H. B. 2798


(By Delegates Manuel and Doyle)

[Introduced January 10, 1996; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact section one, article four, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section two, article eleven-a, chapter sixty-one of said code; to amend and reenact section seventeen-a, article one-c; section one, article three; and section thirteen, article twelve, all of chapter sixty-two of said code, all relating to trial proceedings involving crimes of murder and sexual assault; requiring prosecuting attorneys to assign lawyers with at least three years of trial experience in the prosecution of these types of crimes; requiring judges to instruct juries that convicted defendants are eligible for parole and good time; permitting victims or victim's family or representative to address the defendant at the sentencing; what is to be contained in prisoner's expressive statement of attitude in board of probation and parole hearing; and providing that prisoner may not be paroled if the trial judge and prosecuting attorney object.

Be it enacted by the Legislature of West Virginia:
That section one, article four, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section two, article eleven-a, chapter sixty-one of said code be amended and reenacted; that section seventeen-a, article one-c; section one, article three; and section thirteen, article twelve, all of chapter sixty-two of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 4. PROSECUTING ATTORNEY, REWARDS AND LEGAL ADVICE.

§7-4-1. Duties of prosecuting attorney; further duties upon
request of attorney general.

It shall be the duty of the prosecuting attorney to attend to the criminal business of the state in the county in which he is elected and qualified, and when he has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender, and may in such case issue or cause to be issued a summons for any witness he may deem material. Every public officer shall give him information of the violation of any penal law committed within his county. It shall also be the duty of the prosecuting attorney to attend to civil suits in such county in which the state, or any department, commission or board thereof, is interested, and to advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which such county or any county board of education is interested.
In any case involving the trial of a person charged with an offense of murder or sexual assault, it shall be the duty of the prosecuting attorney to assign an assistant prosecuting attorney or other staff attorney in the office who has at least three years of criminal trial experience to handle the trial of such cases.
It shall be the duty of the prosecuting attorney to keep his office open in the charge of a responsible person during the hours polls are open on general, primary and special county-wide election days, and the prosecuting attorney, or his assistant, if any, shall be available for the purpose of advising election officials. It shall be the further duty of the prosecuting attorney, when requested by the attorney general, to perform or to assist the attorney general in performing, in the county in which he is elected, any legal duties required to be performed by the attorney general, and which are not inconsistent with the duties of the prosecuting attorney as the legal representative of such county. It shall also be the duty of the prosecuting attorney, when requested by the attorney general, to perform or to assist the attorney general in performing, any legal duties required to be performed by the attorney general, in any county other than that in which such the prosecuting attorney is elected, and for the performance of any such duties in any county other than that in which such prosecuting attorney is elected he shall be paid his actual expenses.
Upon the request of the attorney general the prosecuting attorney shall make a written report of the state and condition of the several causes in which the state is a party, pending in his county, and upon any matters referred to him by the attorney general as provided by law.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.

(a) For the purposes of this section, "victim" means a person who is a victim of a felony, the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family.
(b) Prior to the imposition of sentence upon any defendant who has been found guilty of a felony or has pleaded guilty or nolo contendere to any felony, the court shall permit the victim of the crime to appear before the court for the purpose of making an oral statement addressed to the defendant for the record if the victim notifies the court of his desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to so notify the court such failure shall constitute a waiver of the right to make an oral statement. In lieu of such appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such The probation officer shall forthwith file any such statement delivered to his office with the sentencing court, and the statement shall be made a part of the record at the sentencing hearing. Any such statement, whether oral or written, shall relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced: Provided, That any such oral statement addressed to the defendant in a case of murder or sexual assault shall not be critical of the judicial proceeding, shall only describe the subjective emotional experience of the loss to the defendant and the statement shall be given with reasonable decorum.
(c) Within a reasonable time, prior to the imposition of sentence upon such the defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall in writing advise the person who was the victim of such the crime or in the case of a minor, the parent or guardian of such minor, or the fiduciary of his estate, if he be then deceased, of the date, time and place of the original sentencing hearing, and of the victim's rights to submit a written or oral statement to the sentencing court as hereinabove provided.
(d) The oral or written statement given or submitted by any victim in accordance with the provisions of this section shall be in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 1C. BAIL.

§62-1C-17a. Bail in situations of alleged child abuse.

(a) When the offense charged is an offense defined in article eight-d, chapter sixty-one of this code, it shall be a condition of bond that the defendant shall not live in the same residence as and shall have no contact with the victim of the alleged offense and the court may make such other conditions of bond with respect to contact with the victim as it deems necessary under the circumstances to protect the child: Provided, That the requirement of no contact with the victim of the alleged offense and all other conditions of bond may be reviewed by summary petition from the magistrate court to the circuit court or from the circuit court to the supreme court of appeals or any justice thereof.
(b) In cases where the charge is a sexual offense, as defined in chapter sixty-one of this code, against any person, the court, upon a showing of cause, may make such conditions of bond on the defendant or on any witness bond issued under section fifteen of this article as it deems necessary with respect to contact with the victim: Provided, That where any person is arrested or indicted for any such sexual offense while awaiting trial for another sexual assault trial, that person shall be denied bail or bond and be imprisoned.
ARTICLE 3. TRIAL OF CRIMINAL CASES.

§62-3-1. Time for trial; depositions of witnesses for accused; counsel, copy of indictment, and list of jurors for accused; remuneration of appointed counsel.

When an indictment is found in any county, against a person for a felony or misdemeanor, the accused, if in custody, or if he appear in discharge of his recognizance, or voluntarily, shall, unless good cause be shown for a continuance, be tried at the same term. If any witness for the accused be a nonresident of the state, or absent therefrom in any service or employment, so that service of a subpoena cannot be had upon him in this state, or is aged or infirm so that he cannot attend upon the court at the trial, the accused may present to the court in which the case is pending, or to the judge thereof in vacation, an affidavit showing such facts, and stating therein what he expects to prove by any such witness, his name, residence, or place of service or employment; and if such the court or judge be of the opinion that the evidence of any such witness, as stated in such affidavit, is necessary and material to the defense of the accused on his trial, an order may be made by such the court or judge for the taking of the deposition of any such witness upon such notice to the prosecuting attorney, of the time and place of taking the same, as the court or judge may prescribe; and in such the order the court or judge may authorize the employment of counsel, practicing at or near the place where the deposition is to be taken, to cross-examine the witness on behalf of the state, the reasonable expense whereof shall be paid out of the treasury of the state, upon certificate of the court wherein the case is pending. Every deposition so taken may, on the motion of the defendant, so far as the evidence therein contained is competent and proper, be read to the jury on the trial of the case as evidence therein. A court of record may appoint counsel to assist an accused in criminal cases at any time upon request. A copy of the indictment and of the list of the jurors selected or summoned for his trial, as provided in section three of this article, shall be furnished him, upon his request, at any time before the jury is impaneled. In every case where the court appoints counsel for the accused and the accused presents an affidavit showing that he cannot pay therefor, the attorney so appointed shall be paid for his services and expenses in accordance with the provisions of article twenty-one, chapter twenty-nine of this code.
The judge shall instruct the jury, as part of the court's charge to the jury, either at the beginning of the trial, or at the close of the presentation of evidence, and before argument of counsel for the state and the defendant: (1) That the defendant, if convicted, is eligible for parole after serving one third of the sentence of the crime for which he or she is convicted, and can be released on parole at the discretion of the board of probation and parole as early as the time when one third of the sentence has been served; and (2) that a convicted defendant for every day served "well-behaved and without incident" has one day taken off the time served.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-13. Powers and duties of board; eligibility for parole; procedure for granting parole.

(a) The board of parole, whenever it is of the opinion that the best interests of the state and of the prisoner will be subserved served thereby, and subject to the limitations hereinafter provided, shall release any such prisoner on parole for such terms and upon such conditions as are provided by this article. Any prisoner of a penitentiary of this state, to be eligible for parole:
(1)(A) Shall have served the minimum term of his or her indeterminate sentence, or shall have served one fourth of his or her definite term sentence, as the case may be, except that in no case shall any person who committed, or attempted to commit a felony with the use, presentment or brandishing of a firearm, be eligible for parole prior to serving a minimum of three years of his or her sentence or the maximum sentence imposed by the court, whichever is less: Provided, That any person who committed, or attempted to commit, any violation of section twelve, article two, chapter sixty-one of this code, with the use, presentment or brandishing of a firearm, shall not be eligible for parole prior to serving a minimum of five years of his or her sentence or one third of his or her definite term sentence, whichever shall be the greater. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm. No person is ineligible for parole under the provisions of this subdivision because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm unless such fact is clearly stated and included in the indictment or presentment by which such person was charged and was either: (i) Found by the court at the time of trial upon a plea of guilty or nolo contendere; or (ii) found by the jury, upon submitting to such jury a special interrogatory for such purpose if the matter was tried before a jury; or (iii) found by the court, if the matter was tried by the court without a jury.
For the purpose of this section, the term "firearm" shall mean any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive, gunpowder or any other similar means.
(B) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one:
(i) Shall apply to all applicable offenses occurring on or after the first day of August of that year;
(ii) Shall apply with respect to the contents of any indictment or presentment returned on or after the first day of August of that year irrespective of when the offense occurred;
(iii) Shall apply with respect to the submission of a special interrogatory to the jury and the finding to be made thereon in any case submitted to such jury on or after the first day of August of that year or to the requisite findings of the court upon a plea of guilty or in any case tried without a jury: Provided, That the state shall give notice in writing of its intent to seek such finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such finding shall be sought as fully as such grounds are otherwise required to be stated in an indictment, unless the grounds therefor are alleged in the indictment or presentment upon which the matter is being tried;
(iv) Shall not apply with respect to cases not affected by such amendment and in such cases the prior provisions of this section shall apply and be construed without reference to such amendment.
Insofar as such amendments relate to mandatory sentences restricting the eligibility for parole, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(2) Shall not be under punishment or in solitary confinement for any infraction of prison rules;
(3) Shall have maintained a record of good conduct in prison for a period of at least three months immediately preceding the date of his or her release on parole;
(4) Shall have submitted to the board a written parole release plan setting forth proposed plans for his or her place of residence, employment and, if appropriate, his or her plans regarding education and post-release counseling and treatment, said parole release plan having been approved by the commissioner of corrections or his or her authorized representative;
(5) Shall have satisfied the board that if released on parole he or she will not constitute a danger to the community.
Except in the case of one serving a life sentence, no person who has been previously twice convicted of a felony may be released on parole until he or she has served the minimum term provided by law for the crime for which he or she was convicted. No person sentenced for life may be paroled until he or she has served ten years, and no person sentenced for life who has been previously twice convicted of a felony may be paroled until he or she has served fifteen years. In the case of a person sentenced to any penal institution of this state, it shall be the duty of the board, as soon as such person becomes eligible, to consider the advisability of his or her release on parole. If, upon such consideration, parole be denied, the board shall at least once a year reconsider and review the case of every prisoner so eligible, which reconsideration and review shall be by the entire board. If parole be denied, the prisoner shall be promptly notified.
(b) In the case of any person sentenced to or confined under sentence in any city or county jail in this state, the board shall act only upon written application for parole. If such jail prisoner is under sentence on a felony conviction, the provisions hereof relating to penitentiary prisoners shall apply to and control his or her release on parole. If such person is serving time on a misdemeanor conviction, he or she is eligible for parole consideration, upon receipt of his or her written parole application and after time for probation release by the sentencing court or judge has expired.
(c) The board shall, with the approval of the governor, adopt rules and regulations governing the procedure in the granting of parole. No provision of this article and none of the rules and regulations adopted hereunder are intended or shall be construed to contravene, limit or otherwise interfere with or affect the authority of the governor to grant pardons and reprieves, commute sentences, remit fines or otherwise exercise his or her constitutional powers of executive clemency.
The board shall be charged with the duty of supervising all probationers and parolees whose supervision may have been undertaken by this state by reason of any interstate compact entered into pursuant to the uniform act for out of state parolee supervision.
(d) When considering a penitentiary prisoner for release on parole, the board of parole shall have before it an authentic copy of or report on the prisoner's current criminal record as provided through the department of public safety of West Virginia, the United States department of justice or other reliable criminal information sources and written reports of the warden or superintendent of the penitentiary, as the case may be, to which such prisoner is sentenced:
(1) On the prisoner's conduct record while in prison, including a detailed statement showing any and all infractions of prison rules by the prisoner and the nature and extent of discipline and punishment administered therefor;
(2) On improvement or other changes noted in the prisoner's mental and moral condition while in prison, including a statement expressive of the prisoner's current attitude toward society in general, toward the judge who sentenced him or her, toward the prosecuting attorney who prosecuted him or her, toward the policeman or other officer who arrested the prisoner, toward the victim or victim's family and trial witnesses and toward the crime for which he or she is under sentence and his or her previous criminal record;
(3) On the prisoner's industrial record while in prison, showing the nature of his or her prison work or occupation and the average number of hours per day he or she has been employed in prison industry and recommending the nature and kinds of employment which he or she is best fitted to perform and in which the prisoner is most likely to succeed when he or she leaves prison;
(4) On physical, mental and psychiatric examinations of the prisoner conducted, insofar as practicable, within the two months next preceding parole consideration by the board.
The board may waive the requirement of any such report when not available or not applicable as to any prisoner considered for parole but, in every such case, shall enter in the record thereof its reason for such waiver: Provided, That in the case of a prisoner who is incarcerated because such prisoner has been found guilty of, or has pleaded guilty to a felony under the provisions of section twelve, article eight, chapter sixty-one of this code or under the provisions of article eight-b or eight-c of chapter sixty-one, the board may not waive the report required by this subsection and the report shall include a study and diagnosis which shall include an on-going treatment plan requiring active participation in sexual abuse counseling at an approved mental health facility or through some other approved program: Provided, however, That nothing disclosed by the person during such study or diagnosis shall be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any court of this state, unless such information disclosed shall indicate the intention or plans of the parolee to do harm to any person, animal, institution, or to property. Progress reports of outpatient treatment shall be made at least every six months to the parole officer supervising such person. In addition, in such cases, the parole board shall inform the prosecuting attorney of the county in which the person was convicted of the parole hearing and shall request that the prosecuting attorney inform the parole board of the circumstances surrounding a conviction or plea of guilty, plea bargaining and other background information that might be useful in its deliberations. The board shall also notify the victim, or the parents or guardian of the victim if the victim is still a minor, of the person being considered for parole in such a case.
Before releasing any penitentiary prisoner on parole, the board of parole shall arrange for the prisoner to appear in person before the board and the board may examine and interrogate him or her on any matters pertaining to his or her parole, including reports before the board made pursuant to the provisions hereof. The board shall reach its own written conclusions as to the desirability of releasing such prisoner on parole: Provided, That its conclusions shall not include a decision to parole a prisoner when the judge presiding over the trial of that prisoner and the prosecuting attorney charged with the prosecution of that prisoner oppose release on parole. The warden or superintendent shall furnish all necessary assistance and cooperate to the fullest extent with the board of parole. All information, records and reports received by the board shall be kept on permanent file.
The board and its designated agents shall at all times have access to inmates imprisoned in any penal or correctional institutions of this state or in any city or county jail in this state, and shall have the power to obtain any information or aid necessary to the performance of their duties from other departments and agencies of the state or from any political subdivision thereof.
The board shall, if so requested by the governor, investigate and consider all applications for pardon, reprieve or commutation and shall make recommendation thereon to the governor.
Prior to making such recommendation and prior to releasing any penitentiary person on parole, the board shall notify the sentencing judge and prosecuting attorney at least ten days before such recommendation or parole. Any person released on parole shall participate as a condition of parole in the litter control program of the county to the extent directed by the board, unless the board specifically finds that this alternative service would be inappropriate.



NOTE: The purpose of this bill is to amend trial proceedings involving crimes of murder and sexual assault. It requires prosecuting attorneys to assign lawyers with at least three years of trial experience in the prosecution of these types of crimes. It requires judges to instruct juries that convicted defendants are eligible for parole and good time. It permits victims or victim's family or representative to address the defendant at the sentencing. It adds to what is to be contained in prisoner's expressive statement of attitude in board of probation and parole hearing. And it provides that a prisoner may not be paroled if the trial judge and prosecuting attorney involved in the prosecution of the prisoner object the release on parole.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.