H. B. 2318
(By Delegate M. Smith)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §27-6A-3 of the Code of West Virginia,
1931, as amended, relating to competency and criminal
responsibility of persons charged or convicted of a crime; and
to the evaluation standard used in releasing forensic
admissions from mental health facilities to a less restrictive
environment.
Be it enacted by the Legislature of West Virginia:
That §27-6A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 6A. COMPETENCY AND CRIMINAL RESPONSIBILITY OF PERSONS
CHARGED OR CONVICTED OF A CRIME.
§27-6A-3. Competency of defendant to stand trial determination;
preliminary finding; hearing; evidence; disposition.
(a) Within five days of the receipt of the qualified forensic evaluator's report and opinion on the issue of competency to stand
trial, the court of record shall make a preliminary finding on the
issue of whether the defendant is competent to stand trial and if
not competent whether there is a substantial likelihood that the
defendant will attain competency within the next three months. If
the court of record orders, or if the state or defendant or
defendant's counsel within twenty days of receipt of the
preliminary findings requests a hearing, then a hearing shall be
held by the court of record within fifteen days of the date of the
preliminary finding, absent good cause being shown for a
continuance. If a hearing order or request is not filed within
twenty days, the preliminary findings of the court become the final
order.
(b) At a hearing to determine a defendant's competency to
stand trial the defendant has the right to be present and he or she
has the right to be represented by counsel and introduce evidence
and cross-examine witnesses. The defendant shall be afforded
timely and adequate notice of the issues at the hearing and shall
have access to all forensic evaluator's opinions. All rights
generally afforded a defendant in criminal proceedings shall be
afforded to a defendant in the competency proceedings, except trial
by jury.
(c) The court of record pursuant to a preliminary finding or
hearing on the issue of a defendant's competency to stand trial and with due consideration of any forensic evaluation conducted
pursuant to sections two and three of this article shall make a
finding of fact upon a preponderance of the evidence as to the
defendant's competency to stand trial based on whether or not the
defendant has sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding and
whether he or she has a rational as well as a factual understanding
of the proceedings against him or her.
(d) If at any point in the proceedings the defendant is found
competent to stand trial, the court of record shall forthwith
proceed with the criminal proceedings.
(e) If at any point in the proceedings the defendant is found
not competent to stand trial, the court of record shall at the same
hearing, upon the evidence, make further findings as to whether or
not there is a substantial likelihood that the defendant will
attain competency within the next ensuing three months.
(f) If at any point in the proceedings the defendant is found
not competent to stand trial and is found substantially likely to
attain competency, the court of record shall in the same order,
upon the evidence, make further findings as to whether the
defendant requires, in order to attain competency, inpatient
management in a mental health facility. If inpatient management is
required, the court shall order the defendant be committed to an
inpatient mental health facility designated by the department to attain competency to stand trial and for a competency evaluation.
The term of this commitment may not exceed three months from the
time of entry into the facility. However, upon request by the
chief medical officer of the mental health facility and based on
the requirement for additional management to attain competency to
stand trial, the court of record may, prior to the termination of
the three-month period, extend the period up to nine months from
entry into the facility. A forensic evaluation of competency to
stand trial shall be conducted by a qualified forensic evaluator
and a report rendered to the court, in like manner as subsections
(a) and (c), section two of this article, every three months until
the court determines the defendant is not competent to stand trial
and is not substantially likely to attain competency.
(g) If at any point in the proceedings the defendant is found
not competent to stand trial and is found not substantially likely
to attain competency and if the defendant has been indicted or
charged with a misdemeanor or felony which does not involve an act
of violence against a person, the criminal charges shall be
dismissed. The dismissal order may, however, be stayed for twenty
days to allow civil commitment proceedings to be instituted by the
prosecutor pursuant to article five of this chapter. The defendant
shall be immediately released from any inpatient facility unless
civilly committed.
(h) If at any point in the proceedings the defendant is found not competent to stand trial and is found not substantially likely
to attain competency, and if the defendant has been indicted or
charged with a misdemeanor or felony in which the misdemeanor or
felony does involve an act of violence against a person, then the
court shall determine on the record the offense or offenses of
which the person otherwise would have been convicted, and the
maximum sentence he or she could have received. A defendant shall
remain under the court's jurisdiction until the expiration of the
maximum sentence unless the defendant attains competency to stand
trial and the criminal charges reach resolution or the court
dismisses the indictment or charge. The court shall order the
defendant be committed to a mental health facility designated by
the department that is the least restrictive environment to manage
the defendant and that will allow for the protection of the public.
Notice of the maximum sentence period with an end date shall be
provided to the mental health facility. The court shall order a
qualified forensic evaluator to conduct a dangerousness evaluation
to include dangerousness risk factors to be completed within thirty
days of admission to the mental health facility and a report
rendered to the court within ten business days of the completion of
the evaluation. The medical director of the mental health facility
shall provide the court a written clinical summary report of the
defendant's condition at least annually during the time of the
court's jurisdiction. The court's jurisdiction shall continue an additional ten days beyond any expiration to allow civil commitment
proceedings to be instituted by the prosecutor pursuant to article
five of this chapter. The defendant shall then be immediately
released from the facility unless civilly committed.
(i) If the defendant has been ordered to a mental health
facility pursuant to subsection (h) of this section and the court
receives notice from the medical director or other responsible
official of the mental health facility that the medical director or
other responsible official of the mental health facility believes
the defendant no longer constitutes a significant danger to self or
others is not mentally ill or does not have significant
dangerousness risk factors associated with mental illness, the
court shall conduct a hearing within thirty days to consider
evidence, with due consideration of the qualified forensic
evaluator's dangerousness report or clinical summary report to
determine if the defendant shall be released to a less restrictive
environment. The court may order the release of the defendant only
when the court finds that the defendant is no longer a significant
danger to self or others not mentally ill or does not have
significant dangerousness risk factors associated with mental
illness. When a defendant's dangerousness risk factors associated
with mental illness are reduced or eliminated as a result of any
treatment, the court, in its discretion, may make the continuance
of appropriate treatment, including medications, a condition of the defendant's release from inpatient hospitalization. The court
shall maintain jurisdiction of the defendant in accordance with
said subsection. Upon notice that a defendant ordered to a mental
health facility pursuant to said subsection who is released on the
condition that he or she continues treatment does not continue his
or her treatment, the prosecuting attorney shall, by motion, cause
the court to reconsider the defendant's release. Upon a showing
that defendant is in violation of the conditions of his or her
release, the court shall reorder the defendant to a mental health
facility under the authority of the department which is the least
restrictive setting that will allow for the protection of the
public.
(j) The prosecuting attorney may, by motion, and in due
consideration of any chief medical officer's or forensic
evaluator's reports, cause the competency to stand trial of a
defendant subject to the court's jurisdiction pursuant to
subsection (h) of this section or released pursuant to subsection
(i) of this section to be determined by the court of record while
the defendant remains under the jurisdiction of the court, and in
which case the court may order a forensic evaluation of competency
to stand trial be conducted by a qualified forensic evaluator and
a report rendered to the court in like manner as subsections (a)
and (c), section two of this article.
(k) Any defendant found not competent to stand trial may at any time petition the court of record for a hearing on his or her
competency.
(l) Notice of court findings of a defendant's competency to
stand trial, of commitment for inpatient management to attain
competency, of dismissal of charges, of order for inpatient
management to protect the public, of release or conditional
release, or any hearings to be conducted pursuant to this section
shall be sent to the prosecuting attorney, the defendant and his or
her counsel, and the mental health facility. Notice of court
release hearing or order for release or conditional release
pursuant to subsection (i) of this section shall be made available
to the victim or next of kin of the victim of the offense for which
the defendant was charged. The burden is on the victim or next of
kin of the victim to keep the court apprised of that person's
current mailing address.
(m) A mental health facility not operated by the state is not
obligated to admit or treat a defendant under this section.
NOTE: The purpose of this bill is to update the language to
comport with the evaluation standard used in releasing forensic
admissions from mental health facilities to a less restrictive
environment.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.