§ 130.14. Penalty considerations.

A.

For the purpose of this section the following definitions shall apply unless the context clearly indicates or requires a different meaning.

"Repeat offender." A person who has a history of persistent criminal activity and whose character and condition reveal a substantial risk that he will commit another offense. It is prima facie evidence that a person is a repeat offender if any of the following applies:

1.

Having been convicted of one or more offenses of violence, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent offense of violence;

2.

Having been convicted of one or more sex offenses, as defined in R.C. § 2950.01, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent sex offense;

3.

Having been convicted of one or more theft offenses, as defined in § 131.01 and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent theft offense;

4.

Having been convicted of one or more felony drug abuse offenses, as defined in R.C. Chapter 2925, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent felony drug abuse offense;

5.

Having been convicted of two or more felonies, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent offense;

6.

Having been convicted of three or more offenses of any type or degree other than traffic offenses, alcoholic intoxication offenses, or minor misdemeanors, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent offense.

"Dangerous offender." A person who has committed an offense, whose history, character, and condition reveal a substantial risk that he will be a danger to others, and whose conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences.

"Actual incarceration."

1.

An offender is required to be imprisoned for the stated period of time to which he is sentenced that is specified as a term of actual incarceration. If a person is sentenced to a term of actual incarceration, the court shall not suspend his term of actual incarceration, and shall not grant him probation or shock probation, pursuant to R.C. §§ 2929.51, 2947.061, 2951.02, or 2951.04, and the Department of Rehabilitation and Correction or the adult parole authority shall not, pursuant to R.C. Chapter 2967 or its rules adopted pursuant to R.C. Chapter 2967, 5120, 5143, or 5149, grant him a furlough for employment or education, a furlough for being a trustworthy prisoner other than a furlough pursuant to R.C. § 2967.27(A) (1) or (2), parole, emergency parole, or shock parole until after the expiration of his term of actual incarceration, diminished as provided in R.C. §§ 2967.19, 2967.193, 5145.11, and 5145.12.

2.

An offender who is sentenced to a term of actual incarceration may be transferred from an institution operated by the Department of Rehabilitation and Correction to the custody of the Department of Mental Health or the Department of Mental Retardation and Developmental Disabilities, as provided in R.C. § 5120.17, and shall be credited with all time served in the custody of the Department of Mental Health or the Department of Mental Retardation and Developmental Disabilities against the term of actual incarceration.

"Deadly weapon" has the same meaning as in section R.C. § 2923.11.

B.

In determining whether to impose imprisonment or a fine, or both, for misdemeanor, and in determining the term of imprisonment and the amount and method of payment of a fine, the court shall consider the risk that the offender will commit another offense and the need for protecting the public from the risk, the nature and circumstances of the offense, the history, character, and condition of the offender and his need for correctional or rehabilitative treatment, and the ability and resources of the offender and the nature of the burden that payment of a fine will impose on him.

C.

The following do not control the court's discretion, but shall be considered in favor of imposing imprisonment for misdemeanor:

1.

The offender is a repeat or dangerous offender;

2.

Regardless of whether or not the offender knew the age of the victim, the victim of the offense was sixty-five years of age or older, permanently and totally disabled or less than eighteen years of age at the time of the commission of the offense.

D.

The criteria listed in R.C. § 2929.12, favoring shorter terms of imprisonment for felony, do not control the court's discretion, but shall be considered against imposing imprisonment for misdemeanor.

E.

The criteria listed in subsections C and D of this section shall not be construed to limit the matters which may be considered in determining whether to impose imprisonment for misdemeanor.

F.

The court shall not impose a fine in addition to imprisonment for misdemeanor, unless a fine is specially adapted to deterrence of the offense or the correction of the offender, or the offense has proximately resulted in physical harm to the person or property of another, or the offense was committed for hire or for purpose of gain.

G.

The court shall not impose a fine or fines which, in the aggregate and to the extent not suspended by the court, exceeds the amount which the offender is or will be able to pay by the method and within the time allowed without undue hardship to himself or his dependents, or will prevent him from making restitution or reparation to the victim of his offense.

H.

At the time of sentencing or as soon as possible after sentencing, the court shall notify the victim of the offense of his right to file an application for an award of reparations pursuant to R.C. §§ 2743.51 through 2743.72. (R.C. §§ 2929.01, 2929.22)

(Ord. 221-1991; Ord. 728-1973)