EYEWITNESS LOCAL NEWSSpecial Prosecutor In Plants' Case Says Second Deal Is Legal
from Eyewitness News Online
Reported by: Leslie Rubin
Reported: Jun. 25, 2014 6:12 PM EDT
Updated: Jun. 26, 2014 2:19 PM EDT
Charleston , Kanawha County , West Virginia
The special prosecutor assigned to the case against Mark Plants said the deal struck Tuesday between the state and Plants is legal.
Sid Bell sent a letter to Putnam County Prosecutor Mark Sorsaia on Wednesday outlying why he believes the deal is legitimate after Sorsaia called the deal into question, and said he had advised community corrections to not accept Plants into the county's Batterers Intervention Prevention Program.
"Having talked with Tonia Thomas and Joyce Yedlosky of the Coalition 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 D/V 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 in the order," Bell wrote in the letter.
"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 the D/V 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 in a telephone conversation with an adviser that it was okay. We should have worded the order 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," Bell wrote.
It could be back to the drawing board for attorneys in the case against Kanawha County Prosecuting Attorney Mark Plants.
The Putnam County prosecutor said a plea deal struck on Tuesday is illegal, and he's advising that he not be accepted into the Batterers Intervention Prevention Program or BIPPS.
This is the second deal involving Plants that has been agreed upon in court that has come into question. The first deal was deemed illegal and a new one hashed out Tuesday that would send Plants to the 32-week program.
Plants is accused of striking his son with a leather belt, leaving a large bruise, as well as violating a DVP.
"If it walks like a duck, and quacks like a duck and swims like a duck, it's a duck," Putnam prosecutor Mark Sorsaia said.
Sorsaia said his office was given zero notice that Plants had come to an agreement with the state that would enroll him in the program. The deal is called a "Pre-Trial Monitoring Agreement As A Condition of Bond," as opposed to a "Pre-Trial Diversion," was previously deemed illegal.
"It's just an attempt to circumvent the law by changing the name of the document," Sorsaia said.
Sorsaia sent a letter on Wednesday to Plants' attorney, Jim Cagle, and special prosecutor, Sid Bell, saying he believes the agreement is nothing more than a pre-trial diversion. He has advised the program to not accept Plants.
"I take no pleasure in weighing in on this, but the bottom line is, we weren't contacted. We weren't consulted. Our opinion wasn't asked whether or not we would think this is a viable deal, and now it's forced in our lap," he said.
The Pre-Trial Monitoring Program is sometimes used through Kanawha County's Domestic Violence Pilot Program. Since Plants lives in Kanawha, Bell said he is eligible, but to avoid a conflict of interest, he was to be monitored in Putnam.
Plants would not comment on Wednesday but Kanawha assistant prosecutor James Bailey said in an e-mail, "Pretrial monitoring agreements are utilized regularly in the Kanawha County Domestic Violence Court Pilot Program. These agreements are fully compliant with state law. They were born out of the Domestic Violence Court Pilot Program with the cooperation and approval of domestic violence interest groups and representatives with the Supreme Court."
"I'm just satisfied that we reached an agreement, the charges are going to dismissed," Plants said after the hearing on Tuesday.
Supreme Court Director Of Family Court Services Lisa Tackett said there is no promise of dismissal at the end of the program. She said she has not seen the Plants agreement and could not comment specifically on the case.
Sorsaia said if Cagle and Bell can prove the agreement is legal, he will be more than happy to help, but he says, quite frankly, he'd be surprised if they came up with something.
"The law says that we're not supposed to do this," he said.
Plants was scheduled to report to the program on Thursday for an assessment. That appointment has been cancelled.
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