WEST virginia legislature
2019 regular session
House Bill 2423
By Delegate Foster, Higginbotham, Fast, Linville, Pack, Steele, Phillips, Kessinger, Porterfield, Fleischauer and Staggers
[Originating in the Committee on the Judiciary, January 16, 2019]
A BILL to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as amended, relating to prohibiting certain sex offenders from being in a supervisory position over children.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-26. Extended supervision for certain sex offenders; sentencing; conditions; supervision provisions; supervision fee.
(a) Notwithstanding any other provision of this code to
the contrary, any defendant convicted after the effective date of this section
of a violation of §61-8-12 of this code or a felony violation of the provisions
of §61-8B-1 et seq., §61-8C-1 et seq., and §61-8D-1 et seq. of
this code shall, 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 50 years: Provided, That
the period of supervised release imposed by the court pursuant to this section
for a defendant convicted after the effective date of this section as amended
and reenacted during the first extraordinary session of the Legislature, 2006,
of a violation of §61-8B-3 or §61-8B-7 of this code and sentenced pursuant to
§62-12-9(a) of this code, shall be no less than 10 years: Provided, however,
That a defendant designated after the effective date of this section as amended
and reenacted during the first extraordinary session of the Legislature, 2006,
as a sexually violent predator pursuant to the provisions of §15-12-2a of this
code shall be subject, in addition to any other penalty or condition imposed by
the court, to supervised release for life: Provided further, That
pursuant to the provisions of
subsection (g) of this section §62-12-26(h)
of this code, a court may modify, terminate or revoke any term of
supervised release imposed pursuant to §62-12-26(a) of this code.
(b) Any person required to be on supervised release between the minimum term of 10 years and life pursuant to the provisos of §62-12-26(a) of this code also shall be further prohibited from:
(1) Establishing a residence or accepting employment within one 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) Loitering within 1,000 feet of a school or child care facility or within 1,000 feet of the residence of a victim or victims of any sexually violent offenses for which the person was convicted: Provided, That the imposition of this prohibition shall apply to a defendant convicted after the effective date of this section as amended and reenacted during the regular session of the Legislature, 2015: Provided, however, That as used herein “loitering” means to enter or remain on property while having no legitimate purpose or, if a legitimate purpose exists, remaining on that property beyond the time necessary to fulfill that purpose: Provided further, That nothing in this subdivision shall be construed to prohibit or limit a person's presence within 1,000 feet of a location or facility referenced in this subdivision if the person is present for the purposes of supervision, counseling or other activity in which the person is directed to participate as a condition of supervision or where the person has the express permission of his supervising officer to be present;
(3) 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 against a child, unless the person is one of the following:
(i) The child's parent;
(ii) The child's grandparent; or
(iii) The child's stepparent and the person was the stepparent of the child prior to being convicted of a sexually violent offense, the person's parental rights to any children in the home have not been terminated, the child is not a victim of a sexually violent offense perpetrated by the person, and the court determines that the person is not likely to cause harm to the child or children with whom such person will reside: Provided, That nothing in this subsection shall preclude a court from imposing residency or employment restrictions as a condition of supervised release on defendants other than those subject to the provision of this subsection.
(c) In addition to any other prohibitions, any person found guilty of violating the provisions of §61-8B-3 or §61-8B-7 are also prohibited from being in a supervisory position, play a supervisory role or be responsible for groups of children, including, but not limited to, religious organizations, Boy Scouts, Girl Scouts, 4H organizations, sporting and scholastic teams, music, sporting and theatre groups and camps, and summer day camps.
(c) (d) 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. (d) (e) Any person sentenced to a period of
supervised release pursuant to the provisions of this section shall be
supervised by a multijudicial circuit probation officer, if available. Until
such time as a multijudicial circuit probation officer is available, the
offender shall be supervised by the probation office of the sentencing court or
of the circuit in which he or she resides. (e) (f) 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 §62-12-9 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 the offender treatment programs or
counseling to no longer be appropriate or necessary and makes express findings
in support thereof.
Within 90 days of the effective date of this section as amended and reenacted during the first extraordinary session of the Legislature, 2006, the Secretary of the Department of Health and Human Resources shall propose rules and emergency rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code establishing qualifications for sex offender treatment programs and counselors based on accepted treatment protocols among licensed mental health professionals.
(f) (g) 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 $50 per month. Said fee may be modified
periodically based upon the defendant's ability to pay. (g) (h) 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;
(4) Order the defendant to remain at his or her 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.
(h) (i) Written statement of conditions.
-- The court shall direct that the probation officer provide the defendant with
a written statement at the defendant's sentencing hearing 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. (i) (j) 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 supervised release authorized under §62-12-26(a) of this code,
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. (j) (k) 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 (i) of this
section §62-12-26(j) of this code , a further term of
supervised release extends beyond the expiration of the term of supervised
release for any period necessary for the 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.
NOTE: The purpose of this bill is to prohibit certain sex offenders from being in a supervisory position over children.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.