Converted WP file july6w

WRIT CONFERENCE

THURSDAY, JULY 6, 2000

1.    In the Matter of Shelby and December S., No. 001072 (filed 5-17-00).
    Father appeals the denial of an improvement period and the termination of his parental rights.
Refuse 5-0

2.    In the Matter of Shelby and December S., No. 001073 (filed 5-17-00).
    Mother appeals the denial of an improvement period and the termination of her parental rights.
Refuse 5-0

3.    In the Matter of Dinah D. and Amanda C., No. 001302 (filed 6-16-00).
    Mother appeals the termination of her parental rights.
Refuse 4-1
(Starcher, J.)

4.    In the Matter of William, Steven, Sean, James, and Samantha S., No. 001306
    (filed 6-21-00). Mother appeals the termination of her parental rights.
Refuse 5-0

5.    State v. David Fortney, No. 001256 (filed 6-8-00).
    Fortney appeals his conviction for possession with intent to deliver and conspiracy. He was sentenced to two consecutive terms of 1 - 5 years.
Refuse 5-0

6.    State v. Paul May, No. 001384 (filed 6-30-00).
    May appeals his conviction for battery. He was sentenced to six months in jail.
Refuse 5-0

7.    Elizabeth Palmer v. Francis Whelan, No. 000829 (filed 4-25-00).
    Francis Whelan, pro se, appeals a Raleigh County Order which denies his Motion for Relief from Judgment pertaining to a 12/8/94 Order entered in Bexar County, Texas. Whelan sought relief from judgment in West Virginia, arguing that the Texas court had no subject matter jurisdiction in the case.
Refuse 4-1
(McGraw, J.)

8. Energy Resources, Inc. v. James Wellman and Grace Wellman, No. 001377
(filed 6-30-00). Energy Resources, defendant below, appeals the grant of summary judgment in favor of the Wellmans, plaintiffs below.

9. Retail Designs, Inc. v. WV Div. Of Highways, No. 001097 (filed 5-19-00).
Retail Designs sought and obtained an order requiring the Division of Highways to close an access road connecting US Route 19 to the Super Wal-Mart in Summersville, in order to remove a burden and servitude that the road had placed on Retail Designs' property. The Division of Highways appeals.

Refuse 3-2
(Maynard, C. J. & Scott, J.)

10.    SER Don. R. Weekley v. Hon. Ronald E. Wilson-Judge, No. 001226 (filed 6/1/00).
    Weekley, pro se seeks a writ of mandamus seeking to compel Judge Wilson to (1) procure a copy of his plea bargain transcripts of all criminal cases in Brooke County, (2) to remand this matter to the Circuit Court for re-sentencing in order to toll the anew the appeal time period, (3) to disqualify counsel of record, John R. Yeager, and (4) appoint new counsel. Weekley also requests that this Court promptly issue an Order and Rule of Mandamus ordering respondents to take immediate action and to grant further appropriate relief.
Grant 5-0

11.    SER Don R. Weekley v. Fred Risovich-Judge, No. 001225 (filed 6/1/00).
    Weekley, pro se, seeks a writ of mandamus seeking (1) to compel Judge Risovich, from the Circuit Court of Hancock, to procure trial and plea bargain transcripts of all criminal cases in Hancock and Brooke Counties; (2) remand this matter back to the Circuit Court of Hancock for re-sentencing of petitioner in order to toll anew the appeal time period in both cases, to disqualify counsel of record, John R. Yeager, Jr., and (3) appoint new counsel to represent him in the investigation, research and filing of a petition for appeal in both cases.
Grant 5-0

12.    SER William Bert McCaleb, Jr. v. Painter, Warden, No. 001312 (filed 6/21/00).
    McCaleb, pro se, seeks a writ of mandamus seeking to compel Howard Painter to allow him to undergo a DNA test by an independent laboratory selected by the Supreme Court of Appeals. Petitioner claims that his case was adversely affected by Fred Zain's testimony and his contact with the evidence.
Grant 5-0
(returnable to circuit court for hearing)

13. SER Ronald K. Fields v. Howard Painter-Warden, No. 001247 (filed 6/7/00).
Fields, pro se, seeks a writ of prohibition prohibiting the Respondents, the Honorable John Hey and the Honorable Paul Zakaib, Jr., Chief Judge from enforcing the Judgement embodied in his Sentencing/Disposition Order entered on 9/29/86, in which petitioner was sentenced to life with mercy. Petitioner asserts that the Trial Court failed to give him required cautionary warnings prescribed by the provisions of the Rule 11(e)(2) of the WV Rules of Criminal Procedure.

Grant 4-1
(Maynard, C. J.)
(Treat as mandamus for hearing in front of judge zakaib)

14.    SER Gary K. Davis v. James Liller-Superintendent, No. 001238 (filed 6/5/00).
    Davis, pro se, seeks a writ of habeas corpus alleging that the Circuit Court of Cabell County, the Sentencing Judge and the West Virginia Parole Board violated the principles of Double Jeopardy Clause.
Refuse 5-0

15.    State of West Virginia v. Keith A. Somerlot, Supreme Court, No. 001010 (filed 5/8/00).
    Petitioner Somerlot asserts that the court improperly denied his Motion To Dismiss despite the fact that more than 180 days elapsed since the Prosecuting Attorney's office received Somerlot's request for final disposition of the pending charges against him. Petitioner asserts that he should not be denied the application of the Agreement on Detainers because the Marion Correctional Institution neglected to send petitioner's request for a final disposition of all his charges to the Circuit Clerk of Preston County.
Grant 3-2
(Davis, J. & Maynard, C. J. )

16.    State of West Virginia v. Brian H. Cunningham, No. 000502 (filed 3/2/00).
    Cunningham asserts that the Fayette County Circuit Court committed the following errors (1) It was error for the Circuit Court to grant defendant's motion for a new trial when the state, during voir dire, repeatedly asked the same instructive question over the sustained objections of defendant's counsel; (2) It was error for the Circuit Court to grant defendant's motion for a continuance when the defendant alleged he had adequate contact with his counsel; (3) It was error for the Circuit Court not to utilize the defendant's verdict form, which unlike the state's verdict form, placed the “not guilty” line first, when counsel for the defendant objected to the state's verdict form.

Refuse 5-0

17.    State of West Virginia v. Derrick Greathouse, No. 000993 (filed 5/4/00).
    Greathouse asserts that the Circuit Court erred (1) when it gave the instruction that permitted the jury to presume malice from the fact that the victim was struck by the Appellant's vehicle; (2) when it imposed a sentence of 30 years upon Greathouse in violation of Article 2 Section 5 of the West Virginia Constitution; and (3) when it refused to grant the Appellant's motion for judgement of acquittal based upon Rule 29 in the WV Rules of Criminal Procedure.
Refuse 5-0

18.    State of West Virginia v. Jon Edward Smith, No. 001339 (filed 6/27/00).
    Petitioner, Jon Edward Smith, appeals Judge Hill's denial of Motions for Probation or Alternative Sentencing and a subsequent Motion for Reconsideration of Sentence.
Refuse 5-0

19.    State of West Virginia v. Kevin Fields, No. 001274 (filed on 6/13/00).
    Petitioner asserts that the Mercer County Circuit Court erred in refusing to give defendant's proposed jury instructions because they were warranted by the facts of the case.
Refuse 5-0

20.    In Re: Samantha M., No. 001386 (filed 6/30/00).
    Maternal grandparents appeal the Wood County Circuit Court's Order, which removed Samantha M. from their custody and placed her with her cousin. The maternal grandparents seek permanent custody of the child.
Refuse 5-0

21.     In Re: Tracey Lynn S. and Richard S., No. 001348 (filed 6/27/00).
    Father and Mother appeal the termination of their parental rights, asserting that the DHHR failed to provide them with a meaningful improvement period.
Refuse 5-0

22.     In the Matter of John W., No. 001298 (filed 6-16-00).
    Father appeals the termination of his parental rights, claiming that the circuit court erred in conducting the dispositional hearing in the absence of the Father.
Refuse 5-0

23.      Raymond Kingery and Janice Kingery v. Steel of W.Va., Inc. and Larry Gue, No.     000061
    Kingery appeals the circuit court order granting summary judgement to the defendants,     claiming that the court erred in that the Petitioner had established a prima facie case as to most claims and there where genuine issues of material trial worthy facts.
Refuse 4-1
(McGraw, J.)

24. Shelia Crook v. Showplace Cinemas, Inc. , No. 000528 (filed 3-8-00).
Crook appeals the jury verdict in favor of the defendant in the underlying action for damages resulting from negligence and also appeals the court order denying Crook's motion for a new trial. Crook claims that the trial court erred in refusing a jury instruction, in limiting the scope of inquiry during voir dire, and abused its discretion in denying Crook's motion for a new trial.

Refuse 5-0

25.     David P. Nuce v. Franklin Sypolt, No. 000532 (filed 3-8-00).
    Sypolt appeals the circuit court order finding that Sypolt's use of a roadway on Nuce's property was sufficiently distinct from the use of same by the general public so as to give rise to a private claim of right. Sypolt claims that the circuit court erred by improperly considering as conclusive factors, circumstances and usage which would not have been sufficient to place the then landowner on notice of an adverse claim of right during the 10 year period of prescription.
Refuse 5-0


26.     Tiffany Epp v. Major General Otis Cox, No. 000569 (filed 3-15-00).
    Epp appeals the circuit court order granting Respondent's motion for summary judgment, finding that Epp was sentenced to the custody of the Dept. Of Corrections after the 1999 legislative amendment to W.Va. Code § 62-13-5 became effective. Epp claims that the 1999 legislative amendment to W.Va. Code § 62-13-5 did not apply to her in this case because the amendment became effective after her sentencing.
Refuse 3-2
(Starcher, J. & McGraw, J. )

27.      Nathan Peters and Jack Hoffman v. The County Commission of Wood County,
    No. 000593 (filed 3-20-00).
    Peters and Hoffman appeal the circuit court order dismissing their complaint seeking injunctive and other relief from the Wood County Commission for alleged violations of the Open Governmental Proceeding Act arising from three 1997 meetings of the Commission. Previously, the circuit court had granted summary judgment in favor of the County Commission, which Peters and Hoffman appealed. This Court granted review, reversed the order granting Summary Judgment, and remanded with direction to the circuit court to hold in camera review of the communications between the Commission and its counsel during the challenged meetings in order to determine if the meetings were properly closed due to attorney/client privilege.
Grant 5-0

28.      State of West Virginia v. Michael Gross, II, No. 000313 (filed 2-10-00).
    Gross appeals the circuit court's denial of his Motion to Dismiss the motion to revoke his probation, claiming that the Statute that Gross violated is unconstitutionally overbroad and vague, and that there is not clear and convincing evidence to support the court's finding that Gross violated his probation.
Refuse 5-0

29. State of West Virginia v. Brando J. Hurt, No. 000519 (filed 3-7-00).
Hurt appeals his conviction of First Degree Murder, without mercy, claiming that the circuit court erred in granting the State's motion for a bifurcated trial, in allowing unduly prejudicial 404(b) evidence at the sentencing stage, in not suppressing post-Miranda statements made by the petitioner, and in not granting a new trial when there was insufficient evidence to support a guilty verdict.

Accept

30. State of West Virginia v. Garland Leonard, No. 000604 (filed 3-23-00).
Leonard appeals his conviction of DUI, Second Offense and Driving While Revoked for DUI, First Offense, claiming that because the convictions are for misdemeanors and the indictment was delayed beyond the one year time bar under W.Va. Code §61-11-9, the convictions should be set aside.
Grant 5-0

31. State of West Virginia v. Luther Hill, III, No. 000658 (filed 3-29-00).
Hill appeals his conviction of Unlawful Assault and Nighttime Burglary, claiming that the circuit court erred in allowing evidence of Hill's homosexual relationship with someone other than the alleged victim, that the investigating officer gave false testimony to the grand jury, and that there was insufficient evidence to support the conviction.

Refuse 5-0

32. State of West Virginia v. Jason E. Curtiss, No. 000670 (filed 3-30-00).
Curtiss appeals his conviction of Child Abuse Causing Injury, claiming that the trial court erred in failing to grant his Motion for Judgment of Acquittal made at the close of the State's case-in-chief and renewed at the close of all evidence, and in refusing to allow Det. Michael Wright to give opinion testimony to the effect that he did not believe that Defendant intentionally hurt his son.

Refuse 3-2
(Scott, J. & McGraw, J. )

33. State of West Virginia v. Connie Jeanne Sink, No. 000760 (filed 4-12-00).
Sink appeals her conviction of First Degree Murder with Mercy, claiming that the court erred in that there was insufficient evidence to support the conviction, in that the indictment only charged the elements of Second Degree Murder, and in allowing the State to introduce evidence and statements made by the Defendant while being held at the State Police barracks before she was taken to the Magistrate.

Refuse 5-0