Senate Bill No. 204
(By Senator McKenzie)
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[Introduced February 16, 2005; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact §15-12-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-5-1, §49-5-2,
§49-5-10 and §49-5-18 of said code, all relating to lowering
the age of criminal responsibility from age eighteen to age
fifteen; requiring that a sex offender under the age of
eighteen be required to register as a sex offender; and
repealing provisions of the law that require placing the
juvenile records of violent offenders, sexual offenders and
driving under the influence offenders under seal.
Be it enacted by the Legislature of West Virginia:
That §15-12-2 of the Code of West Virginia, 1931, as amended
be amended and reenacted; and that §49-5-1, §49-5-2, §49-5-10 and
§49-5-18 of said code be amended and reenacted, all to read as
follows:
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively and prospectively.
(b) Any person,
including juveniles as defined in section one,
article five, chapter forty-nine of this code, who has been
convicted of an offense or an attempted offense or has been found
not guilty by reason of mental illness, mental retardation or
addiction of an offense under any of the following provisions of
chapter sixty-one of this code or under a statutory provision of
another state, the United States code or the uniform code of
military justice which requires proof of the same essential
elements shall register as set forth in subsection (d) of this
section and according to the internal management rules promulgated
by the superintendent under authority of section twenty-five,
article two of this chapter:
(1) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an act of the
Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense,
and the sentencing judge made a written finding that the offense
was sexually motivated shall also register as set forth in this
article.
(d) Persons required to register under the provisions of this article shall provide or cooperate in providing, at a minimum, the
following when registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration, the name and address of the
registrant's employer or place of occupation at the time of
registration, the names and addresses of any anticipated future
employers or places of occupation, the name and address of any
school or training facility the registrant is attending at the time
of registration and the names and addresses of any schools or
training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of
registration;
(5) A brief description of the crime or crimes for which the
registrant was convicted;
(6) Fingerprints; and
(7) Information relating to any internet accounts the
registrant has and the screen names, user names or aliases the
registrant uses on the internet.
(e) On the date that any person convicted or found not guilty
by reason of mental illness, mental retardation or addiction of any
of the crimes listed in subsection (b) of this section, including
those persons who are continuing under some post-conviction
supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work
release, conditional release or any other release from confinement,
the commissioner of corrections, regional jail administrator, city
or sheriff operating a jail, or secretary of the department of
health and human resources which releases the person, and any
parole or probation officer who releases the person or supervises
the person following the release, shall obtain all information
required by subsection (d) of this section prior to the release of
the person, inform the person of his or her duty to register and
send written notice of the release of the person to the state
police within three days of receiving the information. The notice
must include the information required by subsection (d) of this
section.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by
reason of mental illness, mental retardation or addiction in a
court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or
her counsel that the defendant has received notice of the
provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed, constitutes
prima facie evidence that the person had knowledge of the
requirements of this article. Persons who have not signed a
statement under the provisions of this subsection and who are
subject to the registration requirements of this article must be
informed of the requirement by the state police whenever the state
police obtain information that the person is subject to
registration requirements.
(h) The state police shall maintain a central registry of all
persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the state police by subdivision (2),
subsection (b), section five of this article is to be accessible
through the internet. No information relating to internet accounts,
screen names, user names or aliases a registrant has or uses may be
released through the internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in section
three, article eight-b, chapter sixty-one of this code, or of a
similar provision in another state, federal or military
jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code, or
of a similar provision in another state, federal or military
jurisdiction;
(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code which was repealed by an act of the Legislature during
the two thousand legislative session, or of a similar provision in
another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code, or of a
similar provision in another state, federal or military
jurisdiction.
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person
committed the crime was for any person's sexual gratification.
(k) For purposes of this article, the term "sexually violent
predator" means a person who has been convicted or found not guilty
by reason of mental illness, mental retardation or addiction of a
sexually violent offense and who suffers from a mental abnormality
or personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
(l) For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a person
that affects the emotional or volitional capacity of the person in
a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the
health and safety of other persons.
(m) For purposes of this article, the term "predatory act"
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Definitions.
As used in this article:
(a) "Adult" means a person who is at least
eighteen fifteen
years of age.
(b) "Child" means a person who has not attained the age of
eighteen fifteen years, or a person who is otherwise subject to the
juvenile jurisdiction of a court pursuant to this article.
(c) "Extrajudicial statement" means any utterance, written or
oral, which was made outside of court.
(d) "Juvenile" has the same meaning as the term "child".
(e) "Res gestae" means a spontaneous declaration made by a
person immediately after an event and before the person has had an
opportunity to conjure a falsehood.
(f) "Violation of a traffic law of West Virginia" means a
violation of any provision of chapter seventeen-a, seventeen-b,
seventeen-c or seventeen-d of this code except a violation of
section one or two, article four, chapter seventeen-c of this code
(hit and run) or of section one, article five of said chapter
(negligent homicide), section two of said article (driving under the influence of alcohol, controlled substances or drugs) or
section three of said article (reckless driving).
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate
courts and municipal courts; constitutional
guarantees; hearings; evidence and transcripts.
(a) The circuit court has original jurisdiction of proceedings
brought under this article.
(b) If during a criminal proceeding in any court it is
ascertained or appears that the defendant is under the age of
nineteen sixteen years and was under the age of
eighteen fifteen
years at the time of the alleged offense, the matter shall be
immediately certified to the juvenile jurisdiction of the circuit
court. The circuit court shall assume jurisdiction of the case in
the same manner as cases which are originally instituted in the
circuit court by petition.
(c) Notwithstanding any other provision of this article,
magistrate courts have concurrent juvenile jurisdiction with the
circuit court for a violation of a traffic law of West Virginia,
for a violation of section nine, article six, chapter sixty or
section nineteen, article sixteen, chapter eleven of this code, or
for any violation of chapter twenty of this code. Juveniles are
liable for punishment for violations of these laws in the same
manner as adults except that magistrate courts have no jurisdiction
to impose a sentence of incarceration for the violation of these
laws.
(d) Notwithstanding any other provision of this article, municipal courts have concurrent juvenile jurisdiction with the
circuit court for a violation of any municipal ordinance regulating
traffic, for any municipal curfew ordinance which is enforceable or
for any municipal ordinance regulating or prohibiting public
intoxication, drinking or possessing alcoholic liquor or
nonintoxicating beer in public places, or any other act prohibited
by section nine, article six, chapter sixty or section nineteen,
article sixteen, chapter eleven of this code. Municipal courts may
impose the same punishment for these violations as a circuit court
exercising its juvenile jurisdiction could properly impose, except
that municipal courts have no jurisdiction to impose a sentence of
incarceration for the violation of these laws.
(e) A juvenile may be brought before the circuit court for
proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be
adjudicated as a status offender or a juvenile delinquent; or
(2) By certification or transfer to the juvenile jurisdiction
of the circuit court from the criminal jurisdiction of the circuit
court, from any foreign court, or from any magistrate court or
municipal court in West Virginia.
(f) If a juvenile commits an act which would be a crime if
committed by an adult, and the juvenile is adjudicated delinquent
for that act, the jurisdiction of the court which adjudged the
juvenile delinquent continues until the juvenile becomes twenty-one
years of age. The court has the same power over that person that
it had before he or she became an adult, and has the further power to sentence that person to a term of incarceration:
Provided, That
any such term of incarceration may not exceed six months. This
authority does not preclude the court from exercising criminal
jurisdiction over that person if he or she violates the law after
becoming an adult or if the proceedings have been transferred to
the court's criminal jurisdiction pursuant to section ten of this
article.
(g) A juvenile is entitled to be admitted to bail or
recognizance in the same manner as an adult and shall be afforded
the protection guaranteed by Article III of the West Virginia
constitution.
(h) A juvenile has the right to be effectively represented by
counsel at all stages of proceedings under the provisions of this
article. If the juvenile or the juvenile's parent or custodian
executes an affidavit showing that the juvenile cannot afford an
attorney, the court shall appoint an attorney, who shall be paid in
accordance with article twenty-one, chapter twenty-nine of this
code.
(i) In all proceedings under this article, the juvenile shall
be afforded a meaningful opportunity to be heard. This includes
the opportunity to testify and to present and cross-examine
witnesses. The general public shall be excluded from all
proceedings under this article except that persons whose presence
is requested by the parties and other persons whom the circuit
court determines have a legitimate interest in the proceedings may
attend:
Provided, That in cases in which a juvenile is accused of committing what would be a felony if the juvenile were an adult, an
alleged victim or his or her representative may attend any related
juvenile proceedings, at the discretion of the presiding judicial
officer:
Provided,
however, That in any case in which the alleged
victim is a juvenile, he or she may be accompanied by his or her
parents or representative, at the discretion of the presiding
judicial officer.
(j) At all adjudicatory hearings held under this article, all
procedural rights afforded to adults in criminal proceedings shall
be afforded the juvenile unless specifically provided otherwise in
this chapter.
(k) At all adjudicatory hearings held under this article, the
rules of evidence applicable in criminal cases apply, including the
rule against written reports based upon hearsay.
(l) Except for res gestae, extrajudicial statements made by a
juvenile who has not attained fourteen years of age to
law-enforcement officials or while in custody are not admissible
unless those statements were made in the presence of the juvenile's
counsel. Except for res gestae, extrajudicial statements made by
a juvenile who has not attained sixteen years of age but who is at
least fourteen years of age to law-enforcement officers or while in
custody, are not admissible unless made in the presence of the
juvenile's counsel or made in the presence of, and with the consent
of, the juvenile's parent or custodian, and the parent or custodian
has been fully informed regarding the juvenile's right to a prompt
detention hearing, the juvenile's right to counsel, including appointed counsel if the juvenile cannot afford counsel, and the
juvenile's privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer,
adjudicatory and dispositional hearings held in circuit court. At
the conclusion of each of these hearings, the circuit court shall
make findings of fact and conclusions of law, both of which shall
appear on the record. The court reporter shall furnish a
transcript of the proceedings at no charge to any indigent juvenile
who seeks review of any proceeding under this article if an
affidavit is filed stating that neither the juvenile nor the
juvenile's parents or custodian have the ability to pay for the
transcript.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the juvenile, his or her counsel, and his or
her parents, guardians or custodians, the court shall conduct a
hearing to determine if juvenile jurisdiction should or must be
waived and the proceeding transferred to the criminal jurisdiction
of the court. Any motion filed in accordance with this section is
to state, with particularity, the grounds for the requested
transfer, including the grounds relied upon as set forth in
subsection (d), (e), (f) or (g) of this section, and the burden is
upon the state to establish the grounds by clear and convincing
evidence. Any hearing held under the provisions of this section is
to be held within seven days of the filing of the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial may be made
by or before the court until the court has determined whether the
proceeding is to be transferred to criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal
jurisdiction if a juvenile who has attained the age of fourteen
years makes a demand on the record to be transferred to the
criminal jurisdiction of the court. The case may then be referred
to magistrate or circuit court for further proceedings, subject to
the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that:
(1) The juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under sections
one, two and three, article two of said chapter; the crime of
robbery involving the use or presenting of firearms or other deadly
weapons under section twelve of said article; the crime of
kidnapping under section fourteen-a of said article; the crime of
first degree arson under section one, article three of said
chapter; or the crime of sexual assault in the first degree under
section three, article eight-b of said chapter; or
(2) The juvenile is at least fourteen years of age and has
committed an offense of violence to the person which would be a
felony if the juvenile was an adult:
Provided, That the juvenile has been previously adjudged delinquent for the commission of an
offense of violence to the person which would be a felony if the
juvenile was an adult; or
(3) The juvenile is at least fourteen years of age and has
committed an offense which would be a felony if the juvenile was an
adult:
Provided, That the juvenile has been twice previously
adjudged delinquent for the commission of an offense which would be
a felony if the juvenile was an adult.
(e) The court may transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that the
juvenile would otherwise satisfy the provisions of subdivision (1),
subsection (d) of this section, but who is younger than fourteen
years of age.
(f) The court may, upon consideration of the juvenile's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that the juvenile would otherwise satisfy
the provisions of subdivision (2) or (3), subsection (d) of this
section, but who is younger than fourteen years of age.
(g) The court may, upon consideration of the juvenile's mental
and physical condition, maturity, emotional attitude, home or
family environment, school experience and similar personal factors,
transfer a juvenile proceeding to criminal jurisdiction if there is
probable cause to believe that:
(1) The juvenile, who is at least fourteen years of age, has committed an offense of violence to a person which would be a
felony if the juvenile was an adult; or
(2) The juvenile, who is at least fourteen years of age, has
committed an offense which would be a felony if the juvenile was an
adult:
Provided, That the juvenile has been previously adjudged
delinquent for the commission of a crime which would be a felony if
the juvenile was an adult; or
(3) The juvenile, who is at least fourteen years of age, used
or presented a firearm or other deadly weapon during the commission
of a felony; or
(4) The juvenile has committed a violation of the provisions
of section four hundred one, article four, chapter sixty-a of this
code which would be a felony if the juvenile was an adult involving
the manufacture, delivery or possession with the intent to deliver
a narcotic drug. For purposes of this subdivision, the term
"narcotic drug" has the same definition as that set forth in
section one hundred one, article one of said chapter; or
(5) The juvenile has committed the crime of second degree
arson as defined in section two, article three, chapter sixty-one
of this code involving setting fire to or burning a public building
or church. For purposes of this subdivision, the term "public
building" means a building or structure of any nature owned, leased
or occupied by this state, a political subdivision of this state or
a county board of education and used at the time of the alleged
offense for public purposes. For purposes of this subdivision, the
term "church" means a building or structure of any nature owned, leased or occupied by a church, religious sect, society or
denomination and used at the time of the alleged offense for
religious worship or other religious or benevolent purpose, or as
a residence of a minister or other member of clergy.
(h) For purposes of this section, the term "offense of
violence" means an offense which involves the use or threatened use
of physical force against a person.
(i) If, after a hearing, the court directs the transfer of any
juvenile proceeding to criminal jurisdiction, it shall state on the
record the findings of fact and conclusions of law upon which its
decision is based or shall incorporate findings of fact and
conclusions of law in its order directing transfer.
(j) A juvenile who has been transferred to criminal
jurisdiction pursuant to the provisions of subsection (e), (f) or
(g) of this section, by an order of transfer, has the right to
either directly appeal an order of transfer to the supreme court of
appeals or to appeal the order of transfer following a conviction
of the offense of transfer. If the juvenile exercises the right to
a direct appeal from an order of transfer, the notice of intent to
appeal and a request for transcript is to be filed within ten days
from the date of the entry of any such order of transfer, and the
petition for appeal is to be presented to the supreme court of
appeals within forty-five days from the entry of the order of
transfer. The provisions of article five, chapter fifty-eight of
this code pertaining to the appeals of judgments in civil actions
applies to appeals under this chapter except as modified in this section. The court may, within forty-five days of the entry of the
order of transfer, by appropriate order, extend and reextend the
period in which to file the petition for appeal for additional
time, not to exceed a total extension of sixty days, as in the
court's opinion may be necessary for preparation of the transcript:
Provided, That the request for a transcript was made by the party
seeking appeal within ten days of entry of the order of transfer.
In the event any notice of intent to appeal and request for
transcript be timely filed, proceedings in criminal court are to be
stayed upon motion of the defendant pending final action of the
supreme court of appeals.
(k) When the defendant is over the age of fifteen years old,
yet younger than eighteen years old, the defendant may petition the
court to be treated as a juvenile. At which time the court shall
take into consideration the defendant's mental and physical
condition, maturity, emotional attitude, home or family
environment, school experience and similar personal factors and
make a determination as to whether the defendant may be transferred
to juvenile jurisdiction.
§49-5-18. Sealing of juvenile records.
(a) One year after the juvenile's eighteenth birthday, or one
year after personal or juvenile jurisdiction has terminated,
whichever is later, the records of a juvenile proceeding conducted
under this chapter, including, but not limited to, law-enforcement
files and records, shall be sealed by operation of law.
(b) The records of a juvenile proceeding in which a juvenile was transferred to criminal jurisdiction pursuant to the provisions
of section ten of this article shall be sealed by operation of law
if the juvenile is subsequently acquitted or found guilty only of
an offense other than an offense upon which the waiver or order of
transfer was based, or if the offense upon which the waiver or
order of transfer was based is subsequently dismissed.
(c) To seal juvenile records, they shall be returned to the
circuit court in which the case was pending and be kept in a
separate confidential file. The records shall be physically marked
to show that they have been sealed and shall be securely sealed and
filed in such a manner that no one can determine the identity of
the juvenile.
(d) Sealed records may not be opened except upon order of the
circuit court.
(e) Sealing of juvenile records has the legal effect of
extinguishing the offense as if it never occurred.
(f) The records of a juvenile convicted under the criminal
jurisdiction of the circuit court pursuant to subdivision (1),
subsection (d), section ten of this article may not be sealed.
(g) Any person who willfully violates this section shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars, or confined in the county
or regional jail for not more than six months, or both so fined and
confined, and shall be liable for damages in the amount of three
hundred dollars or actual damages, whichever is greater.
(h) The records of a juvenile convicted of a violent crime, a sexual offense or driving under the influence may not be sealed.
NOTE: The purpose of this bill is to lower the age of
criminal responsibility from age eighteen to age fifteen, require
that a sex offender under the age of eighteen years old be required
to register as a sex offender, and repeal provisions of the law
that require placing the juvenile records of violent offenders,
sexual offenders and driving under the influence offenders under
seal.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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