H. B. 2379

(By Delegates Greear, Hunt and Amores)
[Introduced February 7, 1995; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact section thirteen, article twelve, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to probation and parole; and eligibility therefor.

Be it enacted by the Legislature of West Virginia:
That section thirteen, article twelve, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, to read as follows:
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.

(a) The board of parole, whenever it is of the opinion that the best interests of the state and of the prisoner will be subserved thereby, and subject to the limitations hereinafter provided, shall release any such prisoner on parole for such terms and upon such conditions as are provided by this article. Any prisoner of a penitentiary of this state, to be eligible for parole:
(1)(A) Shall have served the minimum term of his or her indeterminate sentence, or shall have served one fourth of his or her definite term sentence, except persons who have committed a crime of violence against a person shall have served one half of his or her determinate sentence or no less than one half of the maximum possible of an indeterminate sentence, as the case may be, except that but in no case shall may any person who committed, or attempted to commit a felony with the use, presentment or brandishing of a firearm, be eligible for parole prior to serving a minimum of three years of his or her sentence or the maximum sentence imposed by the court, whichever is less: Provided, That any person who committed, or attempted to commit, any violation of section twelve, article two, chapter sixty-one of this code, with the use, presentment or brandishing of a firearm, shall not be eligible for parole prior to serving a minimum of five years of his or her sentence or one third of his or her definite term sentence, whichever shall be the greater. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm. No person is ineligible for parole under the provisions of this subdivision because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm unless such fact is clearly stated and included in the indictment or presentment by which such person was charged and was either (i) found by the court at the time of trial upon a plea of guilty or nolo contendere, or (ii) found by the jury, upon submitting to such jury a special interrogatory for such purpose if the matter was tried before a jury, or (iii) found by the court, if the matter was tried by the court without a jury.
For the purposes of this section, the term "crime of violence against a person" means:
(i) A felony involving the use of a deadly weapon or dangerous instrument;
(ii) A felony involving the intentional or knowing infliction of serious physical injury;
(iii) Felony sexual assault;
(iv) Violent or sexual felony offenses committed against a minor;
(v) Felony offenses which involve using or involving minors in the activities of a criminal syndicate or street gang;
(vi) Felony offenses committed by persons while on release from another offense, either pending trial or after conviction;
(vii) An offense that has an element of the use, attempted use or threatened use of physical force against the person of property of another;
(viii) Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense; and
(ix) Includes, but is not limited to, murder, arson, burglary, assault, sexual assault, kidnapping, extortion and robbery.

For the purpose of this section, the term "firearm" shall mean means any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive, gunpowder or any other similar means.
(B) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one:
(i) Shall apply to all applicable offenses occurring on or after the first day of August of that year;
(ii) Shall apply with respect to the contents of any indictment or presentment returned on or after the first day of August of that year irrespective of when the offense occurred;
(iii) Shall apply with respect to the submission of a special interrogatory to the jury and the finding to be made thereon in any case submitted to such jury on or after the first day of August of that year or to the requisite findings of the court upon a plea of guilty or in any case tried without a jury: Provided, That the state shall give notice in writing of its intent to seek such finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such finding shall be sought as fully as such grounds are otherwise required to be stated in an indictment, unless the grounds therefor are alleged in the indictment or presentment upon which the matter is being tried;
(iv) Shall not apply with respect to cases not affected by such amendment and in such cases the prior provisions of this section shall apply and be construed without reference to such amendment.
Insofar as such amendments relate to mandatory sentences restricting the eligibility for parole, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(2) Shall not be under punishment or in solitary confinement for any infraction of prison rules;
(3) Shall have maintained a record of good conduct in prison for a period of at least three months immediately preceding the date of his or her release on parole;
(4) Shall have submitted to the board a written parole release plan setting forth proposed plans for his or her place of residence, employment and, if appropriate, his or her plans regarding education and post-release counseling and treatment, said parole release plan having been approved by the commissioner of corrections or his or her authorized representative;
(5) Shall have satisfied the board that if released on parole he or she will not constitute a danger to the community.
Except in the case of one serving a life sentence, no person who has been previously twice convicted of a felony may be released on parole until he or she has served the minimum term provided by law for the crime for which he or she was convicted. No person sentenced for life with a recommendation of mercy may be paroled until he or she has served ten fifteen years; and no person sentenced for life who has been previously twice convicted of a felony may be paroled until he or she has served fifteen years; and no person sentenced for life without a recommendation of mercy may be paroled. In the case of a person sentenced to any penal institution of this state, it shall be the duty of the board, as soon as such person becomes eligible, to consider the advisability of his or her release on parole. If, upon such consideration, parole be denied, the board shall at least once a year reconsider and review the case of every prisoner so eligible, which reconsideration and review shall be by the entire board. If parole be denied, the prisoner shall be promptly notified.
(b) In the case of any person sentenced to or confined under sentence in any city or county jail in this state, the board shall act only upon written application for parole. If such jail prisoner is under sentence on a felony conviction, the provisions hereof relating to penitentiary prisoners shall apply to and control his or her release on parole. If such person is serving time on a misdemeanor conviction, he or she is eligible for parole consideration, upon receipt of his or her written parole application and after time for probation release by the sentencing court or judge has expired.
(c) The board shall, with the approval of the governor, adopt rules and regulations governing the procedure in the granting of parole. No provision of this article and none of the rules and regulations adopted hereunder are intended or shall be construed to contravene, limit or otherwise interfere with or affect the authority of the governor to grant pardons and reprieves, commute sentences, remit fines or otherwise exercise his or her constitutional powers of executive clemency.
The board shall be charged with the duty of supervising all probationers and parolees whose supervision may have been undertaken by this state by reason of any interstate compact entered into pursuant to the uniform act for out of state parolee supervision.
(d) When considering a penitentiary prisoner for release on parole, the board of parole shall have before it an authentic copy of or report on the prisoner's current criminal record as provided through the department of public safety of West Virginia, the United States department of justice or other reliable criminal information sources and written reports of the warden or superintendent of the penitentiary, as the case may be, to which such prisoner is sentenced:
(1) On the prisoner's conduct record while in prison, including a detailed statement showing any and all infractions of prison rules by the prisoner and the nature and extent of discipline and punishment administered therefor;
(2) On improvement or other changes noted in the prisoner's mental and moral condition while in prison, including a statement expressive of the prisoner's current attitude toward society in general, toward the judge who sentenced him or her, toward the prosecuting attorney who prosecuted him or her, toward the policeman or other officer who arrested the prisoner and toward the crime for which he or she is under sentence and his or her previous criminal record;
(3) On the prisoner's industrial record while in prison, showing the nature of his or her prison work or occupation and the average number of hours per day he or she has been employed in prison industry and recommending the nature and kinds of employment which he or she is best fitted to perform and in which the prisoner is most likely to succeed when he or she leaves prison;
(4) On physical, mental and psychiatric examinations of the prisoner conducted, insofar as practicable, within the two months next preceding parole consideration by the board.
The board may waive the requirement of any such report when not available or not applicable as to any prisoner considered for parole but, in every such case, shall enter in the record thereof its reason for such waiver: Provided, That in the case of a prisoner who is incarcerated because such prisoner has been found guilty of, or has pleaded guilty to a felony under the provisions of section twelve, article eight, chapter sixty-one of this code or under the provisions of article eight-b or eight-c of chapter sixty-one, the board may not waive the report required by this subsection and the report shall include a study and diagnosis which shall include an on-going treatment plan requiring active participation in sexual abuse counseling at an approved mental health facility or through some other approved program: Provided, however, That nothing disclosed by the person during such study or diagnosis shall be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any court of this state, unless such information disclosed shall indicate the intention or plans of the parolee to do harm to any person, animal, institution, or to property. Progress reports of outpatient treatment shall be made at least every six months to the parole officer supervising such person. In addition, in such cases, the parole board shall inform the prosecuting attorney of the county in which the person was convicted of the parole hearing and shall request that the prosecuting attorney inform the parole board of the circumstances surrounding a conviction or plea of guilty, plea bargaining and other background information that might be useful in its deliberations. The board shall also notify the victim, or the parents or guardian of the victim if the victim is still a minor, of the person being considered for parole in such a case.
Before releasing any penitentiary prisoner on parole, the board of parole shall arrange for the prisoner to appear in person before the board and the board may examine and interrogate him or her on any matters pertaining to his or her parole, including reports before the board made pursuant to the provisions hereof. The board shall reach its own written conclusions as to the desirability of releasing such prisoner on parole. The warden or superintendent shall furnish all necessary assistance and cooperate to the fullest extent with the board of parole. All information, records and reports received by the board shall be kept on permanent file.
The board and its designated agents shall at all times have access to inmates imprisoned in any penal or correctional institutions of this state or in any city or county jail in this state, and shall have the power to obtain any information or aid necessary to the performance of their duties from other departments and agencies of the state or from any political subdivision thereof.
The board shall, if so requested by the governor, investigate and consider all applications for pardon, reprieve or commutation and shall make recommendation thereon to the governor.
Prior to making such recommendation and prior to releasing any penitentiary person inmate on parole, the board shall notify the sentencing judge and prosecuting attorney at least ten days before such recommendation or parole. Any person released on parole shall participate as a condition of parole in the litter control program of the county to the extent directed by the board, unless the board specifically finds that this alternative service would be inappropriate.

NOTE: The purpose of this bill is to restrict eligibility for parole in certain instances and require that more time be served in certain cases before an inmate is eligible for parole.

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