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H. B. No. 385 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Boyd, Fedor, Letson, Weddington
A BILL
To amend sections 2909.07 and 2929.13 and to enact
section 2923.05 of the Revised Code to expand the
"criminal mischief" prohibition that relates to
the use of a computer contaminant, to increase the
penalty for that offense when the offense involves
a computer or a computer system, network,
software, or program, and to create the offense of
"criminal use of a computer."
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2909.07 and 2929.13 be amended and
section 2923.05 of the Revised Code be enacted to read as follows:
Sec. 2909.07. (A) No person shall:
(1) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with the property
of another;
(2) With purpose to interfere with the use or enjoyment of
property of another, employ a tear gas device, stink bomb, smoke
generator, or other device releasing a substance that is harmful
or offensive to persons exposed or that tends to cause public
alarm;
(3) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with a bench mark,
triangulation station, boundary marker, or other survey station,
monument, or marker;
(4) Without privilege to do so, knowingly move, deface,
damage, destroy, or otherwise improperly tamper with any safety
device, the property of another, or the property of the offender
when required or placed for the safety of others, so as to destroy
or diminish its effectiveness or availability for its intended
purpose;
(5) With purpose to interfere with the use or enjoyment of
the property of another, set a fire on the land of another or
place personal property that has been set on fire on the land of
another, which fire or personal property is outside and apart from
any building, other structure, or personal property that is on
that land;
(6) Without privilege to do so, and with intent to impair the
functioning of any computer, computer system, computer network,
computer software, or computer program or with intent to acquire,
alter, damage, delete, disrupt, or destroy property or otherwise
use the services of any computer, computer system, computer
network, computer software, or computer program, knowingly do any
of the following:
(a) In any manner or by any means, including, but not limited
to, computer hacking, alter, damage, destroy, or modify a
computer, computer system, computer network, computer software, or
computer program or data contained in a computer, computer system,
computer network, computer software, or computer program;
(b) Introduce, insert, or attach a computer contaminant into,
or create the opportunity for an unknowing and unwanted
introduction, insertion, or attachment of a computer contaminant
into, a computer, computer system, computer network, computer
software, or computer program.
(B) As used in this section, "safety device" means any fire
extinguisher, fire hose, or fire axe, or any fire escape,
emergency exit, or emergency escape equipment, or any life line,
life-saving ring, life preserver, or life boat or raft, or any
alarm, light, flare, signal, sign, or notice intended to warn of
danger or emergency, or intended for other safety purposes, or any
guard railing or safety barricade, or any traffic sign or signal,
or any railroad grade crossing sign, signal, or gate, or any first
aid or survival equipment, or any other device, apparatus, or
equipment intended for protecting or preserving the safety of
persons or property.
(C)(1) Whoever violates this section is guilty of criminal
mischief, and shall be punished as provided in division (C)(2) or
(3) of this section.
(2) Except as otherwise provided in this division, criminal
mischief committed in violation of division (A)(1), (2), (3), (4),
or (5) of this section is a misdemeanor of the third degree.
Except as otherwise provided in this division, if the violation of
division (A)(1), (2), (3), (4), or (5) of this section creates a
risk of physical harm to any person, criminal mischief committed
in violation of division (A)(1), (2), (3), (4), or (5) of this
section is a misdemeanor of the first degree. If the property
involved in the violation of division (A)(1), (2), (3), (4), or
(5) of this section is an aircraft, an aircraft engine, propeller,
appliance, spare part, fuel, lubricant, hydraulic fluid, any other
equipment, implement, or material used or intended to be used in
the operation of an aircraft, or any cargo carried or intended to
be carried in an aircraft, criminal mischief committed in
violation of division (A)(1), (2), (3), (4), or (5) of this
section is one of the following:
(a) If the violation creates a risk of physical harm to any
person, except as otherwise provided in division (C)(2)(b) of this
section, criminal mischief committed in violation of division
(A)(1), (2), (3), (4), or (5) of this section is a felony of the
fifth degree.
(b) If the violation creates a substantial risk of physical
harm to any person or if the property involved in a violation of
this section is an occupied aircraft, criminal mischief committed
in violation of division (A)(1), (2), (3), (4), or (5) of this
section is a felony of the fourth degree.
(3) Except as otherwise provided in this division, criminal
mischief committed in violation of division (A)(6) of this section
is a misdemeanor of the first degree. Except as otherwise provided
in this division, if the value of the computer, computer system,
computer network, computer software, computer program, or data
involved in the violation of division (A)(6) of this section or
the loss to the victim resulting from the violation is one
thousand dollars or more and less than ten thousand dollars, or if
the computer, computer system, computer network, computer
software, computer program, or data involved in the violation of
division (A)(6) of this section is used or intended to be used in
the operation of an aircraft and the violation creates a risk of
physical harm to any person, criminal mischief committed in
violation of division (A)(6) of this section is a felony of the
fifth degree. If the value of the computer, computer system,
computer network, computer software, computer program, or data
involved in the violation of division (A)(6) of this section or
the loss to the victim resulting from the violation is ten
thousand dollars or more, or if the computer, computer system,
computer network, computer software, computer program, or data
involved in the violation of division (A)(6) of this section is
used or intended to be used in the operation of an aircraft and
the violation creates a substantial risk of physical harm to any
person or the aircraft in question is an occupied aircraft,
criminal mischief committed in violation of division (A)(6) of
this section is a felony of the fourth degree felony of the third
degree or, if the offender previously has been convicted of or
pleaded guilty to a violation of this section or a violation of an
existing or former municipal ordinance or law of this or any other
state or the United States that is substantially equivalent to
this section, a felony of the first degree.
Sec. 2923.05. (A) As used in this section:
(1) "Computer," "computer program," "computer system," and
"computer network" have the same meanings as in section 2913.01 of
the Revised Code.
(2) "Underlying offense" means an offense that a person
commits, attempts to commit, conspires to commit, or solicits
another to commit in engaging in conduct in violation of division
(B) of this section.
(B) No person shall use a computer, computer program,
computer system, or computer network to commit, attempt to commit,
conspire to commit, or solicit another to commit any offense.
(C) Division (B) of this section does not prohibit a person
from being charged with, convicted of, or punished for any other
violation of law committed by that person while violating or
attempting to violate division (B) of this section, including an
underlying offense.
Notwithstanding any other provision of law, a person may be
convicted at the same trial or proceeding of a violation of
division (B) of this section and an underlying offense that is the
basis of the violation of division (B) of this section. If a
person is convicted at the same trial or proceeding of a violation
of division (B) of this section and an underlying offense that is
the basis of the violation of division (B) of this section, the
offender shall be sentenced for the violation of division (B) of
this section in accordance with division (E) of this section and
also shall be sentenced for the underlying offense in accordance
with the section of the Revised Code that sets forth that offense.
(D) Division (B) of this section applies regardless of
whether a person who uses a computer, computer program, computer
system, or computer network as described in that division is
convicted of or pleads guilty to committing, attempting to commit,
conspiring to commit, or soliciting another to commit the
underlying offense.
(E)(1) Whoever violates division (B) of this section is
guilty of criminal use of a computer.
(2) If the most serious underlying offense involved in the
violation is a misdemeanor, a felony of the fifth degree, or any
other felony with a maximum term of imprisonment not exceeding one
year, criminal use of a computer is a first degree misdemeanor,
and, notwithstanding section 2929.24 of the Revised Code, the jail
term authorized for the offense shall be a definite jail term of
not more than one year.
(2) If the most serious underlying offense involved in the
violation is a felony of the fourth degree or any other felony
with a maximum term of imprisonment not exceeding two years,
criminal use of a computer is a felony of the fourth degree.
(3) If the most serious underlying offense involved in the
violation is a felony of the third degree or any other felony with
a maximum term of imprisonment not exceeding four years, criminal
use of a computer is a felony of the third degree.
(4) If the most serious underlying offense involved in the
violation is a felony of the second degree or any other felony
with a maximum term of imprisonment not exceeding ten years,
criminal use of a computer is a felony of the second degree.
(5) If the most serious underlying offense involved in the
violation is a felony of the first degree or any other felony with
a maximum term of imprisonment not exceeding twenty years,
criminal use of a computer is a felony of the first degree.
(6) If the most serious underlying offense involved in the
violation is aggravated murder, murder, or any other offense that
is punishable by death or life imprisonment, criminal use of a
computer is a felony of the first degree, and the court shall
impose as a mandatory prison term one of the prison terms
prescribed for a felony of the first degree.
Sec. 2929.13. (A) Except as provided in division (E), (F),
or (G) of this section and unless a specific sanction is required
to be imposed or is precluded from being imposed pursuant to law,
a court that imposes a sentence upon an offender for a felony may
impose any sanction or combination of sanctions on the offender
that are provided in sections 2929.14 to 2929.18 of the Revised
Code. The sentence shall not impose an unnecessary burden on state
or local government resources.
If the offender is eligible to be sentenced to community
control sanctions, the court shall consider the appropriateness of
imposing a financial sanction pursuant to section 2929.18 of the
Revised Code or a sanction of community service pursuant to
section 2929.17 of the Revised Code as the sole sanction for the
offense. Except as otherwise provided in this division, if the
court is required to impose a mandatory prison term for the
offense for which sentence is being imposed, the court also 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 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, or 2923.04 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.
Section 2. That existing sections 2909.07 and 2929.13 of the
Revised Code are hereby repealed.
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