H. B. 2048

(By Delegates Linch, Pino, Trump, Staton and Rowe)

[Introduced January 17, 1995; referred to the Committee
on the Judiciary.]

A BILL to amend and reenact section two, article one, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section two-a; to amend and reenact section fourteen-a, article two of said chapter; to further amend said article by adding thereto a new section, designated section fourteen-f; to amend and reenact section fifteen, article three, chapter sixty-two of said code; and to further amend said article by adding thereto a new section, designated section fifteen-a, all relating to providing for a separate sentencing hearing when a jury or court is charged with recommending a life sentence with or without mercy.

Be it enacted by the Legislature of West Virginia:
That section two, article one, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section two-a; that section fourteen-a, article two of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section fourteen-f; that section fifteen, article three, chapter sixty-two of said code be amended and reenacted; and that article three of said chapter be amended by adding thereto a new section, designated section fifteen-a, all to read as follows:

ARTICLE 1. CRIMES AGAINST THE GOVERNMENT.

§61-1-2. Punishment.

Whoever is guilty of treason against the state shall be punished by confinement in the penitentiary for life, or, at the discretion of the jury, or the discretion of the court when there is a plea of guilty, by confinement in the penitentiary for not less that three nor more that ten years. A sentencing hearing as provided in section two-a of this article shall be conducted following the determination of guilt for purposes of determining whether a life sentence or the lessor sentence of three nor more than ten years will be imposed.
§61-1-2a. Sentencing hearing by jury or court as to whether to recommend a li
fe sentence or a lessor sentence for any person found guilty of treason.
(a) Upon conviction or adjudication of the guilt of a defendant for treason, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to the penitentiary for life or the lessor discretionary sentence as set out in section two of this article. With a jury- waved trial or with a guilty plea without trial, the judge shall consider, and with a jury trial, the jury shall consider all relevant aggravating and mitigating circumstances, including those provided in subsection (d) and (e) if this section, in making a recommendation for life or the lessor sentence. The sentencing court will then make a sentencing determination based on this recommendation. If for any reason the trial jury is unable to serve as the sentencing jury, a new jury will be selected for the purpose of making a sentencing recommendation,
(b) In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the crime of treason and the character of the defendant. The defendant will be provided the opportunity to rebut any hearsay statements. This provision is not to construed to allow the introduction of any evidence obtained in violation of the constitutions of the United States or the state of West Virginia.
(c) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factors with a recommendation regarding whether to impose a life sentence or the lessor sentence as set out in section two of this article. The special verdict and recommendation shall be the basis of the sentencing judge's determination as to what sentence the defendant will receive.
(d) Mitigating factors for the conviction of treason include:
(1) Mental capacity and condition of the defendant at the time of the crime;
(2) Lack of significant criminal history of defendant;
(3) The defendant acted under duress or substantial domination of another person;
(4) The age of the defendant at the time of the crime;
(e) Aggravating factors include:
(1) The defendant's convictions of prior felonies;
(2) The defendant's act knowingly created a great risk of
deaths to many persons;
(3) The act was committed for pecuniary gain;
(4) The act was especially heinous, atrocious, or cruel;
(5) The act was committed against law enforcement or military personal engaged in the performance of their duties.

§61-2-14a. Penalty for enticing away or otherwise kidnapping any person; when kidnapped person returned alive and uninjured after ransom paid and without ransom paid; discretion of jury or court as to parole when life imprisonment imposed.

If any person, by force, threat, duress, fraud or enticement take, confine, conceal, or decoy, inveigle or entice away, or transport into or out of this state or within this state, or otherwise kidnap any other person, for the purpose or with the intent of taking, receiving, demanding or extorting from such person, or from any other person or persons, any ransom, money or other thing, or any concession or advantage of any sort, or for the purpose or with the intent of shielding or protecting himself or others from bodily harm or of evading capture or arrest after he or they have committed a crime, he shall be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary for life, and he, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be eligible for parole in accordance with the provisions of said article twelve: Provided, however, That if the accused pleads guilty, the court may, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy: Provided further, That in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but after ransom, money or other thing, or any concession or advantage of any sort has been paid or yielded, the punishment shall be confinement in the penitentiary for any term of years not less than twenty: And provided further, That in all cases where the person against whom the offense is committed is returned, or is permitted to return, alive, without bodily harm having been inflicted upon him, but without ransom, money or other thing, or any concession or advantage of any sort having been paid or yielded, the punishment shall be confinement in the penitentiary for any term of years not less than ten.
§61-2-14f. Sentencing hearing by jury or court to recommend life with or without mercy for any person found guilty of kidnapping who receives a life sentence.
(a) Upon conviction or adjudication of the quilt of a defendant for kidnapping, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to the penitentiary for life with or without mercy, or other sentence as provided for in section fourteen-a of this article. With a jury-waived trial or with a guilty plea without trial, the judge shall consider, and with a jury trial, the jury shall consider, all relevant aggravating and mitigating circumstances as delineated in subsections (d) and (e) of this section in making a sentencing recommendation. The sentencing court will then make a sentencing determination based on this recommendation. If for any reason the trial jury is unable to serve as the sentencing jury, a new jury will be selected for the purpose of making a sentencing recommendation.
(b) In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances as provided for in subsections (d) and (e) of this section. The defendant will be provided the opportunity to rebut any hearsay statements. This provision is not to be construed to allow the introduction of any evidence obtained in violation of the constitutions of the United States or the state of West Virginia.
(c) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factors with a sentencing recommendation. The special verdict and recommendation shall be the basis of the sentencing judge's determination whether mercy be granted on the defendant's life sentence.
(d) Mitigating factors for the conviction of kidnapping include:
(1) Mental capacity and condition of the defendant at the time of the crime;
(2) Lack of significant criminal history of defendant;
(3) The defendant acted under duress or substantial domination of another person;
(4) The age of the defendant at the time of the crime;
(e) Aggravated factors include:
(1) The defendant's convictions of prior felonies;
(2) "The defendant's act knowingly created a great risk of death to many persons;
(3) The act was committed for pecuniary gain;
(4) The act was especially heinous, atrocious, or cruel;
(5) The act was committed against a law enforcement or correctional officer engaged in the performance of his duties.

§62-3-15. Verdict and sentence in murder cases.

If a person indicted for murder be found by the jury guilty thereof, they shall in their verdict find whether he or she is guilty of murder of the first degree or second degree. If the person indicted for murder is found by the jury guilty thereof, and if the jury find in their verdict that he or she is guilty of murder of the first degree, or if a person indicted for murder pleads guilty of murder of the first degree, he or she shall be punished by imprisonment in the penitentiary for life, and he or she, notwithstanding the provisions of article twelve, chapter sixty-two of this code, shall not be eligible for parole: Provided, That the jury may, and if there is no jury, the judge may recommend mercy, following the completion of the sentencing hearing as set out in section fifteen-a of this article, such person shall be eligible for parole in accordance with the provisions of said article twelve, except that, notwithstanding any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years: Provided, however, That if the accused pleads guilty of murder of the first degree, the court may, following the completion of the sentencing hearing as set out in section fifteen-a of this article, in its discretion, provide that such person shall be eligible for parole in accordance with the provisions of said article twelve, and, if the court so provides, such person shall be eligible for parole in accordance with the provisions of said article twelve in the same manner and with like effect as if such person had been found guilty by the verdict of a jury and the jury had recommended mercy, except that, notwithstanding any provision of said article twelve or any other provision of this code to the contrary, such person shall not be eligible for parole until he or she has served fifteen years.
§62-3-15a. Sentencing hearing by jury or court as to eligibility for release when first degree murder sentence is imposed.
(a) Upon conviction or adjudication of the guilt of a defendant for murder of the first degree, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to the penitentiary for life with or without mercy. With a jury-wived trial or with a guilty plea without trial, the judge shall consider, and with a jury trial, the jury shall consider, all relevant aggravating and mitigating circumstances as delineated in subsections (d) and (e) of this section in making a sentencing recommendation. If for any reason the trial jury is unable to serve as the sentencing jury, a new jury will be selected for the purpose of making a sentencing recommendation.
(b) In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances as provided for in subsections (d) and (e) of this section. The defendant will be provided the opportunity to rebut any hearsay statements. This provision is not to be construed to allow the introduction of any evidence obtained in violation of the Constitutions of the United States or the State of West Virginia.
(c) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factors with a sentencing recommendation. The special verdict and recommendation shall be the basis of the sentencing judge's determination whether mercy be granted on the defendant's life sentence.
(d) Mitigating factors for the conviction of murder in the first degree include:
(1) Mental capacity and condition of the defendant at the time of the crime;
(2) Lack of significant criminal history of defendant at the time of the crime;
(3) The defendant acted under duress or substantial domination of another person;
(4) The age of the defendant at the time of the crime;
(5) The murdered individual was participating with the defendant in the commission of a crime;
(6) Under a felony murder conviction, the defendant was not present or did not participated in the murder.
(e) Aggravating factors include:
(1) The defendant's convictions of prior felonies;
(2) The defendant's act knowingly created a great risk of death to many persons;
(3) The act was committed for pecuniary gain;
(4) The act was especially heinous, atrocious, or cruel;
(5) The act was committed against a law enforcement or corrections officer engaged in the performance of his duties.
(6) The murder victim was under the age of twelve.
(7) The murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification;
(8) The murder was committed while the defendant was imprisoned, or to avoid arrest, or to escape custody.
NOTE: The purpose of this bill is to provide for separate sentencing hearing for crimes which have a life without mercy sentence. This allows the judge or jury to make a sentencing recommendation based on evidence and factors not available at trial.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

This bill was recommended for passage at the 1995 legislative session by Joint Standing Committee on the Judiciary.