CHARLESTON – The West Virginia Supreme Court of Appeals ruled that Kanawha Circuit Court did not violate state law by allowing a prisoner work release to pay restitution to a victim.

Justice Menis Ketchum authored the majority opinion. Chief Justice Margaret Workman dissented and authored her own dissenting opinion.

The original proceeding in prohibition is upon the petition of Jim Rubenstein, the commissioner of the West Virginia Division of Corrections, challenging the order of the Kanawha Circuit Court, which granted the respondent, Tracie Dennis, work release from the South Central Regional Jail.

The work release was granted for the three and a half month period between the entry of the order granting work release on Aug. 15, and the commencement of Dennis’s probation on Dec. 1.

The division contends that, by granting Dennis work release after she had been placed in the division's custody, awaiting transfer from the regional jail to the Lakin Correctional Facility for Women, the circuit court exceeded its authority and interfered with the division's responsibilities to its inmates and to the public.

The W.Va. Supreme Court concluded that the circuit court had the authority and the discretion to grant Dennis work release, which the circuit court limited to certain conditions. The Supreme Court denied the division’s request for relief in prohibition.

Dennis plead guilty on June 25, to embezzlement, which is a felony under West Virginia code, and on July 29, Kanawha Circuit Court entered an order sentencing her to an indeterminate term on the penitentiary of not less than one nor more than ten years.

The order further directed that, four months later, "said sentence be suspended on the 1st day of December, 2014 for a period of five (5) years probation," on the condition that Dennis pay restitution in the amount of $500 per month.

The order concluded by directing that Dennis be removed from the South Central Regional Jail to the Division of Corrections "as soon as practicable."

On Aug. 15, Kanawha Circuit Court entered an order granting a motion filed by Dennis for work release during her incarceration in the regional jail.

Finding Dennis to be a suitable candidate for work release, the order provided that she would be granted work release from the South Central Regional Jail on Monday through Friday, each day from 7 a.m. until 4 p.m., whereupon she would report directly to her employer, Enerfab Electric Company in Dunbar. She was to return directly to the regional jail no later than 4:30 p.m.

"The court notes that the defendant is in the custody of the Division of Corrections, and it is not intended that this grant of work release should serve as any impediment to the division in its decisions regarding the timing of placement of the defendant in a facility of its choosing," the opinion states.

The DOC filed a motion to set aside Dennis' work release or to place her on immediate probation, alleging the Aug. 15 work release order preventing the DOC from carrying out its responsibilities to its inmates and to the public.

"No ruling on the motion was entered by the circuit court," the opinion states. "The division then filed a petition for a writ of prohibition in this court challenging the August 15, 2014, work release order."

The objective of the Aug 15 work release order was to assist Dennis in paying court-ordered restitution for her crime of embezzlement, according to the opinion. Restitution to a crime victim is an important component of this state's Victim Protection Act.

Dennis was in the custody of the division but remained confined in the South Central Regional Jail for four months, according to the opinion.

"The circuit court’s order granting work release from the South Central Regional Jail noted that she was, in fact, in the custody of the division and stated that 'it is not intended that this grant of work release should serve as any impediment to the division in its decisions regarding the timing of placement of the Defendant in a facility of its choosing.'"

If the DOC did not want Dennis to have work release, it could have moved her to another correctional facility at any time to serve her four month confinement, the opinion states.

"This Court finds no sufficient ground to grant the division’s requested relief in prohibition," the majority opinion states. "Dennis was committed by the circuit court to a term of one year or less, and the circuit court, therefore, had the authority and the grant her work release for the purpose of paying restitution, which release was subject to the conditions set forth in the August 15, 2014, order. Accordingly, the writ of prohibition is denied."

In her dissenting opinion, Workman states that she disagrees with the majority's " use of an otherwise moot case to sanction an incorrect interpretation of the circuit court’s statutory authority to grant work release to defendants who are convicted felons."

"In so doing, the majority has exposed the West Virginia Division of Corrections ... to its statutory responsibility for felony defendants with whose care and custody it is statutorily charged, but stripped it of the commensurate ability to supervise and control the defendant by placing them in a third-party workplace setting," the dissenting opinion states.

Despite the temporary housing of felons in regional jails pending their transport to a state penal facility, the DOC by statute has exclusive supervision and control over inmates placed in its custody, particularly as pertains to their control, custody and employment, according to her opinion.

Workman stated that the majority has expressly sanctioned a wholly illegal order affecting the DOC's statutory duties.

Workman states that the majority issues no new syllabus point construing the statute at issue, and, instead, it randomly creates a new point of law regarding the importance of restitution, which has nothing to do with the legal issue before the court.

"Courts must be wary of creating new points of law based on a singular set of facts, and must be aware of the effect the newly stated law will have a whole panopoly of cases wherein the facts may be different," her dissenting opinion states. " The Legislature vested the DOC with exclusive authority for the supervision and control of felons sentenced to its custody; any order in derogation of their exclusive control is violative of the DOC’s legislative mandate. Accordingly, I respectfully dissent."

The state was represented by state Attorney General Patrick Morrisey, Misha Tseytlin and John H. Boothroyd.

The respondents were represented by J. Timothy DiPiero and Lonnie C. Simmons of DiTrapano, Barrett, DiPiero, McGinley & Simmons PLLC.

W.Va. Supreme Court of Appeals case number: 14-1043

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