West Virginia Supreme Court of Appeals

Writ Conference

Wednesday, April 14, 2010

1.  State of West Virginia v. Mitchell Lentz, No. 100107 (Filed 2/1/10)

Defendant, convicted of two counts of Third Degree Sexual Assault by jury, appeals circuit court order sentencing him to serve two concurrent 1-5 year terms in prison, arguing that the circuit court erred by failing to dismiss the indictment in this case because of an error in the date of the alleged act supporting Count Two. Refuse 5 - 0

2.  State of West Virginia v. Michael Corney, No. 100139 (Filed 2/9/10)

Defendant, convicted of one count of Burglary, one count of Conspiracy to Commit Burglary and one count of First Degree Robbery by jury, appeals circuit court order sentencing him to serve concurrent 1-5, 1-15 year terms and a consecutive 25 year term, arguing multiple trial errors. Refuse 5 - 0

3.  State of West Virginia v. Thomas Talbert, No. 100155 (Filed 2/11/10)

Defendant appeals circuit court order denying his pro se motion to correct illegal sentence. Grant 5 - 0 and Remand.

4. SER Thomas S. Talbert v. Hon. Alfred Ferguson, No. 091846 (Filed 12/8/09)

Defendant seeks issuance of a writ of mandamus arguing improper delay in adjudication of his underlying habeas corpus petition and in ruling upon his motion for correction of illegal sentence. Grant 5 - 0 Unless sooner mooted.

5. SER Thomas S. Talbert v. David Ballard, Warden, No. 091751 (Filed 11/24/09)

Defendant, serving Life as a Recidivist, seeks issuance of a writ of habeas corpus arguing improper delay in filing his direct criminal appeal and in adjudicating his underlying habeas corpus petition. Refuse 5 - 0

6. State of West Virginia v. Christopher Ferrell, No. 100243 (Filed 3/1/10)

Defendant, convicted of Manufacturing a Controlled Substance, Marijuana by conditional guilty plea which reserved the right to challenge circuit court’s ruling on Defendant’s Motion to Suppress the results of the search of Defendant’s residence, appeals circuit court order sentencing him to serve 90 days and then serving home confinement. Refuse 5 - 0

7. State of West Virginia v. Jason Allen Tinnel, No. 100246 (Filed 3/1/10)

Defendant, convicted of Child Abuse resulting in Injury by Alford plea, appeals circuit court order sentencing him to serve 1-5 years, arguing that the circuit court abused its discretion in refusing to grant the alternative sentence of home confinement or probation. Refuse 5 - 0

8.  James D. MacDonald v. City Hospital Inc. and Sayeed Ahmed, M.D., No. 091909 (Filed 12/30/09)

Plaintiffs in medical professional liability action appeal circuit court order denying post-trial motions, arguing issues dealing with the constitutionality of the cap on noneconomic damages found at W.Va. Code § 55-7B-8. Grant 4 - 1 (Ketchum, J.) McHugh, J. Disqualified - Judge Ronald Wilson sitting by temporary assignment.

9.  Julie McCammon M.D. v. Bruce Carter & United Hospital Center, Inc., No. 100134 (Filed 2/9/10)

Physician appeals circuit court order granting summary judgment to Defendants in suit for expungement of temporary suspension of medical privileges. Refuse 5 - 0

10.  Jamie Bachie v. Wheeling Island Gaming, Inc., No. 100136 (Filed 2/9/10)

Plaintiff in sexual harassment suit appeals circuit court order granting summary judgment to Defendants and denying her motion to reconsider, rescind or modify the court’s prior ruling granting Defendants’ Motion in Limine with respect to Plaintiff’s wage loss and emotional damages claims, arguing that the circuit court abused its discretion and that genuine issues of material fact exist which should have barred entry of summary judgment. Grant 4 - 1 (Benjamin, J.)

11.  Go-Mart, Inc. v. State of WV DHHR, Human Rights Division et. al., No. 100166 (Filed 2/17/10)

Disabled individual appeals circuit court order reversing West Virginia Human Rights Commission employment discrimination award based upon equitable estoppel as individual received Social Security Disability benefits. Refuse 3 - 2 (Benjamin, J., Workman, J.)

12.  SER Smitty Harding v. WV Board of Probation and Parole, No. 100047 (Filed 1/15/10)

Defendant seeks issuance of a writ of habeas corpus arguing that the Parole Board policy requiring an inmate to have an approved home plan prior to his or her parole eligibility interview is unconstitutional. Refuse 5 - 0

13.  SER Deago Lamont Reed v. William Fox, Warden, No. 100071 (Filed 1/22/10)

Defendant seeks issuance of a writ of habeas corpus arguing that the DOC violated his constitutional rights in regard to imposition of discipline due to conviction for prison infraction. Refuse 5 - 0

14.  SER Lawrence Scible v. WV DOC, No. 100131 (Filed 2/1/10)

Defendant seeks issuance of a writ of habeas corpus arguing that DOC is improperly denying him the opportunity to participate in work release. Deferred

15.  SER Shaler Eagle v. William Fox, Warden, No. 100146 (Filed 2/10/10)

Defendant seeks issuance of a writ of habeas corpus arguing improper denial of parole. Refuse 5 - 0

16.  SER Edward L. Harvey v. George Janice, Warden, No. 100151 (Filed 2/11/10)

Defendant seeks issuance of a writ of habeas corpus seeking immediate discharge from incarceration due to allegations of improper procedure in his underlying probation revocation. Refuse 5 - 0

17.  SER Kenneth Gibson v. George Trent, Warden, No. 100201 (Filed 2/22/10)

Defendant, convicted by guilty plea and sentenced to 25 and 2-10 years in prison for Aggravated Robbery and Malicious Assault on the Elderly, seeks issuance of a writ of habeas corpus arguing for reduction of his sentence. Refuse 5 - 0

18.  SER Bobby Eugene Roddy v. David Ballard, Warden, No. 100203 (Filed 2/23/10)

Defendant seeks issuance of a writ of habeas corpus arguing failure by the Parole Board to hold a timely parole interview. Defer for response from Parole Board.

19.  SER John A. Scites v. Evelyn Seifert, Warden, No. 100259 (Filed 3/1/10)

Defendant seeks issuance of a writ of habeas corpus arguing the right to immediate discharge due to assault by another inmate at his former facility. Refuse 5 - 0

20.  SER Travoy Horton v. John McKay, Administrator, No. 100277 (Filed 3/9/10)

Defendant seeks issuance of a writ of mandamus arguing that the circuit court has failed to rule upon his pending habeas corpus challenging extradition. Refuse as moot.

21.  SER Joseph Leon Kirk v. Jay Hoke, Judge, No. 100011 (Filed 1/8/10)

Defendant seeks issuance of a writ of mandamus arguing delay by circuit court in ruling whether his sentence is to run concurrently or consecutively with a sentence imposed by another county. Refuse as moot.

22.  SER Cathy Parsons v. Jack Alsop, Judge, No. 100051 (Filed 1/20/10)

Biological mother whose parental rights were terminated in 2009 seeks issuance of a writ of mandamus arguing that circuit court should provide her with transcripts and an appointed appellate counsel in abuse and neglect matter. Refuse 5 - 0

23.  SER Myron D. Daniels v. Hon. Jennifer Bailey Walker, Judge, No. 100077 (Filed 1/25/10)

Defendant seeks issuance of a writ of mandamus arguing unreasonable delay in the decision of his underlying habeas corpus petition. Deferred

24.  SER Sherran Justice v. James Rubenstein, Commissioner DOC, No. 100080 (Filed 1/25/10)

Prisoner seeks issuance of writ of mandamus against Department of Corrections for transfer from a regional jail facility to a Department of Corrections prison. Refuse 5 - 0

25.  SER Matthew S. Wade v. Edgar Lawson, Warden, No. 100147 (Filed 2/8/10)

Prisoner seeks issuance of a writ of habeas corpus arguing denial of access to courts due to the fact that facility’s law library computer is out of service. Deferred

26.  Steven A. Watkins v. James Rubenstein, Commissioner DOC, No. 100212 (Filed 2/5/10)

Prisoner seeks issuance of writ of mandamus against Department of Corrections for transfer from a regional jail facility to a Department of Corrections prison. Deferred

27.  SER Clarence R. Maynard v. James Rubenstein, Commissioner DOC, No. 100162 (Filed 2/12/10)

Prisoner seeks issuance of writ of mandamus against Department of Corrections for transfer from a regional jail facility to a Department of Corrections prison. Refuse 5 - 0

28.  SER Tony Curtis Myers v. Hon. Jennifer Bailey Walker, No. 100205 (Filed 2/23/10)

Defendant seeks issuance of a writ of mandamus arguing deprivation of the right to petition for appeal of his underlying criminal convictions. Grant 5 - 0 Unless sooner mooted.

29.  SER John E. Keeney, Jr. v. Hon. John Hatcher, No. 100265 (Filed 3/2/10)

Defendant seeks issuance of a writ of mandamus arguing failure of the circuit court to appoint counsel in his underlying habeas corpus action. Refuse as moot.

30.  SER Stanley Myers v. Hon. Gina Groh, No. 100013 (Filed 1/11/10)

Defendant seeks issuance of a writ of prohibition arguing that the circuit court lacks proper jurisdiction to rule upon State’s motion to determine Defendant to be a Sexually Violent Predator. Refuse 4 - 1 (Ketchum, J.)

31.  In the Matter of: Steven J. S., No. 100094 (Filed 1/28/10)

Mother appeals circuit court order terminating her parental rights. Refuse 5 - 0

32.  In the Matter of: Raegan M. I., No. 100110 (Filed 2/1/10)

Father appeals voluntary relinquishment of his parental rights to his daughter. Refuse 5 - 0

33.  In the Matter of: Dakota, Sierra, Savannah & Isabella, No. 100181 (Filed 2/18/10)

Father appeals circuit court order terminating his parental rights. Refuse 5 - 0

34.  State of West Virginia v. Kenneth E. McIntyre, No. 091772 (Filed 12/3/09)

Petitioner appeals his conviction on four counts of sexual assault in the first degree, four counts of sexual abuse by a parent, and four counts of incest, arguing that the court erred in failing to grant a judgment of acquittal pursuant to West Virginia Rule of Criminal Procedure 29(c) as Petitioner presented an alibi defense to the allegations contained within the indictment; the court erred in changing its ruling to allow the introduction of Rule 404(b) evidence, which unfairly prejudiced Petitioner and denied him a fair trial; the State attempted to improperly impeach Petitioner’s credibility in violation of Rules of Evidence 402, 403, 404(b), 608, and 609, denying Petitioner due process and his right to a fair trial; the State engaged in subterfuge to get evidence before the jury which was not otherwise admissible by attempting to admit evidence of bad acts to imply bad character of Petitioner in violation of Rules 401, 402, 403, 404(b), 608, and 609 of the West Virginia Rules of Evidence; the court erred in failing to direct a verdict as the alleged victim’s testimony was inherently incredible and/or incompetent to support the allegations; the Rape Shield Law prejudiced Petitioner; and plain error existed which would require the reversal of Petitioner’s conviction. Deferred

35.  State of West Virginia v. Charles E. Patterson, No. 091788 (Filed 12/7/09)

Petitioner appeals the lower court’s order denying what, essentially, was Petitioner’s request that the court review through a hearing whether Petitioner should be required to register as a sex offender for life. Deferred

36.  State of West Virginia v. Reginald Reed, No. 091853 (Filed 12/17/09)

Petitioner appeals his sentence, arguing that the lower court erred an abused its discretion in rejecting the State’s recommendation for an alternative sentence. Refuse 5 - 0

37.  State of West Virginia v. Patricia L. Reed, No. 100074 (Filed 1/25/10)

Petitioner appeals her sentence following her guilty plea to two counts of delivery of a controlled substance. Refuse 5 - 0

38.  State of West Virginia v. Donald R. Moore, No. 100016 (Filed 1/11/10)

Petitioner appeals the court’s denial of his request for a mental health evaluation prior to his probation revocation. Refuse 5 - 0

39.  Chad Carden v. Wal-Mart Stores, Inc., No. 100030 (Filed 1/13/10)

Petitioner/Plaintiff appeals the lower court’s order granting summary judgment in favor of Respondent/Defendant Wal-Mart in Petitioner/Plaintiff’s negligence suit following an accident in Respondent/Defendant Wal-Mart’s parking lot.  Refuse 5 - 0

40.  Kanawha County Board of Education v. Frances Goodwin and Scott Beane, Jr., No. 091768 (Filed 12/2/09)

Petitioner appeals the order of the circuit court affirming the order of the Grievance Board granting Respondent Goodwin’s grievance in regard to her denial of a posted position based upon the Kanawha County Board of Education’s anti-nepotism policy. Petitioner was awarded that position over the more senior Goodwin due to the anti-nepotism policy. Refuse 5 - 0

41.  Nina Bradford Klaysmat v. Robert M. Townes, Jr., No. 091866 (Filed 12/18/09)

Petitioner/Father appeals the circuit court’s order affirming the family court’s modification of Petitioner/Father’s child support obligation. Refuse 5 - 0

42.  SER Edward Smith v. Adrian F. Hoke, Warden, No. 091845 (Filed 12/16/09)

Petitioner seeks the issuance of a writ of habeas corpus, alleging ineffective assistance of counsel for failure to file an appeal. Grant 5 - 0 Returnable below.

43.  SER Luther C. Basham v. William M. Fox, Warden, No. 091920 (Filed 12/17/09)

Petitioner seeks the issuance of a writ of habeas corpus alleging that his rights have been violated by the warden’s failure to provide him needed medical supplies. Withdrawn

44.  SER Dexter D. Gilmer v. Adrian Hoke, Warden, No. 091874 (Filed 12/21/09)

Petitioner seeks the issuance of a writ of habeas corpus, alleging ineffective assistance of counsel for failure to file an appeal. Grant 5 - 0 Returnable below.

45.  SER Orville Green v. Wayne County Circuit Court, No. 091375 (Filed 9/10/09)

Petitioner seeks to compel the lower court to take action toward the disposition of his petition for writ of habeas corpus. Refuse as moot.

46.  SER Michael S. Billups v. James Rubenstein, Commissioner, No. 100001 (Filed 1/4/10)

Petitioner seeks to be transferred to a DOC facility. Refuse 5 - 0

47.  In the Matter of: Elizabeth W. & Corie W., No. 091812 (Filed 12/10/09)

Petitioner/Father appeals his adjudication as a neglectful parent and of the termination of his parental rights. Refuse 5 - 0

48.  In the Matter of: Robert F., Michael H., and Alexis H., No. 091814 (Filed 12/10/09)

Petitioner/Mother appeals the termination of her parental rights. Refuse 5 - 0

49.  In the Matter of: Terria M. and Ashleigh M, No. 091852 (Filed 12/17/09)

Petitioner/Mother appeals the termination of her parental rights and of her visitation rights. Refuse 5 - 0

50.  In the Matter of: Katalin M., No. 091891 (Filed 12/29/09)

Petitioner/Mother appeals the termination of her parental rights, the denial of an improvement period, and the denial of post-termination visitation. Refuse 5 - 0

51.  In the Matter of: Irene, Mary, and Misty P., No. 100004 (Filed 1/5/10)

Petitioner/Father appeals the termination of his parental rights and the denial of post-termination visitation. Refuse 5 - 0

52.  In the Matter of: Irene, Mary, and Misty P., No. 100005 (Filed 1/5/10)

Petitioner/Mother appeals the termination of her parental rights and the denial of a dispositional improvement period. Refuse 5 - 0

53.  In the Matter of: Savannah M., No. 100104 (Filed 2/1/10)

Petitioner/Father appeals the termination of his parental rights and the denial of post-termination visitation. Refuse 5 - 0

54.  In the Matter of: Savannah M., No. 100104 (Filed 2/1/10)

Petitioner/Mother appeals the termination of her parental rights. Refuse 5 - 0

 


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