WEST virginia legislature
2022 regular session
Originating
Senate Bill 726
By Senators Azinger, Caputo, Grady, Karnes, Lindsay, Maynard, Phillips, Romano, Rucker, Smith, Stover, Takubo, Weld, Woelfel, and Trump
[Originating in the Committee on the Judiciary; reported on February 28, 2022]
A BILL to amend and reenact §61-11-22 and §61-11-22a of the Code of West Virginia, 1931, as amended, all relating generally to pretrial diversion agreements and deferred prosecution agreements; listing offenses for which pretrial diversion prohibited; listing offenses where defendant is authorized under certain circumstances and with certain limitations; and setting out procedures for deferred prosecutions.
Be it enacted by the Legislature of West Virginia:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug court programs.
(a) A prosecuting attorney of any county of this state or a person acting as a special prosecutor may enter into a pretrial diversion agreement with a person under investigation or charged with an offense against the State of West Virginia, when he or she considers it to be in the interests of justice. The agreement is to be in writing and is to be executed in the presence of the person's attorney, unless the person has executed a waiver of counsel.
(b) Any agreement entered into pursuant to the provisions of subsection (a) of this section may not exceed 24 months in duration. The duration of the agreement must be specified in the agreement. The terms of any agreement entered into pursuant to the provisions of this section may include conditions similar to those set forth in §62-12-9 of this code relating to conditions of probation. The agreement may require supervision by a probation officer of the circuit court, with the consent of the court. An agreement entered into pursuant to this section must include a provision that the applicable statute of limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial diversion with a prosecuting attorney and who has successfully complied with the terms of the agreement is not subject to prosecution for the offense or offenses described in the agreement or for the underlying conduct or transaction constituting the offense or offenses described in the agreement, unless the agreement includes a provision that upon compliance the person agrees to plead guilty or nolo contendere to a specific related offense, with or without a specific sentencing recommendation by the prosecuting attorney.
(d) No person charged with a violation of the provisions
of §17C-5-2 of this code may participate in a pretrial diversion program: Provided,
That a court may defer proceedings in accordance with §17C-5-2b of this code. No
person charged with a violation of the provisions of section twenty-eight,
article two of this chapter may participate in a pretrial diversion program unless
the program is part of a community corrections program approved pursuant to the
provisions of article eleven-c, chapter sixty-two of this code. No person
indicted for a felony crime of violence against the person where the alleged
victim is a family or household member as defined in section two hundred three,
article twenty-seven, chapter forty-eight of this code or indicted for a
violation of the provisions of sections three, four or seven, article eight-b
of this chapter is eligible to participate in a pretrial diversion program. No
defendant charged with a violation of the provisions of section twenty-eight,
article two of this chapter or subsections (b) or (c), section nine, article
two of this chapter where the alleged victim is a family or household member is
eligible for pretrial diversion programs if he or she has a prior conviction
for the offense charged or if he or she has previously been granted a period of
pretrial diversion pursuant to this section for the offense charged.
Notwithstanding any provision of this code to the contrary, defendants charged
with violations of the provisions of section twenty-eight, article two, chapter
sixty-one of this code or the provisions of subsection (b) or (c), section
nine, article two of said chapter where the alleged victim is a family or
household member as defined by the provisions of section two hundred three,
article twenty-seven, chapter forty-eight of this code are ineligible for
participation in a pretrial diversion program before July 1, 2002, and before
the community corrections subcommittee of the Governor's Committee on Crime,
Delinquency and Correction established pursuant to the provisions of section
two, article eleven-c, chapter sixty-two of this code, in consultation with the
working group of the subcommittee, has approved guidelines for a safe and
effective program for diverting defendants charged with domestic violence.
(e) The provisions of section twenty-five of this
article are inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of section
twenty-eight, article two, chapter sixty-one of this code. The community
corrections subcommittee of the Governor's Committee on Crime, Delinquency and
Correction established pursuant to the provisions of section two, article
eleven-c, chapter sixty-two of this code shall, upon approving any program of
pretrial diversion for persons charged with violations of the provisions of
section twenty-eight, article two, chapter sixty-one of this code, establish
and maintain a central registry of the participants in the programs which may
be accessed by judicial officers and court personnel.
(e) No person is eligible for pretrial diversion programs if charged with:
(1) A felony crime of violence against the person where the alleged victim is a family or household member as defined in §48-27-203 of this code;
(2) A violation of §61-8-12 of this code or a felony violation of the provisions of §61-8B-1 et seq., §61-8C-1 et seq., and §61-8D-1 et seq. of this code;
(3) A violation of §61-2-9a(a) of this code;
(4) A violation of §61-2-9d of this code;
(5) A violation of § 61-2-28 of this code; or
(6) A violation of §61-2-9 of this code where the alleged victim is a family or household member as defined in §48-27-203 of this code.
§61-11-22a. Deferred adjudication.
(a) Upon the entry of a guilty plea to a felony or
misdemeanor before a circuit or magistrate court of this state entered in
compliance with the provisions of Rule 11 of the West Virginia Rules of
Criminal Procedure 11 or Rule 10 of the West Virginia Rules of Criminal
Procedure for Magistrate Courts and applicable judicial decisions, the court
may, upon motion, defer acceptance of the guilty plea and defer further
adjudication thereon and release the defendant upon such terms and conditions
as the court deems just and necessary. Terms and conditions may include, but
are not limited to, periods of incarceration, drug and alcohol treatment,
counseling and participation in programs offered under articles eleven-a,
eleven-b and eleven-c, chapter sixty-two §62-11A-1 et seq., §62-11B-1 et seq., and
§61-11C-1 of this code.
(b) If the offense to which the plea of guilty is entered is a felony, the circuit court may defer adjudication for a period not to exceed three years. If the offense to which the plea of guilty is entered is a misdemeanor, the court may defer adjudication for a period not to exceed two years.
(c) A person is ineligible for a deferred adjudication program if he or she is charged with;
(1) A felony crime of violence against the person where the alleged victim is a family or household member as defined in §48-27-203 of this code;
(2) A violation of §61-8-12 of this code or a felony violation of the provisions of §61-8B-1 et seq., §61-8C-1 et seq., and §61-8D-1 et seq. of this code;
(3) A violation of §61-2-9a(a) of this code;
(4) A violation of §61-2-9d of this code;
(5) A violation of §61-2-28(c) of this code; or
(6) A violation of §61-2-9(a) and §61-2-9(d) of this code where the alleged victim is a family or household member as defined in §48-27-203 of this code.
(7) A violation of §61-2-9(b) or §61-2-9(c) of this code or §61-2-28(a) or §61-2-28(b) of this code where a weapon was used in the commission of the crime, the defendant has a prior conviction of any of the offenses listed in subsection (c) of this section, the defendant has a prior felony conviction, or the defendant has previously entered into a prior pre-trial diversion or deferred adjudication of crimes where the alleged victim is a family or household member as defined in §48-27-203 of this code.
(d) A person charged under §61-2-9a or, §61-2-9d
of this code, or, §61-2-9(a), or §61-2-9(d) of this code who
has not previously been convicted of any of the offenses set forth in
subsection (c) of this section, who has no prior felony conviction, and who has
not previously entered into a prior pre-trial diversion or deferred
adjudication of crimes where the alleged victim is a family or household member
as defined in §48-27-203 of this code, is eligible to participate in a
deferred adjudication program: Provided, That the person is not eligible
for dismissal upon successful completion of the deferred period.
(e)(1) A person charged with a violation of §61-2-28(a) or §61-2-28(b) of this code or a violation of §61-2-9(b) or §61-2-9(c) of this code where the alleged victim is a family or household member as defined in §48-27-203 is eligible for deferred adjudication if agreed to by the state and the defendant;
(2) In addition to terms and conditions authorized in subsection (a) of this section, a person participating in a deferred adjudication program pursuant to this subsection may be required to participate in compliance hearings and batterer intervention programs licensed under §48-26-402 of this code;
(3) Notwithstanding the provisions of subsection (b) of this section, a deferral under this subsection shall be for a period of not less than 18 months nor more than three years; and
(4) A person may not participate in more than one deferred adjudication pursuant to this subsection.
c) (f) If the defendant complies with the
court-imposed terms and conditions he or she shall be permitted to withdraw his
or her plea of guilty and the matter dismissed or, as may be agreed upon by the
court and the parties, enter a plea of guilty or no contest to a lesser offense.
(d) (g) In the event the defendant is
alleged to have violated the terms and conditions imposed upon him or her by
the court during the period of deferral the prosecuting attorney may file a
motion to accept the defendant’s plea of guilty and, following notice, a
hearing shall be held on the matter.
(e) (h) In the event the court determines
that there is reasonable cause to believe that the defendant violated the terms
and conditions imposed at the time the plea was entered, the court may accept
the defendant’s plea to the original offense and impose a sentence in the
court’s discretion in accordance with the statutory penalty of the offense to
which the plea of guilty was entered or impose such other terms and conditions
as the court deems appropriate.
(f) (i) The procedures set forth in this
section are separate and distinct from that set forth in Rule 11(a)(2) of
the West Virginia Rules of Criminal Procedure. 11(a)(2).