CRIMINAL LAW
RESOURCE CENTER
West Virginia
Criminal Law Newsletter
of WEST VIRGINIA PUBLIC DEFENDER SERVICES
| Volume 4, Issue 1 | April 2003 |
The recent legislative session ended with its usual mixture of good and bad news. For the indigent defense community the basic news is very good, with some qualifications.
As previously reported, past under funding created a $6 million dollar deficit at Public Defender Services. To make up for this deficit the Governor recommended a $3.7 million dollar supplemental appropriation for this fiscal year, and a $4.7 million increase in FY 2004 (an astounding $7.1 million dollar increase over the original 10% cut from FY 2003 budgets).
With restrictions on Public Defender spending (PD offices are usually under budget) the Governor's recommendations would have eliminated the deficit in early FY 2004. However, although the Legislature approved the supplemental increase, the funding for FY 2004 was reduced by $1,788,497 from the Governor's request. In addition, separate line items were created for Public Defender and private appointed counsel, with reductions for both.
The reductions came about at least partially because of an attempt to create a special revenue fund for indigent defense based on increases in various court fees and costs. (See Engrossed H.B. 2828 on the legislative web site, http://www.legis.state.wv.us/; click on "bill status," then 2003 regular session; "download bills" or "open bills without" will access the full text; "2828 sub" is the version that passed the House). Although the original bill dealt only with fees dedicated to court house improvements, the amended version added additional fees dedicated to Public Defender Services, most of which would have been imposed on indigent defendants. Since that money is largely uncollectible, the result would have been a reduction in funding even if the scheme had been enacted. The PDS general revenue budget was cut by an amount approximately equivalent to projections of those uncollectible fees. Neither the Governor nor this office supported the creation of this special revenue fund.
The net result is a cut to Public Defender budgets and no increase in funding for private counsel in FY 2004. With supplemental funding, we will spend $13,105,543 on private counsel in FY 2003. The FY 2004 budget is $13,061,008. Public Defender budgets will decrease from $13,296,693 to $12,773,436. With this PD budgetary reduction, it is unlikely any funds can be shifted to private counsel as in the past. However, despite restrictions, the reality is that PDS gained a total of $6.7 million counting both FY 2003 and FY 2004 increases. In the current environment, this is remarkable and credit should be given to both the Governor and the Legislature for their support. Many agencies were not so well favored and some may actually have to eliminate positions or even lay off current employees.
This issue also has summaries of other legislative enactments, as well as recent Supreme Court cases. Despite some restrictions, we will continue to offer these updates, as well as our publications and CLE conferences, at no cost. We will, however, rely increasingly on internet and email communications and reduce the number of documents available in hard copy. If you have any suggestions for future conferences or publications please contact me or Russell Cook, our Director of Criminal Law Research.
Sattazahn v. Pennsylvania, (No. 01-7574, Jan. 14) (Scalia, J.)
The defendant was prosecuted for murder. Pennsylvania law provides that in the penalty phase of capital proceedings, the verdict must be death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The jury deadlocked at the penalty stage. In accordance with state law, they were discharged and the trial court entered a life sentence. The case was reversed on appeal on instructional error. At the second trial, the jury imposed the death penalty.
Held: there was no double-jeopardy or due process bar to Pennsylvania's seeking the death penalty on retrial.
U.S. v. Jimenez Recio, (No. 01-1184, January 21) (Breyer, J.)
Conspiracy
Police stopped a truck in Nevada and found and seized a large stash of illegal drugs. With the help of the truck's two drivers, they set up a sting. The Government took the truck to the drivers' destination, a mall in Idaho. The drivers paged a contact and described the truck's location. The contact said that he would call someone to get the truck. Three hours later, the two defendants appeared in a car. Jimenez Recio drove away in the truck; Lopez-Meza drove the car away in a similar direction. Police stopped both vehicles and arrested both men. They were convicted of conspiring to possess and distribute drugs.
The Court considered the validity of a Ninth Circuit rule that a conspiracy ends automatically when the object of the conspiracy becomes impossible to achieve-when, for example, the Government, unbeknownst to some of the conspirators, frustrates a drug conspiracy's objective by seizing the drugs that its members have agreed to distribute.
Held: conspiracy law does not contain any such "automatic termination" rule.
Miller-El v. Cockrell (No. 01-7662, Feb. 25) (Kennedy, J.)
Federal Habeas Corpus - Standard for issuing certificate of appealability
Jury Selection - Racial discrimination in use of peremptory challenges
The petitioner was convicted of capital murder and was sentenced to death. After petitioner's direct appeal and state habeas petitions were denied, he filed a federal habeas raising, among other issues, improper jury selection.
Petitioner's evidence concerning jury selection procedures related to a pattern and practice of race discrimination in voir dire (evidence that the prosecutor's office had adopted a formal policy in 1976 to exclude minorities from jury service) and related to the conduct of the prosecutors in his case (evidence that the state used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury that tried him; evidence that the manner in which venire members were questioned as to their views concerning the death penalty and their willingness to impose the minimum sentence varied by race; evidence that the prosecution used a criminal procedure practice known as jury shuffling to increase the likelihood of excluding African-Americans).
The Federal District Court denied relief. Federal law provides no automatic right to appeal a district court's denial or dismissal of a post conviction petition. A petitioner must first obtain a certificate of appealability (COA). The Court of Appeals found there was insufficient merit to the case and denied a COA. The issue in this case is what standards apply before a federal court of appeals may issue a COA to review a denial of habeas relief in the district court.
Held: a prisoner seeking a COA need only demonstrate a substantial showing of the denial of a constitutional right by demonstrating that jurists of reason could disagree with the district court's resolution or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. A certificate of appealability should have issued. Reversed and remanded.
SEX OFFENDER REGISTRATION ACT
Smith v. Doe, (No. 01-729, March 5) (Kennedy, J.)
Alaska Act does not violate Ex Post Facto
Respondents were convicted of aggravated sex offenses. Both were released from prison and completed rehabilitative programs for sex offenders. Although convicted before the Alaska Sex Offender Registration Act's passage, both are covered by it.
At issue is whether the Act, which requires convicted sex offenders to register with law enforcement authorities, with much of the information made public, is a retroactive punishment prohibited by the Ex Post Facto Clause.
Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.
Connecticut Dept. Public Safety v. Doe , (No. 01-1231, March 5) Rehnquist, C.J.
Connecticut Act does not violate Due Process
Connecticut's sex offender registration law requires persons convicted of sexual offenses to register with the Department of Public Safety and requires public disclosure of the registry. Respondent claims that the law violates due process. The Court of Appeals enjoined the public disclosure of the registry finding that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous."
Connecticut's registry requirement is based on the fact of previous conviction, not the fact of current dangerousness. The Supreme Court reversed finding that due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme.
SENTENCING
Application of California Three Strikes Law Held Constitutional
Ewing v. California, (01-6978, March 5) (O'Connor, J. delivered an opinion in which Rehnquist, C.J. and Kennedy, J. joined)
While on parole, petitioner was convicted of felony grand theft for stealing three golf clubs, worth $399 apiece. He was sentenced to 25 years to life under the California three strikes law. The State Court of Appeal affirmed, rejecting petitioner's claim that his sentence was grossly disproportionate under the Eighth Amendment and reasoned that enhanced sentences under the three strikes law served the State's legitimate goal of deterring and incapacitating repeat offenders.
Held: The judgment is affirmed.
O'Connor, J., joined by Rehnquist, C.J. and Kennedy, J. concluded that Ewing's sentence is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments.
Scalia, J. agreed that petitioner's sentence does not violate the Eighth Amendment prohibition against cruel and unusual punishments, but on the ground that prohibition was aimed at excluding only certain modes of punishment.
Thomas, J. concluded that petitioner's sentence does not violate the Eighth Amendment because the Amendment contains no proportionality principle.
Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Lockyer v. Andrade, (01-1127, March 5) (O'Connor,J.)
Petitioner was charged with two felony counts of petty theft with a prior conviction after he stole approximately $150 worth of videotapes from two different stores and was sentenced to two consecutive terms of 25 years to life. In affirming, the California Court of Appeal rejected his claim that his sentence violated the constitutional prohibition against cruel and unusual punishment. It found the Solem v. Helm, 463 U.S. 277, proportionality analysis questionable in light of Harmelin v. Michigan, 501 U.S. 957. It then compared the facts in this case to those in Rummel v. Estelle, 445 U.S. 263 in which the Court rejected a claim that a life sentence was grossly disproportionate to the felonies that formed the predicate for the sentence and concluded that petitioner's sentence was not disproportionate.
Reviewing the case under federal habeas law, the Ninth Circuit reversed finding that an unreasonable application of clearly established federal law occurs when there is clear error; concluding that both Solem and Rummel remain good law and are instructive in applying Harmelin; and finding that the California Court of Appeal's disregard for Solem resulted in an unreasonable application of clearly established Supreme Court law and was irreconcilable with Solem, thus constituting clear error.
Held:The Ninth Circuit erred in ruling that the California Court of Appeal's decision was contrary to, or an unreasonable application of, the Court's clearly established law.
Scheidler v. National Organization for Women, 123 S.Ct. 1057 (2003) (Rehnquist, C.J.)
Organization opposing legal abortion did not violate RICO or the Hobbs Act
Respondents, an organization that supports the legal availability of abortion and two facilities that perform abortions, filed a class action alleging that petitioners, individuals and organizations that oppose legal abortion, violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by engaging in a nationwide conspiracy to shut down abortion clinics through "a pattern of racketeering activity" that included acts of extortion in violation of the Hobbs Act. The questions presented are (1) whether petitioners committed extortion within the meaning of the Hobbs Act and whether respondents, as private litigants, may obtain injunctive relief in a civil action pursuant to 18 U.S.C. § 1964 of RICO.
Held: Petitioners did not commit extortion because they did not "obtain" property from respondents as required by the Hobbs Act. That determination renders insufficient the other bases or predicate acts of racketeering supporting the jury's conclusion that petitioners violated RICO.
United States v. Bean, 123 S.Ct. 584 (2002) (Thomas, J.)
Review of federal firearms disabilities
Under federal law, a person who is convicted of a felony is prohibited from possessing firearms. ATF is granted authority through the Secretary of the Treasury to grant relief if it is established that certain preconditions are met. Federal law provides that an applicant may seek judicial review from a United States district court if application is denied.
Respondent applied to ATF for relief from his firearms disabilities. ATF returned the application unprocessed, explaining that its annual appropriations law forbade it from expending any funds to investigate or act upon applications such as respondent's. Respondent then sought and received relief in federal district court.
At issue is whether inaction due to appropriation provisions barring the ATF from acting on such applications invests a federal district court with independent jurisdiction under federal law to grant such relief.
Held: Inaction does not amount to a "denial" within the meaning of the federal act. The absence of an actual denial of respondent's petition by ATF precludes judicial review.
All cases may be reviewed online at:
In Re: Tyler D., No. 30409, February 19, 2003 (Per Curiam) (Dismissal of Abuse/Neglect Petition Reversed)
ABUSE AND NEGLECT - TERMINATION OF PARENTAL RIGHTS - PARENT'S FAILURE TO PREVENT ABUSE
Based upon a number of referrals, the DHHR petitioned for custody of three children. The primary allegations were that the mother of the children had neglected to care for her children, and had failed to protect one of her children from physical abuse by her boyfriend. At the adjudication hearing, the mother stipulated to a number of the allegations in the petition and was granted a post-adjudicatory POI. Based upon allegations of additional abuse by the paternal grandfather during visitations, the DHHR requested termination of the mother's parental rights. At the disposition hearing, the trial court held that there was not sufficient evidence of abuse/neglect and dismissed the petition.
Held: That the State had proven abuse/neglect by clear and convincing evidence, and that the trial court erred by dismissing the petition. The Court noted the mother's stipulation to the allegations of neglect at the adjudicatory hearing, and the trial court's subsequent order verifying the stipulations. The Court also noted that the evidence presented at the disposition hearing clearly indicated that one of the children had suffered physical abuse at the hands of the mother's boyfriend and sexual abuse from the mother's father. Because the mother had refused to acknowledge this abuse and protect her child, and had apparently sought to induce her cousin to testify falsely regarding her relationship with the boyfriend, the Court determined that the mother's parental rights should have been terminated.
State ex rel. Patton v. Rubenstein, No. 30967, February28, 2003 (Per Curiam) (Petition for Writ of Habeas Corpus Denied)
PAROLE - STANDARDS FOR REVOCATION
The petitioner was paroled after seven and one-half years in prison. Six months later, parole violation proceedings were commenced based upon a number of technical violations. At the final hearing, the petitioner essentially admitted the allegations but offered mitigating evidence on each count. The petitioner's parole was subsequently revoked, and the petitioner filed for writ of habeas corpus, claiming that;
(1) the Parole Board's decision was arbitrary and capricious based on evidence presented,
(2) the Board had failed to consider less restrictive alternatives than revocation of parole, and
(3) that due to the poor quality of the tape of the proceedings, the Board had failed to fully consider his case as a body.
Held: That the petitioner was not entitled to relief. The Court held
(1) that the Board's decision was not an abuse of discretion and was not arbitrary and capricious, given petitioner's admissions to the violations and the nature of the mitigating evidence;
(2) that the Board did consider less restrictive alternative of home confinement, but evidence revealed, and the petitioner admitted, that home confinement would not be feasible; and
(3) that the record indicated that entire Board was fully familiarized of the evidence presented at the hearing and considered the matter as a complete body.
State v. Haden, No. 30650, February 28, 2003 (Per Curiam) (Reversed and Remanded)
DUI - SEVERANCE OF DRIVING ON REVOKED CHARGE
The appellant was charged with, inter alia, DUI-3rd Offense and Driving on a Revoked License/DUI related. Prior to trial the State moved to amend the indictment to reflect the correct date of the occurrence of the offense. The appellant then stipulated to the prior DUI offenses and requested severance/bifurcation of the Driving on a Revoked License charge. The trial court denied this motion and the appellant was convicted of DUI-3rd and Driving on a Revoked License. The trial court subsequently set aside the conviction for driving while revoked, but denied a motion for a new trial on the DUI-3rd charge.
Held: That while the indictment amendment was proper, the trial court erred under State v. Dews, 209 W. Va. 500, 549 S.E. 2d 694 (2001), in not granting severance of the driving while revoked charge. The trial court's failure to grant severance permitted the jury to engage in speculation as to the reasons for the revocation.
State ex rel. Ballard v. Painter, No. 30648, February 28, 2003 (Per Curiam) (Reversed and Remanded)
JURY SELECTION - IMPROPER PEREMPTORY STRIKES BY STATE - DISPARATE SENTENCES
The appellant, an African-American, was convicted of aiding and abetting armed robbery and sentenced to 50 years imprisonment. His petition for direct appeal was refused. On habeas, the appellant asserted
(1) that the sentence imposed was grossly disproportionate to the sentences of his co-defendants, who wielded a firearm and struck the clerk during the robbery, while appellant remained in the car outside the store, and
(2) that the State had improperly struck the only African-American on the jury panel. The Circuit Court denied habeas relief.
Held: That State improperly struck the African-American juror. When the State's initial reason for the strike proved false during voir dire, the State claimed that because the juror worked night shifts he would be unable to stay awake during the trial. The juror asserted otherwise, but the trial court permitted the strike. The Court held that this was not a facially credible reason for striking the juror in the light of a racial discrimination challenge.
Also, the Court held that the appellant's sentence was disproportionate to that of his co-defendants, given his degree of involvement in the offense. (The two co-defendant's had received sentences of 5-18 yrs, and a suspended 1-5 year sentence with probation).
State v. Redman, No. 30534, February 28, 2003 (Per Curiam) (Affirmed)
SENTENCING - STANDARDS FOR RECONSIDERATION
The appellant pleaded guilty in 1995 to several felony counts and was subsequently granted probation. The Probation Office later moved to revoke probation based on the appellant's drug use and a pending federal felony charge. The trial court revoked the appellant's probation in March 2001. In June 2001, the appellant requested reconsideration of sentence. The trial court denied reconsideration without making specific findings of fact and conclusions of law. The appellant asserted error in such action, and also asserted that court failed to consider rehabilitative aspects of sentencing.
Held: That new findings of fact and conclusions were unnecessary because no new evidence or legal arguments were being made since initial probation revocation, the order for which was referred to in the court's denial of reconsideration. The Court also held that rehabilitation is only a part of sentencing, and that trial court must look at the entirety of the case in determining an appropriate sentence.
Lawyer Disciplinary Board v. Scott, No. 30090, March 14, 2003 (Davis, J.) (Suspension of Law License for Three Years)
ATTORNEYS - DISCIPLINE - STANDARDS FOR SANCTIONS
Respondent was the prosecuting attorney of Harrison County. The Office of Disciplinary Counsel charged the respondent with twenty-two violations of the Rules of Professional Conduct. The violations occurred both prior to and after the respondent took office as prosecuting attorney. The respondent did not contest the violations. The ODC recommended annulment of the respondent's law license. The respondent, citing a number of mitigating factors, argued instead for a ninety-day suspension.
Held: That the respondent's law license was suspended for a period of three years, with conditions for reinstatement. In considering the mitigating factors cited by the respondent, the Court formally adopted the mitigating factors proposed by the American Bar Association in its Standards for Imposing Lawyer Sanctions. The Court found that several of the mitigating factors applied to the respondent's case. However, the Court also noted the existence of several aggravating factors, primarily the fact that the respondent was a public official. Citing prior cases involving public office holders, the Court approved a three-year suspension with conditions for reinstatement.
The state Supreme Court approved or proposed and put out for public comment a number of rule changes.
Trial Court Rules
On November 26, 2002, the Court provisionally adopted the following amendment to Rule 4.09 of the West Virginia Trial Court Rules, effective immediately, and approved a period for public comment to conclude on February 14, 2003 on the provisionally approved rule:
Rule 4.09. Contact with Jurors.
No party, nor his or her agent or attorney, shall communicate or attempt to communicate with any member of the jury or any member of the juror's immediate family until after that juror has been excused from further service for a particular term of court, without first applying for (with notice to all other parties) and obtaining an order allowing such communication. The application shall contain a description of the proposed contact, and an executed certificate by each person involved that no inappropriate contact will be made. The circuit court shall liberally grant the request.
On November 26, 2002, the Court approved a period of public comment to conclude on February 28, 2003 on proposed amendment to Section 14 of the West Virginia Trial Court Rules to govern the use of video conferencing in the courts (Section 14 had been previously reserved, so this is new):
Rule 14. VIDEO CONFERENCING
Rule 14.01. General Provisions
(a) Proceedings conducted by video conferencing
shall be conducted in the same manner as if the parties had appeared in person,
and the presiding judicial officer may exercise all powers consistent with the
proceeding.
(b) Any document filed in a proceeding conducted by video
conferencing may be transmitted by electronic facsimile; signatures on a
document transmitted by electronic facsimile shall have the same force and
effect as original signatures.
(c) The presiding judicial officer shall begin
all proceedings conducted by video conferencing by stating on the record
identities of all counsel, parties, witnesses, and members of the media present
in the courtroom and at the remote site.
(d) Any system used for conducting
proceedings by video conferencing shall meet the following standards:
(1) The
persons communicating must be able to simultaneously see and speak to one
another;
(2) The signal transmission must be live;
(3) The
signal transmission must be secure from unauthorized acquisition;
(4) Any
other standards established by the Supreme Court of Appeals.
Rule 14.02. Civil Proceedings in Circuit Courts
The Court may utilize video conferencing to conduct any evidentiary or non-evidentiary hearing, and may permit any witnesses to testify or be deposed by video conferencing.
Rule 14.03. Criminal Proceedings in Circuit Courts
(a) Pretrial Proceedings - The Court may utilize video conferencing to take a plea of not guilty at arraignment, to consider pretrial motions, to conduct pretrial status conferences, to permit a witness to testify at a pretrial hearing, to take and preserve the testimony of a prospective witness for use at trial, and to conduct any non-evidentiary hearing.
(b) Testimony of Child Witnesses - If a child of age twelve or less is called to testify as a witness at the trial of a person charged with violation of chapter 61, article 8B, sections 3,4,5, or 7; and the prospective child witness is an alleged victim, the court shall appoint as an adviser to the court a psychiatrist, a doctoral level psychologist, or a licensed social worker with at least five years of significant clinical experience in the treatment and evaluation of children. After holding an evidentiary hearing, and considering the age and maturity of the child; the facts and circumstances of the alleged offence; whether the alleged offense involves the infliction of bodily injury to the child or the threat of bodily injury to the child or another; and any mental or physical handicap of the child, the court may utilize video conferencing to take the child's testimony if the court determines expert testimony has established the following four circumstances with a reasonable degree of professional certainty:
(1) Testifying in the physical presence of the defendant would cause the child serious emotional distress and preclude the child from testifying truthfully and accurately;
(2) Testifying by video conferencing would reduce the child's emotional distress and substantially enhance the truthfulness and accuracy of the testimony;
(3) The absence of the child's testimony would significantly impair the state's ability to try the case; and
(4) The child shows no signs of being subjected to undue influence or coercion.
Rule 14.04. Proceedings in Magistrate Court
(a) Non-evidentiary hearings - In civil and
criminal cases, the court may conduct any non-evidentiary hearing by video
conferencing.
(b) Domestic Violence Proceeding - In proceedings
pursuant to Article 27 of Chapter 48 of the Code, the court may utilize video
conferencing to take testimony in ex parte proceedings relating to petitions for
temporary orders.
(c) Criminal proceedings - The court may utilize
video conferencing to take a plea of not guilty, and to conduct pretrial status
conferences.
Rule 14.05. Mental Hygiene Proceedings
The presiding officer may utilize video conferencing to conduct any evidentiary or non-evidentiary hearing, and may permit any witness to testify or be deposed in this manner.
Additionally:
On December 4, 2002, the Court adopted, effective immediately, amendments to the Rules of Practice and Procedure for Domestic Violence Civil Proceedings
On November 26, 2002, amendments were made to the Rules for Admission to the Practice of Law and the Court provisionally approved with a period for public comment to conclude February 14, 2003 an amendment to Rule 8 Admission Pro Hac Vice of those rules.
March 10, 2003
The 2003 Regular Session of the Legislature ended at midnight Saturday, March 8. The following selected bills passed both houses. More information is available since the first update and is provided below. The Governor has not acted on several bills, so there is still the possibility of veto. Copies of the selected bills summarized below will be sent to each office.
Full text of bills and other information can be found at the Legislative web site:
When viewing or downloading bill text, be sure to view the enrolled bill, which is the final version of the bill passed.
Highlights:
Extended period of supervised release for up to 50 years for certain offenders-SB 654 provides that any person convicted of a felony sexual offense or a felony child abuse offense may be required to serve, in addition to the sentence imposed by the court, a period of supervised release of up to fifty years. Passed 3/8, in effect ninety days from passage.
Selected Bills Passed
Com. Sub. SB 39 - relating to increasing the criminal offense for a false alarm felony when it is done with intent to cause injury to persons or property to divert attention from another offense. Passed 3/7; in effect ninety days from passage.
Com. Sub. SB 162 - relating to motor vehicles; and expunging motor vehicle license information for nineteen-year-olds when denials, suspensions or revocations of their licenses are due to school attendance. Passed 3/8; in effect ninety days from passage.
Com Sub. SB 204 - relating to removing language which precludes incarcerated persons from being subjected to mental hygiene proceedings; and clarifying that licensed independent clinical social workers and advanced nurse practitioners with psychiatric certification may certify persons for purposes of mental health proceedings. Passed 3/8; in effect ninety days from passage.
SB 205 - relating to modifying the criminal intent requirement for animal cruelty crimes; increasing the fine applicable to convicted persons; eliminating the civil recovery limitation of the assessed value of a dog; creating a felony offense for intentionally torturing or maliciously killing animals; and mandating that persons convicted of animal cruelty be prohibited from possessing, owning or residing with animals for varying periods depending on whether the person is convicted of a misdemeanor or felony. Passed 2/27; in effect ninety days from passage. Approved by Gov. 3/11.
Rev. Com. Sub. HB 329 - inter alia, authorizing family protective services board to promulgate legislative rules relating to operation of board, licensure of domestic violence and perpetrator intervention programs, perpetrator intervention program licensure and monitored visitation and exchange program certification; authorizing governor's committee on crime, delinquency and correction to promulgate legislative rule relating to law-enforcement training standards and community corrections standards; authorizing board of pharmacy to promulgate legislative rule relating to controlled substances monitoring. Passed 3/8; in effect from passage.
Com. Sub. SB 354 - relating to creating the offense of operating or attempting to operate clandestine drug laboratory; defining clandestine drug laboratory; offenses; penalties; and requiring payment for costs of remediation. Passed 3/8; in effect ninety days from passage.
Com. Sub. SB 364 - relating to child welfare and juvenile justice generally; requiring notice of certain proceedings to the department of health and human resources and the division of juvenile services for purposes of multi-disciplinary hearings; providing for greater involvement of multi-disciplinary teams in juvenile and abuse and neglect proceedings; providing that quarterly judicial reviews be continued while child remains in custody; exceptions to meeting requirement; providing for when offenses are committed while in custody; provided for recommended court orders; requiring that recommended service plans be considered; requiring written findings when order deviates from treatment team's recommended plan; and affording multi-disciplinary treatment team notice and opportunity to present evidence. Passed 3/8; in effect from passage.
Com. Sub. SB 424 - relating to governor's authority to authorize the commissioner of corrections to consent to transfers of convicted offenders under federal treaty requiring; consent of inmate; and requiring inmate be informed of rights and procedures in a language he or she understands. Passed 3/8; in effect from passage.
Com. Sub. SB 432 - relating to payment plans when collecting a portion of a magistrate court fine; and permitting an obligor to accelerate payment of a fine. Passed 3/8; in effect ninety days from passage.
Com. Sub. SB 453 - establishing domestic violence fatality review team. Passed 3/8; in effect ninety days from passage.
Com. Sub. SB 535 - relating to the sale of alcohol, wine and beer to minors; mandatory carding of purchasers of alcohol, wine and beer; and defining terms. Passed 3/8; in effect ninety days from passage.
SB 635 - relating to clarifying that foster care services do not constitute behavioral health care services; and directing the West Virginia supreme court of appeals and department of health and human resources to promulgate court orders for out-of-home placements. Passed 3/8; in effect from passage.
SB 654 - relating to community corrections generally; eligibility for community corrections supervision; extended supervision for certain sex offenders; supervision where available through community corrections; fees; procedures; and penalties. Passed 3/8; in effect ninety days from passage.
Sentencing review research and reporting - Com. Sub. 2092 - relating to establishing within the governor's committee on crime, delinquency and correction a research component relating to criminal sentencing and requiring reports. (The research conducted shall include a review of sentences and actual time served, parole eligibility and revocation, alternative sentencing and the impact of these issues on prison overcrowding . A report with findings and recommendations for modifications of sentencing laws shall be made to the Governor and the Legislature by January 1, 2004). Passed 3/8; in effect ninety days from passage.
Com. Sub. HB 2500 - clarifying the authority of the courts to continue protective orders during certain proceedings. Passed 3/6; in effect ninety days from passage.
HB 2529 - relating to the licensure and regulation of psycho physiological detection of deception examiners. Passed 3/7; in effect ninety days from passage.
Com. Sub. HB 2615 - inter alia, authorizing the juvenile facilities standards commission to promulgate a legislative rule relating to minimum standards for the structure, operation and maintenance of juvenile detention and correctional facilities. Passed 3/5; in effect from passage. Approved by Gov. 3/18.
Com. Sub. HB 2625 - inter alia, authorizing the division of health to promulgate a legislative rule relating to the medical examiner rule for post mortem inquiries. Passes 3/5; in effect from passage. Approved by Gov. 3/18.
Com. Sub. HB 2648 - inter alia, authorizing the division of motor vehicles to promulgate a legislative rule relating to the examination and issuance of drivers licenses, relating to the motor vehicle test and lock program and relating to the denial, suspension, revocation or nonrenewal of driving privileges. Passed 3/5; in effect from passage. Approved by Gov. 3/17.
Com. Sub. HB 2705 - relating to the supervision of adult offenders and authorizing a compact for the supervision of adult offenders. Passed 3/8; in effect from passage.
Tobacco Products - HB 2748 - relating to restricting delivery sales of tobacco products and prohibiting possession of counterfeit cigarettes; defining terms; specifying requirements for verification of age and identity of purchasers; requiring notices to consumers; establishing requirements for shipping and shippers; establishing requirements for registration and reporting to the department of tax and revenue; requiring payment of taxes; providing for forfeiture of tobacco products and personal property; prohibiting the possession or sale of counterfeit cigarettes; and providing for civil and criminal penalties. Passes 3/8; in effect ninety days from passage.
Com. Sub. HB 2753 - relating to animal fighting; making it a felony to be involved in specifically defined animal fighting ventures; providing a penalty for violations; making it a misdemeanor to attend an animal fight and providing a penalty therefor. Passed 3/8; in effect ninety days from passage.
HB 2794 - increasing the service fee for worthless checks. Passed 3/6; in effect ninety days from passage.
Com. Sub. HB 2814 - increasing the misdemeanor penalties for failure to yield right-of-way. Passed 3/8; in effect ninety days from passage.
HB 2847 - relating to the law-enforcement agency that places a person under arrest responsible for that person's initial transportation to a regional or county jail, except where a transportation agreement exists between the other agency and the sheriff; and requiring convicted persons to pay cost of transportation. Passed 3/8; in effect ninety days from passage.
Com. Sub. HB 2865 - relating to crimes against property; and increasing penalties for damaging or destroying real or personal property owned by a railroad company or public utility or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, water, wastewater, storm water, telecommunications or cable service. Passed 3/8; in effect ninety days from passage.
Com. Sub. HB 2910 - establishing an "Amber Alert" system to be utilized to rapidly disseminate information with regard to abducted and missing children. Passed 3/6; in effect ninety days from passage.
HB 3016 - relating to the confidentiality of adult protective service records; changing the current requirement that the adult protective service agency destroy the records in two years to thirty years. Passed 3/6; in effect ninety days from passage.
HB 3018 - changing the amount of time DHHR must retain child protective services records from six years to thirty years. Passed 3/6; in effect ninety days from passage.
HB 3203 - relating to amusement ride safety. Passed 3/8; in effect ninety days from passage.
TRAINING AND CLE - TOPICS AND SPEAKERS - The Criminal Law Research Center (CLRC) would like to hear from any and all persons with specific ideas regarding future seminars to be presented by the CLRC. If you have any ideas for specific seminar topics, or if you or anyone you know would be interested in presenting a topic at a training session, please contact Russ Cook at (304) 558-3905, or by e-mail at rcook@pds.state.wv.us
The 2003 WV Public Defender
Conference is scheduled for Canaan Valley Lodge, Friday, June 20 and Saturday,
June 21. Mark your calendars! We explored several other possible conference
sites including the new Stonewall Jackson State Park Resort, but selected Canaan
once again after considering cost, location, accommodation and the preferences
you have expressed for location in the past. As always, any suggestions for
conference topics, speakers, entertainment and FUN are encouraged and can be
directed to: Liz@WVDefender.com.
Details will be provided as conference
plans develop.
Since the purpose of this newsletter is to provide you with information and tools to help you in your job, suggestions about feature articles, issues you want addressed or other items you would like to see in the publication are more than welcome. You may have a funny experience or a learned treatise of your own that you would like to share with other criminal defense practitioners. Please send any suggestions, comments and/or contributions to Russ Cook at WV Public Defender Services by conventional or electronic mail at rcook@pds.state.wv.us
Each day, Public Defenders throughout the state are confronted with particular issues or events that, while they may seem unique, may have been encountered by other Public Defenders. Needless to say, it is often helpful to draw upon the resources and experience that is available to us through our colleagues in the Public Defender offices.
Do you have a unique experience or issue that you would like to share or discuss with your fellow Public Defenders? The CLRC is inviting all Public Defenders to submit any questions, comments or opinions on particular issues for publication in the West Virginia Criminal Law Resource Center Newsletter. Please forward all submissions to Russ Cook at the CLRC, or e-mail submissions to: rcook@pds.state.wv.us
(All articles featured here are from Stupid Crimes and Misdemeanors, a weekly feature of Courttv.com and are intended for entertainment purposes only.)
Mistaken 911 call leads police to pot plants
PALM SPRINGS, Calif. -- Police found 76 marijuana plants inside a house after a woman who was visiting mistakenly called 911 instead of 411.
The woman dialed 911 shortly after 11:20 a.m. on March 4. When she hung up, a police dispatcher called the number right back, and someone hung up again, according to Palm Springs police department spokesman Sgt. Dennis Graham.
Two officers went to the house and found the marijuana, valued at $76,000, growing in a room with sophisticated lighting. Officers also found three handguns and shotgun.
Douglas Wyman, 34, gave police a prescription for medical marijuana. However, the quantity of plants made police suspicious, so they began investigating the authenticity of the prescription. It turned out to be false.
Wyman was charged with cultivation and possession of marijuana for sale. Police determined that the guns were legally licensed and Wyman was not charged with any weapons charges. Another man, Anthony Ferris, 34, was arrested for parole violations.
The woman who mis-dialed was not arrested.
"It's not against the law to dial wrong" Graham noted.
Work presentation leads to arrest
FORT WORTH, Texas -- When a photo of a nude boy popped up during a departmental computer slide presentation at work, James Andrew Smith blamed it on a virus. But a supervisor contacted authorities just to make sure and Smith, a well-respected businessman and pastor, was soon arrested after a short investigation.
Smith, 42, was charged with three child pornography felonies after authorities found 65 computer printouts, 27 computer disks and numerous files containing explicit sex acts between children and adults, which they said belonged to Smith.
Authorities said Smith was making a PowerPoint presentation Sept. 4 to a group of employees at the Fort Worth company where he worked. During the presentation, a photograph of a young, naked boy suddenly appeared on the projection screen. Though he was provisionally suspended, his co-workers gave Smith the benefit of doubt because of his respected reputation.
Smith continues to claim that his computer has a virus. But as one investigator reportedly said, there is no virus that "would print out your pictures, put them in a folder and put the folder in your desk."
Smith, a pastor at a small Sanger church who has been married for 13 years, faces up to 20 years in prison if convicted. The trial is expected to begin next spring, according to the Tarrant County District Court clerk.
Suspect needed a minute, please
PANAMA CITY, Fla. -- A robbery suspect told police he would surrender but only after he finished smoking his crack cocaine.
Stephen Ray Carson, 29, a Volusia County transient, is accused of holding up a liquor store at gunpoint on Monday. He then used some of the loot to buy crack before kicking in the door of an apartment. He barricaded himself in a bathroom and refused to come out until he finished smoking the dope, police said.
Officers used pepper spray to get Carson out and end the five-minute standoff. He is being held in Bay County jail on charges of armed robbery and grand theft, according to the court clerk.
Officer finally gets his man
SALEM, Ore. -- Chandler Charles Field probably wishes he hadn't gone home for Christmas.
Field was arrested by the same police officer from whom he escaped four years earlier.
Officer Mike Basket had arrested Field on Dec. 26, 1998, on charges of leaving a diner without paying. But while sitting handcuffed in the back seat of the squad car, Field cracked the back window and slipped out while two other suspects distracted the officer.
After suffering good-natured ribbing from his colleagues over the escape, the veteran police officer decided to visit the home of Field's parents on Christmas. Field answered the door, then quickly tried to close it. But Basket put his foot in and arrested Field.
Field, who had fled to California, is now charged with resisting arrest, escape and theft. No court date has been set, according to a Marion County court clerk.
A bi-monthly publication of
West Virginia Public Defender Services
~Criminal Law Resource Center~
Jack Rogers, Executive Director
Inquiries, articles and suggestions welcome.
Please direct the same to Jack Rogers, Russ Cook or Elizabeth Murphy by any of the following means:
Department of Administration
Public Defender Services
Building 3, Room 330
1900 Kanawha Blvd., East
Charleston, WV 25305-0730
(304) 558-3905 phone
(304) 558-1098 fax
E-mail Jack Rogers:jrogers@pds.state.wv.us
E-mail Russ Cook:rcook@pds.state.wv.us
E-mail Elizabeth Murphy: lmurphy@wvdefender.com
(Publications available in large type upon request)