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Committee Substitute House Bill 2104 History

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hb2104 sub
COMMITTEE SUBSTITUTE

FOR

H. B. 2104


(By Delegate Rowan)

(Originating in the Committee on the Judiciary.)


[January 14, 2008]


A BILL to amend and reenact §61-11A-2 and §61-11A-3 of the Code of West Virginia, 1931, as amended, all relating to ensuring victims' rights to testify at sentencing in criminal cases; requiring review by the sentencing court of the notice provided to a felony victim prior to sentencing when the victim does not respond or tender an oral or written statement for consideration at sentencing; requiring the postponement of the sentencing hearing under certain circumstances when notice to the victim is deemed inadequate; clarifying adequate notice; requiring court review and confirmation that the statutory requirements pertaining to victim impact statements have been met, prior to sentencing.

Be it enacted by the Legislature of West Virginia:
That §61-11A-2 and §61-11A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
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 for the record if the victim notifies the court of his or her desire to make such a statement after receiving the notification provided in subsection (c) of this section. If the victim fails to so notify the court after receiving such notice, 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 probation officer shall forthwith file any such statement delivered to his or her 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.
(c) Within a reasonable time, prior to the imposition of sentence upon such 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 crime or in the case of a minor, the parent or guardian of such minor, or the fiduciary of his or her estate, if he or she 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. A copy of the written notice shall be filed with the court together with a description of the manner by which it was transmitted to the victim, or to the victim's parent, guardian or fiduciary, as appropriate. In the event that the address of the aforesaid victim, parent, guardian or fiduciary is unknown to the prosecutor at the time of the notice, the prosecutor shall forward the notice to the victim's last known address and describe the efforts made to locate the victim.
(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.
(e) If the victim is not present at the time set for sentencing or fails to notify the court of his or her desire to make a statement, and has not submitted any written statement as provided, the court shall ascertain on the record whether the victim has been given sufficient notice as required by subsection (c) of this section. If the notice given to the victim is insufficient, the court shall postpone sentencing to allow sufficient notice to be given. If the notice given to the victim is sufficient, the victim's failure to appear or to so notify the court shall constitute a waiver of the right to make an oral statement. In the event that the victim's current address is unknown to the prosecutor, and the court finds that the prosecutor made a good faith effort to determine the victim's current address without success, service upon the victim's last known address shall be deemed sufficient.
§61-11A-3. Victim impact statement; when required; contents; use; right of defendant to review and present evidence.

(a) In every case in which a presentence report is ordered by the court, such presentence report shall contain a victim impact statement unless the court orders otherwise, if the defendant, in committing a felony or misdemeanor, caused physical, psychological or economic injury or death of the victim.
(b) The victim impact statement shall be prepared by the probation officer and shall include the identity of the victim, an itemization of any economic loss suffered by the victim as a result of the offense, a description of the nature and extent of any physical or psychological injury suffered by the victim as a result of the offense, the details of any change in the victim's personal welfare, lifestyle or family relationships as a result of the offense, whether there has been any request for psychological or medical services initiated by the victim or the victim's family as a result of the offense and such other information related to the impact of the offense upon the victim as may be required by the court.
(c) If the court does not order a presentence investigation and report, the prosecuting attorney may request that the probation officer prepare a victim impact statement. The victim impact statement shall be considered by the court as a factor in determining the appropriate sentence. Additionally, the statement may be utilized for the determination of claims by victims of crimes pursuant to the provisions of article two-a, chapter fourteen of this code.
(d) In cases that involve child victims of offenses defined in section twelve, article eight of this chapter or article eight-b or eight-d of this chapter, any victim impact statement in a presentence report may include a statement from a therapist, psychologist or physician who is providing treatment to the child as to the recommendations regarding the effect that possible disposition may have on the child.
(e) A victim impact statement prepared in accordance with the provisions of this section, other than for claims by victims of crimes pursuant to the provisions of article two-a, chapter fourteen of this code, shall be made available to the defendant, and his or her counsel if he or she is so represented, at least ten days prior to the date set for pronouncement of his or her sentence. The court shall, upon motion by or on behalf of the defendant, grant the defendant a hearing, whereby he or she may introduce testimony or other information related to any alleged factual inaccuracies in the statement.
(f) Prior to imposing a sentence, the court shall ascertain, on the record, whether the requirements of this section have been satisfied.
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