COMMITTEE SUBSTITUTE
FOR
H. B. 4039
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[January 18, 2006]
A BILL to
repeal §15-12-2a and §15-12-3a of the Code of West
Virginia, 1931, as amended
; to amend and reenact §15-2C-1 of
said code; to amend and reenact §15-12-2, §15-12-3, §15-12-4,
§15-12-5, §15-12-8, §15-12-9 and §15-12-10 of said code; to
amend said code by adding thereto two new sections, designated
§15-12-6a and §15-12-11;
to amend said code by adding thereto
twenty-two new sections, designated §15-13-1, §15-13-
2, §15-
13-
3, §15-13-
3, §15-13-4,
§15-13-
5, §15-13-
6, §15-13-
7, §15-
13-
8, §15-13-
9, §15-13-
10, §15-13-
11, §15-13-
12, §15-13-
13,
§15-13-
14, §15-13-
15, §15-13-
16, §15-13-
17, §15-13-
18, §15-13-
19, §15-13-
20, §15-13-
21
and §15-13-
22 of said code
; to amend
said code by adding thereto a new section, designated §18A-3-
12; to amend and reenact §17B-2-3 of said code; to amend and
reenact §61-8B-3 and §61-8B-7; to amend and reenact §62-12-2
and §62-12-26 of said code; and to amend said code by adding
thereto a new section, designated §62-12-27, all relating to
the protection of the citizenry from sex offenders; providing for the submission of sex offender information to the central
abuse registry; providing a definition for certain terms;
providing for the release of sex offender information to the
central abuse registry by the judiciary and agencies;
providing for penalties for failure to properly register with
the central abuse registry; creating new penalties for out-of-
state sex offenders that fail to register; providing for
verification of sex offender information by the central abuse
registry; providing for penalties for assisting sex offenders
evade registration; creating the sexually violent predator
act; procedures for judicial determination; rights of parties
and committed persons; procedures for conditional release to
less restrictive alternative or unconditional release; duties
and rule-making authority of Department of Health and Human
Resources; procedures upon escape or disappearance; procedures
for escorted leave; requiring sexually violent predators to be
issued special coded driver's licenses or nondriver
identification cards that identify the holder or owner as a
sexually violent offender; increasing terms of incarceration
for existing crimes; providing for supervised release
requirements for sexually violent offenders; providing for
electronic monitoring for sexually violent offenders on
supervised release, probation and parole; and providing for
professional educators, administrators, school service
personnel, contractors and service providers to be checked
against the central abuse registry.
Be it enacted by the Legislature of West Virginia:
That
§15-12-2a and §15-12-3a
of the Code of West Virginia,
1931, as amended, be repealed; that §15-2C-1 of said code be
amended and reenacted; that §15-12-2, §15-12-3, §15-12-4, §15-12-
5, §15-12-8, §15-12-9 and §15-12-10 of said code be amended and
reenacted; that said code be amended by adding thereto two new
sections, designated §15-12-6a and §15-12-11; that said code be
amended by adding thereto twenty-one new sections, designated
§15-
13-1, §15-13-
2, §15-13-
3, §15-13-
3, §15-13-4,
§15-13-
5, §15-13-
6,
§15-13-
7, §15-13-
8, §15-13-
9, §15-13-
10, §15-13-
11, §15-13-
12, §15-
13-
13, §15-13-
14, §15-13-
15, §15-13-
16, §15-13-
17, §15-13-
18, §15-
13-
19,
§15-13-
20, §15-13-
21
and §15-13-
22; that §17B-2-3 of said
code be amended and reenacted; that said code be amended by adding
thereto a new section, designated §18A-3-12; that §61-8B-3 and
§61-8B-7 of said code be amended and reenacted; that §62-12-2, §62-
12-26 of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §62-12-27, all
to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-1. Definitions.
The following words when used in this article have meanings
ascribed to them in this section, except in those instances where
the context clearly indicates a different meaning:
(a) "Central abuse registry" or "registry" means the registry
created by this article which shall contain the names of
individuals who have been convicted of a felony or a misdemeanor
offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult or an adult receiving
behavioral health services.
(b) "Child abuse and neglect" or "child abuse or neglect"
means those terms as defined in section three, article one, chapter
forty-nine of this code, and shall include any act with respect to
a child which is a crime against the person pursuant to article
two, chapter sixty-one of this code, any act which is unlawful
pursuant to article eight-d of said chapter sixty-one, and any
offense with respect to a child which is enumerated in section
three of this article.
(c) "Abuse or neglect of an incapacitated adult" means
"abuse," "neglect" and "incapacitated adult" as those terms are
defined in section one, article six, chapter nine, and shall
include any act with respect to an incapacitated adult which is a
crime against the person pursuant to article two, chapter sixty-one
of this code, and any offense with respect to an incapacitated
adult which is enumerated in section three of this article.
(d) "Adult receiving behavioral health services" means a
person over the age of eighteen years who is receiving any
behavioral health service from a licensed behavioral health
provider or any behavioral health provider whose services are paid
for, in whole or in part, by medicaid or medicare.
(e) "Conviction" of a felony or a misdemeanor means an
adjudication of guilt by a court or jury following a hearing on the
merits, or entry of a plea of guilty or nolo contendere.
(f) "Residential care facility" means any facility where a
child or an incapacitated adult or an adult receiving behavioral health services resides which is subject to registration, licensure
or certification by the Department of Health and Human Resources,
and shall include nursing homes, personal care homes, residential
board and care homes, adult family care homes, group homes, legally
unlicensed service providers, residential child care facilities,
family based foster care homes, specialized family care homes and
intermediate care facilities for the mentally retarded.
(g) "Misappropriation of property" means any act which is a
crime against property under article three, chapter sixty-one of
this code with respect to a child in a residential care facility or
an incapacitated adult or an adult receiving behavioral health
services in a residential care facility or a child or an
incapacitated adult or an adult receiving behavioral health
services who is a recipient of home care services.
(h) "Home care" or "home care services" means services
provided to children or incapacitated adults or adults receiving
behavioral health services in the home through a hospice provider,
a community care provider, a home health agency, through the
medicaid waiver program, or through any person when that service is
reimbursable under the state medicaid program.
(I) "Requester" means the West Virginia Department of
Education,
any county school board that directly or indirectly
through a school, contracts with a private entity for services that
require the contractor to enter into the school when minor children
are present, any residential care facility, any state licensed day
care center,
or any provider of home care services or an adult
receiving behavioral health services providing to the central abuse registry the name of an individual and other information necessary
to identify that individual, and either: (1) Certifying that the
individual is being considered for employment by the requester or
for a contractual relationship with the requester wherein the
individual will provide services to a child or an incapacitated
adult or an adult receiving behavioral health services for
compensation; or (2) certifying that an allegation of abuse,
neglect or misappropriation of property has been made against the
individual.
ARTICLE 12. SEX OFFENDER REGISTRATION ACT.
§15-12-2. Registration.
(a) The provisions of this article apply both retroactively
and prospectively.
(b) Any person who has been convicted of an offense or an
attempted offense or has been found not guilty by reason of mental
illness, mental retardation or addiction of an offense under any of
the following provisions of chapter sixty-one of this code or under
a statutory provision of another state, the United States Code or
the Uniform Code of Military Justice which requires proof of the
same essential elements shall register as set forth in subsection
(d) of this section and according to the internal management rules
promulgated by the superintendent under authority of section
twenty-five, article two of this chapter:
(1) Article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an act of the
Legislature during the year two thousand legislative session;
(2) Article eight-c;
(3) Sections five and six, article eight-d;
(4) Section fourteen, article two; or
(5) Sections six, seven, twelve and thirteen, article eight.
(c) Any person who has been convicted of a criminal offense
and the sentencing judge made a written finding that the offense
was sexually motivated shall also register as set forth in this
article.
(d) Persons required to register under the provisions of this
article shall
register at the West Virginia State Police detachment
in the county of his or her residence, in which he or she owns real
property, place of employment, occupation, and school and/or
training facility which he or she attends and, in doing so, provide
or cooperate in providing, at a minimum, the following when
registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration:
Provided, That a post office
box shall not be provided in lieu of a physical residential
address; the name and address of the registrant's employer or place
of occupation at the time of registration, the names and addresses
of any anticipated future employers or places of occupation, the
name and address of any school or training facility the registrant
is attending at the time of registration and the names and
addresses of any schools or training facilities the registrant
expects to attend.
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of
registration;
(5) A brief description of the crime or crimes for which the
registrant was convicted;
(6) Fingerprints;
(7) Information related to any motor vehicle,
trailer or motor
home owned or regularly operated by a registrant,
including vehicle
make, model, color, license plate number and vehicle identification
number; and
(8) Information relating to any internet accounts the
registrant has and the screen names, user names or aliases the
registrant uses on the internet;
and
(9) Information related to any telephone or electronic paging
device numbers that the registrant uses, including, but not limited
to, residential, work and mobile telephone numbers.
(e) On the date that any person convicted or found not guilty
by reason of mental illness, mental retardation or addiction of any
of the crimes listed in subsection (b) of this section, hereinafter
referred to as a "qualifying offense", including those persons who
are continuing under some post-conviction supervisory status, are
released, granted probation or a suspended sentence, released on
parole, probation, home detention, work release, conditional
release or any other release from confinement, the Commissioner of
Corrections, regional jail administrator, city or sheriff operating
a jail or secretary of the Department of Health and Human Resources
which releases the person, and any parole or probation officer who releases the person or supervises the person following the release,
shall obtain all information required by subsection (d) of this
section prior to the release of the person, inform the person of
his or her duty to register and send written notice of the release
of the person to the State Police within three business days of
receiving the information. The notice must include the information
required by said subsection. Any person having a duty to register
for a qualifying offense shall register upon conviction, unless
that person is confined or incarcerated, in which case he or she
shall register within three business days of release, transfer or
other change in disposition status.
(f) For any person determined to be a sexually violent
predator, the notice required by subsection (d) of this section
must also include:
(1) Identifying factors, including physical characteristics;
(2) History of the offense; and
(3) Documentation of any treatment received for the mental
abnormality or personality disorder.
(g) At the time the person is convicted or found not guilty by
reason of mental illness, mental retardation or addiction in a
court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted of
the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or
her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed, constitutes
prima facie evidence that the person had knowledge of the
requirements of this article. Upon completion of the statement, the
court shall provide a copy to the registry. Persons who have not
signed a statement under the provisions of this subsection and who
are subject to the registration requirements of this article must
be informed of the requirement by the state police whenever the
state police obtain information that the person is subject to
registration requirements.
(h) The state police shall maintain a central registry of all
persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the state police by subdivision (2),
subsection (b), section five of this article is to be accessible
through the internet. No information relating to internet accounts,
screen names, user names,
or aliases
or telephone or electronic
paging device numbers a registrant has or uses may be released
through the internet.
(i) For the purpose of this article, "sexually violent
offense" means:
(1) Sexual assault in the first degree as set forth in section
three, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction;
(2) Sexual assault in the second degree as set forth in
section four, article eight-b, chapter sixty-one of this code or of a similar provision in another state, federal or military
jurisdiction;
(3) Sexual assault of a spouse as set forth in the former
provisions of section six, article eight-b, chapter sixty-one of
this code, which was repealed by an act of the Legislature during
the two thousand legislative session, or of a similar provision in
another state, federal or military jurisdiction;
(4) Sexual abuse in the first degree as set forth in section
seven, article eight-b, chapter sixty-one of this code or of a
similar provision in another state, federal or military
jurisdiction;
(j) For purposes of this article, the term "sexually
motivated" means that one of the purposes for which a person
committed the crime was for any persons' sexual gratification.
(k) For purposes of this article, the term "sexually violent
predator" means a person who has been
determined to be a sexually
violent predator pursuant to article thirteen of this
chapterconvicted or found not guilty by reason of mental illness,
mental retardation or addiction of a sexually violent offense and
who suffers from a mental abnormality or personality disorder that
makes the person likely to engage in predatory sexually violent
offenses.
(l)
For purposes of this article, the term "mental
abnormality" means a congenital or acquired condition of a person
that affects the emotional or volitional capacity of the person in
a manner that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the health and safety of other persons.
(m) For purposes of this article, the term "predatory act"
means an act directed at a stranger or at a person with whom a
relationship has been established or promoted for the primary
purpose of victimization.
(n) For the purposes of this article, the term "business
days", means days exclusive of Saturdays, Sundays and legal
holidays as defined in section one, article two, chapter two of
this code.
§15-12-3. Change in registry information.
(a) When any person required to register under this article
changes his or her residence, address, place of employment or
occupation,
vehicle information required by section two of this
article, or school or training facility which he or she is
attending,
or motor vehicle, trailer or motor home information
required by section two of this article, or when any of the other
information required by this article changes, he or she shall,
within ten business days, inform the West Virginia State Police of
the changes in the manner prescribed by the Superintendent of State
Police in procedural rules promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
(b) If a person who is required to register under the
provisions of this article acquires real property within a county
in this state, he or she must send written notice of the address of
the property to the West Virginia State Police detachment in the
county where the real property is located within ten days of
acquiring the property.
§15-12-4. Duration.
(a) A person required to register under the terms of this
article shall continue to comply with this section, except during
ensuing periods of incarceration or confinement, until:
(1) Ten years have elapsed since the person was released from
prison, jail or a mental health facility or ten years have elapsed
since the person was placed on probation, parole or supervised or
conditional release. The ten-year registration period shall not be
reduced by the sex offender's release from probation, parole or
supervised or conditional release; or
(2) For the life of that person if that person: (A) Has one
or more prior convictions or has previously been found not guilty
by reason of mental illness, mental retardation or addiction for
any qualifying offense referred to in this article; or (B) has
been convicted or has been found not guilty by reason of mental
illness, mental retardation or addiction of a qualifying offense as
referred to in this article, and upon motion of the prosecuting
attorney, the court finds by clear and convincing evidence, that
the qualifying offense involved multiple victims or multiple
violations of the qualifying offense; or (C) has been convicted or
has been found not guilty by reason of mental illness, mental
retardation or addiction of a sexually violent offense; or (D) has
been determined pursuant to
section two-a of this article
thirteen
of this chapter to be a sexually violent predator; or (E) has been
convicted or has been found not guilty by reason of mental illness,
mental retardation or addiction of a qualifying offense as referred
to in this article, involving a minor.
(b) A person whose conviction is overturned for the offense
which required them to register under this article shall, upon
petition to the court, have their name removed from the registry.
§15-12-5. Distribution and disclosure of information; community
information programs by prosecuting attorney and
state police; petition to circuit court.
(a) Within five business days after receiving any notification
as described in this article, the state police shall distribute a
copy of the notification statement to:
(1) The supervisor of each county and municipal
law-enforcement office and any campus police department in the city
and county where the registrant resides,
owns real property, is
employed or attends school or a training facility;
(2) The county superintendent of schools where the registrant
resides,
owns real property, is employed or attends school or a
training facility;
(3) The child protective services office charged with
investigating allegations of child abuse or neglect in the county
where the registrant resides,
owns real property, is employed or
attends school or a training facility;
(4) All community organizations or religious organizations
which regularly provide services to youths in the county where the
registrant resides,
owns real property, is employed or attends
school or a training facility;
(5) Individuals and organizations which provide day care
services for youths or day care, residential or respite care, or
other supportive services for mentally or physically incapacitated or infirm persons in the county where the registrant resides,
owns
real property, is employed or attends school or a training
facility; and
(6) The Federal Bureau of Investigation (FBI).
(b) Information concerning persons whose names are contained
in the sexual offender registry is not subject to the requirements
of the West Virginia Freedom of Information Act, as set forth in
chapter twenty-nine-b of this code, and may be disclosed and
disseminated only as otherwise provided in this article and as
follows:
(1) When a person has been determined to be a sexually violent
predator under the terms of
section two-a of this article
thirteen
of this chapter, the state police shall notify the prosecuting
attorney of the county in which the person resides,
owns real
property, is employed or attends a school or training facility.
The prosecuting attorney shall cooperate with the state police in
conducting a community notification program which is to include
publication of the offender's name, photograph, place of residence
or location of real property owned by the offender, employment and
education or training, as well as information concerning the legal
rights and obligations of both the offender and the community.
Information relating to the victim of an offense requiring
registration may not be released to the public except to the extent
the prosecuting attorney and the state police consider it necessary
to best educate the public as to the nature of sexual offenses:
Provided, That no victim's name may be released in any public
notification pursuant to this subsection. No information relating to internet accounts, screen names, user names,
or aliases
or
telephone or electronic paging device numbers a registrant has or
uses may be released to the public with this notification program.
The prosecuting attorney and State Police may conduct a community
notification program in the county of residence, employment or
where a person is attending school or a training facility of any
person who is required to register for life under the terms of
subdivision (2), subsection (a), section four of this article.
Community notification may be repeated when determined to be
appropriate by the prosecuting attorney;
(2) The state police shall maintain and make available to the
public at least quarterly the list of all persons who are required
to register for life according to the terms of subdivision (2),
subsection (a), section four of this article. No information
concerning the identity of a victim of an offense requiring
registration or information relating to internet accounts, screen
names, user names,
or aliases
or telephone or electronic paging
device numbers a registrant has or uses may be released with this
list. The method of publication and access to this list are to be
determined by the superintendent; and
(3) A resident of a county may petition the circuit court for
an order requiring the state police to release information about
persons residing
or owning real property in that county who are
required to register under section two of this article. The court
shall determine whether information contained on the list is
relevant to public safety and whether its relevance outweighs the
importance of confidentiality. If the court orders information to be released, it may further order limitations upon secondary
dissemination by the resident seeking the information. In no event
may information concerning the identity of a victim of an offense
requiring registration or information relating to internet
accounts, screen names, user names or aliases a registrant has or
uses be released.
(c) The state police may furnish information and documentation
required in connection with the registration to authorized law
enforcement, campus police and governmental agencies of the United
States and its territories, of foreign countries duly authorized to
receive the same, of other states within the United States and of
the State of West Virginia upon proper request stating that the
records will be used solely for law enforcement-related purposes.
The state police may disclose information collected under this
article to federal, state and local governmental agencies
responsible for conducting pre-employment checks.
(d) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or in
bad faith.
§15-12-6a. Release of information to the Central Abuse Registry.
Upon the request of the entity maintaining the Central Abuse
Registry, agencies in possession of records produced in conjunction
with the investigation, prosecution, adjudication, incarceration,
probation, parole, or pre-sentence review of a sex offender and/or
any other records produced in conjunction with a sex offense shall provide those records to the entity maintaining the Central Abuse
Registry.
§15-12-8. Failure to register or provide notice of registration
changes; penalty.
(a)
Except as provided in this section, any person required to
register under this article who knowingly provides false
information or who refuses to provide accurate information when so
required by terms of this article, or who knowingly fails to
register or knowingly fails to provide a change in any information
as required by this article, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred fifty
dollars nor more than ten thousand dollars or imprisoned in the
county or regional jail not more than one year, or both: Provided,
That each Each time
the a person has a change in any of the
registration information as required by this article and
knowingly
fails to register the change or changes, each failure to register
each separate item of information changed shall constitute a
separate offense
under this section.
(b)
Any person required to register under this article who is
convicted of a second or subsequent offense of failing to register
or provide a change in any information as required by this article
or any person who is required to register for life pursuant to
subsection (2), subdivision (a), section four of this article and
who knowingly provides false information or who refuses to provide
accurate information when so required by terms of this article or
who knowingly fails to register or knowingly fails to provide a
change in information as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years. Except as provided in this section, any person required to
register for ten years or less pursuant to subdivision (1),
subsection (a), section four of this article who knowingly provides
false information or who refuses to provide accurate information
when so required by terms of this article, or who knowingly fails
to register or knowingly fails to provide a change in any
information as required by this article, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than two
hundred fifty dollars nor more than ten thousand dollars or
confined in jail not more than one year, or both fined and
imprisoned. Any person convicted of a second offense under this
subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than one year nor more than five years. Any person convicted of a
third or subsequent offense under this subsection is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than five years nor more than
twenty-five years.
(c)
Any person required to register as a sexual predator who
knowingly provides false information or who refuses to provide
accurate information when so required by terms of this article or
who knowingly fails to register or knowingly fails to provide a
change in any information as required by this article is guilty of
a felony and, upon conviction thereof, shall, for a first offense,
be confined in a state correctional facility not less than two years nor more than ten years and for a second or subsequent
offense, is guilty of a felony and shall be confined in a state
correctional facility not less than five years nor more than twenty
years. Any person required to register for life pursuant to this
article who knowingly provides false information or who refuses to
provide accurate information when so required by terms of this
article, or who knowingly fails to register or knowingly fails to
provide a change in any information as required by this article, is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
year nor more than five years. Any person convicted of a second or
subsequent offense under this subsection is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than ten years nor more than
twenty-five years.
(d)
In addition to any other penalty specified for failure to
register under this article, any person under the supervision of a
probation officer, parole officer or any other sanction short of
confinement in jail or prison who knowingly refuses to register or
who knowingly fails to provide a change in information as required
by this article shall be subject to immediate revocation of
probation or parole and returned to confinement for the remainder
of any suspended or unserved portion of his or her original
sentence.Any person required to register pursuant to section nine
of this article who is convicted of failing to register as required
by this article and who knowingly avoids registration or who
knowingly fails to register as required by this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a
state correctional facility for not less than one year nor more
than five years. Any person required to register pursuant to
section nine of this article who is convicted of a second or
subsequent offense of failing to register as required by this
article and who knowingly avoids registration or who knowingly
fails to register as required by this article is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than ten years nor more than
twenty-five years.
(e) In addition to any other penalty specified for failure to
register under this article, any person under the supervision of a
probation officer, parole officer or any other sanction short of
confinement in jail or prison who knowingly refuses to register or
who knowingly fails to provide a change in information as required
by this article shall be subject to immediate revocation of
probation or parole and returned to confinement for the remainder
of any suspended or unserved portion of his or her original
sentence.
§ 15-12-9. Registration of out-of-state offenders.
(a) When any probation or parole officer accepts supervision
of and has legal authority over any person required to register
under this article from another state under the terms and
conditions of the uniform act for out-of-state parolee supervision
established under article six, chapter twenty-eight of this code,
the officer shall give the person written notice of the
registration requirements of this section and obtain a signed statement from the person required to register acknowledging the
receipt of the notice. The officer shall obtain and submit to the
state police the information required in subsection (d), section
two of this article.
(b) Any person:
(1) Who resides in another state or federal or military
jurisdiction;
(2) Who is employed, carries on a vocation, is a student in
this state or is a visitor to this state for a period of more than
fifteen continuous days; and
(3) Who is required by the state, federal or military
jurisdiction in which he or she resides to register in that state,
federal or military jurisdiction as a sex offender, or has been
convicted of a violation in that state, federal or military
jurisdiction that is similar to a violation in this article
requiring registration as a sex offender in this state, shall
register in this state and otherwise comply with the provisions of
this article.
(c) Any person
acquiring real property in this state or
changing residence to this state from another state or federal or
military jurisdiction who is required to register as a sex offender
under the laws of that state or federal or military jurisdiction
shall register as a sex offender in this state.
§15-12-10. Address verification.
The State Police shall verify addresses of those persons
registered as sexually violent predators every ninety days and all
other registered persons once a year. The State Police may require registrants to periodically submit to new fingerprints and
photographs as part of the verification process. The method of
verification shall be in accordance with internal management rules
pertaining thereto promulgated by the superintendent under
authority of section twenty-five, article two, chapter fifteen of
this code.
All registrants, including those for whom there has
been no change in registration information since their initial
registration or previous address verification, must respond to all
verification inquiries or requests made by the State Police
pursuant to this section.
§15-12-11. Additional penalties.
A person commits a misdemeanor and, upon conviction thereof,
shall be fined not less than two hundred fifty dollars nor more
than ten thousand dollars or imprisoned in jail not more than one
year, or both fined and imprisoned, when he or she:
(1) Knows that a sexual offender required to register under
this article is not complying, or has not complied, with the
registration requirements of this article; and
(2) Intends to assist the sexual offender in eluding a
law-enforcement agency seeking to find said sexual offender to
question the sexual offender about, or to arrest the sexual
offender for, his or her noncompliance with the requirements of
this article; and withholds information from the law-enforcement
agency about the sexual offender's non-compliance with requirements
of this article while aware of the whereabouts of the sexual
offender or provides information to the law-enforcement agency
regarding the sexual offender that he or she knows to be false.
ARTICLE 13. SEXUALLY VIOLENT PREDATOR ACT.
§15-13-1. Legislative Findings.
The Legislature finds:
(1) That a small but extremely dangerous group of sexually
violent predators exist who do not have a mental disease or defect
that renders them appropriate for the existing involuntary
treatment act, article five, chapter twenty-seven of the Code,
which is intended to be a short-term civil commitment system that
is primarily designed to provide short-term treatment to
individuals with serious mental disorders and then return them to
the community. In contrast to persons appropriate for civil
commitment under article five, chapter twenty-seven of the Code,
sexually violent predators generally have personality disorders
and/or mental abnormalities which are unamenable to existing mental
illness treatment modalities and those conditions render them
likely to engage in sexually violent behavior.
(2) That sex offenders' likelihood of engaging in repeat acts
of predatory sexual violence is high. The existing involuntary
commitment act, article five, chapter twenty-seven of the Code, is
inadequate to address the risk to re-offend because during
confinement these offenders do not have access to potential victims
and therefore they will not engage in an overt act during
confinement as required by the involuntary treatment act for
continued confinement.
(3) That the prognosis for curing sexually violent offenders
is poor, the treatment needs of this population are very long term,
and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate
for commitment under the involuntary treatment act.
§15-13-2 Definitions.
Unless the context clearly requires otherwise, the definitions
in this section apply throughout this article:.
(1) "Department" means the Department of Health and Human
Resources.
(2) "Escort" means a correctional officer or other person
approved by the superintendent or the superintendent's designee to
accompany a resident on a leave of absence and be in visual or
auditory contact with the resident at all times
.
(3) "Escorted leave" means a leave of absence from a facility
housing persons detained or committed pursuant to this article
under the continuous supervision of an escort.
(4) "Less restrictive alternative" means court-ordered
treatment in a setting less restrictive than total confinement
which satisfies the conditions set forth in section eleven of this
article.
(5) "Likely to engage in predatory acts of sexual violence if
not confined in a secure facility" means that the person more
probably than not will engage in such acts if released
unconditionally from detention on the sexually violent predator
petition. Such likelihood must be evidenced by a recent overt act
if the person is not totally confined at the time the petition is
filed under section four of this article
.
(6) "Mental abnormality" means a congenital or acquired condition affecting the emotional or volitional capacity which
predisposes the person to the commission of criminal sexual acts in
a degree constituting such person a menace to the health and safety
of others.
(7) "Predatory" means acts directed towards: (a) Strangers;
(b) individuals with whom a relationship has been established or
promoted for the primary purpose of victimization; or (c) persons
of casual acquaintance with whom no substantial personal
relationship exists.
(8) "Recent overt act" means any act or threat that has either
caused harm of a sexually violent nature or creates a reasonable
apprehension of such harm in the mind of an objective person who
knows of the history and mental condition of the person engaging in
the act.
(9) "Resident" means a person detained or committed pursuant
to this article.
(10) "Risk potential activity" or "risk potential facility"
means an activity or facility that provides a higher incidence of
risk to the public from persons conditionally released from the
special commitment center. Risk potential activities and facilities
include: Public and private schools, school bus stops, licensed day
care and licensed preschool facilities, public parks, publicly
dedicated trails, sports fields, playgrounds, recreational and
community centers, churches, synagogues, temples, mosques, public
libraries, and public and private youth camps. For purposes of
this article, "school bus stops" does not include bus stops
established primarily for public transit.
(11) "Secretary" means the Secretary of the Department of
Health and Human Services or the Secretary's designee.
(12) "Secure facility" means a residential facility for
persons civilly confined under the provisions of this article that
includes security measures sufficient to protect the community.
Such facilities include total confinement facilities, and any
residence used as a court-ordered placement under section eleven of
this article.
(13) "Sexual motivation" means that one of the purposes for
which the defendant committed the crime was for the purpose of his
or her sexual gratification.
(14) "Sexually violent offense" means an act that is defined
in:
(a) any of the following provisions of chapter sixty-one of
this code:
(i) article eight-b, including the provisions of former
section six of said article, relating to the offense of sexual
assault of a spouse, which was repealed by an act of the
Legislature during the year two thousand legislative session;
(ii) article eight-c;
(iii) sections five and six, article eight-d;
(iv) section fourteen, article two; or
(v) sections six, seven, twelve and thirteen, article eight;
(b) a felony offense that is comparable to a sexually violent
offense as defined in subparagraph (a) of this paragraph, or any
federal or out-of-state conviction for a felony offense that under
the laws of this state would be a sexually violent offense as defined in this subsection;
(c) any of the following provisions of chapter sixty-one of
this code:
(i) section one, article two;
(ii) section nine, article two;
(iii) section ten, article two;
(iv) section fourteen, article two;
(v) section twenty-eight, article two;
(vi) section twenty-nine, article two; or
(vii) section eleven, article three,
if the act, either at the time of sentencing for the offense or
subsequently during civil commitment proceedings pursuant to this
article, has been determined beyond a reasonable doubt to have been
sexually motivated, as that term is defined in paragraph seventeen
of this section; or
(d) an act that is an attempt, criminal solicitation, or
criminal conspiracy to commit one of the felonies designated in
(a), (b), or (c) of this paragraph.
(15) "Sexually violent predator" means any person who has been
convicted of or charged with a crime of sexual violence and who
suffers from a mental abnormality or personality disorder which
makes the person likely to engage in predatory acts of sexual
violence if not confined in a secure facility.
(16) "Total confinement facility" means a secure facility that
provides supervision and sex offender treatment services in a total
confinement setting. Total confinement facilities include a special
commitment center or any facility designated as a total confinement facility by the secretary.
§15-13-3. Notice to prosecuting attorney prior to release.
(a)(1) When it appears that a person may be a sexually violent
predator, the agency with jurisdiction shall refer the person in
writing to the prosecuting attorney of the county where that person
was charged, three months prior to:
(i) The anticipated release from total confinement of a person
who has been convicted of a sexually violent offense;
(ii) The anticipated release from total confinement of a
person found to have committed a sexually violent offense as a
juvenile;
(iii) Release of a person who has been charged with a sexually
violent offense and who has been determined to be incompetent to
stand trial pursuant to section four, article six, chapter twenty-
seven of the Code; or
(iv) Release of a person who has been found not guilty by
reason of insanity of a sexually violent offense pursuant to
section four, article six, chapter twenty-seven of the Code.
(2) The agency shall provide the prosecutor with all relevant
information including, but not limited to, the following
information:
(i) A complete copy of the institutional records compiled by
the Division of Corrections relating to the person, and any such
out-of-state Division of Corrections' records, if available;
(ii) All records relating to the psychological or psychiatric
evaluation and/or treatment of the person;
(iii) A current record of all prior arrests and convictions, and full police case reports relating to those arrests and
convictions; and
(iv) A current mental health evaluation or mental health
records review.
(b) The agency with jurisdiction, its employees, and officials
shall be immune from liability for any good-faith conduct under
this section.
(c) As used in this section, "agency with jurisdiction" means
that agency with the authority to direct the release of a person
serving a sentence or term of confinement and includes the Division
of Corrections, the West Virginia Parole Board, the Regional Jail
and Correctional Facility Authority and the Department.
§15-13-4. Sexually violent predator petition - Filing.
When it appears that:
(1) A person who at any time previously has been convicted of
a sexually violent offense is about to be released from total
confinement;
(2) a person found to have committed a sexually violent
offense as a juvenile is about to be released from total
confinement;
(3) a person who has been charged with a sexually violent
offense and who has been determined to be incompetent to stand
trial is about to be released, or has been released pursuant to
section four, article six, chapter twenty-seven of the Code;
(4) a person who has been found not guilty by reason of
insanity of a sexually violent offense is about to be released,
pursuant to section four, article six, chapter twenty-seven of the Code; or
(5) a person who at any time previously has been convicted of
a sexually violent offense and has since been released from total
confinement and has committed a recent overt act;
and it appears that the person may be a sexually violent predator,
the prosecuting attorney of the county where the person was
convicted or charged may file a petition alleging that the person
is a "sexually violent predator" and stating sufficient facts to
support such allegation.
§15-13-5. Sexually violent predator petition - Probable cause
hearing - Judicial determination - Transfer for evaluation.
(a) Upon the filing of a petition under section four of this
article, the judge shall determine whether probable cause exists to
believe that the person named in the petition is a sexually violent
predator. If such determination is made the judge shall direct that
the person be taken into custody.
(b) Within seventy-two hours after a person is taken into
custody pursuant to subsection (a) of this section, the court shall
provide the person with notice of, and an opportunity to appear in
person, at a hearing to contest probable cause as to whether the
person is a sexually violent predator. At this hearing, the court
shall:
(1) verify the person's identity, and
(2) determine whether probable cause exists to believe that
the person is a sexually violent predator.
At the probable cause hearing, the state may rely upon the
petition and certification for determination of probable cause filed pursuant to section four of this article. The state may
supplement this with additional documentary evidence or live
testimony.
(c) At the probable cause hearing, the person shall have the
following rights in addition to the rights previously specified:
(1) to be represented by counsel; (2) to present evidence on his or
her behalf; (3) to cross-examine witnesses who testify against him
or her; and (4) to view and copy all petitions and reports in the
court file.
(d) If the probable cause determination is made, the judge
shall direct that the person be transferred to an appropriate
facility for an evaluation as to whether the person is a sexually
violent predator. The evaluation shall be conducted by a person
deemed to be professionally qualified to conduct such an
examination pursuant to rules developed by the Department. In
adopting such rules, the Department shall consult with the bureau
for public health and the division of corrections. In no event
shall the person be released from confinement prior to trial. A
witness called by either party shall be permitted to testify by
telephone.
§15-13-6. Trial - Rights of parties.
(a) Within forty-five days after the completion of any hearing
held pursuant to section five of this article, the court shall
conduct a trial to determine whether the person is a sexually
violent predator. The trial may be continued upon the request of
either party and a showing of good cause, or by the court on its
own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of
the proceedings under this article, any person subject to this
article shall be entitled to the assistance of counsel, and if the
person is indigent, the court shall appoint counsel to assist him
or her. The person shall be confined in a secure facility for the
duration of the trial.
(b) Whenever any person is subjected to an examination under
this article, he or she may retain experts or professional persons
to perform an examination on their behalf. When the person wishes
to be examined by a qualified expert or professional person of his
or her own choice, such examiner shall be permitted to have
reasonable access to the person for the purpose of such
examination, as well as to all relevant medical and psychological
records and reports. In the case of a person who is indigent, the
court shall, upon the person's request, assist the person in
obtaining an expert or professional person to perform an
examination or participate in the trial on the person's behalf.
(c) The person, the prosecuting attorney, or the judge shall
have the right to demand that the trial be before a twelve-person
jury. If no demand is made, the trial shall be before the court.
§15-13-7. Trial - Determination - Commitment procedures.
(a) The court or jury shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator. In
determining whether or not the person would be likely to engage in
predatory acts of sexual violence if not confined in a secure
facility, the fact finder may consider only placement conditions
and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent
predator petition. When the determination is made by a jury, the
verdict must be unanimous.
(1) If, on the date that the petition is filed, the person
was living in the community after release from custody, the state
must also prove beyond a reasonable doubt that the person had
committed a recent overt act. If the state alleges that the prior
sexually violent offense that forms the basis for the petition for
commitment was an act that was sexually motivated, the state must
prove beyond a reasonable doubt that the alleged sexually violent
act was sexually motivated.
(2) If the court or jury determines that the person is a
sexually violent predator, the person shall be committed to the
custody of the Department for placement in a secure facility
operated by the Department for control, care, and treatment until
such time as: (i) The person's condition has so changed that the
person no longer meets the definition of a sexually violent
predator; or (ii) conditional release to a less restrictive
alternative as set forth in section eleven of this article is in
the best interest of the person and conditions can be imposed that
would adequately protect the community.
(3) If the court or unanimous jury decides that the state has
not met its burden of proving that the person is a sexually violent
predator, the court shall direct the person's release.
(4) If the jury is unable to reach a unanimous verdict, the
court shall declare a mistrial and set a retrial within forty-five
days of the date of the mistrial unless the prosecuting attorney earlier moves to dismiss the petition. The retrial may be continued
upon the request of either party accompanied by a showing of good
cause, or by the court on its own motion in the due administration
of justice provided that the respondent will not be substantially
prejudiced. In no event may the person be released from confinement
prior to retrial or dismissal of the case.
(b) If the person charged with a sexually violent offense has
been found incompetent to stand trial, and is about to or has been
released pursuant to section four, article six, chapter twenty-
seven of the Code, and his or her commitment is sought pursuant to
subsection (a) of this section, the court shall first hear evidence
and determine whether the person did commit the act or acts charged
if the court did not enter a finding prior to dismissal under
section four, article six, chapter twenty-seven of the Code that
the person committed the act or acts charged. The hearing on this
issue must comply with all the procedures specified in this
section. In addition, the rules of evidence applicable in criminal
cases shall apply, and all constitutional rights available to
defendants at criminal trials, other than the right not to be tried
while incompetent, shall apply. After hearing evidence on this
issue, the court shall make specific findings on whether the person
did commit the act or acts charged, the extent to which the
person's incompetence or developmental disability affected the
outcome of the hearing, including its effect on the person's
ability to consult with and assist counsel and to testify on his or
her own behalf, the extent to which the evidence could be
reconstructed without the assistance of the person, and the strength of the prosecution's case. If, after the conclusion of the
hearing on this issue, the court finds, beyond a reasonable doubt,
that the person did commit the act or acts charged, it shall enter
a final order, appealable by the person, on that issue, and may
proceed to consider whether the person should be committed pursuant
to this section.
(c) The state shall comply with section three, article six-A,
chapter twenty-seven of the Code while confining the person
pursuant to this article, except that during all court proceedings
the person shall be detained in a secure facility.
(d) A court has jurisdiction to order a less restrictive
alternative placement only after a hearing ordered pursuant to
section ten of this article following initial commitment under this
section and in accord with the provisions of this article.
§15-13-8. Annual examinations of persons committed under article.
Each person committed under this article shall have a current
examination of his or her mental condition made by the Department
at least once every year. The annual report shall include
consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional
release to a less restrictive alternative is in the best interest
of the person and conditions can be imposed that would adequately
protect the community. The Department shall file this periodic
report with the court that committed the person under this article.
The report shall be in the form of a declaration or certification
in compliance with the requirements of section ten-a, article one,
chapter thirty-nine of the Code and shall be prepared by a professionally qualified person as defined by rules adopted by the
secretary. A copy of the report shall be served on the prosecuting
agency involved in the initial commitment and upon the committed
person and his or her counsel. The committed person may retain, or
if he or she is indigent and so requests, the court may appoint a
qualified expert or a professional person to examine him or her,
and such expert or professional person shall have access to all
records concerning the person.
§15-13-9. Rights of persons committed.
(a) Any person subjected to restricted liberty as a sexually
violent predator pursuant to this article shall not forfeit any
legal right or suffer any legal disability as a consequence of any
actions taken or orders made, other than as specifically provided
in this article.
(b) Any person committed pursuant to this article has the
right to adequate care and individualized treatment. The Department
shall keep records detailing all medical, expert, and professional
care and treatment received by a committed person, and shall keep
copies of all reports of periodic examinations made pursuant to
this article. All such records and reports shall be made available
upon request only to: The committed person, his or her attorney,
the prosecuting attorney, the court, a protection and advocacy
agency, or another expert or professional person who, upon proper
showing, demonstrates a need for access to such records.
(c) At the time a person is taken into custody or transferred
into a facility pursuant to a petition under this article, the
person in charge of such facility or his or her designee shall take reasonable precautions to inventory and safeguard the personal
property of the persons detained or transferred. A copy of the
inventory, signed by the staff member making it, shall be given to
the person detained and shall, in addition, be open to inspection
to any responsible relative, subject to limitations, if any,
specifically imposed by the detained person. For purposes of this
subsection, "responsible relative" includes the guardian,
conservator, attorney, spouse, parent, adult child, or adult
brother or sister of the person. The facility shall not disclose
the contents of the inventory to any other person without consent
of the patient or order of the court.
(d) Nothing in this article prohibits a person presently
committed from exercising a right presently available to him or her
for the purpose of obtaining release from confinement, including
the right to petition for a writ of habeas corpus.
§15-13-10. Petition for conditional release to less restrictive
alternative or unconditional discharge - Procedures.
(a) If the secretary determines that the person's condition
has so changed that either: (a) the person no longer meets the
definition of a sexually violent predator; or (b) conditional
release to a less restrictive alternative is in the best interest
of the person and conditions can be imposed that adequately protect
the community, the secretary shall authorize the person to petition
the court for conditional release to a less restrictive alternative
or unconditional discharge. The petition shall be filed with the
court and served upon the prosecuting attorney responsible for the
initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or
unconditional discharge, shall within forty-five days order a
hearing.
(b)(1) Nothing contained in this article shall prohibit the
person from otherwise petitioning the court for conditional release
to a less restrictive alternative or unconditional discharge
without the secretary's approval. The secretary shall provide the
committed person with an annual written notice of the person's
right to petition the court for conditional release to a less
restrictive alternative or unconditional discharge over the
secretary's objection. The notice shall contain a waiver of rights.
The secretary shall file the notice and waiver form and the annual
report with the court. If the person does not affirmatively waive
the right to petition, the court shall set a show cause hearing to
determine whether probable cause exists to warrant a hearing on
whether the person's condition has so changed that: (i) He or she
no longer meets the definition of a sexually violent predator; or
(ii) conditional release to a proposed less restrictive alternative
would be in the best interest of the person and conditions can be
imposed that would adequately protect the community.
(2) The committed person shall have a right to have an
attorney represent him or her at the show cause hearing, which may
be conducted solely on the basis of affidavits or declarations, but
the person is not entitled to be present at the show cause hearing.
At the show cause hearing, the prosecuting attorney or attorney
general shall present prima facie evidence establishing that the
committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in
the best interest of the person and conditions cannot be imposed
that adequately protect the community. In making this showing, the
state may rely exclusively upon the annual report prepared pursuant
to section eight of this article. The committed person may present
responsive affidavits or declarations to which the state may reply.
(3) If the court at the show cause hearing determines that
either: (i) The state has failed to present prima facie evidence
that (A) the committed person continues to meet the definition of
a sexually violent predator; or (B) release to a less restrictive
alternative is not in the best interest of the person and
conditions cannot be imposed that would adequately protect the
community; or (ii) probable cause exists to believe that the
person's condition has so changed that: (A) The person no longer
meets the definition of a sexually violent predator; or (B) release
to a proposed less restrictive alternative would be in the best
interest of the person and conditions can be imposed that would
adequately protect the community, then the court shall set a
hearing on either or both issues.
(4) If the court has not previously considered the issue of
release to a less restrictive alternative, either through a trial
on the merits or through the procedures set forth in subsection
(a), section twelve of this article, the court shall consider
whether release to a less restrictive alternative would be in the
best interests of the person and conditions can be imposed that
would adequately protect the community, without considering whether
the person's condition has changed.
(c)(1) At the hearing resulting from subsection (a) or (b) of
this section, the committed person shall be entitled to be present
and to the benefit of all constitutional protections that were
afforded to the person at the initial commitment proceeding. The
prosecuting agency shall represent the state and shall have a right
to a jury trial and to have the committed person evaluated by
experts chosen by the state. The committed person shall also have
the right to a jury trial and the right to have experts evaluate
him or her on his or her behalf and the court shall appoint an
expert if the person is indigent and requests an appointment.
(2) If the issue at the hearing is whether the person should
be unconditionally discharged, the burden of proof shall be upon
the state to prove beyond a reasonable doubt that the committed
person's condition remains such that the person continues to meet
the definition of a sexually violent predator. Evidence of the
prior commitment trial and disposition is admissible.
(3) If the issue at the hearing is whether the person should
be conditionally released to a less restrictive alternative, the
burden of proof at the hearing shall be upon the state to prove
beyond a reasonable doubt that conditional release to any proposed
less restrictive alternative either: (i) Is not in the best
interest of the committed person; or (ii) does not include
conditions that would adequately protect the community. Evidence of
the prior commitment trial and disposition is admissible.
(d)(1) Probable cause exists to believe that a person's
condition has "so changed," under subsection (b) of this section,
only when evidence exists, since the person's last commitment trial proceeding, of a substantial change in the person's physical or
mental condition such that the person either no longer meets the
definition of a sexually violent predator or that a conditional
release to a less restrictive alternative is in the person's best
interest and conditions can be imposed to adequately protect the
community.
(2) A new trial proceeding under subsection (c) of this
section may be ordered, or held, only when there is current
evidence from a licensed professional of one of the following and
the evidence presents a change in condition since the person's last
commitment trial proceeding:
(i) An identified physiological change to the person, such as
paralysis, stroke, or dementia, that renders the committed person
unable to commit a sexually violent act and this change is
permanent; or
(ii) A change in the person's mental condition brought about
through positive response to continuing participation in treatment
which indicates that the person meets the standard for conditional
release to a less restrictive alternative or that the person would
be safe to be at large if unconditionally released from commitment.
(3) For purposes of this section, a change in a single
demographic factor, without more, does not establish probable cause
for a new trial proceeding under subsection (c) of this section. As
used in this section, a single demographic factor includes, but is
not limited to, a change in the chronological age, marital status,
or gender of the committed person.
(e) The jurisdiction of the court over a person civilly committed pursuant to this article continues until such time as the
person is unconditionally discharged.
§15-13-11. Conditional release to less restrictive alternative -
Findings.
Before the court may enter an order directing conditional
release to a less restrictive alternative, it must find the
following:
(1) The person will be treated by a treatment provider who is
qualified to provide such treatment in the state of West Virginia;
(2) the treatment provider has presented a specific course of
treatment and has agreed to assume responsibility for such
treatment and will report progress to the court on a regular basis,
and will report violations immediately to the court, the
prosecutor, and the supervising community corrections;
(3) housing exists that is sufficiently secure to protect the
community, and the person or agency providing housing to the
conditionally released person has agreed in writing to accept the
person, to provide the level of security required by the court, and
immediately to report to the court, the prosecutor, and the
supervising community corrections officer if the person leaves the
housing to which he or she has been assigned without authorization;
(4) the person is willing to comply with the treatment
provider and all requirements imposed by the treatment provider and
by the court; and
(5) the person is willing to comply with supervision
requirements imposed by the division of corrections.
§15-13-12. Conditional release to less restrictive alternative - Verdict.
(a) Upon the conclusion of the evidence in a hearing held
pursuant to section ten of this article or through summary judgment
proceedings prior to such a hearing, if the court finds that there
is no legally sufficient evidentiary basis for a reasonable jury to
find that the conditions set forth in section eleven of this
article have been met, the court shall grant a motion by the state
for a judgment as a matter of law on the issue of conditional
release to a less restrictive alternative.
(b) Whenever the issue of conditional release to a less
restrictive alternative is submitted to the jury, the court shall
instruct the jury to return a verdict in substantially the
following form: Has the state proved beyond a reasonable doubt that
either: (a) The proposed less restrictive alternative is not in the
best interests of respondent; or (b) does not include conditions
that would adequately protect the community? Answer: Yes or No.
§15-13-13. Conditional release to less restrictive alternative -
Judgment - Conditions - Annual review.
(a) If the court or jury determines that conditional release
to a less restrictive alternative is in the best interest of the
person and includes conditions that would adequately protect the
community, and the court determines that the minimum conditions set
forth in section eleven of this article and in this section are
met, the court shall enter judgment and direct a conditional
release.
(b) The court shall impose any additional conditions necessary
to ensure compliance with treatment and to protect the community. If the court finds that conditions do not exist that will both
ensure the person's compliance with treatment and protect the
community, then the person shall be remanded to the custody of the
Department for control, care, and treatment in a secure facility as
designated in subsection (a), section seven of this article.
(c) If the service provider designated by the court to provide
inpatient or outpatient treatment or to monitor or supervise any
other terms and conditions of a person's placement in a less
restrictive alternative is other than the Department or the
division of corrections, then the service provider so designated
must agree in writing to provide such treatment, monitoring, or
supervision in accord with this section. Any person providing or
agreeing to provide treatment, monitoring, or supervision services
pursuant to this article may be compelled to testify and any
privilege with regard to such person's testimony is deemed waived.
(d) Prior to authorizing any release to a less restrictive
alternative, the court shall impose such conditions upon the person
as are necessary to ensure the safety of the community. The court
shall order the division of corrections to investigate the less
restrictive alternative and recommend any additional conditions to
the court. These conditions shall include, but are not limited to
the following: Specification of residence, prohibition of contact
with potential or past victims, prohibition of alcohol and other
drug use, participation in a specific course of inpatient or
outpatient treatment that may include monitoring by the use of
polygraph and plethysmograph, supervision by a division of
corrections community corrections officer, a requirement that the person remain within the state unless the person receives prior
authorization by the court, and any other conditions that the court
determines are in the best interest of the person or others. A copy
of the conditions of release shall be given to the person and to
any designated service providers.
(e) Any service provider designated to provide inpatient or
outpatient treatment shall monthly, or as otherwise directed by the
court, submit to the court, to the Department facility from which
the person was released, to the prosecutor of the county in which
the person was found to be a sexually violent predator, and to the
supervising community corrections officer, a report stating whether
the person is complying with the terms and conditions of the
conditional release to a less restrictive alternative.
(f) Each person released to a less restrictive alternative
shall have his or her case reviewed by the court that released him
or her no later than one year after such release and annually
thereafter until the person is unconditionally discharged. Review
may occur in a shorter time or more frequently, if the court, in
its discretion on its own motion, or on motion of the person, the
secretary, or the prosecuting attorney so determines. The sole
question to be determined by the court is whether the person shall
continue to be conditionally released to a less restrictive
alternative. The court in making its determination shall be aided
by the periodic reports filed pursuant to subsection (e) of this
section and the opinions of the secretary and other experts or
professional persons.
§15-13-14. Conditional release to less restrictive alternative - Hearing on revocation or modification - Authority to apprehend
conditionally released person.
(a) Any service provider submitting reports pursuant to
subsection (e), section thirteen of this article, the supervising
community corrections officer or the prosecuting attorney may
petition the court, or the court on its own motion may schedule an
immediate hearing, for the purpose of revoking or modifying the
terms of the person's conditional release to a less restrictive
alternative if the petitioner or the court believes the released
person is not complying with the terms and conditions of his or her
release or is in need of additional care, monitoring, supervision,
or treatment.
(b) If the prosecuting attorney, the supervising community
corrections officer, or the court, based upon information received
by them, reasonably believes that a conditionally released person
is not complying with the terms and conditions of his or her
conditional release to a less restrictive alternative, the court or
community corrections officer may order that the conditionally
released person be apprehended and taken into custody until such
time as a hearing can be scheduled to determine the facts and
whether or not the person's conditional release should be revoked
or modified. The court shall be notified before the close of the
next judicial day of the person's apprehension. Both the
prosecuting attorney and the conditionally released person shall
have the right to request an immediate mental examination of the
conditionally released person. If the conditionally released person
is indigent, the court shall, upon request, assist him or her in obtaining a qualified expert or professional person to conduct the
examination.
(c) The court, upon receiving notification of the person's
apprehension, shall promptly schedule a hearing. The issue to be
determined is whether the state has proven by a preponderance of
the evidence that the conditionally released person did not comply
with the terms and conditions of his or her release. Hearsay
evidence is admissible if the court finds it otherwise reliable. At
the hearing, the court shall determine whether the person shall
continue to be conditionally released on the same or modified
conditions or whether his or her conditional release shall be
revoked and he or she shall be committed to total confinement,
subject to release only in accordance with provisions of this
article.
§15-13-15. Department of Health and Human Resources - Jurisdiction
continues after criminal conviction - Exception.
A person subject to court order under the provisions of this
article who is thereafter convicted of a criminal offense remains
under the jurisdiction of the Department following: (1) Completion
of the criminal sentence; or (2) release from confinement in a
state or local correctional facility, and shall be returned to the
custody of the Department.
This section does not apply to persons subject to a court
order under the provisions of this article who are thereafter
sentenced to life without the possibility of release.
§15-13-16. Release of information authorized.
In addition to any other information required to be released under this article, the Department is authorized, pursuant to
section five, article twelve of this chapter, to release relevant
information that is necessary to protect the public, concerning a
specific sexually violent predator committed under this article.
§15-13-17. Notice of escape or disappearance.
In the event of an escape by a person committed under this
article from a state institution or the disappearance of such a
person while on conditional release, the superintendent or
community corrections officer shall notify the following as
appropriate: Local law enforcement officers, other governmental
agencies, the person's relatives, and any other appropriate persons
about information necessary for the public safety or to assist in
the apprehension of the person.
§15-13-18. Notice of conditional release or unconditional discharge
- Notice of escape and recapture.
(a) At the earliest possible date, and in no event later than
thirty days before conditional release or unconditional discharge,
except in the event of escape, the Department shall send written
notice of conditional release, unconditional discharge, or escape,
to the following:
(1) The chief of police of the city, if any, in which the
person will reside or in which placement will be made under a less
restrictive alternative;
(2) The sheriff of the county in which the person will reside
or in which placement will be made under a less restrictive
alternative; and
(3) The sheriff of the county where the person was last convicted of a sexually violent offense, if the Department does not
know where the person will reside.
(b) The Department shall notify the State Police of the
release of all sexually violent predators.
(c) The same notice as required by subsection (a) of this
section shall be sent to the following if such notice has been
requested in writing about a specific person found to be a sexually
violent predator under this article:
(1) The victim or victims of any sexually violent offenses for
which the person was convicted in the past or the victim's next of
kin if the crime was a homicide. "Next of kin" as used in this
section means a person's spouse, parents, siblings, and children;
(2) Any witnesses who testified against the person in his or
her commitment trial; and
(3) Any person specified in writing by the prosecuting
attorney.
Information regarding victims, next of kin, or witnesses
requesting the notice, information regarding any other person
specified in writing by the prosecuting attorney to receive the
notice, and the notice are confidential and shall not be available
to the committed person.
(d) If a person committed as a sexually violent predator under
this article escapes from a Department facility, the Department
shall immediately notify, by the most reasonable and expedient
means available, the chief of police of the city and the sheriff of
the county in which the committed person resided immediately before
his or her commitment as a sexually violent predator, or immediately before his or her incarceration for his or her most
recent offense. If previously requested, the Department shall also
notify the witnesses and the victims of the sexually violent
offenses for which the person was convicted in the past or the
victim's next of kin if the crime was a homicide. If the person is
recaptured, the Department shall send notice to the persons
designated in this subsection as soon as possible but in no event
later than two working days after the Department learns of such
recapture.
(e) If the victim or victims of any sexually violent offenses
for which the person was convicted in the past or the victim's next
of kin, or any witness is under the age of sixteen, the notice
required by this section shall be sent to the parents or legal
guardian of the child.
(f) The Department shall send the notices required by this
article to the last address provided to the Department by the
requesting party. The requesting party shall furnish the Department
with a current address.
(g) Nothing in this section shall impose any liability upon a
chief of police of a city or sheriff of a county for failing to
request in writing a notice as provided in subsection (a) of this
section.
§15-13-19. Escorted leave - Conditions.
The superintendent of any facility housing persons detained or
committed pursuant to this article may, subject to the approval of
the secretary, grant escorted leaves of absence to residents
confined in such institutions to:
(1) Go to the bedside of the resident's wife, husband, child,
mother or father, or other member of the resident's immediate
family who is seriously ill;
(2) Attend the funeral of a member of the resident's immediate
family listed in subparagraph (1) of this section; and
(3) Receive necessary medical or dental care which is not
available in the institution.
§15-13-20. Escorted leave - Notice.
A resident shall not be allowed to start a leave of absence
under section nineteen of this article until the secretary, or the
secretary's designee, has notified any county and city law
enforcement agency having jurisdiction in the area of the
resident's destination.
§15-13-21. Escorted leave - Rules.
(a) The secretary is authorized to adopt rules providing for
the conditions under which residents will be granted leaves of
absence and providing for safeguards to prevent escapes while on
leaves of absence. Leaves of absence granted to residents under
section nineteen of this article, however, shall not allow or
permit any resident to go beyond the boundaries of this state.
(b) The secretary shall adopt rules requiring reimbursement of
the state from the resident granted leave of absence, or the
resident's family, for the actual costs incurred arising from any
leave of absence granted under the authority of subparagraphs (1)
and (2) of section nineteen of this article. No state funds shall
be expended in connection with leaves of absence granted under
subparagraphs (1) and (2) of section nineteen of this article unless the resident and the resident's immediate family are
indigent and without resources sufficient to reimburse the state
for the expenses of such leaves of absence.
§15-13-22. Rules.
The Secretary is hereby directed to propose rules and
emergency rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code in
accordance with the provisions of this section and for the
oversight and operation of the program established pursuant to this
article. Such rules shall include provisions for an annual
inspection of a special commitment center and requirements for
treatment plans and the retention of records.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSE.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-3. What persons may not be licensed; exceptions.
(a) The Division may not issue any license hereunder:
(1) To any person who is under the age of eighteen years:
Provided, That the Division may issue a junior driver's license or
on or after the first day of January, two thousand and one, a
graduated driver's license, to a person under the age of eighteen
years in accordance with the provisions of section three-a of this
article;
(2) To any person, as a Class A, B, C or D driver, who is
under the age of eighteen years;
(3) To any person, whose license has been suspended or
revoked, during the suspension or revocation;
(4) To any person who is an habitual drunkard or is addicted to the use of narcotic drugs;
(5) To any person, who has previously been adjudged to be
afflicted with or suffering from any mental disability or disease
and who has not at the time of application been restored to
competency by judicial decree or released from a hospital for the
mentally incompetent upon the certificate of the superintendent of
the institution that the person is competent, and not then unless
the Commissioner is satisfied that the person is competent to
operate a motor vehicle with a sufficient degree of care for the
safety of persons or property;
(6) To any person who is required by this chapter to take an
examination, unless the person has successfully passed the
examination;
(7) To any person when the Commissioner has good cause to
believe that the operation of a motor vehicle on the highways by
the person would be inimical to public safety or welfare.
(b) The Division may not issue a license or nondriver
identification card to any person determined to be a sexually
violent predator pursuant to article thirteen, chapter fifteen of
this code or any person convicted of a sexually violent offense as
defined in subsection (i), section two, article twelve, chapter
fifteen of this code, unless he or she obtains a driver's license
or nondriver identification card coded by the Commissioner to
denote the licensee is a sexually violent offender as follows:
(1) At determination. -- If an applicant is determined to be
a sexually violent predator or is convicted of a sexually violent
offense as defined in subsection (i), section two, article twelve, chapter fifteen of this code, after the effective date of this
section, the court shall take possession of his or her driver's
license or nondriver identification card and shall direct the
person to report to the Division for a replacement driver's license
or nondriver identification card coded by the Commissioner to
denote the licensee is a sexually violent offender. The court
shall forward to the Division all licenses or nondriver
identification cards that it receives, along with a copy of the
judgment order.
(2) Current Sexually Violent Offenders. -- If a holder or an
applicant is determined to be a sexually violent predator or is
convicted of a sexually violent offense as defined in subsection
(i), section two, article twelve, chapter fifteen of this code
prior to the effective date of this section, he or she shall
surrender his or her driver's license or nondriver identification
card to the Division for a replacement driver's license or
nondriver identification card coded by the Commissioner to denote
the licensee is a sexually violent offender.
The Division may charge a fee of five dollars for a
replacement license or nondriver identification card. Upon showing
proof that a person is no longer determined to be a sexually
violent predator or is removed from the sexual offender registry as
a person convicted of a sexually violent offense as defined in
subsection (i), section two, article twelve, chapter fifteen of
this code, the Division shall issue a driver's license or nondriver
identification card without the sexually violent offender code
printed upon the license at no charge. No person issued a special operator's license or nondriver identification card under the
provisions of this section may alter or deface the license to
obscure the special marking identifying the owner as a sexually
violent offender.
Any person failing to comply with the provisions of this
subsection is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than fifty dollars nor more than five
hundred dollars and confined in jail for not more than one year.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 3. TRAINING, CERTIFICATION, LICENSING, PROFESSIONAL
DEVELOPMENT.
§18A-3-12. Mandatory central abuse registry checks of school
service personnel, contractors and service
providers.
(a) Prior to permitting professional educators,
administrators, school service personnel, contractors or service
providers direct contact with students or access to school grounds
when students are present, the county school board shall check
against the central abuse registry, established pursuant to article
two-c, chapter fifteen of this code, and the United States
Department of Justice National Sex Offender Public Registry, or its
successor, the name and address of such school service personnel,
contractors or service providers. For the purposes of this section,
contractor and service provider shall include any vendor,
individual or entity under contract with a county board.
(b) As of the effective date of this section, professional
educators, administrators, school service personnel, contractors or service providers already permitted direct contact with students or
access to school grounds when students are present shall have their
names and addresses checked against the central abuse registry
within a reasonable time from the effective date of this section.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8B. SEXUAL OFFENSES.
§61-8B-3. Sexual assault in the first degree.
(a) A person is guilty of sexual assault in the first degree
when:
(1) The person engages in sexual intercourse or sexual
intrusion with another person and, in so doing:
(I) Inflicts serious bodily injury upon anyone; or
(ii) Employs a deadly weapon in the commission of the act; or
(2) The person, being fourteen years old or more, engages in
sexual intercourse or sexual intrusion with another person who is
eleven years old or less and is not married to that person.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility not less than
fifteen
twenty-five nor more than
thirty-fivesixty years, or fined not less
than one thousand dollars nor more than ten thousand dollars and
imprisoned in a state correctional facility not less than
fifteentwenty-five nor more than
thirty-fivesixty years.
§61-8B-7. Sexual abuse in the first degree.
(a) A person is guilty of sexual abuse in the first degree
when:
(1) Such person subjects another person to sexual contact without their consent, and the lack of consent results from
forcible compulsion; or
(2) Such person subjects another person to sexual contact who
is physically helpless; or
(3) Such person, being fourteen years old or more, subjects
another person to sexual contact who is eleven years old or less.
(b) Any person who violates the provisions of this section
shall be is guilty of a felony, and, upon conviction thereof, shall
be imprisoned in
the penitentiary a state correctional facility not
less than
one year two years nor more than
five ten years, or fined
not more than ten thousand dollars and imprisoned in
the
penitentiary a state correctional facility not less than
one year
two years nor more than
five ten years.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation
(a) 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 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 for probation. 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.
(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 unless such fact is clearly stated and included in the
indictment or presentment by which such 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 jury a special interrogatory
for such 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 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;
(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
be proved beyond a reasonable doubt in all cases tried by the jury
or the court.
(d) For the purpose of this section, the term "firearm" shall
mean 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, chapter sixty-one of
this code, or under the provisions of article eight-c or eight-b of
said chapter, such person shall only be eligible for probation
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 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 probationer to do harm to any person,
animal, institution or property, in which case such information may
be released only to such persons as might be necessary for
protection of the said person, animal, institution or property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen, article
eight, chapter sixty-one of this code, or of a felony violation
involving a minor of section six or seven, article eight, chapter
sixty-one of this code, or of a similar provision in another
jurisdiction shall be required to be registered upon release on
probation. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this subsection shall also
be registered upon release on probation.
(g) The probation officer shall within three days of release
of the offender, send written notice to the State Police of the
release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was
convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent
predator
as defined in section two-a, article twelvepursuant to
article thirteen, chapter fifteen of this code, the notice shall
also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
§62-12-26. Extended supervision for certain sex offenders;
sentencing; conditions; supervision provisions; supervision
fee.
(a) Notwithstanding any provision of this code to the
contrary, any defendant convicted after the effective date of this
section of a violation of section twelve, article eight, chapter
sixty-one of this code or a felony violation of the provisions of
article eight-b, eight-c or eight-d of said chapter
mayshall, as
part of the sentence imposed at final disposition, be required to
serve, in addition to any other penalty or condition imposed by the
court, a period of supervised release of up to fifty years:
Provided, That a defendant convicted after the effective date of
this provision of a sexually violent offense as defined in
subsection (i), section two, article twelve, chapter fifteen of
this code shall be subject, in addition to any other penalty or
condition imposed by the court, to supervised release for life and shall be further prohibited from:
(1) establishing a residence or accepting employment within
two thousand feet of a school or child care facility or within one
thousand feet of the residence of a victim or victims of any
sexually violent offenses for which the person was convicted;
(2) establishing a residence or any other living accommodation
in a household in which a child under sixteen resides if the person
has been convicted of a sexually violent offense involving a child
who is sixteen years old or less unless the person is the parent,
grandparent or stepparent of the child: Provided, That the person
was the stepparent of the child prior to being convicted of a
sexual violent offense, and
(i) the person's parental rights have not been terminated;
(ii) the child is not a victim of a sexually violent offense
perpetrated by the person; and
(iii) the court determines that the person convicted of the
sexually violent offense is not likely to cause harm to the child
or children with whom such person will reside.
The period of supervised release imposed by the provisions of this
section shall begin upon the expiration of any period of probation,
the expiration of any sentence of incarceration or the expiration
of any period of parole supervision imposed or required of the
person so convicted, whichever expires later.
(b) Any person sentenced to a period of supervised release
pursuant to the provisions of this section shall be supervised by
the probation office of the sentencing court or by the community
corrections program established in said circuit unless jurisdiction is transferred elsewhere by order of the sentencing court.
(c) A defendant sentenced to a period of supervised release
shall be subject to any or all of the conditions applicable to a
person placed upon probation pursuant to the provisions of section
nine, article twelve, chapter sixty-one of this code:
Provided,
That any defendant sentenced to a period of supervised release
pursuant to this section shall be required to participate in
appropriate offender treatment programs or counseling during the
period of supervised release unless the court deems such to no
longer be appropriate or necessary and makes express findings in
support thereof:
Provided however, That a defendant convicted of
a sexually violent offense as defined in subsection (i), section
two, article twelve, chapter fifteen of this code and sentenced to
supervised release for life pursuant to subsection (a) of this
section, shall be subject to electronic monitoring, as defined in
section twenty-seven, article twelve of this chapter, for the
duration of their supervised release.
(d) The sentencing court may, based upon defendant's ability
to pay, impose a supervision fee to offset the cost of supervision.
Said fee shall not exceed fifty dollars per month. Said fee may be
modified periodically based upon the defendant's ability to pay.
(e)
Modification of conditions or revocation. -- The court
may:
(1) Terminate a term of supervised release and discharge the
defendant released at any time after the expiration of two years of
supervised release, pursuant to the provisions of the West Virginia
Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the
conduct of the defendant released and the interests of justice;
(2) Extend a period of supervised release if less than the
maximum authorized period was previously imposed or modify, reduce
or enlarge the conditions of supervised release, at any time prior
to the expiration or termination of the term of supervised release,
consistent with the provisions of the West Virginia Rules of
Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
(3) Revoke a term of supervised release and require the
defendant to serve in prison all or part of the term of supervised
release without credit for time previously served on supervised
release if the court, pursuant to the West Virginia Rules of
Criminal Procedure applicable to revocation of probation, finds by
clear and convincing evidence that the defendant violated a
condition of supervised release, except that a defendant whose term
is revoked under this subdivision may not be required to serve more
than the period of supervised release:
Provided, That no person
may serve a period of incarceration for a violation of supervised
release which exceeds the maximum statutory period of confinement
for the offense of conviction underlying the period of supervised
release;
(4) Order the defendant to remain at his place of residence
during nonworking hours and, if the court so directs, to have
compliance monitored by telephone or electronic signaling devices,
except that an order under this paragraph may be imposed only as an alternative to incarceration.
(f)
Written statement of conditions. -- The court shall direct
that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the term of
supervised release is subject and that it is sufficiently clear and
specific to serve as a guide for the defendant's conduct and for
such supervision as is required.
(g)
Supervised release following revocation. -- When a term of
supervised release is revoked and the defendant is required to
serve a term of imprisonment that is less than the maximum term of
imprisonment authorized under subsection (a) of this section, the
court may include a requirement that the defendant be placed on a
term of supervised release after imprisonment. The length of such
term of supervised release shall not exceed the term of supervised
release authorized by this section less any term of imprisonment
that was imposed upon revocation of supervised release.
(h)
Delayed revocation. -- The power of the court to revoke a
term of supervised release for violation of a condition of
supervised release and to order the defendant to serve a term of
imprisonment and, subject to the limitations in subsection (f) of
this section, a further term of supervised release extends beyond
the expiration of the term of adjudication of matters arising
before its expiration if, before its expiration, a warrant or
summons has been issued on the basis of an allegation of such a
violation.
§62-12-27. Mandatory electronic monitoring of sexually violent
offenders on probation and parole; penalty for tampering with or destroying electronic monitoring
device
.
(a) A defendant convicted of a sexually violent offense as
defined in subsection (i), section two, article twelve, chapter
fifteen of this code shall be subject, as a condition of his or her
subsequent probation or parole, to electronic monitoring for the
duration of said probation or parole.
(b) If probation or parole for a defendant convicted of a
sexually violent offense as defined under subsection (i), section
two, article twelve, chapter fifteen of this code is revoked by the
court pursuant to this article and the court imposes a subsequent
term of probation or parole following the revocation, the court
must order electronic monitoring as a condition of any subsequent
term of probation or parole.
(c) For the purposes of this section, "electronic monitoring"
means the use of an electronic signaling device or apparatus
approved by the Division of Corrections which is capable of
recording or transmitting information regarding the offender's
presence or nonpresence in a designated area. The Division of
Corrections must select a system that actively monitors and
identifies the defendant's location and timely reports or records
the defendant's presence near or within a crime scene or a
prohibited area or the defendant's departure from specified
geographic limitations.
(d) A person who intentionally alters, tampers with, damages
or destroys any electronic monitoring equipment, absent court or commission order, unless such person is the owner of the equipment,
or an agent of the owner, performing ordinary maintenance and
repair, is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility not less than three
years nor more than ten years.