COMMITTEE SUBSTITUTE
FOR
H. B. 2263
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the Committee on the Judiciary]
[February 24, 1999]
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 parole; and
authorizing the video conferencing of parole hearings before
a majority of the board or videotaping of a hearing before
a single board member for subsequent review by two other
board members.
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:
ARTICLE 12. PROBATION AND PAROLE.
§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 inmate will be
subserved thereby served, and subject to the limitations hereinafter provided, shall release any such inmate on parole for
such terms and upon such conditions as are provided by this
article.
(b) Any inmate of a state correctional center, to be
eligible for parole is eligible for parole if he or she:
(1) (A) Shall have Has served the minimum term of his or her
indeterminate sentence, or shall have has served one fourth of
his or her definite term sentence, as the case may be, except
that in no case shall is 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 fact is clearly stated and included in the indictment
or presentment by which such the 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 the 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 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 Apply to all applicable offenses occurring
on or after the first day of August of that year;
(ii) Shall apply 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 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 the 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 gives 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 the finding shall will 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;
and
(iv) Shall Does not apply with respect to cases not affected
by such amendment the amendments and in such cases the prior
provisions of this section shall apply and be are construed
without reference to such amendment the amendments.
Insofar as such the amendments relate to mandatory sentences
restricting the eligibility for parole, all such matters
requiring such a mandatory sentence shall be proved beyond a
reasonable doubt in all cases tried by the jury or the court.
(2) Shall not be Is not in punitive segregation or
administrative segregation as a result of disciplinary action;
(3) Shall have Has 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 Has 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 postrelease counseling and treatment, said the parole release plan having been approved by the
commissioner of corrections or his or her authorized
representative; and
(5) Shall have Has satisfied the board that if released on
parole he or she will not constitute a danger to the community.
(c) Except in the case of one a person 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: Provided, That
no person convicted of first degree murder for an offense
committed on or after the tenth day of June, one thousand nine
hundred ninety-four, shall be is eligible for parole until he or
she has served fifteen years.
(d) In the case of a person sentenced to any state
correctional center, it shall be is the duty of the board, as
soon as such a person becomes eligible, to consider the
advisability of his or her release on parole.
(e) If, upon such consideration, parole be is denied, the
board shall promptly notify the inmate of the denial. The board
shall, at the time of denial, notify the person of the month and
year he or she may apply for reconsideration and review. The board shall at least once a year reconsider and review the case
of every inmate so eligible who was denied parole and is still
eligible, which reconsideration and review shall be by at least
three members of the board: Provided, however, That the board
may reconsider and review parole eligibility any time within
three years following the denial of parole of a person serving a
life sentence. Reconsideration and review is to be done by at
least three members of the parole board: Provided, however, That
if an inmate is incarcerated in a work release center, community
correctional center or regional jail and there are not three
parole board members immediately available, a single board member
may conduct and videotape the parole hearing. This videotape is
to be reviewed by two other board members within fourteen days of
the hearing to determine their votes on whether the inmate should
be released on parole. The board shall, at the time of denial,
notify the person of the month and year they may apply for
reconsideration and review. If parole be denied, the inmate
shall be promptly notified.
(b) (f) Any person serving a sentence on a felony conviction
who becomes eligible for parole consideration prior to being
transferred to a state correctional center may make written
application for parole. The terms and conditions for parole
consideration established by this article shall be applied apply
to such inmates.
(c) (g) The board shall, with the approval of the governor, adopt rules governing the procedure in the granting of parole.
No provision of this article and none of the rules 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.
(h) The department of corrections 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) (i)(1) When considering an inmate of a state
correctional center for release on parole, the parole board shall
is to have before it an authentic copy of or report on the
inmate's current criminal record as provided through the West
Virginia state police, the United States department of justice or
other reliable criminal information sources and written reports
of the warden or superintendent of the state correctional center
to which such inmate is sentenced:
(1) (i) On the inmate's conduct record while in custody,
including a detailed statement showing any and all infractions of
disciplinary rules by the inmate and the nature and extent of
discipline administered therefor;
(2) (ii) On improvement or other changes noted in the inmate's mental and moral condition while in custody, including
a statement expressive of the inmate'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 inmate and toward
the crime for which he or she is under sentence and his or her
previous criminal record;
(3) (iii) On the inmate's industrial record while in custody
which shall include: The nature of his or her work, occupation
or education, the average number of hours per day he or she has
been employed or in class while in custody and a recommendation
as to the nature and kinds of employment which he or she is best
fitted to perform and in which the inmate is most likely to
succeed when he or she leaves prison;
(4) (iv) On physical, mental and psychiatric examinations of
the inmate conducted, insofar as practicable, within the two
months next preceding parole consideration by the board.
(2) The board may waive the requirement of any such report
when not available or not applicable as to any inmate considered
for parole but, in every such case, shall enter in the record
thereof its reason for such the waiver: Provided, That in the
case of an inmate who is incarcerated because such the inmate 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, chapter sixty-one of this code, the board may not waive the
report required by this subsection and the report shall is to
include a study and diagnosis which shall include including 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 the study or diagnosis shall
be may 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 the information disclosed shall
indicate indicates the intention or plans of the parolee to do
harm to any person, animal, institution or to property. Progress
reports of outpatient treatment shall are to be made at least
every six months to the parole officer supervising such the
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.
(j) Before releasing any inmate on parole, the board of
parole shall arrange for the inmate to appear in person, before
at least three members of 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: Provided, That an inmate may appear by video
teleconference if the members of the parole board conducting the
examination are able to contemporaneously see the inmate and hear
all of his or her remarks and if the inmate is able to
contemporaneously see each of the members of the parole board
conducting the examination and hear all of the members' remarks.
If an inmate is incarcerated in a work release center, community
correctional center or regional jail and there are not three
parole board members immediately available, a single board member
may conduct and videotape the parole hearing. This videotape is
to be reviewed by two other board members within fourteen days of
the hearing to determine their votes on whether the inmate should
be released on parole. The board shall reach its own written
conclusions as to the desirability of releasing such the inmate
on parole and the majority of the board members considering the
release shall concur in the decision. The warden or
superintendent shall furnish all necessary assistance and
cooperate to the fullest extent with the parole board. All
information, records and reports received by the board shall are
to be kept on permanent file.
(k) The board and its designated agents shall are at all
times to have access to inmates imprisoned in any state
correctional center or in any city, county or regional jail in
this state, and shall have the power to obtain any information or aid necessary to the performance of its duties from other
departments and agencies of the state or from any political
subdivision thereof.
(l) 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.
(m) Prior to making such a recommendation for pardon,
reprieve or commutation and prior to releasing any inmate on
parole, the board shall notify the sentencing judge and
prosecuting attorney at least ten days before such the
recommendation or parole.
(n) 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.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.