Senate Bill No. 205

(By Senators Tomblin, Mr. President and Sprouse,

By Request of the Executive)
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[Introduced January 18, 2006; referred to the Committee

on the Judiciary.]
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A BILL to amend and reenact §15-2C-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §15-12-2, §15-12-3, §15-12-5, §15-12-8 and §15-12-10 of said code; to amend said code by adding thereto two new sections, designated §15-12-6a and §15-12-11; to amend said code by adding thereto a new section, designated §18A-3-12; to amend and reenact §61-8B-3 and §61-8B-7 of said code; to amend and reenact §62-12-26 of said code; and to amend said code by adding thereto a new section, designated §62-12-27, all relating to the protection of the citizenry from sex offenders; providing for the submission of sex offender information to the central abuse registry; providing a definition for certain terms; providing for the release of sex offender information to the central abuse registry by the judiciary and agencies; providing for penalties for failure to properly register with the central abuse registry; creating new penalties for out-of-state sex offenders that fail to register; providing for verification of sex offender information by the central abuse registry; providing for penalties for assisting sex offenders in evading registration; increasing terms of incarceration for existing crimes; providing for supervised release requirements for sexually violent offenders; providing for electronic monitoring for sexually violent offenders on supervised release, probation and parole; and providing for school service personnel, contractors and service providers to be checked against the central abuse registry.

Be it enacted by the Legislature of West Virginia:

That §15-2C-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §15-12-2, §15-12-3, §15-12-5, §15-12-8 and §15-12-10 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §15-12-6a and §15-12-11; that said code be amended by adding thereto a new section, designated §18A-3-12; that §61-8B-3 and §61-8B-7 of said code be amended and reenacted; that §62-12-26 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §62-12-27, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-1. Definitions.

The following words when used in this article have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:

(a) "Central abuse registry" or "registry" means the registry created by this article which shall contain the names of individuals who have been convicted of a felony or a misdemeanor offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult or an adult receiving behavioral health services.

(b) "Child abuse and neglect" or "child abuse or neglect" means those terms as defined in section three, article one, chapter forty-nine of this code, and shall include any act with respect to a child which is a crime against the person pursuant to article two, chapter sixty-one of this code, any act which is unlawful pursuant to article eight-d of said chapter sixty-one, and any offense with respect to a child which is enumerated in section three of this article.

(c) "Abuse or neglect of an incapacitated adult" means "abuse," "neglect" and "incapacitated adult" as those terms are defined in section one, article six, chapter nine, and shall include any act with respect to an incapacitated adult which is a crime against the person pursuant to article two, chapter sixty-one of this code, and any offense with respect to an incapacitated adult which is enumerated in section three of this article.

(d) "Adult receiving behavioral health services" means a person over the age of eighteen years who is receiving any behavioral health service from a licensed behavioral health provider or any behavioral health provider whose services are paid for, in whole or in part, by medicaid or medicare.

(e) "Conviction" of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the merits, or entry of a plea of guilty or nolo contendere.

(f) "Residential care facility" means any facility where a child or an incapacitated adult or an adult receiving behavioral health services resides which is subject to registration, licensure or certification by the Department of Health and Human Resources, and shall include nursing homes, personal care homes, residential board and care homes, adult family care homes, group homes, legally unlicensed service providers, residential child care facilities, family based foster care homes, specialized family care homes and intermediate care facilities for the mentally retarded.

(g) "Misappropriation of property" means any act which is a crime against property under article three, chapter sixty-one of this code with respect to a child in a residential care facility or an incapacitated adult or an adult receiving behavioral health services in a residential care facility or a child or an incapacitated adult or an adult receiving behavioral health services who is a recipient of home care services.

(h) "Home care" or "home care services" means services provided to children or incapacitated adults or adults receiving behavioral health services in the home through a hospice provider, a community care provider, a home health agency, through the medicaid waiver program, or through any person when that service is reimbursable under the state medicaid program.

(i) "Requester" means the West Virginia Department of Education, any county school board that directly or indirectly through a school, contracts with a private entity for services that require the contractor to enter into the school when minor children are present, any residential care facility, any state licensed day care center, or any provider of home care services or an adult receiving behavioral health services providing to the central abuse registry the name of an individual and other information necessary to identify that individual, and either: (1) Certifying that the individual is being considered for employment by the requester or for a contractual relationship with the requester wherein the individual will provide services to a child or an incapacitated adult or an adult receiving behavioral health services for compensation; or (2) certifying that an allegation of abuse, neglect or misappropriation of property has been made against the individual.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.

(a) The provisions of this article apply both retroactively and prospectively.

(b) Any person 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 register at the West Virginia State Police detachment in the county of his or her residence, place of employment, occupation, and school and/or training facility which he or she attends and, in doing so, 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: Provided, That a post office box shall not be provided in lieu of a physical residential address; 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;

(7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color, license plate number and vehicle identification number; ~~and~~

(8) Information relating to any internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the internet; and

(9) Information related to any telephone or electronic paging device numbers that the registrant uses, including, but not limited to, residential, work and mobile telephone numbers.

(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, hereinafter referred to as a "qualifying offense", 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 business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status.

(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. Upon completion of the statement, the court shall provide a copy to the registry. 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 or telephone or electronic paging device numbers 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 persons' 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.

(n) For the purposes of this article, the term "business days", means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.
§15-12-3. Change in registry information.
When any person required to register under this article changes his or her residence, address, place of employment or occupation, ~~vehicle information required by section two of this article, or~~ school or training facility which he or she is attending, or motor vehicle, trailer or motor home information required by section two of this article, or when any of the other information required by this article changes, he or she shall, within ten business days, inform the West Virginia State Police of the changes in the manner prescribed by the Superintendent of State Police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§15-12-5. Distribution and disclosure of information; community information programs by prosecuting attorney and state police; petition to circuit court.

(a) Within five business days after receiving any notification as described in this article, the state police shall distribute a copy of the notification statement to:

(1) The supervisor of each county and municipal law-enforcement office and any campus police department in the city and county where the registrant resides, is employed or attends school or a training facility;

(2) The county superintendent of schools where the registrant resides, is employed or attends school or a training facility;

(3) The child protective services office charged with investigating allegations of child abuse or neglect in the county where the registrant resides, is employed or attends school or a training facility;

(4) All community organizations or religious organizations which regularly provide services to youths in the county where the registrant resides, is employed or attends school or a training facility;

(5) Individuals and organizations which provide day care services for youths or day care, residential or respite care, or other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides, is employed or attends school or a training facility; and

(6) The Federal Bureau of Investigation (FBI).

(b) Information concerning persons whose names are contained in the sexual offender registry is not subject to the requirements of the West Virginia Freedom of Information Act, as set forth in chapter twenty-nine-b of this code, and may be disclosed and disseminated only as otherwise provided in this article and as follows:

(1) When a person has been determined to be a sexually violent predator under the terms of section two-a of this article, the state police shall notify the prosecuting attorney of the county in which the person resides, is employed or attends a school or training facility. The prosecuting attorney shall cooperate with the state police in conducting a community notification program which is to include publication of the offender's name, photograph, place of residence, employment and education or training, as well as information concerning the legal rights and obligations of both the offender and the community. Information relating to the victim of an offense requiring registration may not be released to the public except to the extent the prosecuting attorney and the state police consider it necessary to best educate the public as to the nature of sexual offenses: Provided, That no victim's name may be released in any public notification pursuant to this subsection. No information relating to internet accounts, screen names, user names, or aliases or telephone or electronic paging device numbers a registrant has or uses may be released to the public with this notification program. The prosecuting attorney and State Police may conduct a community notification program in the county of residence, employment or where a person is attending school or a training facility of any person who is required to register for life under the terms of subdivision (2), subsection (a), section four of this article. Community notification may be repeated when determined to be appropriate by the prosecuting attorney;

(2) The state police shall maintain and make available to the public at least quarterly the list of all persons who are required to register for life according to the terms of subdivision (2), subsection (a), section four of this article. No information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names, or aliases or telephone or electronic paging device numbers a registrant has or uses may be released with this list. The method of publication and access to this list are to be determined by the superintendent; and

(3) A resident of a county may petition the circuit court for an order requiring the state police to release information about persons residing in that county who are required to register under section two of this article. The court shall determine whether information contained on the list is relevant to public safety and whether its relevance outweighs the importance of confidentiality. If the court orders information to be released, it may further order limitations upon secondary dissemination by the resident seeking the information. In no event may information concerning the identity of a victim of an offense requiring registration or information relating to internet accounts, screen names, user names or aliases a registrant has or uses be released.

(c) The state police may furnish information and documentation required in connection with the registration to authorized law enforcement, campus police and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the records will be used solely for law enforcement-related purposes. The state police may disclose information collected under this article to federal, state and local governmental agencies responsible for conducting pre-employment checks.

(d) An elected public official, public employee or public agency is immune from civil liability for damages arising out of any action relating to the provisions of this section except when the official, employee or agency acted with gross negligence or in bad faith.
§15-12-6a. Release of information to the Central Abuse Registry.

Upon the request of the entity maintaining the Central Abuse Registry, agencies in possession of records produced in conjunction with the investigation, prosecution, adjudication, incarceration, probation, parole, or pre-sentence review of a sex offender and/or any other records produced in conjunction with a sex offense shall provide those records to the entity maintaining the Central Abuse Registry.

§15-12-8. Failure to register or provide notice of registration changes; penalty.

(a) Except as provided in this section, any person required to register under this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or imprisoned in the county or regional jail not more than one year, or both: Provided, That each Each time ~~the~~ a person has a change in any of the registration information as required by this article and knowingly fails to register the change or changes, each failure to register each separate item of information changed shall constitute a separate offense under this section.

(b) Any person required to register under this article who is convicted of a second or subsequent offense of failing to register or provide a change in any information as required by this article or any person who is required to register for life pursuant to subsection (2), subdivision (a), section four of this article and who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Except as provided in this section, any person required to register for ten years or less pursuant to subdivision (1), subsection (a), section four of this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or confined in jail not more than one year, or both fined and imprisoned. Any person convicted of a second offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a third or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five years nor more than twenty-five years.

(c) ~~Any person required to register as a sexual~~ ~~predator~~ who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article is guilty of a felony and, upon conviction thereof, shall, for a first offense, be confined in a state correctional facility not less than two years nor more than ten years and for a second or subsequent offense, is guilty of a felony and shall be confined in a state correctional facility not less than five ~~years nor more than twenty~~ ~~years.~~ Any person required to register for life pursuant to this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article, or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person convicted of a second or subsequent offense under this subsection is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five years.

(d) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence. Any person required to register as a sexually violent predator pursuant to this article who knowingly provides false information or who refuses to provide accurate information when so required by terms of this article or who knowingly fails to register or knowingly fails to provide a change in any information as required by this article is guilty of a felony and, upon conviction thereof, shall, for a first offense, be confined in a state correctional facility not less than two years nor more than ten years and for a second or subsequent offense, is guilty of a felony and shall be confined in a state correctional facility not less than fifteen years nor more than twenty-five years.

(e) Any person required to register pursuant to section nine of this article who is convicted of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five years. Any person required to register pursuant to section nine of this article who is convicted of second or subsequent offense of failing to register as required by this article and who knowingly avoids registration or who knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten years nor more than twenty-five years.

(f) In addition to any other penalty specified for failure to register under this article, any person under the supervision of a probation officer, parole officer or any other sanction short of confinement in jail or prison who knowingly refuses to register or who knowingly fails to provide a change in information as required by this article shall be subject to immediate revocation of probation or parole and returned to confinement for the remainder of any suspended or unserved portion of his or her original sentence.
§15-12-10. Address verification.

The State Police shall verify addresses of those persons registered as sexually violent predators every ninety days and all other registered persons once a year. The State Police may require registrants to periodically submit to new fingerprints and photographs as part of the verification process. The method of verification shall be in accordance with internal management rules pertaining thereto promulgated by the superintendent under authority of section twenty-five, article two, chapter fifteen of this code. All registrants, including those for whom there has been no change in registration information since their initial registration or previous address verification, must respond to all verification inquiries or requests made by the State Police pursuant to this section.
§15-12-11. Additional penalties.
A person commits a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than ten thousand dollars or imprisoned in jail not more than one year, or both fined and imprisoned, when he or she:

(1) Knows that a sexual offender required to register under this article is not complying, or has not complied, with the registration requirements of this article; and

(2) Intends to assist the sexual offender in eluding a law-enforcement agency seeking to find said sexual offender to question the sexual offender about, or to arrest the sexual offender for, his or her noncompliance with the requirements of this article; and withholds information from the law-enforcement agency about the sexual offender's non-compliance with requirements of this article while aware of the whereabouts of the sexual offender or provides information to the law-enforcement agency regarding the sexual offender that he or she knows to be false.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL DEVELOPMENT.

§18A-3-12. Mandatory central abuse registry checks of school service personnel, contractors and service providers.

(a) Prior to permitting school service personnel, contractors or service providers direct contact with students or access to school grounds when students are present, the county school board shall check against the central abuse registry, established pursuant to article two-c, chapter fifteen of this code, and the United States Department of Justice National Sex Offender Public Registry, or its successor, the name and address of such school service personnel, contractors or service providers. For the purposes of this section, contractor and service provider shall include any vendor, individual or entity under contract with a county board.

(b) As of the effective date of this section, school service personnel, contractors or service providers already permitted direct contact with students or access to school grounds when students are present shall have their names and addresses checked against the central abuse registry within a reasonable time from the effective date of this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.

(a) A person is guilty of sexual assault in the first degree when:

(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:

(i) Inflicts serious bodily injury upon anyone; or

(ii) Employs a deadly weapon in the commission of the act; or

(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is eleven years old or less and is not married to that person.

(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than fifteen nor more than thirty-five years, or fined not less than one thousand dollars nor more than ten thousand dollars and imprisoned in a state correctional facility not less than fifteen nor more than thirty-five twenty-five years.
§61-8B-7. Sexual abuse in the first degree.

(a) A person is guilty of sexual abuse in the first degree when:

(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from forcible compulsion; or

(2) Such person subjects another person to sexual contact who is physically helpless; or

(3) Such person, being fourteen years old or more, subjects another person to sexual contact who is eleven years old or less.

(b) Any person who violates the provisions of this section ~~shall be~~ is guilty of a felony, and, upon conviction thereof, shall be imprisoned in ~~the penitentiary~~ a state correctional facility not less than ~~one year~~ two years nor more than ~~five~~ ten years, or fined not more than ten thousand dollars and imprisoned in ~~the penitentiary~~ a state correctional facility not less than ~~one year~~ two years nor more than ~~five~~ ten years.

CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.

§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.

(a) Notwithstanding any provision of this code to the contrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixty-one of this code or a felony violation of the provisions of article eight-b, eight-c or eight-d of said chapter may, as part of the sentence imposed at final disposition, be required to serve, in addition to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years: Provided, That a defendant convicted after the effective date of this provision of a sexually violent offense as defined in subdivision (i), section two, article twelve, chapter fifteen of this code shall be subject, in addition to any other penalty or condition imposed by the court, to supervised release for life. The period of supervised release imposed by the provisions of this section shall begin upon the expiration of any period of probation, the expiration of any sentence of incarceration or the expiration of any period of parole supervision imposed or required of the person so convicted, whichever expires later.

(b) Any person sentenced to a period of supervised release pursuant to the provisions of this section shall be supervised by the probation office of the sentencing court or by the community corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.

(c) A defendant sentenced to a period of supervised release shall be subject to any or all of the conditions applicable to a person placed upon probation pursuant to the provisions of section nine, article twelve, chapter sixty-one of this code: Provided, That any defendant sentenced to a period of supervised release pursuant to this section shall be required to participate in appropriate offender treatment programs or counseling during the period of supervised release unless the court deems such to no longer be appropriate or necessary and makes express findings in support thereof: Provided however, That a defendant convicted of a sexually violent offense as defined in subdivision (i), section two, article twelve, chapter fifteen of this code and sentenced to supervised release for life pursuant to subsection (a) of this section, shall be subject to electronic monitoring, as defined in section twenty-seven, article twelve of this chapter of this code, for the duration of their supervised release.

(d) The sentencing court may, based upon defendant's ability to pay, impose a supervision fee to offset the cost of supervision. Said fee shall not exceed fifty dollars per month. Said fee may be modified periodically based upon the defendant's ability to pay.

(e) Modification of conditions or revocation. -- The court may:

(1) Terminate a term of supervised release and discharge the defendant released at any time after the expiration of two years of supervised release, pursuant to the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice;

(2) Extend a period of supervised release if less than the maximum authorized period was previously imposed or modify, reduce or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, consistent with the provisions of the West Virginia Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;

(3) Revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this subdivision may not be required to serve more than the period of supervised release: Provided, That no person may serve a period of incarceration for a violation of supervised release which exceeds the maximum statutory period of confinement for the offense of conviction underlying the period of supervised release;

(4) Order the defendant to remain at his place of residence during nonworking hours and, if the court so directs, to have compliance monitored by telephone or electronic signaling devices, except that an order under this paragraph may be imposed only as an alternative to incarceration.

(f) Written statement of conditions. -- The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject and that it is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required.

(g) Supervised release following revocation. -- When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (a) of this section, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such term of supervised release shall not exceed the term of supervised release authorized by this section less any term of imprisonment that was imposed upon revocation of supervised release.

(h) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (f) of this section, a further term of supervised release extends beyond the expiration of the term of adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

§62-12-27. Mandatory electronic monitoring of sexually violent offenders on probation and parole; penalty for tampering with or destroying electronic monitoring device.

(a) A defendant convicted of a sexually violent offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code shall be subject, as a condition of his or her subsequent probation or parole, to electronic monitoring for the duration of said probation or parole.

(b) If probation or parole for a defendant convicted of a sexually violent offense as defined under subsection (i), section two, article twelve, chapter fifteen of this code is revoked by the court pursuant to this article and the court imposes a subsequent term of probation or parole following the revocation, the court must order electronic monitoring as a condition of any subsequent term of probation or parole.

(c) For the purposes of this section, "electronic monitoring" means the use of an electronic signaling device or apparatus approved by the Division of Corrections which is capable of recording or transmitting information regarding the offender's presence or nonpresence in a designated area. The Division of Corrections must select a system that actively monitors and identifies the defendant's location and timely reports or records the defendant's presence near or within a crime scene or a prohibited area or the defendant's departure from specified geographic limitations.

(d) A person who intentionally alters, tampers with, damages or destroys any electronic monitoring equipment, absent court or commission order, unless such person is the owner of the equipment, or an agent of the owner, performing ordinary maintenance and repair, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than three years nor more than ten years.

NOTE: The purpose of this bill is to protect the citizenry against sex offenders.

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

§15-12-6a, §15-12-11, §18A-3-12, and §62-12-27 are new; therefore, underscoring and strike-throughs have been omitted.