West Virginia Supreme Court of Appeals

Writ Conference

Thursday, February 11, 2010

1.  State of West Virginia v. James William Gordon, No. 091825 (Filed 12/14/09)

Defendant, convicted of two counts of First Degree Sexual Assault by guilty plea, appeals circuit court order sentencing him to serve two consecutive 15-25 year terms in prison, arguing that his sentence is disproportionate to the severity of the offenses and improperly denies Defendant the right to seek parole prior to discharging his sentence. Refuse 5 - 0

2.  State of West Virginia v. Jason Mounts, No. 091854 (Filed 12/17/09)

Defendant, convicted of Bank Robbery and Wanton Endangerment by guilty plea, appeals circuit court order sentencing him to serve concurrent10-25 and 5 year terms, arguing that the circuit court abused its discretion in rejecting Defendant’s proposed sentencing scheme and thus, sentenced Defendant in a disproportionate manner. Refuse 5 - 0

3.  State of West Virginia v. Beverly C. Lycans, No. 100015 (Filed 1/11/10)

Defendant, convicted of Obtaining a Controlled Substance by Misrepresentation by jury, appeals circuit court order sentencing her to serve two years of supervised probation in lieu of 1-4 year prison term which was suspended by the court, arguing improper use of 404(b) evidence at trial. Refuse 5 - 0

4.  William A. Anderson, et. al. v. Norfolk Southern Railway, No. 091821 (Filed 12/14/09)

Non-resident Plaintiffs in FELA asbestos action appeal Mass Litigation Panel order granting Defendant railroad’s motion to dismiss their claims, based upon the court’s conclusion that prior dismissals of similar claims of these plaintiffs for lack of venue were dismissals "with prejudice" under the court’s interpretation of WV Code § 56-1-1(c) (2003). Refuse 5 - 0

5.  Jerry Abbot, et al. v. CSX Transportation, Inc., No. 091822 (Filed 12/14/09)

Non-resident Plaintiffs in FELA asbestos action appeal Mass Litigation Panel order granting Defendant railroad’s motion to dismiss their claims, based upon the court’s conclusion that prior dismissals of similar claims of these plaintiffs for lack of venue were dismissals "with prejudice" under the court’s interpretation of WV Code § 56-1-1(c) (2003). Refuse 5 - 0

6.  SER Richard E. Kartman v. David Ballard, Warden, No. 091572 (Filed 10/14/09)

Defendant seeks issuance of a writ of habeas corpus for resentencing and appointment of appellate counsel, arguing deprivation of the right to petition for appeal. Grant 5 - 0, Returnable below for resentencing and appointment of appellate counsel. 

7.  SER Brian John Stone v. George Trent, Warden, No. 091574 (Filed 10/20/09)

Defendant seeks issuance of a writ of habeas corpus arguing ineffective assistance of counsel. Grant 5 - 0, Returnable below for appointment of counsel and Omnibus Hearing. 

8.  SER Thomas L. Brown v. David Ballard, Warden, No. 091711 (Filed 11/19/09)

Defendant seeks issuance of a writ of habeas corpus arguing he was denied his right to appeal due to dereliction of the State and was denied effective assistance of counsel. Grant 5 - 0, Returnable below for resentencing and appointment of appellate counsel. 

9.  SER Christopher Forney v. Thomas McBride. Warden, No. 091753 (Filed 11/23/09)

Defendant seeks issuance of a writ of habeas corpus arguing violation of his constitutional right to a fair trial due to improper jurisdiction in his underlying criminal case. Refuse 5 - 0

10.  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. Deferred for response from counsel. 

11.  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. Deferred for response from counsel. 

12.  SER Joseph G. Buffey v. George Trent, Administrator, No. 091841 (Filed 12/16/09)

Defendant seeks issuance of a writ of habeas corpus arguing that the State’s filing of a recidivist information against him forced him to elect to be sentenced under a less favorable statute 61-3-13, rather than the newly repealed 61-11-20, thus abridging his right to jury trial and due process. Grant 5 - 0, Returnable below for appointment of habeas counsel and Omnibus Hearing. 

13.  Randall Ray Butler v. James Rubenstein, Com’r DOC , No. 091491 (Filed 9/30/09)

Prisoner seeks issuance of writ of mandamus against Department of Corrections on medical treatment issue. Refuse 5 - 0

14.  SER Steve Cogar v. Hon. Gary Johnson, Judge, No. 091588 (Filed 10/22/09)

Defendant seeks issuance of a writ of mandamus arguing that the circuit court has filed to issue timely rulings upon multiple pending matters. Grant 5 - 0 Unless sooner mooted.

15.  SER Vaughn D. Jackson v. Hon. James Rowe, Judge, No. 091777 (Filed 12/3/09)

Defendant seeks issuance of a writ of mandamus directing circuit court to credit him with 153 days credit for time served.
 Refuse 5 - 0

16.  SER Mark S. Neuman v. Robert R. Burnside, Judge, No. 091869 (Filed 12/21/09)

Defendant seeks issuance of a writ of mandamus arguing that the circuit court has failed to rule upon his underlying habeas petition.
Grant 5 - 0 Unless sooner mooted.

17.  In the Matter of: Amanda M., Brian M., and Donovan M., No. 091813 (Filed 12/10/09)

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

18.  In the Matter of: Elizabeth F. and Kyia F., No. 091850 (Filed 12/17/09)

Guardian-ad-litem for girls in abuse case appeals circuit court order granting placement of the four minor children with maternal grandmother. Grant 5 - 0

19.  In the Matter of: Cole M., No. 091864 (Filed 12/18/09

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

20.  In the Matter of: Nathan & Ashley T., Hannah L. Emily T. & Brian T., No. 091875 (Filed 12/21/09)

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

21.  In the Matter of: Gabryal K., Dalton K., and Saryneti K., No. 091918 (Filed 12/23/09)

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

22.  In the Matter of: Brianna D., Daniel D., and Dana D., No. 091899 (Filed 12/29/09)

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

23.  In the Matter of: Melissa D., and Tiffanie D., No. 091911 (Filed 12/30/09)

Mother appeals circuit court order terminating her parental rights. Refuse 4 - 1 (Ketchum, J.)

24.  In the Matter of: Aiden Christian E., No. 100022 (Filed 1/13/10)

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

25.  State of West Virginia v. Don W. Taylor, No. 091686 (Filed 10/16/09)

Petitioner appeals his sentence for first degree robbery and the denial of his motion to withdraw his guilty plea. Refuse 5 - 0

26.  State of West Virginia v. Akeem Gholson, No. 091657 (Filed 11/6/09)

Petitioner appeals the circuit court’s finding that he committed first degree sexual abuse and an act of violence and challenges the denial of credit for time served in a mental health facility. Refuse 5 - 0

27.  David L. Ryder v. First National Bank of Ronceverte, No. 091534 (Filed 10/9/09)

Petitioners/Bowlings appeal the lower court’s order granting summary judgment to Respondent/Ryder and dismissing a damages claim against him. Refuse 5 - 0

28.  SER William Trampus Widmyer v. Howard Painter, Warden, No. 091562 (Filed 10/14/09)

Petitioner appeals the denial of his petition for writ of habeas corpus, arguing that the circuit court committed reversible error by not granting Petitioner's petition for writ of habeas corpus because the trial judge who presided over Petitioner's trial should have recused himself; a gruesome photograph of the victim's body was improperly admitted at trial; the trial court should not have refused to give an instruction on the lesser included offense of second degree murder; the trial court should not have refused to give an instruction for the lesser included offense of unlawful assault under Count II of the indictment; it was prejudicial and reversible error for the trial court to deny Petitioner’s motion to dismiss Count 4 of the indictment and to give an improper instruction on the elements of burglary; it was prejudicial and reversible error for the trial court to refuse the jury’s request to hear the audio tape of Petitioner’s statement to police; Petitioner’s due process rights were violated when he was not present at all critical stages of the court proceedings; Petitioner’s due process rights were violated when Petitioner’s statements to officers of the Ranson police – improperly obtained after a request for counsel – were admitted at trial; Petitioner’s due process rights were violated when statements made to the Ranson police were admitted at trial in violation of Petitioner’s right to be promptly presented before a magistrate; Petitioner’s due process rights were violated when statements made by Petitioner were admitted in trial when those statements were obtained as the result of an illegal arrest; the indictment made no reference to any lesser included offense of murder in the first degree, and the jury was not properly instructed on any lesser included offense; Petitioner received ineffective assistance of counsel at trial; Petitioner received ineffective assistance of counsel when, during opening and closing arguments, trial counsel conceded Petitioner’s guilt, without Petitioner’s prior consent; and Petitioner received ineffective assistance of counsel on appeal. Refuse 5 - 0

29.  SER Paul R. Robinson v. William M. Fox, Warden, No. 091589 (Filed 10/22/09)

Petitioner files this original jurisdiction habeas corpus petition alleging the he was denied effective assistance of counsel; that the trial court lacked jurisdiction to convict and sentence Petitioner because his counsel was ineffective and because the statute under which Petitioner was indicted, convicted, and sentenced is unconstitutional; that he was subjected to double jeopardy; that the trial court erred and abused its discretion when it sentenced Petitioner to a sentence not consistent with that provided for in the plea agreement; that the trial court lacked jurisdiction to convict and sentence Petitioner because the indictment was fatally defective in that it failed to allege "lack of consent;" and that he was denied due process and equal protection when he did not receive a full omnibus hearing. Refuse 5 - 0

30.  SER Demerise Ann Smith v. Teresa McCourt, Warden, No. 091641 (Filed 11/2/09)

Petitioner files this original jurisdiction petition for writ of habeas corpus, alleging that the results of tests performed upon evidence in the West Virginia Crime Lab were tainted since the testing was done during Fred Zain’s tenure with the lab; that Petitioner suffered ineffective assistance of counsel; that the trial court erred in making certain evidentiary rulings; that the trial court abused its discretion; that there was insufficient evidence to convict Petitioner; that the State committed prosecutorial misconduct; that there is newly discovered evidence which is relevant to the case; that the statement of the co-defendant supports Petitioner’s innocence; that there was an improper chain of evidence; that the assistant prosecutor had a conflict of interest; and that there was cumulative error.
Grant 5 - 0, Returnable below for appointment of counsel and Omnibus Hearing. 

31.  SER William Ivan Murphy v. David Ballard, Warden, No. 091672 (Filed 11/10/09)

Petitioner files this original jurisdiction petition for writ of habeas corpus, arguing that he suffered ineffective assistance of counsel.
Grant 5 - 0, Returnable below for resentencing and appointment of counsel. 

32.  SER Jerry Jennings, Sr. v. Edgar Lawson, Administrator, No. 091756 (Filed 11/30/09)

Petitioner files this original jurisdiction petition for writ of habeas corpus, arguing that the witnesses against him lacked credibility, that the jury was tainted, and that he has suffered ineffective assistance of counsel. Grant 5 - 0, Returnable below for appointment of counsel and Omnibus Hearing. 

33.  SER George Watts v. Jay Hoke, Judge, No. 091762 (Filed 10/22/09)

Petitioner seeks a writ of mandamus against Judge Hoke, seeking to compel him to appoint Petitioner new counsel in pursuance of a habeas corpus appeal. Refuse 5 - 0, Moot

34.  In the Matter of: Dalton D. R., No. 090755 (Filed 6/22/09)

Petitioner/Father appeals the termination of his parental rights, arguing that the court wrongly held his incarceration against him.
Refuse 5 - 0

35.  In the Matter of: Jerrick C., No. 091388 (Filed 9/14/09)

Petitioner/Mother appeals the termination of her parental rights. Refuse 4 - 0 (McHugh, J. Disqualified)

36.  In the Matter of: Wetzel H., Mirrorosa W., Jozef S., Autumn W., Tristan W., and Calvin B., No. 091596 (Filed 10/26/09)

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

37.  In the Matter of: Jessica G., No. 091604 (Filed 10/26/09)

Petitioner/Father appeals the termination of his parental rights, arguing that the court failed to make certain findings of fact and that DHHR failed to meet its burden of proof. Grant 3 - 2 (Benjamin, C.J., McHugh, J.)

38.  In the Matter of: Cameron H. and Trinity H., No. 091632 (Filed 10/30/09)

Petitioner/Father appeals the termination of his parental rights, arguing that the court erred in not making specific findings of fact and that DHHR failed to timely file the family case plan. Refuse 5 - 0

39.  In the Matter of: Mikela D., Elizabeth D., and Jada D., No. 091660 (Filed 11/10/09)

 Petitioner/Mother appeals the termination of her parental rights, arguing that she did not receive proper notice of the disposition hearing. Refuse 5 - 0

40.  In the Matter of: Quentin W., Dillon H., and Braxton H., No. 091682 (Filed 11/13/09)

Petitioner/Mother appeals the termination of her parental rights, arguing that the court failed to consider an alternative to termination.
Refuse 5 - 0

41.  In the Matter of: Cody L. and Ashley N., No. 091690 (Filed 11/16/09

Petitioner/Mother appeals the termination of her parental rights, alleging that the court prematurely terminated her improvement period and that she suffered ineffective assistance of counsel. Refuse 5 - 0

42.  In the Matter of: Kaleb S., No. 091729 (Filed 11/23/09)

Petitioner/Mother appeals the termination of her parental rights, arguing that the family case plan was poorly presented and that the circuit court failed to make any findings of fact in its disposition order. Refuse 4 - 1 (Ketchum, J.)

43.  In the Matter of: Sidney Rae M., No. 091868 (Filed 12/7/09)

Petitioners/Paternal Grandparents appeal the denial of their motion to intervene and to gain custody of their granddaughter, arguing that the trial court abused its discretion when it denied Petitioners/Paternal Grandparents’ motion to intervene and when it awarded custody of Sidney to her current foster family. Refuse 5 - 0

 


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