5288-S.E AMH .... MERE 111

ESSB 5288 - H AMD TO H WAYS COMM AMD (H-3253.4/09) 857

By Representative Pearson

FAILED 4/21/2009

On page 2, line 12, after "~~offender~~))" strike all material through "9A.44.130." on line 30 and insert "(a) The department shall supervise every offender convicted of a misdemeanor or gross misdemeanor offense who is sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, for an offense included in (b) of this subsection.

(b) The superior court shall order probation for:

(i) Offenders convicted of fourth degree assault, violation of a domestic violence court order pursuant to RCW 10.99.040, 10.99.050, 26.09.300, 26.10.220, 26.26.138, 26.50.110, 26.52.070, or 74.34.145, and who also have a prior conviction for one or more of the following:

(A) A violent offense

(B) A sex offense;

(D) Fourth degree assault; or

(E) Violation of a domestic violence court order;

(ii) Offenders convicted of:

(A) Sexual misconduct with a minor second degree;

(B) Custodial sexual misconduct second degree;

(D) Failure to register pursuant to RCW 9A.44.130;

(iii) An offense included in (b)(i) where the offender does not have a prior conviction or the offender has a prior conviction other than one of those identified in (b)(i)(A) through (b)(i)(E) and the offender's risk assessment, conducted pursuant to subsection (5) of this section, places the offender in one of the two highest risk categories; and

(iv) An offense not included in (b)(i) or (b)(ii) where the offender's risk assessment, conducted pursuant to subsection (5) of this section, places the offender in one of the two highest risk categories."

On page 3, line 18, after "for" strike "every" and insert ":

(a) Every"

On page 3, line 20, after "section" insert the following: "; and

(b) Every offender sentenced for a misdemeanor or gross misdemeanor in superior court pursuant to subsections (1)(b)(iii) and (1)(b)(iv) of this section"

On page 4, beginning on line 22, after "~~offender~~))" strike all material through "9A.44.130." on page 5, line 2 and insert "(a) The department shall supervise every offender convicted of a misdemeanor or gross misdemeanor offense who is sentenced to probation in superior court, pursuant to RCW 9.92.060, 9.95.204, or 9.95.210, for an offense included in (b) of this subsection.

(b) The superior court shall order probation for:

(A) A violent offense

(B) A sex offense;

(D) Fourth degree assault; or

(E) Violation of a domestic violence court order;

(ii) Offenders convicted of:

(A) Sexual misconduct with a minor second degree;

(B) Custodial sexual misconduct second degree;

(D) Failure to register pursuant to RCW 9A.44.130;

On page 5, line 27, after "for" strike "every" and insert":

(a) Every"

On page 5, line 29, after "section" insert the following:"; and

(b) Every offender sentenced for a misdemeanor or gross misdemeanor in superior court pursuant to subsections (1)(b)(iii) and (1)(b)(iv) of this section"

On page 5, after line 29, insert the following:

"Sec. 3. RCW 9.94A.500 and 2008 c 231 s 2 are each amended to read as follows:

(1) Before imposing a sentence upon a defendant, the court shall conduct a sentencing hearing. The sentencing hearing shall be held within forty court days following conviction. Upon the motion of either party for good cause shown, or on its own motion, the court may extend the time period for conducting the sentencing hearing.

Except in cases where the defendant shall be sentenced to a term of total confinement for life without the possibility of release or, when authorized by RCW 10.95.030 for the crime of aggravated murder in the first degree, sentenced to death, the court may order the department to complete a risk assessment report. The court shall, however, at the time of plea or conviction order the department to complete a risk assessment report for offenders sentenced pursuant to section 1(1)(b)(iii) and (iv) and section 2(1)(b)(iii) and (iv) of this act. If available before sentencing, the report shall be provided to the court.

Unless specifically waived by the court, the court shall order the department to complete a chemical dependency screening report before imposing a sentence upon a defendant who has been convicted of a violation of the uniform controlled substances act under chapter 69.50 RCW, a criminal solicitation to commit such a violation under chapter 9A.28 RCW, or any felony where the court finds that the offender has a chemical dependency that has contributed to his or her offense. In addition, the court shall, at the time of plea or conviction, order the department to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense. The department of corrections shall give priority to presentence investigations for sexual offenders. If the court determines that the defendant may be a mentally ill person as defined in RCW 71.24.025, although the defendant has not established that at the time of the crime he or she lacked the capacity to commit the crime, was incompetent to commit the crime, or was insane at the time of the crime, the court shall order the department to complete a presentence report before imposing a sentence.

The court shall consider the risk assessment report and presentence reports, if any, including any victim impact statement and criminal history, and allow arguments from the prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a representative of the victim or survivor, and an investigative law enforcement officer as to the sentence to be imposed.

A criminal history summary relating to the defendant from the prosecuting authority or from a state, federal, or foreign governmental agency shall be prima facie evidence of the existence and validity of the convictions listed therein. If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this information shall be part of the record. Copies of all risk assessment reports and presentence reports presented to the sentencing court and all written findings of facts and conclusions of law as to sentencing entered by the court shall be sent to the department by the clerk of the court at the conclusion of the sentencing and shall accompany the offender if the offender is committed to the custody of the department. Court clerks shall provide, without charge, certified copies of documents relating to criminal convictions requested by prosecuting attorneys.

(2) To prevent wrongful disclosure of information related to mental health services, as defined in RCW 71.05.445 and 71.34.345, a court may take only those steps necessary during a sentencing hearing or any hearing in which the department presents information related to mental health services to the court. The steps may be taken on motion of the defendant, the prosecuting attorney, or on the court's own motion. The court may seal the portion of the record relating to information relating to mental health services, exclude the public from the hearing during presentation or discussion of information relating to mental health services, or grant other relief to achieve the result intended by this subsection, but nothing in this subsection shall be construed to prevent the subsequent release of information related to mental health services as authorized by RCW 71.05.445, 71.34.345, or 72.09.585. Any person who otherwise is permitted to attend any hearing pursuant to chapter 7.69 or 7.69A RCW shall not be excluded from the hearing solely because the department intends to disclose or discloses information related to mental health services."

Renumber remaining sections consecutively and correct any internal references accordingly.

On page 46, after line 17, insert the following:

"NEW SECTION. Sec. 15. (1) The state of Washington, the department of corrections and its employees, community corrections officers, and volunteers who assist community corrections officers are not liable for any harm caused by the actions of a felony or misdemeanant offender who is under the department's supervision under this act.

(2) The state of Washington, the department of corrections and its employees, community corrections officers, and volunteers who assist community corrections officers are not liable for civil damages resulting from any act or omission in the rendering of activities under this act unless the act or omission constitutes gross negligence. For the purposes of this section, "volunteers" is defined according to RCW 51.12.035."

Renumber remaining sections consecutively and correct any internal references accordingly.

Correct the title.

EFFECT: (1) Requires the Department of Corrections (DOC) to supervise misdemeanant offenders who are sentenced in Superior Court for either Assault 4th Degree or Domestic Violence Violation of a Court Order, but who have no prior conviction or whose prior conviction is not a sex offense, violent offense, crime against a person, a prior Assault 4th Degree or Domestic Violence Violation of a Court Order and whose risk assessment places them in one of the two highest risk categories.

(2) Requires the DOC to supervise misdemeanant offenders who are sentenced for an offense other than Assault 4th Degree or Domestic Violence Violation of a Court Order and whose risk assessment places them in one of the two highest risk categories.

(3)Requires the Court, prior to sentencing, to order the department to conduct a risk assessment for misdemeanant offenders sentenced in Superior Court for offenses other than Assault 4th Degree or Domestic Violence Violation of a Court Order, or where the offender is sentenced for those offenses but the offender has no prior offenses or has prior offenses that are not a sex offense, violence offense, crime against a person, Assault 4th Degree, or Domestic Violence Violation of a Court Order.

(4) Gives the DOC immunity from liability for harm caused by the offenders that it supervises and from liability for civil damages for any act or omission by the DOC or its personnel in carrying out their supervision responsibilities unless an act or omission constitutes gross negligence.

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