Senate Bill No. 191
(By Senator Wiedebusch)
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[Introduced January 26, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact sections two and thirteen, article
twelve, chapter sixty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
eligibility for probation; and eligibility for parole.
Be it enacted by the Legislature of West Virginia:
That sections two and 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:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) Subject to the conditions and limitations set forth in
this article, all persons who are found guilty of or plead guilty
to any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be are eligible for probation, notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible is not eligible for probation.
Nothing in this section shall apply applies 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.
(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony
with the use, presentment or brandishing of a firearm shall not
be applicable considered unless such that fact is clearly stated
and included in the indictment or presentment by which such that
person is charged and is either: (i) Found by the court upon a
plea of guilty or nolo contendere; or (ii) found by the jury, if
the matter be tried before a jury, upon submitting to such the
jury a special interrogatory for such this purpose; or (iii)
found by the court, if the matter be tried by the court, without
a jury.
(2) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) 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;
(C) 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 a 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 a finding by the jury or court, as the case
may be, which notice shall state with particularity the grounds
upon which such that finding shall be is 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;
(D) 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; and
Insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
must be proved beyond a reasonable doubt in all cases tried by the jury or the court.
(d) For the purpose purposes 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.
(e) In the case of any person who has been found guilty of,
or pleaded guilty to, a felony or misdemeanor under the
provisions of section twelve, or twenty-four article eight of
chapter sixty-one; or under the provisions of article eight-c or
eight-b, both article eight-a, eight-b or eight-c of chapter
sixty-one; or section five, article eight-d, chapter sixty-one,
all of this code, such that person shall only be is eligible for
probation only after undergoing a physical, mental and
psychiatric study and diagnosis which shall include an on-going
treatment plan requiring active participation in sexual abuse
counseling at a mental health facility or through some other
approved program: Provided, That nothing disclosed by the person
during such study or diagnosis shall may 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 indicates a present
intention or plans plan of the probationer to do harm to any
person, animal, institution or property, in which case such
information may be released only to such those persons as might be necessary for protection of the said person, animal,
institution or property.
§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:
Provided, That in addition to any other requirements specified in
this article, any person who has been found guilty of, or pleaded
guilty to, a felony or misdemeanor under the provisions of
section twelve, article eight, chapter sixty-one; article
eight-a, eight-b or eight-c, chapter sixty-one; or section five,
article eight-d, chapter sixty-one, all of this code, is eligible
for parole only after undergoing a physical, mental and
psychiatric study and diagnosis which shall include an on-going
treatment plan requiring active participation in sexual abuse
counseling at a mental health facility or through some other
approved program. Any prisoner All other prisoners of a
penitentiary of this state, to be eligible for parole:
(1)(A) Shall Must have served the minimum term of his or her
indeterminate sentence, or shall must have served one fourth of
his or her definite term sentence, as the case may be, except
that 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 is
not 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 is greater. Nothing in this
section shall apply applies 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 that fact is clearly stated and included in the
indictment or presentment by which such that person was charged
and that fact 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 the jury a special
interrogatory for such this 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 purpose purposes 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 a 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 is 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 must be proved beyond a reasonable
doubt in all cases tried by the jury or the court.
(2) Shall May not be under punishment or in solitary
confinement for any infraction of prison rules;
(3) Shall Must 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 Must 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 first been approved by the
commissioner of corrections or his or her authorized
representative;
(5) Shall Must 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 may be paroled until he or she has
served ten 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. In the case of a person sentenced
to any penal institution of this state, it shall be is 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 or regional jail in this state,
the board shall may 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 may 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 is 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 division 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; article
eight-a, eight-b or eight-c, chapter sixty-one; or section five,
article eight-d, chapter sixty-one, all 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 may 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 indicates a present intention or plans plan 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, if he or
she is living, or the parents or guardian of the victim if the
victim is still a minor, of that the person is 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 or regional
jail in this state, and shall have the power to may 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 prisoner 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 provide that
individuals who have been found guilty of or pleaded guilty to a
sexual offense are not eligible for probation or parole until
they have undergone treatment and counseling for sexual abuse.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.