1. John Sears, II v. Annette Y. Sears, No. 010651. Defendant wife appeals from the circuit court’s order determining that the parties’ Antenuptial Agreement was valid and binding on the issues of alimony and equitable distribution.

Accept To Motion Docket

 

2. Gerald Borror v. Action Youth Care, Inc. and James F. Johans, No. 010647. Plaintiff appeals from the circuit court’s order denying his motion for a new trial after a verdict was returned in favor of defendants in this action for wrongful termination.

Accept To Motion Docket

 

3. ALCO Fence Company of Central West Virginia, Inc. v. Chuck Keener, Airport Manager of the Morgantown Municipal Airport, Frank Scafella, Mayor, City of Morgantown, the City of Morgantown, West Virginia, and Texas Commercial Fence, Inc., No. 010656. Petitioner Texas Commercial Fence, Inc., appeals from the circuit court’s order granting a writ of mandamus in favor of respondent, ALCO Fence Company, which sought an order directing the City of Morgantown to void all contracts and agreements to contract with Texas Commercial and directing the City to award the municipal contract to ALCO.

Grant 3-2
[McGraw, C.J., Starcher, J.]

 

4. Archie Stephens v. Paul Kirby, Warden, No. 010663. Petitioner appeals from the circuit court’s order denying his petition for habeas corpus relief. 

Refuse 5-0

 

5. State of West Virginia v. Roger P. Gelis, No. 010665. Defendant appeals from his conviction for first degree murder. He was sentenced to life imprisonment without the possibility of parole.

Accept To Motion Docket

Justices Starcher and Albright would grant the defendants’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. 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 my 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 imprisonment" 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 imprisonment 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 of life imprisonment, simple fairness means that we must take the steps that will try to detect any unfairness in the proceedings that led to the sentence.

6. Charles Dunn and Florence Dunn v. John Doe, Allstate Insurance Company, and Paul Brown, No. 010666. Plaintiffs appeal the circuit court’s award of summary judgment in favor of defendants.

 

Refuse 3-2
[McGraw, C.J., Starcher, J.]

 

7. Dorsey Scott v. David Stewart, State Superintendent of Schools, No. 010678. Petitioner appeals from the circuit court’s order dismissing his petition for writ of certiorari on the grounds that certiorari is no longer available to any public school teacher/administrator as a means of obtaining judicial review of a decision of the State Superintendent of Schools in revoking teaching and administrative certificates.

Grant 4-1
[Maynard, J.]

 

8. State of West Virginia v. John Teter and Joyce Teter, No. 010686. Defendants appeal from the circuit court’s sentencing order which relied upon objectionable portions of their presentence reports. Defendants seek re-sentencing.

Refuse 4-1
[Starcher, J.]

 

9. Andrew Martin Boggess and Dewey Boggess and Ella Boggess, his parents v. Paula Martinelli and David Martinelli, No. 010687. Plaintiffs appeal from the circuit court’s refusal to enforce a settlement prior to trial.

Refuse 4-1
[McGraw, C.J.]

 

10. Steven Story, Guardian of the Estate of Thomas Wiles, a minor, and Thomas Wiles, a minor, by the Guardian of his Estate, Steven L. Story v. The Estate of Eleanor Worden, The Twentieth Street Bank, Inc., Harold Thompson and Loretta Allen, No. 010690. Plaintiffs appeal from the circuit court’s award of summary judgment in favor of defendants in this personal injury action.

Grant 3-2
[Maynard, J., Davis, J.]

11. State ex rel. DHHR, Bureau of Child Enforcement; and Jennifer Dawn Shepard v. James Carpenter, No. 010695. The petitioner, James B. Carpenter, appeals from an order entered in the Circuit Court of Wood County adopting a Family Law Master’s recommendation that the petitioner reimburse the respondent Bureau of Child Support Enforcement for all the birthing and related medical expenses concerning an infant born to the petitioner and respondent Jennifer Dawn Shepard. The petitioner contends that the Circuit Court’s order was discriminatory and violated principles of equal protection.

Grant 5-0

 

12. State of West Virginia v. Danny Swager, No. 010697. The petitioner, Danny Swager, challenges his convictions in the Circuit Court of Nicholas County of 27 counts of sexual offenses against his minor stepdaughter and his resulting penitentiary sentence of 56 to 120 years. The petitioner raises a number of assignments of error.

Accept To Motion Docket

 

13. Annie Hazel Mathias, by her Executor, Glen R. Mathias, Jr. v. J. Michael Teets, et al., No. 010700. The petitioner, Glen R. Mathias, Jr. (Executor of the Estate of Hazel Mathias), appeals from an order entered in the Circuit Court of Hardy County adopting the verdict of the advisory jury and refusing to set aside a deed conveying a farm from Hazel Mathias and her brother, Lewis Mathias, to the respondent, J. Michael Teets. The petitioner contends that the Circuit Court should have set aside the deed because the evidence demonstrated that, at the time of the conveyance, Hazel Mathias (80 years old) signed the deed as the result of undue influence, and Lewis Mathias (91 years old) suffered from incompetency.

Refuse 4-1
[Starcher]

 

14. State of West Virginia v. Bradford H. Walker, No. 010706. This matter concerns a misdemeanor charge of possession of marihuana wherein the petitioner, Bradford Hunt Walker, appeals from an order entered in the Circuit Court of Fayette County remanding the case to Magistrate Court for disposition. In so ruling, the Circuit Court indicated that the petitioner could not enter a conditional plea in Magistrate Court for the purpose of seeking review in Circuit Court of rulings in Magistrate Court upon the petitioner’s pre-trial motions. The petitioner contends that, pursuant to Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure, he had a right to enter such a conditional guilty plea.

Refuse 4-1
[Albright, J.]

 

15. State ex rel. Kenneth E. Olish v. George Trent, Warden, No. 010707. The petitioner, Kenneth Edward Olish, appeals from an order entered in the Circuit Court of Kanawha County denying him relief in habeas corpus. In the underlying case, the petitioner was convicted of first degree murder, without a recommendation of mercy. The petitioner raises a number of assignments of error and emphasizes that the Circuit Court denied relief in habeas corpus without conducting an evidentiary hearing.

Grant 5-0
[Returnable Below With Directions.]

 

16. State of West Virginia v. Billy Blankenship, No. 010710. The petitioner, Billy Blankenship, challenges his conviction in the Circuit Court of Mingo County of nighttime burglary. The petitioner asserted at trial that the burglary was committed by another individual. The petitioner repeats that assertion upon appeal and, in addition, focuses upon the State’s alleged failure to prove that the burglary occurred during the nighttime.

Refuse 5-0

 

17. Thomas H. McCorkle, Esq. v. James Lees, Esq.: Joseph M. Ferrell, Jr., Esq.; Hunt, Lees, Farrell & Kessler; Alvin Hunt and John A. Kessler, No. 010711. The petitioner, Thomas M. McCorkle, appeals from a summary judgment entered in the Circuit Court of Kanawha County in favor of the respondent partnerships. In the action, the petitioner claimed entitlement to a percentage of the legal fees resulting from the settlement of a medical malpractice case. The petitioner contends that the Circuit Court committed error in concluding that a release signed by the petitioner in July 1997 was dispositive of his claim.

Refuse 5-0

 

18. Teresa L. Jacobs v. Joe Miller, Commissioner of the Division of Motor Vehicles, No. 010712. The petitioner, Teresa L. Jacobs, appeals from an order entered in the Circuit Court of Kanawha County affirming the administrative revocation of her driver’s license. The revocation was based upon the State’s contention that the petitioner operated a motor vehicle while under the influence of alcohol. The petitioner contends, inter alia, that the State failed to follow proper procedures when asking her whether she was willing to take a secondary chemical test.

Refuse 5-0

 

19. State ex rel. DHHR , Child Support Enforcement Division and Denise J. Hannan v. Jeffrey L. Baker, No. 010740. The petitioner, Jeffrey Lynn Baker, appeals from an order entered in the Circuit Court of Kanawha County adopting the recommended decision of the Family Law Master concerning the petitioner’s obligation to pay child support. The petitioner, although recognizing his duty to pay child support, contends that the Circuit Court and Family Law Master committed error; (1) in including within the petitioner’s gross income the amounts he realized from his exercise of stock options and (2) in attributing income to the petitioner based upon a conclusion that the petitioner suppressed his income in order to reduce his child support obligation.

Grant 3-2
[Maynard, J., Davis, J.]

 

20. Kelly Zurel v. Nationwide Mutual Insurance Company, No. 010761. Insurer seeks to appeal denial of summary judgment where the lower court held that insurer was required to extend an additional offer of underinsured motorist coverage when the plaintiff was added to the existing policy of her parents.

Refuse 4-1
[Maynard, J.]

 

 

21. Samuel R. O’Dell and Eva O’Dell v. Gary W. Miller, M.D. and First Settlement Orthopaedics, Inc., an Ohio Corporation, No. 010762. Medical malpractice plaintiff seeks to appeal a jury verdict finding defendants liable for breach of standard of care but no proximate cause as to damages.

Grant 4-1
[Maynard, J.]
[Davis, J. Would Grant on Issue 1 Only.]

 

22. James Jasper and Amy Jasper v. Farmers & Mechanics Mutual Insurance Co., a West Virginia Company, Allstate Homes, Inc., a West Virginia Corporation, Vanderbilt Mortgage and Finance, Inc., a foreign corporation, and Liberty Homes, Inc., a foreign corporation, No. 010794. Plaintiffs brought an action for breach of warranty for damages to their manufactured home which the lower court held was preempted by federal law.

Grant 5-0

23. State of West Virginia v. James C. Smith, II, No. 010795. Petitioner seeks to appeal his conviction for murder, burglary, attempted aggravated robbery and first degree arson for which he received a sentence of life imprisonment without the possibility of parole.

Accept To Motion Docket

Justices Starcher and Albright would grant the defendants’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. 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 my 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 imprisonment" 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 imprisonment 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 of life imprisonment, simple fairness means that we must take the steps that will try to detect any unfairness in the proceedings that led to the sentence.