Topics: Juvenile Justice, Probation, Discretion in Sentencing

Legal Background: Under certain conditions, a young adult criminal defendant may be sentenced to serve an alternate sentence at a special center, focusing on rehabilitation for youthful offenders.  If the defendant completes the program successfully, then the defendant is automatically eligible for probation.  If the defendant’s probation is later revoked, the law provides specific direction regarding sentencing:

Procedural History: The defendant in this appeal pled guilty to the felony offenses of uttering (sentence of one to ten years) and transportation of a controlled substance onto the grounds of a jail (sentence of one to five years).  He then requested probation or placement in the youthful offenders program.  After several months in custody for court-ordered diagnostic evaluation, the lower court committed the defendant for placement in the youthful offenders program at the Anthony Center.  Just over seven months later, after successfully completing the program at the Anthony Center, the defendant was placed on a two year term of probation and released from custody.  The defendant was subsequently arrested and taken into custody for probation violations.  After finding that the defendant committed several violations, including drug use and failure to report, the circuit court sentenced the defendant to serve the original one to ten and one to five year terms consecutively.   Finally, the circuit court gave the defendant credit for a total of 567 days served by crediting 565 days toward the one to ten year offense, and two days toward the one to five year offense.

Appellant’s Argument: The defendant argues that the circuit court failed to properly apportion the credit for time served between his two sentences.  The net effect of granting the 565 days toward only one offense, he argues, is to enlarge the minimum one-year sentence by six months and eighteen days.  The defendant argues that this net effect is a violation of the circuit court’s obligation to “impose the sentence the young adult offender would have originally received had the offender not been committed to the center and subsequently placed on probation.”  The defendant asserts that the circuit court’s sentencing decision effectively converts a term with parole eligibility in one year to a term with parole eligibility in one year plus two hundred days, which is not the original sentence the defendant would have received, had he not been committed to the Anthony Center.

Appellee’s Argument:  The State contends that the circuit court did not err, because the sentence imposed after the defendant’s probation was revoked was the exact sentence he originally received.  Moreover, the State argues that because the defendant received consecutive sentences, the one-year minimum on each of the two sentences would be combined, resulting in a minimum of two years of service prior to parole eligibility.  Accordingly, the State continues, the circuit court’s decision to apportion credit for time served had no effect on the defendant’s parole eligibility date.  As a result, the State urges that the sentence be upheld, because it fully complies with the applicable law.

Topics: Professional Negligence, Rules of Evidence, Standard of Care, Use of Expert Witnesses

Procedural History: In this dental negligence case, the plaintiff, Mr. Graham, alleges that the defendant, Dr. Wallace, failed to properly diagnose his condition and performed unnecessary surgery on him. This case is on appeal for the second time.  In the previous appeal, the defendant appealed after a verdict was returned in favor of the plaintiff.  The Court reversed and remanded for a new trial.  A new trial was subsequently conducted, but this time the jury returned a verdict for the defendant.  In this instance, the plaintiff appeals, alleging that the circuit court erred in permitting the defendant to introduce certain expert testimony. 

Appellant’s Argument: Mr. Graham argues that the lower court erred in allowing the defendant to offer an expert witness when the expert’s new opinions were not disclosed to the plaintiff prior to trial.  In addition, it was erroneous for the circuit court to allow the defendant’s expert witness to give an opinion regarding the standard of care for radiologists and certain techniques which were outside his area of expertise and were therefore unreliable, based on assumption, confusing, irrelevant and prejudicial. 

Appellee’s Argument:  Dr. Wallace contends that the admission of the expert testimony was not an abuse of the trial court’s discretion.  The basis of the expert’s opinion and the substance of his testimony were disclosed to plaintiff in advance of trial.  Moreover, the testimony complained of, regarding use of an arthrogram taken of the plaintiff’s jaw prior to surgery, was not critical to the outcome of the case.  Additional radiological studies performed prior to the surgery were also introduced at trial, and Dr. Wallace’s diagnosis ultimately was proven to be correct.

Topics: At Will Employment and the WV Human Rights Act, Administrative Law, Discrimination.

Procedural History: This appeal arises from a jury trial in which an employee alleged that he was illegally fired for prevailing on a grievance against his employer.  In May 1999, a grievance board administrative law judge ordered WV State College to reinstate Mr. Wounaris to his former position at the college, with full back pay and benefits.  The day after this order was issued, WV State College fired Mr. Wounaris, again.  At the conclusion of the jury trial, the jury found that the plaintiff had failed to demonstrate that a substantial and motivating factor in the defendant’s decision to fire him was in retaliation for prevailing on his grievance.

Appellant’s Argument: Mr. Wounaris contends that the circuit court should have determined, as a matter of law, that the college violated the ALJ’s order of reinstatement by firing him the day after it was issued.  Further, Mr. Wounaris argues that the circuit court should have instructed the jury regarding punitive damages.  Mr. Wounaris contends that by permitting an employer to fire an employee the day after prevailing in a grievance, the credibility of the grievance process is seriously undermined.

Appellee’s Argument:  WV State College argues that it did not violate the ALJ’s order at all, but that it properly fired an at will employee the day after he was reinstated.  Moreover, as the jury concluded after hearing all of the evidence, WV State College asserts that there were legitimate reasons supporting its decision to terminate employment.  Absent a retaliatory motive, WV State College contends that it can legally terminate an at will employee the day after being reinstated by a grievance decision.

(*) Justice Davis disqualified
     Judge Johnson sitting by temporary assignment