2006 Ohio Revised Code - [2950.09.1] 2950.091.Classification as child-victim predator or habitual child-victim offender.

[§ 2950.09.1] § 2950.091. Classification as child-victim predator or habitual child-victim offender.
 

(A) (1)  If, prior to the effective date of this section, a person was convicted of, pleaded guilty to, or was adjudicated a delinquent child for committing, a sexually oriented offense, if, prior to the effective date of this section, the offender or delinquent child was classified a sexual predator in relation to that offense pursuant to division (A) of section 2950.09 of the Revised Code, and if, on and after the effective date of this section, the sexually oriented offense upon which the classification was based no longer is considered a sexually oriented offense but instead is a child-victim oriented offense, notwithstanding the redesignation of the offense, the classification of the offender or child as a sexual predator remains valid and in effect on and after the effective date of this section. 

(2) If, prior to the effective date of this section, a person was convicted of, pleaded guilty to, or was adjudicated a delinquent child for committing a sexually oriented offense, if, prior to the effective date of this section, the offender or delinquent child was adjudicated a sexual predator in relation to that offense under section 2950.09 or section 2152.82, 2152.83, 2152.84, or 2152.85 of the Revised Code, if, on and after the effective date of this section, the sexually oriented offense upon which the adjudication was based no longer is considered a sexually oriented offense but instead is a child-victim oriented offense, and if division (A)(1) of this section does not apply, notwithstanding the redesignation of the offense, on and after the effective date of this section, the offender or delinquent child automatically is classified a child-victim predator. If a person is convicted, pleads guilty, or adjudicated a delinquent child in a court of another state, in a federal court, military court, or Indian tribal court, or in a court of any nation other than the United States for committing a child-victim oriented offense, and if, as a result of that conviction, plea of guilty, or adjudication, the person is required under the law of the jurisdiction in which the person was convicted, pleaded guilty, or adjudicated to register as a child-victim offender or sex offender until the person's death, that conviction, plea of guilty, or adjudication automatically classifies the person a child-victim predator for the purposes of this chapter, but the person may challenge that classification pursuant to division (F) of this section. 

(3) In all cases not described in division (A)(1) or (2) of this section, a person who is convicted of or pleads guilty to, has been convicted of or pleaded guilty to, or is adjudicated a delinquent child for committing a child-victim oriented offense may be classified a child-victim predator for purposes of this chapter only in accordance with division (B) or (C) of this section or, regarding delinquent children, divisions (B) and (C) of section 2152.83 of the Revised Code. 

(B) (1) (a)  Regardless of when the offense was committed, the judge who is to impose sentence on or after the effective date of this section on an offender who has been convicted of or pleaded guilty to a child-victim oriented offense shall conduct a hearing to determine whether the offender is a child-victim predator. 

(b) The judge who is to impose or has imposed an order of disposition upon a child who is adjudicated a delinquent child for committing on or after the effective date of this section a child-victim oriented offense shall conduct a hearing as provided in this division to determine whether the child is to be classified as a child-victim predator if either of the following applies: 

(i) The judge is required by section 2152.82 or division (A) of section 2152.83 of the Revised Code to classify the child a juvenile offender registrant. 

(ii) Division (B) of section 2152.83 of the Revised Code applies regarding the child, the judge conducts a hearing under that division for the purposes described in that division, and the judge determines at that hearing that the child will be classified a juvenile offender registrant. 

(2) Regarding an offender, the judge shall conduct the hearing required by division (B)(1)( a) of this section prior to sentencing and, if the child-victim oriented offense is a felony and if the hearing is being conducted under division (B)(1)(a) of this section, the judge may conduct it as part of the sentencing hearing required by section 2929.19 of the Revised Code. Regarding a delinquent child, the judge may conduct the hearing required by division (B)(1)(b) of this section at the same time as, or separate from, the dispositional hearing, as specified in the applicable provision of section 2152.82 or 2152.83 of the Revised Code. The court shall give the offender or delinquent child and the prosecutor who prosecuted the offender or handled the case against the delinquent child for the child-victim oriented offense notice of the date, time, and location of the hearing. At the hearing, the offender or delinquent child and the prosecutor have the same opportunities and rights as described in division (B)(2) of section 2950.09 of the Revised Code regarding sexual predator hearings. 

(3) In making a determination under divisions (B)(1) and (4) of this section as to whether an offender or delinquent child is a child-victim predator, the judge shall consider all relevant factors, including, but not limited to, all of the factors identified in division (B)(3) of section 2950.09 of the Revised Code regarding sexual predator hearings, except that all references in the factors so identified in that division to any "sexual offense" or "sexually oriented offense" shall be construed for purposes of this division as being references to a "child-victim oriented offense" and all references in the factors so identified to "sexual offenders" shall be construed for purposes of this division as being references to "child-victim offenders." 

(4) After reviewing all testimony and evidence presented at the hearing conducted under division (B)(1) of this section and the factors specified in division (B)(3) of this section, the court shall determine by clear and convincing evidence whether the subject offender or delinquent child is a child-victim predator. If the court determines that the subject offender or delinquent child is not a child-victim predator, the court shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the delinquent child's dispositional order, as appropriate, that the court has determined that the offender or delinquent child is not a child-victim predator and the reason or reasons why the court determined that the subject offender or delinquent child is not a child-victim predator. If the court determines by clear and convincing evidence that the subject offender or delinquent child is a child-victim predator, the court shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the delinquent child's dispositional order, as appropriate, that the court has determined that the offender or delinquent child is a child-victim predator and shall specify that the determination was pursuant to division (B) of this section. The offender or delinquent child and the prosecutor who prosecuted the offender or handled the case against the delinquent child for the child-victim oriented offense in question may appeal as a matter of right the court's determination under this division as to whether the offender or delinquent child is, or is not, a child-victim predator. 

(C) (1)  If, prior to the effective date of this section, a person was convicted of or pleaded guilty to a sexually oriented offense, if, on and after the effective date of this section, the sexually oriented offense no longer is considered a sexually oriented offense but instead is a child-victim oriented offense, if the person was not sentenced for the offense on or after January 1, 1997, and if, on or after the effective date of this section, the offender is serving a term of imprisonment in a state correctional institution, the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated a child-victim predator. In making a determination under this division as to whether to recommend that the offender be adjudicated a child-victim predator, the department shall consider all relevant factors, including, but not limited to, all of the factors specified in divisions (B)(2) and (3) of this section. If the department determines that it will recommend that the offender be adjudicated a child-victim predator or determines that it will not recommend that the offender be adjudicated a child-victim predator, it immediately shall send its recommendation or determination to the court that sentenced the offender. In all cases, the department shall enter its determination and recommendation in the offender's institutional record, and the court shall proceed in accordance with division (C)(2) of this section. 

(2) (a) If, pursuant to division (C)(1) of this section, the department of rehabilitation and correction sends to a court a recommendation that an offender be adjudicated a child-victim predator, the court is not bound by the department's recommendation, and the court shall conduct a hearing to determine whether the offender is a child-victim predator. In any case, the court shall not make a determination that the offender is, or is not, a child-victim predator without a hearing. The court may hold the hearing and make the determination prior to the offender's release from imprisonment or at any time within one year following the offender's release from that imprisonment. 

(b) If, pursuant to division (C)(1) of this section, the department sends to the court a determination that it is not recommending that an offender be adjudicated a child-victim predator, the court shall not make any determination as to whether the offender is, or is not, a child-victim predator but shall determine whether the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense other than the offense in relation to which the department made its determination. 

The court may conduct a hearing to determine whether the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense but may make the determination without a hearing. However, if the court determines that the offender previously has been convicted of or pleaded guilty to an offense of that nature, it shall not impose a requirement that the offender be subject to the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code without a hearing. The court shall include in the offender's institutional record any determination made under this division as to whether the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense and whether the offender is a habitual child-victim offender. 

(c) Upon scheduling a hearing under division (C)(2) (a) or (b) of this section, the court shall give the offender and the prosecutor who prosecuted the offender for the child-victim oriented offense, or that prosecutor's successor in office, notice of the date, time, and place of the hearing. If the hearing is scheduled under division (C)(2)(a) of this section to determine whether the offender is a child-victim predator, it shall be conducted in the manner described in division (B)(1) of this section regarding hearings conducted under that division, and, in making a determination under this division as to whether the offender is a child-victim predator, the court shall consider all relevant factors, including, but not limited to, all of the factors specified in divisions (B)(2) and (3) of this section. After reviewing all testimony and evidence presented at the child-victim predator hearing and the factors specified in divisions (B)(2) and (3) of this section, the court shall determine by clear and convincing evidence whether the offender is a child-victim predator. If the court determines at the child-victim predator hearing that the offender is not a child-victim predator, it also shall determine whether the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense other than the offense in relation to which the hearing is being conducted. 

Upon making its determinations at the child-victim predator hearing, the court shall proceed as follows: 

(i) If the court determines that the offender is not a child-victim predator and that the offender previously has not been convicted of or pleaded guilty to a child-victim oriented offense other than the offense in relation to which the hearing is being conducted, it shall include in the offender's institutional record its determinations and the reason or reasons why it determined that the offender is not a child-victim predator. 

(ii) If the court determines that the offender is not a child-victim predator but that the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense other than the offense in relation to which the hearing is being conducted, it shall include in the offender's institutional record its determination that the offender is not a child-victim predator but is a habitual child-victim offender and the reason or reasons why it determined that the offender is not a child-victim predator, shall attach the determinations and the reason or reasons to the offender's sentence, shall specify that the determinations were made pursuant to division (C) of this section, shall provide a copy of the determinations and the reason or reasons to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction, and may impose a requirement that the offender be subject to the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code. The offender shall not be subject to those community notification provisions relative to the child-victim oriented offense in question if the court does not so impose the requirement described in this division. If the court imposes that requirement, the offender may appeal the judge's determination that the offender is a habitual child-victim offender. 

(iii) If the court determines by clear and convincing evidence that the offender is a child-victim predator, it shall enter its determination in the offender's institutional record, shall attach the determination to the offender's sentence, shall specify that the determination was made pursuant to division (C) of this section, and shall provide a copy of the determination to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction. The offender and the prosecutor may appeal as a matter of right the judge's determination under this division as to whether the offender is, or is not, a child-victim predator. 

If the hearing is scheduled under division (C)(2)(b) of this section to determine whether the offender previously has been convicted of or pleaded guilty to a child-victim oriented offense or whether to subject the offender to the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code, upon making the determination, the court shall attach the determination or determinations to the offender's sentence, shall provide a copy to the offender, to the prosecuting attorney, and to the department of rehabilitation and correction and may impose a requirement that the offender be subject to the community notification provisions. The offender shall not be subject to the community notification provisions relative to the child-victim oriented offense in question if the court does not so impose the requirement described in this division. If the court imposes that requirement, the offender may appeal the judge's determination that the offender is a habitual child-victim offender. 

(3) Divisions (C)(1) and (2) of this section do not require a court to conduct a new hearing under those divisions for any offender regarding a child-victim oriented offense if, prior to the effective date of this section, the court previously conducted a hearing under divisions (C)(1) and (2) of section 2950.09 of the Revised Code regarding that offense, while it formerly was classified a sexually oriented offense, to determine whether the offender was a sexual predator. Divisions (C)(1) and (2) of this section do not require a court to conduct a hearing under those divisions for any offender regarding a child-victim oriented offense if, prior to the effective date of this section and pursuant to divisions (C)(1) and (2) of section 2950.09 of the Revised Code, the department of rehabilitation and correction recommended that the offender be adjudicated a sexual predator regarding that offense, while it formerly was classified a sexually oriented offense, and the court denied the recommendation and determined that the offender was not a sexual predator without a hearing, provided that this provision does not apply if the child-victim oriented offense in question was an offense described in division (D)(1)(c) of section 2950.01 of the Revised Code. 

(D) (1)  Division (D) of this section does not apply to any person who has been convicted of or pleaded guilty to a child-victim oriented offense. Division (D) of this section applies only to delinquent children as provided in Chapter 2152. of the Revised Code. A person who has been adjudicated a delinquent child for committing a child-victim oriented offense and who has been classified by a juvenile court judge a juvenile offender registrant or, if applicable, additionally has been determined by a juvenile court judge to be a child-victim predator or habitual child-victim offender, may petition the adjudicating court for a reclassification or declassification pursuant to section 2152.85 of the Revised Code. 

A judge who is reviewing a child-victim predator determination for a delinquent child under section 2152.84 or 2152.85 of the Revised Code shall comply with this section. At the hearing, the judge shall consider all relevant evidence and information, including, but not limited to, the factors set forth in division (B)(3) of this section. The judge shall not enter a determination that the delinquent child no longer is a child-victim predator unless the judge determines by clear and convincing evidence that the delinquent child is unlikely to commit a child-victim oriented offense in the future. If the judge enters a determination under this division that the delinquent child no longer is a child-victim predator, the judge shall notify the bureau of criminal identification and investigation of the determination and shall include in the notice a statement of the reason or reasons why it determined that the delinquent child no longer is a child-victim predator. Upon receipt of the notification, the bureau promptly shall notify the sheriff with whom the delinquent child most recently registered under section 2950.04 or 2950.05 of the Revised Code of the determination that the offender no longer is a child-victim predator. 

(2) If an offender who has been convicted of or pleaded guilty to a child-victim oriented offense is classified a child-victim predator pursuant to division (A) of this section or has been adjudicated a child-victim predator relative to the offense as described in division (B) or (C) of this section, subject to division (F) of this section, the classification or adjudication of the offender as a child-victim predator is permanent and continues in effect until the offender's death, and in no case shall the classification or adjudication be removed or terminated. 

(E) (1)  If, prior to the effective date of this section, a person was convicted of, pleaded guilty to, or adjudicated a delinquent child for committing a sexually oriented offense, if, on and after the effective date of this section, the sexually oriented offense no longer is considered a sexually oriented offense but instead is a child-victim oriented offense, if, prior to the effective date of this section, a judge determined that the offender or delinquent child was a habitual sex offender, and if one or more of the offenses that was the basis of the offender or delinquent child being a habitual sex offender remains on and after the effective date of this section a sexually oriented offense, notwithstanding the redesignation of the offense as described in this division, the determination and classification of that person as a habitual sex offender remains valid and in effect on and after the effective date of this section. 

(2) If, prior to the effective date of this section, a person was convicted of, pleaded guilty to, or adjudicated a delinquent child for committing a sexually oriented offense, if, on and after the effective date of this section, the sexually oriented offense no longer is considered a sexually oriented offense but instead is a child-victim oriented offense, if, prior to the effective date of this section, a judge determined that the offender or delinquent child was a habitual sex offender, and if none of the offenses that was the basis of the offender or delinquent child being a habitual sex offender remains on and after the effective date of this section a sexually oriented offense, on and after the effective date of this section, the offender or delinquent child automatically is classified a habitual child-victim offender. 

(3) If a person is convicted of or pleads guilty to committing a child-victim oriented offense and is to be sentenced for the offense on or after the effective date of this section, the judge who is to impose sentence on the offender shall determine, prior to sentencing, whether the offender previously has been convicted of or pleaded guilty to, or adjudicated a delinquent child for committing, a child-victim oriented offense and is a habitual child-victim offender. The judge who is to impose or has imposed an order of disposition on or after the effective date of this section upon a child who is adjudicated a delinquent child for committing a child-victim oriented offense shall determine, prior to entering the order classifying the delinquent child a juvenile child-victim offender registrant, whether the delinquent child previously has been convicted of or pleaded guilty to, or adjudicated a delinquent child for committing, a child-victim oriented offense and is a habitual child-victim offender, if either of the following applies: 

(a) The judge is required by section 2152.82 or division (A) of section 2152.83 of the Revised Code to classify the child a juvenile offender registrant. 

(b) Division (B) of section 2152.83 of the Revised Code applies regarding the child, the judge conducts a hearing under that division for the purposes described in that division, and the judge determines at that hearing that the child will be classified a juvenile offender registrant. 

(4) If, under division (E)(3) of this section, the judge determines that the offender or delinquent child previously has not been convicted of or pleaded guilty to, or been adjudicated a delinquent child for committing, a child-victim oriented offense or that the offender otherwise does not satisfy the criteria for being a habitual child-victim offender, the judge shall specify in the offender's sentence or in the order classifying the delinquent child a juvenile child-victim offender registrant that the judge has determined that the offender or delinquent child is not a habitual child-victim offender. If the judge determines that the offender or delinquent child previously has been convicted of or pleaded guilty to, or been adjudicated a delinquent child for committing, a child-victim oriented offense and that the offender satisfies all other criteria for being a habitual child-victim offender, the judge shall specify in the offender's sentence and the judgment of conviction that contains the sentence or in the order classifying the delinquent child a juvenile offender registrant that the judge has determined that the offender or delinquent child is a habitual child-victim offender and may impose a requirement in that sentence and judgment of conviction or in that order that the offender or delinquent child be subject to the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code. Unless the habitual child-victim offender also has been adjudicated a child-victim predator relative to the child-victim oriented offense in question, the offender or delinquent child shall be subject to those community notification provisions only if the court imposes the requirement described in this division in the offender's sentence and the judgment of conviction or in the order classifying the delinquent child a juvenile offender registrant. If the court determines pursuant to this division or division (C)(2) of this section that an offender is a habitual child-victim offender, the determination is permanent and continues in effect until the offender's death, and in no case shall the determination be removed or terminated. 

If a court in another state, a federal court, military court, or Indian tribal court, or a court in any nation other than the United States, determines a person is a habitual child-victim offender in that jurisdiction, the person is considered to be determined a habitual child-victim offender in this state. If the court in the other state, the federal court, military court, or Indian tribal court, or the court in any nation other than the United States subjects the habitual child-victim offender to community notification regarding the person's place of residence, the person, as much as is practicable, is subject to the community notification provisions regarding the person's place of residence that are contained in sections 2950.10 and 2950.11 of the Revised Code, unless the court that so subjected the person to community notification determines that the person no longer is subject to community notification. 

(F) (1)  An offender or delinquent child classified a child-victim predator may petition the court of common pleas or, for a delinquent child, the juvenile court of the county in which the offender or delinquent child resides or temporarily is domiciled to enter a determination that the offender or delinquent child is not an adjudicated child-victim predator in this state for purposes of the registration and other requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code if all of the following apply: 

(a) The offender or delinquent child was convicted, pleaded guilty, or adjudicated a delinquent child in a court of another state, in a federal court, a military court, or Indian tribal court, or in a court of any nation other than the United States for committing a child-victim oriented offense. 

(b) As a result of the conviction, plea of guilty, or adjudication described in division (F)(1)(a) of this section, the offender or delinquent child is required under the law of the jurisdiction under which the offender or delinquent child was convicted, pleaded guilty, or was adjudicated to register as a child-victim offender until the offender's or delinquent child's death. 

(c) The offender or delinquent child was automatically classified a child-victim predator under division (A) of this section in relation to the conviction, guilty plea, or adjudication described in division (F)(1)(a) of this section. 

(2) The court may enter a determination that the offender or delinquent child filing the petition described in division (F)(1) of this section is not an adjudicated child-victim predator in this state for purposes of the registration and other requirements of this chapter or the community notification provisions contained in sections 2950.10 and 2950.11 of the Revised Code only if the offender or delinquent child proves by clear and convincing evidence that the requirement of the other jurisdiction that the offender or delinquent child register as a child-victim offender until the offender's or delinquent child's death is not substantially similar to a classification as a child-victim predator for purposes of this chapter. If the court enters a determination that the offender or delinquent child is not an adjudicated child-victim predator in this state for those purposes, the court shall include in the determination a statement of the reason or reasons why it so determined. 
 

HISTORY: 150 v S 5, § 1, eff. 7-31-03.

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