H. B. 2043
(By Mr. Speaker, Mr. Chambers, and Delegate Ashley)
(By Request of the Executive)
[Introduced January 17, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections ten, thirteen, sixteen and
eighteen, article five, chapter forty-nine of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, relating to the transfer of juvenile proceedings
from the juvenile jurisdiction to the criminal jurisdiction
of the courts; the sentencing of juveniles tried as adults;
the transfer of juveniles from a secure juvenile facility to
a penitentiary when the age of eighteen years is attained;
and the formulation of after-care plans for juveniles.
Be it enacted by the Legislature of West Virginia:
That sections ten, thirteen, sixteen and eighteen, article
five, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. Waiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the child, the parents, guardians or
custodians of the child, and the child's counsel, the court shall
conduct a hearing to determine if juvenile jurisdiction should or
must be waived and the proceeding should or must be transferred
to the criminal jurisdiction of the court. Any motion filed in
accordance with this section shall state, with particularity, the
grounds for the requested transfer, including the grounds relied
upon set forth in subsection (d) or subsection (e) of this
section, and the burden shall be upon the state to establish such
grounds by clear and convincing proof. Any hearing held under
the provisions of this section shall be held within seven days of
the filing of the motion for transfer unless it is continued for
good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial shall be
made by or before the court until a decision shall have been made
relative to whether the proceeding is to be transferred to
criminal jurisdiction.
(c) The court shall transfer a juvenile proceeding to criminal jurisdiction if a child who has attained the age of
sixteen fourteen years shall make a demand on the record to be
transferred to the criminal jurisdiction of the court. Such
cases may then be referred to a magistrate for trial, if
otherwise cognizable by a magistrate.
(d) The court may shall upon consideration of the child's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that:
(1) The child has committed the crime of treason under
section one, article one, chapter sixty-one of this code; the
crime of murder under sections one, two and three, article two,
chapter sixty-one of this code; the crime of robbery involving
the use or presenting of firearms or other deadly weapons under
section twelve, article two, chapter sixty-one of this code; the
crime of kidnapping under section fourteen-a, article two,
chapter sixty-one of this code; the crime of first degree arson
under section one, article three, chapter sixty-one of this code;
or charging the crime of sexual assault in the first degree under
section three, article eight-b, chapter sixty-one of this code;
and in such case, the existence of such probable cause shall be sufficient grounds for transfer without further inquiry; or
(2) A child has committed an offense of violence to the
person which would be a felony if the child were an adult:
Provided, That the child has been previously adjudged delinquent
for the commission of an offense which would be a violent felony
if the child were an adult; or
(3) A child has committed an offense which would be a felony
if the child were an adult: Provided, That the child has been
twice previously adjudged delinquent for the commission of an
offense which would be a felony if the child were an adult; or
(4)(2) A child, sixteen fourteen years of age or over, has
committed an offense of violence to the person which would be a
felony if committed by an adult; or
(5)(3) A child, sixteen fourteen years of age or over, has
committed an offense which would be a felony if committed by an
adult: Provided, That such child has been previously adjudged
delinquent for an offense which would be a felony if the child
were an adult.
(e) With respect to a child who is not otherwise subject to
the provisions of subsection (d) of this section, the court may,
upon consideration of the child's mental and physical condition,
maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile
proceeding involving such child to criminal jurisdiction if there
is probable cause to believe that:
(1) A child has committed an offense of violence to the
person which would be a felony if the child were an adult:
Provided, That the child has been previously adjudged delinquent
for the commission of an offense which would be a violent felony
if the child were an adult; or
(2) A child has committed an offense which would be a felony
if the child were an adult: Provided, That the child has been
twice previously adjudged delinquent for the commission of an
offense which would be a felony if the child were an adult.
(e) (f) If, after a hearing, the court directs the transfer
of any juvenile proceeding to criminal jurisdiction, it shall
state on the record the findings of fact and conclusions of law
upon which its decision is based or shall incorporate such
findings of fact and conclusions of law in its order directing
transfer.
(f) (g) The child shall have the right to directly appeal an
order of transfer to the supreme court of appeals of the state of
West Virginia: Provided, That notice of intent to appeal and a
request for transcript be filed within ten days from the date of the entry of any such order and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days
from the entry of such order, and that, in default thereof, the
right of appeal and the right to object to such order of transfer
shall be waived and may not thereafter be asserted. The
provisions of article five, chapter fifty-eight of this code
pertaining to the appeals of judgments in civil actions shall
apply to appeals under this chapter except as herein modified.
The judge of the circuit court may, prior to the expiration of
such period of forty-five days, by appropriate order, extend and
reextend such period for such additional period or periods, not
to exceed a total extension of sixty days, as in his opinion may
be necessary for preparation of the transcript: Provided, That
the request for such transcript was made by the party seeking
appeal within ten days of entry of such order of transfer. In
the event any such notice of intent to appeal and request for
transcript be timely filed, proceedings in criminal court shall
be stayed upon motion of the defendant pending final action of
the supreme court of appeals thereon.
§49-5-13. Disposition; appeal.
(a) In aid of disposition, the juvenile probation officer or
state department worker assigned to the court shall, upon request of the court, make an investigation of the environment of the
child and the alternative dispositions possible. The court, upon
its own motion, or upon request of counsel, may order a
psychological examination of the child. The report of such
examination and other investigative and social reports shall not
be made available to the court until after the adjudicatory
hearing. Unless waived, copies of the report shall be provided
to counsel for the petitioner and counsel for the child no later
than seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the
relief sought in the petition and shall give precedence to the
least restrictive of the following alternatives consistent with
the best interests and welfare of the public and the child:
(1) Dismiss the petition;
(2) Refer the child and the child's parent or custodian to
a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the child is in need of
extra-parental supervision: (A) Place the child under the
supervision of a probation officer of the court or of the court of the county where the child has his or her usual place of
abode, or other person while leaving the child in custody of his
or her parent or custodian; and (B) prescribe a program of
treatment or therapy or limit the child's activities under terms
which are reasonable and within the child's ability to perform,
including participation in the litter control program established
pursuant to section twenty-five, article seven, chapter twenty;
(4) Upon a finding that a parent or custodian is not willing
or able to take custody of the child, that a child is not willing
to reside in the custody of his parent or custodian, or that a
parent or custodian cannot provide the necessary supervision and
care of the child, the court may place the child in temporary
foster care or temporarily commit the child to the state
department or a child welfare agency. The court order shall
state that continuation in the home is contrary to the best
interest of the child and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible. Whenever the court transfers custody of a youth to
the department of human services, an appropriate order of
financial support by the parents or guardians shall be entered in
accordance with section five, article seven of this chapter and guidelines promulgated by the supreme court of appeals;
(5) Upon a finding that no less restrictive alternative
would accomplish the requisite rehabilitation of the child, and
upon an adjudication of delinquency pursuant to subdivision (1),
section four, article one of this chapter, commit the child to an
industrial home or correctional institution for children.
Commitments shall not exceed the maximum term for which an adult
could have been sentenced for the same offense, with discretion
as to discharge to rest with the director of the institution, who
may release the child and return him to the court for further
disposition. The order shall state that continuation in the home
is contrary to the best interests of the child and why; and
whether or not the state department made a reasonable effort to
prevent the placement or that the emergency situation made such
efforts unreasonable or impossible;
(6) Upon an adjudication of delinquency pursuant to
subsection (3) or (4), section four, article one of this chapter,
and upon a finding that the child is so totally unmanageable,
ungovernable and antisocial that the child is amenable to no
treatment or restraint short of incarceration, commit the child
to a rehabilitative facility devoted exclusively to the custody
and rehabilitation of children adjudicated delinquent pursuant to said subsection (3) or (4). Commitments shall not exceed the
maximum period of one year with discretion as to discharge to
rest with the director of the institution, who may release the
child and return him or her to the court for further disposition.
The order shall state that continuation in the home is contrary
to the best interests of the child and why; and whether or not
the state department made a reasonable effort to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; or
(7) After a hearing conducted under the procedures set out
in subsections (c) and (d), section four, article five, chapter
twenty-seven of the code, commit the child to a mental health
facility in accordance with the child's treatment plan; the
director may release a child and return him to the court for
further disposition. The order shall state that continuation in
the home is contrary to the best interests of the child and why;
and whether or not the state department made a reasonable effort
to prevent the placement or that the emergency situation made
such efforts unreasonable or impossible.
(c) The disposition of the child shall not be affected by
the fact that the child demanded a trial by jury or made a plea
of denial. Any dispositional order is subject to appeal to the supreme court of appeals.
(d) Following disposition, it shall be inquired of the
respondent whether or not appeal is desired and the response
transcribed; a negative response shall not be construed as a
waiver. The evidence shall be transcribed as soon as practicable
and made available to the child or his or her counsel, if the
same is requested for purposes of further proceedings. A judge
may grant a stay of execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, in the event a A child charged with delinquency under
this chapter who is transferred to adult jurisdiction and there
tried and convicted, the court may nevertheless, in lieu of
sentencing such person as an adult, make its disposition in
accordance with this section shall be sentenced by the court as
an adult.
§49-5-16. Committing children to jail and detention facilities;
standards.
(a) A child under eighteen years of age shall not be
committed to a jail or police station, except that any child over
fourteen years of age who has been committed to an industrial
home or correctional institution may be held in the juvenile
department of a jail while awaiting transportation to the institution for a period not to exceed ninety-six hours, and a
child over fourteen years of age who is charged with a crime
which would be a violent felony if committed by an adult, may,
upon an order of the circuit court, be housed in a juvenile
detention portion of a county facility, but not within sight of
adult prisoners. A child charged with or found to be delinquent
solely under subdivision (3), (4) or (5), section four, article
one of this chapter, shall not be housed in a detention or other
facility wherein persons are detained for criminal offenses or
for delinquency involving offenses which would be crimes if
committed by an adult: Provided, That a child who is adjudicated
delinquent under subsection (5), section four, article one of
this chapter and who has violated an order of probation or a
contempt order arising out of a proceeding wherein the child was
adjudicated delinquent for an offense which would be a crime if
committed by an adult may not be housed in a detention or other
facility wherein persons are detained who have not been
adjudicated delinquent for such offenses.
(b) No child who has been convicted of an offense under the
adult jurisdiction of the circuit court shall be held in custody
in a penitentiary of this state: Provided, That such child may
be transferred from a secure juvenile facility to a penitentiary after he shall attain the age of eighteen years if, in the
judgment of the commissioner of the department of corrections and
the court which committed such child, such transfer is
appropriate. Provided, however, That any other provision of this
code to the contrary notwithstanding, prior to such transfer the
child shall be returned to the sentencing court for the purpose
of reconsideration and modification of the imposed sentence,
which shall be based upon a review of all records and relevant
information relating to the child's rehabilitation since his
conviction under the adult jurisdiction of the court.
(c) Notwithstanding the provisions of subsection (b) of this
section, the court shall not reconsider or modify the sentence of
a child who has been convicted under the adult jurisdiction of
the court for the reason that the child has attained the age of
eighteen years and may be or is to be transferred to a
penitentiary.
§49-5-18. After-care plans; submission to the court; comments
to be submitted; hearing on the plan and
adoption
thereof.
(a) Forty-five days prior to the discharge of a child from
any institution or facility pursuant to subdivision five, six or
seven, subsection (b), section thirteen of this article, the director of such institution or facility shall have prepared and
shall forward to the committing court a copy of the child's
proposed after-care plan. Copies of the plan shall also be sent
to: (1) The child's parents, if any, or legal guardian if the
child is not living with his parents; (2) the child's lawyer; (3)
the child's probation officer or community mental health center
professional; and (4) the prosecuting attorney of the county in
which the original commitment proceedings were held; and (5) the
local school district where the child will attend school.
(b) The after-care plan shall contain a detailed description
of the training, schooling, counseling and treatment received
while at the institution or facility and the same proposed for
the child upon his discharge. The plan shall describe any
problems the child may have, the source of those problems and
describe how those problems will be addressed by the after-care
plan. Attached to the plan shall be a list of the persons who
are to receive copies of this plan.
(c) Within twenty-one days of the receipt of the plan, the
child's probation officer or community mental health center
professional shall, and any other person who received a copy of
the plan pursuant to subsection (a) of this section may, submit
written comments concerning the plan to the court: Provided, That if any person does submit comments upon the plan, he shall
also send copies of those comments to every other person who
received a copy of the plan pursuant to subsection (a) of this
section from the director.
(d) Within the twenty-one days provided in subsection (c) of
this section it shall be the responsibility and duty of the
child's probation officer or the community mental health center
professional who receives a copy of the after-care plan to
contact all other persons, organizations and agencies to be
involved in executing the plan and to determine whether such
persons, organizations and agencies are capable of and will be
adequately prepared to execute the provisions of the plan:
Provided, That if a hearing is held to discuss the plan as
provided in subsection (e) of this section, representatives of
such persons, organizations or agencies may be required to appear
unless excused by the court.
(e) The judge to whom the plan was sent shall within
forty-five days of receipt of the plan schedule and hold a
hearing to consider the plan, including any comments or
objections submitted in response thereto: Provided, That if no
adverse comments or objections are submitted, a hearing need not
be held. The court shall consider the after-care plan as submitted and shall within five days of the hearing or within
forty-five days of the receipt of the plan if no hearing is held
issue an order which adopts the plan as submitted or as modified
in response to comments and objections: Provided, however, That
the plan as adopted by order of the court shall be in the best
interests of the child and be in conformity with the state's
interest in youth as embodied in subsection (b), section thirteen
of this article: Provided further, That the court shall appoint
either the child's probation officer or a community health center
professional to act as supervisor of the plan, which supervisor
shall make a report commenting on the progress of the child to
the court every sixty days or until the court shall determine
that no such report is necessary or that after-care is no longer
needed.
NOTE: The purpose of this bill is to require juveniles age
14 or older to be transferred to adult status if they have
committed a serious enumerated crime. After-care plans for
juveniles being discharged from an institution are to be filed
with the local school district where the juvenile will attend
school.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.