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.