J une 25, 2014

Mark A. Sorsaia
Prosecuting Attorney of Putnam County
Putnam County J udicial Building
3389 Winfield Road
Winfield, WV 25213
Sidney H. Bell
Attorney at Law
RE: State v. Mark S. Plants
Dear Mark:
After I filed a motion to correct or set aside the pretrial diversion agreement in the
prosecution of Mark Plants, I had several conversations with two spokespersons for the West
Virginia Coalition Against Domestic Violence. They informed me about the Domestic Violence
Court ("DN Court") which I believe is a pilot program approved and supervised by the West
Virginia Supreme Court of Appeals. They also provided me with asample order that is routinely
used in Kanawha County's DN Court to require defendants to participate in community
corrections programs as a condition of their bail bonds. Those orders frequently require
defendants to complete an approved BIPPs class prior to a scheduled trial date. The orders can
also provide that the prosecuting attorney may move the court to dismiss domestic violence
charges if the defendant complies with all of the terms and conditions. The distinction between
the "Pretrial Monitoring Order as a Condition of Bond" and a"Pretrial Diversion Agreement" is
the absence of a promise that charges will be dismissed if the defendant does not get into
anymore criminal trouble during the diversion period. A lack of effort, apoor attitude or failure
to change bad behavior could cause the state to go to trial even if the terms of a pretrial
monitoring order had been met on paper.
Having talked with Tonia Thomas and J oyce Yedlosky of theCoalition Against Domestic
Violence and Lisa Tackett, an attorney who is the director of the Division of Family Court
Services of the West Virginia Supreme Court of Appeals and is directly involved with the DN
Court, I know that the Court does not share your opinion that the "Pretrial Monitoring Order as a
Condition of Bond" is an illegal circumvention of the statutory prohibitions against pretrial
diversion agreements in domestic violence cases. Mark Plants, as a resident of Kanawha
County, was clearly eligible for this type of order so long as he is ordered to participate in a
community corrections program and the future disposition of the criminal charges is not
guaranteed inthe order.
The defense attorney and I were not playing a game of semantics to circumvent the law.
We presented the approved order to a special magistrate who communicated numerous times
with his advisers at the Supreme Court of Appeals and with personnel at theDN Court before he
approved and entered the order. Speaking of semantics, the only error we made was including
the sentence that the prosecutor would move to dismiss the charges if the defendant successfully
completed the 32-week BIPPs class. The magistrate questioned that provision but was advised
inatelephone conversation with an adviser that it was okay. We should have worded the order
314 RidgewoodDr., Beaver, WV 25813 Phone: 3048880751 Fax: 304-8601592 sid_bell@yahoo.com
to state that the prosecutor "may" move the court to dismiss the charges if the defendant
complies with all of the terms and conditions but is not required to do so. As you know, the
prosecutor can't dismiss any criminal charge unless he or she moves the court to do so and the
court grants the motion for good cause.
The only reason I was appointed as special prosecutor in this case was the refusal of the
West Virginia Prosecuting Attorney's Institute to assign aprosecutor as requested by a circuit
judge. This decision was apparently based on the executive director's determination that such an
assignment would be a conflict of interest because the defendant is a voting member of the
institute. Should we have consulted with the elected prosecutor of Putnam County who has
served as chairman of the executive committee of the institute under these circumstances? I was
led to believe that the Putnam County Day Report Program would accept the defendant if the
court ordered him to enroll in the BIPPs class there. I have also been advised that the
prosecuting attorney does not have the authority to deny or grant admission into a community
corrections program. I realize and appreciate the fact that you have been asked to advise your
county's program, but when Magistrate Flanigan called the Putnam County Day Report Program
to schedule the date on which the defendant was to appear for an initial assessment, he was
readily given a date and time with no reservations expressed. Community corrections programs
across the state frequently permit defendants from other counties to participate. I recently helped
enroll a Mercer County defendant in the Cabell County Day Report Program without any
difficulty because thejudge ordered her participation.
I will ask Mr. Cagle if his client will agree to modify the sentence in the order to state
that the prosecutor "may" move the court to dismiss the charges if he successfully complies with
and completes the terms and conditions of the pretrial monitoring order. Unlike the original
pretrial diversion agreement, this order requires the defendant to participate in the community
corrections program and to successfully complete the BIPPs class. We wanted him to take the
class in Putnam County because it is ahighly regarded program and would avoid the appearance
of a conflict of interest in Kanawha County. According to Lisa Tackett with the state Supreme
Court of Appeals, if the magistrate made the possible dismissal of charges discretionary instead
of mandatory, the "Pretrial Monitoring Order as a Condition of Bond" would follow the
approved practice of the Kanawha County DN Court, would comply with state law and would
avoid any problems with grants that discourage or do not allow pretrial diversion agreements. In
her opinion, the fact that this Kanawha County resident would be ordered to participate in the
Putnam County Day Report Program would not render the agreement unlawful or jeopardize the
grants that help fund the Putnam County program.
Please let me know if this information and my proposed modification of the order would
have any effect on your advice to the Putnam County Day Report Program. Thank you.
Sincerely,
C:;k{
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Sidney H. Bell
cc: J ames M. Cagle, Esquire