2. Angela L. Lang v. Robert S. Derr, No. 010887. Plaintiff appeals from the circuit court’s final order ruling that a contract to sell the estate of plaintiff’s father was valid.

3. State of West Virginia v. Ronald Adams, No. 010889. Defendant appeals his 90-year sentence for aggravated robbery.

 

4. State of West Virginia v. Stephen M. Luci, No. 010901. Defendant appeals from his convictions of first degree sexual assault and sexual abuse of a child by a custodian for which he received a combined sentence of 15 to 35 years.

5. Gary Shouldis v. Board of Education of Jackson County, No. 010902. Petitioner appeals from the circuit court’s order affirming the decision of Grievance Board denying petitioner’s grievance concerning the termination of his extracurricular contract without notice or an opportunity for hearing.

6. State of West Virginia v. Morgan Shepherd, No. 010903. Defendant appeals from his conviction of first degree murder for which he was sentenced to life in prison without mercy.

 

Justices Starcher and Albright would grant the defendant’s petition and would have this matter fully briefed and set on the argument docket. They state, as grounds for this position, as follows:

We believe that the Court should give full appellate review, with full briefing and oral argument, to all cases involving life imprisonment without the possibility of parole. Our reasons are somewhat overlapping.

First, without full state court appellate review, such criminal convictions do not have any sort of "stamp of approval" or presumption of correctness, in any subsequent or collateral proceeding -- for example, in federal or state habeas corpus. As an example, this Court recently refused to review a life-with-no-parole murder conviction. Then, the Supreme Court of the United States reversed this Court, saying that the conviction may have violated established constitutional law, and remanded the matter for further proceedings. Flippo v. W.Va., 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999). (Justice Starcher notes that he voted not to review this case, a vote of which he now repents.) The Supreme Court noted that the last court to rule on the merits of the case was the Circuit Court of Fayette County. We find this rather embarrassing -- to have a West Virginia trial court’s errors fixed by the "the U.S. Supremes" -- without this Court even taking a look at the issues first. Moreover, the day may well come when the Supreme Court of the United States (or even this Court) requires full appellate review of such cases as a matter of due process. We would support such a position. If that day comes, this Court does not want to find itself in a position of having to deal with whether such a ruling might be retroactive.

Second, merely looking at the appeal petitions in these cases means we do not get the benefit of the West Virginia Attorney General’s review -- as is ordinarily the case when a petition is accepted, briefed, and argued. When there is a full review, the Attorney General’s office will often recognize and acknowledge clear error when it is present -- although they may argue that such error was harmless. Simply put, Attorney General involvement means better quality briefs and argument, and improves the quality of justice.

Third, full appellate review assures that important issues in these "life without the possibility of parole" cases are brought to the attention of the bar generally, and can be followed by interested lawyers. When cases are briefed and argued and an opinion is to be written, amici or other voices may ask to be heard on important issues.

 

Fourth, our criminal jurisprudence is better reasoned and developed when such cases are briefed and dealt with in an opinion. Where we uphold a conviction (as we do in most cases), opinion writing forces the Court to consciously recognize and articulate its reasoning. Additionally, as one of three co-equal branches of government, we have a duty to reflect on what is going on in our court system and our broader society, that leads to such severe criminal sentences.

 

Fifth, when the Court accepts life without the possibility of parole cases for full briefing and argument, we can (in appropriate cases) appoint new counsel, so that exceptionally important issues will be properly presented. It is apparent to us that some defendants do not have their issues well raised due to inexperienced counsel preparing their petitions. Regrettably, but inescapably, the quality of an appeal petition can make some difference as to whether or not we accept a case for full argument.

 

Finally, we should have these cases argued and briefed because the consequences of error at trial are so extreme. In Illinois, since the reinstatement of the death penalty, as many people as have been executed have been freed from death row, due to trial errors. Here in West Virginia, we know all about the Fred Zain case. We know that trials can be unfair, and criminal convictions can be downright wrong. Where the sentence is one that deprives a person even of the possibility of parole, simple fairness means that we must take the necessary steps to try to detect any unfairness in the proceedings that led to the sentence.

 

7. Abraham Doe, et al. v. WV DHHR, No. 010904. Petitioners, plaintiffs below, appeal from the circuit court’s award of summary judgment in favor of all defendants based upon statutory immunity. Claims against the prosecutors were previously dismissed on absolute immunity.

8. State of West Virginia v. Jesse Lee Swims, No. 010917. Defendant appeals from his conviction for conspiracy and aggravated robbery for which he was sentenced to 120 years.

 

9. State of West Virginia v. Ricky Wayne Gullett, No. 010927. Petitioner appeals from his convictions for kidnaping without a recommendation of mercy, second degree of sexual assault (four counts ), sexual assault of a spouse (22 counts), wanton endangerment, and malicious wounding.

 

Justices Starcher and Albright would grant the defendant’s petition and would have this matter fully briefed and set on the argument docket. They state, as grounds for this position, as follows:

We believe that the Court should give full appellate review, with full briefing and oral argument, to all cases involving life imprisonment without the possibility of parole. Our reasons are somewhat overlapping.

First, without full state court appellate review, such criminal convictions do not have any sort of "stamp of approval" or presumption of correctness, in any subsequent or collateral proceeding -- for example, in federal or state habeas corpus. As an example, this Court recently refused to review a life-with-no-parole murder conviction. Then, the Supreme Court of the United States reversed this Court, saying that the conviction may have violated established constitutional law, and remanded the matter for further proceedings. Flippo v. W.Va., 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999). (Justice Starcher notes that he voted not to review this case, a vote of which he now repents.) The Supreme Court noted that the last court to rule on the merits of the case was the Circuit Court of Fayette County. We find this rather embarrassing -- to have a West Virginia trial court’s errors fixed by the "the U.S. Supremes" -- without this Court even taking a look at the issues first. Moreover, the day may well come when the Supreme Court of the United States (or even this Court) requires full appellate review of such cases as a matter of due process. We would support such a position. If that day comes, this Court does not want to find itself in a position of having to deal with whether such a ruling might be retroactive.

 

Second, merely looking at the appeal petitions in these cases means we do not get the benefit of the West Virginia Attorney General’s review -- as is ordinarily the case when a petition is accepted, briefed, and argued. When there is a full review, the Attorney General’s office will often recognize and acknowledge clear error when it is present -- although they may argue that such error was harmless. Simply put, Attorney General involvement means better quality briefs and argument, and improves the quality of justice.

 

Third, full appellate review assures that important issues in these "life without the possibility of parole" cases are brought to the attention of the bar generally, and can be followed by interested lawyers. When cases are briefed and argued and an opinion is to be written, amici or other voices may ask to be heard on important issues.

 

Fourth, our criminal jurisprudence is better reasoned and developed when such cases are briefed and dealt with in an opinion. Where we uphold a conviction (as we do in most cases), opinion writing forces the Court to consciously recognize and articulate its reasoning. Additionally, as one of three co-equal branches of government, we have a duty to reflect on what is going on in our court system and our broader society, that leads to such severe criminal sentences.

 

Fifth, when the Court accepts life without the possibility of parole cases for full briefing and argument, we can (in appropriate cases) appoint new counsel, so that exceptionally important issues will be properly presented. It is apparent to us that some defendants do not have their issues well raised due to inexperienced counsel preparing their petitions. Regrettably, but inescapably, the quality of an appeal petition can make some difference as to whether or not we accept a case for full argument.

 

Finally, we should have these cases argued and briefed because the consequences of error at trial are so extreme. In Illinois, since the reinstatement of the death penalty, as many people as have been executed have been freed from death row, due to trial errors. Here in West Virginia, we know all about the Fred Zain case. We know that trials can be unfair, and criminal convictions can be downright wrong. Where the sentence is one that deprives a person even of the possibility of parole, simple fairness means that we must take the necessary steps to try to detect any unfairness in the proceedings that led to the sentence.

10. Jeffrey Marlin, Sr., et al. v. Wetzel County Board of Education, No. 010928. The petitioner, Wetzel County Board of Education, appeals from a summary judgment entered in the Circuit Court of Wetzel County in favor of the respondents, Commercial Union Insurance Company and its subsidiary, Northern Assurance Company of America. The Circuit Court held that the respondents had no duty to provide coverage for, or defend, the petitioner with regard to the claims of workers who were exposed to asbestos while renovating a school. See, Marlin v. Bill Rich Construction, 198 W.Va. 635, 482 S.E.2d 620 (1996). The petitioner contends, inter alia, that the construction contract between the petitioner and the general contractor was an "insured contract" within the meaning of the respondents’ insurance policies and that, therefore, the petitioner was entitled to coverage and to a defense.

 

11. Carol Lockhart, Administratrix v. Airco Heating and Cooling, Inc., No. 010929. In this wrongful death action, the petitioner, Carol Lockhart, Administratrix, appeals from a summary judgment entered in the Circuit Court of McDowell County in favor of the respondent, Airco Heating and Cooling, Inc. The petitioner alleged that her husband, Shirley Lockhart, whose health was fragile, caught pneumonia and died because the respondent’s workers, in installing a heat pump system in the petitioner’s home, failed to follow the petitioner’s directions to keep the home warm while working. In granting summary judgment the Circuit Court held that the respondent owed no duty to the petitioner with regard to the decedent’s health. The petitioner contends that the record contains genuine issues of material fact and that, therefore, summary judgment was inappropriate.

 

12. Westfield Insurance Company v. Triple Crown Flooring, Inc., No. 010933. The petitioner, Triple Crown Flooring, Inc., appeals from an order entered in the Circuit Court of Monongalia County denying the petitioner’s request for Rule 60(b) relief from the entry of a default in favor of the respondents, Westfield Insurance Company and Culton Construction, Inc. (damages have yet to be ascertained). The petitioner contends, inter alia, that the Circuit Court committed error in not considering the standards concerning the propriety of a default judgment set forth in Parsons v. Consolidated Gas Supply Corporation, 256 S.E.2d 758 (W.Va. - 1979).

13. State of West Virginia v. Charles Shirley, Jr., No. 010937. The petitioner, Charles Shirley, Jr., challenges his convictions in the Circuit Court of Jefferson County of two counts of possessing a vehicle knowing or having reason to know that the vehicle was stolen and of one count of driving while his driver’s license was suspended. The petitioner contends, inter alia, that the evidence at trial concerning possession of the vehicles was insufficient to support the convictions.

 

14. Robyn Endicott v. Sam Hager d/b/a Hager’s Auto Sales, Inc., No. 010938. The petitioners, Robyn Endicott and David Bellamy, Jr., appeal from an order entered in the Circuit Court of Kanawha County denying their motion to reconsider the amount of attorney fees awarded to them. The petitioners prevailed upon their claim that the respondent, Sam Hager d/b/a Hager’s Auto Sales, Inc., sold them a defective automobile, and the Circuit Court awarded the petitioner’s $14,400 in attorney fees. Asserting that they were entitled to an amount in excess of $41,000 in attorney fees, the petitioners contend that the Circuit Court committed error in concluding that there should be "proportionality" between the verdict and the amount of attorney fees awarded.

15. Bruce D. Stewart v. Leslie D. Stewart, No. 010919. In this divorce action, the petitioner, Leslie D. Stewart, appeals from an order entered in the Circuit Court of Ohio County affirming the recommendations of the Family Law Master with regard to the division of property. At issue is the value of Professional Computer Systems, Inc., a business incorporated by the respondent husband, Bruce D. Stewart. The petitioner contends, inter alia, that the Circuit Court and FLM committed error in awarding her less than half of the stock in PCS.

 

16. Howard W. Sheppard and Edna Sheppard v. Elkay Mining Company, No. 010954. In this deliberate intent action, the petitioner-employer, Elkay Mining Company, appeals from an order of the Circuit Court of Logan County amending upward a judgment previously entered in favor of the respondents, Howard W. Sheppard and Edna Sheppard. In amending the judgment, the Circuit Court struck a jury finding that Mr. Sheppard was 30% at fault for the accident and, in addition, ruled that the petitioner was not entitled to a stipulated off-set for workers’ compensation benefits to be paid to Mr. Sheppard in the future. The petitioner contends that those amendments to the judgment were erroneous and, also, that the respondents failed to prove all of the requirements for a deliberate intent action.

 

Justice Maynard would have granted Elkay Mining Company’s petition for appeal. He states, as grounds for this position as follows:

 

The order of the Circuit Court of Logan County improperly ruled that Elkay Mining was not entitled to a stipulated offset for workers’ compensation benefits due to be paid to the respondent, Howard Sheppard.

 

By refusing this petition, the majority ignores and effectively strikes down W.Va. Code § 23-4-2(b) (1944) which provides that an employee has a deliberate intention cause of action against his employer "for any excess of damages over the amount received or receivable under this chapter."

 

The circuit court clearly erred in ruling that Elkay is not entitled to a stipulated offset for workers’ compensation benefits due to be paid to Mr. Sheppard.

17. Viola Brown Lauderdale v. Michael Dean Neal, No. 010961. The petitioner, Viola Brown Lauderdale, appeals from an order entered in the Circuit Court of Kanawha County awarding her $100 of a $100,000 insurance settlement concerning the death of her husband. Respondent Robert Parks, allegedly without notice to the petitioner, was appointed Administrator of the Estate of the petitioner’s husband and negotiated the settlement, most of which was distributed to the decedent’s siblings. According to the petitioner, the record demonstrates that she was entitled to the entire amount of the settlement proceeds.