Senate Bill No. 3
(By Senators Hunter and Barnes)
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[Introduced January 9, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §62-3-22, relating to
providing mandatory review of life without parole sentence by
the Supreme Court of Appeals.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §62-3-22, to read as
follows:
ARTICLE 3. TRIAL OF CRIMINAL CASES.
§62-3-22. Review of sentences of life without the possibility of
parole.
(a) Whenever a defendant is sentenced to life without parole,
upon entry of the judgment and sentence in the trial court the
sentence shall be reviewed on the record by the Supreme Court of
Appeals.
(b) Within ten days of the entry of a judgment and sentence
imposing the life without parole penalty, the clerk of the trial court shall transmit notice of the judgment to the Clerk of the
Supreme Court of Appeals and to the parties. The notice shall
include the caption of the case, its case number, the defendant's
name, the crime or crimes of which the defendant was convicted, the
sentence imposed, the date of entry of judgment and sentence, and
the names and addresses of the attorneys for the parties. The
notice shall vest the Supreme Court of Appeals with the
jurisdiction to review the sentence of life without parole as
provided by this chapter. The failure of the clerk of the trial
court to transmit the notice as required does not prevent the
Supreme Court of Appeals from conducting the sentence review.
(c) Within ten days after the entry of a judgment and sentence
imposing the life without parole penalty, the clerk of the trial
court shall cause the preparation of a verbatim report of the trial
proceedings to be commenced.
(d) Within five days of the filing and approval of the
verbatim report of proceedings, the clerk of the trial court shall
transmit the verbatim report of proceedings together with copies of
all of the clerk's papers to the Clerk of the Supreme Court of
Appeals. The Clerk of the Supreme Court of Appeals shall
acknowledge receipt of these documents by providing notice of
receipt to the clerk of the trial court, the defendant or his or
her attorney and the prosecuting attorney.
(e) In all cases in which a person is convicted of aggravated
first degree murder, the trial court shall, within thirty days
after the entry of the judgment and sentence, submit a report to the Clerk of the Supreme Court of Appeals, to the defendant or his
or her attorney, and to the prosecuting attorney which provides the
information specified under subdivisions (1) through (8) of this
subsection. The report shall be in the form of a standard
questionnaire prepared and supplied by the Supreme Court of Appeals
and shall include the following:
(1) Information about the defendant, including the following:
(A) Name, date of birth, gender, marital status and race and
ethnic origin;
(B) Number and ages of children;
(C) Whether his or her parents are living, and date of death
where applicable;
(D) Number of children born to his or her parents;
(E) The defendant's educational background, intelligence
level, and intelligence quotient;
(F) Whether a psychiatric evaluation was performed, and if so,
whether it indicated that the defendant was:
(i) Able to distinguish right from wrong;
(ii) Able to perceive the nature and quality of his or her
act; and
(iii) Able to cooperate intelligently with his or her defense;
(G) Any character or behavior disorders found or other
pertinent psychiatric or psychological information;
(H) The work record of the defendant;
(I) A list of the defendant's prior convictions including the
offense, date and sentence imposed; and
(J) The length of time the defendant has resided in West
Virginia and the county in which he or she was convicted.
(2) Information about the trial, including:
(A) The defendant's plea;
(B) Whether defendant was represented by counsel;
(C) Whether there was evidence introduced or instructions
given as to defenses to aggravated first degree murder, including
excusable homicide, justifiable homicide, insanity, duress,
entrapment, alibi, intoxication or other specific defense;
(D) Any other offenses charged against the defendant and tried
at the same trial and whether they resulted in conviction;
(E) What aggravating circumstances were alleged against the
defendant and which of these circumstances was found to have been
applicable; and
(F) Names and charges filed against other defendants if tried
jointly and disposition of the charges.
(3) Information concerning the sentencing proceeding,
including:
(A) The date the defendant was convicted and date the
sentencing proceeding commenced;
(B) Whether the jury for the sentencing proceeding was the
same jury that returned the guilty verdict, providing an
explanation if it was not;
(C) Whether there was evidence of mitigating circumstances;
(D) Whether there was, in the court's opinion, credible
evidence of the mitigating circumstances; and
(E) The sentence imposed.
(4) Information about the victim, including:
(A) Whether he or she was related to the defendant by blood or
marriage;
(B) The victim's occupation and whether he or she was an
employer or employee of the defendant;
(C) Whether the victim was acquainted with the defendant, and
if so, how well;
(D) The length of time the victim resided in West Virginia
and the county;
(E) Whether the victim was the same race or ethnic origin, or
both, as the defendant;
(F) Whether the victim was the same sex as the defendant;
(G) Whether the victim was held hostage during the crime and
if so, how long;
(H) The nature and extent of any physical harm or torture
inflicted upon the victim prior to death;
(I) The victim's age; and
(J) The type of weapon used in the crime, if any.
(5) Information about the representation of the defendant,
including:
(A) Date counsel secured;
(B) Whether counsel was retained or appointed, including the
reason for appointment;
(C) The length of time counsel has practiced law and nature of
his or her practice; and
(D) Whether the same counsel served at both the trial and
special sentencing proceeding, and if not, why not.
(6) General considerations, including:
(A) Whether the race and ethnic origin of the defendant,
victim, or any witness was an apparent factor at trial;
(B) What percentage of the county population is the same race
or ethnic origin, or both, of the defendant;
(C) Whether members of the defendant's or victim's race and
ethnic origin were represented on the jury;
(D) Whether there was evidence that such members were
systematically excluded from the jury;
(E) Whether the sexual orientation of the defendant, victim or
any witness was a factor in the trial;
(F) Whether any specific instruction was given to the jury to
exclude race, ethnic origin or sexual orientation as an issue;
(G) Whether there was extensive publicity concerning the case
in the community;
(H) Whether the jury was instructed to disregard the
publicity;
(I) Whether the jury was instructed to avoid any influence of
passion, prejudice or any other arbitrary factor when considering
its verdict or its findings in the special sentencing proceeding;
(J) The nature of the evidence resulting in such instruction;
and
(K) General comments of the trial judge concerning the
appropriateness of the sentence considering the crime, defendant and other relevant factors.
(7) Information about the chronology of the case, including
the date that:
(A) The defendant was arrested;
(B) Trial began;
(C) The verdict was returned;
(D) Post-trial motions were ruled on;
(E) Special sentencing proceeding began;
(F) Sentence was imposed;
(G) Trial judge's report was completed; and
(H) Trial judge's report was filed.
(8) The trial judge shall sign and date the questionnaire when
it is completed.
(f) The sentence review required by this section is in
addition to any appeal. The sentence review and an appeal shall be
consolidated for consideration. The defendant and the prosecuting
attorney may submit briefs within the time prescribed by the
Supreme Court of Appeals and present oral argument to the court.
(g) With regard to the sentence review, the Supreme Court of
Appeals shall determine:
(1) Whether there was sufficient evidence to justify the
sentence;
(2) Whether the sentence of life without parole is excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. For the purposes of
this subsection, "similar cases" means cases in which the judge or jury considered the imposition of life without parole punishment
regardless of whether it was imposed or executed;
(3) Whether the sentence of life without parole was brought
about through passion or prejudice; and
(4) Whether the defendant was mentally retarded.
(h) Upon completion of a sentence review the Supreme Court of
Appeals may invalidate the sentence of life without parole and
remand the case to the trial court for resentencing or the court
may affirm the sentence of life without parole and remand the case
to the trial court for execution.
(j) In all cases in which a sentence of life without parole
has been imposed, the appellate review, if any, and sentence review
to or by the Supreme Court of Appeals shall be decided and an
opinion on the merits shall be filed within one year of receipt by
the Clerk of the Supreme Court of Appeals of the verbatim report of
proceedings. If this time requirement is not met, the Chief
Justice of the Supreme Court of Appeals shall state on the record
the extraordinary and compelling circumstances causing the delay
and the facts supporting the delay. A failure to comply with the
time requirements of this subsection shall in no way preclude the
ultimate execution of a sentence of life without parole.
NOTE: The purpose of this bill is to require review of life
without parole sentences by the State Supreme Court of Appeals.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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