West Virginia Supreme Court of Appeals 

WRIT CONFERENCE

THURSDAY, June 14, 2001

1. State of WV v. James Daniel Nobels, No. 010685 (filed 4/16/01)
Petitioner appeals his conviction of wanton endangerment involving a firearm. Petitioner asserts that his sentence of two to ten years was excessive based upon the plea agreement, the facts of the case, and the petitioner’s health. Petitioner requests that this case be remanded for a new sentencing hearing in order to present witnesses and evidence to support his request for probation.

2. State of WV v. Michael Vance, No. 010689 (filed 4/12/01)
Petitioner requests that this case be remanded for a new sentencing hearing in order to present witnesses and evidence to support his request for probation. Petitioner asserts the following assignments of error; (1) petitioner’s right to a timely pre-sentence report was violated; (2) the trial court erred in failing to state the reasons for the denial of probation in the sentencing order as required by W.Va. Code § 62-12-8; (3) the court abused its discretion in failing to grant the petitioner probation.

 

3. In the Matter of Bethany T., No. 010916 (filed 5/21/01)
The mother, Dana S., appeals the Marion County Circuit Court’s Order terminating her parental rights to her daughter Bethany T. Petitioner asserts the following assignments of error: (1) The DHHR failed to make a reasonable effort to preserve and reunify petitioner’s family and (2) The circuit court erred in failing to grant a post-dispositional improvement period.

 

4. In the Matter of Erin B., No. 010856 (filed 5/11/01)
The State appeals Judge Henning’s Order wherein the Court held that the Respondent parents had successfully completed their post-adjudicatory improvement period, and the Order from the hearing on March 12, 2001, wherein the Court ruled that the Respondents had participated and shown improvement in their improvement period, and denied the Department and the Guardian ad litem’s request for termination of parental rights. The State asserts the following: (1) the court’s finding that the parents had fully participated in the improvement period is not in the best interests of the children, contrary to the evidence and is an abuse of discretion; (2) the court’s finding that the parents had shown substantial improvement is not in the best interests of the children, contrary to the evidence and is an abuse of discretion; (3) the court’s finding that the improvement period was successful is not in the best interests of the children, contrary to the evidence, and is an abuse of discretion; (4) the court’s denial of the Department’s recommended disposition (termination of parental rights) is not in the best interests of the children and is reversible error because of the parent’s refusal to acknowledge abuse and neglect;(5) The "polar star" in child abuse cases is the best interest of the children. The court in this case ignored that standard by ordering the reunification of the family based upon the interpretation of a strictly legal proposition; that the Department gave the respondents an improvement period when it knew or should have known the parents could not successfully complete. The Court did not based its decision denying termination upon the best interest of the children, and therefore erred as a matter of law.

5. SER Daney L. Marcum v. William S. Haines, No. 003021 (filed 2/17/00)
Marcum, pro se, seeks a writ of mandamus seeking to compel his release from Huttonsville Correctional Center. Marcum contends that this continued confinement is illegal and unconstitutional. Marcum alleges the following assignments of error: (1) ineffective assistance of counsel; (2) The State failed to meet the burden of proof required for a conviction; (3) The evidence used at trial violated his rights; (4) The trial court denied Marcum a psychiatric evaluation; (5)The indictment is in direct violation of the Due Process Clause; (6) The custodial interrogation by the police officers violated his Fifth Amendment right to have counsel present; (7) The trial court wrongly denied petitioner change of venue; (8) The trial court erred in failing to apply the prompt presentment rule; (9) The trail court and the prosecution permitted perjured testimony and unreliable witnesses to testify in order to obtain an indictment and to convict him; (10) The trial court erred in sentencing petitioner in a disparate manner from the co-defendant, Ermil Newsome, which constitutes Cruel and Unusual Punishment.

 

6. SER David Fox v. Howard Painter, Warden, No. 010409 (filed 2/23/01)
Fox, pro se, seeks a writ of mandamus seeking to compel Howard Painter, Warden of Mt. Olive to re-classify him from Level III Classification to a lower level of Classification under the Division of Corrections.

 

7. SER Raven Smith v. Calhoun County Circuit Court, No. 010533 (filed 3/6/01)
Smith, pro se, seeks a copy of his trial transcript.

 

8. SER Gearl Withrow v. Putnam County Circuit Court, No. 010532 (filed 3/9/01)
Withrow, pro se, seeks a writ of mandamus seeking to compel the Putnam County Circuit Court to rule upon a pending Writ of Habeas Corpus filed on 12/18/95 (Case No. 95-C-431).

 

9. SER Rush Runyon v. Mingo County Circuit Court, No. 010577 (filed 3/20/01)
Runyon, pro se, seeks a writ of mandamus seeking to compel the Mingo County Circuit court to rule upon a pending Rule 35 Motion for Reduction of Sentence, filed on 4/20/00.

 

10. SER Donald Stout v. Doddridge County Circuit Court, No. 010580 (filed 3/20/01)
Stout, pro se, seeks a writ of mandamus seeking to compel the Doddridge County Circuit Court to issue a ruling on a writ of habeas corpus (Civil Action No. 99-P-6) and a motion for appointment of counsel filed on 3/26/99.

11. SER Raymond Frazier v. William Haines-Warden, No. 010566 (filed 2/26/01)
Frazier, pro se, seeks a writ of habeas corpus alleging the following grounds: (1) Petitioner’s conviction was obtained by the use of a guilty plea, which was unlawfully induced; (2) Petitioner’s conviction was obtained by the use of a coerced confession; (3) Petitioner’s conviction was obtained by a violation of the privilege against self-incrimination; (4) Denial of effective assistance of counsel. Because petitioner submitted a writ of habeas corpus alleging these allegations in the Circuit Court of Cabell County, this petition should be considered an appeal of the denial of the writ of habeas corpus below in Cabell County.

 

12. SER Cornell F. Daye v. James Huppenthal-Administrator, No. 010569 (filed 3/2/01)
Daye, pro se, seeks a writ of habeas corpus in which he alleges the following grounds: (1) Conviction obtained by a coerced confession; (2) Conviction obtained by evidence gained pursuant to an unconstitutional search and seizure; (3) Conviction obtained by use of evidence gained pursuant to an unlawful arrest; (4) Conviction obtained by the unconstitutional failure of the prosecutor to disclose evidence favorable to the defendant; (5) Denial of effective assistance of counsel; (6) Conviction obtained by the unconstitutional failure of due process with prejudice; (7) the circuit court relied upon a null order; (8) Failure of the probation officer to include violations in the violation report; (9) Violation of the Interstate Agreement on Detainers; (10) Denial of effective assistance of counsel; (11) Court’s failure to recognize evidence as invalid; (12) Conviction obtained pursuant to the unconstitutional failure of due process with prejudice.

 

13. SER Donnie Miller v. Jerry L. Detrick, No. 010575 (filed 3/20/01)
Miller, pro se, seeks a writ of habeas corpus asserting the following allegations: (1) Petitioner was placed at the Anthony Center at the age of 17 in violation of W.Va. Code §25-4-6; (2) Petitioner’s equal protection rights were violated because petitioner, as a minor, was held to a different standard than his piers at the Anthony Center; (3) Petitioner was improperly dismissed from the Anthony Center for smoking; (4) Petitioner asserts that he should have received support to stop smoking.

 

14. SER Terry A. Gill v. Wood County Circuit Court, No. 010576 (filed 3/20/01)
Gill, pro se, seeks a writ of habeas corpus alleging that the Wood County Circuit Court should allow him to once again represent himself before the Circuit Court of Wood County.

 

15. SER Samuel P. Moore v. Boone County Circuit Court, No. 010599 (filed 03/22/01) Moore, filing pro se, seeks a writ of mandamus to compel the Circuit Court of Boone County to act on his petition for a writ of habeas corpus in case no. 96-C-31, filed on 3/4/96.

 

16. SER Clifton W. Hanshaw v. Kanawha County Circuit Court, No. 010600(filed 03/26/01)
Hanshaw, pro se, seeks a writ of mandamus to compel the Circuit Court of Kanawha County to rule upon his Motion for Appointment of Appellant Counsel in case No. 99-Misc.-89 and to rule upon his Motion for Credit for Time Served in case No. 87-F-307.

 

17. SER Mark S. Neuman v. WV Board of Probation and Parole, No. 010534(filed 3/12/01)
Neuman, pro se, seeks a writ of mandamus seeking to compel the WV Parole Board to release him on parole.

 

18. Thomas Lewis v. Howard Painter-Warden, 010619 (filed 03/29/01)
Lewis, Pro Se, seeks a writ of habeas corpus asserting the claim of ineffective assistance of counsel.

 

19. James Pack v. Logan County Circuit Court, 010536 (filed 03/12/01)
Pack, Pro Se, filed a motion for reconsideration of sentence with this Court asserting this his attorney below was ineffective.

 

20. In the Matter of Roger R. and Lyle R., No. 010702 (filed 4/23/01)

Juanita K. R., the biological mother of Robert R. and Lyle R., petitions for an appeal from an order terminating her parental rights and denying post-termination visitation.

21. In the Matter of Nicholas H., No. 010799 (filed 5/3/01)
Cathy Brown, the mother of Nicholas H., petitions for an appeal seeking to have her visitation rights reinstated.

22. In the Matter of Christopher P., Cheyenne P., and Cynthia P., No. 010851 (filed 5/10/01)
Raymond P., the father of Christopher P., petitions for appeal from an order terminating his parental rights to his two daughters, Cheyenne P. and Cynthia P., arguing that his conviction for sexual abuse of his 13 year old adopted daughter is not clear and convincing evidence of grossly immoral behavior so as to render him an unfit parent as to his later born children, Cheyenne and Cynthia P.

 

23. In the Matter of John G., No. 010859 (filed 5/11/01)
Karen G., the mother of John G., petitions for appeal from an order terminating her parental rights, arguing that she is entitled to an improvement period.

 

Refuse 5-0

 

24. In the Matter of Loren M. and Jeremiah M., No. 010895 (filed 5/17/01)
Carl A. Tony M., the father of Loren M. and Jeremiah M., lodges this Petition arguing that his parental rights should not have been terminated, because the Court failed to grant an in camera hearing to elicit testimony from Jeremiah M., and because the state did not prove its case by clear and convincing evidence.

25. In the Matter of Shanesha Nicole B., No. 010915 (filed 5/21/01)
Mother, Tonya B., petitions for an appeal of an Order terminating her parental rights and the denial of post-termination visitation.

 

26. In the Matter of: Stormy C., No. 010854 (filed 05/11/01)
Parents file a joint petition appealing the lower court order denying an improvement period and terminating their parental rights, claiming that the court erred in that the State failed to meet its burden of proof and that the doctrine of res judicata bars the State from re-asserting and re-litigating incidents from a previous petition.

 

27. In the Matter of: Brittany P., No. 010869 (filed 05/14/01)
The mother appeals the termination of her parental rights, claiming that the circuit court erred in that there is a reasonable likelihood that the conditions giving rise to neglect of the children can be corrected, in basing the termination of the mother’s parental rights on the misdeeds of her husband, and in denying post-termination visitation.

 

28. In the Matter of Unborn Baby H., No. 010894 (filed 05/17/01)
The mother appeals the circuit court order finding her to be neglectful of her child, claiming the the circuit court erred in that there was not clear and convincing evidence to support a finding that she is neglectful of her child.

 

29. In the Matter of: Kevin B., et al., No. 010936 (filed 05/23/01)
Step-father appeals the circuit court order adopting the recommended order of the prosecuting attorney, finding that he sexually abused his step-daughter. The step-father claims that the lower court erred in that it failed to hold a preliminary hearing and abused its discretion in finding that the step-father sexually abused the child.

 

30. State of West Virginia v. Tony Keith Eanes, No. 010273 (filed 02/26/01)
Eanes appeals the circuit court order sentencing him to ten years in the penitentiary for his jury conviction on one count of Aggravated Robbery, claiming that the court erred in that 1) there was insufficient evidence to support the conviction, 2) the prosecutor committed prosecutorial misconduct, and 3) there were irregularities in the grand jury.

 

31. State of West Virginia v. Charles F. Hardin, No. 010258 (filed 02/28/01)
Hardin was convicted on a plea of guilty to one charge of DUI, Third Offense and appeals the circuit court order sentencing him to one to three years, with credit for two days served, claiming that the court erred in that his sentence was excessive and disproportionate to the crime.

 

32. State of West Virginia v. Anthony Kendrick, No. 010518 (filed 03/09/01)
Kendrick appeals the circuit court order denying his motion to reconsider sentence, claiming that the circuit court erred in sentencing him for his convictions on a plea of guilty to 15 to 25 years for one count Sexual Assault in the First Degree and to 1-5 years for one count of Sexual Assault in the Third Degree. Kendrick claims that the court erred in that it abused its discretion by failing to require the defendant to undergo a physical, mental, and psychiatric study and diagnosis as provided by W.Va. Code § 62-12-2(e).

 

33. State of West Virginia v. Chester Chanze, No. 010516 (filed 03/12/01)
Chanze appeals the circuit court order finding Chanze guilty of Petit Larceny and sentencing him to nine months in the Northern Regional Jail; claiming that the circuit court erred in that it failed to remand the case to magistrate court for a re-trial by jury, but instead proceeded with a bench trial in the circuit court.

 

34. Barbara Stenack v. Robert Stenack, No. 010276 (filed 02/21/01)
Robert Stenack appeals the circuit court order granting his former wife permanent alimony, claiming that the court below erred in finding that the breakup of the marriage was caused by his adulterous affair, by failing to take into consideration the mandatory factors regarding permanent alimony, by granting permanent alimony instead of rehabilitative alimony, and by granting to his ex-wife $3,900.00 in attorney and expert fees.

 

35. Preston S. Cole and Debra A. Cole v. Sriratana Ratanamalaya and Lois Ratanamalaya v. Homeside Lending, No. 010260 (filed 02/22/01)
The Ratanamalayas appeal the circuit court order granting summary judgment in favor of the Coles in a the Coles’s civil action instituted to gain possession of property that the Coles purchased at a Trustee’s foreclosure sale. The Ratanamalayas claim that the circuit court erred in failing to meet the standards for summary judgement.