Bill Text: VA SB1263 | 2019 | Regular Session | Comm Sub
Bill Title: Juveniles; trial as an adult.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2019-02-19 - Left in Courts of Justice [SB1263 Detail]
Download: Virginia-2019-SB1263-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§16.1-269.1, 16.1-269.3, 16.1-284.1, and 16.1-285.1 of the Code of Virginia are amended and reenacted as follows:
§16.1-269.1. Trial in circuit court; preliminary hearing; direct indictment; remand.
A. Except as provided in subsections B and C, if a juvenile 14
years of age or older at the time of an alleged offense is charged with an
offense which that would be a felony if committed by an adult,
except for a juvenile 14 or 15 years of age charged with a felony larceny
offense, the court shall, on motion of the attorney for the Commonwealth
and prior to a hearing on the merits, hold a transfer hearing and may retain
jurisdiction or transfer such juvenile for proper criminal proceedings to the
appropriate circuit court having criminal jurisdiction of such offenses if
committed by an adult. Any transfer to the appropriate circuit court shall be
subject to the following conditions:
1. Notice as prescribed in §§16.1-263 and 16.1-264 shall be given to the juvenile and his parent, guardian, legal custodian or other person standing in loco parentis; or attorney;
2. The juvenile court finds that probable cause exists to
believe that the juvenile committed the delinquent act as alleged or a lesser
included delinquent act which that would be a felony if committed
by an adult;
3. The juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence; and
4. The court finds by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court. In determining whether a juvenile is a proper person to remain within the jurisdiction of the juvenile court, the court shall consider, but not be limited to, the following factors:
a. The juvenile's age;
b. The seriousness and number of alleged offenses, including (i) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (ii) whether the alleged offense was against persons or property, with greater weight being given to offenses against persons, especially if death or bodily injury resulted; (iii) whether the maximum punishment for such an offense is greater than 20 years confinement if committed by an adult; (iv) whether the alleged offense involved the use of a firearm or other dangerous weapon by brandishing, threatening, displaying or otherwise employing such weapon; and (v) the nature of the juvenile's participation in the alleged offense;
c. Whether the juvenile can be retained in the juvenile justice system long enough for effective treatment and rehabilitation;
d. The appropriateness and availability of the services and dispositional alternatives in both the criminal justice and juvenile justice systems for dealing with the juvenile's problems;
e. The record and previous history of the juvenile in this or other jurisdictions, including (i) the number and nature of previous contacts with juvenile or circuit courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses;
f. Whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in this or any other jurisdiction;
g. The extent, if any, of the juvenile's degree of intellectual disability or mental illness;
h. The juvenile's school record and education;
i. The juvenile's mental and emotional maturity; and
j. The juvenile's physical condition and physical maturity.
No transfer decision shall be precluded or reversed on the grounds that the court failed to consider any of the factors specified in subdivision 4.
B. The juvenile court shall conduct a preliminary hearing whenever a juvenile 14 years of age or older is charged with murder in violation of §18.2-31, 18.2-32 or 18.2-40, or aggravated malicious wounding in violation of §18.2-51.2.
C. The juvenile court shall conduct a preliminary hearing whenever a juvenile 14 years of age or older is charged with murder in violation of §18.2-33; felonious injury by mob in violation of §18.2-41; abduction in violation of §18.2-48; malicious wounding in violation of §18.2-51; malicious wounding of a law-enforcement officer in violation of §18.2-51.1; felonious poisoning in violation of §18.2-54.1; adulteration of products in violation of §18.2-54.2; robbery in violation of §18.2-58 or carjacking in violation of § 18.2-58.1; rape in violation of §18.2-61; forcible sodomy in violation of § 18.2-67.1; object sexual penetration in violation of §18.2-67.2; manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance in violation of §18.2-248 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating § 18.2-248 provided the adjudications occurred after the juvenile was at least 14 years of age; manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine in violation of §18.2-248.03 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating §18.2-248.03 provided the adjudications occurred after the juvenile was at least 14 years of age; or felonious manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute anabolic steroids in violation of § 18.2-248.5 if the juvenile has been previously adjudicated delinquent on two or more occasions of violating §18.2-248.5 provided the adjudications occurred after the juvenile was at least 14 years of age, provided the attorney for the Commonwealth gives written notice of his intent to proceed pursuant to this subsection. The notice shall be filed with the court and mailed or delivered to counsel for the juvenile or, if the juvenile is not then represented by counsel, to the juvenile and a parent, guardian or other person standing in loco parentis with respect to the juvenile at least seven days prior to the preliminary hearing. If the attorney for the Commonwealth elects not to give such notice, or if he elects to withdraw the notice prior to certification of the charge to the grand jury, he may proceed as provided in subsection A.
D. Upon a finding of probable cause pursuant to a preliminary
hearing under subsection B or C, the juvenile court shall certify the charge,
and all ancillary charges, to the grand jury. Such certification shall divest
the juvenile court of jurisdiction as to the charge and any ancillary charges.
Nothing in this subsection shall divest the juvenile court of jurisdiction over
any matters unrelated to such charge and ancillary charges which that
may otherwise be properly within the jurisdiction of the juvenile court.
If the court does not find probable cause to believe that the juvenile has committed the violent juvenile felony as charged in the petition or warrant or if the petition or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth may seek a direct indictment in the circuit court. If the petition or warrant is terminated by nolle prosequi in the juvenile court, the attorney for the Commonwealth may seek an indictment only after a preliminary hearing in juvenile court.
If the court finds that the juvenile was not 14 years of age or older at the time of the alleged commission of the offense or that the conditions specified in subdivision A 1, 2, or 3 have not been met, the case shall proceed as otherwise provided for by law.
E. An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age. If an indictment is terminated by nolle prosequi, the Commonwealth may reinstate the proceeding by seeking a subsequent indictment.
§16.1-269.3. Retention by juvenile court; appeal.
If a case is not transferred following a transfer hearing or
is not certified following a probable cause hearing, the judge who conducted
the hearing shall not, over the objection of any interested party, preside at
the adjudicatory hearing on the petition, but rather it shall be presided over
by another judge of that court. If the attorney for the Commonwealth deems it
to be in the public interest, and the juvenile is fourteen 14
years of age or older, except for a juvenile 14 or 15 years of age charged
with a felony larceny offense, he may, within ten 10 days
after the juvenile court's final decision to retain the case in accordance with
subsection A of §16.1-269.1, file a notice of appeal of the decision to the
appropriate circuit court. A copy of such notice shall be furnished at the same
time to the counsel for the juvenile.
§16.1-284.1. Placement in secure local facility.
A. If a juvenile 14 years of age or older is found to have
committed an offense which that if committed by an adult would be
punishable by confinement in a state or local correctional facility as defined
in §53.1-1, except for a juvenile 14 or 15 years of age charged with a
felony larceny offense, and the court determines (i) that the juvenile has
not previously been and is not currently adjudicated delinquent of a violent
juvenile felony or found guilty of a violent juvenile felony, (ii) that the
juvenile has not been released from the custody of the Department within the
previous 18 months, (iii) that the interests of the juvenile and the community
require that the juvenile be placed under legal restraint or discipline, and
(iv) that other placements authorized by this title will not serve the best
interests of the juvenile, then the court may order the juvenile confined in a
detention home or other secure facility for juveniles for a period not to
exceed six months from the date the order is entered, for a single offense or
multiple offenses. However, if the single offense or multiple offenses, which
if committed by an adult would be punishable as a felony or a Class 1
misdemeanor, caused the death of any person, then the court may order the
juvenile confined in a detention home or other secure facility for juveniles
for a period not to exceed 12 months from the date the order is entered.
The period of confinement ordered may exceed 30 calendar days if the juvenile has had an assessment completed by the secure facility to which he is ordered concerning the appropriateness of the placement.
B. If the period of confinement in a detention home or other secure facility for juveniles is to exceed 30 calendar days, and the juvenile is eligible for commitment pursuant to subdivision A 14 of §16.1-278.8, then the court shall order the juvenile committed to the Department, but suspend such commitment. In suspending the commitment to the Department as provided for in this subsection, the court shall specify conditions for the juvenile's satisfactory completion of one or more community or facility based treatment programs as may be appropriate for the juvenile's rehabilitation.
C. During any period of confinement which that
exceeds 30 calendar days ordered pursuant to this section, the court shall
conduct a mandatory review hearing at least once during each 30 days and at
such other times upon the request of the juvenile's probation officer, for good
cause shown. If it appears at such hearing that the purpose of the order of
confinement has been achieved, the juvenile shall be released on probation for
such period and under such conditions as the court may specify and remain
subject to the order suspending commitment to the State Department of Juvenile
Justice. If the juvenile's commitment to the Department has been suspended as
provided in subsection B of this section, and if the court determines at
the first or any subsequent review hearing that the juvenile is consistently
failing to comply with the conditions specified by the court or the policies
and program requirements of the facility, then the court shall order that the
juvenile be committed to the State Department of Juvenile Justice. If the court
determines at the first or any subsequent review hearing that the juvenile is
not actively involved in any community facility based treatment program through
no fault of his own, then the court shall order that the juvenile be released
under such conditions as the court may specify subject to the suspended
commitment.
C1. The appearance of the juvenile before the court for a hearing pursuant to subsection C may be by (i) personal appearance before the judge or (ii) use of two-way electronic video and audio communication. If two-way electronic video and audio communication is used, a judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person, and any documents filed may be transmitted by facsimile process. A facsimile may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures. Any two-way electronic video and audio communication system used for an appearance shall meet the standards as set forth in subsection B of § 19.2-3.1.
D. A juvenile may only be ordered confined pursuant to this
section to a facility in compliance with standards established by the State
Board for such placements. Standards for these facilities shall require
juveniles placed pursuant to this section for a period which that
exceeds 30 calendar days be provided separate services for their
rehabilitation, consistent with the intent of this section.
E. The Department of Juvenile Justice shall assist the localities or combinations thereof in implementing this section consistent with the statewide plan required by §16.1-309.4 and pursuant to standards promulgated by the State Board, in order to ensure the availability and reasonable access of each court to the facilities the use of which is authorized by this section.
§16.1-285.1. Commitment of serious offenders.
A. In the case of a juvenile fourteen 14 years
of age or older who has been found guilty of an offense which that
would be a felony if committed by an adult, except for a juvenile 14 or 15
years of age charged with a felony larceny offense, and either (i) the
juvenile is on parole for an offense which that would be a felony
if committed by an adult, (ii) the juvenile was committed to the state for an
offense which that would be a felony if committed by an adult
within the immediately preceding twelve 12 months, (iii) the
felony offense is punishable by a term of confinement of greater than twenty
20 years if the felony was committed by an adult, or (iv) the juvenile has
been previously adjudicated delinquent for an offense which if committed by an
adult would be a felony punishable by a term of confinement of twenty
20 years or more, and the circuit court, or the juvenile or family court,
as the case may be, finds that commitment under this section is necessary to
meet the rehabilitative needs of the juvenile and would serve the best
interests of the community, then the court may order the juvenile committed to
the Department of Juvenile Justice for placement in a juvenile correctional
center for the period of time prescribed pursuant to this section.
Alternatively, in order to determine if a juvenile,
transferred from a juvenile and domestic relations district court to a circuit
court pursuant to §16.1-269.1, appropriately qualifies for commitment pursuant
to this section, notwithstanding the inapplicability of the qualification
criteria set forth in clauses (i) through (iv), the circuit court may consider
the commitment criteria set forth in subdivisions B 1, 2, and 3 of
subsection B as well as other components of the juvenile's life history
and, if upon such consideration in the opinion of the court the needs of the
juvenile and the interests of the community would clearly best be served by
commitment hereunder, may so commit the juvenile.
B. Prior to committing any juvenile pursuant to this section, the court shall consider:
1. The juvenile's age;
2. The seriousness and number of the present offenses, including (i) whether the offense was committed in an aggressive, violent, premeditated, or willful manner; (ii) whether the offense was against persons or property, with greater weight being given to offenses against persons, especially if death or injury resulted; (iii) whether the offense involved the use of a firearm or other dangerous weapon by brandishing, displaying, threatening with or otherwise employing such weapon; and (iv) the nature of the juvenile's participation in the alleged offense;
3. The record and previous history of the juvenile in this or any other jurisdiction, including (i) the number and nature of previous contacts with courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the offense is part of a repetitive pattern of similar adjudicated offenses; and
4. The Department's estimated length of stay.
Such commitment order must be supported by a determination that the interests of the juvenile and community require that the juvenile be placed under legal restraint or discipline and that the juvenile is not a proper person to receive treatment or rehabilitation through other juvenile programs or facilities.
C. In ordering commitment pursuant to this section, the court shall specify a period of commitment not to exceed seven years or the juvenile's twenty-first birthday, whichever shall occur first. The court may also order a period of determinate or indeterminate parole supervision to follow the commitment but the total period of commitment and parole supervision shall not exceed seven years or the juvenile's twenty-first birthday, whichever occurs first.
D. Upon receipt of a juvenile committed under the provisions of this section, the Department shall evaluate the juvenile for the purpose of considering placement of the juvenile in an appropriate juvenile correctional center for the time prescribed by the committing court. Such a placement decision shall be made based on the availability of treatment programs at the facility; the level of security at the facility; the offense for which the juvenile has been committed; and the welfare, age and gender of the juvenile.
E. The court which that commits the juvenile to
the Department under this section shall have continuing jurisdiction over the juvenile
throughout his commitment. The continuing jurisdiction of the court shall not
prevent the Department from removing the juvenile from a juvenile correctional
center without prior court approval for the sole purposes of routine or
emergency medical treatment, routine educational services, or family
emergencies.
F. Any juvenile committed under the provisions of this section
shall not be released at a time earlier than that specified by the court in its
dispositional order except as provided for in §16.1-285.2. The Department may
petition the committing court for a hearing as provided for in §16.1-285.2 for
an earlier release of the juvenile when good cause exists for an earlier
release. In addition, the Department shall petition the committing court for a
determination as to the continued commitment of each juvenile sentenced under
this section at least sixty 60 days prior to the second
anniversary of the juvenile's date of commitment and sixty 60
days prior to each annual anniversary thereafter.
