West Virginia
Supreme Court of Appeals
WRIT CONFERENCE
TUESDAY, FEBRUARY 20, 2001
1. In the Matter of Bethany T. ,
No. 010041 (filed 1/25/01).
Alleged father appeals the termination of his parental
rights to Bethany T.
Refuse 5-0
2. In the Matter of Danny Ray L. Jr.,
No. 010151 (filed 1/26/01).
Petitioners, Loretta L. and Danny L., Sr., petition
this Court for an appeal of a Disposition Order entered by the Circuit Court
of Monongalia County, West Virginia, on 10/20/00, in which the circuit court
terminated the parental rights to their children, Kayla G., Angel L., Andrew
L. and Danny L., Jr.
Refuse 5-0
3. Lee Bowman v. Buford Blevins, Sr.,
No. 002935 (filed 12/29/00).
Blevins, by counsel, appeals Judge Kendrick King's
Order, dated 8/18/00, in which Judge King transferred custody of Blevins' two
children to the childrens' maternal grandparents, Lee Bowman and Nancy Bowman.
Grant 3-2
(McGraw, C.J., Maynard, J.)
4. SER Jack Grimes, Jr. v. William Haines-Warden,
No. 002703 (filed 11/16/00).
Petitioner, pro se, seeks a writ of habeas corpus
alleging the following assignments of error: (1) Ineffective Assistance of Counsel;
(2) the State failed to ensure that petitioner was mentally competent to stand
trial or to enter a plea-agreement; (3) Invalid plea agreement; (4) Violation
of Double Jeopardy Clause; (5) Violation of petitioner's due process rights
when the Circuit Court Judge denied petitioner's Motion for a Change of Venue
in light of the vast negative publicity surrounding the case; (6) the trial
court violated petitioner's due process rights by allowing unsworn testimony
to come into evidence and by allowing the prosecutor to stop petitioner from
viewing the crime scene; (7) the trial judge violated petitioner's due process
rights by allowing the prosecutor to enter evidence into the record of petitioner's
past crimes which were not relevant; (8) the prosecutor denied petitioner's
due process rights by withholding exculpatory evidence favorable to petitioner.
Grant 3-2
(McGraw, C.J., Maynard, J.)
Returnable below with directions
5. SER James Sigley v. Howard Painter-Warden,
No. 002749 (filed 11/29/00).
Sigley, pro se, seeks a writ of habeas corpus asserting
that on 2/15/00, petitioner filed a writ of habeas corpus in the circuit court
of Marion County seeking the full record in Case No. 88-F-81. According to Sigley,
the circuit court has failed to give him a copy of the record.
Grant 3-2
(McGraw, C.J., Maynard, J.)
Returnable below with directions
6. SER Walter Clark v. Howard Painter-Warden,
No. 002771 (filed 12/5/00).
Clark, pro se, seeks a writ of habeas corpus asserting
that the West Virginia Division of Corrections wrongly took away good time in
an arbitrary and capricious manner.
Refuse 5-0
7. SER William Hayton v. Evelyn Seifert-Warden,
No. 002789 (filed 12/12/00).
Hayton, pro se, seeks a writ of habeas corpus in
which he asserts the following allegations: (1) Conviction obtained by use of
coerced confession; (2) Conviction obtained by a violation of the privilege
against self incrimination; (3) Denial of right to renew his subpoena of newspaper
reporter to question her about his case; (4) Denial of Effective Assistance
of Counsel.
Refuse 5-0
8. SER Jerry C. Pulley, Jr. v. Howard Painter-Warden,
No. 002862 (filed 12/15/00).
Pulley, pro se, seeks a writ of habeas corpus asserting
the following arguments: (1) Asserts that he cannot access the courts “in
a meaningful, adequate manner” because he cannot afford to pay the copy
fee; (2) Unsuccessful in obtaining a case for over a year; (3) Law clerks are
unable to come to punitive segregation units to speak with the inmates; (4)
asserts that he is entitled to items such as paper, typewriters, and carbon
paper and has never been given any while in punitive segregation; (5) asserts
that he has been denied adequate rehabilitation classes because the prison televisions
have been destroyed by other prisoners and there is no T.V. for rehabilitative
purposes; (6) Asserts that the Kanwaha County Circuit Court has failed to hold
an evidentiary hearing in Civil Action No. 99-M-220 and in Civil Action No.
99-AA-67 and have failed to appoint him an attorney; (7) Asserts that the Warden
at Mt. Olive, Howard Painter, has continued to single him out and seeks to bring
fraudulent rule violations against him; (8) Asserts that he has been denied
meaningful access to the law library with access to the library for only one
to two hours a month.
Grant 3-2
(McGraw, C.J., Maynard, J.)
9. SER Dwight Mathena, et al. v. William Haines-Warden,
No. 002909 (filed 12/20/00).
Mathena, along with the following petitioners
joined in filing this Petition for a Writ of Habeas Corpus: Dwight L. Mathena,
Roger Sullivan, Jack Grimes, Kenneth Bennett, Jeffrey L. Wolff, and Kenneth
Powell. Petitioners asserts the following arguments: (1) The prison officials
at Huttonsville Correctional Center have failed to take adequate steps to ensure
to prevent prisoners from being beat to death by a gang of prisoners in violation
of the Eight Amendment ban on “Cruel and Unusual Punishment.”; (2)
Prisoners with mental and physical disabilities are denied access to numerous
prison programs at the Huttonsville Correctional Center; (4) Deplorable living
conditions in prison cells.
Grant 3-2
(Davis.J., Maynard, J.)
10. SER Rush W. Runyon v. Howard Painter-Warden,
No. 010113 (filed 1/22/01).
Runyon, pro se, seeks a writ of habeas corpus alleging
ineffective assistance of counsel.
Refuse 4-0
(Maynard, J. - not participating)
11. SER Cornell F. Dayne v. James Huppenthal-Admin.,
No. 001982 (filed 12/7/00).
Dayne, pro se, seeks a writ of habeas corpus alleging
a violation of Due Process rights as a result of an illegal search and that
his probation period is incorrect.
Refuse 5-0
12. SER Charles Maddox v. William Haines-Warden,
No. 002096 (filed 9/12/00).
Maddox, pro se, seeks a writ of mandamus seeking
to compel the Randolph County Circuit Court to rule upon a pending Motion for
a Writ of Mandamus filed by Maddox.
Refuse 5-0
moot
13. SER Jeffrey Wright v. Danny O. Cline-Judge,
No. 002612 (filed 9/22/00).
Wright, pro se, seeks a writ of mandamus seeking
a new trial or a sentence reduction. Wright asserts that Judge Cline abused
his authority in dismissing a Motion for Default Judgement filed by petitioner.
Refuse 5-0
14. SER James L. Warner v. Raleigh County Circuit
Court, No. 002156 (filed 10/30/00).
Warner, pro se, seeks a writ of mandamus seeking
to compel the Raleigh County Circuit Court to appoint him an attorney.
Grant 5-0
unless sooner mooted
15. Eugene Blake v. William Haines-Warden,
No. 002366 (filed 10/11/00).
Blake, pro se, seeks a petition for a writ of mandamus
seeking to compel this Court to order the Division of Corrections to credit
his sentence with time served prior to sentencing.
Refuse 5-0
16. SER Roger Jenkins v. Herman Canandy-Judge,
No. 002633 (filed 8/22/00).
Jenkins, pro se, seeks a writ of mandamus seeking
to compel Judge Canandy to rule upon a pending Writ of Mandamus.
Grant 5-0
unless sooner mooted
17. SER Ennis C. Payne v. Harrison County Circuit
Court, No. 002705 (filed 11/2/00).
Payne, pro se, seeks a writ of mandamus seeking
to compel the Harrison County Circuit Court to appoint him an attorney.
Grant 3-2
(Davis J., Maynard, J.)
18. SER Timothy E. Miller v. Gilmer County Circuit
Court, No. 002706 (filed 11/15/00).
Miller, pro se, seeks a writ of mandamus seeking
to compel the Gilmer County Circuit Court to appoint him an attorney to assist
him in withdrawing his guilty plea. Miller alleges that the State failed to
uphold their end of the plea bargain by failing to run his sentences concurrently.
Refuse 4-1
(Starcher, J.)
19. SER Richard R. Null v. Kanawha County Circuit
Court, No. 002654 (filed 11/20/00).
Null, pro se, seeks a writ of mandamus seeking to
compel the Kanawha County Circuit Court to rule on his Motion for Reduction
of Sentence filed on 9/8/00.
Refuse 5-0
20. SER Leroy C. Thurston v. Marion
County Circuit Court, No. 002582 (filed 11/1/00).
Thurston, pro se, seeks a writ of mandamus seeking
to compel the Marion County Circuit Court to issue a ruling on the Motion for
Reduction of Sentence filed by petitioner on 8/16/00.
Refuse 5-0
Moot
21. SER Leroy P. Mower v. John Frazier-Judge,
No. 11/17/00 (filed 002680).
Mower, pro se, seeks a writ of mandamus seeking
to compel Judge Frazier to resentence him.
Grant 5-0
22. SER Grover L. Breeding v. O.C. Spaulding-Judge,
No. 002762 (filed 11/22/00).
Breeding, pro se, seeks a writ of mandamus seeking
to compel Judge Spaulding to rule upon his Motion to Disqualify his Attorney,
N. Edward Eagloski.
Refuse 5-0
moot
23. SER Parker L. Pendry v. WV Board of Probation
& Parole, No. 002763 (filed 12/1/00).
Pendry, pro se, seeks a writ of mandamus seeking
to compel the WV Board of Probation and Parole to release him on parole.
Refuse 5-0
24. SER Leonard Ellinger Jr. v. David
Sanders-Judge, No. 003014 (filed 12/28/00).
Ellinger, pro se, seeks a writ of mandamus seeking
to compel Judge Sanders to rule on a Motion to Reconsider his Sentence filed
on 7/7/98.
Grant 5-0
unless sooner mooted
25. SER Perzell Dinkins v. Randolph County Circuit
Court, No. 003016 (filed 12/28/00).
Dinkins, pro se, seeks a writ of mandamus seeking
to compel the Randolph County Circuit Court to rule upon a pending Motion for
a Writ of Habeas Corpus filed with the Randolph County Circuit Court on 9/11/00.
Refuse 5-0
26. SER Jamal A. Azeez v. WV State Police-Beckley,
Charleston and W.V. Dept. Of Public Safety, No. 002442 (filed 10/23/00).
Azeez, pro se, seeks a writ of mandamus seeking
to compel the WV State Police in Beckley and Charleston and the W.V. Department
of Public Safety to show cause why they failed to respond to the Complaint filed
by Azeez.
Refuse 5-0
27. SER Kenny D. Sayre v. Harrison County
Circuit Court, 002184 (filed 9/25/00).
Sayre, pro se, seeks a writ of prohibition to prohibit
the Harrison County Circuit Court from ruling on 99-C-545-1 until the Harrison
County Circuit Court rules upon the following motions filed by Sayre: (1) Motion
for Failure to Perform Official Duties in Violation of the W.Va. Code §61-5-28;
(2) “Motion On Newly Discovered Evidence and Nondisclosure by Prosector
in Violation of Rule 10;” (3) “Motion on Obstructing Administration
of Justice by the Office of Prosecutor and Unprofessional Conduct.”
Refuse 5-0
28. SER Jess White, Joel Kaylor v. James
Spencer-Admin., No. 002428 (filed 10/5/00).
Petitioners seek a writ of mandamus and/or prohibition
seeking to compel this Court to appoint a special prosecutor.
Refuse 5-0
29. SER Marilyn Seay McDonald v. Pendleton
County Circuit Court, No. 002484 (filed 10/26/00).
Petitioner, pro se, seeks a Writ of Mandamus seeking
to compel this Court to (1) order that petitioner's case be transferred to another
circuit court; (2) In the alternative, order that a new Prosecuting Attorney
be appointed; (3) enjoin all mental evaluations of petitioner; (4) order that
the clerk accept her list of witnesses and to issue supeonas.
Refuse 5-0
30. State of WV v. James H. Kearns,
No. 002841 (filed 12/15/00).
Kearns, pro se, seeks an appeal of his conviction
in which he alleges the following: (1) the trial court erred by denying a motion
for a mistrial following an outburst by a family member of the victim during
opening statement of prosecutor; (2) the trial court erred in failing to suppress
a statement made by the appellant to the arresting officer; (3) the trial court
erred in admitting the appellant's video tape statement given to the news media.
Refuse 5-0
31. State of WV v. Chad Cordell, No. 002071
(filed 9/11/00).
Cordell appeals the 1/28/00 Order of the Berkeley
County Circuit Court in which Judge Wilkes denied Petitioner's Motion for a
New Trial, Motion for Judgement of Acquittal Notwithstanding the Verdict of
the Jury, and sentenced Defendant to 15 years imprisonment for the felony offense
of voluntary manslaughter with an additional five years for use of a firearm.
Petitioner asserts the following assignments of error: (1) It was error for
the court to fail to direct a verdict in favor of the Petitioner at the close
of the State's case; (2) It was error for the court to fail to direct a verdict
in favor of the Petitioner at the close of all of the evidence in the case;
(3) It was error for the Court to allow 404(b) evidence of the Defendant's prior
alleged “bad acts” of having other hand guns in his possession; (4)
It was error for the Court to admit evidence of .22 caliber bullets found in
the trash can adjacent to the Petitioner's residence because they were not within
the curtilage of said residence and thus not within the scope of the search
warrant issued, and the search thereof was illegal; (5) The cumulative weight
of all of the errors set forth above is sufficient to constitute prejudicial
error and warrant the granting of a new trial.
Refuse 5-0
32. State of WV v. Ronald D. Johnson,
No. 002106 (filed 9/19/00).
Johnson appeals his 12/16/99 convictions of the
following offenses: Murder in the First Degree without a Recommendation of Mercy,
Attempted Murder in the First Degree, and Malicious Assault. Johnson
asserts the following assignments of error: (1) Due to deception by the Detectives
who interrogated the Appellant, the Appellant was deprived of his opportunity
to make an informed, knowing and intelligent decision as to whether he should
or should not waive his Miranda rights. The Lower Court should have prohibited
the State of West Virginia from introducing into evidence his inculpatory statement
in order to prove his guilt; (2) The Warrantless seizure of evidentiary items
from the Appellant's residence by Detective K.L. Miller and the photographing
of the interior of the Appellant's residence by Detective R.B. Bargeloh of the
Parkersburg City Police Department was unlawful; (3) The Lower Court erred by
allowing the testimony of Patricia Mollohan concerning how she had been adversely
affected by the injuries sustained by her husband; (4) The Lower Court erred
by permitting the jury to deliberate upon a verdict of Murder in the First Degree
because the State of West Virginia having failed to present evidence concerning
a specific intent to kill.
Refuse 3-2
(Starcher, J., Albright, J.)
33. State of WV v. Tony Greene, No. 002367
(filed 10/12/00).
Greene seeks an appeal of his conviction of one
felony count of delivery of a Schedule II Controlled Substance. Petitioner asserts
that the Circuit Court erred in denying petitioner's motion for judgement of
acquittal and a motion for a new trial where the evidence was insufficient to
support a guilty verdict.
Refuse 5-0
34. State of WV v. Carl W. Clausen, No. 002407
(filed 10/20/00).
Clausen prays for a probationary period or that
the case be remanded with instructions.
Refuse 5-0
35. State of WV v. Marilyn Seay, No. 002483
(filed 10/26/00).
Petitioner, pro se, appeals the entry of a 9/11/00
Order issued by the Circuit Court of Pendleton County in which Judge Donald
Cookman ordered that petitioner shall not at any time appear at the Wayside
Baptist Church in Pendelton County, West Virginia. Petitioner seeks contact
with her children and seeks possession of her personal property. Additionally,
petitioner requests that this Court complete an investigation of Jerry Moore,
the prosecutor, and Judge Cookman for due process violations.
Refuse 5-0
36. State of WV v. Harold Ray Donovan,
No. 002563 (filed 11/9/00).
Donovan appeals the conviction of Grand Larceny
alleging that (1) the State failed to present any direct evidence that he intended
to permanently deprive the owner of the truck the their property; (2) evidence
of the taking of the Chevy Lumina by Donovan should have been suppressed by
the Circuit Court of Preston County; (3) Donovan's statement to Deputy C.M.
Treft should have suppressed.
Refuse 5-0
37. In the Matter of Dillon M., No.
010025 (filed 1/10/01).
Father appeals the termination of his parental
rights.
Refuse 5-0
38. In the Matter of Dillon M., No. 010026
(filed 1/10/01).
Mother appeals the termination of her parental
rights.
Refuse 5-0
39. In the Matter of Michael H. and Shawn
H., No. 010059 (filed 1/12/01).
Mother appeals the lower court's ruling which placed
post-termination visitation in the discretion of the guardian ad litem, the
WVDHHR, the children's therapist, and the children's adoptive parents.
Refuse 4-1
(McGraw, C. J.)
40. In the Matter of Rebecca L., Breanna
L., and Brian L., No. 010061 (filed 1/16/01). Father appeals the termination
of his parental rights.
Refuse 5-0
41. In the Matter of Joshua B., Joel
R., and Jesse B., No. 010031 (filed 1/19/01).
Mother appeals the denial of post-termination visitation
with Jesse B.
Refuse 5-0
42. In the Matter of Christian C.,
No. 010099 (filed 1/22/01).
Mother appeals the termination of her parental
rights.
Refuse 5-0
43. In the Matter of Brittany, Ricky,
Joseph, and Matthew S., No. 010042 (filed 1/25/01). Mother appeals the
termination of her parental rights to Brittany S.
Refuse 5-0
44. In the Matter of Tyler S., No.
010285 (filed 2/13/01).
Mother appeals the termination of her parental
rights.
Refuse 5-0
45. In the Matter of Maliek S.,
No. 010286 (filed 2/13/01).
Mother appeals the termination of her parental
rights.
Refuse 5-0
46. In the Matter of Marisa S.,
No. 010287 (filed 2/13/01).
Mother appeals the termination of her parental
rights.
Refuse 5-0
47. State of WV v. Jerry A. Morris, No. 002691
(filed 12/11/00).
Morris was convicted of obtaining by worthless
check, and failure to appear on bond. The Jackson County Circuit Court ordered
that his sentences run consecutively to each other, and consecutively to an
Upshur County sentence for obtaining goods by false pretenses. Morris appeals,
arguing that the Jackson County Circuit Court abused it's discretion in ordering
his sentences to run consecutively to the Upshur County sentence.
Refuse 5-0
48. State of WV v. William Stanley Jackson,
No. 002754 (filed 12/29/00).
Jackson files an Anders brief, challenging
his 1 - 15 year sentence for delivery of a controlled substance. Jackson's attorney
files a motion to be relieved as counsel.
Refuse Petition 5-0
Grant motion to be relieved as counsel 5-0
49. State of WV v. Mark A. Kinser, No.
010027 (filed 1/24/01).
Kinser appeals his 1 - 5 year sentence for unlawful
assault, arguing that the court erred in considering the community sentiment.
Refuse 5-0
50. State of WV v. Sean Browning, No. 010035 (filed
1/26/01).
Browning was convicted of sexual assault in the
third degree, sexual assault by a parent, guardian, or custodian, and
sexual abuse in the first degree. Browning argues that the court erred in ordering
that his sentences run consecutively, rather than concurrently.
Refuse 4-0
(Maynard, J. - not participating)
51. In the Matter of: Heather S. and Frank S.,
No. 010022 (filed 1-24-01).
Mother appeals the termination of her parental
rights, claiming that the circuit court erred in that the mother did not receive
her treatment plan in a timely manner and that she received ineffective assistance
of counsel.
Refuse 5-0
52. In the Matter of: Patricia P., No. 010045
(filed 1-31-01).
The mother appeals the October 26, 2000 circuit
court order retaining legal custody of two of her children with the WVDHHR while
placing physical custody of one of those children with the mother and father
and physical custody of the other child with the Barboursville school, claiming
that the circuit court erred in finding the mother to be guilty of abuse and
neglect because the state failed to show by clear and convincing evidence that
the mother knew of the alleged abuse by her husband against her children.
Refuse 5-0
53. In the Matter of: Christopher J., et al.,
No. 010047 (filed 1-31-01).
The mother appeals the termination of her parental
rights to four children, claiming that the circuit court erred in finding that
the mother failed to comply with the terms of the post-adjudicatory improvement
period, and in finding that the WVDHHR made reasonable efforts to reunify the
family prior to seeking termination of her parental rights.
Refuse 5-0
54. In the Matter of: Scott S.,II, et al., No.
010232 (filed 1-31-01).
Father appeals the termination of his parental
rights to his two sons, claiming that the circuit court erred in that the WVDHHR
failed to offer any evidence that the two boys were abused or neglected, in
failing to grant the father's request for a competency hearing, in finding that
the father had voluntarily absented himself from a dispositional hearing, and
in denying the father's request for post termination visitation.
Refuse 5-0
55. Christine C. Massey v. Clarence C. Massey,
Jr., No. 002618 (filed 11-16-00).
Christine Massey appeals the final divorce and
property settlement order entered April 19, 2000 and the June 22, 2000 order
denying her Petition for Review. Christine Massey claims that the settlement
agreement is voidable because 1) newly discovered evidence shows that Clarence
Massey failed to fully disclose his assets, 2) newly discovered evidence shows
that there was a mutual mistake regarding the value of the marital residence,
and 3) there was a discrepancy between the final order settlement agreement
regarding payment of a debt and the settlement agreement as set out in the final
hearing before the Family Law Master.
Refuse 5-0
56. Gary White v. Anthony P. Barill, Sheriff,
No. 002623 (filed 11-16-00).
White appeals the circuit court order sustaining
the September 15, 1999 decision of the Monongalia County Correctional Officer's
Civil Service Commission, sustaining the decision by Anthony Barill, Sheriff
of Monongalia County, West Virginia terminating White's employment as a Correctional
Officer in the Monongalia County Jail. White claims that the circuit court erred
in that he was deprived of due process and denied remand to address the due
process issues.
Grant 4-1
(Albright, J.)
57. State of West Virginia v. Barbara J. Lowe,
No. 002748 (filed 12-12-00).
Lowe appeals her sentence of one to three years
for conviction on a plea of guilty to third Offense, DUI. Lowe claims that the
sentence is excessive based upon her plea agreement, her age, her prior record,
and her health; and that the sentence is disproportionate to the severity of
the offense charged.
Refuse 5-0
58. State of West Virginia v. William James Buchanan,
III, No. 002764 (filed 12-14-00).
Buchanan appeals his jury conviction on one count
of Aggravated Robbery, claiming that the court erred in improperly participating
in plea bargain negotiations and that there was insufficient evidence to support
a conviction.
Refuse 5-0