ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 218
(By Senators Tomblin (Mr. President) and Caruth,
By Request of the Executive)
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[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT to amend and reenact §62-12-13 of the Code of West Virginia,
1931, as amended, relating to powers and duties of the board
of parole; eligibility for parole; changing when an inmate's
written parole release plan may be prepared and considered;
procedures for granting parole; accelerated parole eligibility
for certain inmates who complete a rehabilitation treatment
plan created with the assistance of a standardized risk and
needs assessment; authorizing the Division of Corrections to
promulgate policies and procedures related to accelerated
parole eligibility; creating a rebuttable presumption for
parole in certain circumstances; authorizing board of parole
to contingently grant parole allowing board of parole to
consider inmates for parole who have certain detainers pending
against them; reducing the period for parole reconsideration;
making technical corrections; and creating an internal
effective date for certain amendments to the section.
Be it enacted by the Legislature of West Virginia:
That §62-12-13 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole, whenever it is of the opinion that
the best interests of the state and of the inmate will be served,
and subject to the limitations hereinafter provided, shall release
any inmate on parole for terms and upon conditions as are provided
by this article.
(b) Any inmate of a state correctional center is eligible for
parole if he or she:
(1) (A) Has served the minimum term of his or her
indeterminate sentence or has served one fourth of his or her
definite term sentence, as the case may be, or
(B) He or she:
(I) has applied for and been accepted by the Commissioner of
Corrections into an accelerated parole program;
(ii) does not have a prior criminal conviction for a felony
crime of violence against the person, a felony offense involving
the use of a firearm, or a felony offense where the victim was a
minor child;
(iii) has no record of institutional disciplinary rule
violations for a period of 120 days prior to parole consideration
unless the requirement is waived by the commissioner;
(iv) is not serving a sentence for a crime of violence against
the person, or more than one felony for a controlled substance
offense for which the inmate is serving a consecutive sentence, a felony offense involving the use of a firearm, or a felony offence
where the victim was a minor child; and,
(v) has successfully completed a rehabilitation treatment
program created with the assistance of a standardized risk and
needs assessment;
(I) as used in this paragraph "felony crime of violence
against the person" means felony offenses set forth in articles
two, three-e, eight-b or eight-d of chapter sixty-one of this code;
and
(II) as used in this paragraph "felony offense where the
victim was a minor child" means any felony crime of violence
against the person and any felony violation set forth in article
eight, eight-a, eight-c or eight-d of chapter sixty-one of this
code.
(C) Notwithstanding any provision of this code to the
contrary, any person who committed, or attempted to commit a felony
with the use, presentment or brandishing of a firearm, is not
eligible for parole prior to serving a minimum of three years of
his or her sentence or the maximum sentence imposed by the court,
whichever is less:
Provided, That any person who committed, or
attempted to commit, any violation of section twelve, article two,
chapter sixty-one of this code, with the use, presentment or
brandishing of a firearm, is not eligible for parole prior to
serving a minimum of five years of his or her sentence or one third
of his or her definite term sentence, whichever is greater.
Nothing in this section applies to an accessory before the fact or
a principal in the second degree who has been convicted as if he or
she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in
the first degree used, presented or brandished a firearm. A person
is not ineligible for parole under the provisions of this
subdivision because of the commission or attempted commission of a
felony with the use, presentment or brandishing of a firearm unless
that fact is clearly stated and included in the indictment or
presentment by which the person was charged and was either: (I)
Found by the court at the time of trial upon a plea of guilty or
nolo contendere; or (ii) found by the jury, upon submitting to the
jury a special interrogatory for such purpose if the matter was
tried before a jury; or (iii) found by the court, if the matter was
tried by the court without a jury.
For the purpose of this section, the term "firearm" means any
instrument which will, or is designed to, or may readily be
converted to, expel a projectile by the action of an explosive,
gunpowder or any other similar means.
(D) The amendments to this subsection adopted in the year
1981:
(I) Apply to all applicable offenses occurring on or after
August 1 of that year;
(ii) Apply with respect to the contents of any indictment or
presentment returned on or after August 1 of that year irrespective
of when the offense occurred;
(iii) 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 the jury on or after August 1 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 gives notice in writing of its intent to seek such finding by the jury or court, as
the case may be, which notice shall state with particularity the
grounds upon which the finding will be sought as fully as such
grounds are otherwise required to be stated in an indictment,
unless the grounds therefor are alleged in the indictment or
presentment upon which the matter is being tried; and
(iv) Does not apply with respect to cases not affected by the
amendments and in such cases the prior provisions of this section
apply and are construed without reference to the amendments.
Insofar as the amendments relate to mandatory sentences
restricting the eligibility for parole, all matters requiring a
mandatory sentence shall be proved beyond a reasonable doubt in all
cases tried by the jury or the court.
(2) Is not in punitive segregation or administrative
segregation as a result of disciplinary action;
(3) Has maintained a record of good conduct in prison for a
period of at least three months immediately preceding the date of
his or her release on parole;
(4) Has prepared and submitted to the board a written parole
release plan setting forth proposed plans for his or her place of
residence, employment and, if appropriate, his or her plans
regarding education and post-release counseling and treatment. The
Commissioner of Corrections or his or her designee shall review the
plan to be reviewed and investigated and provide recommendations to
the board as to the suitability of the plan:
Provided, That in
cases in which there is a mandatory thirty day notification period
required prior to the release of the inmate, pursuant to section
twenty-three of this article, the board may conduct an initial interview and deny parole without requiring the development of a
plan. In the event the board does not believe parole should be
denied, it may defer a final decision pending completion of an
investigation and receipt of recommendations. Upon receipt of the
plan together with the investigation and recommendation, the board,
through a panel, shall make a final decision regarding the granting
or denial of parole; and
(5) Has satisfied the board that if released on parole he or
she will not constitute a danger to the community.
(c) Except in the case of a person serving a life sentence, no
person who has been previously twice convicted of a felony may be
released on parole until he or she has served the minimum term
provided by law for the crime for which he or she was convicted.
A person sentenced for life may not be paroled until he or she has
served ten years, and a person sentenced for life who has been
previously twice convicted of a felony may not be paroled until he
or she has served fifteen years:
Provided, That a person convicted
of first degree murder for an offense committed on or after June
10, 1994, is not eligible for parole until he or she has served
fifteen years.
(d) In the case of a person sentenced to any state
correctional center, it is the duty of the board, as soon as a
person becomes eligible, to consider the advisability of his or her
release on parole.
(e) If, upon consideration, parole is denied, the board shall
promptly notify the inmate of the denial. The board shall, at the
time of denial, notify the person of the month and year he or she
may apply for reconsideration and review. The board shall at least once a year reconsider and review the case of every inmate who was
denied parole and is still eligible.
(f) Any person serving a sentence on a felony conviction who
becomes eligible for parole consideration prior to being
transferred to a state correctional center may make written
application for parole. The terms and conditions for parole
consideration established by this article apply to such inmates.
(g) The board shall, with the approval of the Governor, adopt
rules governing the procedure in the granting of parole. No
provision of this article and none of the rules adopted hereunder
are intended or may be construed to contravene, limit or otherwise
interfere with or affect the authority of the Governor to grant
pardons and reprieves, commute sentences, remit fines or otherwise
exercise his or her constitutional powers of executive clemency.
(h) The Division of Corrections shall promulgate policies and
procedures for developing a rehabilitation treatment plan created
with the assistance of a standardized risk and needs assessment.
The policies and procedures shall include, but not be limited to,
policy and procedures for screening and selecting inmates for
rehabilitation treatment and development and use of standardized
risk and needs assessment tools. An inmate shall not be paroled
solely due to having successfully completed a rehabilitation
treatment plan but completion of all the requirements of a
rehabilitation parole plan along with compliance with the
requirements of subsection (b) of this section shall create a
rebuttable presumption that parole is appropriate. The presumption
created by this subsection may be rebutted by a parole board
finding that at the time parole release is sought the inmate still constitutes a reasonable risk to the safety or property of other
persons if released. Nothing in subsection (b) of this section or
in this subsection may be construed to create a right to parole.
(I) Notwithstanding the provisions of subsection (b) of this
section, the parole board may, in its discretion, grant or deny
parole to an inmate against whom a detainer is lodged by a
jurisdiction other than West Virginia for service of a sentence of
incarceration, upon a written request for parole from the inmate.
A denial of parole under this subsection shall preclude
consideration for a period of one year or until the provisions of
subsection (b) of this section are applicable.
(j) Where an inmate is otherwise eligible for parole pursuant
to subsection (b) of this section but the parole board determines
that the inmate should participate in an additional program or
complete an assigned task or tasks prior to actual release on
parole, the board may grant parole contingently, effective upon
successful completion of the program or assigned task or tasks,
without the need for a further hearing. The Commissioner of
Corrections shall provide notice to the parole board of the
imminent release of a contingently paroled inmate to effectuate
appropriate supervision.
(k) The Division of Corrections is charged with the duty of
supervising all probationers and parolees whose supervision may
have been undertaken by this state by reason of any interstate
compact entered into pursuant to the uniform act for out-of-state
parolee supervision.
(l)(1) When considering an inmate of a state correctional
center for release on parole, the parole board panel considering the parole is to have before it an authentic copy of or report on
the inmate's current criminal record as provided through the West
Virginia State Police, the United States Department of Justice or
other reliable criminal information sources and written reports of
the warden or superintendent of the state correctional center to
which the inmate is sentenced:
(A) On the inmate's conduct record while in custody, including
a detailed statement showing any and all infractions of
disciplinary rules by the inmate and the nature and extent of
discipline administered therefor;
(B) On improvement or other changes noted in the inmate's
mental and moral condition while in custody, including a statement
expressive of the inmate's current attitude toward society in
general, toward the judge who sentenced him or her, toward the
prosecuting attorney who prosecuted him or her, toward the
policeman or other officer who arrested the inmate and toward the
crime for which he or she is under sentence and his or her previous
criminal record;
(C) On the inmate's industrial record while in custody which
shall include: The nature of his or her work, occupation or
education, the average number of hours per day he or she has been
employed or in class while in custody and a recommendation as to
the nature and kinds of employment which he or she is best fitted
to perform and in which the inmate is most likely to succeed when
he or she leaves prison;
(D) On physical, mental and psychiatric examinations of the
inmate conducted, insofar as practicable, within the two months
next preceding parole consideration by the board.
(2) The board panel considering the parole may waive the
requirement of any report when not available or not applicable as
to any inmate considered for parole but, in every such case, shall
enter in the record thereof its reason for the waiver:
Provided,
That in the case of an inmate who is incarcerated because the
inmate has been found guilty of, or has pleaded guilty to a felony
under the provisions of section twelve, article eight, chapter
sixty-one of this code or under the provisions of article eight-b
or eight-c of said chapter, the board panel may not waive the
report required by this subsection and the report is to include a
study and diagnosis including an on-going treatment plan requiring
active participation in sexual abuse counseling at an approved
mental health facility or through some other approved program:
Provided, however, That nothing disclosed by the person during the
study or diagnosis may be made available to any law-enforcement
agency, or other party without that person's consent, or admissible
in any court of this state, unless the information disclosed
indicates the intention or plans of the parolee to do harm to any
person, animal, institution or to property. Progress reports of
outpatient treatment are to be made at least every six months to
the parole officer supervising the person. In addition, in such
cases, the parole board shall inform the prosecuting attorney of
the county in which the person was convicted of the parole hearing
and shall request that the prosecuting attorney inform the parole
board of the circumstances surrounding a conviction or plea of
guilty, plea bargaining and other background information that might
be useful in its deliberations.
(m) Before releasing any inmate on parole, the board of parole shall arrange for the inmate to appear in person before a parole
board panel and the panel may examine and interrogate him or her on
any matters pertaining to his or her parole, including reports
before the board made pursuant to the provisions hereof:
Provided,
That an inmate may appear by video teleconference if the members of
the panel conducting the examination are able to contemporaneously
see the inmate and hear all of his or her remarks and if the inmate
is able to contemporaneously see each of the members of the panel
conducting the examination and hear all of the members' remarks.
The panel shall reach its own written conclusions as to the
desirability of releasing the inmate on parole and the majority of
the panel considering the release shall concur in the decision.
The warden or superintendent shall furnish all necessary assistance
and cooperate to the fullest extent with the parole board. All
information, records and reports received by the board are to be
kept on permanent file.
(n) The board and its designated agents are at all times to
have access to inmates imprisoned in any state correctional center
or in any jail in this state and may obtain any information or aid
necessary to the performance of its duties from other departments
and agencies of the state or from any political subdivision
thereof.
(o) The board shall, if so requested by the Governor,
investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon to the Governor.
(p) Prior to making a recommendation for pardon, reprieve or
commutation and prior to releasing any inmate on parole, the board
shall notify the sentencing judge and prosecuting attorney at least ten days before the recommendation or parole.
(q) Any person released on parole shall participate as a
condition of parole in the litter control program of the county to
the extent directed by the board, unless the board specifically
finds that this alternative service would be inappropriate.
(r) Except for the amendments to this section contained in
subdivision (4), subsection (b) and subsection (i) of this section
the amendments to this section enacted during the 2010 regular
session of the legislature shall become effective on January 1,
2011.
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