February 27, 2008 Motion Docket, Supreme Court of Appeals of West Virginia

Supreme Court of Appeals of West Virginia
Motion Docket
Wednesday, February 27, 2008

Case # 2 on today's argument docket, Neely v. Belk, Inc., et al. - 33597- will be called at 10:00 immediately preceding the Motion Docket.

1. State of WV v. William D. Severn - 072700 - Defendant was convicted of various sex crimes in 1997. His direct criminal appeal was refused unanimously in May of 2001. The instant appeal involves the circuit court's order denying defendant's motion for a new trial based upon newly discovered evidence. - Refuse 5 - 0.

2. State of WV v. Michael Shanahan - 072753 - Michael Shanahan appeals the denial of his petition for habeas corpus which alleged a lack of sex offender rehabilitation programs in prison, and he appeals the denial of his motion for reduction of sentence. He is presently serving 6 to 30 years for his conviction upon guilty plea to 6 counts of sexual abuse in the first degree. - Refuse 3 - 2, Starcher & Albright.

3. State of WV v. Warren Hester - 072690 - Defendant was convicted of sexual assault, battery, kidnaping, and nighttime burglary. Defendant appeals and seeks a reversal of his conviction. He asserts numerous evidentiary and procedural errors below, including Rule 404(b) evidence and instructional errors. - Continued to 4/1/08.

4. State of WV v. Roger D. Smith - 072853 - This is a petition for appeal from an Amended Sentencing Order entered by the Circuit Court of Berkeley County on March 30, 2007. The petitioner plead guilty to the entire indictment. After a bifurcated trial to determine the issue of mercy, a jury determined that the petitioner should receive a life sentence without the possibility of parole. As a result, petitioner was sentenced to life in prison for felony murder, along with various sentences for the other counts of the indictment. It is from the Amended Sentencing Order that the petitioner now appeals. - Refuse 3 - 2, Starcher & Albright.

5. Betty L. Howell, Executrix v. Pleasants County Continuous Care d/b/a Carehaven of Pleasants - 072854 - This is an appeal from a personal injury/wrongful death action for damages resulting from the alleged negligence and contractual breaches of the defendant in the care, treatment, and monitoring of residents and patients within its long term nursing care facility. The petitioners filed a Complaint alleging negligence in failing to adhere to standards and regulations to long term/medical care following the death of Russell Northcraft. A jury returned a verdict in favor of the Carehaven Pleasants. Refuse 4 - 1, Starcher.

6. Andrew Young, Admn. v. Pamela Sue McIntyre f/k/a Pamela Sue Young and The Huntington National Bank - 072789 - Plaintiff below appeals the circuit court's order granting summary judgment in favor of defendant in an action concerning the ownership of property. Plaintiff's decedent died while owning property with his ex-wife, the defendant. The court ruled that the divorce and property settlement agreement did not sever a joint tenancy with right of survivorship. Grant 4 - 1, Maynard.

7. Darrell V. McGraw, Jr., Attorney General, et al. v. The American Tobacco Co., et al. - 072347 - The State by its Attorney General filed a Motion for Declaratory Judgment asking the circuit court to declare that it had diligently enforced a statute as required by the tobacco Master Settlement Agreement. Whether this statute was diligently enforced impacts the amount of the annual settlement payment the State receives. The circuit court determined that the Agreement requires this issue to be arbitrated, and therefore entered an "Order Granting Defendant Original Participating Manufacturers’ Motion to Compel Arbitration and Stay this Litigation." The State appeals. - Justice Davis disqualified, Judge Gaughan sitting by temporary assignment. - Grant 5 - 0.

8. SER John R. Phillips v. Thomas McBride, Warden - 072952 - Continued to 4/16/08.

9. Douglas R. Jackson v. Power Mountain Coal Company, et al. - 072598 - Continued.