution by the court under this section
shall not be granted unsupervised on-grounds movement, supervised
off-grounds movement, or nonsecured status. The court may grant a
defendant supervised off-grounds movement to obtain medical
treatment or specialized habilitation treatment services if the
person who supervises the treatment or the continuing evaluation
and treatment of the defendant ordered under division (B)(1)(a) of
this section informs the court that the treatment or continuing
evaluation and treatment cannot be provided at the hospital or the
institution to which the defendant is committed. The chief
clinical officer of the hospital or the managing officer of the
institution to which the defendant is committed or a designee of
either of those persons may grant a defendant movement to a
medical facility for an emergency medical situation with
appropriate supervision to ensure the safety of the defendant,
staff, and community during that emergency medical situation. The
chief clinical officer of the hospital or the managing officer of
the institution shall notify the court within twenty-four hours of
the defendant's movement to the medical facility for an emergency
medical situation under this division.
(F) The person who supervises the treatment or continuing
evaluation and treatment of a defendant ordered to undergo
treatment or continuing evaluation and treatment under division
(B)(1)(a) of this section shall file a written report with the
court at the following times:
(1) Whenever the person believes the defendant is capable of
understanding the nature and objective of the proceedings against
the defendant and of assisting in the defendant's defense;
(2) For a felony offense, fourteen days before expiration of
the maximum time for treatment as specified in division (C) of
this section and fourteen days before the expiration of the
maximum time for continuing evaluation and treatment as specified
in division (B)(1)(a) of this section, and, for a misdemeanor
offense, ten days before the expiration of the maximum time for
treatment, as specified in division (C) of this section;
(3) At a minimum, after each six months of treatment;
(4) Whenever the person who supervises the treatment or
continuing evaluation and treatment of a defendant ordered under
division (B)(1)(a) of this section believes that there is not a
substantial probability that the defendant will become capable of
understanding the nature and objective of the proceedings against
the defendant or of assisting in the defendant's defense even if
the defendant is provided with a course of treatment.
(G) A report under division (F) of this section shall contain
the examiner's findings, the facts in reasonable detail on which
the findings are based, and the examiner's opinion as to the
defendant's capability of understanding the nature and objective
of the proceedings against the defendant and of assisting in the
defendant's defense. If, in the examiner's opinion, the defendant
remains incapable of understanding the nature and objective of the
proceedings against the defendant and of assisting in the
defendant's defense and there is a substantial probability that
the defendant will become capable of understanding the nature and
objective of the proceedings against the defendant and of
assisting in the defendant's defense if the defendant is provided
with a course of treatment, if in the examiner's opinion the
defendant remains mentally ill or mentally retarded, and if the
maximum time for treatment as specified in division (C) of this
section has not expired, the report also shall contain the
examiner's recommendation as to the least restrictive treatment
alternative that is consistent with the defendant's treatment
needs for restoration to competency and with the safety of the
community. The court shall provide copies of the report to the
prosecutor and defense counsel.
(H) If a defendant is committed pursuant to division (B)(1)
of this section, within ten days after the treating physician of
the defendant or the examiner of the defendant who is employed or
retained by the treating facility advises that there is not a
substantial probability that the defendant will become capable of
understanding the nature and objective of the proceedings against
the defendant or of assisting in the defendant's defense even if
the defendant is provided with a course of treatment, within ten
days after the expiration of the maximum time for treatment as
specified in division (C) of this section, within ten days after
the expiration of the maximum time for continuing evaluation and
treatment as specified in division (B)(1)(a) of this section,
within thirty days after a defendant's request for a hearing that
is made after six months of treatment, or within thirty days after
being advised by the treating physician or examiner that the
defendant is competent to stand trial, whichever is the earliest,
the court shall conduct another hearing to determine if the
defendant is competent to stand trial and shall do whichever of
the following is applicable:
(1) If the court finds that the defendant is competent to
stand trial, the defendant shall be proceeded against as provided
by law.
(2) If the court finds that the defendant is incompetent to
stand trial, but that there is a substantial probability that the
defendant will become competent to stand trial if the defendant is
provided with a course of treatment, and the maximum time for
treatment as specified in division (C) of this section has not
expired, the court, after consideration of the examiner's
recommendation, shall order that treatment be continued, may
change the facility or program at which the treatment is to be
continued, and shall specify whether the treatment is to be
continued at the same or a different facility or program.
(3) If the court finds that the defendant is incompetent to
stand trial, if the defendant is charged with an offense listed in
division (C)(1) of this section, and if the court finds that there
is not a substantial probability that the defendant will become
competent to stand trial even if the defendant is provided with a
course of treatment, or if the maximum time for treatment relative
to that offense as specified in division (C) of this section has
expired, further proceedings shall be as provided in sections
2945.39, 2945.401, and 2945.402 of the Revised Code.
(4) If the court finds that the defendant is incompetent to
stand trial, if the most serious offense with which the defendant
is charged is a misdemeanor or a felony other than a felony listed
in division (C)(1) of this section, and if the court finds that
there is not a substantial probability that the defendant will
become competent to stand trial even if the defendant is provided
with a course of treatment, or if the maximum time for treatment
relative to that offense as specified in division (C) of this
section has expired, the court shall dismiss the indictment,
information, or complaint against the defendant. A dismissal under
this division is not a bar to further prosecution based on the
same conduct. The court shall discharge the defendant unless the
court or prosecutor files an affidavit in probate court for civil
commitment pursuant to Chapter 5122. or 5123. of the Revised Code.
If an affidavit for civil commitment is filed, the court may
detain the defendant for ten days pending civil commitment. All of
the following provisions apply to persons charged with a
misdemeanor or a felony other than a felony listed in division
(C)(1) of this section who are committed by the probate court
subsequent to the court's or prosecutor's filing of an affidavit
for civil commitment under authority of this division:
(a) The chief clinical officer of the hospital or facility,
the managing officer of the institution, the director of the
program, or the person to which the defendant is committed or
admitted shall do all of the following:
(i) Notify the prosecutor, in writing, of the discharge of
the defendant, send the notice at least ten days prior to the
discharge unless the discharge is by the probate court, and state
in the notice the date on which the defendant will be discharged;
(ii) Notify the prosecutor, in writing, when the defendant is
absent without leave or is granted unsupervised, off-grounds
movement, and send this notice promptly after the discovery of the
absence without leave or prior to the granting of the
unsupervised, off-grounds movement, whichever is applicable;
(iii) Notify the prosecutor, in writing, of the change of the
defendant's commitment or admission to voluntary status, send the
notice promptly upon learning of the change to voluntary status,
and state in the notice the date on which the defendant was
committed or admitted on a voluntary status.
(b) Upon receiving notice that the defendant will be granted
unsupervised, off-grounds movement, the prosecutor either shall
re-indict the defendant or promptly notify the court that the
prosecutor does not intend to prosecute the charges against the
defendant.
(I) If a defendant is convicted of a crime and sentenced to a
jail or workhouse, the defendant's sentence shall be reduced by
the total number of days the defendant is confined for evaluation
to determine the defendant's competence to stand trial or
treatment under this section and sections 2945.37 and 2945.371 of
the Revised Code or by the total number of days the defendant is
confined for evaluation to determine the defendant's mental
condition at the time of the offense charged.
Sec. 2949.02. (A) If a person is convicted of any bailable
offense, including, but not limited to, a violation of an
ordinance of a municipal corporation, in a municipal or county
court or in a court of common pleas and if the person gives to the
trial judge or magistrate a written notice of the person's
intention to file or apply for leave to file an appeal to the
court of appeals, the trial judge or magistrate may suspend,
subject to division (A)(2)(b) of section 2953.09 of the Revised
Code, execution of the sentence or judgment imposed for any fixed
time that will give the person time either to prepare and file, or
to apply for leave to file, the appeal. In all bailable cases,
except as provided in division (B) of this section, the trial
judge or magistrate may release the person on bail in accordance
with Criminal Rule 46, and the bail shall at least be conditioned
that the person will appeal without delay and abide by the
judgment and sentence of the court.
(B) Notwithstanding any provision of Criminal Rule 46 to the
contrary, a trial judge of a court of common pleas shall not
release on bail pursuant to division (A) of this section a person
who is convicted of a bailable offense if the person is sentenced
to imprisonment for life or if that offense is a violation of
section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11, 2905.01,
2905.02, 2905.11, 2907.02, 2909.02, 2911.01, 2911.02, or 2911.11
of the Revised Code or is felonious sexual penetration in
violation of former section 2907.12 of the Revised Code.
(C) If a trial judge of a court of common pleas is prohibited
by division (B) of this section from releasing on bail pursuant to
division (A) of this section a person who is convicted of a
bailable offense and not sentenced to imprisonment for life, the
appropriate court of appeals or two judges of it, upon motion of
such a person and for good cause shown, may release the person on
bail in accordance with Appellate Rule 8 and Criminal Rule 46, and
the bail shall at least be conditioned as described in division
(A) of this section.
Sec. 2949.03. If a judgment of conviction by a court of
common pleas, municipal court, or county court is affirmed by a
court of appeals and remanded to the trial court for execution of
the sentence or judgment imposed, and the person so convicted
gives notice of his the person's intention to file a notice of
appeal to the supreme court, the trial court, on the filing of a
motion by such person within three days after the rendition by the
court of appeals of the judgment of affirmation, may further
suspend, subject to division (A)(2)(b) of section 2953.09 of the
Revised Code, the execution of the sentence or judgment imposed
for a time sufficient to give such person an opportunity to file a
notice of appeal to the supreme court, but the sentence or
judgment imposed shall not be suspended more than thirty days for
that purpose.
Sec. 2953.02. In a capital case in which a sentence of death
is imposed for an offense committed before January 1, 1995, and in
any other criminal case, including a conviction for the violation
of an ordinance of a municipal corporation, the judgment or final
order of a court of record inferior to the court of appeals may be
reviewed in the court of appeals. A final order of an
administrative officer or agency may be reviewed in the court of
common pleas. A judgment or final order of the court of appeals
involving a question arising under the Constitution of the United
States or of this state may be appealed to the supreme court as a
matter of right. This right of appeal from judgments and final
orders of the court of appeals shall extend to cases in which a
sentence of death is imposed for an offense committed before
January 1, 1995, and in which the death penalty has been affirmed,
felony cases in which the supreme court has directed the court of
appeals to certify its record, and in all other criminal cases of
public or general interest wherein the supreme court has granted a
motion to certify the record of the court of appeals. In a capital
case in which a sentence of death is imposed for an offense
committed on or after January 1, 1995, the judgment or final order
may be appealed from the trial court directly to the supreme court
as a matter of right. The supreme court in criminal cases shall
not be required to determine as to the weight of the evidence,
except that, in cases in which a sentence of death is imposed for
an offense committed on or after January 1, 1995, and in which the
question of the weight of the evidence to support the judgment has
been raised on appeal, the supreme court shall determine as to the
weight of the evidence to support the judgment and shall determine
as to the weight of the evidence to support the sentence of death
as provided in section 2929.05 of the Revised Code.
Sec. 2953.07. (A) Upon the hearing of an appeal other than
an appeal from a mayor's court, the appellate court may affirm the
judgment or reverse it, in whole or in part, or modify it, and
order the accused to be discharged or grant a new trial. The
appellate court may remand the accused for the sole purpose of
correcting a sentence imposed contrary to law, provided that, on
an appeal of a sentence imposed upon a person who is convicted of
or pleads guilty to a felony that is brought under section 2953.08
of the Revised Code, division (G) of that section applies to the
court. If the judgment is reversed, the appellant shall recover
from the appellee all court costs incurred to secure the reversal,
including the cost of transcripts. In capital cases, when the
judgment is affirmed and the day fixed for the execution is
passed, the appellate court shall appoint a day for it, and the
clerk of the appellate court shall issue a warrant under the seal
of the appellate court, to the sheriff of the proper county, or
the warden of the appropriate state correctional institution,
commanding the sheriff or warden to carry the sentence into
execution on the day so appointed. The sheriff or warden shall
execute and return the warrant as in other cases, and the clerk
shall record the warrant and return.
(B) As used in this section, "appellate court" means, for a
case in which a sentence of death is imposed for an offense
committed before January 1, 1995, both the court of appeals and
the supreme court, and for a case in which a sentence of death is
imposed for an offense committed on or after January 1, 1995, the
supreme court.
Sec. 2953.08. (A) In addition to any other right to appeal
and except as provided in division (D) of this section, a
defendant who is convicted of or pleads guilty to a felony may
appeal as a matter of right the sentence imposed upon the
defendant on one of the following grounds:
(1) The sentence consisted of or included the maximum prison
term allowed for the offense by division (A) of section 2929.14 or
section 2929.142 of the Revised Code, the sentence was not imposed
pursuant to division (D)(3)(b) of section 2929.14 of the Revised
Code, the maximum prison term was not required for the offense
pursuant to Chapter 2925. or any other provision of the Revised
Code, and the court imposed the sentence under one of the
following circumstances:
(a) The sentence was imposed for only one offense.
(b) The sentence was imposed for two or more offenses arising
out of a single incident, and the court imposed the maximum prison
term for the offense of the highest degree.
(2) The sentence consisted of or included a prison term, the
offense for which it was imposed is a felony of the fourth or
fifth degree or is a felony drug offense that is a violation of a
provision of Chapter 2925. of the Revised Code and that is
specified as being subject to division (B) of section 2929.13 of
the Revised Code for purposes of sentencing, and the court did not
specify at sentencing that it found one or more factors specified
in divisions (B)(1)(a) to (i) of section 2929.13 of the Revised
Code to apply relative to the defendant. If the court specifies
that it found one or more of those factors to apply relative to
the defendant, the defendant is not entitled under this division
to appeal as a matter of right the sentence imposed upon the
offender.
(3) The person was convicted of or pleaded guilty to a
violent sex offense or a designated homicide, assault, or
kidnapping offense, was adjudicated a sexually violent predator in
relation to that offense, and was sentenced pursuant to division
(A)(3) of section 2971.03 of the Revised Code, if the minimum term
of the indefinite term imposed pursuant to division (A)(3) of
section 2971.03 of the Revised Code is the longest term available
for the offense from among the range of terms listed in section
2929.14 of the Revised Code. As used in this division, "designated
homicide, assault, or kidnapping offense" and "violent sex
offense" have the same meanings as in section 2971.01 of the
Revised Code. As used in this division, "adjudicated a sexually
violent predator" has the same meaning as in section 2929.01 of
the Revised Code, and a person is "adjudicated a sexually violent
predator" in the same manner and the same circumstances as are
described in that section.
(4) The sentence is contrary to law.
(5) The sentence consisted of an additional prison term of
ten years imposed pursuant to division (D)(2)(a) of section
2929.14 of the Revised Code.
(6) The sentence consisted of an additional prison term of
ten years imposed pursuant to division (D)(3)(b) of section
2929.14 of the Revised Code.
(B) In addition to any other right to appeal and except as
provided in division (D) of this section, a prosecuting attorney,
a city director of law, village solicitor, or similar chief legal
officer of a municipal corporation, or the attorney general, if
one of those persons prosecuted the case, may appeal as a matter
of right a sentence imposed upon a defendant who is convicted of
or pleads guilty to a felony or, in the circumstances described in
division (B)(3) of this section the modification of a sentence
imposed upon such a defendant, on any of the following grounds:
(1) The sentence did not include a prison term despite a
presumption favoring a prison term for the offense for which it
was imposed, as set forth in section 2929.13 or Chapter 2925. of
the Revised Code.
(2) The sentence is contrary to law.
(3) The sentence is a modification under section 2929.20 of
the Revised Code of a sentence that was imposed for a felony of
the first or second degree.
(C)(1) In addition to the right to appeal a sentence granted
under division (A) or (B) of this section, a defendant who is
convicted of or pleads guilty to a felony may seek leave to appeal
a sentence imposed upon the defendant on the basis that the
sentencing judge has imposed consecutive sentences under division
(E)(3) or (4) of section 2929.14 of the Revised Code and that the
consecutive sentences exceed the maximum prison term allowed by
division (A) of that section for the most serious offense of which
the defendant was convicted. Upon the filing of a motion under
this division, the court of appeals may grant leave to appeal the
sentence if the court determines that the allegation included as
the basis of the motion is true.
(2) A defendant may seek leave to appeal an additional
sentence imposed upon the defendant pursuant to division (D)(2)(a)
or (b) of section 2929.14 of the Revised Code if the additional
sentence is for a definite prison term that is longer than five
years.
(D)(1) A sentence imposed upon a defendant is not subject to
review under this section if the sentence is authorized by law,
has been recommended jointly by the defendant and the prosecution
in the case, and is imposed by a sentencing judge.
(2) Except as provided in division (C)(2) of this section, a
sentence imposed upon a defendant is not subject to review under
this section if the sentence is imposed pursuant to division
(D)(2)(b) of section 2929.14 of the Revised Code. Except as
otherwise provided in this division, a defendant retains all
rights to appeal as provided under this chapter or any other
provision of the Revised Code. A defendant has the right to appeal
under this chapter or any other provision of the Revised Code the
court's application of division (D)(2)(c) of section 2929.14 of
the Revised Code.
(3) A sentence imposed for aggravated murder or murder
pursuant to sections section 2929.02 to 2929.06 of the Revised
Code is not subject to review under this section.
(E) A defendant, prosecuting attorney, city director of law,
village solicitor, or chief municipal legal officer shall file an
appeal of a sentence under this section to a court of appeals
within the time limits specified in Rule 4(B) of the Rules of
Appellate Procedure, provided that if the appeal is pursuant to
division (B)(3) of this section, the time limits specified in that
rule shall not commence running until the court grants the motion
that makes the sentence modification in question. A sentence
appeal under this section shall be consolidated with any other
appeal in the case. If no other appeal is filed, the court of
appeals may review only the portions of the trial record that
pertain to sentencing.
(F) On the appeal of a sentence under this section, the
record to be reviewed shall include all of the following, as
applicable:
(1) Any presentence, psychiatric, or other investigative
report that was submitted to the court in writing before the
sentence was imposed. An appellate court that reviews a
presentence investigation report prepared pursuant to section
2947.06 or 2951.03 of the Revised Code or Criminal Rule 32.2 in
connection with the appeal of a sentence under this section shall
comply with division (D)(3) of section 2951.03 of the Revised Code
when the appellate court is not using the presentence
investigation report, and the appellate court's use of a
presentence investigation report of that nature in connection with
the appeal of a sentence under this section does not affect the
otherwise confidential character of the contents of that report as
described in division (D)(1) of section 2951.03 of the Revised
Code and does not cause that report to become a public record, as
defined in section 149.43 of the Revised Code, following the
appellate court's use of the report.
(2) The trial record in the case in which the sentence was
imposed;
(3) Any oral or written statements made to or by the court at
the sentencing hearing at which the sentence was imposed;
(4) Any written findings that the court was required to make
in connection with the modification of the sentence pursuant to a
judicial release under division (I) of section 2929.20 of the
Revised Code.
(G)(1) If the sentencing court was required to make the
findings required by division (B) or (D) of section 2929.13,
division (D)(2)(e) or (E)(4) of section 2929.14, or division (I)
of section 2929.20 of the Revised Code relative to the imposition
or modification of the sentence, and if the sentencing court
failed to state the required findings on the record, the court
hearing an appeal under division (A), (B), or (C) of this section
shall remand the case to the sentencing court and instruct the
sentencing court to state, on the record, the required findings.
(2) The court hearing an appeal under division (A), (B), or
(C) of this section shall review the record, including the
findings underlying the sentence or modification given by the
sentencing court.
The appellate court may increase, reduce, or otherwise modify
a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for
resentencing. The appellate court's standard for review is not
whether the sentencing court abused its discretion. The appellate
court may take any action authorized by this division if it
clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13, division
(D)(2)(e) or (E)(4) of section 2929.14, or division (I) of section
2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(H) A judgment or final order of a court of appeals under
this section may be appealed, by leave of court, to the supreme
court.
(I)(1) There is hereby established the felony sentence appeal
cost oversight committee, consisting of eight members. One member
shall be the chief justice of the supreme court or a
representative of the court designated by the chief justice, one
member shall be a member of the senate appointed by the president
of the senate, one member shall be a member of the house of
representatives appointed by the speaker of the house of
representatives, one member shall be the director of budget and
management or a representative of the office of budget and
management designated by the director, one member shall be a judge
of a court of appeals, court of common pleas, municipal court, or
county court appointed by the chief justice of the supreme court,
one member shall be the state public defender or a representative
of the office of the state public defender designated by the state
public defender, one member shall be a prosecuting attorney
appointed by the Ohio prosecuting attorneys association, and one
member shall be a county commissioner appointed by the county
commissioners association of Ohio. No more than three of the
appointed members of the committee may be members of the same
political party.
The president of the senate, the speaker of the house of
representatives, the chief justice of the supreme court, the Ohio
prosecuting attorneys association, and the county commissioners
association of Ohio shall make the initial appointments to the
committee of the appointed members no later than ninety days after
July 1, 1996. Of those initial appointments to the committee, the
members appointed by the speaker of the house of representatives
and the Ohio prosecuting attorneys association shall serve a term
ending two years after July 1, 1996, the member appointed by the
chief justice of the supreme court shall serve a term ending three
years after July 1, 1996, and the members appointed by the
president of the senate and the county commissioners association
of Ohio shall serve terms ending four years after July 1, 1996.
Thereafter, terms of office of the appointed members shall be for
four years, with each term ending on the same day of the same
month as did the term that it succeeds. Members may be
reappointed. Vacancies shall be filled in the same manner provided
for original appointments. A member appointed to fill a vacancy
occurring prior to the expiration of the term for which that
member's predecessor was appointed shall hold office as a member
for the remainder of the predecessor's term. An appointed member
shall continue in office subsequent to the expiration date of that
member's term until that member's successor takes office or until
a period of sixty days has elapsed, whichever occurs first.
If the chief justice of the supreme court, the director of
the office of budget and management, or the state public defender
serves as a member of the committee, that person's term of office
as a member shall continue for as long as that person holds office
as chief justice, director of the office of budget and management,
or state public defender. If the chief justice of the supreme
court designates a representative of the court to serve as a
member, the director of budget and management designates a
representative of the office of budget and management to serve as
a member, or the state public defender designates a representative
of the office of the state public defender to serve as a member,
the person so designated shall serve as a member of the commission
for as long as the official who made the designation holds office
as chief justice, director of the office of budget and management,
or state public defender or until that official revokes the
designation.
The chief justice of the supreme court or the representative
of the supreme court appointed by the chief justice shall serve as
chairperson of the committee. The committee shall meet within two
weeks after all appointed members have been appointed and shall
organize as necessary. Thereafter, the committee shall meet at
least once every six months or more often upon the call of the
chairperson or the written request of three or more members,
provided that the committee shall not meet unless moneys have been
appropriated to the judiciary budget administered by the supreme
court specifically for the purpose of providing financial
assistance to counties under division (I)(2) of this section and
the moneys so appropriated then are available for that purpose.
The members of the committee shall serve without
compensation, but, if moneys have been appropriated to the
judiciary budget administered by the supreme court specifically
for the purpose of providing financial assistance to counties
under division (I)(2) of this section, each member shall be
reimbursed out of the moneys so appropriated that then are
available for actual and necessary expenses incurred in the
performance of official duties as a committee member.
(2) The state criminal sentencing commission periodically
shall provide to the felony sentence appeal cost oversight
committee all data the commission collects pursuant to division
(A)(5) of section 181.25 of the Revised Code. Upon receipt of the
data from the state criminal sentencing commission, the felony
sentence appeal cost oversight committee periodically shall review
the data; determine whether any money has been appropriated to the
judiciary budget administered by the supreme court specifically
for the purpose of providing state financial assistance to
counties in accordance with this division for the increase in
expenses the counties experience as a result of the felony
sentence appeal provisions set forth in this section or as a
result of a postconviction relief proceeding brought under
division (A)(2) of section 2953.21 of the Revised Code or an
appeal of a judgment in that proceeding; if it determines that any
money has been so appropriated, determine the total amount of
moneys that have been so appropriated specifically for that
purpose and that then are available for that purpose; and develop
a recommended method of distributing those moneys to the counties.
The committee shall send a copy of its recommendation to the
supreme court. Upon receipt of the committee's recommendation, the
supreme court shall distribute to the counties, based upon that
recommendation, the moneys that have been so appropriated
specifically for the purpose of providing state financial
assistance to counties under this division and that then are
available for that purpose.
Sec. 2953.09. (A)(1) Upon filing an appeal in the supreme
court, the execution of the sentence or judgment imposed in cases
of felony is suspended.
(2)(a) If a notice of appeal is filed pursuant to the Rules
of Appellate Procedure by a defendant who is convicted in a
municipal or county court or a court of common pleas of a felony
or misdemeanor under the Revised Code or an ordinance of a
municipal corporation, the filing of the notice of appeal does not
suspend execution of the sentence or judgment imposed. However,
consistent with divisions (A)(2)(b), (B), and (C) of this section,
Appellate Rule 8, and Criminal Rule 46, the municipal or county
court, court of common pleas, or court of appeals may suspend
execution of the sentence or judgment imposed during the pendency
of the appeal and shall determine whether that defendant is
entitled to bail and the amount and nature of any bail that is
required. The bail shall at least be conditioned that the
defendant will prosecute the appeal without delay and abide by the
judgment and sentence of the court.
(b)(i) A court of common pleas or court of appeals may
suspend the execution of a sentence of death imposed for an
offense committed before January 1, 1995, only if no date for
execution has been set by the supreme court, good cause is shown
for the suspension, the defendant files a motion requesting the
suspension, and notice has been given to the prosecuting attorney
of the appropriate county.
(ii) A court of common pleas may suspend the execution of a
sentence of death imposed for an offense committed on or after
January 1, 1995, only if no date for execution has been set by the
supreme court, good cause is shown, the defendant files a motion
requesting the suspension, and notice has been given to the
prosecuting attorney of the appropriate county.
(iii) A court of common pleas or court of appeals may suspend
the execution of the sentence or judgment imposed for a felony in
a capital case in which a sentence of death is not imposed only if
no date for execution of the sentence has been set by the supreme
court, good cause is shown for the suspension, the defendant files
a motion requesting the suspension, and only after notice has been
given to the prosecuting attorney of the appropriate county.
(B) Notwithstanding any provision of Criminal Rule 46 to the
contrary, a trial judge of a court of common pleas shall not
release on bail pursuant to division (A)(2)(a) of this section a
defendant who is convicted of a bailable offense if the defendant
is sentenced to imprisonment for life or if that offense is a
violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.11,
2905.01, 2905.02, 2905.11, 2907.02, 2909.02, 2911.01, 2911.02, or
2911.11 of the Revised Code or is felonious sexual penetration in
violation of former section 2907.12 of the Revised Code.
(C) If a trial judge of a court of common pleas is prohibited
by division (B) of this section from releasing on bail pursuant to
division (A)(2)(a) of this section a defendant who is convicted of
a bailable offense and not sentenced to imprisonment for life, the
appropriate court of appeals or two judges of it, upon motion of
the defendant and for good cause shown, may release the defendant
on bail in accordance with division (A)(2) of this section.
Sec. 2953.10. When an appeal is taken from a court of
appeals to the supreme court, the supreme court has the same power
and authority to suspend the execution of sentence during the
pendency of the appeal and admit the defendant to bail as does the
court of appeals unless another section of the Revised Code or the
Rules of Practice of the Supreme Court specify a distinct bail or
suspension of sentence authority.
When an appeal in a case in which a sentence of death is
imposed for an offense committed on or after January 1, 1995, is
taken directly from the trial court to the supreme court, the
supreme court has the same power and authority to suspend the
execution of the sentence during the pendency of the appeal and
admit the defendant to bail as does the court of appeals for cases
in which a sentence of death is imposed for an offense committed
before January 1, 1995, unless another section of the Revised Code
or the Rules of Practice of the Supreme Court specify a distinct
bail or suspension of sentence authority.
Sec. 2953.21. (A)(1)(a) Any person who has been convicted of
a criminal offense or adjudicated a delinquent child and who
claims that there was such a denial or infringement of the
person's rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States,
and any person who has been convicted of a criminal offense that
is a felony and who is an offender for whom DNA testing that was
performed under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code and analyzed in
the context of and upon consideration of all available admissible
evidence related to the person's case as described in division (D)
of section 2953.74 of the Revised Code provided results that
establish, by clear and convincing evidence, actual innocence of
that felony offense or, if the person was sentenced to death,
establish, by clear and convincing evidence, actual innocence of
the aggravating circumstance or circumstances the person was found
guilty of committing and that is or are the basis of that sentence
of death, may file a petition in the court that imposed sentence,
stating the grounds for relief relied upon, and asking the court
to vacate or set aside the judgment or sentence or to grant other
appropriate relief. The petitioner may file a supporting affidavit
and other documentary evidence in support of the claim for relief.
(b) As used in division (A)(1)(a) of this section, "actual
innocence" means that, had the results of the DNA testing
conducted under sections 2953.71 to 2953.81 of the Revised Code or
under former section 2953.82 of the Revised Code been presented at
trial, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the person's case as described in division (D) of section 2953.74
of the Revised Code, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was
convicted, or, if the person was sentenced to death, no reasonable
factfinder would have found the petitioner guilty of the
aggravating circumstance or circumstances the petitioner was found
guilty of committing and that is or are the basis of that sentence
of death.
(c) As used in divisions (A)(1)(a) and (b) of this section,
"former section 2953.82 of the Revised Code" means section 2953.82
of the Revised Code as it existed prior to the effective date of
this amendment July 6, 2010.
(2) Except as otherwise provided in section 2953.23 of the
Revised Code, a petition under division (A)(1) of this section
shall be filed no later than one hundred eighty days after the
date on which the trial transcript is filed in the court of
appeals in the direct appeal of the judgment of conviction or
adjudication or, if the direct appeal involves a sentence of
death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise provided
in section 2953.23 of the Revised Code, the petition shall be
filed no later than one hundred eighty days after the expiration
of the time for filing the appeal.
(3) In a petition filed under division (A) of this section, a
person who has been sentenced to death may ask the court to render
void or voidable the judgment with respect to the conviction of
aggravated murder or the specification of an aggravating
circumstance or the sentence of death.
(4) A petitioner shall state in the original or amended
petition filed under division (A) of this section all grounds for
relief claimed by the petitioner. Except as provided in section
2953.23 of the Revised Code, any ground for relief that is not so
stated in the petition is waived.
(5)(4) If the petitioner in a petition filed under division
(A) of this section was convicted of or pleaded guilty to a
felony, the petition may include a claim that the petitioner was
denied the equal protection of the laws in violation of the Ohio
Constitution or the United States Constitution because the
sentence imposed upon the petitioner for the felony was part of a
consistent pattern of disparity in sentencing by the judge who
imposed the sentence, with regard to the petitioner's race,
gender, ethnic background, or religion. If the supreme court
adopts a rule requiring a court of common pleas to maintain
information with regard to an offender's race, gender, ethnic
background, or religion, the supporting evidence for the petition
shall include, but shall not be limited to, a copy of that type of
information relative to the petitioner's sentence and copies of
that type of information relative to sentences that the same judge
imposed upon other persons.
(B) The clerk of the court in which the petition is filed
shall docket the petition and bring it promptly to the attention
of the court. The clerk of the court in which the petition is
filed immediately shall forward a copy of the petition to the
prosecuting attorney of that county.
(C) The court shall consider a petition that is timely filed
under division (A)(2) of this section even if a direct appeal of
the judgment is pending. Before granting a hearing on a petition
filed under division (A) of this section, the court shall
determine whether there are substantive grounds for relief. In
making such a determination, the court shall consider, in addition
to the petition, the supporting affidavits, and the documentary
evidence, all the files and records pertaining to the proceedings
against the petitioner, including, but not limited to, the
indictment, the court's journal entries, the journalized records
of the clerk of the court, and the court reporter's transcript.
The court reporter's transcript, if ordered and certified by the
court, shall be taxed as court costs. If the court dismisses the
petition, it shall make and file findings of fact and conclusions
of law with respect to such dismissal.
(D) Within ten days after the docketing of the petition, or
within any further time that the court may fix for good cause
shown, the prosecuting attorney shall respond by answer or motion.
Within twenty days from the date the issues are raised, either
party may move for summary judgment. The right to summary judgment
shall appear on the face of the record.
(E) Unless the petition and the files and records of the case
show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues even if a direct appeal
of the case is pending. If the court notifies the parties that it
has found grounds for granting relief, either party may request an
appellate court in which a direct appeal of the judgment is
pending to remand the pending case to the court.
(F) At any time before the answer or motion is filed, the
petitioner may amend the petition with or without leave or
prejudice to the proceedings. The petitioner may amend the
petition with leave of court at any time thereafter.
(G) If the court does not find grounds for granting relief,
it shall make and file findings of fact and conclusions of law and
shall enter judgment denying relief on the petition. If no direct
appeal of the case is pending and the court finds grounds for
relief or if a pending direct appeal of the case has been remanded
to the court pursuant to a request made pursuant to division (E)
of this section and the court finds grounds for granting relief,
it shall make and file findings of fact and conclusions of law and
shall enter a judgment that vacates and sets aside the judgment in
question, and, in the case of a petitioner who is a prisoner in
custody, shall discharge or resentence the petitioner or grant a
new trial as the court determines appropriate. The court also may
make supplementary orders to the relief granted, concerning such
matters as rearraignment, retrial, custody, and bail. If the trial
court's order granting the petition is reversed on appeal and if
the direct appeal of the case has been remanded from an appellate
court pursuant to a request under division (E) of this section,
the appellate court reversing the order granting the petition
shall notify the appellate court in which the direct appeal of the
case was pending at the time of the remand of the reversal and
remand of the trial court's order. Upon the reversal and remand of
the trial court's order granting the petition, regardless of
whether notice is sent or received, the direct appeal of the case
that was remanded is reinstated.
(H) Upon the filing of a petition pursuant to division (A) of
this section by a person sentenced to death, only the supreme
court may stay execution of the sentence of death.
(I)(1) If a person sentenced to death intends to file a
petition under this section, the court shall appoint counsel to
represent the person upon a finding that the person is indigent
and that the person either accepts the appointment of counsel or
is unable to make a competent decision whether to accept or reject
the appointment of counsel. The court may decline to appoint
counsel for the person only upon a finding, after a hearing if
necessary, that the person rejects the appointment of counsel and
understands the legal consequences of that decision or upon a
finding that the person is not indigent.
(2) The court shall not appoint as counsel under division
(I)(1) of this section an attorney who represented the petitioner
at trial in the case to which the petition relates unless the
person and the attorney expressly request the appointment. The
court shall appoint as counsel under division (I)(1) of this
section only an attorney who is certified under Rule 20 of the
Rules of Superintendence for the Courts of Ohio to represent
indigent defendants charged with or convicted of an offense for
which the death penalty can be or has been imposed. The
ineffectiveness or incompetence of counsel during proceedings
under this section does not constitute grounds for relief in a
proceeding under this section, in an appeal of any action under
this section, or in an application to reopen a direct appeal.
(3) Division (I) of this section does not preclude attorneys
who represent the state of Ohio from invoking the provisions of 28
U.S.C. 154 with respect to capital cases that were pending in
federal habeas corpus proceedings prior to July 1, 1996, insofar
as the petitioners in those cases were represented in proceedings
under this section by one or more counsel appointed by the court
under this section or section 120.06, 120.16, 120.26, or 120.33 of
the Revised Code and those appointed counsel meet the requirements
of division (I)(2) of this section.
(J) Subject to the appeal of a sentence for a felony that is
authorized by section 2953.08 of the Revised Code, the remedy set
forth in this section is the exclusive remedy by which a person
may bring a collateral challenge to the validity of a conviction
or sentence in a criminal case or to the validity of an
adjudication of a child as a delinquent child for the commission
of an act that would be a criminal offense if committed by an
adult or the validity of a related order of disposition.
Sec. 2953.23. (A) Whether a hearing is or is not held on a
petition filed pursuant to section 2953.21 of the Revised Code, a
court may not entertain a petition filed after the expiration of
the period prescribed in division (A) of that section or a second
petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon which the
petitioner must rely to present the claim for relief, or,
subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier
petition, the United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the
petitioner's situation, and the petition asserts a claim based on
that right.
(b) The petitioner shows by clear and convincing evidence
that, but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the offense
of which the petitioner was convicted or, if the claim challenges
a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the
petitioner eligible for the death sentence.
(2) The petitioner was convicted of a felony, the petitioner
is an offender for whom DNA testing was performed under sections
2953.71 to 2953.81 of the Revised Code or under former section
2953.82 of the Revised Code and analyzed in the context of and
upon consideration of all available admissible evidence related to
the inmate's case as described in division (D) of section 2953.74
of the Revised Code, and the results of the DNA testing establish,
by clear and convincing evidence, actual innocence of that felony
offense or, if the person was sentenced to death, establish, by
clear and convincing evidence, actual innocence of the aggravating
circumstance or circumstances the person was found guilty of
committing and that is or are the basis of that sentence of death.
As used in this division, "actual innocence" has the same
meaning as in division (A)(1)(b) of section 2953.21 of the Revised
Code, and "former section 2953.82 of the Revised Code" has the
same meaning as in division (A)(1)(c) of section 2953.21 of the
Revised Code.
(B) An order awarding or denying relief sought in a petition
filed pursuant to section 2953.21 of the Revised Code is a final
judgment and may be appealed pursuant to Chapter 2953. of the
Revised Code.
Sec. 2953.71. As used in sections 2953.71 to 2953.83 of the
Revised Code:
(A) "Application" or "application for DNA testing" means a
request through postconviction relief for the state to do DNA
testing on biological material from the case in which the offender
was convicted of the offense for which the offender is an eligible
offender and is requesting the DNA testing under sections 2953.71
to 2953.81 of the Revised Code.
(B) "Biological material" means any product of a human body
containing DNA.
(C) "Chain of custody" means a record or other evidence that
tracks a subject sample of biological material from the time the
biological material was first obtained until the time it currently
exists in its place of storage and, in relation to a DNA sample, a
record or other evidence that tracks the DNA sample from the time
it was first obtained until it currently exists in its place of
storage. For purposes of this division, examples of when
biological material or a DNA sample is first obtained include, but
are not limited to, obtaining the material or sample at the scene
of a crime, from a victim, from an offender, or in any other
manner or time as is appropriate in the facts and circumstances
present.
(D) "Custodial agency" means the group or entity that has the
responsibility to maintain biological material in question.
(E) "Custodian" means the person who is the primary
representative of a custodial agency.
(F) "Eligible offender" means an offender who is eligible
under division (C) of section 2953.72 of the Revised Code to
request DNA testing to be conducted under sections 2953.71 to
2953.81 of the Revised Code.
(G) "Exclusion" or "exclusion result" means a result of DNA
testing that scientifically precludes or forecloses the subject
offender as a contributor of biological material recovered from
the crime scene or victim in question, in relation to the offense
for which the offender is an eligible offender and for which the
sentence of death or prison term was imposed upon the offender.
(H) "Extracting personnel" means medically approved personnel
who are employed to physically obtain an offender's DNA specimen
for purposes of DNA testing under sections 2953.71 to 2953.81 of
the Revised Code.
(I) "Inclusion" or "inclusion result" means a result of DNA
testing that scientifically cannot exclude, or that holds
accountable, the subject offender as a contributor of biological
material recovered from the crime scene or victim in question, in
relation to the offense for which the offender is an eligible
offender and for which the sentence of death or prison term was
imposed upon the offender.
(J) "Inconclusive" or "inconclusive result" means a result of
DNA testing that is rendered when a scientifically appropriate and
definitive DNA analysis or result, or both, cannot be determined.
(K) "Offender" means a criminal offender who was sentenced by
a court, or by a jury and a court, of this state.
(L) "Outcome determinative" means that had the results of DNA
testing of the subject offender been presented at the trial of the
subject offender requesting DNA testing and been found relevant
and admissible with respect to the felony offense for which the
offender is an eligible offender and is requesting the DNA
testing, and had those results been analyzed in the context of and
upon consideration of all available admissible evidence related to
the offender's case as described in division (D) of section
2953.74 of the Revised Code, there is a strong probability that no
reasonable factfinder would have found the offender guilty of that
offense or, if the offender was sentenced to death relative to
that offense, would have found the offender guilty of the
aggravating circumstance or circumstances the offender was found
guilty of committing and that is or are the basis of that sentence
of death.
(M) "Parent sample" means the biological material first
obtained from a crime scene or a victim of an offense for which an
offender is an eligible offender, and from which a sample will be
presently taken to do a DNA comparison to the DNA of the subject
offender under sections 2953.71 to 2953.81 of the Revised Code.
(N) "Prison" and "community control sanction" have the same
meanings as in section 2929.01 of the Revised Code.
(O) "Prosecuting attorney" means the prosecuting attorney
who, or whose office, prosecuted the case in which the subject
offender was convicted of the offense for which the offender is an
eligible offender and is requesting the DNA testing.
(P) "Prosecuting authority" means the prosecuting attorney or
the attorney general.
(Q) "Reasonable diligence" means a degree of diligence that
is comparable to the diligence a reasonable person would employ in
searching for information regarding an important matter in the
person's own life.
(R) "Testing authority" means a laboratory at which DNA
testing will be conducted under sections 2953.71 to 2953.81 of the
Revised Code.
(S) "Parole" and "post-release control" have the same
meanings as in section 2967.01 of the Revised Code.
(T) "Sexually oriented offense" and "child-victim oriented
offense" have the same meanings as in section 2950.01 of the
Revised Code.
(U) "Definitive DNA test" means a DNA test that clearly
establishes that biological material from the perpetrator of the
crime was recovered from the crime scene and also clearly
establishes whether or not the biological material is that of the
eligible offender. A prior DNA test is not definitive if the
eligible offender proves by a preponderance of the evidence that
because of advances in DNA technology there is a possibility of
discovering new biological material from the perpetrator that the
prior DNA test may have failed to discover. Prior testing may have
been a prior "definitive DNA test" as to some biological evidence
but may not have been a prior "definitive DNA test" as to other
biological evidence.
Sec. 2953.72. (A) Any eligible offender who wishes to request
DNA testing under sections 2953.71 to 2953.81 of the Revised Code
shall submit an application for the testing to the court of common
pleas specified in section 2953.73 of the Revised Code, on a form
prescribed by the attorney general for this purpose. The eligible
offender shall submit the application in accordance with the
procedures set forth in section 2953.73 of the Revised Code. The
eligible offender shall specify on the application the offense or
offenses for which the offender is an eligible offender and is
requesting the DNA testing. Along with the application, the
eligible offender shall submit an acknowledgment that is on a form
prescribed by the attorney general for this purpose and that is
signed by the offender. The acknowledgment shall set forth all of
the following:
(1) That sections 2953.71 to 2953.81 of the Revised Code
contemplate applications for DNA testing of an eligible offender
at a stage of a prosecution or case after the offender has been
sentenced, that any exclusion or inclusion result of DNA testing
rendered pursuant to those sections may be used by a party in any
proceeding as described in section 2953.81 of the Revised Code,
and that all requests for any DNA testing made at trial will
continue to be handled by the prosecuting attorney in the case;
(2) That the process of conducting postconviction DNA testing
for an eligible offender under sections 2953.71 to 2953.81 of the
Revised Code begins when the offender submits an application under
section 2953.73 of the Revised Code and the acknowledgment
described in this section;
(3) That the eligible offender must submit the application
and acknowledgment to the court of common pleas that heard the
case in which the offender was convicted of the offense for which
the offender is an eligible offender and is requesting the DNA
testing;
(4) That the state has established a set of criteria set
forth in section 2953.74 of the Revised Code by which eligible
offender applications for DNA testing will be screened and that a
judge of a court of common pleas upon receipt of a properly filed
application and accompanying acknowledgment will apply those
criteria to determine whether to accept or reject the application;
(5) That the results of DNA testing conducted under sections
2953.71 to 2953.81 of the Revised Code will be provided as
described in section 2953.81 of the Revised Code to all parties in
the postconviction proceedings and will be reported to various
courts;
(6) That, if DNA testing is conducted with respect to an
offender under sections 2953.71 to 2953.81 of the Revised Code,
the state will not offer the offender a retest if an inclusion
result is achieved relative to the testing and that, if the state
were to offer a retest after an inclusion result, the policy would
create an atmosphere in which endless testing could occur and in
which postconviction proceedings could be stalled for many years;
(7) That, if the court rejects an eligible offender's
application for DNA testing because the offender does not satisfy
the acceptance criteria described in division (A)(4) of this
section, the court will not accept or consider subsequent
applications;
(8) That the acknowledgment memorializes the provisions of
sections 2953.71 to 2953.81 of the Revised Code with respect to
the application of postconviction DNA testing to offenders, that
those provisions do not give any offender any additional
constitutional right that the offender did not already have, that
the court has no duty or obligation to provide postconviction DNA
testing to offenders, that the court of common pleas has the sole
discretion subject to an appeal as described in this division to
determine whether an offender is an eligible offender and whether
an eligible offender's application for DNA testing satisfies the
acceptance criteria described in division (A)(4) of this section
and whether the application should be accepted or rejected, that
if the court of common pleas rejects an eligible offender's
application, the offender may seek leave of the supreme court to
appeal the rejection to that court if the offender was sentenced
to death for the offense for which the offender is requesting the
DNA testing and, if the offender was not sentenced to death for
that offense, may appeal the rejection to the court of appeals,
and that no determination otherwise made by the court of common
pleas in the exercise of its discretion regarding the eligibility
of an offender or regarding postconviction DNA testing under those
provisions is reviewable by or appealable to any court;
(9) That the manner in which sections 2953.71 to 2953.81 of
the Revised Code with respect to the offering of postconviction
DNA testing to offenders are carried out does not confer any
constitutional right upon any offender, that the state has
established guidelines and procedures relative to those provisions
to ensure that they are carried out with both justice and
efficiency in mind, and that an offender who participates in any
phase of the mechanism contained in those provisions, including,
but not limited to, applying for DNA testing and being rejected,
having an application for DNA testing accepted and not receiving
the test, or having DNA testing conducted and receiving
unfavorable results, does not gain as a result of the
participation any constitutional right to challenge, or, except as
provided in division (A)(8) of this section, any right to any
review or appeal of, the manner in which those provisions are
carried out;
(10) That the most basic aspect of sections 2953.71 to
2953.81 of the Revised Code is that, in order for DNA testing to
occur, there must be an offender sample against which other
evidence may be compared, that, if an eligible offender's
application is accepted but the offender subsequently refuses to
submit to the collection of the sample of biological material from
the offender or hinders the state from obtaining a sample of
biological material from the offender, the goal of those
provisions will be frustrated, and that an offender's refusal or
hindrance shall cause the court to rescind its prior acceptance of
the application for DNA testing for the offender and deny the
application.
(B) The attorney general shall prescribe a form to be used to
make an application for DNA testing under division (A) of this
section and section 2953.73 of the Revised Code and a form to be
used to provide the acknowledgment described in division (A) of
this section. The forms shall include all information described in
division (A) of this section, spaces for an offender to insert all
information necessary to complete the forms, including, but not
limited to, specifying the offense or offenses for which the
offender is an eligible offender and is requesting the DNA
testing, and any other information or material the attorney
general determines is necessary or relevant. The attorney general
shall distribute copies of the prescribed forms to the department
of rehabilitation and correction, the department shall ensure that
each prison in which offenders are housed has a supply of copies
of the forms, and the department shall ensure that copies of the
forms are provided free of charge to any offender who requests
them.
(C)(1) An offender is eligible to request DNA testing to be
conducted under sections 2953.71 to 2953.81 of the Revised Code
only if all of the following apply:
(a) The offense for which the offender claims to be an
eligible offender is a felony, and the offender was convicted by a
judge or jury of that offense.
(b) One of the following applies:
(i) The offender was sentenced to a prison term or sentence
of death for the felony described in division (C)(1)(a) of this
section, and the offender is in prison serving that prison term or
under that sentence of death, has been paroled or is on probation
regarding that felony, is under post-release control regarding
that felony, or has been released from that prison term and is
under a community control sanction regarding that felony.
(ii) The offender was not sentenced to a prison term or
sentence of death for the felony described in division (C)(1)(a)
of this section, but was sentenced to a community control sanction
for that felony and is under that community control sanction.
(iii) The felony described in division (C)(1)(a) of this
section was a sexually oriented offense or child-victim oriented
offense, and the offender has a duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code
relative to that felony.
(2) An offender is not an eligible offender under division
(C)(1) of this section regarding any offense to which the offender
pleaded guilty or no contest.
(3) An offender is not an eligible offender under division
(C)(1) of this section regarding any offense if the offender dies
prior to submitting an application for DNA testing related to that
offense under section 2953.73 of the Revised Code.
Sec. 2953.81. If an eligible offender submits an application
for DNA testing under section 2953.73 of the Revised Code and if
DNA testing is performed based on that application, upon
completion of the testing, all of the following apply:
(A) The court or a designee of the court shall require the
state to maintain the results of the testing and to maintain and
preserve both the parent sample of the biological material used
and the offender sample of the biological material used. The
testing authority may be designated as the person to maintain the
results of the testing or to maintain and preserve some or all of
the samples, or both. The results of the testing remain state's
evidence. The samples shall be preserved during the entire period
of time for which the offender is imprisoned or confined relative
to the sentence in question, is on parole or probation relative to
that sentence, is under post-release control or a community
control sanction relative to that sentence, or has a duty to
comply with sections 2950.04, 2950.041, 2950.05, and 2950.06 of
the Revised Code relative to that sentence. Additionally, if the
prison term or confinement under the sentence in question expires,
if the sentence in question is a sentence of death and the
offender is executed, or if the parole or probation period, the
period of post-release control, the community control sanction, or
the duty to comply with sections 2950.04, 2950.041, 2950.05, and
2950.06 of the Revised Code under the sentence in question ends,
the samples shall be preserved for a reasonable period of time of
not less than twenty-four months after the term or confinement
expires, the offender is executed, or the parole or probation
period, the period of post-release control, the community control
sanction, or the duty to comply with sections 2950.04, 2950.041,
2950.05, and 2950.06 of the Revised Code ends, whichever is
applicable. The court shall determine the period of time that is
reasonable for purposes of this division, provided that the period
shall not be less than twenty-four months after the term or
confinement expires, the offender is executed, or the parole or
probation period, the period of post-release control, the
community control sanction, or the duty to comply with sections
2950.04, 2950.041, 2950.05, and 2950.06 of the Revised Code ends,
whichever is applicable.
(B) The results of the testing are a public record.
(C) The court or the testing authority shall provide a copy
of the results of the testing to the prosecuting attorney, the
attorney general, and the subject offender.
(D) If the postconviction proceeding in question is pending
at that time in a court of this state, the court of common pleas
that decided the DNA application or the testing authority shall
provide a copy of the results of the testing to any court of this
state, and, if it is pending in a federal court, the court of
common pleas that decided the DNA application or the testing
authority shall provide a copy of the results of the testing to
that federal court.
(E) The testing authority shall provide a copy of the results
of the testing to the court of common pleas that decided the DNA
application.
(F) The offender or the state may enter the results of the
testing into any proceeding.
Sec. 2967.05. (A) As used in this section:
(1) "Imminent danger of death" means that the inmate has a
medically diagnosable condition that will cause death to occur
within a short period of time.
As used in division (A)(1) of this section, "within a short
period of time" means generally within six months.
(2)(a) "Medically incapacitated" means any diagnosable
medical condition, including mental dementia and severe, permanent
medical or cognitive disability, that prevents the inmate from
completing activities of daily living without significant
assistance, that incapacitates the inmate to the extent that
institutional confinement does not offer additional restrictions,
that is likely to continue throughout the entire period of parole,
and that is unlikely to improve noticeably.
(b) "Medically incapacitated" does not include conditions
related solely to mental illness unless the mental illness is
accompanied by injury, disease, or organic defect.
(3)(a) "Terminal illness" means a condition that satisfies
all of the following criteria:
(i) The condition is irreversible and incurable and is caused
by disease, illness, or injury from which the inmate is unlikely
to recover.
(ii) In accordance with reasonable medical standards and a
reasonable degree of medical certainty, the condition is likely to
cause death to the inmate within twelve months.
(iii) Institutional confinement of the inmate does not offer
additional protections for public safety or against the inmate's
risk to reoffend.
(b) The department of rehabilitation and correction shall
adopt rules pursuant to Chapter 119. of the Revised Code to
implement the definition of "terminal illness" in division
(A)(3)(a) of this section.
(B) Upon the recommendation of the director of rehabilitation
and correction, accompanied by a certificate of the attending
physician that an inmate is terminally ill, medically
incapacitated, or in imminent danger of death, the governor may
order the inmate's release as if on parole, reserving the right to
return the inmate to the institution pursuant to this section. If,
subsequent to the inmate's release, the inmate's health improves
so that the inmate is no longer terminally ill, medically
incapacitated, or in imminent danger of death, the inmate shall be
returned, by order of the governor, to the institution from which
the inmate was released. If the inmate violates any rules or
conditions applicable to the inmate, the inmate may be returned to
an institution under the control of the department of
rehabilitation and correction. The governor may direct the adult
parole authority to investigate or cause to be investigated the
inmate and make a recommendation in the manner set forth in
section 2967.03 of the Revised Code. An inmate released under this
section shall be subject to supervision by the adult parole
authority in accordance with any recommendation of the adult
parole authority that is approved by the governor. The adult
parole authority shall adopt rules pursuant to section 119.03 of
the Revised Code to establish the procedure for medical release of
an inmate when an inmate is terminally ill, medically
incapacitated, or in imminent danger of death.
(C) No inmate is eligible for release under this section if
the inmate is serving a death sentence, a sentence of life without
parole, a sentence under Chapter 2971. of the Revised Code for a
felony of the first or second degree, a sentence for aggravated
murder or murder, or a mandatory prison term for an offense of
violence or any specification described in Chapter 2941. of the
Revised Code.
Sec. 2967.13. (A) Except as provided in division (G) of this
section, a prisoner serving a sentence of imprisonment for life
for an offense committed on or after July 1, 1996, is not entitled
to any earned credit under section 2967.193 of the Revised Code
and becomes eligible for parole as follows:
(1) If a sentence of imprisonment for life was imposed for
the offense of murder, at the expiration of the prisoner's minimum
term;
(2) If a sentence of imprisonment for life with parole
eligibility after serving twenty years of imprisonment was imposed
pursuant to section 2929.02 or former section 2929.022 or 2929.03
of the Revised Code, after serving a term of twenty years;
(3) If a sentence of imprisonment for life with parole
eligibility after serving twenty-five full years of imprisonment
was imposed pursuant to former section 2929.022 or 2929.03 of the
Revised Code, after serving a term of twenty-five full years;
(4) If a sentence of imprisonment for life with parole
eligibility after serving thirty full years of imprisonment was
imposed pursuant to section 2929.02 or former section 2929.022 or
2929.03 of the Revised Code, after serving a term of thirty full
years;
(5) If a sentence of imprisonment for life was imposed for
rape, after serving a term of ten full years' imprisonment;
(6) If a sentence of imprisonment for life with parole
eligibility after serving fifteen years of imprisonment was
imposed for a violation of section 2927.24 of the Revised Code,
after serving a term of fifteen years.
(B) Except as provided in division (G) of this section, a
prisoner serving a sentence of imprisonment for life with parole
eligibility after serving twenty years of imprisonment or a
sentence of imprisonment for life with parole eligibility after
serving twenty-five full years or thirty full years of
imprisonment imposed pursuant to section 2929.02 or former section
2929.022 or 2929.03 of the Revised Code for an offense committed
on or after July 1, 1996, consecutively to any other term of
imprisonment, becomes eligible for parole after serving twenty
years, twenty full years, or thirty full years, as applicable, as
to each such sentence of life imprisonment, which shall not be
reduced for earned credits under section 2967.193 of the Revised
Code, plus the term or terms of the other sentences consecutively
imposed or, if one of the other sentences is another type of life
sentence with parole eligibility, the number of years before
parole eligibility for that sentence.
(C) Except as provided in division (G) of this section, a
prisoner serving consecutively two or more sentences in which an
indefinite term of imprisonment is imposed becomes eligible for
parole upon the expiration of the aggregate of the minimum terms
of the sentences.
(D) Except as provided in division (G) of this section, a
prisoner serving a term of imprisonment who is described in
division (A) of section 2967.021 of the Revised Code becomes
eligible for parole as described in that division or, if the
prisoner is serving a definite term of imprisonment, shall be
released as described in that division.
(E) A prisoner serving a sentence of life imprisonment
without parole imposed pursuant to section 2907.02 or 2929.02 or
former section 2929.03 or 2929.06 of the Revised Code is not
eligible for parole and shall be imprisoned until death.
(F) A prisoner serving a stated prison term shall be released
in accordance with section 2967.28 of the Revised Code.
(G) A prisoner serving a prison term or term of life
imprisonment without parole imposed pursuant to section 2971.03 of
the Revised Code never becomes eligible for parole during that
term of imprisonment.
Sec. 2967.193. (A) Except as provided in division (C) of
this section or in section 2929.13, 2929.14, or 2967.13 of the
Revised Code, a person confined in a state correctional
institution may earn one day of credit as a deduction from the
person's stated prison term for each full month during which the
person productively participates in an education program,
vocational training, employment in prison industries, treatment
for substance abuse, treatment as a sex offender, or any other
constructive program developed by the department with specific
standards for performance by prisoners. At the end of each
calendar month in which a prisoner productively participates in a
program or activity listed in this division, the department of
rehabilitation and correction shall deduct one day from the date
on which the prisoner's stated prison term will expire. If the
prisoner violates prison rules, the department may deny the
prisoner a credit that otherwise could have been awarded to the
prisoner or may withdraw one or more credits previously earned by
the prisoner.
If a prisoner is released before the expiration of the
prisoner's stated prison term by reason of credit earned under
this section, the department shall retain control of the prisoner
by means of an appropriate post-release control sanction imposed
by the parole board until the end of the stated prison term if the
parole board imposes a post-release control sanction pursuant to
section 2967.28 of the Revised Code. If the parole board is not
required to impose a post-release control sanction under section
2967.28 of the Revised Code, the parole board may elect not to
impose a post-release control sanction on the prisoner.
(B) The department of rehabilitation and correction shall
adopt rules that specify the programs or activities for which
credit may be earned under this section, the criteria for
determining productive participation in the programs or activities
and for awarding credit, and the criteria for denying or
withdrawing previously earned credit as a result of a violation of
prison rules.
(C) No person who is serving a sentence of life imprisonment
without parole imposed pursuant to section 2929.02 or former
section 2929.03 or 2929.06 of the Revised Code or who is serving a
prison term or a term of life imprisonment without parole imposed
pursuant to section 2971.03 of the Revised Code shall be awarded
any days of credit under division (A) of this section.
Sec. 2971.03. (A) Notwithstanding divisions (A), (B), (C),
and (F) of section 2929.14, section 2929.02, 2929.03, 2929.06, or
2929.13, or another section of the Revised Code, other than
divisions (D) and (E) of section 2929.14 of the Revised Code, that
authorizes or requires a specified prison term or a mandatory
prison term for a person who is convicted of or pleads guilty to a
felony or that specifies the manner and place of service of a
prison term or term of imprisonment, the court shall impose a
sentence upon a person who is convicted of or pleads guilty to a
violent sex offense and who also is convicted of or pleads guilty
to a sexually violent predator specification that was included in
the indictment, count in the indictment, or information charging
that offense, and upon a person who is convicted of or pleads
guilty to a designated homicide, assault, or kidnapping offense
and also is convicted of or pleads guilty to both a sexual
motivation specification and a sexually violent predator
specification that were included in the indictment, count in the
indictment, or information charging that offense, as follows:
(1) If the offense for which the sentence is being imposed is
aggravated murder and if the court does not impose upon the
offender a sentence of death, it shall impose upon the offender a
term of life imprisonment without parole. If the court sentences
the offender to death and the sentence of death is vacated,
overturned, or otherwise set aside, the court shall impose upon
the offender a term of life imprisonment without parole.
(2) If the offense for which the sentence is being imposed is
murder; or if the offense is rape committed in violation of
division (A)(1)(b) of section 2907.02 of the Revised Code when the
offender purposely compelled the victim to submit by force or
threat of force, when the victim was less than ten years of age,
when the offender previously has been convicted of or pleaded
guilty to either rape committed in violation of that division or a
violation of an existing or former law of this state, another
state, or the United States that is substantially similar to
division (A)(1)(b) of section 2907.02 of the Revised Code, or when
the offender during or immediately after the commission of the
rape caused serious physical harm to the victim; or if the offense
is an offense other than aggravated murder or murder for which a
term of life imprisonment may be imposed, it shall impose upon the
offender a term of life imprisonment without parole.
(3)(a) Except as otherwise provided in division (A)(3)(b),
(c), (d), or (e) or (A)(4) of this section, if the offense for
which the sentence is being imposed is an offense other than
aggravated murder, murder, or rape and other than an offense for
which a term of life imprisonment may be imposed, it shall impose
an indefinite prison term consisting of a minimum term fixed by
the court from among the range of terms available as a definite
term for the offense, but not less than two years, and a maximum
term of life imprisonment.
(b) Except as otherwise provided in division (A)(4) of this
section, if the offense for which the sentence is being imposed is
kidnapping that is a felony of the first degree, it shall impose
an indefinite prison term as follows:
(i) If the kidnapping is committed on or after the effective
date of this amendment January 1, 2008, and the victim of the
offense is less than thirteen years of age, except as otherwise
provided in this division, it shall impose an indefinite prison
term consisting of a minimum term of fifteen years and a maximum
term of life imprisonment. If the kidnapping is committed on or
after the effective date of this amendment January 1, 2008, the
victim of the offense is less than thirteen years of age, and the
offender released the victim in a safe place unharmed, it shall
impose an indefinite prison term consisting of a minimum term of
ten years and a maximum term of life imprisonment.
(ii) If the kidnapping is committed prior to the effective
date of this amendment January 1, 2008, or division (A)(3)(b)(i)
of this section does not apply, it shall impose an indefinite term
consisting of a minimum term fixed by the court that is not less
than ten years and a maximum term of life imprisonment.
(c) Except as otherwise provided in division (A)(4) of this
section, if the offense for which the sentence is being imposed is
kidnapping that is a felony of the second degree, it shall impose
an indefinite prison term consisting of a minimum term fixed by
the court that is not less than eight years, and a maximum term of
life imprisonment.
(d) Except as otherwise provided in division (A)(4) of this
section, if the offense for which the sentence is being imposed is
rape for which a term of life imprisonment is not imposed under
division (A)(2) of this section or division (B) of section 2907.02
of the Revised Code, it shall impose an indefinite prison term as
follows:
(i) If the rape is committed on or after January 2, 2007, in
violation of division (A)(1)(b) of section 2907.02 of the Revised
Code, it shall impose an indefinite prison term consisting of a
minimum term of twenty-five years and a maximum term of life
imprisonment.
(ii) If the rape is committed prior to January 2, 2007, or
the rape is committed on or after January 2, 2007, other than in
violation of division (A)(1)(b) of section 2907.02 of the Revised
Code, it shall impose an indefinite prison term consisting of a
minimum term fixed by the court that is not less than ten years,
and a maximum term of life imprisonment.
(e) Except as otherwise provided in division (A)(4) of this
section, if the offense for which sentence is being imposed is
attempted rape, it shall impose an indefinite prison term as
follows:
(i) Except as otherwise provided in division (A)(3)(e)(ii),
(iii), or (iv) of this section, it shall impose an indefinite
prison term pursuant to division (A)(3)(a) of this section.
(ii) If the attempted rape for which sentence is being
imposed was committed on or after January 2, 2007, and if the
offender also is convicted of or pleads guilty to a specification
of the type described in section 2941.1418 of the Revised Code, it
shall impose an indefinite prison term consisting of a minimum
term of five years and a maximum term of twenty-five years.
(iii) If the attempted rape for which sentence is being
imposed was committed on or after January 2, 2007, and if the
offender also is convicted of or pleads guilty to a specification
of the type described in section 2941.1419 of the Revised Code, it
shall impose an indefinite prison term consisting of a minimum
term of ten years and a maximum of life imprisonment.
(iv) If the attempted rape for which sentence is being
imposed was committed on or after January 2, 2007, and if the
offender also is convicted of or pleads guilty to a specification
of the type described in section 2941.1420 of the Revised Code, it
shall impose an indefinite prison term consisting of a minimum
term of fifteen years and a maximum of life imprisonment.
(4) For any offense for which the sentence is being imposed,
if the offender previously has been convicted of or pleaded guilty
to a violent sex offense and also to a sexually violent predator
specification that was included in the indictment, count in the
indictment, or information charging that offense, or previously
has been convicted of or pleaded guilty to a designated homicide,
assault, or kidnapping offense and also to both a sexual
motivation specification and a sexually violent predator
specification that were included in the indictment, count in the
indictment, or information charging that offense, it shall impose
upon the offender a term of life imprisonment without parole.
(B)(1) Notwithstanding section 2929.13, division (A), (B),
(C), or (F) of section 2929.14, or another section of the Revised
Code other than division (B) of section 2907.02 or divisions (D)
and (E) of section 2929.14 of the Revised Code that authorizes or
requires a specified prison term or a mandatory prison term for a
person who is convicted of or pleads guilty to a felony or that
specifies the manner and place of service of a prison term or term
of imprisonment, if 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, if division (A) of
this section does not apply regarding the person, and if 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,
the court shall impose upon the person an indefinite prison term
consisting of one of the following:
(a) Except as otherwise required in division (B)(1)(b) or (c)
of this section, a minimum term of ten years and a maximum term of
life imprisonment.
(b) If the victim was less than ten years of age, a minimum
term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by
force or threat of force, or if the offender previously has been
convicted of or pleaded guilty to violating division (A)(1)(b) of
section 2907.02 of the Revised Code or to violating an existing or
former law of this state, another state, or the United States that
is substantially similar to division (A)(1)(b) of that section, or
if the offender during or immediately after the commission of the
offense caused serious physical harm to the victim, a minimum term
of twenty-five years and a maximum of life imprisonment.
(2) Notwithstanding section 2929.13, division (A), (B), (C),
or (F) of section 2929.14, or another section of the Revised Code
other than divisions (D) and (E) of section 2929.14 of the Revised
Code that authorizes or requires a specified prison term or a
mandatory prison term for a person who is convicted of or pleads
guilty to a felony or that specifies the manner and place of
service of a prison term or term of imprisonment and except as
otherwise provided in division (B) of section 2907.02 of the
Revised Code, if a person is convicted of or pleads guilty to
attempted rape committed on or after January 2, 2007, and if
division (A) of this section does not apply regarding the person,
the court shall impose upon the person an indefinite prison term
consisting of one of the following:
(a) If the person also is convicted of or pleads guilty to a
specification of the type described in section 2941.1418 of the
Revised Code, the court shall impose upon the person an indefinite
prison term consisting of a minimum term of five years and a
maximum term of twenty-five years.
(b) If the person also is convicted of or pleads guilty to a
specification of the type described in section 2941.1419 of the
Revised Code, the court shall impose upon the person an indefinite
prison term consisting of a minimum term of ten years and a
maximum term of life imprisonment.
(c) If the person also is convicted of or pleads guilty to a
specification of the type described in section 2941.1420 of the
Revised Code, the court shall impose upon the person an indefinite
prison term consisting of a minimum term of fifteen years and a
maximum term of life imprisonment.
(3) Notwithstanding section 2929.13, division (A), (B), (C),
or (F) of section 2929.14, or another section of the Revised Code
other than divisions (D) and (E) of section 2929.14 of the Revised
Code that authorizes or requires a specified prison term or a
mandatory prison term for a person who is convicted of or pleads
guilty to a felony or that specifies the manner and place of
service of a prison term or term of imprisonment, if a person is
convicted of or pleads guilty to an offense described in division
(B)(3)(a), (b), (c), or (d) of this section committed on or after
the effective date of this amendment January 1, 2008, if the
person also is convicted of or pleads guilty to a sexual
motivation specification that was included in the indictment,
count in the indictment, or information charging that offense, and
if division (A) of this section does not apply regarding the
person, the court shall impose upon the person an indefinite
prison term consisting of one of the following:
(a) An indefinite prison term consisting of a minimum of ten
years and a maximum term of life imprisonment if the offense for
which the sentence is being imposed is kidnapping, the victim of
the offense is less than thirteen years of age, and the offender
released the victim in a safe place unharmed;
(b) An indefinite prison term consisting of a minimum of
fifteen years and a maximum term of life imprisonment if the
offense for which the sentence is being imposed is kidnapping when
the victim of the offense is less than thirteen years of age and
division (B)(3)(a) of this section does not apply;
(c) An indefinite term consisting of a minimum of thirty
years and a maximum term of life imprisonment if the offense for
which the sentence is being imposed is aggravated murder, when the
victim of the offense is less than thirteen years of age, a
sentence of death or life imprisonment without parole is not
imposed for the offense, 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)(C) of section 2929.06 2929.02 of the Revised
Code requires that the sentence for the offense be imposed
pursuant to this division;
(d) An indefinite prison term consisting of a minimum of
thirty years and a maximum term of life imprisonment if the
offense for which the sentence is being imposed is murder when the
victim of the offense is less than thirteen years of age.
(C)(1) If the offender is sentenced to a prison term pursuant
to division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or
(c), or (B)(3)(a), (b), (c), or (d) of this section, the parole
board shall have control over the offender's service of the term
during the entire term unless the parole board terminates its
control in accordance with section 2971.04 of the Revised Code.
(2) Except as provided in division (C)(3) of this section, an
offender sentenced to a prison term or term of life imprisonment
without parole pursuant to division (A) of this section shall
serve the entire prison term or term of life imprisonment in a
state correctional institution. The offender is not eligible for
judicial release under section 2929.20 of the Revised Code.
(3) For a prison term imposed pursuant to division (A)(3),
(B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), or (B)(3)(a), (b),
(c), or (d) of this section, the court, in accordance with section
2971.05 of the Revised Code, may terminate the prison term or
modify the requirement that the offender serve the entire term in
a state correctional institution if all of the following apply:
(a) The offender has served at least the minimum term imposed
as part of that prison term.
(b) The parole board, pursuant to section 2971.04 of the
Revised Code, has terminated its control over the offender's
service of that prison term.
(c) The court has held a hearing and found, by clear and
convincing evidence, one of the following:
(i) In the case of termination of the prison term, that the
offender is unlikely to commit a sexually violent offense in the
future;
(ii) In the case of modification of the requirement, that the
offender does not represent a substantial risk of physical harm to
others.
(4) An offender who has been sentenced to a term of life
imprisonment without parole pursuant to division (A)(1), (2), or
(4) of this section shall not be released from the term of life
imprisonment or be permitted to serve a portion of it in a place
other than a state correctional institution.
(D) If a court sentences an offender to a prison term or term
of life imprisonment without parole pursuant to division (A) of
this section and the court also imposes on the offender one or
more additional prison terms pursuant to division (D) of section
2929.14 of the Revised Code, all of the additional prison terms
shall be served consecutively with, and prior to, the prison term
or term of life imprisonment without parole imposed upon the
offender pursuant to division (A) of this section.
(E) If the offender is convicted of or pleads guilty to two
or more offenses for which a prison term or term of life
imprisonment without parole is required to be imposed pursuant to
division (A) of this section, divisions (A) to (D) of this section
shall be applied for each offense. All minimum terms imposed upon
the offender pursuant to division (A)(3) or (B) of this section
for those offenses shall be aggregated and served consecutively,
as if they were a single minimum term imposed under that division.
(F)(1) If an offender is convicted of or pleads guilty to a
violent sex offense and also is convicted of or pleads guilty to a
sexually violent predator specification that was included in the
indictment, count in the indictment, or information charging that
offense, or is convicted of or pleads guilty to a designated
homicide, assault, or kidnapping offense and also is convicted of
or pleads guilty to both a sexual motivation specification and a
sexually violent predator specification that were included in the
indictment, count in the indictment, or information charging that
offense, the conviction of or plea of guilty to the offense and
the sexually violent predator specification automatically
classifies the offender as a tier III sex offender/child-victim
offender for purposes of Chapter 2950. of the Revised Code.
(2) If an offender is convicted of or pleads guilty to
committing on or after January 2, 2007, a violation of division
(A)(1)(b) of section 2907.02 of the Revised Code and either the
offender is sentenced under section 2971.03 of the Revised Code or
a sentence of life without parole is imposed under division (B) of
section 2907.02 of the Revised Code, the conviction of or plea of
guilty to the offense automatically classifies the offender as a
tier III sex offender/child-victim offender for purposes of
Chapter 2950. of the Revised Code.
(3) If a person is convicted of or pleads guilty to
committing on or after January 2, 2007, attempted rape and also is
convicted of or pleads guilty to a specification of the type
described in section 2941.1418, 2941.1419, or 2941.1420 of the
Revised Code, the conviction of or plea of guilty to the offense
and the specification automatically classify the offender as a
tier III sex offender/child-victim offender for purposes of
Chapter 2950. of the Revised Code.
(4) If a person is convicted of or pleads guilty to one of
the offenses described in division (B)(3)(a), (b), (c), or (d) of
this section and a sexual motivation specification related to the
offense and the victim of the offense is less than thirteen years
of age, the conviction of or plea of guilty to the offense
automatically classifies the offender as a tier III sex
offender/child-victim offender for purposes of Chapter 2950. of
the Revised Code.
Sec. 2971.07. (A) This chapter does not apply to any
offender unless the offender is one of the following:
(1) The offender is convicted of or pleads guilty to a
violent sex offense and also is convicted of or pleads guilty to a
sexually violent predator specification that was included in the
indictment, count in the indictment, or information charging that
offense.
(2) The offender is convicted of or pleads guilty to a
designated homicide, assault, or kidnapping offense and also is
convicted of or pleads guilty to both a sexual motivation
specification and a sexually violent predator specification that
were included in the indictment, count in the indictment, or
information charging that offense.
(3) The offender 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 the court does not
sentence the offender to a term of life without parole pursuant to
division (B) of section 2907.02 of the Revised Code or division
(B) of that section prohibits the court from sentencing the
offender pursuant to section 2971.03 of the Revised Code.
(4) The offender is convicted of or pleads guilty to
attempted rape committed on or after January 2, 2007, and also is
convicted of or pleads guilty to a specification of the type
described in section 2941.1418, 2941.1419, or 2941.1420 of the
Revised Code.
(5) The offender is convicted of or pleads guilty to a
violation of section 2905.01 of the Revised Code and also is
convicted of or pleads guilty to a sexual motivation specification
that was included in the indictment, count in the indictment, or
information charging that offense, and that section requires a
court to sentence the offender pursuant to section 2971.03 of the
Revised Code.
(6) The offender is convicted of or pleads guilty to
aggravated murder and also is convicted of or pleads guilty to a
sexual motivation specification that was included in the
indictment, count in the indictment, or information charging that
offense, 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)(C) of
section
2929.06 2929.02 of the Revised Code requires a court to
sentence the offender pursuant to division (B)(3) of section
2971.03 of the Revised Code.
(7) The offender is convicted of or pleads guilty to murder
and also is convicted of or pleads guilty to a sexual motivation
specification that was included in the indictment, count in the
indictment, or information charging that offense, and division
(B)(2)(C) of section 2929.02 of the Revised Code requires a court
to sentence the offender pursuant to section 2971.03 of the
Revised Code.
(B) This chapter does not limit or affect a court in imposing
upon an offender described in divisions (A)(1) to (9) of this
section any financial sanction under section 2929.18 or any other
section of the Revised Code, or, except as specifically provided
in this chapter, any other sanction that is authorized or required
for the offense or violation by any other provision of law.
(C) If an offender is sentenced to a prison term under
division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c),
or (B)(3)(a), (b), (c), or (d) of section 2971.03 of the Revised
Code and if, pursuant to section 2971.05 of the Revised Code, the
court modifies the requirement that the offender serve the entire
prison term in a state correctional institution or places the
offender on conditional release that involves the placement of the
offender under the supervision of the adult parole authority,
authorized field officers of the authority who are engaged within
the scope of their supervisory duties or responsibilities may
search, with or without a warrant, the person of the offender, the
place of residence of the offender, and a motor vehicle, another
item of tangible or intangible personal property, or any other
real property in which the offender has the express or implied
permission of a person with a right, title, or interest to use,
occupy, or possess if the field officer has reasonable grounds to
believe that the offender is not abiding by the law or otherwise
is not complying with the terms and conditions of the offender's
modification or release. The authority shall provide each offender
with a written notice that informs the offender that authorized
field officers of the authority who are engaged within the scope
of their supervisory duties or responsibilities may conduct those
types of searches during the period of the modification or release
if they have reasonable grounds to believe that the offender is
not abiding by the law or otherwise is not complying with the
terms and conditions of the offender's modification or release.
Sec. 5120.61. (A)(1) Not later than ninety days after
January 1, 1997, the department of rehabilitation and correction
shall adopt standards that it will use under this section to
assess the following criminal offenders and may periodically
revise the standards:
(a) A criminal offender who is convicted of or pleads guilty
to a violent sex offense or designated homicide, assault, or
kidnapping offense and is adjudicated a sexually violent predator
in relation to that offense;
(b) A criminal offender who 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 who
is sentenced under section 2971.03 of the Revised Code or upon
whom a sentence of life without parole is imposed under division
(B) of section 2907.02 of the Revised Code;
(c) A criminal offender who 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;
(d) A criminal offender who is convicted of or pleads guilty
to a violation of section 2905.01 of the Revised Code and also is
convicted of or pleads guilty to a sexual motivation specification
that was included in the indictment, count in the indictment, or
information charging that offense, and who is sentenced pursuant
to section 2971.03 of the Revised Code;
(e) A criminal offender who is convicted of or pleads guilty
to aggravated murder and also is convicted of or pleads guilty to
a sexual motivation specification that was included in the
indictment, count in the indictment, or information charging that
offense, and who pursuant to 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)(C) of section 2929.06 2929.02 of the Revised
Code is sentenced pursuant to division (B)(3) of section 2971.03
of the Revised Code;
(f) A criminal offender who is convicted of or pleads guilty
to murder and also is convicted of or pleads guilty to a sexual
motivation specification that was included in the indictment,
count in the indictment, or information charging that offense, and
who pursuant to division (B)(2)(C)(1) of section 2929.02 of the
Revised Code is sentenced pursuant to section 2971.03 of the
Revised Code.
(2) When the department is requested by the parole board or
the court to provide a risk assessment report of the offender
under section 2971.04 or 2971.05 of the Revised Code, it shall
assess the offender and complete the assessment as soon as
possible after the offender has commenced serving the prison term
or term of life imprisonment without parole imposed under division
(A), (B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), or (B)(3)(a),
(b), (c), or (d) of section 2971.03 of the Revised Code.
Thereafter, the department shall update a risk assessment report
pertaining to an offender as follows:
(a) Periodically, in the discretion of the department,
provided that each report shall be updated no later than two years
after its initial preparation or most recent update;
(b) Upon the request of the parole board for use in
determining pursuant to section 2971.04 of the Revised Code
whether it should terminate its control over an offender's service
of a prison term imposed upon the offender under division (A)(3),
(B)(1)(a), (b), or (c), (B)(2)(a), (b), or (c), or (B)(3)(a), (b),
(c), or (d) of section 2971.03 of the Revised Code;
(c) Upon the request of the court.
(3) After the department of rehabilitation and correction
assesses an offender pursuant to division (A)(2) of this section,
it shall prepare a report that contains its risk assessment for
the offender or, if a risk assessment report previously has been
prepared, it shall update the risk assessment report.
(4) The department of rehabilitation and correction shall
provide each risk assessment report that it prepares or updates
pursuant to this section regarding an offender to all of the
following:
(a) The parole board for its use in determining pursuant to
section 2971.04 of the Revised Code whether it should terminate
its control over an offender's service of a prison term imposed
upon the offender under division (A)(3), (B)(1)(a), (b), or (c),
(B)(2)(a), (b), or (c), or (B)(3)(a), (b), (c), or (d) of section
2971.03 of the Revised Code, if the parole board has not
terminated its control over the offender;
(b) The court for use in determining, pursuant to section
2971.05 of the Revised Code, whether to modify the requirement
that the offender serve the entire prison term imposed upon the
offender under division (A)(3), (B)(1)(a), (b), or (c), (B)(2)(a),
(b), or (c), or (B)(3)(a), (b), (c), or (d) of section 2971.03 of
the Revised Code in a state correctional institution, whether to
revise any modification previously made, or whether to terminate
the prison term;
(c) The prosecuting attorney who prosecuted the case, or the
successor in office to that prosecuting attorney;
(B) When the department of rehabilitation and correction
provides a risk assessment report regarding an offender to the
parole board or court pursuant to division (A)(4)(a) or (b) of
this section, the department, prior to the parole board's or
court's hearing, also shall provide to the offender or to the
offender's attorney of record a copy of the report and a copy of
any other relevant documents the department possesses regarding
the offender that the department does not consider to be
confidential.
(C) As used in this section:
(1) "Adjudicated a sexually violent predator" has the same
meaning as in section 2929.01 of the Revised Code, and a person is
"adjudicated a sexually violent predator" in the same manner and
the same circumstances as are described in that section.
(2) "Designated homicide, assault, or kidnapping offense" and
"violent sex offense" have the same meanings as in section 2971.01
of the Revised Code.
Sec. 5919.16. (A) Commissioned and warrant officers in the
Ohio national guard shall be discharged by the adjutant general
upon either of the following:
(1) The officer's resignation;
(2) Approval of a board's recommendation for withdrawal of
federal recognition by the chief of the national guard bureau.
(B) An officer also may be discharged under any of the
following circumstances:
(1) Pursuant to other federal regulations;
(2) If absent without leave for three months, upon
recommendation of an efficiency board;
(3) Pursuant to sentence by court-martial;
(4) If the officer has been convicted of a crime classified
as a felony as described in division (C) or (D) or (E) of section
2901.02 of the Revised Code.
Section 2. That existing sections 120.03, 120.06, 120.14,
120.16, 120.18, 120.24, 120.26, 120.28, 120.33, 120.34, 1901.183,
2152.13, 2152.67, 2301.20, 2313.37, 2701.07, 2901.02, 2909.24,
2929.02, 2929.13, 2929.14, 2941.14, 2941.148, 2941.401, 2941.43,
2941.51, 2945.06, 2945.21, 2945.25, 2945.38, 2949.02, 2949.03,
2953.02, 2953.07, 2953.08, 2953.09, 2953.10, 2953.21, 2953.23,
2953.71, 2953.72, 2953.81, 2967.05, 2967.13, 2967.193, 2971.03,
2971.07, 5120.61, and 5919.16 and sections 109.97, 120.35,
2929.021, 2929.022, 2929.023, 2929.024, 2929.03, 2929.04, 2929.05,
2929.06, 2947.08, 2949.21, 2949.22, 2949.24, 2949.25, 2949.26,
2949.27, 2949.28, 2949.29, 2949.31, and 2967.08 of the Revised
Code are hereby repealed.
Section 3. (A) An offender whose sentence of death has been
set aside, nullified, or vacated pursuant to section 2929.06 of
the Revised Code as it existed immediately before the effective
date of this act but who has not been resentenced under that
section as of the effective date of this act shall be resentenced
in accordance with that section as it existed immediately before
the effective date of this act.
(B) An offender who was sentenced to death before the
effective date of this act shall have the same right to
postconviction DNA testing as the offender had under sections
2953.71 to 2953.81 of the Revised Code as they existed immediately
before the effective date of this act or as they may hereafter be
amended.
(C) All reports and payments relating to capital cases that
were required to be made under any provision of Chapter 120. or
section 109.97 of the Revised Code as that provision existed
immediately before the effective date of this act shall be made
for the current calendar or fiscal year, as applicable, in
accordance with that provision as it existed immediately before
the effective date of this act.
Section 4. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is to
preserve life by preventing the execution of death sentences
imposed before the effective date of this act but not yet carried
out. Therefore, this act shall go into immediate effect.
Section 5. Section 2929.14 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. H.B. 130 and Am. Sub. H.B. 280 of the 127th General Assembly.
Section 2953.07 of the Revised Code is presented in this act as a
composite of the section as amended by both Am. Sub. S.B. 2 and
Am. Sub. S.B. 4 of the 121st General Assembly. Section 2967.193 of
the Revised Code is presented in this act as a composite of the
section as amended by both Am. Sub. S.B. 269 and Am. Sub. H.B. 180
of the 121st General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composites are the
resulting versions of these sections in effect prior to the
effective dates of the sections as presented in this act.
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