Writ Conference

Thursday, January 14, 2010

Defendant, convicted of First Degree Sexual Assault by jury, appeals circuit court order sentencing him to serve 25-100 years in prison, arguing evidentiary errors at trial dealing with the use of Rule 404(b) testimony, the unconstitutionality of convicting statute (61-8B-3), and cumulative error. Refuse 5 - 0

Defendant, convicted by jury of eight counts of 3rd degree sexual assault and one count of 2nd sexual assault, appeals circuit court order granting summary judgment in favor of State of West Virginia on his underlying habeas corpus petition alleging ineffective assistance of trial and prior habeas counsel for failing to secure an expert opinion that he could not maintain an erection due to huffing of toluene. Refuse 5 - 0

Defendant, convicted by jury of two counts of Delivery of a Schedule II Controlled Substance and by guilty plea to one count of Possession of a Controlled Substance with Intent to Deliver and to an information alleging a prior federal felony conviction, appeals circuit court order sentencing him to consecutively serve two terms of 1-15 years each, with a two-year enhancement for each of those terms due to a prior federal felony conviction. Refuse 5 - 0

Defendant, convicted by guilty plea of Fraudulent Schemes, appeals circuit court order sentencing him to serve 1-10 years in prison, arguing that imposition of the prison sentence is cruel and unusual punishment as it is disproportionate to his actions. Refuse 5 - 0

Defendant, convicted by guilty plea of two counts of Incest, appeals circuit court order sentencing him to serve two consecutive 5-15 year prison terms, arguing that the sentence was an error given the circumstances. Refuse 5 - 0

Defendant, convicted by guilty plea of Attempt to Commit Malicious Assault and Fleeing, appeals circuit court order sentencing him to serve 1-3 years in prison and 1 year in regional jail consecutively, arguing that his due process rights were violated by ineffective assistance of trial counsel and failure of the prosecutor to properly investigate and provide defense with adequate discovery. Refuse 5 - 0

Defendant, convicted by guilty plea of Obtaining Property by False Pretenses and sentenced to three years probation with restitution, appeals circuit court order revoking his probation and sentencing him to 1-10 years in prison, arguing that financial hardship prevented him from meeting the terms of his probation. Refuse 5 - 0

8. State of West Virginia v. Ferlin Jay Heavener , No. 091807 (Filed 12/10/09)

Defendant, convicted by guilty pleas of 20 counts of Third Degree Sexual Assault and 5 counts of Delivery of a Controlled Substance, appeals circuit court order denying his motion for resentencing for appeal purposes. Grant 5 - 0 & Remand for appointment of appellate counsel and resentencing to restart appeal time

Petitioner appeals circuit court order denying his habeas corpus petition. Refuse 5 - 0

10. Sherry D. Kanode v. Michael J. Kanode, Sr., No. 091085 (Filed 7/20/09)

Husband in divorce action appeals circuit court order denying his appeal of Family Court Order. Refuse 5 - 0

Father in child support case appeals circuit court order affirming Family Court order attributing gross income of $26,000 to Father. Refuse 5 - 0

12. In the Matter of: James Timothy F., No. 091494 (Filed 9/30/09)

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

13. In the Matter of: Gabriel W., No. 091540 (Father’s Appeal) (Filed 10/9/09)

Father appeals circuit court orders adjudicating child as abused and neglected by him and terminating Father’s parental rights. Refuse 5 - 0

14. In the Matter of: Gabriel W., No. 091541 (Mother’s Appeal) (Filed 10/9/09)

Mother appeals circuit court orders adjudicating child as abused and neglected and terminating her parental rights. Refuse 5 - 0

15. In the Matter of: Joshua B., No. 091661 (Filed 10/9/09)

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

16. In the Matter of: Donnie W., II, Danielle W. and Jonna W., No. 091563 (Filed 10/19/09)

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

17. In the Matter of: Jeremy J. and Ryan B., No. 091581 (Filed 10/21/09)

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

18. In the Matter of: Dominick C. and McKenzie Grace C., No. 091606 (Filed 10/26/09)

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

19. In the Matter of: Dominick C. and McKenzie Grace C., No. 091781 (Mother’s Appeal) (Filed 12/3/09)

Mother appeals circuit court order accepting her voluntary relinquishment of parental rights. Refuse 5 - 0

20. In the Matter of: Savanna L. and Kayla L., No. 091621 (Filed 10/29/09)

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

21. In the Matter of: Jolian Andrew H., No. 091652 (Filed 11/4/09)

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

22. In the Matter of: Dezeria P., No. 091664 (Mother’s Appeal) (Filed 11/9/09)

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

23. In the Matter of: Dezeria P., No. 091665 (Father’s Appeal) (Filed 11/9/09)

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

24. In the Matter of: Owen S., No. 091687 (Filed 11/16/09)

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

25. In the Matter of: Cearra, David, Brooklyn, Leelah and Jordan P., No. 091732 (Filed 11/23/09)

Mother appeals circuit court order terminating her parental rights and not granting post-termination visitation. Refuse 5 - 0

26. In the Matter of: Cherokee L. B., Sky M. B. and Marcus A., No. 091733 (Filed 11/23/09)

Mother appeals circuit court order ending post-termination visitation. Refuse 5 - 0

27. In the Matter of: Ruby M., No. 091775 (Filed 12/3/09)

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

28. In the Matter of: Kaitlyn C., Arianna S., Christopher C., Ryan C. and Madysen C., No. 091811 (Filed 12/10/09)

DHHR appeals circuit court order granting post-adjudicatory improvement periods to parents, following adjudication of child as physically abused in parents’ custody, who have not admitted abuse nor identified the perpetrator. Grant 4 - 1 (Ketchum, J.)

29.  State of West Virginia v. Gregory Huggans, No. 091495 (Filed 9/30/09)

Petitioner challenges his conviction and sentence for third offense domestic battery, arguing that the court erred in not granting his motion for acquittal and that he should have been sentenced to probation. Refuse 5 - 0

Petitioner appeals his sentence, arguing that he should have been granted probation or a reduction in sentence. Refuse 5 - 0

Petitioner/Inmate files this original jurisdiction writ of habeas corpus alleging 23 issues/"questions presented." Defer

Petitioner presents this as a petition for writ of mandamus to compel his attorney to file a petition for writ of habeas corpus on his behalf. However, since this Court has no such power (as appointed counsel is not a public official), the petition is being treated as an original jurisdiction for writ of habeas corpus in which the allegation is ineffective assistance of counsel. Grant 5 - 0 & Returnable below with instructions to attorney to file amended Petition for Writ of Habeas Corpus within 3 months

Petitioner seeks the issuance of a writ of habeas corpus in this original jurisdiction matter. Grant 5 - 0 & Returnable below for appointment of counsel to file Petition for Writ of Habeas Corpus 

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

35.  SER Charles E. Walls v. Logan County Circuit Court, No. 091448 (Filed 9/23/09)

Petitioner seeks to compel the lower court to rule on his petition for writ of habeas corpus and his motion for production of transcripts. Grant 5 - 0 Unless sooner mooted by entry of order disposing of action

Petitioner seeks to compel the Commissioner of the DOC to transfer him from a Regional Jail to a DOC facility. Refuse 5 - 0

Petitioner seeks to compel the Commissioner of the DOC to transfer him from a Regional Jail to a DOC facility. Refuse 5 - 0

Petitioner files this petition for writ of mandamus, seeking to compel the lower court to hold an omnibus hearing regarding a petition for writ of habeas corpus filed below, as ordered by this Court in 2001. Refuse 5 - 0

Petitioner/Mother appeals the termination of her parental rights. Defer

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

Petitioner/Grandmother appeals the denial of her petition for custody of her grandchildren following the termination of the children’s parents’ parental rights. Refuse 5 - 0

Petitioner/Mother appeals the termination of her parental rights, arguing that the court erred in making additional findings of fact and conclusions of law based on evidence gleaned after the disposition hearing. Refuse 5 - 0

Petitioner/Father appeals the termination of his parental rights. Refuse 5 - 0

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

Petitioner/Father appeals his adjudication as a neglectful parent, the denial of his request for an improvement period, and the termination of his parental rights. Refuse 5 - 0

46.  In the Matter of: Faith C., Sophia S., and Madelyn S., No. 091497 (Filed 9/28/09)

Petitioners/Children, through the GAL, appeal the court’s decision to not terminate parental rights, but to grant an improvement period instead. Grant 4 - 1 (Ketchum, J.)

47.  In the Matter of: Ethan D. and Trynitee, No. 091493 (Filed 10/1/09)

Petitioner/Mother appeals the termination of her parental rights and the denial of post-termination visitation. Refuse 4 - 1 (Ketchum, J.)

Petitioner/Father appeals the termination of his parental rights. Refuse 5 - 0

49.  In the Matter of: Kelsey Dawn C. & Jonathan H., No. 091509 (Filed 10/2/09)

Petitioner/Mother appeals the termination of her parental rights, arguing that she should have been granted a post-dispositional improvement period and that the court failed to make specific findings of fact and conclusions of law in its order. Refuse 5 - 0

Petitioner/Father appeals the termination of his visitation rights as granted through a stipulated disposition, arguing that there was no showing that such was in the best interest of the child or interfered with the child’s permanency. Refuse 5 - 0

Petitioner/Mother appeals the termination of her parental rights, arguing that the lower court erroneously applied past precedent to find that her intellectual capacity prevented her from being able to parent her child. Refuse 5 - 0

Petitioner/Father appeals the lower court’s order modifying a custody arrangement between Petitioner/Father and his ex-wife and ordering that all of Petitioner/Father’s visits with his children be supervised until such time as he experiences a change in circumstances. Refuse 5 - 0

53.  In the Matter of: Sidney Rae M. and Kirsten Paige M., No. 091392 (Filed 11/3/09)

Guardian ad litem appeals the lower court’s order determining that the interest of half-siblings to be placed together is superior to a child’s right to be placed with biological relatives. Refuse 5 - 0