H. B. 2100


(By Delegates Hunt, Seacrist, Kelley and Tillis)

[Introduced January 20, 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, all relating to waiver and transfer of juvenile jurisdiction; hearing; appeal; disposition and appeal; commitment of children to jail and detention facilities; standards therefor; sentencing; aftercare plans; hearing thereon; and adoption thereof.

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, all 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 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 as set forth in subsection (d) of this section, and the burden shall be upon the state to establish such those 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 may be made by or before the court until a decision shall have has 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 years shall make makes a demand on the record to be transferred to the criminal jurisdiction of the court. Such a cases case 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 a probable cause to believe that:
(1) The child is at least sixteen years of age and he or she 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 voluntary manslaughter under section four, article two, chapter sixty-one of this code; the crime of attempt to kill or injure by poison under section seven, article two, chapter sixty-one of this code; the crime of malicious or unlawful assault under section nine, article two, chapter sixty-one of this code; the crime of assault during the commission or attempt to commit a felony under section ten, article two, chapter sixty-one of this code; the crime of malicious or unlawful assault or battery on a police officer under section ten-b, 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 extortion or attempted extortion under section thirteen, article two, chapter sixty-one of this code; the crime of abduction or kidnapping or concealing a child under section fourteen, 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 domestic violence, third offense, under subsection (c) of section twenty-eight, 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 the crime of sexual assault in the second degree under section four, article eight-b, chapter sixty-one of this code; the crime of sexual abuse in the first degree under section seven, article eight-b, chapter sixty-one of this code; the crime of murder of a child by a parent, guardian or custodian or other person by refusal or failure to supply necessities, or by delivery, administration or ingestion of a controlled substance under section two, article eight-d, chapter sixty-one of this code; the crime of death of a child by a parent, guardian or custodian or other person by child abuse under section two-a, article eight-d, chapter sixty-one of this code; the crime of child abuse resulting in injury under section three, article eight-d, chapter sixty-one of this code; the crime of child neglect resulting in injuries under section four, article eight-d, chapter sixty-one of this code; the crime of sexual abuse by a parent, guardian or custodian, or parent, guardian or custodian allowing sexual abuse to be inflicted upon a child, or displaying of sexual organs by a parent, guardian or custodian under section five, article eight-d, chapter sixty-one of this code; or
(2) A The child is at least sixteen years of age and has committed an any other offense of violence to the person which would be a felony if the child were an adult; or 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 The 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) A child, sixteen 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) A child, sixteen 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) 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) The child shall have has 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 is filed within ten days from the date of the entry of any such the order and the petition for appeal shall be is presented to the supreme court of appeals within forty-five days from the entry of such the order, and that, in default thereof, the right of appeal and the right to object to such the order of transfer shall be is 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 after the entry of the order of transfer, by appropriate order, extend and re-extend such the period in which to file the petition for appeal for such additional period or periods time, not to exceed a total extension of sixty days, as in his or her opinion may be necessary for preparation of the transcript: Provided, however, That the request for such the transcript was made by the party seeking appeal within ten days of entry of such the order of transfer. In the event any such If the notice of intent to appeal and request for transcript be is 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 any examination and or other investigative and or social reports shall may 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 the 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 or her 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 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.
(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 sixteen years of age shall may 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 or regional 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 may 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 A child who has been convicted of an offense under the adult jurisdiction of the circuit court shall may not be held in custody in a penitentiary of this state: Provided, That such a child may be transferred from a secure juvenile facility to a penitentiary after he or she shall attain attains the age of eighteen years if, in the judgment of the commissioner of the department of corrections and the court which committed such the child, such a 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 may 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 the penitentiary.
§49-5-18. Aftercare 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 (5), (6) or (7), subsection (b), section thirteen of this article, the director of such the institution or facility shall have prepared and shall forward to the committing court a copy of the child's proposed aftercare plan. Copies of the plan shall also be sent to The director shall also send copies of the plan 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 aftercare plan shall contain a detailed description of the training, schooling, counseling and treatment received while at the institution or facility and the same which is proposed for the child upon his or her 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 aftercare plan. Attached to the plan shall be a A list of the persons who are to receive copies of this plan shall be attached to the 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 who submit submits comments upon the plan he shall also send copies of those comments to every other person who received a copy of the plan from the facility or institutional director, pursuant to subsection (a) of this section. from the director
(d) Within the twenty-one days provided for 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 aftercare plan to shall contact all other persons, organizations and agencies to be involved in executing the plan and to determine whether such those 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 those persons, organizations or agencies may be required to appear unless excused by the court.
(e) The judge to whom the plan was is sent shall, within forty-five days of receipt, of the plan schedule and hold a hearing to consider the plan including and 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 aftercare 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 by the court 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 who shall make a report commenting on the progress of the child to the court every sixty days or until the court shall determine determines that no such further report is necessary or that aftercare is no longer needed.




NOTE: The purpose of this bill is to treat juveniles sixteen years of age and over who are charged with and convicted of violent crimes as adults.

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