WEST virginia legislature
2019 regular session
Introduced
House Bill 2508
By Delegate Steele, Paynter, Mandt, Wilson, Foster and Kessinger
[Introduced January 17,
2019; Referred
to the Committee on the Judiciary.]
A BILL to amend and reenact §62-12-2 of the Code of West Virginia, 1931, as amended, relating to making certain defendants who have been convicted of two or more prior unrelated felonies not a part of the same criminal transaction ineligible for probation; and establishing a procedure.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons Persons
who are found guilty of or plead guilty to any felony, the maximum penalty for
which is less than life imprisonment, and all persons who are found guilty of
or plead guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of §61-11-18 and §61-11-19 of this code: Provided,
That those persons have not been
convicted of two or more unrelated felony offenses, not arising from the same
criminal transaction on a prior occasion in this jurisdiction or any other
jurisdiction within the United States.
(b) The provisions of §62-12-2(a) of this code to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. 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.
(c)(1) The existence of any
fact which would make any person ineligible for probation under §62-12-2(b) of
this code to because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be applicable unless
such fact is clearly stated and included in the indictment or presentment by
which such person is charged and is either: (i) (A) Found by the
court upon a plea of guilty or nolo contendere; or (ii) (B) found
by the jury, if the matter be tried before a jury, upon submitting to such jury
a special interrogatory for such purpose; or (iii) (C) found by
the court, if the matter be tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year 1981:
(A) Shall apply to all applicable offenses occurring on or after August 1, of that year;
(B) Shall apply with respect to the contents of any indictment or presentment returned on or after August 1, of that year irrespective of when the offense occurred;
(C) 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 August 1, 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;
(D) 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; and
Insofar as such amendments relate to mandatory sentences without probation, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) The court, upon sentencing the defendant, shall make inquiry of the officer preparing the pre-sentence investigation report, as to whether the defendant has two or more prior felony convictions, and the defendant shall be afforded the opportunity to confirm or deny the assertion of the officer preparing the report. If the defendant denies the assertion of the officer preparing the report, the state, by its counsel, shall present such evidence to the court as it may have in its possession concerning the prior felony convictions of the defendant, and the defendant shall present such evidence to the court as the defendant may have concerning the prior felony convictions of the defendant. The court, after hearing the evidence of both parties, shall determine by a preponderance of the evidence whether the defendant has been convicted of two or more prior unrelated felonies, not arising from the same criminal transaction on a prior occasion in this jurisdiction or any jurisdiction within the United States. If the defendant confirms the assertion of the officer or be found by the court to have committed two prior unrelated felonies, not arising from the same criminal transaction on a prior occasion in this jurisdiction or any jurisdiction within the United States, the defendant is not eligible for a grant of probation under this article.
(d) (e) 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.
(e) (f) In the case of
any person who has been found guilty of, or pleaded guilty to, a violation of
the provisions of §61-8-12, §61-8B-1 et seq., §61-8C-1 et seq. or
§61-8D-5 of this code, such person shall only be eligible for probation after
undergoing a physical, mental and psychiatric study and diagnosis which shall
include an on-going treatment plan requiring active participation in sexual
abuse counseling at a mental health facility or through some other approved
program: Provided, 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 probationer to do harm to any person, animal, institution or property,
in which case such information may be released only to such persons as might be
necessary for protection of the said person, animal, institution or property.
Within 90 days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
(f) (g) Any person who
has been convicted of a violation of the provisions of §61-8B-1 et seq., §61-8C-1
et seq. §61-8D-5, §61-8D-6, §61-2-14, §61-8-12 or §61-8-13 of this code,
or of a felony violation involving a minor of §61-8-6 or §61-8-7 of this code,
or of a similar provision in another jurisdiction shall be required to be
registered upon release on probation. Any person who has been convicted of an
attempt to commit any of the offenses set forth in this subsection shall also
be registered upon release on probation.
(g) (h) The probation
officer shall within three days of release of the offender, send written notice
to the State Police of the release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent predator as defined in §15-12-2a of this code, the notice shall also include:
(i) (A) Identifying factors, including physical
characteristics;
(ii) (B) History of the offense; and
(iii) (C) Documentation of any treatment received
for the mental abnormality or personality disorder.
NOTE: The purpose of this bill is to make certain defendants who have been convicted of two or more prior unrelated felonies not a part of the same criminal transaction ineligible for probation. The bill also establishes a procedure.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.