Title 92 W. Va. C.S.R.

Parole Board Parole Board

Series 01 Procedural Rules of the West Virginia Parole Board Eligibility, Decisions and Discharge

W. Va. Code R. § 92-1-1 General

1.1. Scope. -- These rules establish procedures and criteria to be employed by the West Virginia Parole Board when considering eligible inmates incarcerated by the West Virginia Division of Corrections & Rehabilitation for parole; in granting or denying parole; establishing conditions therefore; and providing a process for reconsideration and extraordinary remedies.

1.2. Authority. -- W. Va. Code § 62-12-13(g).

1.3. Filing Date. -- June 1, 2022.

1.4. Effective Date. -- July 1, 2022.

1.5. Purpose. -- The general purpose of these rules and regulations is to establish procedures and criteria whereby the West Virginia Parole Board shall discharge its duties and exercise the powers described and reserved to the Board by the W. Va. Code §§62-12-12; 62-12-12a; 62-12-13; 62-12-13b; 62-12-18; 62-12-23; and 62-12-24.

1.6. Repeal and Replace. -- This rule repeals and replaces W. Va. Code R. §92-1-1, West Virginia Parole Board Procedural Rules, effective October 7, 2014.

W. Va. Code R. § 92-1-2 Definitions

2.1. “Accelerated Parole” shall mean a release of an inmate upon parole based upon successful completion of that certain program set forth in W. Va. Code §62-12-13(b)(1)(B), provided the Parole Board does not find that the inmate constitutes a reasonable risk to the safety or property of other persons if released, and all other factors in subsections (b)(2-4) of the same section are met.

2.2. “Board” or “Parole Board” shall mean the West Virginia Parole Board.

2.3. “Chairperson” shall mean the Parole Board Member appointed by the Governor to govern the West Virginia Parole Board pursuant to W. Va. Code §62-12-12.

2.4. “Contingent Parole” shall mean a release of an inmate to parole based upon successful completion of conditions or submission of an approved release plan within a time frame specified by the Panel.

2.5. “Division” shall refer to the West Virginia Division of Corrections & Rehabilitation.

2.6. “Foreign Detainer” shall mean a detainer lodged by a jurisdiction other than West Virginia for service of a sentence of incarceration.

2.7. “Institution” shall refer to any location designated by the State of West Virginia as a correctional facility.

2.8. “Lead Interviewer” shall be a Parole Board Member who shall serve as the Presiding Member over a specific case.

2.9. “Member” shall mean any Member of the West Virginia Parole Board.

2.10. “Ordinary Parole” shall mean a release of an inmate to parole based on eligibility relating to service of the minimum required sentence set forth in W. Va. Code §62-12-13(b)(1)(A) and all other factors in subsections (b)(2-4) of the same section.

2.11. “Parole Officer” shall refer to an employee of the West Virginia Division of Corrections & Rehabilitation who is charged with the supervision of the parolee during his or her release on parole and with the enforcement of the terms and conditions of parole.

2.12. “Panel” shall refer to three Members designated by the Chairperson for the purpose of conducting hearings and making determinations pursuant to Section 3.2 below.

2.13. “Victim” means a person who is a victim of a felony, or whose death occurs during the commission of a felony or misdemeanor, or a member of the deceased victim’s immediate family, the fiduciary of the deceased victim’s estate, or an adult household member residing with the victim. For purposes of inmates with aggregate consecutive or concurrent sentences, any of the victims of the crimes for which the inmate is currently serving a sentence shall be considered victims at any parole hearing held during that aggregate term of incarceration.

2.14. “Violation” shall refer to a breach by the parolee of any term or condition of release upon parole.

W. Va. Code R. § 92-1-3 General Provisions Relating to the Parole Board

3.1. The Parole Board is committed to discharging its responsibilities using contemporary, evidence based practices and strategies. It is committed to ongoing professional development and incorporating new evidence based practices in decision-making and in its interactions with offenders. Equally, it recognizes and supports ongoing professional development of Parole Board staff.

3.1.a. The Parole Board shall:

3.1.a.1. Be sensitive to the concerns of crime victims and the public by reducing the potential of future victimization;

3.1.a.2. Enhance public safety by making informed parole decisions by using parole guidelines consistent with evidence based practices, and exercise professional judgment to assess offenders’ discrete, individual factors, to assess readiness for transition into the community;

3.1.a.3. Recognize that the Parole Board, while comprised of individual decision makers, is structured to vote as a “panel,” and each panel shall act in the same manner and under the same authority, as the full Parole Board; therefore, the established principles should support decisional consistency;

3.1.a.4. Support the use of a transparent and clear decisional process, and are committed to ensuring that decision-making is carried out in a fair and consistent process through the use of parole guidelines;

3.1.a.5. Recognize that offender risk of reoffending can be reduced and that continued risk reduction can occur through imposing conditions of parole and the application of intermediate sanctioning that target the offender’s criminogenic needs;

3.1.a.6. Value evidence based research, data and related decisional best practices by applying them to the decisions of parole, setting conditions, supporting intermediate sanctions, and making decisions to revoke parole;

3.1.a.7. Ascribe to the importance of treating correctional staff, offenders, victims, and the public with respect and dignity;

3.1.a.8. Understand the importance of the wise utilization of finite prison and community resources, through fiscal responsibility, by applying the principles of effective intervention and use of evidence based parole strategies for identifying and prioritizing supervision and treatment for those offenders who pose the greatest and most serious risk to the community;

3.1.a.9. Respond to parole violators by supporting compliance with parole conditions through the timely application of an evidence based graduated scale of sanctions, including a return to confinement;

3.1.a.10. Recognize that the Parole Board and the Division are two parts of one larger system; therefore, the Parole Board supports the order and safety within the Division; and

3.1.a.11. Defer to the sentencing court regarding the issue of appropriate punishment by recognizing that the sentencing court is the arbiter of just punishment.

3.2. Method of Decision. (W. Va. Code §62-12-12a):

3.2.a. The Board shall sit in Panels of three Members for the purpose of conducting parole interviews and making determinations concerning the release of any inmate on parole, conducting hearings and making determinations regarding the revocation of parole, considering requests for reconsideration and conducting any other hearing. Two Members of any Panel shall constitute a quorum for the purpose of conducting business. Procedural and evidentiary matters, such as motions to continue and decisions to admit or exclude evidence and other non-dispositive matters, shall be decided by the Lead Interviewer.

3.2.b. The Chairperson will designate the Members of each Panel and will assign each Panel such matters as the Chairperson deems proper.

3.2.c. No inmate shall be granted parole without the consent of at least two Members of the Panel.

3.2.d. The presence of an inmate/parolee shall be required at all proceedings unless the inmate/parolee’s conduct impairs the security and order of the proceedings and it becomes necessary for his or her removal from the proceedings.

3.2.e. The Parole Board shall only consider inmates for parole who are in an Institution in the custody of the Division or those on a furlough approved by the Commissioner of Corrections.

3.2.f. Notwithstanding subdivisions (a) or (b) above, the Parole Board may, in its discretion, consider in absentia an inmate who is confined in this State in a nursing home, state hospital, or who is mentally incapacitated, or terminally ill.

3.2.g. The Parole Board may allow for videoconferencing where appropriate to satisfy the attendance requirements as established in subdivisions (a), (b) and (c) above.

3.3. Rule Interpretation. The Parole Board reserves for itself the authority to interpret these rules or any other rule or policy directive it may issue.

3.4. Privacy of Deliberations. All deliberations and votes of each Panel shall be made in private.

3.5. Open Meetings Act. Because the Parole Board exercises quasi-judicial functions, the formal requirements of the Open Governmental Proceedings Act (W.Va. Code §6-9A-1 et seq.) do not apply.

3.6. Nonviolent Offender Parole Program. The Board will not sit and determine parole for inmates who are eligible for parole pursuant to W. Va. Code §62-12-13c.

3.7. Signatures on official documents. One member of each Panel set by the Chairperson may sign any official documents on behalf of the Panel.

W. Va. Code R. § 92-1-4 Eligibility for Parole Consideration

4.1. Eligibility Based on Incarceration Period.

4.1.a. Any inmate, in order to be eligible for consideration for ordinary parole, must meet the following prerequisites:

4.1.a.1. If the inmate is serving an indeterminate sentence, he or she must have served the minimum term of the sentence.

4.1.a.2. If the inmate is serving a determinate sentence, he or she must have served one-fourth of the sentence.

4.1.a.3. If the inmate is serving a sentence designated in the committing court’s sentencing/commitment order as “Life with Mercy,” and the crime is not First Degree Murder, he or she must have served 10 years of the sentence.

4.1.a.4. If the inmate is serving a sentence designated in the committing court’s sentencing/commitment order as “Life with Mercy” for First Degree Murder, and the crime occurred prior to June 10, 1994, he or she must have served 10 years of the sentence. If the crime occurred on or after June 10, 1994, he or she must have served 15 years.

4.1.a.5. If the inmate is serving a sentence designated in the committing court’s sentencing/commitment order as “Life with Mercy”, and he or she has been convicted of felony crimes twice before, he or she must serve 15 years of the life sentence.

4.1.a.5.A. This provision shall apply regardless of the crime for which the life sentence was imposed, unless the crime is first degree murder or second degree murder or a violation of W. Va. Code §61-8B-3, and it is determined, as provided in W. Va. Code §61-11-19 that such person had been before convicted in this state of first degree murder, second degree murder, or a violation of W. Va. Code §61-8B-3, or has been so convicted under any law of the United States or any other state for an offense which has the same elements as any offenses described in this subsection, in which case the inmate is not eligible for parole.

4.1.a.6. If the inmate is serving a sentence for a drug offense and the committing court’s order designated that the crime occurred within 1000 feet of a school or school property, he or she must have served three years if the drug was a narcotic controlled substance and two years if it was non-narcotic. (W. Va. Code §60A-4-406).

4.1.a.7. Notwithstanding any other provisions herein, if an inmate is sentenced under a court order showing that he or she committed or attempted to commit a felony with the use, presentment or brandishing of a firearm, the inmate shall be eligible for parole consideration in accordance with the following:

4.1.a.7.A. If the inmate so committed or attempted to commit the crime of robbery as defined in W. Va. Code §61-2-12, he or she shall be eligible for parole either when he or she has served five years of the sentence or when he or she has served one-third of his or her determinate sentence, whichever is greater.

4.1.a.7.B. If the inmate so committed or attempted to commit any other act, and was convicted of a felony under any section of the Code, other than W. Va. Code §61-2-12, then he or she shall be eligible for parole after he or she has served a minimum of three years of the sentence or the maximum of the sentence, whichever is less.

4.1.a.7.C. The provisions of this subsection will apply only to those inmates who were convicted of their felonies after August 1, 1981. Inmates convicted of their offenses before that date shall have their eligibility determined by subsections (1), (2), (3) and (4). Resolution of any dispute over the applicability of this subsection shall be made by reference to W. Va. Code §62-12-13(a)(1)(B).

4.1.a.8. If an inmate is serving two or more sentences concurrently, he or she shall be eligible for parole consideration after he or she has served the longest of the minimum terms. If one of the sentences is a determinate sentence, then he or she shall serve one-fourth, (5 years or one-third of a definite sentence if the firearm statute is applicable), of that sentence in order to be eligible for parole consideration, providing that such is longer than the minimum sentence for any concurrent indeterminate sentence.

4.1.a.9. If an inmate is serving consecutive sentences, the time of parole eligibility shall be computed by adding together the minimum terms of the sentences. If one of the sentences is a determinate sentence, then parole eligibility shall be computed by adding a number equal to one-fourth of the determinate term, (or one-third if the firearm statute is applicable), to the minimum term of the other sentences.

4.1.a.9.A. If the inmate is serving two determinate sentences consecutively, then parole eligibility shall be computed by adding a number equal to one-fourth, (or one-third if the firearm enhancement is applied), of one determinate term to a number equal to one-fourth, (or one-third if the firearm enhancement is applied), of the second term.

4.1.a.10. When a parolee has violated the conditions of the release on parole by confessing to, or being convicted of treason, first or second degree murder, armed/aggravated robbery, rape, first or second degree sexual assault, any sexual offense against a minor, incest, or an offense with the same essential elements if known by other terms in other jurisdictions, he or she shall be returned to an Institution of this State to serve the remainder of the maximum sentence, during which remaining part of the sentence he or she shall be ineligible for further parole.

4.1.b. Rules concerning parole eligibility shall not be interpreted to delay the actual discharge of sentence and release from the institution. If an inmate has reached his or her discharge date by benefit of Good Time awarded, but has not reached parole eligibility, then he or she shall be discharged.

4.1.c. An inmate who is serving a sentence designated in the committing court’s sentencing/commitment order as “Life” or “Life without Mercy” shall not be eligible for parole.

4.1.d. Parole Eligibility Dates shall be calculated by the Division and provided to the inmate within 30 days of the receipt of a valid Sentencing/Commitment Order from the Circuit Court or within 30 days of the receipt of a Revocation of Parole Order from the Board.

4.2. Eligibility Based upon Successful Completion of Accelerated Parole Program. An inmate shall only be eligible for accelerated parole consideration if approved and referred to the Parole Board by the Division.

The minimum time served requirements of section 4.1.a do not apply if all of the following are met:

4.2.a. The inmate has applied and been accepted into the Division’s “Accelerated Parole Program.”

4.2.b. The inmate has met the requirements of the Division’s current Policy Directive(s) for the Accelerated Parole Program.

4.3. Detainers.

4.3.a. Notwithstanding the minimum time served requirements of section 4.1.a, the Parole Board may 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.

4.3.b. All applications to parole to a detainer for serving a sentence in another jurisdiction shall be considered by the Board and may be summarily denied without hearing. For applicants not summarily denied, a hearing shall be scheduled at the discretion of the Board at the inmate’s institution with all required notices being provided to all individuals entitled to such notice.

4.3.c. If parole is granted, the inmate shall be released only to the detainer. If the detainer is voided by the authorities who filed it, the Parole Board will be notified and parole will be denied. The inmate will be notified of this decision in writing by the Parole Board.

4.3.d. A denial of parole under this section precludes consideration for parole for a period of one year or until the requirements of section 4.1.a are met.

4.4. Eligibility Based on Institutional Conduct.

4.4.a. No inmate who is incarcerated in administrative or punitive segregation for disciplinary conduct shall be considered for parole. Such inmate shall become eligible in the first full month following the month in which he or she is released from punitive segregation.

4.5. Eligibility Relating to Submission of a Release Plan.

4.5.a. All inmates seeking parole must have a written parole release plan, approved by DCR Parole Services, setting forth his or her proposed plans for place of residence and employment. A release plan may be substituted by detainer to serve a sentence of incarceration in another jurisdiction for a year or longer.

4.5.b. In the case of inmates subject to mandatory 30-day notification periods, being offenses of murder, aggravated robbery, sexual assault in the first or second degree, kidnapping, child abuse resulting in injury, child neglect resulting in injury, arson, or a sexual offense against a minor, the board may conduct an initial interview without a release plan. If the Panel does not deny parole, the decision will be a contingent decision pursuant to section 8.1.b.2 below.

W. Va. Code R. § 92-1-5 Interviews of Inmates

5.1. Inmates who meet the applicable eligibility requirements for parole consideration shall be given an interview by a Panel of the Board. 5.2 Pursuant to W. Va. Code §62-12-13(m), interviews may be conducted by means of video teleconference in compliance with statutory requirements. 5.3 No inmate shall have the right to an interview on any particular day. However, the inmate shall have the right to an interview within a specific month in accordance with the following:

5.3.a. Initial Interview. -- When an inmate first becomes eligible for parole, he or she shall be interviewed by a Panel of the Board during the month in which he or she becomes eligible.

5.3.b. An inmate who is not granted parole following the initial interview, shall be scheduled for an additional interview no more than 12 months following the month of initial eligibility except for inmates with life sentences who may be subject to extensions of this period. Subsequent interviews will be scheduled at 12 month intervals, except as otherwise provided for by this Rule. 5.3.c An inmate who is serving a sentence of “Life with Mercy” and is not granted parole following the interview, shall be scheduled for an additional interview no more than 36 months following the month of initial eligibility. Subsequent interviews may be scheduled at up to 36 month intervals, except as otherwise provided for by this Rule.

5.4. Notice to Inmate.

5.4.a. The Division shall notify inmates of the date of their individual interviews by issuance of a monthly list. The list shall give the name of each inmate, by institution, who is to receive an interview in a given month, together with the date of such interview. The list shall be issued by the Division on or before the first day of the month prior thereto. The list shall be sent to each institution, and all inmates whose names appear on it shall be notified of the date of their individual interview by employees of the institution.

5.5. Notice to Victims in Crimes Not Subject to W.Va. Code §62-12-23.

5.5.a. Notwithstanding the provisions of section 5.6 of this Rule, written notice of each interview shall be sent to the victim(s) who have registered to receive such notice through technology made available by the Division, so that they may comment on the appropriateness of the granting of parole. The notice shall occur at least 10 days prior to the interview.

5.5.b. The Division shall notify the victim(s) of the decision of the Panel. This notice may be made by regular mail, facsimile or electronic mail.

5.6. Notice to Officials; Notice to Victims; Victims’ Right to be Heard pursuant to W.Va. Code §62-12-23.

5.6.a. Following the sentencing of a person who has been convicted of murder, aggravated robbery, sexual assault in the first or second degree, kidnapping, child abuse resulting in injury, child neglect resulting in injury, arson, or a sexual offense against a minor, the prosecuting attorney shall prepare a “Parole Hearing Notification Form” containing the information required by W. Va. Code §62-12-23.

5.6.b. At least 45 days prior to the date of a parole hearing, the Division shall notify those persons listed on the “Parole Hearing Notification Form” of the date and place at which such parole hearing will be held. Such notice sent to victims shall be sent by certified mail, return receipt requested. Such notice sent to officials shall be sent by regular mail, electronic mail, or facsimile.

5.6.c. The notice to the victim(s) shall state that the victim(s) have the right to submit a written statement to the Board and to attend the parole hearing to be heard, with or without the inmate present, regarding granting parole to the inmate. The notice shall also state that only the victim(s) may submit written statements and speak at the parole hearing unless a victim is deceased, is a minor, or is otherwise incapacitated. This testimony may be given by phone or in person at the Board’s discretion.

5.6.d. If the Panel grants parole, it shall immediately set a date for the inmate’s release and shall notify those persons listed on the “Parole Hearing Notification Form” that parole has been granted and indicate the date on which the inmate is to be released. Such notice sent to victims shall be sent by certified mail, return receipt requested. Such notice sent to officials shall be sent by regular mail, electronic mail, or facsimile.

5.7. Date and Place of Interview.

5.7.a. Inmates will participate in parole interviews at the Institution where confined. If deemed in the interest of economy and expedience or for any other special circumstance, the Board may designate another secure location. Interviews may, in special circumstances, be held at a hospital or at the discretion of the Board. Individual inmates shall not be scheduled in advance for specific times, unless the Victim, as mentioned in Section 5.6 of this Rule, has requested to attend the hearing. The Panel of the Board on a given day shall commence with interviews at a prearranged time. Thereafter, the Panel shall interview each inmate scheduled for that day in turn. The Parole Board reserves the right to change the order of the schedule. If necessary, interviews may be continued to succeeding days. Parole interviews are open to the public, except as restrictions on attendance may be required at the Board’s discretion.

5.8. Consideration of Documents at Interviews.

5.8.a. At the interview the Panel will consider any of the following documents, which it has obtained from appropriate sources:

5.8.a.1. The Regular Case Parole Guidelines and a LS/CMI report prepared by the Division.

5.8.a.2. An authentic copy of the inmate’s current criminal record, as provided through the West Virginia State Police, the United States Department of Justice or any other reliable criminal information source.

5.8.a.3. Reports from the Institution concerning the inmate’s work record, participation in therapeutic, treatment and educational programs, and overall conduct.

5.8.a.4. Reports of the inmate’s discipline while incarcerated, to include the record of any and all violations of Class I or Class II institutional disciplinary rules, proved and disposed of, and the sanctions imposed therefor.

5.8.a.5. Reports submitted to the Panel by institutional authorities concerning physical, mental or psychiatric examinations of the inmate conducted by either the Division or other appropriate agencies or professionals.

5.8.a.6. Written sentiment submitted by victims, law enforcement officers, prosecuting attorneys, judges, or other public officials and citizens from the county where the inmate was sentenced or from the community in which the inmate resided.

5.8.a.7. A written description of the facts and circumstances of the crime(s) for which the inmate has been convicted and is currently incarcerated.

5.8.a.8. Records pertaining to any previous release of the inmate on home confinement, probation or parole.

5.8.a.9. A home plan that has been approved by the Division’s Parole Services unit.

5.8.b. The Panel may conduct the interview without any of the aforementioned documents and reports, provided that a written statement indicating the reason for the Panel deciding to proceed without them is prepared, signed by all interviewing Members, and placed in the inmate’s file. Further provided that, if an inmate appears at the parole hearing and no Regular Case Parole Guidelines have been completed, the Board shall delay the hearing until the same has made available.

5.8.c. In the case of a prisoner who is incarcerated because such prisoner has been found guilty of, or has pleaded guilty to a felony under the provisions of W. Va. Code §61-8-12 or under the provisions of W. Va. Code §61-8B-1 et seq. or 61-8C-1 et seq. (sex crimes), the Board may not waive the report required by subsection (5) and the report shall include a study and diagnosis which shall include an on-going treatment plan requiring active participation in sexual abuse counseling at an approved mental health facility or through some other approved program.

5.9. Conduct of the Interview.

5.9.a. The interview will be conducted in an informal manner. The purpose of the interview is to consider the facts and matters contained in the documents and reports described in Section 5.8, to allow the inmate to proffer reasons why he or she should be granted parole, and to give the Panel an opportunity to pose questions and observe the demeanor of the inmate. All hearings shall be fair and appropriate and the decision based on the totality of the findings. The proceedings in the interview shall be recorded by electronic, stenographic, or other means of equivalent competence. An interview by video teleconference may be utilized in compliance with the requirements of W. Va. Code §62-12-13(m).

5.9.b. During the course of the interview, the Panel shall:

5.9.b.1. Allow the inmate an opportunity to comment upon information contained in the documents or reports which the Panel shall consider, and rebut any information which the inmate believes is false or inaccurate. In order to rebut the information, or to present additional information which the inmate believes is relevant, the inmate may present to the Panel documents, affidavits or letters. The inmate may also ask that the Panel delay consideration of the case pending receipt of such documents, affidavits or letters if they are not available at the time of the interview. The Board or its Panel has no responsibility for obtaining such information on the inmate’s behalf. 5.9.b.2 Any civilian or public attendees to any form of Parole Board hearing shall only be permitted to bring with them a photo identification.

5.9.c. Allow the inmate an opportunity to make a statement as to why he or she should be granted parole. Specifically, addressing as to why the Panel should believe that if he or she were released on parole, he or she could conduct themselves in a lawful manner. Further, that release would not be incompatible with the best interests and welfare of society generally.

5.9.d. Members may ask the inmate any question bearing on the factors considered for a grant or denial of parole. All interviews or questioning shall be conducted in a professional, fair and impartial manner.

5.9.e. Any person, including the inmate himself or herself, who speaks without permission, or who disrupts the interview may be ordered to leave the room by the Panel. Further, the person may be subject to sanction and/or criminal prosecution.

5.10. Open Meetings Act. Because the Parole Board exercises quasi-judicial functions, the formal requirements of the Open Governmental Proceedings Act (W.Va. Code §6-9A-1 et seq.) do not apply.

W. Va. Code R. § 92-1-6 Factors in Decision

6.1. The Parole Board makes its decisions based upon a structured, informed and evidence based process using formal parole guidelines. In the consideration of release of an inmate on parole, the Panel will consider positive and negative factors in all the aforesaid areas and not confine its inquiry to particular areas to the exclusion of others. In considering whether parole should or should not be granted to any inmate, the Panel shall consider the following factors:

6.1.a. Evidence based factors such as offense severity, risk assessment, program participation/completion and misconduct history. The Parole Guidelines scoring will inform the Panel in the exercise of its discretion;

6.1.b. Whether the inmate has satisfactorily participated in institutional education, work, therapeutic or treatment programs, and has complied with the recommendations of the IRPP;

6.1.c. Whether the inmate has previously been on home confinement, parole, probation, community corrections, or other supervision, and if so, how the inmate behaved thereon and the circumstances of any violations;

6.1.d. The sentiment expressed by members of the community, victims of the crime(s) committed by the inmate, and criminal justice officials, if any such sentiment be available;

6.1.e. The facts and circumstances of the crime;

6.1.f. The demeanor of the inmate during the interview and the attitudes expressed with regard to prior criminal behavior, to social morals and law;

6.1.g. The inmate’s prior criminal record, if any;

6.1.h. The results of any available physical, mental or psychological/psychiatric examinations. Psychological exams must be conducted for sexual offenders. Other inmates’ crimes may dictate a psychological exam be conducted if directed by the Division through their psychological assessment and screening;

6.1.i. Whether the inmate has been convicted of a new crime while incarcerated, or has been found guilty of violating any Class I or Class II institutional disciplinary rules; and

6.1.j. Any other factor which may tend to indicate whether or not the inmate constitutes a reasonable risk to safety or property if released on parole.

6.2. The Panel will consider positive and negative factors in all the aforesaid areas and not confine its inquiry to particular areas to the exclusions of others. The Panel shall assess all factors together to determine whether:

6.2.a. The inmate can and will conduct himself or herself in a lawful manner if released; and

6.2.b. Whether release is in the best interests of society considering public safety and rehabilitation goals.

6.3. In the consideration of release of an inmate on accelerated parole, the Panel must consider all the aforementioned factors, verify eligibility requirements and program completion. If denying accelerated parole the Panel must give written rebuttable reasons to justify the denial.

6.4. Special parole considerations for persons convicted as juveniles.

6.4.a. When a person who is serving a sentence imposed as the result of an offense or offenses committed when he or she was less than eighteen years of age becomes eligible for parole pursuant to applicable provisions of this code, including, but not limited to, section twenty-three, article eleven, chapter sixty-one thereof, the parole board shall ensure that the procedures governing its consideration of the person’s application for parole ensure that he or she is provided a meaningful opportunity to obtain release and shall adopt rules and guidelines to do so that are consistent with existing case law.

6.4.b. During a parole hearing involving a person described in subsection (a) of this section, in addition to other factors required by law to be considered by the parole board, the parole board shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner during incarceration. The board shall also consider the following:

6.4.b.1. A review of educational and court documents;

6.4.b.2. Participation in available rehabilitative and educational programs while in prison;

6.4.b.3. Age at the time of the offense;

6.4.b.4. Immaturity at the time of the offense;

6.4.b.5. Home and community environment at the time of the offense;

6.4.b.6. Efforts made toward rehabilitation;

6.4.b.7. Evidence of remorse; and

6.4.b.8. Any other factors or circumstances the board considers relevant.

W. Va. Code R. § 92-1-7 Waiver of Interview

7.1. The inmate may waive a parole interview for up to one year, either by writing a letter setting forth the desire to do so, or by executing such waiver form as provided by the Board. Such waiver shall be made no later than 30 days before the interview date unless special circumstances exist for a shorter period. The Board, in its discretion, may grant or deny a postponement.

W. Va. Code R. § 92-1-8 Decisions of the Panel

8.1. The Panel at the conclusion of an interview may decide to:

8.1.a. Grant parole with or without special conditions.

8.1.a.1. If the Panel decides to grant parole, it shall issue written notification thereof, specifying the grant decision and any Special Conditions for supervision of parole, in addition to those conditions specified in W. Va. Code §62-12-17, which the Board deems necessary. The Parole Board’s conditions will be strictly enforced and will not be voided or invalidated by any entity other than the Parole Board.

8.1.a.2. An inmate granted parole, who is subject to a detainer filed by authorities of any state or of the United States, shall be released only to the detainer. The inmate shall not be released to parole supervision without the express written consent of the authorities who filed the detainer.

8.1.a.3. Any person charged with escape from the custody of the Commissioner of Corrections shall not be released from custody while the prosecution of the alleged offense is pending.

8.1.b. Grant contingent parole with additional requirements.

8.1.b.1. If the Panel should decide that parole should be granted, contingent upon additional conditions being met by the inmate prior to his or her release on parole, the Panel may make a contingent grant to parole. All conditions for the release of a prisoner to parole must be clearly set forth by the Panel together with a time frame by which the conditions are to be met. Upon completion of stated conditions, the Chairman of the Board will be notified to grant and issue parole release. Failure of an individual to meet such conditions as specified by the order of the Panel shall constitute grounds for rescission of parole.

8.1.b.2. If the parole release plan is unavailable at the time of the interview, and the Panel determines that the inmate could be a suitable candidate for parole, the Panel shall grant parole contingent upon the receipt of an approved release plan. The inmate will then have no more than 120 days to tender an approved release plan. If the approved release plan is received, the Parole Board will grant parole and authorize release onto parole. Failure to submit an approved release plan within the 120-day time frame may result in denial of parole. Provided, That the Board may extend the period up to 120 days upon a showing of good cause.

8.1.c. Deny parole and schedule an additional interview at 12 months, except as otherwise provided below.

8.1.c.1. If a majority of the Panel denies parole and determines that the inmate should have an additional interview prior to the expiration of 12 months, then the Panel shall proceed to deliberate the length of time which shall elapse before the next interview. If a majority of the Panel agrees on a specific period of time, then that period of time shall be the period for the next interview. If the Panel is unable to agree upon a period of time which is less than 12 months to schedule another interview, then the Lead Interviewer, after causing the same to be duly noted in writing, may poll each Member of the Panel who shall recommend a period of time between 0 and 12 months, and reach the average of the same by adding all recommendations and dividing by the number of Members making recommendations. Once this average is reached, the Panel shall again deliberate to determine if this average can be agreed upon. If the Panel cannot thereafter agree on a date for a new interview, the matter shall be referred to the Chairperson who, in his or her sound judgment, shall schedule another interview prior to the expiration of 12 months. The Panel will inform the inmate in the Decision Summary of the specific reasons for denial and requirements for the next parole review.

8.1.c.2. In the case of an inmate serving a sentence designated in the committing court’s sentencing/commitment order as “Life with Mercy,” subsequent interviews may be scheduled at up to 36 month intervals following a denial of parole. (W. Va. Code §62-12-13(e))

8.1.c.3. In the case where an inmate was not provided a parole interview in the initial month of eligibility, the Panel will adjust his or her next parole eligibility date to account for time the inmate was not interviewed. This adjustment will not be made if the inmate is 9 months or further past due for their interview.

8.2. A Decision Summary shall be provided to the inmate which will identify all the guideline factors and countervailing factors supporting the decision. This decision shall contain the specific requirements for the offender if parole is denied or granted contingent, or conditions if parole is granted.

8.2.a. At any time before or after an interview, the Panel may defer consideration until it receives additional information which it deems necessary to its decision.

W. Va. Code R. § 92-1-9 Release or Discharge from Parole

9.1. The Chairperson shall consider all requests by the Division and by parolees for release or discharge from further parole supervision, provided that the parolee shall have been released on parole for at least one year if sentenced to less than life imprisonment or five years if sentenced to life imprisonment and the ends of parole have been attained.

9.1.a. If the Chairperson denies discharge, they shall issue a written statement as to the reasons for denial and set a date to be reviewed again. The date for the next review shall not exceed a year.

9.2. No parolee shall be discharged from parole if he or she has violated the terms of release on parole by confession to, or being convicted of, in any state of the United States, the District of Columbia or the territorial possessions of the United States, the crime of treason, murder, aggravated robbery, first degree sexual assault, second degree sexual assault, sexual offense against a minor, incest, or offenses with the same essential elements if known by other terms in other jurisdictions.

W. Va. Code R. § 92-1-10 Request for Records

10.1. Any inmate/parolee or his/her representative may make a request for records pertaining to consideration of the inmate for release on parole, rescission or revocation of parole, or discharge of a parolee from supervision, provided such records are subject to public disclosure under the West Virginia Freedom of Information Act, W. Va. Code §29B-1-1 et seq., and overriding security considerations do not dictate otherwise. Examples of documents not to be disclosed include but are not limited to the following: official, judicial, victim, or community sentiment of any form; documents in which the identity of the victim or victim’s address is set forth; treatment records of the offender and psychological/psychiatric testing and reports. If a document contains non-disclosable information which is easily redacted then the document should be disclosed with the non-disclosable information redacted. All requests must be in writing and directed to the Commissioner of the Division. For photocopies the cost shall be twenty-five cents ($0.25) per page, to be paid in advance.

10.2. Recordings of hearings may be requested by an inmate/parolee or his/her representative. Written transcripts of hearings are not undertaken by the Board. If an inmate/parolee or his/her representative desires a copy of an electronic recording of the inmate/parolee’s parole hearing, he or she must tender a written request for such recording to the Board and include payment of $20.00 per hearing. In the event of a lost or missing electronic recordation of the hearing, the requestor shall be notified in writing of the cause of its absence.

W. Va. Code R. § 92-1-11 Reconsideration

11.1. An aggrieved inmate may request reconsideration by the Parole Board within 120 days of the date of the Decision. Any request for reconsideration made after the 120-day filing period will be rejected absent a showing of good cause. In examining the request for reconsideration, the Parole Board will only consider those events which have occurred after the decision date or new information that was not available to the Panel at the time of the Decision. The Parole Board will not re-examine any facts or circumstances available to the Board at the time of the Decision.

11.2. A Panel, as set forth in Section 3.2, may within its discretion, grant or deny a request for reconsideration. In addition to simply granting or denying the request, the Board may modify the upcoming interview date, conduct further hearings concerning the assertions in the request for reconsideration, or request updated information from the Division or staff.

W. Va. Code R. § 92-1-12 Judicial Review

12.1. Judicial Review. Decisions of the Parole Board are full and final and are not subject to direct appeal.

12.2. Extraordinary Remedies. An aggrieved inmate may institute a state habeas corpus ad subjiciendum action (W.Va. Code 53-4A-1 et seq.) in the Circuit Court of Kanawha County, the Circuit Court of the County where the Institution is located, or the West Virginia Supreme Court of Appeals, if the actions or Decision of the Parole Board is alleged to violate rights provided by the West Virginia Constitution. An aggrieved inmate may institute an action in the proper federal court (28 U.S. Code §2241) if the actions or Decision of the Parole Board is alleged to violate a United States Constitutional right.

W. Va. Code R. § 92-1-13 Severability

13.1. These rules are considered to be severable. In the event these rules are inconsistent with or contrary to any applicable statute, the provisions of the statute shall be applied.

13.2. No error in either the admission or the exclusion of evidence; no error or defect in any ruling or order; or in any act or omission by the Parole Board, Panel, or by any of the parties; shall be grounds for granting a new hearing, for vacating, modifying, or for otherwise disturbing a decision or order, unless refusal to take such action is inconsistent with the fair administration of justice. Any error, defect, irregularity, or variance, which does not affect substantial rights, may be disregarded.

13.3. These rules, including any time frames herein, are intended to serve only as guidelines for procedural functions of the Parole Board and its Panels. Nothing herein is intended to vest any person with any right, substantive or otherwise, which is greater than otherwise existing in law.

Series 02 Sanction, Recission and Revocation

W. Va. Code R. § 92-2-1 General

1.1. Scope. -- These rules and regulations establish procedures and criteria to be employed by the Parole Board when sanctioning parolees; revoking the parole of those inmates who violate the conditions of parole; requesting reconsideration of decisions of the Parole Board and in discharging the sentence of those who successfully completed the conditions of parole.

1.2. Authority. -- W. Va. Code § 62-12-13(g).

1.3. Filing Date. -- August 7, 2014.

1.4. Effective Date. -- October 7, 2014.

1.5. Purpose. -- The general purpose of these rules and regulations is to establish procedures and criteria whereby the West Virginia Parole Board shall discharge its duties and exercise the powers described and reserved to the Board by the W. Va. Code §§ 62-12-13; 62-12-14; & 62-12-19.

W. Va. Code R. § 92-2-2 Definitions

2.1. The word “Chairperson” as used herein shall mean the Parole Board Member appointed by the Governor to govern the West Virginia State Parole Board, pursuant to W. Va. Code §62-12-12.

2.2. The word “Board” as used herein shall mean the West Virginia Parole Board.

2.3. “Lead Interviewer” shall be a Parole Board Member which shall serve as the Presiding Member over a specific case.

2.4. The word “Member” as used herein shall mean any Member of the Parole Board.

2.5. The term “Parole Officer” shall refer to an employee of the West Virginia Division of Corrections who is charged with the supervision of the parolee during his or her release on parole and with the enforcement of the terms and conditions of parole.

2.6. “Panel” shall refer to three Members designated by the Chairperson for the purpose of conducting hearings and making determinations pursuant to Section 3.2 below.

2.7. The word “Violation” shall refer to a breach by the parolee of any term or condition of release upon parole.

2.8. The word “Division” shall refer to the West Virginia Division of Corrections.

2.9. The word “Institution” shall refer to the following: the Mount Olive Correctional Complex, the Huttonsville Correctional Center, the Pruntytown Correctional Center, the Denmar Correctional Center, the Ohio Correctional Center, the Lakin Correctional Facility for Women, the McDowell County Correctional Center, the Stevens Correctional Center, the Martinsburg Correctional Center, the Northern Regional Jail and Correctional Facility, the Beckley Work Release Center, the Charleston Work Release Center, the Huntington Work Release Center, the St. Mary’s Correctional Center, the Anthony Correctional Center, Salem Correctional Center, Slayton Work Camp and Parkersburg Correctional Center or any other location designated by the State of West Virginia as a correctional facility including regional jails.

2.10. “Ordinary Parole” shall mean a release of an inmate upon parole based on eligibility relating to service of the minimum required sentence set forth in W. Va. Code § 62-12-13(b)(1)(A) and all other factors in subsections (b)(2-5) of the same section.

2.11. “Accelerated Parole” shall mean a release of an inmate upon parole based upon successful completion of that certain program set forth in W. Va. Code §62-12-13(b)(1)(B), provided the Parole Board does not find that the inmate constitutes a reasonable risk to the safety or property of other persons if released, and all other factors in subsections (b)(2-5) of the same section.

2.12. “Foreign Detainer” shall mean a release of an inmate upon parole based upon a detainer lodged by a jurisdiction other than West Virginia for service of a sentence of incarceration.

2.13. “Contingent Parole” shall mean a release of an inmate upon parole based upon successful completion of conditions within a time frame specified by the Panel.

2.14. “Deferred Parole” shall mean the possible paroling of an inmate with the pending completion of a residential plan with Parole Board approval.

2.15. “Victim” means a person who is a victim of a felony, or whose death occurs during the commission of a felony or misdemeanor, or a member of the deceased victim’s immediate family, the fiduciary of the deceased victim’s estate, or an adult household member residing with the victim.

W. Va. Code R. § 92-2-3 Board Decisions

3.1. Parole Board Standards.

3.1.a. The Parole Board is committed to discharging its responsibilities using contemporary, evidence based practices and strategies. It is committed to ongoing professional development and incorporating new evidence based practices in decision-making and in its interactions with offenders. Equally, it recognizes and supports ongoing professional development of Parole Board staff.

3.1.b. The Parole Board shall:

3.1.b.1. Be sensitive to the concerns of crime victims and the public by reducing the potential of future victimization;

3.1.b.2. Enhance public safety by making informed parole decisions by using parole guidelines consistent with evidence based practices, and exercise professional judgment to assess offenders’ discrete, individual factors, to assess readiness for transition into the community;

3.1.b.3. Recognize that the Parole Board, while comprised of individual decision makers, is structured to vote as a “panel,” and each panel shall act in the same manner and under the same authority, as the full Parole Board; therefore, the established principles should support decisional consistency;

3.1.b.4. Support the use of a transparent and clear decisional process, and are committed to ensuring that decision-making is carried out in a fair and consistent process through the use of parole guidelines;

3.1.b.5. Recognize that offender risk of reoffending can be reduced and that continued risk reduction can occur through imposing conditions of parole and the application of intermediate sanctioning that target the offenders criminogenic needs;

3.1.b.6. Value evidence based research, data and related decisional best practices by applying them to the decisions of parole, setting conditions, supporting intermediate sanctions, and making decisions to revoke parole;

3.1.b.7. Ascribe to the importance of treating correctional staff, offenders, victims, and the public with respect and dignity;

3.1.b.8. Understand the importance of the wise utilization of finite prison and community resources, through fiscal responsibility, by applying the principles of effective intervention and use of evidence based parole strategies for identifying and prioritizing for supervision and treatment those offenders who pose the greatest and most serious risk to the community;

3.1.b.9. Respond to parole violators by supporting compliance with parole conditions through the timely application of an evidence based graduated scale of sanctions, including a return to confinement;

3.1.b.10. Recognize that the Parole Board and the Division are two parts of one larger system; therefore, the Parole Board supports the order and safety within the Division; and

3.1.b.11. Defer to the sentencing court regarding the issue of appropriate punishment by recognizing that the sentencing court is the arbiter of just punishment.

3.2. Method of Decision. (W. Va. Code §62-12-12a):

3.2.a. The Board shall sit in Panels of three Members for the purpose of conducting hearings and making determinations concerning the release of any inmate on parole, conducting hearings and making determinations regarding the revocation of parole, considering any eligible parolee for release from further supervision and discharge from parole, conducting parole interviews and conducting any hearing. Two Members of any Panel shall constitute a quorum for the purpose of conducting business. Procedural and evidentiary matters, such as motions to continue and decisions to admit or exclude evidence and other non-dispositive matters shall be decided by the Lead Interviewer.

3.2.b. The Chairperson will designate the Members of each Panel and will assign each Panel such matters as the Chairperson deems proper.

3.2.c. No inmate shall be granted parole without the consent of at least two Members of the Panel.

3.3. Attendance Requirements.

3.3.a. The presence of an inmate/parolee shall be required at all proceedings unless the inmate/parolee conduct impairs the security and order of the proceedings and it becomes necessary for his or her removal from the proceedings.

3.3.b. The Parole Board shall only consider inmates/parolees who are in an Institution in the custody of the Division.

3.3.c. Notwithstanding subdivisions (a) or (b) above, the Parole Board may, in its discretion, consider in abstentia an inmate/parolee who is confined in this State in a nursing home, state hospital, or who is mentally incapacitated, or terminally ill.

3.3.d. The Parole Board may allow for videoconferencing where appropriate to satisfy the attendance requirements as established in subdivisions (a), (b) and (c) above.

3.4. Rule Interpretation. The Parole Board reserves for itself the authority to interpret these rules or any other rule or policy directive it may issue.

3.5. Privacy of Deliberations. All deliberations and votes of each Panel shall be made in private.

3.6. Open Meetings Act. Because the Parole Board exercises quasi-judicial functions, the formal requirements of the Open Governmental Proceedings Act (W.Va. Code §6-9A-1 et seq.) do not apply.

W. Va. Code R. § 92-2-4 Rescission of Parole

4.1. Grounds for Rescission. The Board may rescind and issue a Notice of Temporary Rescission of any grant of parole, including grant deferred, made pursuant to these rules:

4.1.a. If the inmate commits any infraction of Class I or Class II institutional disciplinary rules after the interview and before the actual release from the institution;

4.1.b. If any information becomes available to the Board which contravenes the evidence the Panel used to reach the parole decision;

4.1.c. If an inmate paroling to a foreign detainer for service of a sentence has the detainer or sentence voided; or

4.1.d. If an inmate granted Contingent Parole fails to meet the conditions for his or her release on parole in the time specified by the Panel; whereupon the Parole Board shall immediately issue a notice of temporary rescission.

4.2. Procedures for Rescission.

4.2.a. Upon receipt of a written report from the Division of Corrections or any other credible source, that any of the aforementioned grounds for rescission exist, the Board shall immediately issue a written hold to the institution and the inmate which shall serve as notice that the grant of parole is temporarily rescinded until such time as a rescission hearing can be held.

4.2.b. Within 45 days of issuance of the written hold, a Panel of the Board shall hold a rescission hearing at the institution, or other convenient location, for the purpose of determining:

4.2.b.1. Whether the inmate was found guilty of violating an institutional Class I or Class II disciplinary rule, and if so, whether rescission is warranted; or

4.2.b.2. Whether the new information, which contravenes the evidence, used to reach the parole decision, is accurate, and if so, whether rescission is warranted; or

4.2.b.3. If an inmate paroling to a foreign detainer for service of a sentence has the detainer or sentence voided; or

4.2.b.4. Whether an inmate granted Contingent Parole fails to meet the conditions for his or her release on parole in the time specified by the Panel.

4.2.c. The inmate and the warden of the institution shall receive written notice of the time and date of the rescission hearing at least five days prior thereto. The notice shall set forth the grounds upon which rescission may be based.

4.2.d. The inmate may be represented at the rescission hearing by another inmate. . The inmate may present witnesses, give testimony, and cross-examine all witnesses who testify against him or her.

4.2.e. Staff may be present at their own volition to testify; the Panel may also require the presence of staff as circumstances dictate.

4.2.f. Institutional disciplinary reports regularly kept shall be adopted as reliable and trustworthy evidence to prove the commission of a violation of institutional Class I or Class II disciplinary rules and the circumstances thereof, insofar as such are expressly described in the findings of fact of the Disciplinary Committee or Institutional Magistrate. However, the inmate may present evidence as to the circumstances of the violation or other mitigating factors.

W. Va. Code R. § 92-2-5 Parole Sanctions

5.1. The Division shall notify the Parole Board when a parolee begins serving a term of confinement for a parole sanction pursuant to W.Va. Code § 62-12-19. The Parole Board may deny further confinement, or reduce the required period of confinement.

5.2. Upon written request submitted by the parolee within 10 days from arrest, the parolee shall be afforded the right to a hearing within forty-five (45) days from arrest before a Parole Board panel. The sole issue to be decided by the Panel shall be whether further confinement, or a reduced period of confinement, is appropriate. In no event shall the total confinement in response to sanctions exceed one hundred (100) days.

5.3. In any instance where a Parole Board or Panel decision is required under this section, the Division shall provide to the Parole Board information regarding the parolee’s performance on supervision, and risk of reoffending, as determined by a validated risk-needs assessment.

5.4. The Panel decision shall consider the parolee’s performance, adjustments during supervision, the length of successful supervision, adherence to the conditions of parole, the assessed risk of reoffending, as well as any other applicable information available to the Panel.

5.5. If a parolee is confined for a violation, and ultimately has his or her parole revoked pursuant to section six of this Rule, good time shall be applied retroactively to all time in which the parolee was confined.

W. Va. Code R. § 92-2-6 Revocation of Parole

6.1. The Board by a Panel may revoke the parole of any parolee who has previously been granted parole and who has not been discharged from supervision. However, parole shall not be revoked unless a Panel of the Board specifically finds that reasonable cause exists that a parolee has violated a condition of parole which has been imposed either by law, the Board or the Division.

6.2. The Panel shall make a finding that the accused parolee has violated a condition only after it has conducted a prompt and summary hearing, which shall be known as a revocation hearing.

6.3. In addition to determining whether or not the accused parolee has violated condition(s) of parole, the Panel will also consider prior violations, the severity of prior violations, graduated sanctioning responses by the Division, the offender’s risk of reoffending, the length of successful supervision, offender adjustment and levels of response to supervision.

6.4. A court order finding a parolee guilty of any offense that occurred while he or she was on parole status is reliable evidence to support a revocation based on a new conviction. A mitigation hearing will be held upon the parolee’s request.

6.5. When a parolee has violated the conditions of his or her release on parole by confession to, or being convicted of, in any state of the United States, the District of Columbia or the territorial possessions of the United States, the crime of treason, murder, aggravated robbery, first degree sexual assault, second degree sexual assault, sexual offense against a minor, incest or offenses with the same essential elements if known by other terms in other jurisdictions, he or she shall be returned to the custody of the Division of Corrections to serve the remainder of his or her maximum sentence, during which remaining part of his or her sentence he or she is ineligible for further parole.

W. Va. Code R. § 92-2-7 Prerequisites to Revocation Hearing

7.1. Report of Charge.

7.1.a. A Panel of the Board shall convene a revocation hearing only if it receives from the Division:

7.1.a.1. A written report, which lists the specific conditions the parolee is charged with violating, together with the date of each alleged violation.

7.1.a.2. A written violation report detailing how each alleged violation occurred.

7.1.a.3. The date on which the parolee was served with written notice of the charges.

7.1.a.4. The date, if any, on which the parolee was placed in jail pursuant to the charge.

7.1.a.5. The date, if any, the parolee was released from jail on bond.

7.1.a.6. A written summary of the accused parolee’s history of violations, risk assessment, graduated sanction attempts, length of successful supervision, the parolee’s adjustment and the appropriate level of response.

7.1.b. Additionally, if a preliminary revocation hearing was held by a Division hearing examiner, it shall be the responsibility of the Division to supply the Board with:

7.1.b.1. The date on which the preliminary revocation hearing was held by a Division hearing examiner, and whether for each charge the hearing examiner found probable cause.

7.1.b.2. A written report by the Division hearing examiner giving a complete summary of the contents of the preliminary revocation hearing, to include:

7.1.b.2.A. A summary of each of the charges in the order listed, to include, with respect to each charge, a summation of the testimony given, the exhibits entered into evidence, and the names and identity of those persons testifying.

7.1.b.2.B. A written attestation by the hearing examiner as to the accuracy of such hearing summary.

7.1.b.3. Copies of any documents or writings admitted as exhibits at the preliminary revocation hearing.

7.1.c. In the event the parolee elects to waive the preliminary revocation hearing, it shall be the responsibility of the Division to supply the Board with:

7.1.c.1. A duly executed waiver of the preliminary revocation hearing.

7.1.d. The appropriate aforementioned documentation shall be received no later than the 45th day after either the date on which the parolee received written notice of the charges, or the date on which the parolee was incarcerated, whichever occurred sooner. However, the running of the 45 day period shall be tolled by:

7.1.d.1. Any continuance which is sought and obtained by counsel for the parolee prior to the preliminary revocation hearing; or

7.1.d.2. The pendency of any criminal charge, which is also the basis of any charge of a violation of parole conditions. This subsection shall not be applied to toll the running of the 45 day period for any other charge;

7.1.d.3. The absence of the parolee from the boundaries of this State for whatever reason; or

7.1.d.4. The escape or absconding of the parolee from the custody of a jail or the supervision of the Division. The Division of Corrections shall provide a written statement to the Board or its Panel explaining the facts and circumstances of any of the four aforementioned causes for cessation of the running of the 45 day period.

7.2. Scheduling of Revocation Hearing.

7.2.a. Upon receipt of the aforementioned requisite documentation, a Panel shall schedule a time, date and designate a location for the hearing.

7.2.a.1. The revocation hearing shall be held no later than the 30th day excluding weekends and holidays following the date upon which either:

7.2.a.1.A. The preliminary hearing is held in this State, or;

7.2.a.1.B. The parolee is returned to the custody of the Division of Corrections through Interstate Compact, or;

7.2.a.1.C. Written waiver of the preliminary hearing is executed.

7.2.b. When the Board or its Panel receives a report from the Division that indicates a parolee has been charged with a criminal offense, if the report is not accompanied by a certified copy of a criminal court order setting forth a verdict of guilty on the criminal charge, then the Panel may defer making a decision on whether to promptly schedule a revocation hearing. However, such deferral shall be for the sole purpose of awaiting the outcome of any pending criminal proceedings, and the Panel shall determine whether to hold a revocation hearing upon receipt of written information of the disposition rendered by the criminal court.

7.2.d. The Division’s staff shall notify the Parole Board of the status of the underlying criminal case periodically, but no greater than every thirty (30) days, for all pending revocation hearings continued under this subsection.

7.2.e. Out-of-state parole violations and evidence, submitted through proper channels of the Interstate Compact Commission, and received from the supervising Parole Officer in that reporting State, will be accepted on its face and direct testimony will not be required from the reporting state.

7.3. Notice of Revocation Hearing. Whenever a final revocation hearing has been scheduled, the Panel shall issue a written notice. The notice shall set forth:

7.3.a. The date, time and place of the hearing.

7.3.b. The charges to be heard at the hearing and the conditions of parole which the charges allege the parolee violated.

7.3.c. The accused parolee’s right to be represented at the hearing by an attorney; right to have an attorney appointed by the Circuit Court; right to testify or to stand silent; right to have voluntary witnesses appear to testify on his behalf; right to present evidence in defense; and the right to confront or cross-examine witnesses, unless the Panel finds good cause shown for not disallowing direct confrontation.

7.3.d. The Panel shall send notice to the accused parolee and his or her attorney, if the existence of one is known. The method of delivery shall be by facsimile to the attorney, with a hard copy sent by first class mail. The inmate shall be served by the parole officer delivering a copy of the notice. Notice shall be served at least five (5) days before the hearing, whenever possible.

7.3.e. Notice of a revocation proceeding shall also be provided to any individual entitled to notice as a Victim.

7.3.f. Upon receiving notice of an upcoming revocation hearing, the accused parolee or his or her attorney shall advise the Parole Board if the charges will be contested, or if a guilty plea will be entered with mitigation. This will assist the Board in scheduling of upcoming hearings.

W. Va. Code R. § 92-2-8 Representation by Counsel

8.1. At the final revocation hearing the accused parolee may be represented by counsel.

8.2. If the accused parolee is indigent, he or she has the right to apply to have an attorney appointed to them by the Circuit Court, as provided for W. Va. Code §62-12-22.

8.3. A continuance may be granted to allow the accused parolee to obtain counsel if he or she does not have counsel and desires the services of counsel.

W. Va. Code R. § 92-2-9 Procedure at Revocation

9.1. Panel Decision. All revocation hearings shall be heard by a Panel, as set forth in Section 3.2. At least two Members of the Panel shall be present in order for the Panel to hear and rule upon any manner. No accused parolee may have his or her parole revoked without the vote of at least two Members. In the event that a hearing is conducted by two Members and the two Members are unable to agree upon a ruling, the electronic recording and record of the proceedings shall be reviewed by the third Member of the Panel. At a later time, the third Member shall cast the deciding vote after a review of the electronic recording and records. The Panel may also entertain dispositive motions based upon the documentation and/or evidence presented. If the Panel sustains a motion to dismiss, the proceeding shall be at an end, and the Panel shall issue an order reflecting the motion and the ruling.

9.2. Parties at Hearing. The accused parolee and his counsel shall be present at all stages of the hearing. Either the parole officer who charged the parolee, or another representative designated by the Division, shall be present to submit evidence and proof of the charge(s).

9.3. Attendance of Witnesses. Both the parole officer and the accused parolee shall be permitted to have witnesses. Witnesses may be excluded from the hearing except for giving testimony in compliance with Section 9.8 of these Rules. Any civilian or public attendees to any form of Parole Board hearing shall only be permitted to bring with them a photo identification.

9.4. Continuances.

9.4.a. Continuances may be granted by the Panel or the Board for good cause. The hearing may be continued past the 30th day, excluding weekends and holidays, upon which either the preliminary hearing is held in this State, the parolee is returned to the custody of the Division of Corrections within this State, or a written waiver of the preliminary hearing is executed.

9.4.b. A motion for a continuance shall be made in writing at least two (2) working days prior to the hearing date to prevent inconvenience to victims or others and unnecessary use of resources expended for travel and attendance by Members and others. At no time, except in extreme emergency, will a continuance be granted that is made less than 24 hours before any hearing.

9.4.c. The Board may refuse to grant a continuance if it determines there is not good cause to grant the motion.

9.4.d. Good cause shall include, but not be limited to: the accused parolee’s attorney’s conflict with a scheduled court appearance; the inability of a desired witness to appear at the originally schedule hearing; illness; inadequate time to prepare a defense; or similar reasons applicable to Board Members or staff.

9.5. Record of Hearing. Final parole revocation hearings shall be recorded electronically or by other reliable means.

9.6. Commencement of Hearing.

9.6.a. At the commencement of the hearing, the Lead Interviewer of the Panel shall identify for the record, the name of the parolee, the date, time and place of the hearing, and the names of those present in the room.

9.6.b. The Lead Interviewer of the Panel shall read aloud the charges to be considered at the hearing and the conditions, which the parolee is charged with violating unless waived by the accused parolee or counsel.

9.7. Plea.

9.7.a. After reading each charge, the Lead Interviewer of the Panel shall ask the parolee to plead either guilty or not guilty in his own words. If the parolee refuses to respond, the Lead Interviewer shall note such refusal for the record. A refusal to plead shall be entered as a plea of not guilty.

9.7.b. If the plea is guilty, the parole officer need not present evidence of the charge and the accused parolee shall be permitted to speak or otherwise present evidence in mitigation of punishment. The parole officer may present rebuttal evidence.

9.7.c. If the parolee pleads not guilty, the parole officer shall be required to present evidence tending to support the charge, following which the accused parolee may present evidence in his or her own defense. Proof of the violation shall be by a preponderance of evidence as set forth in Section 9.10. Both the parole officer and the parolee shall be permitted to present evidence to rebut that of the other.

9.8. Witnesses and Testimony.

9.8.a. All witnesses, other than the parole officer as well as the accused parolee, shall be sequestered from the hearing room except when called upon to testify.

9.8.b. All witnesses shall be placed under oath to tell the truth before testifying.

9.8.c. The accused parolee may cross-examine witnesses presented by the parole officer, including the parole officer, should they choose to testify.

9.8.d. The Lead Interviewer may find that there is a justifiable fear of harm to any witness if he or she were to directly testify, or if his or her identity were to be disclosed. The risk of harm must be demonstrated by an overt threat to the witness, by implicit threats, or by any circumstances which would reasonably lead to a belief that harm would be likely to result. That witnesses testimony shall be made in camera without the presence of the accused parolee during that witness’ testimony.

9.8.e. The parole officer may examine all witnesses who testify and may cross-examine those presented by the accused parolee. The Lead Interviewer may ask questions of any witness at any time.

9.9. Rules of Evidence for Revocation Hearing.

9.9.a. The Rules of Evidence do not apply to revocation proceedings. Any decision to admit or exclude evidence shall be at the discretion of the Lead Interviewer. In any event the presiding Member shall resolve concerning the admissibility of evidence in accordance with these rules:

9.9.b. Evidence may be excluded if it is:

9.9.b.1. Irrelevant;

9.9.b.2. Cumulative, redundant or repetitious; or

9.9.b.3. Evidence of a person’s character, criminal record or habits, except as such is evidence of a witness’s propensity for telling the truth, or except as it may be directly relevant to whether the accused parolee is guilty of the charges.

9.9.c. Hearsay evidence, as defined by the West Virginia Rules of Evidence shall not be admitted, except when:

9.9.c.1. It is both reliable and trustworthy in its source and is credible.

9.9.c.2. It is evidence of a statement made by a person who has explicitly refused to attend the revocation hearing to testify.

9.9.c.3. It is evidence of a confession or an admission made by the accused parolee.

9.9.c.4. It is evidence of a recorded memorandum of a witness’s statement who can no longer remember the statement or is unavailable to testify, or is a regularly kept business record or a public record or a statement against interest.

9.9.c.5. It is hearsay evidence offered by the parole officer, or other competent witnesses, of the statement of a confidential informant. Such hearsay evidence shall not be admitted unless the Lead Interviewer is satisfied that there is a justifiable fear of harm to the informant if he or she were to directly testify, or if his or her identity were to be disclosed, and there are indications that such evidence is reliable and trustworthy.

9.9.c.6. Such hearsay evidence that would otherwise be admitted under the West Virginia Rules of Evidence.

9.9.c.7. The Lead Interviewer may accept into evidence the hearsay testimony of the parole officer or other competent witness, and the affidavit of the informant, or a private examination of the informant, from which the parolee may be excluded if the justifications set forth in Section 9.8 are present.

9.9.d. Notwithstanding any other rule, documentary evidence may be admitted for the truth of the matters set forth in the document if:

9.9.d.1. The document is prepared by a person with direct knowledge of relevant facts, who is unable to appear to testify, provided that the document is accompanied by an affidavit signed by the author attesting to the document’s authenticity and accuracy, or there are indications that the document is reliable and trustworthy.

9.9.d.2. The document was prepared by and within the scope of duty of a public employee, excepting a parole officer, and was prepared at or near the time of the act, condition, or event, and the source of information and method and time of preparation was such as to indicate its trustworthiness.

9.9.d.3. The document is a report from the Department of Public Safety or from a laboratory under contract with the a Division of the Department of Military Affairs and Public Safety relating to scientific testing for identification of alcohol or controlled substance or firearm or other forensic testing.

9.9.e. Originals or certified copies of Interstate Compact Reports, Preliminary Hearing transcripts and findings, and correspondence from out-of-state parole officers, to include reports, letters or memorandums, may be submitted as evidence in the final parole revocation hearing. Those original or certified copies of the Interstate Compact Reports will be accepted on its face and direct testimony or submitted evidence will not be required by the reporting state.

9.9.f. The presentation of a certified copy of a conviction is conclusive proof that the parolee is guilty of committing a crime. Proof of an arrest or indictment is not proof of the crime.

9.9.g. Proof of a charge of parole violation cannot be based upon hearsay evidence alone. If hearsay evidence of the type described in subsection (c) or (d) is offered by the parole officer as proof of a violation of a condition of parole, the parole officer must also offer some other reliable evidence, either direct or circumstantial, to prove the charge. Documentary evidence of the type described in subsection (f) is sufficient proof of a charge. All documents and other evidence pertaining to the charges must be submitted five days prior to the hearing date. Documents must be submitted to each participating party as well as the Parole Board.

9.9.h. The Lead Interviewer may strike or limit any questioning of witnesses which is abusive or clearly intended to harass, intimidate or insult a witness.

9.9.i. If the charges being considered at the hearing include a charge relating to the commission of a felony for which the parolee is being criminally charged, the Lead Interviewer shall admit evidence of the current status of the criminal proceeding.

9.9.j. Burden of Proof. The Panel of the Board shall not order that parole be revoked unless it finds by a preponderance of the evidence submitted at the revocation hearing that the parolee violated a condition of parole. The burden rests with the parole officer to prove the parole violation. Where there are factual disputes on key issues in a parole revocation hearing, the Panel shall set forth a statement on how and why the dispute was settled in a certain way to assist in judicial review.

W. Va. Code R. § 92-2-10 Reserved

W. Va. Code R. § 92-2-11 Waiver of Revocation Hearing

11.1. The parolee may waive the final revocation hearing. He or she may also waive the five-day notice of the hearing. A waiver of the final revocation hearing shall be construed as a plea of guilty to the charge(s) and may result in revocation of parole.

11.2. The procedure for waiver of the final revocation hearing is as follows:

11.2.a. If the parolee desires to waive the final hearing, and is not represented by legal counsel, he shall inform the parole officer of his desire to waive; this must be done in writing via an executed waiver of the final hearing on the charge of parole violation.

11.2.b. If the parolee waives the final hearing, the parolee shall sign a waiver form. The parolee’s signature on the waiver must be witnessed by two individuals, one of whom may be the parole officer.

11.3. In lieu of the above procedure, if the parolee is represented by legal counsel, his attorney shall inform the Board of his desire to waive the final hearing in writing.

W. Va. Code R. § 92-2-12 Decision by the Panel

12.1. The Panel may decide the case by:

12.1.a. Finding the accused parolee not guilty of the charges and reinstating the parole; or

12.1.b. Finding the parolee guilty of one or more charges and reinstating the parole with or without additional special conditions; or

12.1.c. Finding the parolee guilty of one or more charges and revoking the parole.

12.1.d. At any time prior to a ruling on a revocation proceeding, the Panel may decide to hold the proceedings in abeyance and release the parolee back to parole supervision for a specified period of time. If in the specified period of time, the parolee abides by his or her terms and conditions of parole, including any additional terms in which the Panel may impose when holding the revocation proceeding abeyance, the revocation proceedings will be dismissed and the parolee shall be allowed to remain on parole. If the parolee should violate further conditions of parole during the abeyance period, the revocation proceeding shall be reconvened and further violation proceedings may be instituted.

12.1.e. Finding the parolee not guilty of the charges or guilty of one or more of the charges and discharge them from supervision; Provided, that all other requirements have been met for the parolee to be eligible for discharge.

12.2. The Panel shall prepare a notice in which it shall state its decision with respect to each charge.

12.2.a. If the Panel finds the parolee guilty of any charge it shall set forth in the notice a description of the evidence it considered in arriving at the finding of guilt.

12.2.b. The Panel need not describe the evidence for those charges of which the parolee was found not guilty.

12.3. If the Panel decides not to revoke parole, it shall send a notice to the parolee, his attorney, the parole officer and the supervisor of parole services, advising of the decision.

12.4. Any person receiving notice of a revocation proceeding pursuant to Section 7.3 shall be given notice of the Panel’s decision.

W. Va. Code R. § 92-2-13 Order of Revocation

13.1. If the Panel decides to revoke the parole, it will issue a formal Order of Revocation advising of the Decision. Copies of this Order shall be forwarded to the Division of Corrections, the Records Clerk at the parent institution, the administrator of the facility holding the parolee, the parolee’s attorney, and the parole officer. It shall be the responsibility of the Division to supply the parolee with a copy of the Order of Revocation of Parole.

13.2. The formal Order of Revocation issued by the Panel shall state:

13.2.a. The parolee’s name and DOC number.

13.2.b. The effective sentence date(s), offense(s), county or counties of conviction and sentence(s) for which the parolee was incarcerated at the time he or she was granted parole.

13.2.c. The date the parolee was granted parole.

13.2.d. The charges of parole violation and the evidence relied on for each of the charges where a finding of guilt was made.

13.2.e. Aggravating and mitigating circumstances, if any, considered in the decision.

13.2.f. The new parole eligibility date.

13.3. The Panel shall also issue a document for the Division, which shall state:

13.3.a. The date of the parolee’s release on parole.

13.3.b. The date on which the parolee was incarcerated in jail pursuant to being charged with the violation(s), which caused his parole to be revoked.

13.3.c. The dates, if any, on which the parolee was released from jail on bond and subsequently reincarcerated; and

13.3.d. If applicable, the date on which the parolee was taken into custody pursuant to issuance of the revocation order.

W. Va. Code R. § 92-2-14 Request for Records

14.1. Any inmate or interested party may make a request for records of the Parole Board pertaining to consideration of an offender for release on parole; rescission or revocation of parole or discharge of a parolee from supervision provided such records are subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code §29B-1-1 et seq. Examples of documents not to be disclosed include but are not limited to the following: official, judicial, or community sentiment of any form; documents in which the identity of the victim or victim’s address is set forth; and treatment records of the offender and psychological reports. If a document contains non-disclosable information which is easily redacted then the document should be disclosed with the non-disclosable information redacted. All requests must be in writing and directed to the Chairperson of the West Virginia Parole Board.

14.2. Recordings of hearings may be requested. Written transcripts of hearings are not undertaken by the Board. If any person desires a copy of an electronic recording of any hearing, he or she must also tender a written request for such recording to the Chairperson of the Board. . In the event of a lost or missing electronic recordation of the hearing, the requestor shall be notified in writing of the cause of its absence.

14.3. Persons desiring to review public records of the Board may do so without charge at the Board’s Office during normal business hours, provided that advance arrangements are made. Persons appearing without making such arrangements shall be given an appointment to review such records at a future date and time.

14.4. Inmates making a request for such records shall first be given the option of undertaking a personal inspection or if their incarceration will not permit their personal inspection by inspecting through a representative.

14.5. If a personal or representative inspection is not desired, copies may be provided, provided that the person making the request tenders all costs associated with the production of the records in advance. Costs for the production of the records shall be as follows:

14.5.a. For recordings of hearings twenty dollars ($20.00) per disc plus postage.

14.5.b. For photocopies the cost shall be twenty-five cents ($0.25) each plus postage with a minimum fee of twenty dollars ($20.00).

W. Va. Code R. § 92-2-15 Reconsideration

15.1. An aggrieved inmate may request reconsideration by the Parole Board within 120 days of the date of the Decision. Any request for reconsideration made after the 120 days filing period will be rejected absent a showing of good cause. In examining the request for reconsideration, the Parole Board will only consider those events which have occurred after the Decision date or new information that was not available to the Panel at the time of the Decision. The Parole Board will not re-examine any facts or circumstances available to the Board at the time of the Decision.

15.2. The Parole Board, may within its discretion, grant or deny a request for reconsideration. In addition to simply granting or denying the request, the Board may modify the upcoming interview date, conduct further hearings concerning the assertions in the request for reconsideration, or request updated information from the Division or staff. The Parole Board shall determine the motion within a reasonable time. Changing a sentence by the granting of parole shall constitute a permissible action under this Rule.

W. Va. Code R. § 92-2-16 Judicial Review

16.1. Judicial Review. -- Decisions of the Parole Board are full and final and are not subject to direct appeal.

16.2. Extraordinary Remedies. -- An aggrieved inmate may institute a state habeas corpus ad subjiciendum action (W.Va. Code 53-4A-1 et seq.) in the Circuit Court of Kanawha County, the Circuit Court of the County where the Institution is located, or the West Virginia Supreme Court of Appeals, if the actions or Decision of the Parole Board is alleged to violate rights provided by the West Virginia Constitution. An aggrieved inmate may institute an action in the proper federal court (28 U.S. Code § 2241) if the actions or Decision of the Parole Board is alleged to violate a United States Constitutional right.

W. Va. Code R. § 92-2-17 Severability

17.1. These rules are considered to be severable. In the event these rules are inconsistent with or contrary to any statute, the provisions of the statute shall be applied.

17.1.a. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the Panel or by any of the parties shall be grounds for granting a new hearing or for vacating, modifying or otherwise disturbing a decision or order, unless refusal to take such action is inconsistent with substantial justice. Any error, defect or irregularity, or variance, which does not affect substantial rights, may be disregarded.

17.1.b. These rules, including any time frames herein, are intended to serve only as guidelines for procedural functions of the Board and its Panels. Nothing herein is intended to vest any person with any right, substantive or otherwise which is greater than otherwise exists in law.

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