Legislative Changes in Ohio

What happened…what to expect

DISCLAIMERS

• I am not permitted to be political - - so I will not be political. Any statements that sound political are not.

• I do not intend any comments to be construed as an indication of a ruling on any pending or future matter.

Recodification of Criminal Statutes

• Officially: Ohio Criminal Justice Recodification Committee.• Created in HB 483 (2014) – capital budget.• Expanded and extended in HB 53 in 2015.

Section 729.11. (A) The Criminal Justice Recodification Committee shall study the existing

criminal statutes of this state, with the goal of enhancing public safety and the administration of criminal justice in Ohio by eliminating duplication in those statutes, aligning those statutes with the purpose of defining a culpable mental state for all crimes, removing or revising crimes included in those statutes for which no culpable mental state is provided, and other appropriate measures. The Committee shall use the results of its study to develop and recommend to the General Assembly a comprehensive plan for revising the state's Criminal Code that is consistent with those specified goals of the study.

(B) Not later than January 1, 2016, the Criminal Justice Recodification Committee shall recommend to the General Assembly a comprehensive plan for revising the state's Criminal Code that is consistent with the goals of the Committee's study that are specified in division (A) of this section.

(C) Upon its submission to the General Assembly pursuant to division (B) of this section of its recommendations for a comprehensive plan for revising the state's Criminal Code, the Criminal Justice Recodification Committee shall cease to exist.

Focus of Committee ?

• Making code more coherent – and easier to read and understand.

• Clarity regarding elements of offense - - align other similar offenses.

• Specifications and enhancements? • Renumbering? (e.g. 2923.1211 -2923.1213)

• Work is supposed to be completed by August 1, 2016 with the submission of a “comprehensive plan.”

• After that …..

Buckle your seatbelts!

SB 97Sen. Hughes / LaRose

Violent Career Criminal Act

• “The Violent Career Criminal Act proposes longer prison sentences for certain repeat offenders convicted of a crime involving a firearm. The Act also changes prison terms for some repeat offenders convicted of gun specifications.” - Attorney General DeWine.

• Passed the Senate in early 2015 - - should be passed by the House early next year.

What it does…..

• Increases by 50% the mandatory prison term required for a firearm specification, when an offender who has been convicted of a felony and the specification previously has been convicted of a firearm specification.

• In a provision regarding commitment to the Department of Youth Services of a child who is adjudicated a delinquent child and is an accomplice regarding a specified type of specification, corrects the reference to the types of specifications to which the provision applies.

• Defines "violent career criminals" and prohibits them from knowingly acquiring, having, carrying, or using any firearm or dangerous ordnance.

• Requires a mandatory prison term of two, three, four, five, six, seven, eight, nine, ten, or eleven years for a "violent career criminal" convicted of committing a violent felony offense while armed with a firearm.

What is a violent career criminal???• Sec. 2923.132. (A) As used in this section: • (1)(a) "Violent career criminal" means a person who

within the preceding eight years, subject to extension as provided in division (A)(1)(b) of this section, has been convicted of or pleaded guilty to two or more violent felony offenses that are separated by intervening sentences and are not so closely related to each other and connected in time and place that they constitute a course of criminal conduct.

HB 6Reps. Kunze / LaTourette

Extend Limitations for Rape / Sexual Battery

• Increases the period of limitation for prosecution of rape or sexual battery or conspiracy or attempt to commit, or complicity in committing, rape or sexual battery from 20 to 25 years.

• Provides that, in a case in which a DNA record made in connection with the criminal investigation of a rape or sexual battery is determined to match another DNA record of an identifiable person, one of the following applies:

(1) If the determination is later than 25 years after the offense is committed, prosecution may be commenced within five years after the determination is complete; (2) If the determination is within 25 years after the offense is committed, prosecution may be commenced within the longer of 25 years after the offense is committed or five years after the determination is complete.

• Specifies that the changes apply to a rape or sexual battery committed on or after the act's effective date and apply to a rape or sexual battery committed prior to that date if prosecution was not barred under the period of limitation for the offense as it existed on the day before that date.

• Became effective July 16, 2015.

HB 123 Rep. Cupp

Alibis and PSI’s

• Increases from three to seven the minimum number of days before trial by which a criminal defendant must notify the prosecutor of an intent to claim an alibi, in conformance with the Criminal Rules.

• Authorizes, but does not require, a sentencing court to dispense with a presentence investigation report before placing a felony offender under a community control sanction if the defendant and prosecutor agree to waive the report.

• Requests the Supreme Court to modify the Rules of Criminal Procedure (Rule 32.2) to conform to the bill's provisions on presentence investigation reports.

• Passed the House - - Pending in the Senate.

HB 151Rep. Anielski

Menacing by Stalking / Telecom harassment

• Expands the offense of "menacing by stalking" by additionally prohibiting all of

the following: • (1) A person by engaging in a pattern of conduct from knowingly causing

another person to believe that the offender will cause physical harm or mental distress to a family or household member of the other person;

• (2) A person through the use of any form of written communication from posting a message or using any intentionally written or verbal graphic gesture to violate or to urge or incite another person to violate the previously described prohibition;

• (3) A person through the use of a telecommunications device from posting a message or using any intentionally written or verbal graphic gesture with either of the purposes described above in (2).

• Expands and modifies offense of telecommunications harassment. • Pending in Senate – expected passage early next year.

HB 56Reps. Schuring / Slesnick

“Ban the box” for public employers in Ohio.

• Prohibits a public employer from including on any employment application form any question concerning an applicant's criminal background.

• Prohibits a felony conviction from being used against an officer or employee when a public employer is undertaking certain employment practices, unless the conviction occurs while the officer or employee is employed in the civil service.

• Removes the bar against sealing a conviction record when the victim is 16 or 17 years old under specified circumstances.

• Specifies that independent providers that provide certain aide or nursing services are not public employees of the state or any political subdivision of the state.

• Passed both House and Senate – awaiting Governor’s signature.

HB 307 / SB 204Rep. Pelanda / Sen. Seitz

Driver’s License Suspensions • Eliminates the mandatory driver's license suspension (equal to a period of six months to five

years) for specified drug-related offenses, and instead, permits the court to impose a suspension for a period of up to five years.

• Allows an offender who received a mandatory driver's license suspension for a specified drug-related offense prior to the bill's effective date to file a motion for the termination of the suspension unless either of the following applies:

--The offender used a motor vehicle in the commission of the underlying offense; or --The offender also pleaded guilty to, or was convicted of, an OVI ("operating a vehicle while under the influence") offense arising out of the same set of

circumstances as the drug-related offense. • Authorizes a sentencing court to impose a driver's license suspension for a period of up to

five years on an offender for possessing nitrous oxide in a motor vehicle. • Expands and standardizes the permissible purposes for which a court may grant limited

driving privileges to an offender whose driver's license has been suspended. • Both bills are still in committees of their respective chambers – but expected to pass next

year.

SB 139 Sen. Seitz / Williams

Death Penalty reforms

• Takes four recommendations from the Joint Task Force to Review the Administration of Ohio’s Death Penalty.

• Requires the clerk of a common pleas court to retain a copy of the original trial file when a death penalty is imposed - - original still transmitted to Supreme Court.

• No page limit on petitions for postconviction relief in death penalty cases or on notices of appeal, responses, or briefs in appeals of denials of such relief.

• May amend petition for postconviction relief any time that is not later than 180 days after the petition is filed, with or without leave or prejudice to the proceedings.

• Discovery allowed in certain circumstance – depositions and subpoenas. Petitioner may not attend depositions. Uses protective provisions found in civil rules.

• Requires a judge hearing a postconviction relief proceeding brought by a person who was sentenced to death to state specifically in the findings of fact and conclusions of law why each claim was either denied or granted.

HB 388Rep. Scherer

• Annie’s Law.• Mandatory ignition interlock devices - - in

exchange for possibility of unlimited driving privileges.

• Lookback expanded from six years to 10 years.

Subrogation / Rights of Subrogee

• Big change for personal injury claimants?• Language in the budget (HB 64) after Governor’s veto of some provisions:

2323.44 (B) Notwithstanding any contract or statutory provision to the contrary, the rights of a subrogee or any other person or entity that asserts a contractual, statutory, or common law subrogation claim against a third party or an injured party in a tort action shall be subject to all of the following:

(1) If less than the full value of the tort action is recovered for comparative negligence, diminishment due to a party's liability under sections 2307.22 to 2307.28 of the Revised Code, or by reason of the collectability of the full value of the claim for injury, death, or loss to person resulting from limited liability insurance or any other cause, the subrogee's or other person's or entity's claim shall be diminished in the same proportion as the injured party's interest is diminished.

(2) If a dispute regarding the distribution of the recovery in the tort action arises, either party may file an action under Chapter 2721. of the Revised Code to resolve the issue of the distribution of the recovery.

•Effective date was September 30, 2015.

• SB 223 (Sen. Bacon) Change in the effective date of 2323.44’s provisions.• Section 3.

Section 2323.44 of the Revised Code shall not apply to multiple employer welfare arrangements, health insuring corporations, or sickness and accident insurers authorized to do business in this state under Title XVII or XXXIX of the Revised Code with respect to any policy, contract, or agreement that is delivered, issued for delivery, or renewed on or after the effective date of this section through December 31, 2016. Multiple employer welfare arrangements, health insuring corporations, or sickness and accident insurers authorized to do business in this state under Title XVII or XXXIX of the Revised Code shall be subject to section 2323.44 of the Revised Code with respect to any policy, contract, or agreement that is delivered, issued for delivery, or renewed on or after January 1, 2017.

• SB 223 passed last week with emergency effectiveness.• Gap between September 30 and December ?, 2015.

HB 347 / SB 236Reps. McColley-Brinkman / Sen. Jordan

Civil Asset Forfeiture

• Original bill eliminated the civil asset forfeiture provisions and altered the criminal asset forfeiture procedure.

• New substitute bill accepted in November – reinstates civil asset forfeiture with changes to the procedure.

• Judges are neutral.• FOP opposes.• Prosecutors oppose.

HB 229Hambley / Bischoff

Ohio Family Trust Company Act

• Defines "family trust company" (FTC) as a corporation or limited liability company that (1) is organized in Ohio to serve only family clients, (2) is wholly owned by family clients and is exclusively controlled by one or more family members or family entities, (3) acts as a fiduciary, and (4) does not transact business with, propose to act as fiduciary for, or accept trust business from, a person that is not a family client.

• Allows, but does not require, an FTC to be licensed as a trust company under the bill.

• Superintendent of Financial Institutions oversees FTCs. Can issue and revoke licenses, impose fines, and liquidate assets.

• Good news or bad news for banks? It depends. Banks currently oppose.• Passed House last week. Pending in Senate.

HB 387Terhar / Dever

Small Claims Court Jurisdiction

• Increases the jurisdiction of the small claims divisions to claims up to $6000.

• Filed in November and still pending in committee.

Others

• HB 134 (Grossman)– Foreclosures.• HB 50 (Pelanda / Grossman) – Foster care.• HB 291 (Dever) – Revise Cognovit Judgment

procedure.• Medical Malpractice reform – “I’m Sorry.”• Truancy reform.