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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